Thomas Wellinger was about nine miles from his office when he killed three people in a drunken driving crash. But at a trial due to start this week, a Michigan jury could still hold his employer liable for what he did while he was intoxicated.

Thomas Wellinger's SUV at accident scene

Gary Weinstein, who lost his wife and two young sons in the crash, is seeking unspecified damages from Siemens, alleging it knew or should have known Wellinger was drunk on May 3, 2005 and created a foreseeable risk of harm to others by ordering him to drive to a psychiatric appointment after work with knowledge of his intoxication.

Wellinger drove his SUV at high speed into the back of a vehicle being driven by Judith Weinstein, pushing her into oncoming traffic. His blood-alcohol level was 0.43 — more than five times the legal limit.

The theory that employers can be liable for the off-premises conduct of an intoxicated employee is controversial. Siemens has argued there is “absolutely” no evidence that Wellinger was visibly intoxicated before he left his office in Livonia, Mich., citing the testimony of seven coworkers who said they did not suspect he was drunk.

But U.S. District Judge Paul D. Borman ruled in November 2009 that other evidence — including Wellinger's own admission that he drank six ounces of alcohol on the morning of the crash — “cast[s] significant doubt on the credibility of the testimony of the Siemens employees.”

In a key pretrial ruling earlier this month, he also said Gary Weinstein could introduce evidence of Wellinger's drinking history to show that “the conduct Wellinger was exhibiting the day of the accident was consistent with conduct he had exhibited on prior occasions when he was suspected of being intoxicated.”

The Michigan Supreme Court rejected employer liability in the case of a golf caddie who killed a woman in a drunken driving accident after being served alcohol at work. But it did not rule out a valid claim when

an employer knew or should have known that its employee could not be entrusted with the responsibility imposed by the employer so as to give rise to a foreseeable risk of harm to others. Millross v. Plum Hollow Country Club, 413 N.W.2d 17 (1987).

Wellinger's drinking problem allegedly began to affect his performance as an account executive at UGS Corp., a software company that is now part of Siemens, in December 2004. On the day of the accident, he met with his boss, Ed Arlin, who has testified he told him to see his psychiatrist after work and report back on what recommendations the doctor had for improving his job performance.

Wellinger left the office about 2:45 p.m. to go to the doctor's appointment and collided with Judith Weinstein 45 minutes later in Farmington Hills, Mich.. He is now serving 19 to 30 years in prison after pleading guilty to second-degree murder in the deaths of Weinstein and her sons.

Siemens argued in a motion for summary judgment that Gary Weinstein's claims for vicarious liability and negligent supervision should be dismissed. “Michigan courts have consistently held that employers do not owe a duty to the public at large to prevent intoxicated employees from leaving the premises, even where an employer directs a visibly intoxicated employee to leave the premises,” it said.

But echoing the language of Millross, Judge Borman said a jury should decide whether

Siemens knew or should have known, before it mandated, as a condition of his further employment in his position, that Mr. Wellinger meet with his doctor that day, that Mr. Wellinger was intoxicated and “could not be entrusted with the responsibility” it imposed upon him to go to that appointment and to report back to Mr. Arlin what the doctor recommended. Weinstein v. Siemens, 673 F. Supp. 2d 533 (2009).

The evidence of Wellinger's drinking history and intoxication on the day of the accident may be enough to sway the jury in Weinstein's favor. Siemens says Wellinger may have taken a detour and gotten drunk on the way to the doctor but it is unlikely he could have reached the 0.43 blood-alcohol level that quickly.

By Matthew Heller
11/28/10