Social Host Liability by Shelley Timms (Canada Safety Council)
During the holidays you want to invite a few friends over for dinner and have a couple of drinks or you want to have a party for whatever reason. As the host, should you be worried?
As a social host, you should be concerned about your guests consuming too much alcohol for a variety of reasons, the most important one of course, their safety. Most motor vehicle crashes involving alcohol result in death or serious injury such as brain injury or spinal cord injury as well as emotional trauma. Very rarely, are the injuries minor. Your guest could also choke on vomit, fall down, or be involved in an assault amongst other things.
You may be sued if you were aware that your guest was intoxicated and you did nothing to prevent that person from driving or causing injuries to themselves or others.
Most of the successful alcohol liability cases have been against commercial hosts, such as bars, restaurants and any entity that serves alcohol for profit. Liability and responsibility for service have been extended to employers and to those who supply alcohol to minors. There hasn't been a successful case against a social host. However, this doesn't mean it won't happen and it is worth knowing what is expected of commercial hosts to assist social hosts in protecting themselves from liability and more importantly, their guests and others from tragic consequences related to overservice and excessive consumption of alcohol.
Commercial Host Liability
The courts have stated that in order for there to be a finding of liability against a host, there must be the following:
A Special Relationship
Duty of Care
An Obligation to Monitor and Supervise
The Supreme Court of Canada decided in 1972 that there was a "special relationship" between a bar and its patron because the bar "invites" the patron to use its premises to buy and drink alcohol. There is a duty or responsibility on the bar to ensure that there is no "foreseeable" harm that occurs to the patron because of what the bar does (serving alcohol to a patron when he is visibly intoxicated and then ejecting him) and what it fails to do (take preventative steps - offer a ride or call a taxi or police).
The commercial host also has an obligation to determine the patron's condition and not serve alcohol to someone who is visibly intoxicated.
A duty of care is extended to the commercial host because alcohol is essentially the only "legal" intoxicating substance that can be sold with limited regulation and the commercial host is making money as its patrons are becoming intoxicated and less able to make proper judgements. So, once a guest has had a few drinks, the host then has a positive duty to be sure that the guest does not cause harm to him/herself or others.
The next stage is that the consequences must be "foreseeable." This does not require a crystal ball but a small level of common sense. If a guest is visibly drunk or the host knows that the guest has consumed several drinks, then if the guest drives, it is foreseeable that the guest will cause a crash. It is also foreseeable that a drunk driver will crash into another vehicle or pedestrian. Essentially, the courts have decided that the cost of doing business of selling alcohol is preventing intoxicated guests from driving. It is also foreseeable that the guest might injure him/herself in other ways however, there must be something to cause the host to realize that this is a possibility such as the person was really angry, or stumbling on the premises.
The courts have said that the commercial host has an obligation to take preventative action such as calling a taxi, obtaining the guest's car keys and offering accommodation. If these fail, the tavern must call the police.
Beyond Commercial Host
Once tavern liability was established, it was only a matter of time before other "hosts" were sued when their guests drank too much and then caused injury.
In one case, a supervisor provided alcohol to his crew while they were working on a trade show. One employee drank at least eight beers while on the job, went to a bar after work and then had a 45 minute drive home. He fell asleep, crashed his car and is now in a wheelchair for life. The court held that the relationship between employer and employee was even more special than that of bar and patron. The employer had an obligation to provide a safe workplace, to monitor the consumption of beer, especially if the supervisor knew the employees were driving and then prevent the employees from driving. It was foreseeable that providing alcohol would put the employee at risk when it knew he was driving.
Non-profit and charitable organizations can be at risk for liability during special events that have alcohol. Most provinces require a special occasion permit and the same obligations that belong to a tavern will belong to the group with the special occasion permit. The problem is that many of these organizations do not have an alcohol policy or staff training in service of alcohol and dealing with intoxicated guests. A British Columbia service organization ran a beer garden for a town special event and was liable for failing to set up appropriate security to prevent pranks by guests from getting out of hand. A number of guests ran up a pole to "moon" the group. The third attempt resulted in the person falling on top of another person sitting below the pole. As this was the third attempt, the organization was aware of the problem, it had become foreseeable, and had a duty of care to stop further attempts.
The closest case to a social host situation involved a 24 year old supplying alcohol to an 18 year old by buying him two bottles of rum. The 18 year old drank a good portion of both bottles, and eventually ran a red light in his car, crashing into another vehicle, killing himself and another person and causing severe injuries to a third person. Liability was found to be 5 per cent against the 24 year old for supplying the alcohol and while this may seem like a low percentage, the total damages were $8.7 million.
But What About the Social Host?
First, who is a social host? A definition could include anyone who:
is not selling or supplying alcohol for profit;
is not an employer, or any position in which he or she has a unique relationship with his or her guests; and
is serving alcohol or condoning the service/consumption of alcohol on premises over which he or she has control.
Further, the issue of BYOB (Bring Your Own Bottle/Booze) adds a unique flavour to the concept as it implies that the social host does not necessarily have to provide the liquor, merely condone its use on the premises.
The definition is not exhaustive.
Two recent cases have come close to establishing social host liability. In one, parents of a teenager were sued when the teenager hosted a party of which the parents knew nothing because they were asleep. When the police were called the teenager woke his mother to tell her but said everything was under control and the mother fell back to sleep. One of the guests crashed her car injuring one of her passengers. In a pretrial matter, the judge suggested the fact that the parents had hosted previous parties in which there was underage drinking put them in a more vulnerable position. However, it was the fact that the teenager woke his mother who then did not check on the situation that made the parents very vulnerable to liability. The case settled before trial.
Another case involved a New Year's Eve party and a guest who left intoxicated and crashed into another car, killing one and paralyzing another. The hosts knew that the guest had a history of alcohol abuse and convictions for impaired driving. The guest was apparently visibly intoxicated when he left the party. Although the hosts were encouraging their friends to spend the night instead of driving, it was the view of the trial judge that they were relieved to see this one guest leave.
An analysis of negligence law suggested that there might be social host liability based on what the hosts knew about this guest. Further, the judge stated the fact that it was a BYOB party only created a greater responsibility on the hosts to monitor their guests more closely as they could not monitor the actual consumption of alcohol.
However, the trial judge said it was up to the provincial government to regulate social host responsibility and subtly suggested that the government should develop criteria to avoid the chaos in the courts. The case has been appealed to the Ontario Court of Appeal.
Social Host through the Back Door
At least half of the provinces have Occupiers' Liability legislation which means that anyone who has control over premises (owners, renters, special occasions) could be responsible for injuries (or worse) to people who are invited onto the premises. This includes being responsible for the condition of the premises; the conduct of the guests; and incidents coming from the activities allowed on the premises.
The legislation is assuming that there is a duty of care owed by the person in control of the premises to all those who are invited. There still needs to be the element of foreseeability and as a result there have been few successful cases because the courts have found the risk and the injury resulting to be unforeseeable.
Further, liability is limited to incidents that occur on the premises and is not applicable to incidents occurring off the host's property.
Where Does this Leave the Social Host?
It is important for every social host to consider the consequences involved with the service of alcohol because there will continue to be lawsuits. The social host could be found to have a duty of care to guests and all those who are at risk due to the intoxication of the guests for events that could be foreseeable. Further, the host has a duty to monitor and supervise the service and consumption of alcohol during a party or event.
The best course is to take risk management measures. The social host should check his or her insurance to determine if there is coverage for any incident that may occur on the property or as a result of actions from the property. When hosting a party, plan appropriately. This includes:
- Either don't drink or limit your own consumption of alcohol in order to track that of your guests.
Know your guests - it is much easier to track the changes in behaviour of those you know.
Try to serve all drinks yourself and avoid self-serve bars to track and monitor your guests' consumption. Consider hiring a bartender trained in alcohol service.
Have plenty of non-alcoholic choices.
Serve lots of food that has protein and fat - salt encourages more drinking and sugar does not mix well with alcohol.
Meet, Greet and Repeat - meet and greet all your guests as they arrive in order to determine if they have had anything alcoholic to drink before arriving. If the party is an open house or cocktail format, repeat the process as guests leave.
If a guest is intoxicated, encourage him or her to give you their car keys if relevant. Buddy up with a friend to assist in persuading the intoxicated person to take a cab.
Keep the phone numbers of cab companies handy and tell the guest that a cab has been ordered - don't give them the option to refuse.
If the guest is quite intoxicated, keep that person with you until they have sobered or can be left with a sober responsible person.
Only time will sober the person, not additional fluids or food. Offering a spare bed is a good recourse.
If the person refuses to give the car keys or spend the night at your house, call the police. It may seem drastic, but it could be a choice between that of an upset friend or far more tragic consequences.
Having a plan will allow you to prevent problems from happening or a least, handle the problems in the least unpleasant way and perhaps, allow you to enjoy your own party.