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The Supreme Court of Canada just released an appeal judgment this morning:
TORTS AND INSURANCE: SOCIAL HOST LIABILITY
Childs v. Desormeaux (30472)
"After leaving a party held in a private home, D, who was
then impaired, drove his vehicle into oncoming traffic and collided
head-on with another vehicle. One of the passengers in the other
vehicle was killed and three others seriously injured, including
C. C brought an action against the hosts of the party for the
injuries she suffered. Both the trial judge and the Court of
Appeal concluded, for different reasons, that social hosts of parties
do not owe a duty of care to members of the public who may be injured
by an intoxicated guest's conduct." The Supreme Court of Canada held (unanimously) that the appeal is dismissed. Chief Justice McLachlin wrote the following (at pp. 14-21): "A positive duty of care may exist if foreseeability of
harm is present and if other aspects of the
relationship between the plaintiff and the defendant establish a
special link or proximity. Three such situations have been
identified by the courts. They function not as strict legal categories,
but rather to elucidate factors that can lead to positive duties to
act. These factors, or features of the relationship, bring
parties who would otherwise be legal strangers into proximity and
impose positive duties on defendants that would not otherwise exist. The first situation where courts have imposed a positive duty
to act is where a defendant intentionally attracts and invites third
parties to an inherent and obvious risk that he or she has created or
controls: Hendricks
v. The Queen, [1970] S.C.R. 237; Horsley v. MacLaren,
[1972] S.C.R. 441; Arnold v. Teno,
[1978] 2 S.C.R. 287; and Crocker v. Sundance Northwest Resorts Ltd.,
[1988] 1 S.C.R. 1186. For example, it has been held that a boat
captain owes a duty to take reasonable care to rescue a passenger who
falls overboard (Horsley) and that the operator of a
dangerous inner-tube sliding competition owes a duty to exclude people
who cannot safely participate (Crocker).
These cases turn on the defendant's causal relationship to the origin
of the risk of injury faced by the plaintiff or on steps taken to
invite others to subject themselves to a risk under the defendant's
control. If the defendant creates a risky situation and invites
others into it, failure to act thereafter does not immunize the
defendant from the consequences of its acts. These cases are akin
to the positive and continuing duty of manufacturers or transferors of
goods to warn of inherently dangerous products or dangerous uses of
safe products: Lambert
v. Lastoplex Chemicals Co., [1972] S.C.R. 569; Hollis v. Dow Corning
Corp., [1995] 4 S.C.R. 634. The second situation where a positive duty of care has been held to exist concerns paternalistic relationships of supervision and control, such as those of parent-child or teacher-student: Dziwenka v. The Queen in right of Alberta,[1972] S.C.R. 419; Bain v. Board of Education Calgary(1993), 146 A.R. 321 (Q.B.). The duty in these cases rests on the special vulnerability of the plaintiffs and the formal position of power of the defendants. The law recognizes that the autonomy of some persons may be permissibly violated or restricted, but, in turn, requires that those with power exercise it in light of special duties. In the words of Virtue J. in Bain, in the context of a teacher-student relationship, '[t]hat right of control carries with it a corresponding duty to take care for the safety of, and to properly supervise the student, whether he or she is a child, an adolescent or an adult' (para. 38). The third situation where a duty of care may include the need to take positive steps concerns defendants who either exercise a public function or engage in a commercial enterprise that includes implied responsibilities to the public at large: Dunn v. Dominion Atlantic Railway Co. (1920), 60 S.C.R. 310; Jordan House Ltd. v. Menow, [1974] S.C.R. 239; Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 O.R. (3d) 487 (Gen.
Div.). In these cases, the defendants offer a service to the
general public that includes attendant responsibilities to act with
special care to reduce risk. Where a defendant assumes a public
role, or benefits from offering a service to the public at large, special
duties arise. The duty of a commercial host who serves alcohol to
guests to act to prevent foreseeable harm to third-party users of the
highway falls into this category: Stewart v. Pettie. Running through all of these situations is the defendant's material
implication in the creation of risk or his or her control of a risk to
which others have been invited. The operator of a dangerous
sporting competition creates or enhances the risk by inviting and
enabling people to participate in an inherently risky activity.
It follows that the operator must take special steps to protect against
the risk materializing. In the example of the parent or teacher
who has assumed control of a vulnerable person, the vulnerability of
the person and its subjection to the control of the defendant creates a
situation where the latter has an enhanced responsibility to safeguard
against risk. The public provider of services undertakes a public
service, and must do so in a way that appropriately minimizes
associated risks to the public. Also running through the examples is a concern for the
autonomy of the persons affected by the positive action proposed.
The law does not impose a duty to eliminate risk. It accepts that
competent people have the right to engage in risky activities.
Conversely, it permits third parties witnessing risk to decide not to
become rescuers or otherwise intervene. It is only when these
third parties have a special relationship to the person in danger or a
material role in the creation or management of the risk that the law
may impinge on autonomy. Thus, the operator of a risky sporting
activity may be required to prevent a person who is unfit to perform a
sport safely from participating or, when a risk materializes, to
attempt a rescue. Similarly, the publican may be required to
refuse to serve an inebriated patron who may drive, or a teacher be
required to take positive action to protect a child who lacks the right
or power to make decisions for itself. The autonomy of risk
takers or putative rescuers is not absolutely protected, but, at common
law, it is always respected. Finally, the theme of reasonable reliance unites examples in
all three categories. A person who creates or invites others into
a dangerous situation, like the high-risk sports operator, may
reasonably expect that those taking up the invitation will rely on the
operator to ensure that the risk is a reasonable one or to take
appropriate rescue action if the risk materializes. Similarly, a
teacher will understand that the child or the child's parents rely on
the teacher to avoid and minimize risk. Finally, there is a
reasonable expectation on the part of the public that a person
providing public services, often under licence, will take reasonable
precautions to reduce the risk of the activity, not merely to immediate
clients, but to the general public. Does the situation of the social host who serves alcohol to
guests fall within the three categories just discussed or represent an
appropriate extension of them having regard to the factors of
risk-control and reasonable preservation of autonomy that animate
them? I conclude that it does not. The first category concerns defendants who have created or
invited others to participate in highly risky activities. Holding
a house party where alcohol is served is not such an activity.
Risks may ensue, to be sure, from what guests choose to do or not do at
the party. But hosting a party is a far cry from inviting
participation in a high-risk sport or taking people out on a boating
party. A party where alcohol is served is a common occurrence,
not one associated with unusual risks demanding special
precautions. The second category of paternalistic relationships
of supervision or control is equally inapplicable. Party hosts do
not enjoy a paternalistic relationship with their guests, nor are their
guests in a position of reduced autonomy that invites control.
Finally, private social hosts are not acting in a public capacity and,
hence, do not incur duties of a public nature. More broadly, do the themes that animate the cases imposing
positive duties to act - risk enhancement and control, autonomy and
reasonable reliance - suggest that the social hosts in this case owed a
duty of care to third-party users of the highway, to take reasonable steps
to prevent what happened? Again, the answer is that they do not. 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.:
N.J. Stat. Ann. §§ 2A: 15-5.5 to 5.8 (West 2000). 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
guest's conduct. Nor does the autonomy of the individual support the case for a
duty to take action to protect highway users in the case at bar.
As discussed, the implication of a duty of care depends on the
relationships involved. The relationship between social host and
guest at a house party is part of this equation. A person who
accepts an invitation to attend a private party does not park his autonomy
at the door. The guest remains responsible for his or her
conduct. Short of active implication in the creation or
enhancement of the risk, a host is entitled to respect the autonomy of
a guest. The consumption of alcohol, and the assumption of the risks of
impaired judgment, is in almost all cases a personal choice and an
inherently personal activity. Absent the special considerations
that may apply in the commercial context, when such a choice is made by
an adult, there is no reason why others should be made to bear its
costs. The conduct 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, was cited to us as exemplary.
This hostess was evidently prepared to make considerable incursions on
the autonomy of her guests. The law of tort, however, has not yet
gone so far. This brings us to the factor of reasonable reliance.
There is no evidence that anyone relied on the hosts in this case to
monitor guests' intake of alcohol or prevent intoxicated guests from
driving. This represents an important distinction between the
situation of a private host, as here, and a public host. The
public host provides alcohol to members of the public, under a strict regulatory
regime. It is reasonable to expect that the public provider will
act to protect the public interest. There is public reliance that
he will comply with the rules that prohibit serving too much alcohol to
a patron and that if this should occur and the patron seeks to drive,
that the public host will take reasonable steps to prevent the person
from driving. The same cannot be said of the private social host,
who neither undertakes nor is expected to monitor the conduct of guests
on behalf of the public. I conclude that hosting a party at which alcohol is served
does not, without more, establish the degree of proximity required to
give rise to a duty of care on the hosts to third-party highway users
who may be injured by an intoxicated guest. The injury here was
not shown to be foreseeable on the facts as found by the trial
judge. Even if it had been, this is at best a case of
nonfeasance. No duty to monitor guests' drinking or to prevent
them from driving can be imposed having regard to the relevant cases and
legal principles. A social host at a party where alcohol is
served is not under a duty of care to members of the public who may be
injured by a guest's actions, unless the host's conduct implicates him
or her in the creation or exacerbation of the risk. On the facts
of this case, I agree with the Court of Appeal, at para. 75, per
Weiler J.A.: The person sought to be held liable must be implicated in the
creation of the risk. ... The social hosts had no statutory duty to
monitor the consumption of alcohol or to control the structure of the
atmosphere in which alcohol was served. There is no evidence that
anyone relied on them to do so. ... I cannot accept the proposition
that by merely supplying the venue of a BYOB party, a host assumes
legal responsibility to third party users of the road for monitoring
the alcohol consumed by guests. ... It would not be just and fair in
the circumstances to impose a duty of care." http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2006scc018.wpd.html
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