Social Host Lawsuit Survives Summary Dismissal Application
As previously discussed, the circumstances of when a social host (ie – the host of a private party at a residence) can be held liable for injuries caused when an intoxicated guest leaves and causes injury to others is an open one. ¬†Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, further addressing this area of the law.
In today’s case (Lutter v. Smithson) the plaintiff was injured when a vehicle in which he was a passenger was struck by the defendant Smithson. ¬†Prior to the collision Smithson, who was 18 at the time, attended a “Bring Your Own Booze” party and became “very drunk“. ¬†The party was hosted by the Defendants Mazus to celebrate their daughter’s 19th¬†Birthday¬† ¬†The Mazus brought a summary dismissal application arguing that they cannot be held liable in these circumstances. ¬†Mr. Justice Macaualy dismissed the application finding this¬†“novel question of liability” should be decided via full trial. ¬†In doing so the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†As a more general proposition, I am satisfied that the novel question of liability arising out of the consumption of alcohol by a minor at a party hosted on a defendant‚Äôs property as raised in this case is best addressed after a full trial. That approach ensures the most complete record possible. In reaching that conclusion, I take into account the additional costs to the Mazus associated with the trial process but there is otherwise no prejudice. In¬†Sidhu v. Hiebert,¬†2011 BCSC 1364, the summary judgment application judge reached a similar conclusion…
¬†¬†¬†¬†¬†¬†¬†¬†¬†Childs¬†is a very important decision relating to social host liability. In determining the sufficiency of the affidavit material here and whether it is just to decide the issues on summary judgment, a review of the principles that emerge from the case assists.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In¬†Childs,¬†the defendant homeowners hosted a party, during the course of which they served a small quantity of alcohol to adult guests. For the most part, the event was ‚ÄúBYOB‚ÄĚ. The defendants knew that one of the guests, Desormeaux, was known to be a heavy drinker. As Desormeaux walked to his car to leave, one of the hosts inquired if he was okay to drive. Desormeaux responded affirmatively and drove away. The accident ensued.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Childs¬†was the first time the Supreme Court considered whether social, as opposed to commercial, hosts who invite guests to an event where alcohol is served owe a duty of care to third parties who may be injured by intoxicated guests (para.¬†8).
¬†¬†¬†¬†¬†¬†¬†¬†¬†The court did not accept that the existence of a duty on the part of commercial hosts could be extended, by analogy, to the hosts of a private party (para. 23). Accordingly, the court went on to apply the first stage of the¬†Anns¬†test (Anns v. Merton London Borough Council,  A.C. 728), and concluded, for two reasons, that the necessary proximity had not been established (para. 26):
First, the injury to Ms. Childs was not reasonably foreseeable¬†on the facts found by the trial judge. Second, even if foreseeability were established,¬†no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act. [Emphasis added.]
¬†¬†¬†¬†¬†¬†¬†¬†¬†Of potential significance here, the trial judge in¬†Childs¬†never found that the hosts knew, or ought to have known, that the guest who was about to drive was too drunk to do so. For that reason, foreseeability, and accordingly proximity, were not established. Although there was evidence that Desormeaux had a high blood alcohol rating, evidence that the hosts knew of his intoxication was absent (para. 28).
¬†¬†¬†¬†¬†¬†¬†¬†¬†At first blush, Mrs. Mazu‚Äôs admission that she knew Smithson was drunk before he left the party appears to fill the foreseeability gap that the Supreme Court first identified in¬†Childs.¬†That appears to strengthen the application respondents‚Äô contention that foreseeability may be established here.
¬†¬†¬†¬†¬†¬†¬†¬†¬†As to the second point made in¬†Childs¬†respecting the lack of a positive duty to act,¬†the hosts and guests were all adults. The court identified the lack of paternal relationship between host and guest, coupled with the autonomy of the guest, as factors that militated against imposing a positive duty to act on the hosts (see paras.¬†42‚Äď45).
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the present case, the application respondents point out that s. 33(1)(c) of the¬†LCLA¬†forbids a host permitting a minor to consume liquor ‚Äúin or at a place under his or her control.‚ÄĚ At the material time, the uncontradicted evidence is that Smithson was 18 years old and, accordingly, a minor. I agree with the respondents that this may militate in favour of imposing a positive duty. The evidence also reveals that other minors were present at the party, although it may be that most were also close to the age of majority.
¬†¬†¬†¬†¬†¬†¬†¬†¬†To adopt some of the language in¬†Childs,¬†found at para. 45, these distinctions raise the question whether an adult host is actively implicated in the creation or enhancement of the risk if she permits an underage person on her property to consume alcohol to the point of intoxication, perhaps extreme intoxication. As in¬†Sidhu,¬†that important question is, in my view, better left to be determined upon the fullest record available after a regular trial. Accordingly, it would be unjust to decide the issue on a summary judgment application.
¬†¬†¬†¬†¬†¬†¬†¬†¬†There is, in my view, a significant risk of injustice in attempting to determine the answers to the essential questions that the Mazus raise in this case on a summary trial. I dismiss the application.