Court decides hosts not liable
Woman left a paraplegic after drunken accident
But ruling doesn't grant immunity in future cases
TRACEY TYLER
LEGAL AFFAIRS REPORTER
- Toronto Star - May 20, 2004
Two homeowners are not partially liable for an accident that left an 18-year-old woman a paraplegic when a drunken guest drove away from their New Year's
Eve house party, Ontario's highest court has ruled.
The obligations of homeowners are vastly different from bar owners when it comes to serving alcohol,
the Ontario Court of Appeal said yesterday.
In a unanimous decision, three judges overturned a trial court finding that Julie Zimmerman and Dwight Courrier
were 15 per cent responsible for the injuries suffered by Zöe Childs, whose spine was severed in the accident in Gloucester Township, near Ottawa,
on Jan. 1, 1999.
Childs' car was hit head-on by Desmond Desormeaux, a self-described alcoholic with two previous impaired-driving convictions, who left
the party after consuming the equivalent of 12 beers in 2 1/2 hours. She sued both the driver and the hosts of the party.
Mr. Justice James Chadwick
of the Superior Court of Justice ruled in 2002 that, as "social hosts," Zimmerman and Courrier should have known Desormeaux was drunk and had a duty not
to turn him loose on the highway, where he could cause injury or death.
In writing for the appeal court yesterday, however, Madam Justice Karen Weiler
said Zimmerman and Courrier did not owe a "duty of care" to other motorists because it was not clear that Desormeaux, who often stayed overnight when
he had too much to drink, would be driving home.
They had no reason and — unlike owners of commercial establishments — no legal duty to monitor how much
he drank, she said, adding that since the party was also "BYOB" (Bring Your Own Booze), Zimmerman and Courrier didn't supply or serve alcohol and did
not actively participate in creating highway danger.
"I cannot accept the proposition that by merely supplying the venue of a BYOB party, a host assumes
legal responsibility to third-party users of the road for monitoring the alcohol consumed by guests, even when the guest includes a known drinker," Weiler
said, writing for Associate Chief Justice Dennis O'Connor and Mr. Justice Robert Sharpe.
Chadwick's finding took the law into novel territory, holding social hosts to the same standard as restaurant and bar owners — a move that would impose
drastic "lifestyle changes" on homeowners, including staying sober under their own roofs in order to monitor how much their guests drank, Weiler said.
Even
those who firmly believe that hosts should bear some responsibility for drunk-driving injuries agree that homeowners can't function as "human breathalyzers," she
said.
At the same time, the court added, there may well be situations in which a homeowner could be found liable, such as if a host knew an impaired guest
was going to get behind the wheel but did nothing.
"My conclusion ... should not be interpreted to mean that social hosts are immune from liability to
innocent third-party users of the road for damages caused by impaired guests who drive a car," Weiler said.
Mothers Against Drunk Driving (MADD), which
intervened in Childs' appeal, called the decision a partial success.
"I think it advances the law. It gave MADD half a loaf, not a whole loaf," said Kirk
Stevens, one of the lobby group's lawyers.
"We were hoping the court would say when you host a party involving alcohol, you have a duty to monitor your
guests, to take reasonable steps to know what was going on," he said yesterday. "I think the court was reluctant to impose that level of liability until
social attitudes change."
However, "the court has clearly warned that the law is moving towards imposing duties on homeowners who hold parties and the
court has clearly said that where you know that a person is about to drive while impaired, there is a duty to do something," Stevens said.
"I don't think
that MADD has ever proposed that people act as human breathalyzer machines," he added. "How far you have to go, I think, will be left open to debate in
future cases."
