I’m a server at a bar – am I actually responsible for the safety of all the drunk people that walk out the door? How am I supposed to control how they get home?
In a decision released this week, Justice Kent of the Supreme Court of British Columbia weighed in on commercial host liability – or the responsibility of a bar / restaurant to ensure its intoxicated patrons don’t cause harm to themselves or others upon leaving the premises (Widdowson v Rockwell 2017 BCSC 385). Mr. Rockwell had spent the afternoon drinking with colleagues at the Cambie, a popular bar in Vancouver. He and a buddy left the Cambie together in his truck and headed back to his house, where they took another shot or two of vodka. The two then got back into his truck to head to another destination. Perhaps inevitably, they were involved in a tragic crash – Mr. Rockwell lost control of his truck and drove onto a sidewalk, very severely injuring the plaintiff, who had been walking along the sidewalk on his way home from work.
On the evidence, it was clear that Mr. Rockwell was, as Justice Kent puts it, “quite literally falling down drunk.” The real issue before the court wasn’t whether Mr. Rockwell was liable (because he so obviously was), but whether the Cambie should share any portion of the blame for incident, considering that Mr. Rockwell had likely consumed at least the bulk of the afternoon’s alcohol on their premises.
Justice Kent ultimately found that the Cambie bore 25% of the responsibility (with the remaining 75% resting on Mr. Rockwell) for its contribution to Mr. Rockwell’s inebriation (which in turn led to the horrific collision and the plaintiff’s serious injuries). Before making that ruling, Justice Kent summarized the law on commercial host liability to third parties (and accordingly, the actual practical responsibilities for liquor-serving establishments to ensure the safety of their patrons and others):
[68] The Court also emphasized that the existence of the duty of care must not be confused with the standard of care. As well, at paras. 60–65, the Court emphasized that, in order for liability to flow, there must be proof that the breach of the standard of care “actually caused the loss complained of”.
[69] Insofar as the standard of care was concerned in the circumstances of the case, the Court noted:
· the establishment could not escape liability simply because the patron was apparently not exhibiting any visible signs of intoxication. The waitress knew or ought to have known that the patron was becoming intoxicated by virtue of the number of drinks he had consumed regardless of whether he was exhibiting visible symptoms (at para. 52);
· as in Menow, the establishment could discharge its duty of care by putting the patron “under the charge of a responsible person” such as his sober wife and sister with whom he had come to the event (at paras. 53–55);
· while “establishments which serve alcohol must either intervene in appropriate circumstances or risk liability”, the presence of sober companions with whom the patron was travelling precluded the need for intervention in this case (at paras. 53–57); and
· in any event, there was no proof that intervention would have made any difference (because the two sober women had concluded that the patron was competent to drive) (at paras. 54–55).
[…]
[74] While the standard of care expected of a commercial host will, in large part, be governed by the particular circumstances of any given case, there are several general standards of conduct that could well apply simply as a matter of common sense, including:
· ensure there are adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;
· ensure there is a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;
· ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);
· inquire if the patron is driving and identify any “designated driver” for groups of patrons;
· know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the “right side” of the legal limit;
· display “tent cards” on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;
· ask apparently-intoxicated patrons if you contact anyone to assist them or if you can get them a taxi and, if necessary, offer to pay for it;
· display posters advertising free ride-home services available in the neighbourhood; and
· if the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.
[75] None of these things occurred in the present case. Rather, the pub’s employees utterly failed in abiding by their own employer’s directive that “intoxicated persons (e.g., Rockwell) must not be permitted to drive”. I have no hesitation in concluding that the employees, and therefore Cambie Malone’s, did not meet the requisite standard of care in the circumstances of this particular case and that their conduct was accordingly negligent.
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