Keys Please - The S.C.C. Addresses 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?"

Madam Justice McLachlin posed this question in the introduction to the Supreme Court of Canada's reasons in the recent decision of Childs v. Desormeaux 2006 SCC 18. Writing the unanimous judgment for the Court, she answered that as a general rule, a social host does not owe a duty of care to a person injured by an alcohol-impaired guest unless the hosts conduct was involved in actually creating or increasing the risk of such injury.

In Childs the defendant guest had attended a BYOB (bring your own booze) New Year's Eve party hosted by the other defendants. He became intoxicated at the party and left to drive home. On the way his vehicle crossed the center line and struck the vehicle in which the Plaintiff was a passenger, rendering her a quadriplegic.

The trial judge had found that a duty of care existed between the hosts and the plaintiff but policy considerations militated against liability and dismissed the lawsuit against the hosts. Significantly, the trial judge also ruled that, based on the evidence in the case, the hosts did not know nor ought to have known that their guest was too drunk to drive. The Ontario Court of Appeal upheld the dismissal but on the grounds that no duty of care arose and unless social hosts are actively implicated in creating the risk that gives rise to the accident, they cannot be found liable.

The Supreme Court of Canada noted that while they had previously in Stewart v. Pettie (1995) concluded that commercial hosts (bars, restaurants etc) owe a duty of care to third party users of the highway, this did not automatically translate into a duty of care for social hosts. As such, it was necessary for the Court to examine the relationship between social hosts and third party users of the highway to determine whether such a duty of care existed. It ultimately held the necessary proximity had not been established for two reasons:

1. The Plaintiffs injury was not reasonably foreseeable on the facts found by the trial judge in this particular case;
   
2. however, even in foreseeability had been established, no duty would arise because the situation comprised a failure to act in a circumstances where there was no positive duty to do so.

The Court did leave 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 he/she will be driving:

"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. 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 guests conduct."

The question then is still open as to what more is required on the part of a host before a duty of care arises and liability may ensue. Cited to the Supreme Court of Canada was the example of a hostess who confiscated all guests car keys and froze them in ice as people arrived at her party, releasing them only as she deemed appropriate. The Court stated that the law of torts has not yet gone so far as to require a guests keys be automatically put on ice. The decision will no doubt be a disappointment to certain stakeholders (such as Mothers Against Drunk Drivers, who were an intervenor in the case), but will come as something of a relief for many homeowners and their insurers.

The full text of the Supreme Court's judgment in Childs v. Desormeaux can be found at:
http://www.lexum.umontreal.ca/csc-scc/en/rec/
html/2006scc018.wpd.html

If you have any questions about the decision or any other insurance matter, please contact Krista Prockiw (tel: 604.643.3105 email: kxp@cwilson.com), or any other member of the Clark Wilson LLP Insurance Practice Group.