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NEGLIGENCE - Intoxicated persons - Liability of alcohol provider

Thursday, December 20, 2018 @ 6:22 AM  


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Appeal by the plaintiffs, the Williams children and their mother, from the dismissal of their claims against the defendants, Jake Richard and others. Mark Williams and Jake were friends and colleagues who regularly consumed beer together after work. One evening, Mark consumed approximately 15 beers over a three-hour period while visiting Jake at his mother's home. Shortly thereafter, Mark returned to his nearby home and loaded his three children into his vehicle with their babysitter. After dropping the babysitter off, Mark was involved in a serious accident. The children sustained injuries and Mark suffered fatal injuries. The children's mother brought an action on behalf of herself and her children seeking damages on the basis of social host liability. The motion judge granted summary judgment dismissing both claims. The motion judge found that no duty of care was established, and had such a duty been established, it ended once Mark arrived home to pick up his children and their babysitter. The plaintiffs appealed.

HELD: Appeal allowed. The motion judge's duty of care analysis was unclear with respect to whether the issue of foreseeability was assessed as it applied to Jake Richard. There was sufficient conflicting evidence to suggest there was a genuine issue for trial regarding whether it was reasonably foreseeable that Mark would drive home, and then drive his children and babysitter while intoxicated. In addition, the circumstances raised a genuine issue for trial as to whether Jake Richard, as a social host, invited Mark into an inherently risky environment that he controlled and created, thereby creating a positive duty of care. Furthermore, the conflicting evidence raised a genuine issue for trial as to whether Jake's mother knew Mark would be driving while intoxicated, and whether her knowledge implicated her in the creation or control of a foreseeable risk. Finally, the motion judge erred in concluding that any duty of care automatically expired when Mark arrived home. Assuming that such a duty existed, it was an issue for the jury to determine if and when the duty ended. The motion judge's order was set aside and the cases were remitted for trial.

Williams (Litigation guardian of) v. Kardux, [2018] O.J. No. 5824, Ontario Court of Appeal, C.W. Hourigan, B. Miller and G.T. Trotter JJ.A., November 7, 2018. Digest No. TLD-December172018008