Filed 7/31/13

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



ALAN PURTON et al.,                               D060475

        Plaintiffs and Appellants,

        v.                                        (Super. Ct. No. 37-2010-00099161-
                                                  CU-PA-CTL)
MARRIOTT INTERNATIONAL, INC.,
et al.,

        Defendants and Respondents.


        APPEAL from a judgment of the Superior Court of San Diego County,

Richard E. L. Strauss, Judge. Reversed.

        Mardirossian & Associates, Garo Mardirossian, Armen K. Akaragian;

Law Offices of Eran Lagstein, Eran Lagstein, Dimitrios N. Theofilopoulos; The Ehrlich

Law Firm and Jeffrey I. Ehrlich for Plaintiffs and Appellants.

        Brady, Vorwerck, Ryder & Caspino, Robert B. Ryder and Ravi Sudan for

Defendants and Respondents.



        In this case, an employee consumed alcoholic beverages at an employer hosted

party and became intoxicated. The employee arrived home safely, but then left to drive a
coworker home. During that drive, the employee struck another car, killing its driver.

The trial court granted summary judgment for the employer on the ground the employer's

potential liability under the doctrine of respondeat superior ended when the employee

arrived home.

       We hold that an employer may be found liable for its employee's torts as long as

the proximate cause of the injury (here, alcohol consumption) occurred within the scope

of employment. It is irrelevant that foreseeable effects of the employee's negligent

conduct (here, the car accident) occurred at a time the employee was no longer acting

within the scope of his or her employment. We also hold that no legal justification exists

for terminating the employer's liability as a matter of law simply because the employee

arrived home safely from the employer hosted party. Accordingly, we reverse the

judgment in favor of the employer.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Defendant Marriott International, Inc. (Marriott) employed Michael Landri as a

bartender at the Marriott Del Mar Hotel (the Hotel). Dennis Fraher was the Hotel general

manager and Joseph Emma was the assistant general manager. Emma was the second

highest ranking person at the Hotel from 2005 to 2009. Sarah Hanson was the

department head or general manager for the restaurant. Emma was Hanson's immediate

supervisor.

       In December 2009, the Hotel held its annual holiday party as a "thank you" for its

employees and management. Marriott did not require that its employees attend the party.



                                             2
Emma and Hanson decided that each party attendee would receive two drink tickets.

They planned to serve only beer and wine at the party.

         Landri did not work on the day of the party. Before the party, Landri drank a beer

and a shot of "Jack Daniel's" whiskey at his home. Page Savicki drove Landri and three

other individuals to the party. They arrived at the party at about 6:15 p.m. Landri took a

flask to the party, which he estimated held about five ounces, filled to some degree with

Jack Daniel's.

         Hanson was the only bartender at the party. At one point during the party, Hanson

had a bottle of Jack Daniel's from the Hotel's liquor supply brought to the bar. Landri

recalled filling his flask once during the party, but it might have been more. At about

9:00 p.m., Landri, Savicki and several other people left the party. Landri "believe[d]"

that Savicki drove home. Savicki and another person support this belief, while a fourth

person claimed that Landri drove. Landri did not consume any alcohol after leaving the

Hotel.

         After about 20 minutes, Landri decided to drive home a coworker that had become

intoxicated at the party. While doing so, Landri struck a vehicle driven by Dr. Jared

Purton, killing Dr. Purton. Following the accident, Landri had a .16 blood alcohol level.

He pleaded guilty to gross vehicular manslaughter while under the influence of alcohol

and received a six-year prison sentence.

         Plaintiffs, Dr. Purton's parents, filed this wrongful-death action against Landri,

Marriott and others. As relevant to the issue before us, Plaintiffs alleged that Marriott

held the party for its benefit, including to improve relations between employees, improve

                                                3
relations between it and employees, and increase the continuity of employment by

providing a fringe benefit. As a bartender, Landri had an above average education

regarding the effects of drinking alcohol. Landri became extremely intoxicated at the

party. Although intoxicated, Landri was allowed to leave the Hotel and drive. Landri

arrived home and then decided to drive another person home. While still intoxicated and

driving over 100 miles per hour, Landri rear-ended Dr. Purton's vehicle.

       Marriott moved for summary judgment on the ground it was not liable because the

accident did not occur within the scope of Landri's employment. The trial court granted

the motion, finding that at the time of the accident, Landri was not acting within the

scope of his employment. Plaintiffs timely appealed.

                                       DISCUSSION

                                   I. Standard of Review

       When a defendant moves for summary judgment, the defendant "bears the burden

of persuasion that there is no triable issue of material fact and that [the defendant] is

entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 850.) If the defendant meets its initial burden, the burden shifts back to the

plaintiff to show that a triable issue of fact exists as to that cause of action. (Code Civ.

Proc., § 437c, subd. (p)(2).) "We review the trial court's decision de novo, liberally

construing the evidence in support of the party opposing summary judgment and

resolving doubts concerning the evidence in favor of that party." (State of California v.

Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017.)



                                               4
                              II. Respondeat Superior Liability

       "Under the doctrine of respondeat superior, an employer may be held vicariously

liable for torts committed by an employee within the scope of employment." (Mary M. v.

City of Los Angeles (1991) 54 Cal.3d 202, 208 (Mary M.).) Early authorities sought to

justify the respondeat superior doctrine on a number of theories, including control by the

employer of the employee. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959

(Hinman).) The modern justification for respondeat superior is a deliberate policy

allocation of risk. (Ibid.)

       Under the respondeat superior doctrine, the term "scope of employment" has been

interpreted broadly. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th

992, 1004 (Farmers).) " '[T]he employer's liability extends beyond his actual or possible

control of the employee to include risks inherent in or created by the enterprise.' " (Id. at

p. 1003, italics deleted.) " '[T]he fact that an employee is not engaged in the ultimate

object of his employment at the time of his wrongful act does not preclude attribution of

liability to an employer.' " (Id. at p. 1004.) Thus, an employer's vicarious liability may

extend to the employee's negligence, willful and malicious torts, or acts that contravene

an express company rule and confer no benefit to the employer. (Ibid.)

       The plaintiff bears the burden of proving that the employee's tortious act was

committed within the scope of employment. (Mary M., supra, 54 Cal.3d at p. 209.)

"Ordinarily, the determination whether an employee has acted within the scope of

employment presents a question of fact; it becomes a question of law, however, when 'the

facts are undisputed and no conflicting inferences are possible.' " (Id. at p. 213.)

                                              5
       Significantly, the imposition of respondeat superior liability is not dependent on

the employer's undertaking any act or upon any fault by the employer. (Perez v. Van

Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967 (Perez).) Rather, an employer may be

vicariously liable for an employee's tort if the employee's act was an " 'outgrowth' " of his

employment, " ' "inherent in the working environment," ' " " ' "typical of or broadly

incidental to" ' " the employer's business, or, in a general way, foreseeable from the

employee's duties. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12

Cal.4th 291, 298–299.) Foreseeability in the context of respondeat superior liability must

be distinguished from foreseeability as a test for negligence. (Farmers, supra, 11 Cal.4th

at p. 1004.) " ' "[F]oreseeability" as a test for respondeat superior merely means that in

the context of the particular enterprise an employee's conduct is not so unusual or

startling that it would seem unfair to include the loss resulting from it among other costs

of the employer's business.' " (Ibid., italics deleted.)

                                         III. Analysis

       Marriott contends the trial court properly granted summary judgment because the

undisputed facts show that Landri was outside the scope of his employment when the

accident occurred and Landri's purpose for leaving his home was unrelated to his work.

Put simply, Marriott argues that any liability it faced under the respondeat superior

doctrine terminated as a matter of law when Landri arrived home safely after the party.

Plaintiffs assert the trial court improperly granted the motion because Landri's

intoxication arose within the scope of employment; accordingly, Marriott's respondeat



                                               6
superior liability followed the risk created by the intoxication wherever it proximately

caused harm.

       As we shall explain, the trial court improperly granted summary judgment because

a reasonable trier of fact could find that Landri acted negligently by becoming intoxicated

at the party, that this act was within the scope of his employment and proximately caused

the car accident which resulted in Dr. Purton's death.

A. Alleged Negligent Act

       We begin by examining Landri's alleged negligent act, as we must first determine

this act before we can ascertain whether the act occurred within the scope of his

employment. Various jurisdictions have addressed this issue and two schools of thought

exist based on how the doctrine of respondeat superior liability has developed in that

particular jurisdiction. Under the first view, followed by Arizona, Illinois and Kansas,

the accident itself must occur at a time that the employee is acting within the scope of his

or her employment. (Bruce v. Chas Roberts Air Conditioning (Ct.App. 1990) 166 Ariz.

221, 226; Holtz v. Amax Zinc Co. (1988) 165 Ill.App.3d 578, 583–584; Thies v. Cooper

(1988) 243 Kan. 149, 156.) Marriott advocates this view, focusing on whether Landri's

alleged tortious act of driving while intoxicated was within the scope of his employment.

       Under the second view, followed by the Supreme Courts of Hawai'i, Oregon and

Washington, it is sufficient that the alcohol consumption occurred within the scope of

employment. (Wong-Leong v. Hawaiian Indep. Refinery (1994) 76 Hawai'i. 433, 441;

Chesterman v. Barmon (1988) 305 Or. 439, 443–444; Dickinson v. Edwards (1986) 105

Wash.2d 457, 468–469; see also Chastain v. Litton Systems, Inc. (4th Cir. 1982) 694 F.2d

                                             7
957, 962.) The question presented is where California falls on this issue. In answering

this question, we do not write on a clean slate.

       In McCarty v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 677 (McCarty),

our high court considered whether an employee's intoxication at an office party "arose in

the course of his employment" within the meaning of workers' compensation law. (Id. at

pp. 681–682.) It concluded that "[e]mployee social and recreational activity on the

company premises, endorsed with the express or implied permission of the employer,

falls within the course of employment if the 'activity was conceivably of some benefit to

the employer. . . .' [Citations, fn. omitted]" or otherwise was a "customary incident of the

employment relationship." (Ibid.) Although McCarty is a worker's compensation case,

our high court has considered worker's compensation cases to be helpful in determining

an employer's vicarious liability for its employee's torts because both fields of law allow

recovery for an injured party irrespective of proof of the employer's fault. (Perez, supra,

41 Cal.3d at pp. 967–968, fn 2.)

       The McCarty court found that the employer's purchase of intoxicants for recurrent

gatherings on the premises demonstrated that it considered the gatherings to be company

activities that benefited the company by fostering company camaraderie and the

discussion of company business. (McCarty, supra, 12 Cal.3d at p. 682.) It concluded

that the employee's attendance at the party came within the scope of his employment

because it conceivably benefited the company (ibid.) and the record demonstrated that

these parties had become "a recognized, established, and encouraged custom." (Id. at

p. 683.)

                                              8
       The McCarty court noted that the going and coming rule, which generally exempts

an employer from liability for tortious acts committed by employees while going to or

coming home from their workplace (Hinman, supra, 2 Cal.3d at p. 961), did not protect

the employer because the employee became intoxicated at his workplace "and this

intoxication proximately caused his death." (McCarty, supra, 12 Cal.3d at p. 681.) After

examining other cases, the McCarty court stated that "if the proximate cause is of

industrial origin, the time and place of injury or death even if foreign to the premises does

not serve to nullify recovery." (Id. at p. 681.)

       Subsequently, the court in Harris v. Trojan Fireworks Co. (1981) 120 Cal.App.3d

157 (Harris) held that plaintiffs pleaded sufficient facts, which, if proved, would support

a jury's determination that an employee's intoxication occurred at a party, that the

employee's attendance at the party and intoxication occurred within the scope of his

employment and it was foreseeable the employee would attempt to drive home while still

intoxicated and might have an accident. (Id. at p. 165.) The Harris court disregarded

whether the employee's trip may have fallen within an exception to the going and coming

rule, stating that "the pivotal consideration was not whether an extra trip was required to

attend the banquet, but whether there was a sufficient business relationship between the

employment and the banquet at which the defendant became intoxicated to hold the

employer liable for the employee's negligent driving." (Ibid.)

       In Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792

(Childers), the court held that an employer was liable for the actions of its off-duty

employees, when the employer provided alcohol and permitted the employees to drink at

                                              9
the workplace after hours. (Id. at p. 806.) In doing so, the Childers court applied the test

set forth in McCarty, noting that the test "is properly applied where an employee

undertakes activities within his or her scope of employment that cause the employee to

become an instrumentality of danger to others even where the danger may manifest itself

at times and locations remote from the ordinary workplace." (Id. at pp. 805–806, italics

added.) In other words, "[s]o long as the risk is created within the scope of the

employee's employment, the scope of employment must follow the risk so long as it acts

proximately to cause injury." (Id. at p. 805.) As a hypothetical example, the Childers

court cited an employee manufacturing radioactive fuel that became contaminated on the

job and later contaminated nonemployees while playing basketball at a gym far from the

jobsite, causing them injury. (Ibid.) Because the employer created the risk of injury, the

Childers court concluded that it should bear the cost of the injury. (Ibid.)

       Finally, the court in Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798

(Bussard), held that the trial court improperly granted summary judgment for an

employer on a respondeat superior theory of liability where the employee suffered

pesticide exposure at work, to which she attributed illness and impaired driving that

contributed to an accident on her way home from work. (Id. at p. 806.) The court noted

that an employee's unfitness to drive after breathing lingering pesticide fumes for several

hours was not such a startling or unusual event so as to render the employee's car

accident unforeseeable. (Ibid.) Despite the fact that the accident occurred on the

employee's way home, "the going-and-coming rule was an analytical distraction" because



                                             10
the "thrust of [plaintiff's] claim for vicarious liability was that [the employee] was an

'instrumentality of danger' because of what had happened to her at work." (Ibid.)

       Thus, existing California case law clearly establishes that an employer may be

found liable for its employee's torts as long as the proximate cause of the injury occurred

within the scope of employment. It is irrelevant that foreseeable effects of the employee's

negligent conduct occurred at a time the employee was no longer acting within the scope

of his or her employment. Here, there is sufficient evidence in the record to support a

finding that Landri breached a duty of due care owed to the public by becoming

intoxicated at the party.

       Before the party, Landri consumed a beer and a shot of Jack Daniel's. Savicki

testified that she worked as a cocktail waitress, had taken a class on how to recognize

intoxicated patrons and that Landri showed no sign of being intoxicated when he left

home for the party. Landri drank alcohol at the Hotel until he left the party at about

9:00 p.m. He did not consume any alcohol after leaving the party.

       A triable issue of fact exists regarding whether Landri appeared intoxicated after

the party. One person claimed that Landri's eyes were "fine" and that Landri was not

staggering or slurring his words when he left the party. Savicki initially stated that based

on her observations, Landri got "drunk" at the Hotel. However, she later claimed that she

"did not think that he was drunk." A police officer that spoke to Landri after the accident

noted that Landri smelled of alcohol, slurred his speech and had red, watery and droopy

eyes. A bystander that pulled Landri from his car after the accident also smelled alcohol



                                             11
on him. On the way to the hospital, Landri spontaneously stated, " 'I'm a bartender and I

know I shouldn't have been driving.' "

B. Scope of Employment

       We now apply the McCarty criteria to the facts to determine whether a reasonable

trier of fact could conclude that Landri was acting within the scope of his employment

when he became intoxicated at the party. Under McCarty, respondeat superior liability

attaches if the activities "that cause[d] the employee to become an instrumentality of

danger to others" were undertaken with the employer's permission and were of some

benefit to the employer or, in the absence of proof of benefit, the activities constituted a

customary incident of employment. (Childers, supra, 190 Cal.App.3d at p. 805.)

       In this case, the evidence shows that the Hotel provided alcohol and permitted the

consumption of alcohol brought to the party by Landri. While Marriott initially planned

to serve only beer and wine at the party, Hanson served guests Jack Daniel's from the

Hotel's liquor stock and actually refilled Landri's flask from that bottle of Jack Daniel's.

Hanson also had a bottle of Frenet Branca under the bar from the Hotel's liquor room that

she shared with certain people. Emma saw Landri pouring from a flask and shared Jack

Daniel's with Landri shortly after Landri arrived at the party. Emma also shared a shot of

alcohol with another employee. Similarly, Hanson shared shots with Landri.

       Additionally, the evidence shows that the party and drinking of alcoholic

beverages were not only of a conceivable benefit to Marriott, but were also a customary

incident to the employment relationship. Emma testified that Marriott held the party as a

"thank you" for its employees. Hanson similarly testified that the purpose of the party

                                             12
was "[c]elebration, employee appreciation, holiday spirit, [and] team building." Thus, a

trier of fact could conclude that the party and drinking of alcoholic beverages benefitted

Marriott by improving employee morale and furthering employer-employee relations.

         The evidence also supports a conclusion that the drinking of alcoholic beverages

by employees at Marriott was a customary incident to the employment relationship. In

general, the evidence suggests that Marriott impliedly permitted employees to consume

alcohol while on the job. Hanson stated that employees would finish alcohol left over

from parties after their shift, taste new drinks or have drinks purchased for them;

however, Emma or Fraher never commented when this happened. At the party,

employees had Marriott's express permission to consume beer and wine, with the

evidence suggesting that Marriott did not follow its plan to limit consumption of alcohol

to two drinks per person. Evidence that Marriott managers consumed hard alcohol with

employees at the party and that a Marriott manager served hard alcohol to employees

suggests that employees had Marriott's implied permission to consume hard alcohol at the

party. Hanson also testified that "historically there has been a lot of drinking and not a

lot of control at these types of [employee] parties."

         Based on this evidence, a reasonable trier of fact could conclude that Landri was

acting within the scope of his employment while ingesting alcoholic beverages at the

party.

         To avoid this result, Marriott notes that McCarty, Harris, and Childers are all

factually distinguishable because, among other things, these cases involved employees

that got into accidents when the employee drove home from an employer sanctioned

                                              13
event while intoxicated. Accordingly, Marriott argues that the going and coming rule

creates "bright line parameters" that bar its possible vicarious liability. We disagree.

       The going and coming rule is a rule of nonliability to an employer for the

negligent acts of its employees while going and coming to work under the rationale that,

absent certain exceptions, an employee is not deemed to be acting within the scope of

employment while traveling to and from the workplace. (Ducey v. Argo Sales Co. (1979)

25 Cal.3d 707, 722.) As we explained above, a trier of fact could conclude that the

proximate cause of the accident, Landri's intoxication, occurred within the scope of

Landri's employment. Because a jury could find the proximate cause of the accident

occurred at the party, before Landri even attempted to drive, the going and coming rule is

not implicated and amounts to an "analytical distraction." (Bussard, supra, 105

Cal.App.4th at p. 806.) Stated differently, we focus on the act on which vicarious

liability is based and not on when the act results in injury.

       Assuming a trier of fact concludes that the proximate cause of the accident

occurred within the scope of employment, there is no reasonable justification for cutting

off an employer's potential liability as a matter of law simply because an employee

reaches home. As acknowledged by the McCarty, Childers and Bussard courts, the

employer's potential liability under these circumstances continues until the risk that was

created within the scope of the employee's employment dissipates. (McCarty, supra,

12 Cal.3d at p. 681 ["[I]f the proximate cause is of industrial origin, the time and place of

injury or death even if foreign to the premises does not serve to nullify recovery."];

Childers, supra, 190 Cal.App.3d at p. 805 ["[T]he scope of employment must follow the

                                              14
risk so long as it acts proximately to cause injury."]; Bussard, supra, 105 Cal.App.4th at

p. 805 [When "imposing liability for an after-hours accident away from the jobsite,

liability follows the employee until the work-spawned risk dissipates."].)

       Marriott complains that imposing liability under the facts of this case would not

prevent a recurrence of the tortious conduct because it had no right to control the purely

personal conduct of Landri after he safely reached home. It asserts that Plaintiffs are

asking the court to judicially legislate new law that any employee drinking alcohol at his

or her place of employment or employer's party must be escorted home and kept there by

such escort, in violation of his or her personal privacy and liberties. Not so.

       Marriott's arguments are derivative of each other and ignore the fact that it created

the risk of harm at its party by allowing an employee to consume alcohol to the point of

intoxication. Marriott could have lessened this risk in numerous ways such as having a

policy prohibiting smuggled alcohol, enforcing its drink ticket policy, serving drinks for

only a limited time period and serving food. Alternatively, it could have eliminated the

risk by forbidding alcohol.

       We concur with the observations of the Childers's court that alcohol abuse is

foreseeable and extremely dangerous and innocent people are injured or killed "as a

consequence of the negligence of those who have consumed alcohol at events that

otherwise benefit a commercial enterprise. . . . We think that if a commercial enterprise

chooses to allow its employees to consume alcoholic beverages for the benefit of the

enterprise, fairness requires that the enterprise should bear the burden of injuries



                                             15
proximately caused by the employees' consumption." (Childers, supra, 190 Cal.App.3d

at p. 810.)

       Notably, our conclusion that the trial court erred in granting summary judgment in

favor of Marriott does not impose respondeat superior liability on Marriott, it merely

results in this question being resolved by the trier of fact. Necessarily, the trier of fact

will need to determine, based on the totality of the evidence presented, whether Landri's

act of leaving his home shortly after arriving from the party to drive a fellow employee to

that employee's home was " 'so unusual or startling' " so as to render the car accident

unforeseeable. (Perez, supra, 41 Cal.3d at p. 968.)

       Marriott cites two out-of-state cases, S. Bell Tel. & Tel. Co. v. Altman (1987) 183

Ga.App. 611 and Mulvihill v. Union Oil Co. (Alaska 1993) 859 P.2d 1310 (Mulvihill), to

support its contention that respondeat superior liability ceases as soon as an intoxicated

employee arrives home. Georgia, however, follows the alternate view that the accident

itself must occur at a time that the employee is acting within the scope of his or her

employment. (Whelchel v. Laing Properties, Inc. (1989) 190 Ga.App. 182, 186–187.)

Our research shows that Alaska courts have not yet expressly addressed whether the

accident itself must occur at a time that the employee is acting within the scope of his or

her employment or whether it is sufficient to show that the risk of harm occurred within

the scope of employment. Nonetheless, the Mulvihill opinion and other Alaska opinions

suggest Alaska also follows the view that the accident itself must occur at a time that the

employee is acting within the scope of his or her employment. (Luth v. Rogers & Babler

Constr. Co. (Alaska 1973) 507 P.2d 761, 764, fn. 14 [following Restatement (Second) of

                                              16
Agency, section 228 (1958) factor that conduct must occur within authorized time and

space limits]; Mulvihill, at pp. 1312–1313 [doctrine of respondeat superior liability does

not encompass employee's drive to see his fiancé]; Parnell v. Peak Oilfield Serv. Co.

(Alaska 2007) 174 P.3d 757, 769 [respondeat superior liability attached because

employee was acting within scope of employment when the accident occurred].)

       Finally, we note that Plaintiffs' complaint contains allegations of direct negligence

by Marriott regarding how it hosted the party. Plaintiffs, however, appear to have

abandoned this theory in their opposition to the summary judgment motion. While it is

unclear whether Plaintiffs intend to pursue this theory on remand, it is appropriately

addressed below and we express no opinion on this theory of recovery.

       In summary, the questions whether Landri committed a negligent act, and whether

that act was within the scope of his employment are for the trier of fact to decide. Based

on the evidence in the record, a trier of fact could conclude that Landri negligently

consumed alcohol to the point of intoxication while at the party. In assessing Landri's

negligence, the trier of fact could consider, among other things, the disputed evidence

regarding whether Landri drove home from the party and whether it was foreseeable he

might attempt to drive later in the evening while still intoxicated. Foreseeability means

that " 'in the context of the particular enterprise an employee's conduct is not so unusual

or startling that it would seem unfair to include the loss resulting from it among other

costs of the employer's business.' " (Perez, supra, 41 Cal.3d at p. 968.) Assuming the

trier of fact found that Landri acted negligently, it could also conclude that Landri's

negligent act occurred within the scope of Landri's employment because the party and

                                             17
drinking of alcoholic beverages were a conceivable benefit to Marriott or were a

customary incident to the employment relationship so as to render Landri's act of

drinking to be within the scope of his employment. Additionally, the ultimate question of

whether Landri's ingestion of alcohol at the party caused Plaintiffs' injury is for the trier

of fact.

                                       DISPOSITION

       The judgment is reversed. Plaintiffs are awarded their costs on appeal.



                                                                         MCINTYRE, J.

WE CONCUR:

MCCONNELL, P. J.

BENKE, J.




                                              18
