‘Tis the Season – Social Host Liability

 “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 above question posed by the Supreme Court of Canada is particularly apt this time of year for, as the holiday season approaches, so too does the (seemingly) endless rounds of cocktail parties, open houses and general merriment.

The leading Canadian case on social host liability is that of Childs v. Desormeaux, 2006 SCC 18.  The Childs case arose out of a “BYOB” New Year’s Eve party where the defendant hosts only provided a small amount of champagne upon which to toast in the New Year.  One of the guests, Mr. Desormeaux consumed at least 12 beers over the 2½ hours he was at the party.   He drove away from the party and was involved in a head on collision which killed one passenger in the other vehicle and seriously injured three others, including rendering the plaintiff a quadriplegic.   The accepted evidence was that, while they walked him to his car, the hosts did not know of Mr. Desmoreaux’s level of intoxication when he left the party.

The $6 million lawsuit against the hosts went to the Supreme Court of Canada on the issue of the existence of a duty of care on the part of the defendant social hosts.

The Supreme Court of Canada ultimately held that “a social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk”   [emphasis added].

Accordingly, the Supreme Court of Canada left it open to argue for the imposition of a duty of care in other, more extreme circumstances, such as where a host continues to serve alcohol to an intoxicated guest knowing that they will be driving.  The Court commented that:

[44] Holding a private party at which alcohol is served — the bare facts of this case — is insufficient to implicate the host 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.  It might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care to third parties, which would be subject to contrary policy considerations at the second stage of the Anns test.  This position has been taken in some states in the U.S.A. [cites omitted].  We need not decide that question here.  Suffice it to say that hosting a party where alcohol is served, without more, does not suggest the creation or exacerbation of risk of the level required to impose a duty of care on the host to members of the public who may be affected by a guest’s conduct. [emphasis added]

The question of what constitutes the conduct sufficient to impose a duty of care was recently addressed by both the Alberta and British Columbia Courts.

In Desanti v. Gray, 2011 ABCA  226 (leave to appeal to the SCC denied), the Alberta Court of Appeal held that a social host is not obligated to ensure their inebriated guests do not engage in fights after exiting the host’s property.

There, the hosts’ 17 year old son held a party in the basement of their house.  The host parents remained upstairs while the party went on.  Most of the guests were minors and the evidence was that some alcohol was consumed.  The hosts invited the guests to come upstairs to the kitchen to have a snack and non-alcoholic drink before leaving the party. At this time they also made inquiries to determine how these guests would be getting home.  After leaving the party, about a block away, some of the guests were involved in an altercation with an individual with whom they had been fighting on the telephone over the course of the evening (an argument which the hosts had apparently overheard).  During this fight one of the guests from the party was injured.

The Alberta Court of Appeal concluded that it was not reasonably foreseeable to a social host that a guest who has left a party would be the victim of a criminal act at some place outside of the control of the social host, simply because the guest consumed alcohol at the party.  The Court held that to conclude otherwise would unreasonably extend social host liability:

[23]   In these circumstances, the appellants cannot satisfy the first prong of the Anns proximity test [cite omitted], for determining the existence of a duty of care, namely the foreseeability of the physical harm suffered by the plaintiff at the hands of a third party due to his consuming alcohol at the party. It is simply not reasonably foreseeable to a householder that a guest who has left a party at that house would be the victim of an assault at some place outside of the control of the householder simply because the guest was consuming alcohol at the party [authorities omitted]. To conclude otherwise would unreasonably extend social host liability beyond that presently envisioned by the law. This is so even if the social host hears something that suggests that the plaintiff guest might act in an unwise manner after he has left.

In the British Columbia decision of Sidhu v. Hiebert, 2011 BCSC 1364, the social host held a birthday party which Mr. Heibert and Mr. Braun attended.  An intoxicated Mr. Hiebert was involved in a motor vehicle accident on his way home, and the plaintiff was severely injured.  The lawyer representing the host brought a summary trial application, relying on the Childs decision, arguing that the case should be dismissed because the social host does not owe a duty of care to monitor the amount of drinks a party guest may consume. The trial judge dismissed the application as being unsuitable to be heard on a summary judgment.  In particular, he felt that the Childs case may be distinguishable in situations where the host knows from his or her behaviour that the guest is significantly intoxicated.  Secondly, the judge concluded that the case must go to trial so that evidence could be led as to whether the host played a material role in the risk posed by the guest.

However, the host had also commenced third party proceedings against Mr. Braun who had accompanied Mr. Heibert to the party, alleging that if a duty of care arose for him then it too arose for Mr. Braun. Mr. Braun brought an application to have the third party action against him dismissed. The Court considered the threshold question of whether a duty of care between Mr. Braun and the plaintiff arose in the circumstances. The Court ultimately dismissed the third party action stating that:

[66] The language in Childs that might allow a court to conclude that a social host owes a duty of care to highway users injured by a driver who becomes impaired as a guest of the host does not go so far as to admit the possibility of a duty on a companion or fellow traveler who does no more than observe the risky behavior of the drinking guest, and perhaps acquiesce to an extent in the risk by drinking with and then accepting a ride home from the party with the drunken guest.

The Court in Desanti declined to extend social host liability to the situation of an intoxicated guest being involved in an altercation after leaving a party.  Likewise, the Court in Sidhu declined to extend social host liability to the companion of an impaired guest.  However, the Court in Sidhu left open the potential imposition of a duty of care on the hosts should the evidence establish that they knew of the guest’s level of intoxication when he left the party.  Accordingly, the question of “whether motorists can reasonably rely on a social host to not exacerbate an obvious risk by continuing to supply alcohol to an apparently impaired guest who the host knows will drive away from the party” remains to be answered.

It is hoped that social hosts heed the Supreme Court of Canada’s admonishment not to be complicit in the creation or exacerbation of any situation which risks the safety of a third party and that this question remains unanswered for the foreseeable future.

Best wishes for a safe and happy holiday season.