Am I My Brother’s Keeper-Social Host Liability

Breface:

It’s late November and no doubt you have already been inundated with the holiday season at any of your local retailers. Getting in the spirit, the thought of hosting a party comes to mind. A few friends, a few drinks, some laughs and a few more good memories to treasure. What could go wrong?
You can control your own consumption-you are a responsible drinker. If my guests cannot control theirs they should know not to drive while impaired when they leave. Remember though what Cain said to his God after killing his brother Abel and being asked where Abel was-I know not, am I my brother’s keeper?  The moral answer is obvious, the legal one less so.

Negligence:

A social host’s legal liability is founded in the law of negligence. The tort of negligence has a basic structure. A claimant must establish four things being one, a duty of care, two, a breach of that duty, three, that injury was inflicted on the claimant by the breach, and four that damage occurred as a result.

Social Host Outcomes:

The danger with any consumption of an intoxicating substance is that the inebriated may injure themselves, but more likely injure others who come to be in their path. Most often this is the resulted of driving a vehicle while impaired. If the intoxication occurred at your party can those innocent victims sue you to recover damages for their injuries?

The Big Issues:

The outcome of any social host litigation is most often based on an analysis of the facts relating to whether a duty of care arose for the host in the circumstances. If a duty arose, the next most common issue is whether it was breached through an examination of the host's behaviour and knowledge.

The leading case on the subject was rendered by the Supreme Court of Canada (SCC) in Childs v. Desormeaux. From that case, and the jurisprudence that has followed, it is clear that there is no set formula for determining social host liability. Each case is very much dependant on its factual base. The cases are most often ones where the social host took no action to stop their guest and ask whether there arose a duty to do so.

A Duty of Care:

The legal tests to establish a duty of care are ones that were developed in the common law over the past two centuries. For simplicity’s sake, they will be discussed here as the concepts of foreseeability and proximity.

Foreseeability:

It makes sense to impose a duty to act where the host knows that their guest is intoxicated and that it is “foreseeable” that they may engage in conduct that could injure others such as driving. If there is evidence that the host was, or should have been aware, of their guest's impairment then a duty of care is more likely to emerge.

Foreseeability, when found, is likely to establish a duty of care but only where there was an overt act by the host which directly caused foreseeable physical harm. Where it is sought to find the host liable for a failure to act, foreseeability alone is not enough. A nexus must also be found between the host and the damage causing guest i.e. proximity.

Proximity:

In order to require the host to act to prevent the harm, there must be something more found in the evidence. There is a requirement to find a “special link” known as proximity.

The SCC in Childs listed three types of relationships that would create such a ‘special link”. The list is not exclusive. The listed categories are:

1. Where a defendant intentionally attracts and invites third parties into an inherent and obvious risk that he or she has created or controls;
2. Paternalistic relationships of supervision and control; and
3. Where a defendant exercises a public function or engages in a commercial enterprise that includes implied responsibilities to the public at large.

The common element in these, and any other relationships that may be found to be “special links”, is the host's creation of the risk of harm or in having a paternalistic relationship.

Policy Considerations:

If foreseeability and proximity are found then a duty of care is established. The duty, however, may be negated by broader and overriding policy considerations. This further test was established by the SCC in Kamloops v. Nielsen. The question the court must ask is whether there are policy considerations which ought to negate or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise.

It is hard to imagine such policy considerations limiting or negating the duty of a social host where there is otherwise found to be a positive duty to act as discussed above.

Sum & Substance:

If you are determined to host a party here are some suggestions you might consider:

1. Limit the number of people who are invited. One hundred guests, even forty, is only inviting trouble;
2. Make it a private party not an open invitation to all comers;
3. Do not serve or provide alcohol and suggest guests bring their own;
4. If you serve any alcohol, limit the amount available and have a designated and sober bartender to watch the level of consumption by your guests;
5. Avoid any risky behaviour at the party such as underage drinking or the use of drugs including cannabis, the playing of drinking games etc;
6. Serve food and water;
7. Stay sober yourself;
8. Watch your guests for any signs of impairment;
9. Provide business cards for taxis or drive home services such as “Keys”;
10. If all else fails, offer to drive your guests or find them a ride home.

Information made available on Gestalt Legal in any form is for information purposes only. It is not, and should not, be taken as legal advice. You should not rely on, or take, or fail to take, any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Every legal problem is fact and jurisdiction-specific and should be discussed with your legal or paralegal advisor as soon as possible. If you cannot afford such advice various free legal clinics exist assuming you qualify financially.