People gather socially for all kinds of reasons – graduations, proms, an afternoon by the pool, cottage weekends, birthday parties, weddings, or just an evening with friends. When alcohol is present social hosts may bear responsibility for the acts of guests who are under the influence.
Here we re-visit the May 5, 2005 decision of the Supreme Court of Canada in Childs v. Desormeaux, arising from a terrible set of circumstances in 1999 that left many lives in tatters, and where it leaves social hosts and their imbibing guests now.
THE BACKGROUND: CHILDS v DESORMEAUX
Dwight Courrier and Julie Zimmerman hosted a new year’s party at their home in the Ottawa area on the eve of 1999. It was a B.Y.O.B. event combined with a potluck dinner. The only alcohol provided by the hosts was a part-bottle of Champagne served in small glasses at midnight. The party was otherwise attended by family and friends of the hosts.
Desmond Desormeaux left Courrier’s and Zimmerman’s party after midnight, driving his car, and at about 1:30 a.m. crossed the centre line of the road into oncoming traffic, colliding head-on with a vehicle being driven by Patricia Hadden. One of the passengers in Hadden’s car was killed, and three others were seriously injured, including Zoe Childs. She suffered a spinal injury rendering her a paraplegic. Desormeaux and the two passengers in his car were also injured. Desormeaux entered pleas of guilty to a number of criminal charges arising from the incident and received a ten-year sentence.
Childs sued Desormeaux, and there was really no question as to his liability for her injuries. However, it is common for a plaintiff to spread a wider net in cases like this, to determine whether there was anyone else responsible for the injuries suffered. So Childs sued Courrier and Zimmerman, claiming that as social hosts of the party attended by Desormeaux, they too were liable for her injuries. Eventually the case made it to the Supreme Court of Canada. The question the Supreme Court considered was whether social hosts, who invite guests to an event where alcohol is served owe a duty of care to third parties who may be injured by intoxicated guests.
Chief Justice Beverley McLachlan, for the court, held that as a general rule, such a duty of care does not exist for social hosts. Here’s why.
Desormeaux was known to be a heavy drinker, and at trial he admitted to being an alcoholic for twenty years. His use of alcohol increased significantly after the death of his brother in 1990. His drinking affected his ability to maintain employment, and got him into trouble a number of times, including convictions for impaired driving in 1991 and 1994, and then in 1996 for driving while disqualified. But Desormeaux was adept at concealing his alcoholism, appearing quite cool and calm despite prodigious drinking. He had been a friend of Courrier’s for many years and even roommates for a period of time. Desormeaux and Courrier tended to spend time together watching sports. If Desormeaux was intoxicated, he slept over. Courrier was very familiar with Desormeaux’ drinking habits and conduct. When Desormeaux left the new year’s party after midnight on January 1st, Courrier walked with him to his car, and asked him if he was okay. Desormeaux responded, “no problem”, got behind the wheel and drove away.
While Desormeaux had probably consumed twelve beers at the party, there was never any evidence that Courrier or Zimmerman were aware of the consumption, that either Courrier or Zimmerman had monitored any guests’ intake of alcohol, or that Courrier observed any signs of intoxication on Desormeaux.
The Supreme Court declined to draw the line connecting Courrier’s and Zimmerman’s actions to Child’s injuries because they could not impart foreseeability of Child’s injuries to them. While Courrier and Zimmerman were aware of Desormeaux’ history of alcohol consumption and impaired driving, it did not make impaired driving and the consequent risk to third parties reasonably foreseeable at the time.
WHAT DOES CHILDS v DESORMEAUX TELL US ABOUT OUR GUESTS?
So, are social hosts off the hook when something bad comes from their guests’ drinking? Maybe not.
What happens if one of your guests leaves the party while intoxicated, and while driving, injures or kills someone? This is something none of us should have to think about when we are playing host to friends. After Childs v. Desormeaux, you might think you have nothing to worry about. But you might be wrong.
COMMERCIAL HOSTS
It is common ground now that commercial hosts, bars, restaurants, or any other establishment licenced to sell alcohol, may be held liable for injuries caused by an intoxicated patron who drives. The typical situation is one in which a server at a bar serves a patron alcohol in quantities that cause the patron to become intoxicated. The patron leaves the bar, drives a car, and then is involved in an accident in which a third party is injured. The injured party sues not only the drunk driver, but also the bar, claiming the bar was negligent in allowing the patron/driver to imbibe to the point of intoxication and then leave the bar, while aware of the risk that the patron might drive and cause an injury to a third party. To avoid liability, commercial hosts must monitor the alcohol intake of patrons and take steps to reduce the risk to third parties.
COMMERCIAL HOSTS vs SOCIAL HOSTS
So, how does the Court justify the particularly onerous duty placed upon commercial hosts but not upon social hosts? Chief Justice McLachlan points out three criteria upon which to differentiate the two situations.
First, commercial hosts are in a better position to monitor guests’ alcohol consumption because of server/patron interaction, and because of the desire of the commercial host to be paid for service.
Second, the sale of alcohol by commercial hosts is strictly regulated in law, such that commercial hosts operate in a very different context than social hosts. The regulations impose special responsibilities upon commercial hosts who stand to profit from the supply of alcohol.
Third, the relationship between a commercial host and its patrons is contractual in nature while there is a significant range of relationships that may be in place between a social host and a guest, none of which may be contractual.
In contrast, a person who accepts an invitation to attend a private party does not park his autonomy at the door. The guest remains responsible for his or her conduct, and, generally, social hosts will not owe a duty of care to third parties because proximity and foreseeability cannot be established.
But I’m not so sure that will always be the case.
Chief Justice McLachlan said this: “I conclude that as a general rule, a social host does not owe a duty of care to a person injured by a guest who has consumed alcohol…” Well, everyone knows there is an exception to every rule…and perhaps more than one.
CREATING EXCEPTIONS TO THE RULE
It just so happens the Chief JusticE provided the groundwork for such an exception by saying that while a guest remains responsible for his or her conduct, that “[s]hort of active implication in the creation of the risk, a host is entitled to respect the autonomy of a guest. The consumption of alcohol, and the assumption of the risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity.”
SOCIAL HOSTS MIGHT BE LIABLE
So, if a social host could be implicated in the creation of the risk, then perhaps a court would find the connecting line, the proximity, between the social host and an injured third party. The foreseeability of the risk to the third party could be imparted to the social host, and liability would follow.
AND HERE’S AN EXAMPLE
In a 2011 decision in the matter of Sidhu (Litigation Guardian of) v. Hiebert, the British Columbia Supreme Court declined to grant a social host’s motion to be let out of a law suit for the reasons set out in Childs v. Desormeaux.
Rattan had hosted the defendant, Hiebert, at a party. A third party, the plaintiff Sidhu, suffered injuries in a motor vehicle accident caused by Hiebert after the party. Evidence indicated Hiebert may have already been drinking before attending Rattan’s party and had more to drink while there. The court noted there was conflicting evidence about what Rattan knew or ought to have known about Hiebert’s sobriety when he drove away from party.
The BC Supreme Court had occasion to consider these principles again in a 2013 decision on a motion brought by social hosts in Lutter v. Smithson. Smithson was a guest at a BYOB party hosted by Glen and Tralee Mazu’s daughter, Brianne. Smithson left the party driving, and shortly thereafter, hit a taxi in which Lutter was a passenger. Lutter was injured. The taxi driver was killed. Lutter sued the Mazus as social hosts for the injuries he suffered.
The Mazus moved to dismiss the claim against them on the principles raised in Childs v. Desormeaux. The court dismissed the motion saying that although it was common ground the Mazus did not serve alcohol to guests, they knew Smithson was intoxicated and the issue existed whether or not the Mazus should have expected Smithson to drive.
Just to be clear, the above two case notes arise from pre-trial motions. What the court did in both cases was confirm that the potential liability of the social hosts would be left to be decided at trial.
So, what does it mean to you at your summertime party? Apart from any moral duty you may feel to safeguard the interests of your guests, your neighbours, and the general public, and recognizing just how terrible you would feel if one of your guests was injured or injured someone else after leaving your party, keep in mind that you just might owe a legal duty of care to a third party your guest might injure. Plan accordingly…but don’t forget to enjoy your party.
Childs v. Desormeaux, [2006] 1 S.C.R. 643
Sidhu (Litigation Guardian of) v. Hiebert, 2011 BCSC 1364
Lutter v. Smithson, 2013 BCSC 119