Understanding Social Host Liability
Alcohol & Advocacy has previously examined the law of commercial host liability in British Columbia. Today most patrons and employees of licensed establishments are familiar with the concept of commercial host liability: bars and restaurants owe a duty or care to ensure that if their patrons become intoxicated they do not harm themselves or others who come in contact with them. The classic example of a situation where a commercial host will be found liable is when an over-served customer gets behind the wheel, and later harms another user of the road.
But what about social hosts (e.g. non commercial situations) like dinner parties or neighbourhood barbecues? Does the law hold social hosts to the same standard of responsibility for guests as it does with commercial hosts? Here we examine the law of social host liability.
In 2006 the Supreme Court of Canada in the leading decision Childs v. Desomoreaux posed the following question: A person hosts a party. Guests drink alcohol. An inebriated guest drives away and causes an accident in which another person is injured. Is the host liable to the person injured?
The court concluded that “as a general rule” a social host does not owe a duty of care to a person injured by a guest who has consumed alcohol.
The facts in Childs, like most host liability decisions, arise from a tragic car accident. In the early hours of the morning on January 1, 1999 Mr. Desmoreaux drove his vehicle into oncoming traffic, killing one of his passengers and seriously injuring three others including the plaintiff Ms. Childs. Zoe Childs, who was at the time a teenager, had her spine severed by the accident and has since been paralyzed from the waist down.
Mr. Desmoreaux was impaired at the time of the accident. Prior to getting behind the wheel he attended a house party hosted by Mr. Courrier and Ms. Zimmerman. The house party was a BYOB event; the hosts only supplied a minimal amount of alcohol (Champagne at midnight). During his two and one half hour visit to the party he consumed about 12 beer.
Mr. Desmoreaux pleaded guilty to a series of criminal charges arising from these events and received a ten-year sentence.
The central issue before the court in Childs was whether social hosts who invite guests to an event where alcohol is served owe a legal duty of care to third parties who may be injured by guests who become intoxicated. Though it has long been the law in Canada that commercial hosts, like bars or clubs, will likely be under such a duty the Childs case was the first time the Supreme Court of Canada considered the duty owed by social hosts to plaintiffs like Ms. Childs.
Duty of Care
In common law jurisdictions the modern law of negligence is founded on the “neighbour” principal, sometimes referred to as “proximity”. Though the law of negligence is both complex, and ever changing, it can be thought of this way: individuals owe a legal duty to their “neighbours” who are persons so closely and directly affected by their actions that they ought reasonably to have them in contemplation as being so affected when doing (or not doing) the acts that are later called into question.
This analysis involves considerations of whether or not there is a “sufficiently close relationship between the parties” so as to impose a duty of care, and also whether there are policy considerations which ought to negative or limit the scope of that duty.
The law of negligence, and its threshold requirement for proximity, not only considers the plaintiff’s loss, but explains why it is just and fair to impose the cost of that loss on the particular defendant before the court.
The questions in Childs, was whether or not the hosts of the party (Mr. Courrier and Ms. Zimmerman) owed a duty of care to Ms. Childs. Up to this point Canadian law did not provide a clear answer to the question of whether people who host social events where alcohol is served owe a duty of care to third-party members of the public who may be harmed by guests who leave the event inebriated.
Previously the court had confirmed that commercial hosts owed a duty of care to the “motoring public” that required bar and restaurant owners to take positive steps to protect the latter, but commercial hosts are situated differently than social hosts in three significant respects:
- Commercial hosts enjoy an important advantage over social hosts in their capacity to monitor alcohol consumption. As a result, not only is monitoring relatively easy for a commercial host, but it is also expected by the host, patrons and members of the public. In fact, commercial hosts have a special incentive to monitor consumption because they are being paid for service. Patrons expect that the number of drinks they consume will be monitored, if only to ensure that they are asked to pay for them;
- The sale and consumption of alcohol is strictly regulated by legislatures, and the rules applying to commercial establishments suggest that they operate in a very different context than private-party hosts. This regulation is driven by public expectations and attitudes towards intoxicants; and
- The contractual nature of the relationship between a tavern keeper serving alcohol and a patron consuming it is fundamentally different from the range of different social relationships that can characterize private parties in the non-commercial context. Unlike the host of a private party, commercial alcohol servers have an incentive not only to serve many drinks, but to serve too many. Over-consumption is more profitable than responsible consumption. The costs of over-consumption are borne by the drinker him or herself, taxpayers who collectively pay for the added strain on related public services and, sometimes tragically, third parties who may come into contact with intoxicated patrons on the roads. Yet the benefits of over-consumption go to the tavern keeper alone, who enjoys large profit margins from customers whose judgment becomes more impaired the more they consume. The Supreme Court of Canada called this relationship a “perverse incentive” that supports the imposition of a duty to monitor alcohol consumption in the interests of the general public.
In rejecting the existence of a duty of care on social hosts to third-party highway users who may be injured by an intoxicated guest, the court observed that holding a private party at which alcohol is served — the bare facts of the Childs case — was insufficient to implicate the hosts in the creation of a risk sufficient to give rise to a duty of care to third parties who may be subsequently injured by the conduct of a guest.
The host creates a place where people can meet, visit and imbibe alcohol, whether served on the premises or supplied by the guest. All this falls within accepted parameters of non-dangerous conduct. More is required to establish a danger or risk that requires positive action.
Although considered in the context of considering social host liability, the three factors set out above in Childs should be kept in mind when discussing commercial host liability with your staff or improving your establishment’s policies. The best way to avoid any sort of alcohol related liability is a fulsome understanding of the law and a properly trained staff.
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.