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Hosting a New Year’s Party? Tips on Social Host Liability in Drunk Driving Collisions (Ontario)

2014 is coming to a close and what a year it’s been.

Tonight, millions of people around Ontario are getting ready to bring in the new year in style. That means parties, gatherings, food and alcohol.

Many host parties at their homes and have questions regarding the safe service and consumption of alcohol.

Here are a few quick tips for hosting a safe new years party:

1. Make sure there are non-alcohol drinking options at your party/gathering. This means water, pop, juice, non-alcohol sparkling wine/punch. Get creative and have fun with it.

2. Have the number of a taxi company or car service on site. Some taxi companies have great fridge magnets which have their contact information which are always in good taste for displaying the night of your party.

3. Have one, or more designated drivers assigned for your party
4. Offer guests to stay the night in a guest room, or even on the couch if they’ve had too much to drink and can’t get home safely
5. Know where the nearest hotel is for your guests and let them know about it if they’ve had too much to drink
6. Friends don’t let friends drink and drive. Taking away your friend’s car keys might save their lives, or somebody else’s

When I think of New Years, I think of a very tragic case which happened in Ontario on New Years and went all the way up to the Ontario Court of Appeal, and then to the Supreme Court of Canada. The case is called Childs v. Desmoreaux and can be read here.

There is a theory at law called “social host liability”. This is when the injured accident victim seeks compensation from the injuries not just from the at fault drunk driver, but ALSO from the host of the party for over serving or not being responsible in the safe service of their alcohol at the party which the at fault driver attended before the drunk driving collision.

That Childs case deals specifically with that social host liability issue.

It should be noted that Mothers Against Drunk Driving (MADD) was an intervenor in this case because it was such an important landmark decision with respect to drunk driving laws and social host liability. An intervenor is a NON PARTY to the legal action who is granted status to have their say during the case because the outcome of the decision is of significant social and legal importance. Here, MADD was allowed to intervene in the case.

This case arises from a tragic car accident in Ottawa in the early hours of New Years Day in 1999 At 1:30 a.m., after leaving a party hosted by Dwight Courrier and Julie Zimmerman, Desmond Desormeaux drove his vehicle into oncoming traffic and collided head-on with a vehicle driven by Patricia Hadden. One of the passengers in Ms. Hadden’s car was killed and three others seriously injured, including Zoe Childs, who was then a teenager. Ms. Childs’ spine was severed and she has since been paralyzed from the waist down. Mr. Desormeaux and the two passengers in his car were also injured.

Mr. Desormeaux was impaired at the time of the accident. The trial judge found that he had probably consumed 12 beers at the party over two and a half hours, producing a blood-alcohol concentration of approximately 235 mg per 100 ml when he left the party and 225 mg per 100 ml at the time of the accident — concentrations well over the legal limit for driving of 80 mg per 100 ml. Mr. Desormeaux pleaded guilty to a series of criminal charges arising from these events and received a 10-year sentence.

The party hosted by Dwight Courrier and Julie Zimmerman at their home was a “BYOB” (Bring Your Own Booze) event. The only alcohol served by the hosts was three-quarters of a bottle of champagne in small glasses at midnight. Mr. Desormeaux was known to his hosts to be a heavy drinker. The trial judge heard evidence that when Mr. Desormeaux walked to his car to leave, Mr. Courrier accompanied him and asked, “Are you okay, brother?” Mr. Desormeaux responded “No problem”, got behind the wheel and drove away with two passengers.

The question for the Court was whether or not the hosts of the party had any liability for this accident.

The Supreme Court found that the hosts were NOT liable for the car accident stating:

the absence of any evidence that Mr. Desormeaux displayed signs of intoxication during this brief encounter. Given the absence of evidence that the hosts in this case in fact knew of Mr. Desormeaux’s intoxication and the fact that the experienced trial judge himself declined to make such a finding, it would not be proper for us to change the factual basis of this case by supplementing the facts on this critical point. I conclude that the injury was not reasonably foreseeable on the facts established in this case.madd-300x128.jpg

Foreseeability is not the only hurdle Ms. Childs’ argument for a duty of care must surmount. “Foreseeability does not of itself, and automatically, lead to the conclusion that there is a duty of care”: G. H. L. Fridman, The Law of Torts in Canada (2nd ed. 2002), at p. 320. Foreseeability without more may establish a duty of care. This is usually the case, for example, where an overt act of the defendant has directly caused foreseeable physical harm to the plaintiff: see Cooper. However, where the conduct alleged against the defendant is a failure to act, foreseeability alone may not establish a duty of care. In the absence of an overt act on the part of the defendant, the nature of the relationship must be examined to determine whether there is a nexus between the parties. Although there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger are not free-standing. Generally, the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved.

The facts in this case were not supportive of establishing social host liability in this case. BUT, the Supreme Court certainly left the door open for a social host to be liable in a drunk driving case.

Where there is excess alcohol served by the host, and the social host knew that the driver was drunk, the driver showed visible signs of intoxication which the host saw, and the host proceeded to let them drive home; I can foresee a situation whereby the social host would be found to be deemed partially to blame for the drunk driving collision.

In any event, if you are hosting a party over New Years, do your best as a host to make sure that your guests and others are safe.

I would like to conclude my final Toronto Injury Law Blog Post of 2014 first by sending my greetings to a kind Eritrean Canadian family I met with last week in Kitchener/Waterloo who are HUGE fans of the Blog. In fact, one of the family members prints off the Blog every week and keeps copies of it around to read. That was amazing to see!

I would also like to share my recent experience at the movies. The last time I saw a movie before last night was 1.4 years ago. I rarely see movies in theatre for so many reasons; and I was reminded why I don’t like going last night.

The man I was sitting next to in the theatre had breathing problems. He literally snored (while awake) for the entire show. The person behind my friend was kicking the seat for half of the show. The commercials before the movie after the lights went dark lasted for around 10 minutes, followed by just 2 movie previews which were very disappointing. I don’t think the experience of a VIP Cinema (which I’ve never attended) would make any difference. The fact is for a 9PM showtime, the actual movie starts at around 9:15 or so, and there are still people who arrive at 9:20 who disrupt others while looking for seats after the main attraction began. I like movies. I want to enjoy going to the movies. But when the person next to me needs a CPAP Machine to keep from snoring during the film, and the person behind me has restless leg syndrome, it’s hard to enjoy the feature presentation.

Happy New Year to all of our readers and we look forward to seeing you in 2015.

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