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Posted on October 24th 2006 in Legal Articles

Liability for Guests Who Drink & Drive

Liability for Guests Who Drink & Drive

An issue that has recently been making headlines is whether a host is responsible for the actions of a guest who drinks and then drives. The answer is not always straightforward and depending on the type of host (social, commercial or employer) the obligations will vary.

Duty of Care
In our society, a general concept has developed whereby one owes a duty not to injure one’s neighbour. Over the years our courts have developed a two-part test for determining when this duty of care arises and to whom the duty is owed.

1. Is there “a sufficiently close relationship between the parties” or “proximity” to justify imposition of a duty? I.e. does a special relationship exist between the alleged wrongdoer and the injured party?

2. If yes, are there policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise?

Commercial Host
Since the early seventies, the courts have been grappling with the question of the responsibilities that go with the serving of alcohol and whether a legal duty arises in this situation. The first type of host to come under scrutiny was, not surprisingly, the commercial host. A commercial host is one who serves alcohol for monetary gain, e.g. bars and restaurants.

In 1974, the Supreme Court of Canada found that a commercial establishment had a duty to protect an intoxicated customer against himself.

In 1995, the high court indicated that this duty also extended to third parties who are users of the road. The rational for this duty of care is that the risk to other users of the road is real and foreseeable. And not only is monitoring alcohol consumption relatively easy for a commercial host, but it is also expected by the host, patrons and members of the public.

The bottom line is that a commercial host has a duty to monitor a patron’s consumption of alcohol as well as a duty to assess the intoxication level of patrons. It also has a duty to prevent an intoxicated patron from driving. Quite apart from fines under provincial liquor licensing legislation, failure to adequately live up to these obligations will render the commercial host civilly liable for some or all of the damages that might result from this failure.

Employers, particularly in the context of an employer-sponsored function, can find themselves in the role of host. When hosting a function that includes alcohol, an employer has a duty to monitor alcohol consumption and to take reasonable steps to ensure that intoxicated employees do not become a danger to themselves or others.

In 1999, an employer was found liable for the injuries its employee sustained in a drunk driving accident. Liability was based on the fact that the employee had been drinking at the company Christmas party and had left the party in an inebriated state. Although the decision was appealed, the Ontario Court of Appeal declined to decide the issue of liability, instead sending it back for a new trial.
Ultimately, the parties settled out of court instead of proceeding with a second trial. As a result an employer’s liability in such situations remains unclear. However employers should exercise caution when hosting a function that involves alcohol.

An employer also has a duty to provide a safe work place for its employees. Introducing alcohol at work may amount to a failure to provide this safe work place. The leading case in this area is Jacobsen v. Nike Canada Ltd.

Nike was setting up for a trade show. Nineteen-year old Jacobsen had been required to bring his vehicle to work that day to help transport things. While setting up their booth, the manager supplied beer, pop and snacks to the workers. Jacobsen became drunk and was later involved in a single vehicle accident that left him a quadriplegic. Nike was found 75 percent responsible for Jacobsen’s damages since it had created the conditions which led to the injury.

Social Host
A social host is someone who serves alcohol at his or her home, whether it is a dinner party, a Bar B Q or a BYOB party. The issue of whether a person in this scenario is responsible for the actions of a guest was addressed by the Supreme Court of Canada this past May in the case of Childs et. al. v. Desormeaux et. al.

The social hosts in this case threw a New Year’s Eve BYOB party at their home. At about 1:30 a.m., shortly after leaving the party, one of the guest’s was involved in a head on collision. A passenger in the other vehicle was killed and another was left a paraplegic. At the time of the accident, the guest’s blood alcohol was more than double the legal limit. The passenger who was paralysed sued the hosts of the party.

The Supreme Court of Canada ruled that the hosts were not liable for the actions of their guest. The Court concluded that the injury to the passenger in the other car was not reasonably foreseeable and even if it were there was no positive legal duty on the hosts to act.

While this decision is reasonably definitive, the Court did not close the door entirely. The Court stated, “It might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care to third parties, . . .”

A Few Tips
If you serve alcohol, whether for monetary gain or purely for social purposes, the following tips will help to alleviate potential liability and keep everyone safe.
• Do not encourage excessive drinking and do not serve alcohol to anyone who may already be intoxicated.
• Confiscate an intoxicated guests’s keys.
• Arrange rides home for guests who appear intoxicated.
• Call the police if necessary.