It is long-established that bars and restaurants may owe a duty of care to their patrons and to the public in general for reasonably foreseeable harm caused by acts or omissions of intoxicated patrons. That concept is known as Commercial Host Liability. For example, bars have a duty not to overserve their patrons and to take reasonable steps to ensure that drunk patrons won’t drive. But with the holiday season in full swing, and holiday parties and gatherings with family and friends, private hosts should be mindful of their legal responsibilities, particularly when serving alcohol to their guests. This is known as Social Host Liability.
In 2006, the Supreme Court of Canada released a seminal decision with respect to Social Host Liability in the case Childs v. Desormeaux. In that case, a guest in attendance at a private house party left the party in an impaired condition and tragically drove his vehicle into oncoming traffic causing death and serious injuries to other innocent motorists. A claim was brought against the hosts of the party on behalf of those innocent injured parties. The Supreme Court grappled with whether or not a broad duty of care was owed by social hosts to members of the public who may be injured by an intoxicated guest’s conduct. Then Chief Justice McLachlan wrote for the panel “it is reasonable to expect that the public provider [i.e. a bar or tavern] will act to protect the public interest. There is public reliance that he will comply with the rules that prohibit serving too much alcohol to a patron and that if this should occur and the patron seeks to drive, that the public host will take responsible steps to prevent the person from driving…”; however, she went on to say “the same cannot be said of the private social host, who neither undertakes nor is expected to monitor the conduct of guests on behalf of the public.”
The decision in Childs was generally viewed as casting doubt as to whether or not a social host could be found responsible for the injury caused by one of their guests, although that door was left open in the following sentence, “I conclude that hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the hosts to a third party highway users who may be injured by an intoxicated guest.” The specific words “without more” left open the possibility that future courts could consider other circumstances where a social host may be responsible to third parties or even the guests themselves in certain circumstances.
Fast forward a decade. In 2017, in the case Wardak v. Froom, the Ontario Superior Court dismissed a motion for summary judgment brought by a social host. The facts of that claim were that a guest, who had left a 19th birthday party on foot after excessive drinking and then drove, ended up in a single car accident. That guest sued the hosts alleging that they did not control his alcohol consumption nor did they take reasonable steps to stop him from driving. The Court on summary judgment rejected the defendant’s motion that no liability could be found against the hosts and the matter was to proceed to trial which left open the notion that social hosts may be liable depending on the facts. Again, the quote from Childs listed above was held to mean that “without more, allows for a duty of care to arise in certain circumstances.”
In 2018, the Ontario Court of Appeal again considered the issue of Social Host Liability in the case Williams v. Richard. In Williams, two longtime friends were drinking at the Richard’s home, and on this day Williams drank 15 beers in the course of three hours. This was not an unusual occurrence such that the two drinking buddies had a pact between them that one would call the police if the other ever were to attempt to drink and drive. That fateful day, it was known that Williams was going to drive home after 15 beers and drop off the babysitter who was looking after his children. Richard threatened to call the police, but the threat was not credible and Richard took no other steps to stop his guest from driving. Richard’s mother, the owner of the house, was also home and aware of the situation, but she did not take steps to prevent Williams from driving. Sadly Williams, after driving the babysitter home, crashed his car into a stationary tractor trailer killing himself, and his children were seriously injured. It is the Williams’ children and their mother who initiated the lawsuit against Richard and his mother, asking the Court to find the social hosts liable for the injuries. The defendants brought a summary judgment motion to dismiss the action, relying primarily on Childs, asking the Court to find that there was no cause of action, nor any duty of care owed by the hosts in the circumstances. The Superior Court of Justice agreed with the defendants and granted summary judgment in their favour. However, on appeal, the Ontario Court of Appeal overturned that finding and found “the post-Childs jurisprudence on social host liability…demonstrates that there is no clear formula for determining whether a duty of care is owed by social hosts to third parties or guests. Rather, the determination of whether such a duty of care exists usually hinges on fact-specific determinations pertaining to two main issues.” Those two issues are:
- Foreseeability – the hosts knowledge of the guest’s intoxication and plans to engage in a potentially dangerous activity; and,
- Proximity – referred vaguely by the court as a determination if there is “something more”, meaning if there are circumstances which warrant a positive duty for a social host to act. These “something more” circumstances might include 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 behavior was occurring at the party, such as underage drinking or drug use or there was a paternalistic relationship present between the hosts and the guests.
In short, the Ontario Court of Appeal found that the determination as to whether a host could be liable for their acts or omissions which lead to injury to their guests or third parties was fact specific and again left open the possibility of a finding of Social Host Liability.
In Manitoba, Social Host Liability is somewhat minimized by our Manitoba Public Insurance regime where MPI acts as the public insurer for automobile injuries. There are no tort claims for automobile injuries in Manitoba and automobile accidents seem to be a likely context for the courts to adjudicate Social Host Liability. However, the same tort exclusion does not apply in Manitoba to off-road vehicles, such as snowmobiles or ATVs, and by extrapolation one can image that these legal principles might apply to a guest who passes out in a snowbank or engages in other foreseeably risky behavior, with pool parties immediately coming to mind.
We hope and trust you will enjoy the festive season, but I urge you to do so responsibly.
Matthew T. Duffy has a broad litigation practice and his experiences include appearing regularly at all levels of Manitoba Courts and various administrative tribunals and mediations.
