Being Sued Can Ruin a Good Party

You have reason to celebrate !

Your hockey team won the local tournament !

Your best friend just got engaged !

Your entire office received a sales bonus !

Instead of going out, you have decided to throw a party at your house and serve alcohol. Your decision has important legal implications. This brochure will help you understand your potential legal liability and how to minimize the alcohol-related problems that generate civil suits.

YOUR PARTY
YOUR PROBLEM

You want your party to be a good time - an opportunity for you and your guests to unwind. However, when alcohol is involved, things can get out of hand. The risks of death and injury rise sharply with your guests' level of intoxication. Did you know that alcohol is involved in about 42% of fatal traffic crashes and that alcohol-related crashes are the leading killer of Canadians under 40.

The risks are not limited to driving. A large percentage of pedestrian, fire, drowning, boating, and snowmobile deaths involve alcohol. In fact, alcohol-related falls put more people in the hospital, for more days, than impaired driving.

You can be held liable for these deaths and injuries on two separate bases. First, you can be sued as a provider for serving alcohol to intoxicated guests who later injure themselves or others. Second, if the event is on your property or a property under your control, you may be sued as an occupier.

Provider liability does not prevent you from being a gracious host in serving alcohol. Rather, it means that you cannot continue to serve guests who are becoming, or who are already, intoxicated.

With respect to hosting events, all occupiers are required to take reasonable steps to prevent injuries from occurring on their property. Your liability as an occupier is separate from your liability as a provider. Therefore, you can incur liability as an occupier even if you do not serve a single drop of alcohol. Simply allowing alcohol-related events on your property gives rise to some legal responsibility.

Being Sued As A Provider Of Alcohol

Bars and other licensed establishments have been held civilly liable as alcohol providers for the injuries their intoxicated patrons suffered or caused, either on or off the premises. Liability has been imposed even though the staff had no actual knowledge of the patron's intoxication, or had not served the patron all (or even most) of the alcohol causing his or her intoxication. Licensed establishments have been held accountable when they served alcohol to a patron who they knew or ought to have known was intoxicated.

Unfortunately, the legislation and the cases do not provide a definition of intoxication for civil liability purposes. Some courts appear to equate intoxication with a minimum blood-alcohol level of .08% - the level at which it becomes a criminal offence to drive. However, licensed establishments have not been held liable as providers simply because they served a patron to just above the .08% level or because they unwittingly served an intoxicated patron a single drink.

Almost all of the successful suits involve patrons who were served even though they were visibly intoxicated or had already been served very large quantities of alcohol. In most of these cases, the patron was about double the .08% level or more. The Supreme Court of Canada recently suggested that provider liability requires overservice plus some other risk factor, such as obvious impairment or knowledge that the patron plans to drive.

Like licensed establishments, social hosts have been held liable for serving intoxicated guests. You do not need to have a liquor licence or permit to be held accountable. The courts have yet to decide whether the principles of provider liability will be modified in social host situations.

Professor Solomon, MADD Canada's Director of Legal Policy and Associate Dean of the Faculty of Law at the University of Western Ontario, has argued that liability for serving the intoxicated should be the same for private social hosts as it is for commercial licensed establishments. After all, it is an offence under almost all of the provincial liquor laws for anyone to serve or provide alcohol to a person who is already intoxicated. The risks are identical whether the intoxicated person drives home from a bar or from a house. Finally, social hosts typically are in a better position to control their guests' behaviour than licensed establishments that often have no knowledge of, or relationship with, their patrons.

Being Sued As An Occupier

More alcohol-related suits have been based on occupiers' liability than on provider liability. An "occupier" is any person who has control over property with the power to admit or exclude others. You may be an occupier as a homeowner hosting a party, as an officer of a service club running a social, or as the renter of a hall for your daughter's graduation party.

The law requires occupiers to take reasonable steps to protect all entrants, including the intoxicated. As the following cases illustrate, an occupier must ensure that the premises are reasonably safe in terms of the physical condition, the people who are allowed to enter and remain, and the activities that are permitted to occur.

Liability For The Condition Of The Premises

The owner of a resort was held liable after a guest, whose blood-alcohol level was about five times the legal limit for driving, fell to his death from a second-story balcony door. The owner had moved a coffee table in front of the door and had warned the guests to keep it locked because the balcony had not been completed. Nevertheless, in the court's view, it was foreseeable that guests would get intoxicated and open the door for ventilation. By failing to barricade the door, the owner breached his obligation to ensure that the physical condition of the premises was reasonably safe. The guest was found 65% contributorily negligent for his own death, but the owner's 35% share of liability still amounted to $250,000.

Liability For The Conduct Of The Entrants

A municipal conservation authority was held liable for over $200,000 in damages after rowdy youths assaulted the McGinty family. The authority, which had advertised the park as a quiet family campground, largely ignored the McGintys' complaints about the youths' noisy party. Two members of the McGinty family were attacked when they responded to screams for help from the party. Despite previous incidents with the group that summer and a violent confrontation earlier that evening, the staff had not ejected the youths or taken any other steps to safeguard the other campers. The court stated that the police should have been called earlier in the evening and the advertised "quiet time" should have been strictly enforced. The court concluded that the conservation authority had negligently failed to protect the McGintys.

Liability For Activities On The Premises

Stringer broke his neck diving from a second-story bedroom window into the Ashleys' shallow swimming pool. Stringer and several of the other guests had dove or jumped into the pool between 10 and 22 times without incident. Mrs. Ashley had warned Stringer, who had at least 6 drinks at the party, not to dive. Nevertheless, the jury decided that she should have told Stringer to leave, stopped the party or called for help to dissuade Stringer. Furthermore, Mr. Ashley should have assisted his wife by asking Stringer to leave, locking the door to the room or otherwise preventing further diving. The Ashleys were held responsible for only 40% of Stringer's total losses because of his contributory negligence. Their share of liability amounted to over $2,000,000.

Expanding Liability And The "Quick Fix"

While the exact scope of a social host's liability may be unclear, the trend has been to expand liability. It is safe to say that any social host who gives his or her intoxicated guests alcohol or who ignores their safety is courting legal grief. Remember, social host liability is as much an issue at weddings, office parties, golf tournaments, and informal street parties as it is in private homes.

Most of the measures proposed to reduce the risks of being sued focus on impaired driving, such as designated driver programs. While impaired driving poses the greatest risk of death, you must not be lulled into a false sense of security. You should not ignore other precautions or overserve your non-driving guests. First, you may be held liable as a provider if they leave your property and drown, get run over or fall over a stair railing. Second, you may be held liable as both a provider and as an occupier if they walk into your clear glass door, start a fight with another guest or fracture their skull diving into your pool.

You need to consider a number of strategies to ensure that you address the full range of your risks. With a little common sense, an attentive host who adopts even basic precautions can dramatically reduce his or her risks of being successfully sued.

What You Can Do

As you have read, you have potential liability where alcohol is involved. However, you also have sweeping authority to control who comes onto your property and what happens while they are there. Consider the following -

Planning:

Adequate preparation can avoid many of the tragedies that produce lawsuits.

Use care in hosting events. If there have been previous problems with a particular event or guest, have you taken steps to avoid a re-occurrence?

Large events, such as company parties and school graduations, require careful planning and clear policies. Depending on the size of the event, consider using an experienced manager, and trained servers and security staff.

Do not combine alcohol with potentially dangerous activities, such as boating, snowmobiling, skiing, or swimming. If this is not possible, ensure that alcohol is only available after the physical activities are completed.

Check the premises for potential hazards. Since drinking affects judgement and co-ordination, a normally safe condition may endanger an intoxicated guest. Even minor changes, such as locking the gate to the pool or placing a decal on a clear glass door, can reduce your risks.

Serving:

Your risks increase with your guests' level of intoxication. Adopt serving practices that minimize intoxication.

Do not make drinking the focus of your party. Do not permit drinking competitions or other practices that promote intoxication.

Make food available. Guests who have eaten absorb alcohol more slowly than those who have not, thereby lowering their peak blood-alcohol level.

Serve drinks to your guests, rather than offering a self-service bar. A self-service bar may encourage heavy consumption and make it more difficult for you to keep track of your guests' drinking.

Offer your guests non-alcohol and low-alcohol drinks.

Do not encourage intoxication by serving double shots, extra-strong mixed drinks or extra-strength beer.

Stop serving alcohol long before you expect the party to break up. It is simply not smart to serve people alcohol immediately before they get behind the wheel of their car or otherwise try to get home.

Supervising:

Despite your efforts, a guest may become intoxicated. You need to think about how you will respond.

Be attentive to your guests' behaviour and appearance. Be prepared to have a friendly word with a guest who is becoming intoxicated.

Do not serve alcohol to a guest who is already intoxicated. Such conduct only increases the risks of a mishap and your chances of being sued. A guest may be significantly impaired and at risk well before they appear drunk.

Arrange for a guest who may be intoxicated to be taken home safely or to stay the night. Friends don't let friends drive home drunk.

Remember that an intoxicated guest may be at considerable risk even if he or she is not driving home.

Being a good host means protecting your guests, yourself and others, as well as having a good time. The steps you take to protect your guests will reduce your likelihood of being sued. Your exposure to legal grief is largely in your hands.

If you drink... don't drive !