This appeal represents another attempt to expand the law of torts by creating a new cause of action, which might be entitled “The Employer’s Dram Shop Law.”
*246 The factual allegations 1 advanced by the appellants are that Evelyn Hargis was killed instantly when the vehicle she was driving was struck head-on on December 23, 1985. Ms. Hargis was survived by her husband, Jesse W. Kuykendall, and a minor daughter, Christina. The complaint asserts that Charles E. Wilkes Jr. and Robert Dean Wade, employees of Top Notch Laminates, Inc., “were driving their separate cars while drunk.” According to the appellants, Wilkes and Wade were “swerving back and forth on the roadway trying to pass or to prevent the other from passing.” The result of their “horse play” was that “Wilkes swerved across the center line at a high rate of speed directly into the path of the car driven by Evelyn Hargis.”
For approximately five-and-a-half hours immediately prior to the collision between Wilkes and Ms. Hargis, he and Wade had been attending a Christmas party given by their employer, Top Notch Laminates, Inc. (Top Notch). Attendance at the party was not required.
The suit charges that “Wilkes and Wade drank constantly from 12:30 P.M. to 5:00 P.M. and became highly intoxicated.” The complaint further asserts that Top Notch knew that Wilkes and Wade were intoxicated but continued to serve alcoholic beverages to them.
The appellants asseverate that Top Notch permitted Wilkes and Wade to drive their respective automobiles away from the party even though it was known that the two were intoxicated. Because of the employer-employee relationship, appellants reason that Top Notch could, but did not, prevent Wilkes and Wade from driving while intoxicated.
Jesse Kuykendall, for himself and as personal representative of Ms. Hargis’s estate and on behalf of the couple’s infant daughter, Christina, filed suit in the Circuit Court for Montgomery County against Top Notch. Pursuant to Md. *247 Rule 2-322(a)(2), Top Notch moved to dismiss. Judge L. Leonard Ruben granted the motion, and this appeal ensued.
The issue before us, as seen by the Kuykendalls, is: “When an employer negligently promotes and permits the intoxication of an employee at the employer’s premises during business hours and in the course of an employer’s party, and knowingly allows the intoxicated employee to drive from his employment and negligently collide with and kill another, can a jury find the employer liable?”
The forerunner of this appeal was decided by the Supreme Court of New Jersey in
Kelly v. Gwinnell,
Appellant urges that we not only, out-of-the-blue, adopt Kelly but that we take a giant step and apply it to an employer who hosts parties for employees. Although Kelly does not expressly so state, its clear message is that, in New Jersey, a party host is truly his “brother’s keeper.” If we apply Kelly to the facts in the instant case, the employer-host might well inquire, “Am I my employee’s keeper?”
We think it significant to note that
Kelly
did not suddenly appear in New Jersey case law. The
Kelly
decision was the end product of a progression of decisions. Commencing in
Rappaport v. Nichols,
*248
It is obvious from reading the complaint in the instant case that counsel for the Kuykendalls carefully patterned his pleading along
Kelly
lines.
2
Be that as it may, Maryland has not adopted
Kelly
nor has it seen fit, either judicially or legislatively, to embrace a dram shop law action.
Felder v. Butler,
Patently the Kuykendalls’ suit is grounded on a theory of negligence. The elements of actionable negligence are:
“1. a legal duty on the part of the defendant to use due care toward the plaintiff;
2. a failure by the defendant to perform the duty he owes to the plaintiff;
3. some damage to the plaintiff; and
4. which damage was occasioned by the defendant’s failure to perform the required duty.”
Gilbert,
Maryland Tort Law Handbook,
§ 11.1;
see also Myers v. Montgomery Ward & Co.,
The focus in the case now before us is on the first of those elements—“legal duty.” Generally “duty” requires an actor to conform to a certain standard of conduct so as to protect others against unreasonable risks.
Lamb v. Hopkins,
In an effort to establish a duty on the part of Top Notch, the Kuykendalls cite Section 315 of the Restatement (Second) of Torts. That section provides:
“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.” (Emphasis added).
Appellants assert that a “special relation” existed between Top Notch (the actor) and Wilkes (the third person) by virtue of their employer-employee relationship. That relationship, appellants contend, conferred a duty upon Top Notch to control the actions of Wilkes, as well as a duty to the general public to protect them from injury by Wilkes.
The Court of Appeals has adopted the principle that there is no liability to a third person absent a “special relationship” with a clear right to control.
Ashburn v. Anne Arundel County,
It is well established in this State that, in order for an employer to be vicariously liable for the acts of an employee, the employee must be acting within the scope of his or her employment.
Dhanraj v. Pepco,
We turn now to the crux of this appeal. To support their contention that we should hold Top Notch liable for Wilkes’s negligent act, the Kuykendalls rely upon
Otis Engineering Corp. v. Clark,
The closest case, factually, to the one at bar, however, appears to be
Pinkham v. Apple Computer, Inc.,
The Texas Court of Appeals distinguished Otis, observing that in it there was, as in Brockett, the allegation of an affirmative act on the part of the employer in escorting the intoxicated employee to a motor vehicle and allowing him to drive, but that no affirmative act was present in Apple. Similarly, in the matter sub judice, the employer, Top Notch, took no affirmative act with respect to Wilkes’s operating a motor vehicle.
Felder v. Butler,
The gist of the Kuykendall argument is simply that we should judicially impose liability on an employer who provides alcoholic beverages to an employee who subsequently, in an intoxicated state, injures another person.
*252 We decline the appellants’ invitation to expand the law of torts so as to permit recovery from employers under the circumstances of this case. If the common law is to be changed so as to allow recovery from an employer for the acts of his employee, notwithstanding the absence of respondeat superior or some affirmative act on the part of the employer, either the General Assembly or the Court of Appeals in its role as “law giver” will have to so declare.
As for this Court, we think Judge Ruben correctly granted summary judgment in favor of the appellee, and we so hold.
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.