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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Posts Tagged ‘Commercial Host Liability’

Pub Found Partly At Fault for Crash Caused by “Visibly Intoxicated” Patron

March 9th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a Pub jointly and severally liable for a collision by a patron who was served alcohol to the point of visible intoxication.

In today’s case (Widdows v. Rockwell) the Defendant drove a vehicle and collided with the Plaintiff pedestrian.  The crash caused severe injuries, including brain damage.

At the time the Defendant was “quite literally, falling-down drunk.“.

Prior to the crash the Defendant was drinking at a local pub. In finding the pub jointly and severally liable for over serving a patron and failing to take reasonable steps to ensure he was not driving Mr. Justice Kent provided the following reasons:

[58]         Insofar as Rockwell’s consumption is concerned, I do not accept his evidence that he only consumed 2 1/2 beers at the pub.  Rather, I find as a fact that each of the co-workers bought at least one round of drinks for the other members of the group (and possibly more) and that Rockwell himself bought at least two rounds that included beer (for himself and Sauve), vodka (for Sahanovitch) and Fireball whiskey shooters (for all).  I find as a fact that by the time he left the pub to retrieve his truck, Rockwell had consumed at least five to six drinks, a combination of beer and liquor, and that he was significantly intoxicated by alcohol.  I also have no doubt, and I find as a fact, that the influence of alcohol on Rockwell was exacerbated by both a lack of food in the preceding 12 to 15 hours (and probably longer), and a high level of fatigue caused by extremely long work hours and inadequate sleep over an extended period of time.  His ability to drive safely was significantly impaired when he left the pub.

[59]         I recognize another possible theory of Rockwell’s intoxication is that he drank only two to three beers at the pub and in the two-hour period thereafter, he consumed substantial quantities of beer and/or liquor, whether at home or elsewhere, before the accident occurred.  While it certainly appears that Sahanovitch was an aggressive and irresponsible drinker of a sort who might engage in such behaviour, there is no evidence to support such a characterization of Rockwell.  When one subtracts the amount of time that it would have taken for Rockwell to drive home, this theory would require him to have consumed an enormous amount of alcohol in less than an hour, a proposition which is not consistent with his previous conduct and which, assessed from the perspective of robust logic and common sense, amounts to nothing more than wishful thinking and unfounded speculation on the part of Cambie Malone’s.

[60]         I am also satisfied however, and find as a fact, that Rockwell did indeed consume further alcohol after he departed the pub.  On the balance of probabilities, I find that this occurred at his residence and included consumption of vodka or other liquor in quantities more than Rockwell claims in his evidence.

[61]         It is not necessary to ascribe a precise figure to the amount of alcohol that Rockwell consumed after he left the pub.  It is sufficient to find that he was significantly intoxicated when he left the pub and that he became even more severely intoxicated through the consumption of additional alcohol before the accident happened…

[73]         In this particular case the affidavits from the pub employees all referred to the employees having successfully completed the “Serving It Right”, which is British Columbia’s mandatory “Responsible Beverage Service Program”.  This is a program sponsored by the provincial government and the hospitality industry which offers information about intoxication, as well as guidelines and suggestions for, as the tagline suggests, “responsible beverage service”.  Rather cleverly, none of the employee affidavits expressly disclosed the information and conduct guidelines suggested in the “Serving It Right” program.  Instead, all that was proffered was what was said to be Cambie Malone’s written “Policies and Procedures” which included the following paragraph:

It is your responsibility to ensure patrons do not become intoxicated while in the establishment.  You must refuse entrance and/or service to any person who is apparently under the influence of alcohol or drugs.  Moreover, persons visibly under the influence of drugs or alcohol may not be permitted to remain in the establishment.  You must refuse the person service, have the person removed and see that they depart safely.  Intoxicated persons must NOT be permitted to drive.  It is your duty to ensure that a safe ride home is used.  This is a crucial responsibility of everyone in the alcohol service industry.

[74]         While the standard of care expected of a commercial host will, in large part, be governed by the particular circumstances of any given case, there are several general standards of conduct that could well apply simply as a matter of common sense, including:

·       ensure there are adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;

·       ensure there is a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;

·       ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);

·       inquire if the patron is driving and identify any “designated driver” for groups of patrons;

·       know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the “right side” of the legal limit;

·       display “tent cards” on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;

·       ask apparently-intoxicated patrons if you contact anyone to assist them or if you can get them a taxi and, if necessary, offer to pay for it;

·       display posters advertising free ride-home services available in the neighbourhood; and

·       if the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.

[75]         None of these things occurred in the present case.  Rather, the pub’s employees utterly failed in abiding by their own employer’s directive that “intoxicated persons (e.g., Rockwell) must not be permitted to drive”.  I have no hesitation in concluding that the employees, and therefore Cambie Malone’s, did not meet the requisite standard of care in the circumstances of this particular case and that their conduct was accordingly negligent.


BC Court of Appeal Finds Pub 20% At Fault for Overserving Patron Who Caused a Vehicle Collision

July 25th, 2013

Adding this site’s archived cases addressing commercial host liability, reasons for judgement were released this week by the BC Court of Appeal addressing the blameworthiness of a pub who overserved a patron who then drove drunk and caused a catastrophic collision.

In this week’s case (Hansen v. Sulyma) the Plaintiff was a passenger in a vehicle that ran out of gas and was parked off the side of the road.  At the same time the Defendant, who had been drinking excessively at a nearby pub, “approached from behind, swung wide and hit their car.”  The crash had catastrophic results rendering the Plaintiff quadriplegic.

The motorist was found largely responsible for the crash but the BC Court of Appeal also allocated 20% of the blame to the pub.  In addressing their blameworthiness for over serving a patron the Court provided the following reasons:

[1]             …Mr. Leprieur had spent the evening drinking at a nearby pub and was highly intoxicated.  Employees at the pub had not made any effort to cut off his liquor or to see that he did not get into a motor-vehicle when he left the pub…

[10]         The vehicle that struck the Hansen car was a Ford Explorer being driven by Mr. Leprieur.  He had taken the ferry to Texada Island on the afternoon of November 29 to “hang out” and play some pool at the pub.  After the ferry docked at 4:00 p.m., he went to the pub, arriving between 4:30 and 5:00, and stayed until about 9:45.  There, he ran up a tab in excess of $100 (including some drinks purchased for others).  The trial judge found that he had likely consumed at least six rye whiskeys mixed with water, each consisting of not less than two ounces of alcohol.  The drinks were first served by Ms. Ricki James, the sole bartender on duty when Mr. Leprieur arrived.  She went off duty at 7:00 p.m., when the defendant Ms. Morris took over, again as the sole bartender and server.  Both are employed by the defendant numbered company of which the defendant Mr. de Vita is president and an employee.  He was not present on November 29.

[11]         When Ms. James went off duty, she did not tell Ms. Morris how long Mr. Leprieur had been drinking and Ms. Morris did not ask.  She did note there were three or four double ryes on Mr. Leprieur’s tab.  Ms. James observed that Mr. Leprieur was “fine” when she went off shift, but also said he was “catching a little buzz on”.  Ms. Morris served Mr. Leprieur three more ryes, throwing out the remnants of the third after he left the pub at about 9:45 p.m.  The trial judge continued:

The pub was busy and Ms. Morris did not pay much attention to Mr. Leprieur, but she did not observe him showing signs of being “an extremely drunk person, such as falling down or slurring his words”.  However, a patron in the pub offered to pay for a room at the Texada Island Inn for Mr. Leprieur, from which I infer that others were able to observe signs of impairment.

Mr. Leprieur got into his Ford Explorer and headed north on Blubber Bay Road intending to catch the last ferry.  When interviewed by Constable Rogers, he seemed vague about the departure time for that ferry, but I am satisfied that Mr. Leprieur probably knew that he had left himself very little time to get to the ferry terminal, and that he was likely driving in excess of the posted speed limit.

Ms. Hansen’s testimony about the sounds made by Mr. Leprieur’s vehicle as it approached and the extent of the damage to the two vehicles indicates that Mr. Leprieur’s vehicle was travelling at a high rate of speed when the impact occurred.  The right front of by Mr. Leprieur’s Ford Explorer struck the rear left side of the Accord.  The damage to the front of the Explorer indicates more than half of the front of that vehicle came into contact with the Accord, and although the damage to the rear of the Accord is worse on the left side than the right, the entire back of that vehicle is destroyed. [At paras. 51-3.]

[12]         The RCMP officer who attended the accident recorded that Mr. Leprieur had glassy eyes, was unsteady and smelled of alcohol.  Mr. Leprieur provided a breath sample at 1:26 a.m. which indicated a blood alcohol level of .12.  According to the blood alcohol consultant that level would have been between .147 and .167 at the time of the collision.

[36]         The law is clear, of course, that this court may not interfere with a trial judge’s apportionment of liability under the Negligence Act, R.S.B.C. 1996, c. 333, unless there are “very strong and cogent reasons” for doing so: see Moses v. Kim 2009 BCCA 82 at para. 33.  Even given this stringent standard, however, I am persuaded that the allocation of minimal responsibility to the pub defendants was grossly disproportionate to their comparative blameworthiness, including their disregard of their statutory obligations.  We were referred to various cases involving host liability to injured third parties, including Menow v. Honsberger [1974] S.C.R. 239 (S.C.C.) and Laface v. McWilliams 2005 BCSC 291. In Laface, Kirkpatrick J. (as she then was) in turn quoted at para. 187 a passage from a judgment of Mackenzie J. in Lum (Guardian ad litem of) v. McLintock (1997) 45 B.C.L.R. (3d) 303 (B.C.S.C.), where she stated:

In pragmatic terms, responsibility placed on commercial hosts is likely to be most effective as a deterrent in keeping intoxicated drivers off the roads. The cost of damage awards should modify rational conduct of commercial hosts directed to maximizing economic advantage … [At para. 27.]

In all the cases of commercial host liability to which Ms. Wright referred us, liability of between 78% and 28.5% was apportioned to defendants in the position of the pub defendants in this instance.

[37]         Notably, counsel for Mr. Sulyma made no submission at trial as to what portion of blameworthiness should be allocated to these defendants.  The plaintiff submitted that the figure should be 5% and the trial judge simply adopted that submission, apparently without considering the precedents in this province that augur in favour of a considerably higher apportionment.  Moreover, the trial judge’s suggestion that she would have allocated 75% of the liability to Mr. Leprieur if only two parties had been involved, and her effectively “crediting” him with the 5% seems illogical, with all due respect.   The proper course was for the trial judge to consider the relative fault of all three parties (assuming, as counsel agreed, that the pub defendants could be treated as one for the purposes of this determination) and to determine the relative blameworthiness of each in comparison to the others.

[38]         I would allow the appeal on this point and re-apportion 20% of the liability to the pub defendants, 70% to Mr. Leprieur, and 10% to Mr. Sulyma.


More on Commercial Host Liability and Excessive Alcohol Service

April 5th, 2012

As previously discusseda commercial host can be liable for damages if they serve patrons to the point of intoxication and those patrons then are injured or cause injury to others.  Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing this topic.

In yesterday’s case (Van Hove v. Boiselle) the Plaintiff was injured in a “fatal motor vehicle accident”.  The defendant was allegedly drunk at the time.  Prior to the collision the Defendant was drinking at the Artful Dodger Pub “to the point that the Defendant became heavily intoxicated“.

The Plaintiff sued the driver for damages.  ICBC, in the defence of the claim, brought Third Party proceedings agaisnt the Pub arguing they were partly at fault for the collision due to over-service.  The Pub brought a summary trial arguing the claims against them should be dismissed.  Mr. Justice Smith refused to dismiss the claim finding the case could not be disposed of by summary trial and dismissed the Pub’s application.  In doing so the Court provided the following reasons:

[16] The duty of care that commercial hosts who serve alcohol owe to the general public arises out of the profit making nature of the enterprise and the well-known dangers associated with the product. It is generally foreseeable that intoxicated patrons may, as a direct result of their intoxication, cause injury to others.

[17] The question then becomes one of the standard of care – whether, in the circumstances of a particular case, the commercial host did what was necessary to fulfill the duty. That inquiry includes the question of the whether the actual circumstances and means of injury were foreseeable.

[18] A plaintiff who proves breach of both the duty and the standard of care must then prove causation – whether the breaches actually caused the injury, which would not have occurred “but for” the negligent conduct of the defendant.

[19] L.J.D. in effect submits that Ms. Boiselle’s safe arrival home proves that the standard of care was complied with and/or proves that the chain of causation was broken. In my view, that ignores the highly fact-specific nature of both inquiries. The proposition that L.J.D. puts forward may well be one the properly applies in many, if not most, cases of this kind, but it cannot be treated as a principle of law that applies regardless of any additional facts that may arise in an individual case.

[20] One such fact in this case, on which I do not have sufficient evidence, is the level of Mr. Goll’s intoxication. If L.J.D.’s employees knew or ought to have known that he was as intoxicated as Ms. Boiselle, or nearly so, it may be open to a trial judge to find, on all of the evidence, that allowing her to leave the pub in his company did not meet the standard of care. It may also be open to a trial judge to find that her arrival home with an equally intoxicated person did not amount to a “safe” arrival within the meaning of the authorities and did not break the chain of causation.

[21] I therefore find myself unable to find the facts necessary to decide this matter on summary trial and the third party’s application must be dismissed.


My Interview on National Radio Today with Charles Adler: Bars That Over Serve Patrons

May 5th, 2010

Today I was interviewed by Charles Adler of Corus Radio on the topic of commercial hosts who over serve their patrons and civil lawsuits for damages.

The law in Canada has long recognized that a commercial host can be successfully sued if they serve patrons to the point of intoxication and those patrons then are injured or cause injury to others.  Coincidentally just last week I wrote an article discussing the responsibility of Canadian bars and nightclubs to take reasonable steps to see that their patrons are reasonably safe.

You can click on the following link to listen to my portion of the interview in full:

radio-interview-commercial-host-liability (I’d like to credit CJOB 68 Winnipeg / Corus Radio Network for providing me with a copy of the clip.)

This is my second interview with Mr. Adler and you can listen to my previous interview discussing ‘frivolous lawsuits‘ by clicking here.

As always, feedback is welcome!


Nightclub Found 35% At Fault for Injuries to Patron Struck By Beer Bottle

April 29th, 2010

Reasons for judgement were released today discussing the duty of British Columbia nightclubs to take reasonable care in seeing that their patrons are safe.

In today’s case (Hartley v. RCM Management Ltd.) the Plaintiff was injured when he was “struck by a beer bottle in his right eye by an unidentified assailant” while at a nightclub.  The Plaintiff sued the corporate defendants that operated the Nightclub.

Before being struck by the bottle the Plaintiff had a verbal altercation with the unknown assailant which lasted 2 – 2.5 minutes.  The Plaintiff argued that the Nightclub was responsible for failing to intervene in that time and had they done so this injury would have been prevented.    Madam Justice Gerow agreed in part with the Plaintiff and found that the unknown assailant was 50% responsible, the Plaintiff was 15% responsible and the corporate Defendants 35% responsible for failing to have its security guards intervene in the altercation.  In reaching this verdict the Court provided the following reasons:

[25] It is clear from the case law that the corporate defendants were not an insurer of Mr. Hartley’s safety. However, there are circumstances in which an occupier of a nightclub or bar has been found liable to its patron for injuries caused by another patron. Whether or not an occupier of a nightclub or bar will be liable for injuries caused to a patron by another patron is very fact dependent.

[26] The issue is whether the corporate defendants took reasonable steps to protect Mr. Hartley from a danger they ought to have recognized when Mr. Lutke and the unidentified man were yelling and pushing and shoving.

[27] On the night of the incident, there were five security staff on duty. The uncontroverted evidence of Mr. Lutke and Mr. Hartley is that Mr. Lutke and an unidentified man were involved in an altercation – pushing and shoving accompanied by loud yelling – for 2 to 2½ minutes….

In my view, it is reasonably foreseeable that the type of altercation described by Mr. Lutke and Mr. Hartley could escalate, and lead to a fight in which someone could be injured by being hit by a bottle.

[31] The uncontradicted evidence of Mr. Hartley and Mr. Lutke is that the altercation went on for 2 to 2½ minutes before Mr. Lutke was hit with the bottle and Mr. Hartley stepped in to assist him. As indicated earlier, Mr. MacLeod conceded that such behaviour – yelling and shoving and pushing – would not be tolerated for that length of time in the Barfly. I am of the view there was more than adequate time for security staff to intervene before Mr. Hartley felt it necessary to go to Mr. Lutke’s aid. Their failure to do so was, in my view, a breach of their duty under s. 3 of the Occupiers’ Liability Act.