December 31, 2015

By Brian Babcock

NOTE TO READERS: This story was originally published on our website on November 5, 2006. The Childs case is still the latest word on social host liability from the Supreme Court of Canada. Several lower court judges have refused to dismiss cases involving social host liability at pretrial stages, because of the factual issues noted in that case. As far as we are aware, no case has gone to trial yet.

The Supreme Court of Canada has not extended the legal responsibility of party hosts to people injured by the drunk driving of party guests. A unanimous decision in Childs v Desormeaux upheld the Court of Appeal decision.

The essential lessons from the decision are:

1. social hosts will not generally be legally responsible for damages if a guest later causes injuries
2. This does not preclude hosts being responsible if on the facts of a future case, they go beyond the social norms, and pass into a category of creating the risky situation.

The facts of the case are straightforward, and presented a clear test case. Desormeaux, a known drinker with no license or insurance, attended a “Bring Your Own Booze” New Years party at his friends’ home. Afterwards, he collided with the car in which Zoe Childs was a passenger. Tragically, she was left paralyzed.

The trial judge found that the hosts knew that Desormeaux was a risk to other people on the road, and that they ought to have taken steps to prevent that risk materializing, but did not find them responsible in law, strictly for policy reasons. In Canada, commercial hosts – in other words, taverns- have been responsible in similar cases. Social hosts have never been found to be responsible in Canada, but in the United States, they are. The trial judge felt that extending the law had to be the job of a higher court.

The Court of Appeal took a different approach, finding that the policy discussion was unnecessary, because, on traditional legal reasoning, no ‘duty of care’ arose between the hosts and the injured person, because the relationship was not close enough.

Thus, the Supreme Court had the last word.

The Supreme Court conducted a thorough review of the principles of legal, versus moral, blame for injuries. They noted that ever since the earliest cases, the law has not enforced responsibility for every moral obligation.

Not all relationships or fact situations can create responsibility. In our legal system, the answer to the Good Samaritan or rescuer question is that a person is not required to take positive steps to remove a risk, unless they created it.

If conduct is legal, in order for it to be legally blameworthy, there must be a special relationship between the injured person and the person being blamed. The categories of relationships are not fixed, and change over time, but the Court in expanding them compares the area of conduct being freshly considered to conduct previously found blameworthy.

First, the court found that social hosts are indeed a separate and new category. There is not a general category of “hosts at places liquor is served” of which taverns are an example, and social hosts merely another group. They based this distinction on several factors, similar to those considered by the Court of Appeal, but stated differently:

• Commercial hosts have an easier time monitoring consumption. There is a legal and social expectation that this monitoring will occur at a tavern, which is not present at a party. Servers at bars are expected to be trained in watching for over-consumption.
• The sale of alcohol is more thoroughly regulated than private parties. This changes the expectations, and the ability to exercise control. The decision gives the example of a ‘cut-off’ at the bar, and the employment of bouncers.
• Social relationships are varied, but all commercial relationships are expected to fit the prescribed rules. In this regard, the profit context is important. The court notes that over-consumption is more profitable for a tavern than responsible drinking. A social host does not have the same incentive as a profit-making tavern to encourage excessive drinking. Thus, the deterrent effect of liability is more important in the commercial context.

In considering whether or not to extend legal blame, the Court considered the nature of the actions, and the relationship between the actors.

In analyzing what distinguishes these situations from other relationships, where no responsibility is attached, the Court finds that:

• The law does not create a duty to eliminate risk (the rescuer example)
• Competent adults are entitled to engage in risky activities (but are responsible for their own acts)
• The principle of individual autonomy means that guests at a party are responsible for their own conduct (the rescuer example in reverse).

In order for the relationship to be close enough to establish a legal duty; it must be similar to existing categories where blame has been found. The court breaks the thousands of prior cases into three broad groups:

1. Those with a positive duty to act because the person attracts or invites others to an obvious or inherent risk he or she created or controls (ski hill cases, ice cream trucks, boating, drunken guests jumping off roofs)
2. Paternalistic or supervisory relationships
3. Public functions, or publicly regulated or licensed commercial functions. Commercial hosts fit this category.

Zoe Childs did not fit the first group. The hosts did not fit the second, as far as Zoe Childs was concerned. Responsibility could be found only if the relationship between the hosts and Desormeaux fit one of the first two groups, and if the nature of the actions made it fair and just that the responsibility flowed past Desormeaux to make the hosts responsible to compensate Childs.

The court found that hosting a party is not an inherently dangerous activity. It is a common social activity, and the variety of parties is infinite. Further, party hosts are not in the position of parents, employers or others in a supervisory relationship over their guests. Once these findings were made, liability was not possible.

The Court goes further and considers the nature of the action, which they describe as a failure to act. Traditionally, the law is reluctant to expand duties if it requires that people take active steps. Permitting Desormeaux to drink and drive is different, the Court says, than actively causing that behaviour. This value based reasoning reflects the rescuer principle and the principle of autonomy, and is thus consistent with the evolution of the law in past decisions.

In this case, there was no evidence that the hosts knew Desormeaux was drunk. They rejected the trial judge’s finding that the hosts’ knowledge that Desormeaux had a propensity was enough to put them on notice that he was a risk. The Court’s decision means that even if they knew, they were not necessarily required to take steps to prevent him from driving. This different fact situation, however, might still be an area to be explored in future decisions.

The Court specifically leaves unanswered the question of responsibility where a host is serving the alcohol, continues to serve past the point of intoxication, knowing that the guest will be driving. It could well be argued that this set if facts would fit the “inherent danger” category, and then the Court would need to decide whether that responsibility extends past the intermediate acts of the driver to the victim.

The Court reflected social norms, as they perceive them to be, rather than attempting social engineering through judicial activism. Despite the disappointment of those who would have preferred the opposite result, this case is not a license for hosts to behave recklessly. It simply does not require them to act heroically.

Zoe Childs needed a hero. Instead, she got Mister Desormeaux. It is indeed a tragedy.

We at Weilers often act for victims of impaired drivers, and represent motor vehicle, tavern and employer defendants. The most satisfying part of this practice however is providing risk management advice to business, institutional and even individual clients to reduce the likelihood of future tragedies.