Library:
Raise Your Glass! (Carefully)
Published in the February 2009 issue of Litigation Notes - View Article
The British Columbia Court of Appeal has held that a commercial host may be liable for various types of injuries inflicted by intoxicated patrons but that on the facts of this case there was not enough evidence to establish that excessive alcohol was the main factor in the accident
A promoter held an Oktoberfest party at a location on Granville Mall in downtown Vancouver. As part of the event, the promoter handed out glass beer mugs – one could obtain more than one glass mug and some patrons did, hanging several mugs from their belts. One patron, Derek Donaldson, arrived at the event at 10 pm and left at 2 am, “intoxicated, but not stumbling.” Shortly after leaving, he encountered another patron who had left the event, Christopher Briggs. Mr. Briggs was carrying a beer mug in his left hand and suddenly raised his left arm, hitting Mr. Donaldson in the face and causing permanent damage to his right eye, as well as facial scarring. The Court of Appeal noted that whether Mr. Briggs had hit Mr. Donaldson intentionally or accidentally is not known.
Mr. Donaldson sued the defendants, the promoter and the owner of the venue, in negligence, stating they owed him a duty of care as commercial hosts and had breached that duty.
The trial judge reviewed the duty of care owed by commercial hosts: “commercial hosts owe a general duty to prevent foreseeable harm caused to third parties by their guests”. He stated that this duty covers not just third-party motorists, but “all those who, as a class of persons, may come into contact with the guest”. The trial judge found that the defendants had a duty of care to Mr. Donaldson, but that the incident with Mr. Briggs was not foreseeable – he found that there was no evidence that Mr. Briggs was “over-served”, meaning that the defendants knew or ought to have known that he was drunk. The trial judge went on to find that, even if he had been over-served, allowing Oktoberfest patrons to leave the event with glass beer mugs did not create “a foreseeable risk of harm to persons on Granville Mall”:
“Benign objects such as ballpoint pens or keys could cause considerable harm if held in the hand which struck a person in the face. Glass mugs are not inherently dangerous objects . . . [while the risks of impaired driving are well known] the same cannot be said about the risks and consequences of a drunken man walking with a glass mug in hand.”
The Court of Appeal found that the trial judge had conflated the analysis of foreseeability with regards to the duty of care and the standard of care. In determining whether a duty of care exists, foreseeability is a factor regarding whether the relationship between the two parties warrants imposing a duty – could Mr. Donaldson fall within a class of persons who could be harmed by Mr. Briggs conduct? If yes, the court will look next at the specific risk of harm in deciding whether the defendants were negligent – did they breach the standard of care required in monitoring the service of alcohol to the Oktoberfest patrons?
The Court of Appeal framed the issue as “[it is] not whether the commercial host owes a duty of care to third parties to protect them from the injuries caused by intoxicated patrons who leave the host’s premises with souvenir beer mugs, but, rather, whether a commercial host owes a duty to third parties to protect them from alcohol-related injuries”. The Court of Appeal stated that the answer to this must be yes. They stated that the manner in which the third party was injured is not part of the duty of care analysis – the danger (and predictable risk) is in serving intoxicants, not in the possible manner of injuries. However, the Court found that it could not review the standard of care in this case, as Mr. Donaldson had failed to adduce evidence regarding Mr. Briggs’ drinking and conduct – a commercial host allowing a patron to leave with glassware will only fail to meet the standard of care if the patron’s level of intoxication is sufficient to “objectively raise concerns that he may act in such a way as to injure someone with the glassware.” Mr. Donaldson had not adduced evidence to show that Mr. Briggs was so intoxicated that he posed a foreseeable danger to others.
The Court of Appeal dismissed the appeal, but pointed out that Mr. Donaldson had also not proved causation:
“The evidence . . . is capable of proving only that Mr. Briggs drank some beer at Oktoberfest, left the event carrying a glass beer mug and, for some unknown reason, raised his arm, injuring Mr. Donaldson with that mug . . . it would be speculation to infer that alcohol was a factor in Mr. Briggs’ actions.”
Donaldson v. John Doe, 2009 BCCA 38 (CanLII)