This article originally ran during the holiday season in 2012, but serves as an important reminder.
If you have a party and a guest leaves your house and drives while under the influence of alcohol, can you be held responsible if they injure themselves or someone else? – Leigh in Toronto
If alcohol is being served to guests at your home, it goes without saying that you want to ensure there are sufficient designated drivers, taxis, and sleeping bags for those who indulge.
In a worst-case scenario, an intoxicated driver leaves your house and injures themselves or others. Unlike licensed establishments – which have a clear statutory duty not to serve anyone to the point of intoxication – and if there is any degree of intoxication, a clear obligation to ensure that patrons have a ride home so that they arrive safely, "social hosts" serving alcohol in their home do not have a special duty of care to someone injured by a guest who consumed alcohol at their event.
In the highly publicized Childs case, a lawsuit was brought against the host of a party by a woman paralyzed and whose boyfriend was killed on New Year's Day in 1999, when they were struck by an intoxicated driver. The driver had been at the host's home, and brought his own alcohol.
"The trial judge in Ottawa dismissed the case having concluded that there was no duty to other drivers on the road on the part of the social host," says Roger Oatley, an Ontario personal injury lawyer with nearly 40 years experience. "Reading the judgment carefully, an essential element for the judge was the absence of the sort of control over the guest's intoxication that an employer might have, or the operator of a tavern or restaurant might have. And the judge at trial held that there was no duty and dismissed the case and it went to the Supreme Court of Canada, which supported the trial judge's decision, so the lawsuit brought by the young female quadriplegic failed."
Oatley and other veteran lawyers say they won't be surprised if one day a social host is indeed held responsible in a situation where the facts are different from the Childs case.
"What the Supreme Court of Canada decision left open was what the result would be if the facts were altered slightly, and if all of the alcohol that was served was the host's alcohol, and if all of the consumption by the guests was at the host's home," Oatley says. "And in particular, whether there was any sort of relationship between the host of the party and the guest whereby the host would have control over the extent of the alcohol consumption and whether the guest was intoxicated upon leaving the home."
If you're hosting a work-related party, there is a long-standing common-law duty requiring employers to ensure the safety of their employees.
"That was the law that applied a number of years ago in the Hunt vs. Sutton Group case. I happened to have acted for Linda Hunt, a woman who was a receptionist at a real estate office in Barrie," says Oatley. "The employer held a Christmas party for the staff and clients of the real estate firm. Linda Hunt became intoxicated during that party and without any inquiry about her fitness to drive, she was allowed to leave at night as a severe snowstorm was under way. In the course of driving home she lost control of her vehicle, went across the centre line, and hit another vehicle head-on and suffered a severe brain injury. So the court held that while Linda Hunt was partially to blame, the employer was also to blame. And it was because of the duty that is owed by employers to employees.
"The bottom line is: if we as a law firm are hosting an event, we are extremely careful to ensure that there are designated drivers, and we make free taxi trips available to everyone who is coming to the party who doesn't have a designated driver. Similarly, when people ask me for advice about parties at their home, I tell them to behave as though there is the risk of a court imposing liability on them because sooner or later somebody is going to be found liable as the result of serious injuries that take place following intoxication at a party at their home," says Oatley.
Remember, your party is not over until everyone is safely home. The guest consuming the alcohol is the worst person to assess his or her own sobriety and fitness to drive, because judgment is the first thing to go.
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Joanne Will