Social Host Liability: A Dose of Common Sense 


September 2007 - (Business in Vancouver)

Business in Vancouver
The host of a social gathering at which alcohol is served may be exposed to potentially ruinous financial liability for the actions of alcohol-impaired guests while they attend the function or long after they have departed. In recent years, the courts have increasingly made social hosts fully responsible for the actions of their guests, holding, in effect, that they 'started the ball rolling' with the first drink. Fortunately, the Supreme Court of Canada has finally provided some clarity, and a measure of practical common sense, through its May 2006 decision in Childs v. Desormeaux ("Childs"). 

The Childs case arose from a car accident that occurred in January 1999 after a New Year's Eve party hosted by the defendants, Courrier and Zimmerman. After leaving the party their intoxicated guest, Desormeaux, drove off and collided with another vehicle, killing one passenger and seriously injuring three others, including Childs who was rendered a paraplegic. The Supreme Court of Canada held that "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." 

It is well established in Canada that bars, pubs, restaurants and other commercial alcohol providers owe a legal duty to take positive steps to protect the public from the drunken driving of their patrons. In Childs the Court explained that because such establishments assume a public role, or benefit from offering a service to the public, they have "the duty to act to prevent foreseeable harm to third party users of the highway." 

The Court distinguished the position of a commercial host from that of a social host on three grounds. First, monitoring alcohol consumption is easier for commercial hosts, because they track each drink by its cost and because their servers generally "possess special knowledge about intoxication." Second, the sale and consumption of alcohol is strictly regulated and subject to licensing, which leads patrons and the public to assume that commercial hosts have a "special responsibility" to monitor consumption and enforce limits. Third, commercial hosts stand to benefit from selling as many drinks as possible to patrons. Social hosts are not subject to any of these conditions and expectations. 

In Canada, the 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 Childs 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. Significantly, however, the Court added that, even if the harm was foreseeable, the hosts had no duty to take positive steps, because social hosts and guests have a different relationship than commercial hosts and patrons. The Court also noted that "a person invited to attend a private party does not check their autonomy at the door." This is a refreshing affirmation of personal accountability. 

Although the Supreme Court of Canada said that social hosts generally do not have a public duty for positive steps to prevent intoxicated guests from driving, it did leave room for liability where a social host's conduct "implicates him or her in the creation or exacerbation of the risk." This exception is yet to be tested in any Canadian court. It raises the prospect that social hosts who are reckless (perhaps, for example, in serving alcohol to minors), or who aggressively ply their guests with drink, might be implicated in creating the risk of harm. 

The duties of an employer in hosting a social function at which alcohol is served likely fall somewhere between those of a social host and a commercial host. The foreseeability of harm test remains the same, but Courts may find that the employer-employee relationship is sufficiently close to justify the imposition of a duty of care. 

Where innocent people are harmed, the Courts naturally tend to hold someone accountable. If a guest who causes harm can't pay damages, the focus will shift to the host – increasing the risk of a conclusion that the host's conduct created or contributed to the risk. Common sense thus dictates that the host of a party where alcohol is consumed should act to ensure that guests drink responsibly. 

This article was prepared with assistance from Corin Bowman, an articled student. 

This article, essentially in this format, appeared in Business in Vancouver, Legal Matters - September 4-10, 2007.