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Social Host Liability – Has the Time Come?

November 29, 2000  |  By:  Roger G. Oatley, Robert M. Durante

Despite the evolution of commercial host liability law in Canada, there is still a paucity of cases touching upon the issue of social host liability. This is not to say that Canada courts have rejected social host liability in principle, but rather the right case has not gone on to verdict. The continued development of tort law and society’s growing intolerance to drinking and driving suggests that it is only a matter of time before a social host is found liable given the right circumstances. In imposing liability upon a social host the courts may come to a similar conclusion to the one reached some eleven years ago in Hague v. Billings. Consider the following passage:

The injuries which can be inflicted by an automobile, which becomes a lethal weapon when controlled by an intoxicated person, can be catastrophic and, accordingly, there is a high standard of care imposed on a tavern and its staff to ensure that it does not sell so much liquor to a patron that he or she becomes a danger to others using the highway.

Although Justice Granger was faced with a case involving commercial hosts, can we not ask an analogous question of our social hosts? Is the danger of ultimate harm as equally foreseeable to the reasonably perceptive host as to the bartender? Is the danger and risk to the potential victim on the highway equally as great, regardless of the source of the liquor, and regardless of the motive for supplying it? Our courts will have to grapple with these issues in answering some of the more fundamental questions relating to the duty of care and requisite standard of care.

To Whom Does a Social Host Owe a Duty of Care?

The modern law of torts is rooted in Donoghue v. Stevenson and in particular Lord Atkins statement at page 584: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. In using the term “neighbour,” the House of Lords was referring to the idea of proximity of relationship. Lord Atkin defined “neighbour” in the following manner:

Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. The relationship between the parties is the key to whether or not a duty of care is owed from one to the other. If it can be said that the parties relationship is such that they can be viewed as “neighbours,” a duty of care will exist. The Supreme Court of Canada in Nielson v. City of Kamloops sets out the proper approach to establishing duty of care, where Madam Justice Wilson wrote: The Trilogy of House of Lords cases – Donoghue v. Stevenson, [1932] A.C. 562; Hedly Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465, and Dorest Yacht Co. Ltd. v. Home Office, [1970] A.C. 1004 – clearly established that in order to decide whether or not a private law duty of care existed, two questions must be asked:

Is there a sufficiently close relationship between the parties ·so that, in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person? If so, Are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise? In a more recent case, Stewart v. Pettie , the Supreme Court of Canada describes the above test as the “modern” approach to determining the existence of a duty of care, as established by the House of Lords in Anns v. Merton London Borough Counsel and adopted by the Supreme Court in Nielson. This approach has also been approved by the Supreme Court in Just v. British Columbia and Hall v. Hebert . Put simply, the neighbour principle establishes that people owe a duty of care to those whom they ought reasonably have in contemplation as being at risk when they act. In Stewart, the plaintiff Gillian Stewart attended at a dinner theatre operated by the defendant Mayfield. She left the dinner theatre with another couple in a car driven by the defendant Pettie, who was intoxicated. Pettie lost control of his car and crashed, rendering Gillian Stewart a quadriplegic. The Supreme Court applied the two-part test enunciated in Anns to determine the scope of the duty of care. The Court extended the scope of the defendants duty of care to third parties who might foreseeably suffer harm from an intoxicated patron. The Supreme Court, at page 99, holds as follows:

It is a logical step to move from finding that a duty of care is owed to patrons of the bar to finding that a duty is also owed to third parties who might reasonably be expected to come into contact with the patron, and to whom the patron may pose some risk.

Ultimately, the Supreme Court finds that “the question of whether a duty of care exists is a question of the relationship between the parties, not a question of conduct.”

In Hall v. Hebert, the Supreme Court was asked to determine whether a person who has care and control of a motor vehicle owes a duty of care to another who is known to be impaired to deny that impaired person permission to drive the vehicle. In addressing the issue of duty of care, the Supreme Court adopts and applies the classical “neighbour principle”. It states: … a duty of care arises when there is a likelihood of harm being occasioned due to ones actions to a person in a sufficient relationship of legal proximity to give rise to such a duty. The notion of “legal proximity” has been set out in terms of whether the risk of harm ought to have been reasonably foreseeable to the defendant.

Nevertheless, the Supreme Court observed that foreseeability in and of itself is not the only element in determining whether there is a duty of care. By this statement, the Supreme Court was referring to the second part of the test in Anns. In other words, “are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?” Therefore although the “neighbour principle” is the starting point for determining whether a duty of care exists, societal concerns must also be addressed under the heading of public policy. The court will address these public policy concerns under the second branch of the test in Anns.

Society’s increasing condemnation of drunk driving and the carnage it often leaves behind acts as a good barometer in gauging the potential success of defendants who argue to limit the scope of a hosts duty of care based on public policy reasons. It would be difficult if not impossible for a defendant to argue, under the second branch of the Anns test, that based on public policy considerations a social host should not be held to owe a duty of care to his guests or third parties. As there are no compelling policy reasons to negative or limit the commercial hosts duty of care, so too there are no compelling policy reasons to negative or limit the social hosts duty of care. The absence of a “profit motive” on the part of the social host, or the potential “chilling effect” a finding of duty of care may create on our freedom to act as hosts does not constitute sufficient public policy reasons to limit or negative a social hosts duty of care to others. Although these concerns may be legitimate, the court should consider these factors only in determining whether the requisite standard of care was met in the circumstances, or in assessing the relative degrees of fault between the parties.

The aforementioned cases from our highest Court demonstrate that the modern approach to determining the existence of a duty of care requires a rather straightforward application of the “neighbour principle” which is predicated upon the notion of proximity of relationships. The notion of “legal proximity” has been set out in terms of whether the risk of harm “ought to have been reasonably foreseeable to the defendant”. Lastly, the court will take into consideration any public policy reasons which may negate or limit the duty of care.

There is no question that commercial vendors of alcohol owe a general duty of care to persons who can be expected to use the highways. To paraphrase Wilson J. in Nielson v. City of Kamloops, it clearly ought to be in the reasonable contemplation of such people that carelessness on their part might cause injury to such third parties. The same can be said of a social host who serves too much alcohol to his guests. However, the courts over the years have grappled with the issue of what standard of care is required of the tavern to discharge its duty. The courts will likely also grapple with the difficult question of what standard of care is required of a particular social host in particular circumstances.

What Is the Requisite Standard of Care?

The question of whether a duty of care exists is a question of the relationship between the parties and not a question of conduct. The question of what conduct is required to satisfy the duty is the more difficult question of the appropriate standard of care. The point is made by Fleming in his book, The Law of Torts (8th ed. 1992), at pp. 105-6:

The general standard of conduct required by law is a necessary complement of the legal concept of “duty.” There is not only the question, “Did the defendant owe a duty to be careful?” but also, “What precisely was required of him to discharge it?” Indeed, it is not uncommon to encounter formulations of the standard of care in terms of “duty,” as when it is asserted that a motorist is under a duty to keep a proper lookout or give a turn signal. But this method of expression is best avoided the duty issue is already sufficiently complex without fragmenting it further to cover an endless series of details of conduct. “Duty” is more appropriately reserved for the problem of whether the relationship between the parties (like manufacturer and consumer or occupier and trespasser) warrants the imposition upon one of an obligation of care for the benefit of the other, and it is more convenient to deal with individual conduct in terms of the legal standard of what is required to meet that obligation. The standard of care issue with respect to social hosts is a difficult issue, made even more difficult perhaps by the lack of specific judicial consideration in this area. Generally, the law requires reasonable responses to reasonable risks. According to the Supreme Court in Jordan House Ltd. V. Menow, whether a defendants conduct is reasonable in the circumstances will depend on the “probability and gravity of injury as related to the burden that would be imposed upon the defendant in taking avoiding measures” . This is a fundamental principle equally applicable to the social host. The courts in determining whether a social host as met the standard of care will no doubt look to the commercial host cases for some guidance. I will only mention a few of these cases briefly.

Special Relationships & the Positive Duty to Act

In Stewart, the Supreme Court in reviewing the standard of care issue, concedes that historically the courts have been reluctant to impose liability for a failure by an individual to take some positive action. This reluctance has been tempered in recent years where the relationship between the parties is such that the imposition of such an obligation has been warranted. In those cases, there has been some “special relationship” between the parties warranting the imposition of a positive duty. Jordan House was such a case.

A similar positive obligation was found to exist in Crocker v. Sundance Northwest Resorts Limited . The plaintiff entered a “tubing competition” put on by the defendant ski-hill. Before the race, the plaintiff became drunk in the ski-hills bar, and by the time he was to race, was visibly intoxicated. The organizers of the race suggested that he not compete, but permitted him to do so nevertheless. As a result, he was thrown from his tube and rendered a quadriplegic.

In finding liability on the part of the owner Sundance, Wilson J. noted that the courts have increasingly required a duty to act where there is a “special relationship” between the parties. Canadian courts have been willing to expand the kinds of relationships to which a positive duty to act attaches. Wilson J. reviewed cases where the courts will require a positive action on the part of the defendant and states at page 1197:

The common thread running through these cases is that one is under a duty not to place another person in a position where it is foreseeable that the person could suffer injury. The Supreme Court in Stewart adopts Wilson J. analysis in Crocker and acknowledges that there are two questions to be answered in light of Wilson J. reasoning. The first is whether the defendant was required, in the circumstances, to take any positive steps at all. If this is answered in the affirmative, the next question is whether the steps taken by the defendant were sufficient to discharge the burden placed on it.

It is logical and consistent with sound public policy to apply these fundamental principles to the social host who serves his guest alcohol beyond the point of impairment or intoxication, and when he knows the guest will be operating a motor vehicle. The court in this situation would find it difficult in not imposing a positive duty to act on a social host. After all, the necessary elements of the commercial host (aside from the profit making) are present in a social host situation. And in some circumstances, the social host may have more control over the premises, fewer guests, and special knowledge of the guests propensities and susceptibilities to drink.

In these circumstances, courts will ultimately find the necessary “special relationship” between host and guest. Courts may rely upon the fundamental proposition that a person who serves alcohol to another to the point of intoxication has by this act of provision itself, placed that person and others in a potentially hazardous position, and accordingly must exercise due care to prevent injury. In this respect, the commercial nature of the activity ought not to be a relevant factor in imposing a positive duty to act. The duty should apply equally even where commerce or profit is not a factor.

The Importance of Foreseeability

Although the existence of a “special relationship” will frequently warrant the imposition of a positive obligation to act, the sine qua non of tortious liability remains the foreseeability of the risk. The Supreme Court in Stewart confirms that:

Where no risk is foreseeable as a result of the circumstances, no action will be required, despite the existence of a special relationship. . . One of the primary purposes of negligence law is to enforce reasonable standards of conduct so as to prevent the creation of reasonably foreseeable risks. In this way, tort law serves as a disincentive to risk-creating behaviour. To impose liability even where the risk which materialized was not reasonably foreseeable is to lay a portion of the loss at the feet of a party who has, in the circumstances, acted reasonably.

The Supreme Court rejects the argument that serving someone to the point of intoxication, without more, is sufficient to create liability. Instead, the commercial host will be required to take some action only if there is some foreseeable risk of harm to the patron or to a third party. The Supreme Court goes further in stating that the defendant dinner theatre cannot escape liability simply because Pettie was not exhibiting any visible signs of intoxication. Furthermore, establishments which serve alcohol must either intervene in appropriate circumstances or risk liability, and that this liability cannot be avoided where the establishment has intentionally structured the environment in such a way as to make it impossible to know whether intervention is necessary. The Supreme Court distinguishes the facts of this case from other tavern cases and comes to the conclusion that the circumstances were not such that a reasonably prudent establishment would have foreseen that Pettie would drive because the commercial host knew that his wife and sister were sober and it could reasonably assume one of them would drive Pettie home.

The principles the Supreme Court sets out in Stewart are equally applicable to a social host situation. In other words, serving a guest to the point of intoxication will likely not be enough for the courts to find liability on the social host. A foreseeable risk of harm will be required in order to trigger the positive duty to act. However, like in commercial host cases, the social host cannot escape liability where he creates an environment whereby it is impossible to know whether intervention is necessary. In the end, the court will have to consider all of the relevant circumstances in determining whether the host met the standard of care. The court will likely ask the following questions: • Why did the guest attend at the hosts premises? • Did the host have control over the premises and the alcohol? • Why did the host serve alcohol? • What benefit did the host receive? • How were the drinks served? (goes to control; was it self-serve?) • Was the host drinking and was his judgment impaired? • Did the host monitor the consumption of guests? • Did the host know the guests would drive afterward? • Did the host provide alternative modes of transportation or accommodation? • Was the host aware (or should he have been aware) that the guest had too much to drink? • What steps, if any, did the host take to prevent the intoxicated guest from driving?

Some American Authorities

Social host liability has received far more attention in the United States. Canadian cases dealing with the issue in the future will invariably cite American authority, which recognizes social host liability. I will only mention a few of the leading cases here. It is important to note while reading this section that not every state in the U.S. has embraced the notion of social host liability. Liability is determined on a state-by-state basis, either by the legislature or the courts.

The case of Kelly v. Gwinnell is often cited as the leading case on social host liability. In that case, the defendant host Zak, served the defendant guest Gwinnell a total of 13 alcoholic drinks during the span of one or two hours. The host then accompanied Gwinnell to his car where they chatted for a few minutes. The host watched the defendant Gwinnell leave in his car. A short while after departing, Gwinnell was involved in a head-on collision injuring the plaintiff Kelly. The New Jersey Supreme Court found that the host continued to provide his guest with alcohol even after it became apparent that the point of the intoxication had been reached. Based on such a finding, the Court stated: A reasonable person in Zaks position could foresee quite clearly that this continued provision of alcohol to Gwinnell was making it more and more likely that Gwinnell would not be able to operate his car carefully. Zak could foresee that unless he stopped providing drinks to Gwinnell, Gwinnell was likely to injure someone as a result of the negligent operation of his car. The usual elements of a cause of action for negligence are clearly present: an action by defendant creating an unreasonable risk of harm to plaintiff, a risk that was clearly foreseeable, and a risk that resulted in an injury equally foreseeable. Under those circumstances the only question remaining is whether a duty exists to prevent such a risk or, realistically, whether this Court should impose such a duty. The New Jersey Supreme Court relied on ordinary negligence principles and characterized the issue of duty as a duty owed to the public by the provider of alcohol not to create foreseeable and unreasonable risks in providing the alcohol. The Court advanced compelling policy considerations in finding it necessary to impose a broad duty of care on social hosts:

We impose this duty on the host to the third party because we believe that the policy considerations served by its imposition far outweigh those asserted in opposition. While we recognize the concern that our ruling will interfere with accepted standards of social behaviour; will intrude on and somewhat diminish the enjoyment, relaxation, and camaraderie that accompany social gatherings at which alcohol is being served; and that such gatherings and social relationships are not simply tangential benefits of a civilized society but are regarded by many as important, we believe that the added assurance of just compensation to the victims of drunken driving as well as the added deterrent effect of the rule on such driving outweigh the importance of those other values.

The Court also rejected the argument that social host liability, unlike commercial host liability, was inappropriate on the grounds that no profit is derived from the furnishing of alcohol. The Court stated that the liability proceeds not from the motive or the provision of alcohol, but from a finding of duty of care. In rejecting the motive for profit as a basis for liability, the Court removes commerce or profit as a relevant factor. This view is consistent with the fundamental principles set out by Supreme Court in Stewart and Hall. Other American states have recognized a social hosts common law duty where the social host “knew or should have known” that the guest was intoxicated and would be driving . Other cases have also swept aside the distinction between commercial hosts and social hosts which rests on the expectation of profit and use strong public policy considerations to conclude that “hosts who increase the obvious intoxication of a guest under conditions involving a reasonably foreseeable risk of harm to others” should be found liable .

Other courts have insisted that an essential element for social host liability is that the guest is given or furnished alcoholic beverages by the social host , while other courts require that the social host not only have control over the alcohol supply, but also supply alcohol to the guest when he was “visibly intoxicated .”

Canadian Cases on Social Host Liability

There are few Canadian cases that deal directly with the issue of social host liability. In Baumeister v. Drake , the Supreme Court of British Columbia considered the issue. Shane Baumeister fell out of the back of a pick-up truck at about 6:30 a.m., driven by the defendant Drake. Baumeister suffered a catastrophic brain injury as a result. Including the driver Drake, there were eight people in the pick-up truck, all under 20 years old, and all but one drunk. They had left a few minutes before from an all-night “grad” party given by the defendants Mr. and Mrs. Carefoot for their graduating son at their home. The Carefoots expected 20 to 30 young people, the graduates and their escorts. The Court found as a fact that the only alcohol they served was a bowl of fruit punch, the alcohol content of which was wine, and its capacity was only 15 glasses. The party was a BYOL party, which translates into “bring your own liquor.” Later that evening, the rumour got around that there was a good party at the Carefoots, as a result of which a mass of young people attended uninvited. At the peak of festivities in the wee hours of the morning, there were more than 200 people at the party. At about 6 a.m., the party began to wind down and there were only about 50 guests left. The group engaged in alcohol and illegal drug use prior to arriving at the Carefoots home and consumed more of their own alcohol at the party. In exonerating the Carefoots, the Court placed great reliance on the fact that the Carefoots did not supply any alcohol to the parties. The Court observed:

Neither Baumeister nor Drake were permitted, induced, encouraged or enabled by the Carefoots or either of them to get themselves into their dangerous state of impairment. They did that themselves before they ever arrived at the Carefoots party and aggravated their disability themselves after they arrived at the party with alcohol supplied by themselves or other guests, but not by the Carefoots. The Court cited American authorities to support its view that the host must actually provide alcohol to the guest for liability to be invoked.

A similar case arose out of Edmonton ten years later. The Alberta Court of Queens Bench in Wince et al. v. Ball et al. considered the liability of a father who allowed his 18 year old daughter to hold a party at her parents house. Her father did not supply the alcohol and he did not prohibit consumption of alcohol brought by the guests. The parents never actively supervised the party. Like Baumeister, there were a number of uninvited guests. One of the guests became intoxicated and he was driven from the party by a sober driver and dropped off at his own car, which he later drove causing an accident in which a pedestrian was injured. In an action against the young woman and her parents, the father moved for summary dismissal as against himself.

In dismissing the action against the father, the Court acknowledged: The law may have moved beyond the position in Baumeister v. Drake to impose a duty upon even a non-commercial host to take reasonable steps to prevent injury to third parties by inebriated guests, especially teenaged guests. The issue may no longer simply be answered on the basis of whether the hosts provided the alcohol.

However, the Court ultimately ruled that the law has not moved so far as to impose liability on a parent for simply permitting a teenage drinking party in his or her home, nor to make them guarantors of ultimate safe delivery home of all guests. Unless the plaintiffs were able to show that, aside from holding the party, the host did or omitted to do something which contributed to the drunken driving, the host escapes liability.

Ontario courts have yet to consider a true social host case that has gone on to verdict. In Broadfoot v. Ontario (Minister of Transportation and Communication). Justice Quinn considered whether the plaintiff in an application for payment out of the Motor Vehicle Accident Claims fund ought to have sued a social host. The plaintiff and her husband had just left the house of a friend, where the husband had consumed a number of drinks. Before leaving the friends house, the plaintiff allowed her husband to drive the car in full view of the friend. The defendant driver (husband) had no automobile insurance. The Minister refused to pay from the MVAC Fund arguing that the applicant had failed to prosecute a claim against the social host. Justice Quinn found the test to be applied in determining whether the host should have been named as a defendant in the underlying action was whether an action against this particular individual as social host had a reasonable probability of success.

Justice Quinn found no such reasonable probability of success and found it difficult to impose liability where there was no evidence adduced as to the actual number of drinks consumed by the intoxicated driver and where the drivers wife, also the applicant in this instance, permitted the driver to operate the vehicle. Relying on Stewart, Justice Quinn held that it was reasonable for the social host to rely on the wifes failure to assume control of the vehicle to conclude that the driver was not intoxicated. In finding that the social host was not liable on the basis of the facts of the case, the Court impliedly recognized the concept of social host liability. Had a different set of facts been presented to the Court on that occasion, it may have been prepared to reach a contrary holding as to liability.

In Schmieder v. Singh the plaintiff Ursula Schmieder brought an action against Singh and Parasiliti for damages. Mr. Schmieder was killed while riding his bicycle when the defendant Singh struck him with his motor vehicle. The police observed the usual symptoms of impairment upon their investigation of Singh. He was tried and convicted of impaired driving causing death and was sentenced to jail. Prior to the collision, Singh spent several hours with Parasiliti at Parasilitis home. They were casual acquaintances and, on this occasion, Singh was helping Parasiliti with some automotive repairs. While there, Parasiliti provided beer to Singh either directly or indirectly through his son and permitted Singh to drive his automobile home. Shortly thereafter, Singh struck and killed Mr. Schmieder.

Singhs insurance policy limits were inadequate ($500,000) and therefore the plaintiff also brought action against her own insurer pursuant to the SEF 44 Endorsement of her policy. The plaintiff entered into a Mary Carter Agreement prior to trial with the SEF 44 insurer. The purpose was to maximize the liability on behalf of Singh and Parasiliti, thereby reducing the exposure of the SEF 44 insurer. The issue that took up most of the trial was the plaintiffs efforts, with the assistance of her insurer, to assess responsibility against Parasiliti as the ” social host.”

The plaintiffs relied on ordinary negligence principles. They argued that Parasiliti owed a duty of care to the plaintiffs and he breached that duty when he allowed Singh to drive away in his vehicle while intoxicated. Both parties presented expert evidence regarding Singhâs level of intoxication and whether Parasiliti should have known Singh was intoxicated. The parties agreed that the plaintiffâs damages would be assessed at $1.3 million. The case settled midway through trial and the host, Parasiliti, made a significant contribution to the overall settlement upon the following terms: In consideration of the payment of $305,000 in full satisfaction of claims, interest, and costs, we agree to dismiss Mario Parasiliti from this action and indemnify him from any adverse order for costs made against him. Dated at Whitby, January 29, 1996.

The Employer as Social Host

There are several Canadian cases which deal with the liability of the employer to the employee and third parties where the employee becomes intoxicated while at work and later injures himself or others. Although these cases are better classified as “employer liability” cases, they are nonetheless helpful in understanding an employers duty to its employees and others in circumstances where alcohol consumption is involved.

It is well-established law that an employer owes a general duty to its employees to provide a safe workplace . At least two Canadian cases recognize that not only does an employer owe a duty of care to its employee, but the standard of care owed by an employer to an employee is even higher than that owed by virtue of an invitor/invitee relationship as exists between a tavern and its patron . These cases rest the higher standard of care on the element of control and supervision that exists in the employer ö employee relationship.

Perhaps the most celebrated case involving the liability of an employer where alcohol consumption is involved is Jacobsen v. Nike Canada Ltd. In that case, the plaintiff Jacobsen worked for the defendant employer as a warehouseman. On the night before his accident, the plaintiff and others worked off the premises and there were two supervisors on site. One supervisor provided the workers with free beer. Some workers testified to drinking approximately ten beers each while working. The plaintiff consumed at least eight beers before he went off duty. He then went to two taverns and drank more beer. On the way home, he drove into a ditch and was rendered quadriplegic. The plaintiff was 19 years old at the time of the accident. The British Columbia Supreme Court found the employer Nike 75% responsible in finding that it failed to meet the standard of care required of an employer by providing free alcohol, failing to monitor its consumption, and by not preventing the plaintiff from driving at the end of his shift. With respect to the employers standard of care, the Court states at paragraph 118: The law imposes a higher standard of care on an employer than on a tavern-owner. If it is considered too onerous for tavern owners to monitor their patrons consumption, the same cannot be said of employers who provide alcohol to their employees. An employer is required to safeguard its employees from unreasonable risks. The risk of injury from becoming impaired from consuming alcohol and driving in that condition is obvious to any reasonable person. It is not too onerous, in my view, for an employer who provides alcohol to its employees to monitor consumption, so that it is in a position in the appropriate circumstances to take affirmative steps to prevent the foreseeable risk of injury. That is especially so in a situation such as this, where the alcohol was provided free in large quantities to a small number of young men who were working hard in a hot environment.

In Ontario, a jury found an employer 30% liable for failing to take steps to prevent an intoxicated employee from driving home. In John v. Flynn , the defendant Flynn worked for the defendant Eaton Yale. The employer Eaton Yale did not actually supply any alcohol to its employee Flynn. However, Eaton Yale had long-standing knowledge of a chronic problem with a small group of employees who consumed alcohol in cars in the company parking lot during work breaks. Eaton Yale had actual knowledge of Flynns membership in the group and his long-standing alcoholism. On the day in question, Flynn consumed enough alcohol so that his blood alcohol level was well in excess of twice the legal limit at the end of his work shift. He drove home at the end of his shift, had a quick snack and a beer, returned to his vehicle and shortly thereafter collided with the plaintiff causing grievous bodily injury to him.

The defendant Eaton Yale brought a motion for a directed verdict dismissing the plaintiffs claim at the conclusion of his case. In dismissing the defence motion, Justice Donnelly remarked: At the end of the work shift, it was apparent that Flynn was about to drive. Eaton Yale took no steps to prevent the obvious. Eaton Yale took no precautions to curtail Flynns drinking either by monitoring him or the parking area where he was known to drink. It was open to Eaton Yale to send Flynn home from work by taxi, to take his car keys, to take custody of his car, to place him in the charge of a union official or other responsible person. Eaton Yale did nothing in a situation demanding something beyond passivity.

The employer cases demonstrate that where a special relationship exists, and in particular where control is a feature of that relationship, our courts are prepared to impose a high standard of care on the supplier of alcohol.

The law with respect to social host liability is slowly developing in Canada and continues to evolve. The question of whether the host owes a duty of care to his guests and others should be answered in the affirmative using ordinary negligence principles rooted in the “neighbour principle”. The difficult question which Canadian courts will grapple with is in establishing the requisite standard of care in the particular circumstances of each case and in striking a balance between the standard of care and the limits to be placed on ordinary citizens to ensure the safety of their guests and others on the highway.

Assuming the injury is foreseeable in a given case, how far must a social host go in discharging the duty of care? The cases reviewed in this paper suggest there is ample authority for courts to impose a positive duty to act upon a social host by finding there is a “sufficiently close relationship of proximity” or a “special relationship” between the host and guest. The special relationship may be founded upon the hosts knowledge that the guest is intoxicated, that he may be driving, and the potential risk of injury. Given that the standard will be that of the “reasonable host” under the circumstances, the standard would include situations where the social host ought reasonably to have known that the guest was intoxicated and would drive. This principle is consistent with the principles set out in Stewart. As in commercial host cases, the social host would be required to take all reasonable steps to prevent injury to the guest or third parties.

As the Supreme Court stated In Jordan House, whether a defendants conduct is reasonable in the circumstances will depend on the probability and gravity of injury as related to the burden that would be imposed upon the defendant in taking avoiding measures. The gravity of injury caused by drunk driving is enormous. Depending upon the circumstances, the probability of injury may be very high. In light of this, it would not be unreasonable to require the social host to at least meet the standard suggested by Justice Laskin in Jordan House, that is, to ensure that the person gets home safely by taking the person under their charge, putting the person under the charge of a responsible adult, or to see that the person is not allowed to leave until he is in a reasonably fit condition to look after himself. It would not be unreasonable to require the host to call the guest a taxi or arrange for other alternative transportation home, or allow the guest to stay over until he has sobered up. Depending upon the circumstances, it may be reasonable for the host to insist that the guest not drive and insist that the guest hand the car keys over. The common law evolves incrementally. A review of the cases mentioned earlier suggests that the time is ripe for the right case to open the door further to social host liability. Plaintiffs counsel will continue to pursue these claims vigorously and diligently for the issue is one of shared responsibility between the consumer of alcohol and the provider. Although the consumer will generally be found principally responsible for the consequences of drunk driving, tort law and strong public policy considerations support the notion that our providers of alcohol (whether commercial or social) must share the responsibility in the appropriate circumstances.

What will the “right case” look like? The “right” cases are the ones that usually settle before verdict and most never reach trial. These are the cases where the degree of intoxication is obvious that any right thinking host would do something about it. When the right case goes to trial it will probably be a case where the plaintiffs damages were clearly foreseeable. It will probably be a case where the relationship between the intoxicated guest and the host or hosts is such that an element of control (over the guest or the alcohol) would be expected from the nature of the relationship. It will probably be a case where the harm caused by the drunken driver is so great that it cries out for a remedy.


About the Authors

Roger G. Oatley

Roger Oatley is a founding partner of Oatley Vigmond and one of the country’s leading personal injury lawyers. Roger has helped thousands of accident victims and their families re-build...

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Robert M. Durante

A graduate of McGill University and Queen’s University Faculty of Law, Rob joined Oatley Vigmond shortly after his call to the bar in 1997. Meet...

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