Social Host Liability

 

On May 5, 2006, in a unanimous decision, the Supreme Court of Canada, in Childs v. Desormeaux, 2006 SCC 18 (http://scc.lexum.umontreal.ca/en/2006/2006scc18/2006scc18.html) held that, as a general rule, the host of a private party at which alcohol is served does not owe a duty of care to a person injured by a guest who consumed alcohol at the party.

That being said, the decision did leave open the possibility that there could be a finding of liability if the host’s conduct implicates them in the creation or exacerbation of the risk. The Supreme Court stated that “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.”

This premise has yet to be tested in any Canadian court but it does raises the prospect that social hosts who are irresponsible might be implicated in creating the risk of harm.

The Facts

The Childs decision stemmed from a New Year’s party hosted by the defendants Courrier and Zimmerman (the “hosts”) at their home on December 31, 1998. The party guests were advised to “Bring Your Own Booze” to the event. The only alcohol served by the hosts was three quarters of a bottle of champagne in small glasses at midnight.

While at the party, one guest, Mr. Desormeaux, who the hosts knew was a heavy drinker, consumed approximately twelve beers over a two-and-a-half-hour period. At 1:30 A.M. on January 1, 1999, Mr. Desormeaux walked to his car to leave the party. One of the hosts accompanied him to his car and asked him if he was okay. After responding “No problem,” Mr. Desormeaux got behind the wheel and drove away with two passengers.

Mr. Desormeaux proceeded to drive his vehicle into oncoming traffic and collided head-on with a car driven by Patricia Hadden. One of the passengers in Ms. Hadden’s car was killed, and three others, including the plaintiff, Zoe Childs, were seriously injured.

The Decision

Canadian law requires a sufficiently close relationship between parties to justify the imposition of a duty of care when harm is reasonably foreseeable.

In Childs the Court held that the harm caused to the Plaintiff was not foreseeable because the trial judge did not find that the hosts knew or ought to have known Desormeaux was too drunk to drive.

The Supreme Court added that even if the risk of harm was foreseeable, that the hosts had no duty to take positive steps, because the “social host duty” owed by private hosts to third parties is not similar to the duty of care owed by a commercial host (for example a bar) who provided alcohol to third parties for the following reasons:

• Commercial hosts have both the ability (servers are trained to understand the risks of over-service and to recognize the signs of intoxication) and financial interest in monitoring their patrons’ alcohol consumption;

• Selling and consumption of alcohol in the commercial context are regulated by Legislation; and

• A commercial host has a financial motivation to over-serve alcohol to its patron thus impair the patron’s judgment which is what results in the commercial hosts duty to monitor alcohol consumption for the protection of the general public.

The Supreme Court concluded that there is insufficient proximity between social hosts and users of public highways, and consequently that hosts of private parties where alcohol is served do not owe a duty of care to public users of highways.

The mere fact that a person faces danger, or has become a danger to others, does not generally impose any kind of duty on those in a position to become actively involved. The Court held that a guest remains responsible for his or her conduct stating, “a person invited to attend a private party does not check their autonomy at the door” and, short of active implication in the creation or enhancement of the risk, a host is entitled to respect that autonomy.

There have been a couple cases in British Columbia since the Childs decision whereby defendants simply rely on the proposition that a social host does not owe a duty of care to third parties. Both cases Sidhu v Hiebert, 2011 BCSC 1364 and Lutter v Smithson, 2013 BCSC 119, involved the defendant host bringing a summary trial application to have the claims filed against them dismissed on the grounds that hosts do not owe a duty of care.

In both instances, the chambers judge considered the statement made by the Supreme Court in Childs regarding the possibility of liability passing to a host if the host’s conduct implicates them in the creation or exacerbation of the risk. Having regard to this statement, both applications were dismissed because each judge did not feel it was appropriate to determine this very issue at a summary trial and that the question of whether a host contributed to the incident is better left to be determined at trial.

What these cases demonstrate, is that while Childs is authority for the proposition that the social host does not owe a duty of care, this is not a hard and fast rule to absolve a social host from liability.

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