Where to With Social Host Liability

Tort law in relation to alcohol-related injuries continues to grow and evolve over time, especially with a better understanding of how alcohol use can create a public harm, requiring a greater assumption of duty of care in certain circumstances.

In 1974, the Supreme Court of Canada released their decision in Menow v. Jordan House Ltd., which evaluated a frequent and well-known patron of a hotel who became intoxicated there contrary to liquor licensing legislation. The patron was ejected by the defendant when he started to annoy the other customers. However, the patron knew that he would have to walk along a highway while intoxicated to get home, and knew that he was not capable of properly taking care of himself, given the level of his intoxication. The court held that the inviter-invitee relatioƒnship, combined with the knowledge of the patron’s propensity to drink, created a duty of care to ensure that he got home or was put in the care of a responsible person,

If the hotel’s only involvement was the supplying of the beer consumed by Menow, it would be difficult to support the imposition of common law liability upon it for injuries suffered by Menow after being shown the door of the hotel and after leaving the hotel. . . . The hotel, however, was not in the position of persons in general who see an intoxicated person who appears to be unable to control his steps. It was in an invitor-invitee relationship with Menow as one of its patrons, and it was aware, through its employees, of his intoxicated condition, a condition which, on the findings of the trial judge, it fed in violation of applicable liquor licence and liquor control legislation. There was a probable risk of personal injury to Menow if he was turned out of the hotel to proceed on foot on a much-travelled highway passing in front of the hotel.

There is, in my opinion, nothing unreasonable in calling upon the hotel in such circumstances to take care to see that Menow is not exposed to injury because of his intoxication.

This was the first case in Canada to clearly establish a commercial duty of care of this nature. Prior to this time, courts were reluctant to impose liability for a failure to take a positive action. In commercial relationships involving alcohol, a special relationship was developed which justified the creation of this type of positive duty.

The Court in Stewart v. Pettie the applied the Anns/Kamloops test in 1995, indicating that a general commercial host duty exists to third-parties who are users of the road. These hosts must therefore take reasonable steps to ensure that intoxicated patrons are prevented from driving. The two-part test consists of the following:

(1)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,

(2)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?

The Court concluded that the next logical step from a duty of care to patrons was a duty of care to third-parties who might reasonably be expected to come into contact and experience harm by that patron. The foreseeable harm was not necessarily in over serving the patron, but that the establishment took no positive steps to ensure that he did not drive after becoming intoxicated.

While a special relationship exists between vendors of alcohol and the driving public, the existence of this relationship alone does not necessarily impose a positive obligation to act. The Court required “something more,” a foreseeable risk as a result of the circumstances,

50 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. Tort law does not require the wisdom of Solomon. All it requires is that people act reasonably in the circumstances. The “reasonable person” of negligence law was described by Laidlaw J.A. in this way in Arland v. Taylor, 1955 CanLII 145 (ON CA), [1955] O.R. 131 (C.A.), at p. 142:

He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general and approved practice. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard “adopted in the community by persons of ordinary intelligence and prudence.”

Commercial establishments must therefore intentionally structure their environment to intervene where it is necessary. This is a necessary risk that comes with the commercial enterprise that seeks to profit over the sale of alcohol. But what of the context of alcohol consumption outside of a commercial context?

In 2006, the Supreme Court of Canada heard the case in Childs v. Desmoreaux, which then looked at a party in private home, where the attendees brought their own alcohol. The modified test from the Anns/Cooper/Kamloops recognized that new categories of special relationships could be recognized in law, without requiring a complete analysis. Although the Court identified this as a distinct and new type of claim from that of commercial establishments, they did not preclude the creation of a duty of care at a later date,

47 I conclude that hosting a party at which alcohol is served does not, without more (sic), establish the degree of proximity required to give rise to a duty of care on the hosts to third-party highway users who may be injured by an intoxicated guest. The injury here was not shown to be foreseeable on the facts as found by the trial judge. Even if it had been, this is at best a case of nonfeasance. No duty to monitor guests’ drinking or to prevent them from driving can be imposed having regard to the relevant cases and legal principles. A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk

The Court considered the deterrent effect of imposing such a liability, as this is one of the primary functions of tort law, including lower incidents of traffic accident fatalities in jurisdictions where this type of liability is imposed. However, this would also require a social host to remain reasonably prudent and therefore sober in their own home, in order to prevent a guest from driving where they should have known the guest was intoxicated. The challenges around imposing this type of responsibility to monitor guests in a social context led the Court to conclude that the duty of care should not be created in this situation.

A recent B.C. decision in McCormick v Plambec applied this test in a different factual context, and also concluded that liability should not attach to the social host. The many cases since Childs have led some to believe that this new duty would be created, but the facts in this case did not support the imposition of liability either.

The defendants had hosted a social party, where some friends and their minor children were present. Some parents provided their teenage children some limited amounts of alcohol, and some marijuana use by the teens at the party was known by the adults. Up to 70 teenagers were present, and the adults, while around, were not monitoring the situation. One of the teens left the party, stole a nearby car and crashed it, killing himself and injuring another passenger from the party.

The plaintiff claimed that reasonable foreseeability was more present here than in Childs, because the defendants failed to properly control and supervise the minors, knowing that they were venturing out beyond the party. This was the “something more” that the previous courts had been alluding to. The Court in Childs described the reason for imposing liability in the circumstances as follows,

36 The second situation where a positive duty of care has been held to exist concerns paternalistic relationships of supervision and control, such as those of parent-child or teacher-student: Dziwenka v. The Queen in right of Alberta, 1971 CanLII 175 (SCC), [1972] S.C.R. 419; Bain v. Board of Education (Calgary) (1993), 146 A.R. 321 (Q.B.). The duty in these cases rests on the special vulnerability of the plaintiffs and the formal position of power of the defendants. The law recognizes that the autonomy of some persons may be permissibly violated or restricted, but, in turn, requires that those with power exercise it in light of special duties. In the words of Virtue J. in Bain, in the context of a teacher-student relationship, “[t]hat right of control carries with it a corresponding duty to take care for the safety of, and to properly supervise the student, whether he or she is a child, an adolescent or an adult” (para. 38).

While the statutory prohibition against alcohol use by minors informs the Anns test, the judge found that it was “overwhelmed” by the permissive nature of the community in this part of B.C., which broadly allowed the use of alcohol and marijuana by youth, creating a different type of community standards. In this context, it was not reasonably foreseeable that these guests would create harm to others,

[235] The evidence does not support the assumption inherent in the contention that the plaintiff was so intoxicated that he was incapable of responsible conduct. The plaintiff was, by all accounts, a responsible young man whose own father could not conceive of his riding with a drunk driver, let alone participating in the theft of a car. 

 

[236] He had walked to and from this and other parties where he and his contemporaries had consumed alcohol and/or smoked marijuana, and was trusted by his parents to find a safe means of getting home from such parties, or finding a place to spend the night.

 

[237] By all accounts, the plaintiff was not a bad or unreliable young man. In these circumstances, should the defendants have foreseen that someone from the party would leave on foot, and then steal a car?

 

[238] I find that duty did not extend to foreseeing that one or more of the party guests would steal a car and drive it unsafely.

The Ontario Court of Appeal in Williams v. Richard described the types of commercial hosts and different types of foreseeability as being on a spectrum, as follows,

[27] Much of the post-Childs jurisprudence regarding proximity has engaged in a factually specific evaluation of whether “something more” is present to suggest that a positive duty to act may exist. While there is no definitive list, the case law has looked at a variety of factors to determine what could qualify as “something more” that would make a social gathering an inherent and obvious risk, including: whether alcohol was served at the party or whether guests were invited to bring their own alcohol, the size and type of the party, and whether other risky behaviour was occurring at the party, such as underage drinking or drug use:see generally ChildsSidhuWardakLutterSabourinKimAllen v. Radej,2014 ABQB 171Oyagi v. Grossman,2007 CanLII 9234 (Ont. Sup. Ct)Wenzel v. Desanti,2011 ABCA 226, 510 A.R. 327, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 437.

[28] There are many different factual permutations of what could transform a social gathering into an invitation to an inherent and obvious risk. It is helpful to think of these situations as being situated along a spectrum. At one end of the spectrum is Childs, which was a “bring your own alcohol” party where the hosts provided minimal alcohol. Similarly, private parties of a reasonable size are usually viewed by the courts as not inherently risky: see Robinson v. Lewis, 2015 ABQB 385, at paras. 72-77. Likewise, an invitation to a co-worker’s home to have dinner and after-work drinks outside is not inherently dangerous or risky: see Allen, at para. 78. Moving further down the spectrum, a young adult throwing a “wild” Halloween party and providing alcohol for around 40 people, some of whom are using illegal drugs, may implicate a host in the creation of an inherent risk: see Kim, at paras. 9-10, 25. On the far end of the spectrum, a teenager throwing a house party at which over 100 people attend, most of whom are underage drinkers, while their parents are out of town, likely implicates the host in the creation of an inherent risk: Oyagiat paras. 6-7, and 12.

In this case, two colleagues got together at home for a large number of drinks. One left to pick up his children from the babysitter, and on the return was involved in a very serious accident, where the driver was killed and the three children were seriously injured. Although the motion for summary judgment was allowed, on the basis that a social host duty of care had not been established, the Court of Appeal reversed this decision, stating that a full factual determination would be necessary to conclude whether this duty should be imposed.

The post-Childs jurisprudence has examined a duty of care on whether the host’s knowledge of a guest’s intoxication or future plans to engage in a dangerous activity constitutes reasonable foreseeability. But the duty of care also looks at whether there is “something more,” which suggests a positive duty to act, such as facts that would create proximity through a paternalistic relationship or an inherently risky environment.

An example of the type of case that might meet this paternalistic relationship was in Wardak v Froom, which also involved minors drinking. In this case the plaintiff was a guest, and not a third party, and this strengthened the foreseeability and proximity of the relationship. The plaintiff claimed the defendants knew there were underage kids drinking at their son’s birthday party, and that they observed the plaintiff numerous times in an intoxicated state.

The court denied a summary judgment motion on the matter, indicating that the decision in Childs had not foreclosed the possibility of social host liability in these circumstances,

[3] Although there are some facts that can be found on the record before me, the relevant factual matrix quickly becomes complicated and cannot fairly and justly be determined on this motion. Nor is the claim bound to fail on the law. This motion is therefore dismissed.

The matter subsequently settled, prior to proceeding to trial, as has all such actions successful at the summary judgment stage.

An article in the Law Times covering the issue highlights the ongoing uncertainties of the law in this area,

Lara Fitzgerald-Husek of Oatley Vigmond Personal Injury Lawyers LLP, says she welcomes the recent decisions for redressing the balance on social host liability.

“Defendants and insurers have been relying on Childs as if it answered the question in black and white,” she says. “These decisions show that courts are attuned to the fact that social hosts are not automatically absolved of liability.”

According to Sudevi Mukherjee-Gothi, the head of the insurance defence group at Pallett Valo LLP, it may only be a matter of time before a trial judge makes a finding of liability against a social host, especially since the legalization of cannabis for recreational use introduced a new legal source of intoxication for partygoers.

“I’m concerned that the general opinion in the public is that they’re off the hook when they host a party, because that’s certainly not the case,” she says. “I think we’ll be seeing more cases dealing with the issue in the future.”

The COVID-19 pandemic has resulted in all establishments closing, at least temporarily, meaning that social drinking, when it occurs in larger groups, has largely occurred in a social context. With social distancing protocols likely to continue for months to come, the shifting of social and recreational activities into private residents or even homes where a commercial aspect is present (i.e. selling drinks at home) may give rise to facts that require the imposition of a duty of care.

The pandemic may provide that “something more” of foreseeability of probably risk of injury, and the close quarters we all find ourselves in may provide the right social recipe for proximity. The final word on social host liability is yet to come.

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