McCormick v Plambeck: The end of social host liability?
On June 12, 2020 Chief Justice Hinkson of the Supreme Court of British Columbia issued reasons for judgment in McCormick v. Plambeck, the latest word on social host liability in British Columbia and Canada more broadly. The Court’s reasons for judgment (all 91 pages) can be read in full here.
In a lengthy and detailed decision, the Chief Justice dismissed the plaintiff’s claim to fix the adult hosts of a house party attended by high school students with liability for his injuries under the emerging doctrine of social host liability. By rejecting the plaintiff’s claim on the basis that the “social hosts” did not owe him a duty of care, and that even if they did they met it by acting responsibly in all the circumstances, the Chief Justice has provided considerable clarity to this previously undeveloped area of tort law. While the door is not closed on injured persons in the future attempting to make such a claim, presumably on facts different enough to distinguish it from this case, the standard is such that (at least in British Columbia) it will be an uphill battle for these future plaintiffs.
For anyone who has ever hosted a party where alcohol was consumed, or plans to again in the future, the decision and legal analysis in McCormick v. Plambeck will be well received.
In the early morning of September 16, 2012, following a party at the home of the Pearson family, the plaintiff Calder McCormick, who was at the time 17 years of age, got into a vehicle driven by the defendant, 18 year old Ryan Plambeck. Both individuals had been drinking at the Pearsons’ house party. While the trial judge accepted that Mr. McCormick was likely intoxicated when he left the party, Mr. Plambeck was not – his blood alcohol concentration at the time of the fatal accident was less than the legal limit.
After leaving the party on foot Mr. Plambeck crossed a nearby field to steal a neighbour’s Subaru that he knew to have been left with a key on the driver’s side wheel, as its owners had been offering it for sale. Mr. McCormick got into the vehicle with him. Shortly thereafter Mr. Plambeck crashed the vehicle, killing himself and seriously injuring the plaintiff Mr. McCormick.
The Court did not analyze these tragic facts in isolation. Instead it placed considerable emphasis on the nature of the “laid back Salt Spring Island community” where the house party and motor vehicle accident occurred. The Court noted that it was not uncommon for residents of the island to leave their homes and vehicles unlocked, and that “marijuana and the consumption of alcohol by minors was apparently widespread.”
The house party was well attended, with witnesses putting the number of quests somewhere between 50-70, most of them under the legal drinking age. While the Court had no trouble accepting that the guests exhibited varying states of sobriety from the use of alcohol or marijuana or both, the Court found that the party was nevertheless reasonably well organized, well monitored and controlled.
The Pearson parents were home while the party was ongoing. They walked through the house from time-to-time to check on things and they directed their daughters to ensure that anyone who drove to the house left their car keys in a bowl. The Pearsons ended the party at 1:00 a.m. by turning off the music and turning on the lights. Mr. and Mrs. Pearson then drove certain individuals home who required a ride and offered other individuals accommodation in their home if it was needed.
In summary, while the party was not closely monitored (like one would expect from a commercial establishment), there was a base level of monitoring by responsible adults, and consideration given to ensure that individuals did not drive home who had been drinking.
HOST LIABILITY & THE DUTY OF CARE
In his lawsuit the plaintiff Mr. Plambeck asserted that the Pearsons, the owners of the home where the party was held and its putative hosts, owed him a duty of care to not let him become intoxicated on their property and to stop him from leaving their property in that state.
A successful action in negligence, which is the typical underlying cause of action in host liability lawsuits, requires that the plaintiff (most often the injured person) prove the following:
- The defendant owed him or her a duty of care;
- The defendant’s behaviour (acts or omissions) breached the standard of care; and
- That the damage the plaintiff suffered was caused in fact and in law by the defendant’s breach of the standard of care.
In most negligence lawsuits the parameters of the first two criteria have been reasonably well established over the decades by hundreds of lawsuits (e.g. “slip-and-fall” type cases or fender benders). In those sorts of lawsuits the court does not need to concern itself with determining, as a threshold issue, whether a duty of care between the parties exists. Rather the focus of the trial is fitting the proven facts into the existing legal frameworks.
In McCormick v. Plambeck the Chief Justice observed that the plaintiff was asking the Court to recognize a new duty of care – one between adult party hosts and minor guests who consume alcohol or drugs and later become injured after they have left the party.
The Chief Justice refused to recognize that such a duty of care existed, and went on to find that even if one did, the Pearsons met the corresponding standard of care by acting as responsible hosts, taking appropriate (although not extreme) measures to ensure their guests did not drink and drive.
Foreseeability and Proximity
The recognition of a legal duty of care requires a consideration of whether or not the relationship between the plaintiff and the defendant discloses reasonable foreseeability and sufficient proximity.
Reasonable foreseeability of harm and proximity operate as crucial limiting principles in the law of negligence. They ensure that liability will only be found when the defendants ought reasonably to have contemplated the type of harm the plaintiff suffered. The law of negligence recognizes that it would be unjust to impose liability in cases where there was no reason for the defendant to have contemplated that their conduct could result in the harm complained of.
The fact that something is possible does not mean it is reasonably foreseeable. As the Chief Justice drily observed in Plambeck, “any harm that has occurred is by definition possible.”
The plaintiff’s position at trial was that by virtue of hosting a house party where alcohol is consumed all manner of injuries suffered by the plaintiff were foreseeable by the Pearsons including: trips and falls, being hit by a car, fights and scuffles, and the hazards that accompany wandering on foot intoxicated.
The Chief Justice refused to accept this proposition, noting that while these harms are all possible they were not foreseeable. The Court concluded that the Pearsons could not have foreseen that one or more of the party guests would leave the house on foot, steal a car, and drive it unsafely.
The plaintiff agreed that, while illegal, not all parties involving alcohol and minors are necessarily risky – they fall onto a spectrum. On these facts the plaintiff submitted that by hosting a large party where alcohol was consumed by dozens of minors, with little to no supervision, an obvious risk is created, and to the extent that the Pearsons knowingly allowed this to happen, they were implicated in the creation of that risk. By letting Mr. McCormick (a minor) into their home, the plaintiff asserted the Pearsons undertook responsibility for his well being.
The Court found that while the Pearsons did assume some element of control over the minors drinking in their home, they did not create an inherent or obvious risk that the minor guests would or could be injured.
Having considered and rejected the existence of reasonable foreseeability and sufficient proximity, the Court found that no duty of care existed between the Pearsons and the plaintiff. Nevertheless, the Court went on to consider whether if a duty of care had existed, would the Pearsons’ conduct have met the met the standard of care?
The Standard of Care
Assessing the contents of a standard of care depends on the facts of each case, and is answered generally by considering what a prudent and responsible person would do to minimize known (foreseeable and proximate) risks. The standard is one of reasonableness, not perfection.
The plaintiff’s position was that the appropriate standard of care in the circumstances was a relatively rigid one: limiting number of guests and the type and volume of alcohol consumed, prohibiting drinking games, and monitoring the sobriety of all guests. These are the sorts of checks one might expect at commercial establishments.
The Chief Justice, in rejecting the plaintiff’s position characterized it as “essentially one of perfection; anticipating all possibilities and avoiding any risks. That is simply not the way the world works. The duty is to act reasonably, not to act perfectly. It is never possible to eliminate all risks and the Pearsons were not required to do so.”
The Chief Justice found that had the Pearsons owed the plaintiff a duty of care, they met the required standard of care by way of hosting a reasonably well organized party with moderate supervision, and some attention paid to ensuring intoxicated guests slept over or found a safe way home.
McCormick v. Plambeck brings considerable clarity to what was previously thought to be an emerging and potentially unwieldy area of tort liability. A series of relatively recent decisions out of Ontario, while not deciding the point, appeared to suggest Canadian jurisprudence was moving towards formal recognition of social host liability. That no longer appears to be the case – at least not in British Columbia.
Though the outcome of host liability cases will always turn on their specific facts, the analysis in Plambeck confirms that parents who host parties for their high-school aged children where liquor is consumed are, without more, unlikely to be found liable should one of their guests injure themselves on the way home.
If you or your establishment require assistance understanding British Columbia’s liquor laws contact Dan Coles at Owen Bird.
*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.