As summer turns to fall, the list of upcoming holidays and reasons to gather grows. Many households will graciously offer to host parties or arrange social outings, and many more individuals will excitedly attend. There is, however, an increased likelihood of accidents causing personal injuries occurring at social gatherings involving alcohol consumption.
Commercial Establishments Owe a Duty of Care to Patrons and Third-Parties
Commercial, residential, and municipal property owners and occupiers have a legal obligation to ensure the safety of those who enter their property, whether by invitation or by right.
Commercial profit-earning establishments in Ontario licensed to serve alcohol, such as bars and taverns, are held to a particularly high standard of safety and are required to operate in compliance with the Liquor Licence Act. To prevent injuries to patrons, liquor-licensed establishments are required to keep premises safe and hazard-free and to ensure no one is over-served.
Commercial hosts are responsible for intervening and taking reasonable steps when possible to prevent an intoxicated person from driving after leaving the premises. In addition to owing a duty of care to their patrons, commercial hosts owe a duty of care to third parties who might reasonably come into contact with an intoxicated patron and suffer harm.
Private Host Not Found to Owe Duty of Care to Third Parties
The early precedent of private social host liability came from the case of Childs v. Desormeaux, where the defendant, Mr. Desmoreaux, was a guest at a party held at a private residence. The hosts did not serve alcohol, so guests brought their own. Mr. Desmoreaux consumed alcohol at the party and eventually decided to drive home. On his way home, he collided head-on with a vehicle in which the plaintiff, Ms. Childs, was a passenger. The accident killed one person and injured three others, including Ms. Childs.
The Supreme Court of Canada found that the social hosts did not owe a duty of care to the third-party plaintiff, as the host did not create or exacerbate the risk of harm. This finding was based on three factors:
- Alcohol was not served to guests at the party;
- It was not reasonably foreseeable that a guest would get into an accident after leaving the party; and
- Private hosts, unlike commercial hosts, are not legally required to monitor their guests’ alcohol consumption.
“Special Link” May Be Established to Impose Duty of Care on Private Social Hosts
However, the Supreme Court in Childs did not preclude the creation of a duty of care for private social hosts in future cases, stating:
“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 outlined three circumstances which could establish a “special link” that might impose a positive duty on a host to take necessary action to prevent harm, which may not otherwise exist:
- A defendant intentionally attracts and invites third parties to an inherent and obvious risk that they have created or control;
- Paternalistic relationships of supervision and control, such as those of parent-child or teacher-student; and
- Defendants who either exercise a public function or engage in a commercial enterprise that includes implied responsibilities to the public at large.
Host’s Provision of Alcohol Not Determinative of Social Host Liability
In the summary judgment decision of Wardak v. Froom, the defendants (the Frooms) hosted a party for their son. The 18-year-old plaintiff, Mr. Wardak, attended the party. Mr. Wardak was a neighbour of the defendants and a friend of their son. While the defendants did not serve alcohol, they knew that party guests were drinking, including Mr. Wardak. The Frooms offered to accompany Mr. Wardak on his way home, but he declined. Shortly thereafter, Mr. Wardak left the party and walked home alone. Once at his house, Mr. Wardak got into his car and drove for a short time before crashing into a fire hydrant and tree, resulting in significant permanent injuries.
The Frooms argued that they owed no duty of care to Mr. Wardak as they did not serve him alcohol and offered to ensure he got home safely. However, the Ontario Superior Court of Justice found that these factors alone were not enough to relieve them of liability automatically. Justice Matheson was not prepared to dismiss Mr. Wardak’s claim and decide whether the Frooms owed a duty of care based on the evidence before the Court.
The Court affirmed that the existence of a duty of care in the case’s specific circumstances was not precluded by Childs. It confirmed that a “special link” establishing that duty could be found where foreseeable harm was present, and the parties’ relationship establishes a special link, such as a “paternalistic relationship of supervision and control.” The Court also noted that “although serving alcohol is relevant to the analysis, it is not, by itself, determinative of social host liability post-Childs.”
Duty of Care Could Be Owed to Guests if Environment is Controlled and Created by the Host
A more recent case from the Court of Appeal, Williams v. Richard, confirmed three elements to be considered when deciding whether a social host owes a duty of care. The plaintiff, Mr. Williams, dropped by the defendant’s home, Mr. Richards, after work one evening. During his three-hour visit, Mr. Williams drank approximately 15 cans of beer. Mr. Richards was aware that Mr. Williams was intoxicated. He also knew that Mr. Williams intended to drive his babysitter home with his children in the vehicle. Mr. Richards threatened to call the police but did not follow through on this until he later drove past Mr. Williams’ home and saw that his vehicle was not in the driveway.
In the meantime, Mr. Williams safely dropped off the babysitter. However, on the way home, he drove into the back of a stationary tractor, killing him and seriously injuring his three children.
“Special Link” Between Parties Considered Within Broader Test for Duty of Care
Ms. Williams, the wife of the late Mr. Williams, claims that Mr. Richards owed a duty of care to prevent Mr. Williams from driving. The Court of Appeal held that three elements must be considered when determining whether such a duty of care exists:
- Whether the injury was reasonably foreseeable;
- Whether there was sufficient proximity (such as a special link between the parties) which imposed a positive duty on the host to act; and
- Whether policy considerations negated any prima facie duty of care, if one is established. If a prima facie duty of care has been established, the Court must determine whether broader policy considerations negate it.
The Court of Appeal held that there was a genuine issue to be determined at trial of whether Mr. Richards created a positive duty to act and if he owed a duty of care to Mr. Williams and/or his children. However, it is yet to be determined whether this case will proceed to trial for final determination.
Further Findings of Private Social Host Liability to Be Determined
While commercial establishments are held to a higher standard than private hosts, Childs affirms that private hosts may, in some circumstances, be held liable for failing to prevent harm to their guests or third parties. The standard for determining whether a duty of care is owed by a private host and what constitutes a duty to act is subject to two considerations in the cases that followed Childs.
The first element is a foreseeability analysis to determine whether the host has knowledge of a guest’s intoxication or of the guest’s future plans to engage in a potentially dangerous activity that may cause harm. The second element is a proximity analysis to determine whether “something more” is present in the circumstances to require a positive duty by the host to act, such as a host inviting a guest to a risky environment or when a special link is established. Accordingly, each case is dependent on its unique set of facts.
As hosts or attendees, individuals should always do their best to ensure safety remains a top priority at social gatherings. However, accidents happen, and new fact patterns relating to private host liability may result in a shift in the law going forward.
Contact the Personal Injury Lawyers at Campbell Litigation in Kitchener-Waterloo for Trusted Advice on Social Host Liability
The personal injury lawyers at Campbell Litigation understand how difficult it can be to navigate injury recovery and insurance claims simultaneously. While you prioritize your health, our team will work to ensure that your rights and interests are protected and obtain a fair settlement that allows you to move forward with your life. If you or a loved one has been injured due to a social gathering, unsafe conditions on a premise or property, or a motor vehicle accident, contact a member of our personal injury team as soon as possible. To schedule a free, no-obligation consultation, please reach out online or call us at 519-886-1204.