Host Liability -- Legal Advice for Small and Medium Sized Businesses

Host Liability of Bars & Restaurants For Impaired Patrons in Alberta

by Gary Courtney, Courtney Aarbo Barristers and Solicitors.

Over the past 20 years or so a significant number of cases across Canada have imposed liability on bars/restaurants when patrons leave their establishment in an intoxicated condition and end up harming themselves or others.

Almost invariably in such cases the bar/restaurant ends up being a defendant in a legal proceeding along with the intoxicated person, or at times with the intoxicated person being the plaintiff. The claims typically are for damages for the injuries to persons harmed by the intoxicated person.

Under the law, if a court finds a bar/restaurant even 1% at fault for the accident, with the rest of the responsibility being with the intoxicated patron, the bar/restaurant will be jointly liable with the intoxicated patron and therefore liable to pay all of the plaintiff’s damages. In many cases the defendant patron who is most at fault has no money to pay damages, or simply declares bankruptcy, leaving the bar/restaurant to pay 100% of the damages.

Of course bars/restaurants have quite expensive insurance in place, usually at least $2 million of coverage. It is critical to understand that in the event damages are higher than the insurance coverage however, the bar/restaurant will be liable for that excess. If damages are $3 million and there is but $2 million of insurance, the bar will be liable for the $1 million of difference. Given the amounts of potential damages in a catastrophic case, we recommend at least $5 million dollars of insurance coverage.

Regardless of whether there is sufficient insurance coverage to cover the law suit damages or not, being involved in a serious accident case will be very stressful, time consuming and an expensive experience for bar/restaurant owners, and their staff. It goes without saying that the best scenario for owners and employees of bars/restaurants is not to ever be involved in such cases, but if a law suit occurs, to be in a position where the bar/restaurant is not even 1% at fault, due to staff taking the necessary steps to deal with an intoxicated patron.

This memorandum is meant to provide bar and restaurant owners and employees with a summary of the recent cases imposing a duty of care on “commercial hosts”. Courtney Aarbo hopes that the readers will find it useful in minimizing the legal risk involved in these difficult situations.

1. When is there a legal  “Duty of Care” of a bar/restaurant?

A bar/restaurant owes a duty to take reasonable care for the safety of patrons and the public once a patron steps through its doors. That duty of is especially acute where there is a reasonably foreseeable risk of injury arising from a patron’s consumption of alcohol. Usually the reasonably foreseeable risk of injury centers around driving while intoxicated.

Once the bar/restaurant has a duty of care, it may be required (through the actions of its employees) to take positive steps to prevent a patron driving if the patron’s drinking creates a reasonably foreseeable risk of injury to the patron or third parties.

2. When does The Reasonably Foreseeable Risk arise?

The primary legal question is when is there a reasonably foreseeable risk of injury which puts the bar/restaurant under a duty to take positive steps to prevent injury to the patron or the public. Such a situation arises where:

A.        the bar/restaurant (through its employees) knows or ought reasonably to  know that the patron is intoxicated;

• whether a host ought to know that a patron is intoxicated will depend on visible behavior/speech of the patron and how much alcohol the patron has been served by the bar/restaurant;
• 
  
• of note is that the bar/restaurant  is required to monitor the level of a patron’s intoxication and alcohol consumption (even if the commercial host does not have the technical/logistical means to monitor consumption). Obviously this may entail knowledge by staff of how many drinks can normally be consumed before intoxication occurs, as well as a system to monitor patron’s consumption.

And

B.        the bar/restaurant knows or ought to know that the patron intends to drive;

• whether a bar/restaurant ought to know that a patron intends to drive will depend on (a) the location of the bar (is it accessible by car only) (b) whether the patron is known and usually drives (c) whether there are indications that the patron will drive (statements by the patron/others, signs of keys, showing of driver’s license) (d) whether the patron is with others who are sober and can be expected to take care of the patron and make safe arrangements for his travel;
• of note is one leading case , where it was held that if an intoxicated patron is in the establishment with a group of people, which includes sober adults who are aware of the consumption of the intoxicated patron, it is reasonable for the commercial establishment to assume that (i) the people will travel together and (ii) one of the sober people will drive or make arrangements to get the intoxicated person home – therefore it was not reasonably foreseeable in the circumstances that the intoxicated patron would drive.

The basis of imposing liability on a bar/restaurant for an intoxicated patron’s driving is that an intoxicated patron cannot be relied on to act reasonably (i.e. decide not to drive when it would be dangerous to do so) so the bar/restaurant must intervene to prevent him from driving.

Given the above rationale, it seems unlikely that the law would consider it reasonable for an employee to rely on an intoxicated person to commit to what he says, when he says that he will not drive. Intoxicated people forget, lie or fail to see the importance of what they are doing. In the case Neufeld v Foster /1999/ (BCSC), a bar employee asked an intoxicated patron in a group of 4 who were all intoxicated for his keys. The patron told the employee that he had already given his keys to someone and that the group would not be driving and would be taking a taxi. One of the 4 patrons drove, although it was not clear which. It was found to be reasonably foreseeable that one of the intoxicated patrons would drive, even despite an intoxicated member of the group saying that they would not.

3. What the bar/restaurant must do to meet the “Duty of Care”

Once it becomes reasonably foreseeable that the patron poses a risk of injury to highways users because it should be known that he is intoxicated and plans to drive, the bar/restaurant then has a duty of care that requires it to take positive steps so that it is no longer reasonably foreseeable that the patron will drive from the premises.

What kinds of positive steps to prevent an intoxicated person driving will satisfy a bar/restaurant’s duty of care to prevent the intoxicated patron driving? Reviewing the case law examples provides some guidance;

1. Jordan House Ltd. v. Menow 1973(SC) (a case where an intoxicated patron was leaving by foot and was injured on the highway), described the duty generally as a “duty to see that the patron got home safely” by “taking him under its charge” or “putting him under the charge of a responsible person” or “see that he was not turned out…until he was in a reasonably fit condition to look after himself”. Specific examples include:

• call the police
• call a taxi
• make arrangements with another person able and willing to transport the patron

2. Stewart v. Pettie 1995(SC) was a case where an intoxicated patron was with a group, including a sober wife and sister, who were aware of how much he had drank. The drunk patron drove, resulting in an accident and harm to the wife. The court stated that the standard of care of the hotel could be satisfied by putting the patron under the charge of a responsible person, or in a case where the patron is alone, by “calling the patron’s wife or sister to take charge of him”:

• in the case itself, the patron was already in the care of sober adults (wife and sister) who he came to the establishment with and who knew how much he had had to drink and the bar employees were aware of this;
• it was not necessary for the bar employees to take positive action to “put” the patron in their care – it was reasonable to assume that the group was not travelling separately and that the sober people would drive or make alternative transport arrangement (it was not necessary to ask questions confirming that the sober people would make proper travel arrangements);
• it was held that the bar was not negligent

3. Holton v Mackinnon 2005 (BCSC): a patron and his plaintiff friend had been drinking during the day and then drank further at a nightclub. The patron drove home, with the plaintiff in the car and arrived at home. They left again soon after and had an accident in which the plaintiff was injured. It was held by the court that;

• the nightclub had not satisfied its duty of care to the plaintiff;
• the court said that in the circumstances, a bar was required to “put the intoxicated patron in the charge of a competent, sober individual and prevent…[him] from driving his vehicle”.

4. LaFace v. McWilliams 2005 (BCSC): a patron who drove and injured third parties on the highway had been drinking at a hotel. Outside the pub, a member of the public saw the patron and recognized that he was drunk and about to drive. That person took it upon herself to try to find someone to take the patron home or drive his car home, by talking to the doorman and also going into the pub. She was not successful. At one stage, she specifically told an employee that the patron was drunk and needed help finding someone to help him get home safely. The pub employees did nothing and the patron drove. The court held;

• the pub had not satisfied it’s duty of care;
• the patron was not put into the care of a responsible person, even though the member of the public voluntarily took steps to prevent him driving;
• the case seems to say that even if someone accepts responsibility to prevent a person driving, if the bar staff are aware (or ought to be aware) of a risk that this will not prevent the patron driving, the bar must intervene;
• in such circumstances, the bar cannot simply say that another person has taken responsibility to get the patron home safely – the voluntary taking of responsibility by a member of the public does not remove the responsibility of the bar to prevent the person driving.

5. Neufeld v Foster /1999/ (BCSC): even though a bar employee demanded keys from one intoxicated patron in a 4 person group (although not from all of the group) and insisted that person not drive, questioned another intoxicated member of the group and was told that they intended to take a taxi, and then called for a taxi, the bar had not satisfied the standard of care required. The court held;

• the bar staff failed to see to it that the intoxicated patrons actually got in the taxi instead of driving;
• it seems therefore that whatever means the bar staff employ to prevent the patron driving, that method  must be relatively “complete”, in the sense that it is no longer reasonably foreseeable that the intoxicated patron will drive;
• in the case of using a taxi, the bar must ensure the patron gets in the taxi; in the case of taking keys, the bar must take keys, not just ask for them; in the case of putting the patron in the care of a responsible person, the bar must actually find someone willing and able to look after the patron and prevent him driving, not just attempt to do so;
• this is consistent with general statements about the standard of care required of a commercial host in Jordan v. Menow (“duty to see that [the patron] got home safely”) and Childs v. Desormeaux and Holton v MacKinnon (“ensure that the patron is in the care of a responsible person”).

6. Haughton v Burden /2001/ (Ont SCJ): intoxicated patrons were drinking in a nightclub. Staff called a taxi and ensured that the intoxicated patrons got into the taxi. After they had arrived home in the taxi, the patrons got into their own vehicle and were involved in an accident. It was held that by ensuring that the intoxicated patrons actually got into the taxi, the nightclub had satisfied its standard of care. However, the nightclub could still be liable for breach of its statutory duty in over-serving the patrons, since the Ontario Liquor License Act made a breach of that statutory duty actionable.

7. Little Plume v. Weir 1998 (ABQB): the plaintiff patron had been drinking for 24 hours before entering a bar. He stayed for 10 minutes dozing in a booth and the staff did not serve him. He was required to leave. An employee offered to call the patron a taxi but the patron walked out without answering, apparently intoxicated. After leaving the bar, the patron crossed the road (not at a crosswalk) and was struck by a car, rendering him a paraplegic. It was held that the bar had met the standard of care that it owed to the patron, by offering to call him a taxi. It was not necessary for the bar to see that the patron actually got into the taxi. The case seems to have been decided on the basis that the standard of care required of a bar/restaurant is less exacting if the commercial host has not served an already intoxicated patron alcohol.

The principle emerging from the case-law is that in order to satisfy the standard of care, positive steps must be taken by the bar to stop the patron driving so that it is unforeseeable (to a reasonable person) that the patron will drive. In other words - if the bar employee asks an intoxicated patron to hand over his keys, the standard is satisfied if the patron hands them over. If the patron has keys but does not hand them over (because e.g. he says that he has already done so, or has lost them), the standard is probably not satisfied without the employee going further by for example ensuring that keys are not on the patron’s person to be found once the patron is in a vehicle, or better yet convincing the patron to take a taxi or ride with a sober person and take steps to make sure this happens.

The case law indicates that it is not sufficient to absolve a bar of civil liability, that a responsible person has taken some action designed to prevent the patron driving away. It must also be reasonable to believe that the responsible person's intervention would prevent the patron from driving.

4. Conclusion

While obviously the cases have some inconsistency in how much the bar/restaurant must do to meet its duty of care once there is a reasonably foreseeable risk that an intoxicated patron may drive, some general themes have emerged.

The main principle is that bar/restaurant staff must take active steps to prevent an intoxicated person from driving. The steps may be to take away the persons keys and call a cab. A second option is to call a cab for the person and not take away his or her keys, although the bar/restaurant may still be liable if the patron gets into his car anyway. Case Law suggests that the bar/restaurant should make sure the patron gets into the cab to avoid potential liability if there is a real risk that the patron might not take the cab but instead drive away.

If dealing with an intoxicated patron in a group which includes sober persons, the bar/restaurant staff would be well advised to take positive action to make sure that a sober designated driver is the one that drives. The ideal scenario would be for the bar staff to go into the parking lot to make certain that the sober patron does in fact drive. Cases are not totally consistent but it may be enough if the bar/restaurant staff member asks the group who is driving, and sees to it that intoxicated patrons hand their keys to the designated driver. The risk is that out in the parking lot the keys might find their way back to the intoxicated patrons. It is less likely to be enough for the employees to simply ask the group who is driving, and the designated driver says ”I am driving” without the staff member at least making sure keys are no longer in the intoxicated patron’s possession.

In the event that an intoxicated patron will not cooperate with bar staff in the calling of a cab (and taking a cab), or surrendering keys to a sober designated driver, then we suggest that the police be called immediately, with attempts being made to delay the intoxicated persons departure until the police arrive to take control of the situation. Doing so will certainly strengthen the bar/restaurants argument that it took definitive steps to deal with the situation and therefore should not have liability.

 Obviously the best strategy is for the bar/restaurant to avoid over serving patrons, given the requirements of liquor licensing laws, the potential civil liability discussed above, and the difficult predicament staff are put in, in dealing with intoxicated patrons generally. Note though that the bar/restaurant can have the same duty to look after a patron if the bar serves only one drink to a patron who is already drunk, when he or she enters the premises.

We hope that the above summary of the current law will assist bar and restaurant owners and employees as they prepare their policy on this issue, and deal with this very difficult issue that presents itself on a daily basis.

If Courtney Aarbo Barristers and Solicitors can assist you in any other way with respect to legal matters involving your business, please call at 403 571-5120 or email at info@courtneyaarbo.ca .

 You can also vists the Alberta Gaming and Liquor website: http://aglc.ca