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

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.

bc injury law, Commercial Host Liability, Hansen v. Sulyma

Comments (54)

  • I just want to say I am just newbie to blogging and actually enjoyed your website. Very likely I’m going to bookmark your blog post . You actually have beneficial well written articles. Many thanks for revealing your web page.

  • Awsome article and straight to the point. I am not sure if this is truly the best place to ask but do you people have any thoughts on where to hire some professional writers? Thanks 🙂

  • I was recommended this website by my cousin. I am not sure whether this post is written by him as no one else know such detailed about my trouble. You are amazing! Thanks!

  • Hello, i think that i saw you visited my blog thus i came to “return the favor”.I am trying to find things to enhance my website!I suppose its ok to use some of your ideas!!

  • Thanks for expressing your ideas. I would also like to convey that video games have been actually evolving. Better technology and improvements have assisted create reasonable and fun games. These types of entertainment video games were not really sensible when the real concept was being used. Just like other kinds of technology, video games also have had to advance by way of many generations. This is testimony on the fast continuing development of video games.

  • Nice post. I was checking continuously this blog and I’m impressed! Very useful information specially the last part 🙂 I care for such info much. I was seeking this certain information for a long time. Thank you and good luck.

  • Thank you for every one of your hard work on this blog. Gloria loves going through research and it’s really easy to understand why. My spouse and i know all concerning the lively ways you give vital information via this blog and therefore foster participation from people on that situation and our own child is without question understanding a lot of things. Enjoy the rest of the new year. Your conducting a very good job.

  • Fantastic site. A lot of useful information here. I’m sending it to a few friends ans also sharing in delicious. And certainly, thanks for your sweat!

  • Hi there are using WordPress for your blog platform? I’m new to the blog world but I’m trying to get started and set up my own. Do you require any html coding expertise to make your own blog? Any help would be really appreciated!

  • Greetings! I know this is kinda off topic nevertheless I’d figured I’d ask. Would you be interested in trading links or maybe guest authoring a blog post or vice-versa? My blog goes over a lot of the same topics as yours and I believe we could greatly benefit from each other. If you are interested feel free to send me an e-mail. I look forward to hearing from you! Wonderful blog by the way!

  • Hi there, i read your blog occasionally and i own a similar one and i was just wondering if you get a lot of spam remarks? If so how do you reduce it, any plugin or anything you can advise? I get so much lately it’s driving me insane so any help is very much appreciated.

  • This is the right blog for anyone who desires to search out out about this topic. You understand so much its almost exhausting to argue with you (not that I truly would need…HaHa). You positively put a new spin on a subject thats been written about for years. Nice stuff, just nice!

  • Hello there, just became alert to your weblog through Google, and located that it is really informative. I am going to be careful for brussels. I will be grateful when you proceed this in future. Many other people will be benefited out of your writing. Cheers!

  • of course like your web site however you have to check the spelling on quite a few of your posts. A number of them are rife with spelling issues and I find it very troublesome to tell the truth on the other hand I’ll surely come back again.

  • I haven’t checked in here for some time as I thought it was getting boring, but the last few posts are good quality so I guess I’ll add you back to my daily bloglist. You deserve it my friend 🙂

  • Great write-up, I¡¦m regular visitor of one¡¦s blog, maintain up the excellent operate, and It’s going to be a regular visitor for a lengthy time.

  • magnificent post, very informative. I wonder why the other specialists of this sector don’t notice this. You must continue your writing. I’m confident, you have a great readers’ base already!

  • Very nice post. I just stumbled upon your weblog and wished to say that I have truly enjoyed browsing your blog posts. In any case I’ll be subscribing to your rss feed and I hope you write again soon!

  • In these days of austerity along with relative stress and anxiety about incurring debt, many individuals balk resistant to the idea of making use of a credit card to make acquisition of merchandise and also pay for a vacation, preferring, instead only to rely on the actual tried and also trusted method of making payment – cash. However, if you possess cash available to make the purchase completely, then, paradoxically, this is the best time to use the credit card for several good reasons.

  • Hiya, I am really glad I’ve found this information. Nowadays bloggers publish just about gossips and net and this is really annoying. A good blog with exciting content, that’s what I need. Thanks for keeping this website, I will be visiting it. Do you do newsletters? Cant find it.

  • Wow! Thank you! I constantly wanted to write on my website something like that. Can I take a part of your post to my website?

  • Hello, you used to write fantastic, but the last several posts have been kinda boring¡K I miss your great writings. Past few posts are just a little bit out of track! come on!

  • This is the correct weblog for anybody who wants to find out about this topic. You notice a lot its virtually laborious to argue with you (not that I truly would need…HaHa). You positively put a brand new spin on a topic thats been written about for years. Great stuff, just nice!

  • Wow that was unusual. I just wrote an incredibly long comment but after I clicked submit my comment didn’t appear. Grrrr… well I’m not writing all that over again. Anyways, just wanted to say excellent blog!

  • I think other website proprietors should take this website as an model, very clean and fantastic user friendly style and design, let alone the content. You are an expert in this topic!

  • excellent points altogether, you just won a new reader. What would you suggest in regards to your put up that you simply made a few days ago? Any certain?

  • I have to point out my admiration for your kind-heartedness for men and women who actually need help on this important niche. Your very own commitment to passing the message all around had been exceedingly practical and has all the time made associates much like me to achieve their dreams. Your own warm and helpful key points denotes a great deal a person like me and extremely more to my office workers. Thanks a ton; from all of us.

  • It’s laborious to seek out educated individuals on this matter, however you sound like you realize what you’re speaking about! Thanks

  • I would like to show my thanks to you for rescuing me from this condition. Just after surfing throughout the search engines and coming across advice that were not pleasant, I believed my entire life was done. Existing without the answers to the difficulties you’ve fixed by way of this short post is a critical case, as well as the kind that might have adversely affected my entire career if I hadn’t noticed your web page. Your good ability and kindness in taking care of every part was tremendous. I don’t know what I would have done if I had not encountered such a point like this. I am able to at this time look ahead to my future. Thanks for your time very much for your professional and sensible guide. I will not hesitate to refer the website to any individual who ought to have guide on this area.

  • you’re really a good webmaster. The site loading speed is incredible. It kind of feels that you are doing any distinctive trick. Furthermore, The contents are masterwork. you have done a wonderful job in this topic!

  • It’s the best time to make some plans for the future and it is time to be happy. I have learn this publish and if I could I want to counsel you few attention-grabbing issues or advice. Perhaps you can write next articles referring to this article. I want to learn even more things about it!

  • I like the valuable information you provide in your articles. I will bookmark your blog and check again here frequently. I’m quite sure I’ll learn many new stuff right here! Best of luck for the next!

  • We are a group of volunteers and opening a new scheme in our community. Your web site provided us with valuable information to work on. You’ve done a formidable job and our whole community will be thankful to you.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer