Social Host Liability: How to Avoid the Naughty List and Ensure Guests Arrive Alive

It’s the most wonderful time of the year! Picture this: a holiday get-together at a friend’s house. The tree sparkles, beautifully wrapped gifts lay artfully strewn below. The food is delicious, the drinks plentiful, the laughter infectious. Sometime after midnight, an impaired guest drives away and gets into an accident resulting, unfortunately, in catastrophic injuries.

When the holidays approach, lawyers often think of three words: social host liability.

Is the host of a party (and owner of the home) legally responsible for the guest’s subsequent injuries if they drive away drunk?

This question is the subject of an evolving legal debate. The point of contention is whether the host owes a legal “duty of care” to the guests to ensure that no one leaves the party intoxicated and no one is injured as a result. The duty of care arises where hosts “know or ought to have known, that the guest who was about to drive was impaired.” This is a fairly broad legal test, even if it has not resulted in a final, conclusive judicial pronouncement on the state of social host liability in Canada.  It has, however, given rise to hundreds of lawsuits.

Hosting a party?  Here are some tips to keep everyone safe:

  1. Encourage guests to arrive and depart by taxi or public transit, or have them carpool with a designated driver.
  2. In certain cases, it may be wise to confiscate guests’ keys to prevent impaired driving.
  3. If the guest intends to drive away, be certain that they are not impaired. This may be impossible – when in doubt, don’t hesitate to call a cab and provide your guest’s fare.
  4. If the party involves high school or university students, make a plan with the other party hosts that after a certain time, consumption of alcohol will not be permitted and/or all guests must either leave with a parent, in a taxi, by public transit, or stay overnight.

In Childs v. Desormeaux [2006] 1 SCR 643, the plaintiff Childs was rendered a quadriplegic following an accident with an intoxicated defendant who had left a party earlier where alcohol had been consumed. The Supreme Court of Canada addressed the question of whether social hosts of parties where alcohol is served owe a duty of care to third-party public users of highways.

The Supreme Court of Canada found on the specific facts of that case that the host did not owe a duty of care to Ms. Childs and other third-party users of the roadway who were harmed by the host’s intoxicated guests.  However, the Court left it open for a finding of social host liability to be found in different circumstances; it was determined that a positive duty of care may exist if harm is forseeable and other aspects of the relationship between the plaintiff and defendant establish a special link or proximity.

The mere hosting of a party, coupled with the allowance of alcohol consumption at the party, do not by themselves attract a duty of care to the impaired guest who leaves the party. However, liability may be imposed where the hosts engaged in an error or omission beyond the actual authorization of the party, and, if young people are involved, they established a paternalistic or supervisory relationship with their guests. Courts have suggested that in order to find liability, the host must do or neglect to do something which contributes to the impaired driving.

The test for foreseeability of harm is whether a social host knew (or should have known) that a guest who is about to drive is intoxicated. The Supreme Court of Canada did not abrogate from this test in Childs. In Childs, the foreseeability analysis failed as it was premised on the findings of the trial judge that the hosts did not know – or have reason to know – that Mr. Desormeaux was too drunk to drive.

The British Columbia decision of Sidhu v. Hiebert [2011] B.C.J. No. 1905 (S.C.) also turned on this test. The court considered a summary trial (similar to Ontario’s motion for summary judgment, a procedure used to resolve a case without trial) for a dismissal of the plaintiff’s claims against a social host in circumstances similar to those in Childs. The distinguishing fact that led to the dismissal of the summary trial was that “there was a great deal of conflicting evidence on what [the host] knew or ought to have known about Mr. Hiebert’s state of sobriety when he drove away from the party.” Whether there was a positive duty to act in these circumstances was determined to be dependent on available evidence, and therefore could not be determined in a summary trial, which requires that the facts of a case be undisputed.

A homeowner is particularly vulnerable to a social host liability claim where young people are guests at the party and the host knows or ought to know that they are drinking. According to the Supreme Court of Canada in Childs, a positive duty of care will be found in paternalistic relationships of supervision and control: “The duty in these cases rests on the special vulnerability of the plaintiffs and the formal position of power of the defendants.”  Another B.C. decision, Prevost (Committee of) v. Vetter (2001) BCSC 297 leaves open the door to finding hosts liable in such a scenario. The Vetter parents permitted their teenager to have parties in their backyard and minors often attended the parties and brought their own alcohol. The parents knew underage drinking was occurring but did not supply alcohol. The mother would often look after minors who consumed alcohol there, allowing them to sleep over or drive them home. On the night in question, the police showed up and told the guests to be quiet or leave. The mother asked if her son needed her help managing the situation, but he told her he could handle it. She went back to sleep. The defendant driver left the party and rolled her vehicle and her passenger sued the parents.

The Vetters sought summary dismissal of the claim but their application was ultimately dismissed. The motion’s judge wrote that although there was no previous successful host-liability claim in Canada, the parents owed the passenger a duty of care because they created a dangerous situation by permitting minors to drink at their home and later drive. The parents in fact recognized the danger and had established a “paternalistic relationship” with minors at past parties by supervising them. Had the mother taken proper care and supervision at the subject party, she would have realized that the driver was intoxicated and would have taken proper precautions to ensure that she did not drive.

The host’s knowledge of the driver’s intoxication was found to be central to a determination of whether a duty of care existed.  It is reasonable then to suggest that if a supervising host turns a blind eye to the reasonable possibility of a driver being intoxicated, then the host may be found to have a duty of care – particularly if the guest is a minor.  Similarly, in my opinion, it would be incumbent upon the host to take proactive steps to ascertain whether or not the departing guest is even slightly impaired.

More recently, in the Ottawa case of Kleitch v. Miller (2013) (unreported), the defendants allowed their teenaged daughter to host a graduation party at their cottage for her classmates, including the plaintiff.  The plaintiff left the party with another classmate in the early hours the next morning; both were intoxicated, to the knowledge of the teenaged host and her parents.  The driver lost control of his vehicle, and Ms. Klietch was left with catastrophic brain and other injuries. Relying on Childs, the defendant hosts (the parents and their teenaged daughter) brought a motion for summary judgement.  The motion was not granted.  The motions judge was strongly influenced by the fact that all the guests at the party were under the age of 19, and in his oral reasons emphasized the “special vulnerability” of young people who attend a party – at the premises of adults – where alcohol is consumed.

 

 

Najma Rashid
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Najma Rashid joined Howard Yegendorf & Associates in 1999 and became a partner of the law firm in 2009. Her practice is devoted exclusively to personal injury litigation and she is well versed in Ontario’s Insurance Act and its Regulations, including the Statutory Accident Benefits Schedule.

Najma has developed an expertise in disability and bad faith claims against insurance companies, and participates in the Long-Term Disability Section of the Ontario Trial Lawyers Association.

Najma is a member of the Ontario Trial Lawyers Association and the Advocates Society, as well as a supporter of organizations such as REACH Canada, the Ontario Brain Injury Association and the Canadian Paraplegic Association.