It's that time of year again. Young people and their parents are celebrating graduations and the rites of passage that entails. Couples are getting married. Backyard patios and cottages are littered with bbq’s and pool parties.
When lawyers and courts hear of such celebrations at this time of year, and at Christmastime, we think of three words: Social Host Liability.
Sadly, every year, we see hundreds of deaths and injuries arising out of such celebrations. We have seen spinal cord injuries resulting in paraplegia. We have seen traumatic brain injuries that prevent the person from entering or re-entering the workforce. We see young people that have been horribly disfigured. The insurance implications for these individuals, as well as the persons who may be held legally responsible, can be devastating.
The purpose of this article is to provide you – the host, the guest, the parent – with the information you need in order to minimize the risks of a tragedy occurring.
THE GRADUATION PARTY
Facts: Your child is graduating from high school. She wants to invite her friends to your home for a post-ceremony celebration that will inevitably extend into the early morning hours. Most of these kids will be under 20, and drinking. At 1 am, one of the departing guests, allegedly alcohol-free, gets into a terrible accident, and the driver (also allegedly “alcohol-free” to all observers) and/or passenger is horribly injured as a result. You, as a parent and owner of the home where the party occurred, are hit with a lawsuit by the injured person and his/her parents.
Whether or not you as a social host are responsible for the injuries is still the subject of an evolving legal debate, and is dependent on various factors. The question is whether the host owes a legal “duty of care” to the guests to ensure that no one leaves the party intoxicated and no one is injured as a result. The duty of care arises where hosts “know or ought to have known, that the guest who was about to drive was impaired.” In my opinion, this is a fairly broad legal test, even if it has not resulted in a final, conclusive judicial pronouncement on the state of social host liability in Canada. It has, however, given rise to thousands of lawsuits, most of which often settle out of court.
The mere hosting of a party, coupled with the allowance of alcohol consumption at the party, do not by themselves attract a duty of care, even where teenagers are involved. However, liability may be imposed where the hosts engaged in an error or omission beyond the actual authorization of the party, and, if young people are involved, they established a paternalistic or supervisory relationship with their guests. Courts have suggested that in order to find liability, the host must do or omit to do something which contributed to the impaired driving.
A British Columbia decision has opened the door to the imposition of social host liability in a fact scenario similar to the one I have just proposed. The parents permitted their teenager to have parties in their backyard. Minors often attended the parties and brought their own alcohol. The parents knew underage drinking was occurring and did not supply alcohol. The mother would often look after minors who consumed alcohol there, allowing them to sleep over or drive them home. On the night in question the police showed up and told the guests to be quiet or leave. The mother asked if her son needed help but he told her he could handle it. She went back to sleep. The defendant driver left the party and rolled her vehicle. Her passenger sued the parents.
The judge decided that the parents owed the passenger a duty of care because they created a dangerous situation by permitting minors to drink at their home and later drive. The parents in fact recognized the danger and had established a paternalistic relationship with minors at past parties. Had the mother taken proper care and supervision, she would have realized that the driver was intoxicated and would have taken proper precautions to ensure that she did not drive.
The host’s knowledge of the driver’s intoxication was found to be central to a determination of whether a duty of care existed. I would suggest to you that if a supervising host parent turns a “blind eye” to the reasonable possibility of a driver being intoxicated, then the host may be found to have a duty of care, and be in breach of same. Similarly, in my opinion, it would be incumbent upon the host – whether it is a parent or the student herself – to take proactive steps to ascertain whether or not the departing guest is even slightly impaired (by “proactive steps”, I mean that the host should do more than just ask the person if they have been drinking).
TIPS FOR SUCCESSFULLY HOSTING A HOUSE PARTY:
If you are a parent and your home is the location of your child’s graduation celebration, or, you are the student-host, my advice to you would be to err on the side of caution and exercise all steps necessary to meet your legal duty of care. I have set out some tips below. Pease note, whether it is a byob party or not is irrelevant. These tips also apply to any house party where alcohol is consumed.
1. Encourage guests to arrive and depart by taxi, or have a parent drop them off or pick them up.
2. Will any guests be arriving by vehicle? If so, confiscate their keys upon arrival and place them in a location where they cannot be accessible.
3. If the guest wishes to depart, you must be certain that they have not been drinking. My suggestion to you is that this is virtually impossible, and instead I recommend that you pay for a taxi.
4. Arrange for overnight accommodations at your home and encourage all guests to stay the night.
5. Make a plan with other family members that after a certain period of time, i.e. midnight, consumption of alcohol will not be permitted and all guests must either leave with a parent, in a taxi, or stay overnight.
6. In addition to #5, there should be an overall supervisory plan and structure in place to monitor the safety of the guests, and that plan must be adhered to at all times. There should be clear communication between all individuals who are implementing the plan for the evening.
7. Do not simply turn a “blind eye” to the events that are occurring on your property.
INSURANCE IMPLICATIONS FOR THE SOCIAL HOST, DRIVER AND INJURED PASSENGERS
Ordinarily, if you are injured in an accident, you may pursue a tort claim (a lawsuit) against the driver of the vehicle responsible for your injuries. The driver’s motor vehicle insurer will respond to, and defend, the claim. In the lawsuit you may claim compensation for pain and suffering, loss of past and future income, and health care expenses not covered by accident benefits. In addition to the lawsuit, you may obtain no-fault accident benefits from your own insurer, or, if you do not own a vehicle, from the insurer of the vehicle responsible for your accident. Accident benefits include income replacement, medical benefits not covered by OHIP (medications, assistive devices, private nursing, etc) and rehabilitation expenses (physiotherapy, occupational therapy, re-training, psychologists, modifications to your home and vehicle, etc). In regards to the latter, if the injuries are quite catastrophic then the expenses can escalate into thousands and potentially millions of dollars.
Many parents are unaware that most high school students are not fully licensed to drive and will only have a G2 license. With a G2 license, absolutely no alcohol is permitted in the driver’s bloodstream.
If a G2 driver has even a drop of alcohol in his/ her bloodstream, s/he will be in breach of their license and in breach of their insurance policy. If in breach, his third party liability limits automatically drop to $200,000 (from the usual $1m or $2m that most people purchase in order to protect themselves from third party claims). If the driver is involved in an accident and injures himself and his passenger, then the following implications follow:
(a) The driver may be charged under the Criminal Code.
(b) The injured passenger, in suing the intoxicated G2 driver, may only have access to $200,000 to cover her claim in a lawsuit, because the intoxicated driver is uninsured as a result of having consumed alcohol. If the injured passenger has a particularly devastating injury that will prevent her from working and will require medical and rehabilitative attention for the rest of her life, she will not have access to any funding for her long-term needs over and above accident benefits. Certainly, individuals with brain injuries and spinal cord trauma will require life-long health care and rehabilitation over and above $200,000.
(c) If the driver is also injured, he can claim accident benefits from his own motor vehicle insurer, but because he had been drinking, the benefits available will be limited to medical-rehabilitation expenses only. This could be disastrous if s/he is unable to work and hence unable to obtain income replacement benefits.
(d) As the G2 driver is in breach of his licence and insurance policy, his insurance company will not hire a lawyer and pay for his defence costs in the event that he is sued. He will personally bear all legal costs. If the parent owns the vehicle, then the parent will be sued, as well.
(e) The parties will seek compensation from the hosts of the party. This puts the hosts’ personal assets at risk of seizure, and income at risk of garnishment.
WHAT IS AN OCCUPIER’S LIABILITY CLAIM?
The Occupier’s Liability Act imposes obligations on anyone who has control over premises. The legislation defines an “Occupier” as,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises.
This is an inclusive, rather than restrictive, definition that essentially catches anyone with some form of control over property or the activities carried thereon – including hosts who have social events at their home or who arrange to have a social event at another premises (such as a banquet hall).
The duty imposed on an occupier by the legislation is a broad one:
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons, are reasonably safe while on the premises.
Facts: You invite friends to a cottage or your backyard swimming pool, and excess alcohol is consumed by your guests. They wander toward the lake or pool in a state of intoxication. Someone jumps in, and sustains a spinal cord injury. Damages for pain and suffering, lost income and future health care costs for such an injury can be astronomical.
The host of this party is potentially liable in negligence for failing to keep his/her guests safe while on the premises, and for allowing them to be near the lake/pool knowing that they were intoxicated. If you are to have a party of this nature, you should contact your broker or insurer to ensure that your property insurance will cover mishaps of this nature. More importantly, the dock/lake/pool should be off limits once the alcohol is served; that is the best way to protect yourself, as well as your guests.
Another frequent type of accident that I see in my practice involves guests who fall off faulty decks and patios as a result of missing or loose railings. If you own a deck or patio, inspect it for safety before you have a party. If your deck or patio is partially completed, do not take a chance and use it to entertain your guests. Finally, if you are a commercial property owner and your business premises is the site for summer social events such as weddings, office bbq’s, receptions, etc, then accidents that occur due to any aspect of poor maintenance to the premises – including uneven floor tiles, decks and patios that are not built according to Ontario Building Code standards, and those long, steep narrow stairs that run down to basement washrooms – will potentially give rise to a claim for negligence under the Occupier’s Liability Act, whether or not alcohol is involved. The presence of alcohol simply enhances the duty and standard of care imposed on the host.
Have a Safe Summer!
Hopefully, this article will give you the information you need to protect yourself as a social host, parent, guest, bride, groom and “occupier”!
Najma M. Rashid is a partner in Howard Yegendorf & Associates and its sister firm, BrazeauSeller. She practices in the areas of personal injury and insurance law. To learn more about Najma and her practice, please visit www.yegendorflawfirm.ca, or www.brazeauseller.com. She can be reached at email@example.com or 237-5000 ext 243.