Determining Issues Of Foreseeability In Social Host Liability
Drinking and driving, or more accurately, preventing drinking and driving is a major concern over the holiday season. Whether at private functions or out at a bar, hosts have some responsibility to make sure their guests don’t drink and drive when leaving. A recent decision from the Ontario Court of Appeal looked at what is necessary in order to find that a host has a positive duty of care.
The accident and the events leading up to it
The driver and the host had worked together for approximately four years and regularly got together to drink beer after work. The two lived just 500 meters from one another. The events leading up to the accident took place on October 11, 2011. The men worked from 7:00am-1:00pm. The driver dropped the host off at his mother’s house (where he lived) and returned later that day at 4:30. The host had his children with him when he returned.
The two men went to the garage and drank beer for about three hours. During this time the driver consumed about 15 cans of beer.
After they finished drinking, the host became aware that the driver intended to drive his babysitter home with his children in the car. He knew he was intoxicated, and the two had a pledge that if either of them were going to drive while drunk, the other would call the police. The host testified that he threatened to call the police, and received some assurance that the driver would not get behind the wheel. Whether or not he took that assurance seriously could not be determined. What could be determined was that the host did not call the police, nor did he do anything further to stop the drive from getting behind the wheel.
About 30 minutes after the driver left, the host and his mother took a trip to the store. He noticed on the drive that that driver’s car was not in his driveway. This is the point at which he decided to call the police to alert them to the possibility of a drunk driver. Not long afterwards the host came across the scene of an accident. The driver had driven into the back of a stationary tractor towing a trailer. He was ejected from the vehicle and died of his injuries.
A number of actions were commended. The last to be dealt with were those against the host and his mother. The host brought a motion for summary judgment, asserting he and his mother had no duty of care to the driver (or his family). The motion judge ruled in their favour, finding no duty of care had been established. The motion judge added that if a duty had been established, it was spend when the driver got home before getting into his car.
The court turned to a 2006 decision from the Supreme Court of Canada (“Childs”) which is the leading case in Canada concerning social host liability. The Supreme Court of Canada found that two issues should be considered when determining questions around social host liability. They are foreseeability and proximity. For the former, the court should look at whether the host knew or ought to have known that the driver was going to drive. Regarding proximity, the court looks at whether the host had the foreseeability of harm, which is a contextual question dependent on the history of the host and the guest.
In this case, the court found that due to conflicting evidence, a trial would have to be held in order to determine the issue of whether the host should have foreseen that the driver would attempt to drive after leaving. The host’s mother was also a defendant in the case, and the court found a trial would be needed to determine whether she knew it was reasonably foreseeable that the driver would drive.
Regarding the earlier court’s decision that even if a duty of care was established, it expired when the driver returned home. The court confirmed there was no “automatic rule” that the duty of care expires once the driver arrived home. Instead, the limits of the duty of care vary on a case-by-case basis.
The experienced and professional team at Derfel Injury Lawyers represent clients involved in all types of accidents, including motor vehicle accidents. We also represent people who may have been injured in situations involving commercial or social host liability. We have over a decade of experience in the personal injury field, and we understand how to deal with the complexities of a social host liability claim. We work tirelessly to achieve the best results for our clients. Please call us at 416-847-3580 or reach us online to discuss your issue today.