From Hangover to Legal Liability- If You Are Over-Served and Injured, You Can Sue

With St. Patrick’s Day upon us, many will be heading to celebrate at the bar with a drink or two. If you become intoxicated at the bar and are injured is there legal recourse? The answer depends on the circumstances, of course, but this post looks at two situations where a person is likely to be successful in suing a bar if they are injured.

The first circumstance is when a patron is ejected from a bar into a dangerous situation, and the second is when the bar or an affiliate of the bar arranges for patrons to participate in dangerous activities, such as games or sports.

In Ontario, the Liquor Licence Act imposes civil liability on commercial hosts, i.e. bars, serving booze, to people whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person.

If a person then is injured, they are entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor.

The seminal case where the Supreme Court determined that a bar was liable to a patron for over-serving them is Menow v. Jordan House 1973 CanLII 16 (SCC). This is a case where a bar ejected a patron who was visibly intoxicated and it was reasonably foreseeable that the patron would injure himself attempting to walk home.

This case involved Menow, a patron who frequented the drinking establishment, Jordan House, a bar in a hotel. He was observed on many occasions by Jordan House staff to have a propensity for becoming intoxicated. On the night giving rise to the lawsuit, Menow was rendered intoxicated by servers at Jordan House while he was at the bar between 5pm – 10pm. The bar staff then ejected him because he was intoxicated and wandering around the bar. They did not arrange a ride home for him, it was a dark and rainy night and Menow was wearing dark clothing. Based on all of these facts the Supreme Court imposed liability on Jordan House when a vehicle struck and gravely injured Menow while he wandered down the centreline of the highway on his walk home.

The Superme Court relied on the following factors to find liability:

  • Menow was a regular patron of the bar;
  • The bar knew of Menow’s propensity to drink to the point of intoxication;
  • Menow in an obviously intoxicated condition;
  • The bar staff was aware that Menow was intoxicated.

The amount of knowledge the bar has of a patron is an important factor: the more they know the higher their level of responsibility becomes. They also have an obligation to observe and monitor patrons.

Another case where liability is likely to ensue against a bar is when the organization both serves alcohol and offers patrons the opportunity to take part in games or sporting events that are dangerous.

In the case of Crocker v. Sundance Northwest Resorts Ltd., 1988 CanLII 45 (SCC), Sundance was a ski complex that charged for the use of its hills and tows, sold food and alcoholic beverages, and rented ski equipment. It organized a promotional tubing race, which Crocker decided to enter, to win a $200 prize. After consuming a lot of his own alcohol and some from the Sundance bar, Crocker flew down the hill in the tube. He injured himself on the first run, sustaining a cut to his forehead. Another contestant in the race before Crocker had injured his neck so severely that he had to be taken to the hospital. Crocker was visibly intoxicated, a Sundance manager advised him not to proceed, but he insisted, and was aided by Sundance staff to get back into the tube and slide down the hill again. This time he hit a mogul, was ejected and became a quadriplegic.

In finding Sundance liable, the Supreme Court found that tubing down the hill was an extremely dangerous activity, carrying with it real danger of serious neck injury.

The resort had videos of past races, which showed the dangers of being ejected from the tube, and additionally, Sundance’s managers knew that Crocker was intoxicated. The judge found that the mangers should have gone so far as to call the police to stop him from participating.

Policy considerations weigh in favour of imposing liability on bars or other establishments that profit from selling alcohol and fail to take reasonable care of the patrons who consume it. The establishment’s degree of knowledge of the patron and their surrounding circumstances are essential considerations in imposing liability, and each case has to be assessed uniquely. If you are injured after being ejected from a bar due to intoxication caused by the bar itself, or because of participating in promotional games or events, liability can more likely be established, and it is certainly worth speaking with a personal injury litigator about your options.

Natalie Gerry
Written by

Natalie is personal injury litigator with Ericksons LLP in Thunder Bay. She regularly represents clients before the Superior Court of Justice and various administrative tribunals. She assists plaintiffs in all types of lawsuits. Given Thunder Bay’s climate she has had the opportunity to gain particular experience with ice-induced slip and falls and winter MVAs.