McLaughlin v. Cerda: Post-shift drinks and the duty to warn
On the evening of January 9, 2017, after finishing her serving shift at S&L Kitchen and Bar in Langley, Ms. Cerda remained in the restaurant to have a post-shift drink at the bar with several of her colleagues. Ms. Cerda and her co-workers, after finishing their drinks, had plans to travel to the newly opened S&L Abbotsford location (a related, but legally separate entity), where they had helped train the new staff, for dinner.
Ms. Cerda only had a single drink after her shift – and she may not have even finished it. She hadn’t been drinking during her shift, and she had not consumed drugs or other alcohol in the 24 hour period before having that single drink at S&L Langley. She was not intoxicated when she left her place of work.
After leaving S&L Langley, Ms. Cerda drove to the plaintiff Ms. McLaughlin’s home to pick her up. Ms. McLaughlin also worked at S&L Langley. Both women then proceeded to drive to S&L Abbotsford where they met other servers employed by S&L Langley for the planned dinner and drinks.
The evidence before the chambers judge was that Ms. Cerda and her colleagues consumed various amounts of alcohol at the S&L Abbotsford location, including two bottles of complimentary wine. Following their time at S&L Abbotsford, Ms. Cerda drove herself and Ms. McLaughlin to the Alder Inn where they continued to drink.
Exactly how much alcohol either woman had, at S&L Abbotsford or later at the Alder Inn, was not in evidence at this hearing.
The accident at issue in this litigation occurred around 1:00 a.m. in the early hours of the following day, January 10 when Ms. Cerda attempted to drive Ms. McLaughlin home from the Alder Inn. Ms. Cerda lost control of the vehicle on the Trans-Canada highway near Chilliwack, causing it to leave the roadway and roll multiple times. It is alleged that Ms. Cerda was intoxicated at the time of the accident.
Summary Trial Application
Ms. McLaughlin, the plaintiff and passenger of Ms. Cerda, sued not only Ms. Cerda, but also the owners of the car Ms. Cerda was driving (the lessee and lessor) as well as the three licensed establishments mentioned above. Ms. McLaughlin says that Ms. Cerda was overserved alcohol by one or more of the licensed establishments she visited on the evening of January 9 and the early morning of January 10, making them negligent, and liable in part for her injuries.
This action came before Mr. Justice Kirchner of the Supreme Court of British Columbia in chambers by way of summary trial. The court’s reasons for judgment can be read in full here.
Counsel for S&L Langley (the bar where Ms. Cerda worked and where she had only a single drink) asserted that Ms. Cerda was not intoxicated when she left its premises. On those facts, there is no conduct by it that at trial could prove that it failed to meet the standard of care required of a commercial host serving alcohol.
Fortunately for S&L Langley, and licensees in British Columbia generally, the chambers judge agreed.
The position (unsuccessfully) advanced by Ms. Cerda was that management at S&L Langley knew that its staff, after drinking at its location, planned on having a “girl’s night out” at the related but legally distinct S&L Abbotsford, and on that basis were impressed with a duty to warn management in Abbotsford about this possibility.
Justice Kirchner did not accept that there was any admissible evidence as to what management at S&L Langley knew at the material time about the post-shift plans of Ms. Cerda or its other staff. Moreover, he found that there was “scant evidence” that this night out was in anyway formally sanctioned or sponsored by either S&L Langley or S&L Abbotsford. The court was not satisfied that S&L Abbotsford providing some complimentary wine, and potentially a staff food discount, elevated a meal shared by coworkers to a company event. In any event, the plaintiff’s own evidence was that the women went out for dinner – not a party – and that she had no expectation of receiving complimentary drinks.
Principles of Commercial Host Liability Law
Ms. Cerda, in response to S&L Langley’s position that as a matter of fact and law it could not be found liable for Ms. McLaughlin’s injuries, advanced a novel position: even if Ms. Cerda was not intoxicated when she left S&L Langley’s premises, it may nevertheless be liable if its management knew or ought to have known Ms. Cerda and her colleagues intended to have a night out of dinner and drinks at S&L Abbotsford. Ms. Cerda says S&L Langley had a duty to warn S&L Abbotsford to keep a watch out for the women and ensure they have a safe way to get home.
Though there were procedural issues raised during the summary trial, and addressed by the court in its reasons for judgment, the thrust of the relevant analysis was straightforward: did S&L Langley have any obligation in respect of a person who was plainly not intoxicated when she left its establishment?
It has long been established in Canada that the operators of alcohol-serving establishments owe a duty of care to their patrons and to third parties who may be harmed by an intoxicated patron. The seminal case on this point is the 1970’s case of Jordan House Ltd. v. Menow, where the Supreme Court of Canada held that a duty of care exists between commercial hosts of alcohol-serving establishments and their patrons who become intoxicated. In that case, an intoxicated patron who was well known to the establishment was ejected from the hotel bar. To get home, the patron had to walk along a busy highway and this fact was known to the employees of the bar. He was struck by a car while walking along the highway and suffered injuries. The Court held that the hotel had breached a duty it owed to the patron by turning him out of the establishment in circumstances where they knew he would be in danger as result of his intoxication. The risk to the patron was created by the hotel’s actions in overserving him alcohol and then turning him out on the street without taking measures to ensure his safety. The hotel was found liable for one third of his injuries.
Twenty years later in Stewart v. Pettie, the Supreme Court Court extended this principle to third parties who may be harmed by an intoxicated patron who was served by the commercial host. There it was held that, depending on the circumstances of the case, a commercial host may have a positive obligation to act to protect not only the patron but potential third parties by taking steps to ensure the intoxicated patron does not drive.
The critical factor giving rise to potential liability on the part of the commercial host in both of these case was that the patron was intoxicated when they left the host’s establishment. In McLaughlin v. Cerda the crucial missing factor for Ms. McLaughlin’s claim against S&L Langley was that Ms. Cerda was not intoxicated when she left that establishment.
Ms. Cerda cited no authority for the proposition that a commercial host could be found liable for the actions of a patron who was not intoxicated when she left the host’s establishment. Nor did she cite any cases where the applicable standard of care required a host (or an employer) to warn other establishments that the (sober) patron (or employee) was headed to that establishment and might become intoxicated while there.
The court found that S&L Langley’s standard of care was met by ensuring Ms. Cerda did not drive away from its premises while she was intoxicated. Since she was not intoxicated when she left S&L Langley, it cannot be said that S&L Langley failed to meet the required standard.
The claims against S&L Langley were dismissed.
S&L Langley’s summary trial success is an important decision for the hospitality sector.
First and foremost is underlines that a commercial host’s exposure to liability, in the motor vehicle accident context, is strongly correlated to whether or not the patron was intoxicated when they left the host’s establishment. This is not only intuitive, but also places reasonable limits on when a bar owner has a positive duty to act. In this case the court placed considerable emphasis on the fact that the driver wasn’t intoxicated when she left S&L Langley.
The second take-away is equally sensible. Generally speaking, all patrons of bars and restaurants are looking to have some sort of “night out” that will include some combination of food and beverage – and perhaps even dancing or “partying”. This is true of bar staff as it is anyone else. Equally true is that all commercial hosts owe a duty of care to their intoxicated patrons to make sure they get home safely. The court was right, on the spotty evidentiary record before it, to refuse to entertain the prospect that a new duty of care could be created whereby one commercial host has a duty to warn another commercial host that a sober person is headed their way who may later become intoxicated.
If you or your establishment requires assistance understanding or applying the McLaughlin v. Cerda decision, or have related questions about liquor law in British Columbia 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.