Social Host Liability – Is the host responsible for drunk friend’s auto crash - Williams v. Richard, 2018 ONCA 889 (CanLII)

November 27, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: October 5, 2018
Heard Before: Gorman J.

SOCIAL HOST LIABILITY: To what extent if any is host responsible for guest drinking and driving; is host liable for injuries caused by guest in impaired driving accident; what is a foreseeable consequence; proximity of events; duty of care

Two friends who regularly got together after work to have some drinks sat down one evening at the Mr. Richard’s mother’s house. Mr. Williams drank 15 beers in three hours and he was without any doubt drunk. When he indicated he was going to drive the 500 metres home, pick up his children and their babysitter, and take the babysitter home. Mr. Richard threatened to call the police as he was aware that Mr. William’s was in no condition to drive.

Mr. Richard did not stop his friend from driving home, nor did he call the police as threatened. Mr. Williams left the house and drove away. About 10 minutes later Mr. Richard’s mother drove him to the local store for cigarettes. They drove past Mr. William’s house and noticed his car was not in the driveway. At that point Mr. Richard called the police from outside the store and alerted them about a drunk driver.

Mr. Williams was indeed driving and was involved in a fatal accident. He died and the children were injured.

Subsequently Mr. Williams’ wife sued Mr. Richard pursuant to the Family Law Act for damages, and the wife and children sued Mr. Richard for personal injuries sustained in the car accident. Both actions were based on the claim that Mr. Richard and his mother failed their duty of care as social hosts.

Justice Gorman reviewed the case and the law, and in this motion for summary judgement, Justice Gorman dismissed the claims that rely on the Supreme Court decision in Childs v Desomeaux. Justice Gorman held that the requisite duty of care had not been established by the Plaintiff. Justice Gorman determined that even if the duty of care had been established, it ended when Mr. Williams arrived at his house to pick up the babysitter and his children.

The Court of Appeal confirmed the three elements set out in Childs v Desomeaux that must be considered in a duty of care analysis.

1. Whether the injury was reasonably foreseeable
2. If there is sufficient proximity such that there is a duty to act and if these two elements are satisfied in establishing a prima facie duty of care then
3. Whether this duty is negated by other, broader policy decision.

The Court of Appeal noted that the motion judge’s analysis of duty of care was flawed and incomplete. The motion judge failed to make an explicit finding regarding foreseeability, she then shifted to proximity and concluded that it had not been established. The Court of Appeal determined this case is distinguished from Childs v Desomeaux as follows:

[34] The next issue is the question of proximity as it applies to Mr. Richard. I am not satisfied that the motion judge’s analogy between the facts at hand and the facts of Childs is apt. The motion judge did not advert to or consider the obvious factual differences between the cases. This was not a large social gathering, rather it was two men drinking heavily in a garage. There was a developed pattern of this behaviour, enough so that the men had a pact as to what to do in the event one of them drove children while under the influence. Alcohol was provided or served, to a certain extent, as the garage refrigerator the men were accessing had 30 to 40 cans of beer in it. These facts distinguish the case at bar from Childs. Moreover, nowhere in her analysis did the motion judge consider the statement in Childs, at para. 44, that “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”.

[35] In my view, the facts of the case at bar raise a genuine issue requiring a trial regarding whether Mr. Richard, as a social host, may have invited Mr. Williams into an inherently risky environment that he controlled and created, thereby creating a positive duty of care.

On this basis the Court of Appeal indicated the motion judge committed an error in law when ruling that the host’s duty of care is ended when the guest arrives home. There is conflicting and incomplete evidence.

[47] In my view, the motion judge erred in concluding that any duty of care automatically expired when Mr. Williams arrived home. Assuming that such a duty existed, it is an issue for the jury to determine if and when the duty ended.

On this basis the appeal was allowed and the motion judge’s order set aside.

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