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The Huron Expositor, 1989-06-28, Page 5Variety of factors contribute to responsibility BY MONA 1RW1N As a party -giver, you may be held responsible for injuries resulting from an intoxicated guest attempting to drive home. But don't rip up the invitations - or throw out the alcohol. The operative words are "reasonable care," said Peter Mercer, dean -elect of the Law Faculty of the University of Western Ontario. Mercer was in Goderich Friday speaking to about 60 people at The Livery about "Social Host Liabllity - Current Law and Public Policy." "I may have left you with the impres- sion that if anything happens, you pay," Mercer said at the end of the seminar. "I hope not. "The courts aren't saying that the provider of alcohol has to guarantee the safety of the guests or any third parties - they're just saying that a host has to make a reasonable attempt to prevent injuries." A business, such as a restaurant or a bar, doesn't have the responsibility to "drive a guest home and tuck him into bed," said Mercer.. "But in social cases it's a bit dif- ferent. Presumably the person is so- meone you know, so perhaps you do have a somewhat higher duty to let them crash at your place or take them home." Or call a cab. If you manage to get your guest into a cab, "you can't be sure the person will stay in the cab," said Mercer. As someone who once drove a cab himself, Mercer said cabbies picking up very drunk people have to consider three things. First, you're not sure the guy has any money," he said. Often the person who pours the guest into the cab isn't in much better shape, and doesn't think of paying the driver either, he added. "Second, you're not sure whether he'll be quiet or whether he'll get violent. And third, you're wondering whether those gurgling sounds from the back seat mean that he's going to be very sick very soon." Frequently the passenger asks to be let out, saying "I'll walk home frof here," said Mercer. In a case like that, it's likely that the inebriated guest is on his own. "The server did what he could - he got the guy a cab. And a cabdriver can't force a passenger to stay in the cab if he wants to get out," Mercer said. If the person refuses all offers - a bed, a cab, a ride - and especially if he shows algns of becoming threatening or violent, you may be left with only one choice. Tell them 'if you get in that car, I'm calling the police,"' said Mercer. "And if they get in the car, call the police. "Most of the time the police will tell you they'd rather get the call in ad- vance than an hour later, when they have to scrape the person off a county road or unwrap them from around a telephone pole." The recent trend toward apportioning blame isn't intended to outlaw drinking, Mercer said, just drinking and driving. During a question -and -answer -session following the seminar, Mercer apologiz- ed for often being unable to give a flat "yes" or "no" to questions on liability. "I don't want to sound mealy- mouthed, but it's so dependent on the circumstances," he said. He mentioned on case in which a family gave a graduation party for their son's high- school graduation. They expected 20-30 young people and several older couples. However, some 200 people from a nearby "beach party" crashed the fami- ly's party. Many of the people from the beach were familiar to the 'family, and virtually all were allowed M. Drinking went on all night; at about 3 a.m., the • RCMP stopped by to tell the party- goers to turn the stereo off. They returned about three hours later to order the family to "shut it (the party) down," said Mercer. Then the RCMP left - as they later explained, to allow the guests to go home. Imagine a police policy that says we know there are people here who have been drinking all night," said Mercer. "We know they're driving because there are cars parked up and down the road. But we're going to leave so they can all go home." One of the guests left in a pickup truck, with three people in the cab and four fn the box. A sharp turn catapulted most of the people out of the box onto the road. One suffered very severe head injuries. "His vocabulary was reduced to about 30 words, his field of vision was reduc- ed by about two-thirds, his speech was slurred and he 'became increasingly violent," Mercer said. The injured boy's parents attempted to sue the driver's insurance company - the driver himself had very few assets - and the insurance company promptly named the family that had given the party as having partial responsibility for the accident, which is quite legal, Mercer said. However, the court found the family not liable for several reasons: the 200 youths were not invited to the party; they made a group that was very hard to control; it was a very small, tight- knit community in which the family would have had a hard time turning away people who were, if not friends, at least acquaintances of many of the in- vited guests - and the police had been there twice, and had done virtually nothing to prevent anyone from driving. CAUSE AND EFFECT People are also not likely to be held responsible in cases where they know someone is using alcohol or drugs, but they have no control over the user. "I get this question from teachers: `I know so-and-so is corning to school ston- ed - what if he goes out at lunch and gets hurt or hurts somebody else?"' Mercer said. "Your duty only extends so far. There has to be a connection between you and ' the person's condition: you gave them the drugs or the alcohol." Courts are reluctant to go any further "so people don't get sidelined during the day by circumstances over which they have no control," said Mercer. "We've got to find ways to make peo- ple responsible other than by just nail- ing the first authority figure around." ®®Reasonable care" is mai point of policy BY MONA mwIN It's been barely a decade since com- mercial hosts - bars, restaurants and so on - began to get the message: if a patron drinks too much, tries to drive glome and gets into an accident, the com- mercial host may be held partly responsible. And within another decade or two, social hosts - private individuals - will almost certainly share the same respon- sibility, says a London law professor. "There's no clear indications in Cana- dian law yet that. (a private host) will be treated the same way as a commercial host," said Peter Mercer in an interview during a break in the seminar, However, current trends indicate that "the com- mercial element is becoming less impor- tant. What's becoming more important is the ability of the provider of alcohol to prevent someone who's intoxicated from going out and causing injuries." Mercer, dean -elect of the Law Faculty of the University of Western Ontario, spoke at The Livery Friday about "Social Host Liability - Current Law and Public Policy." About 60 people attended the meeting. The seminar was sponsored by the Huron Addication Assessment and Refer- ral Centre's Countermeasures '89 Com- mittee. Mercer, a specialist in alcohol - and drug-related law, is also a consultant to the Addiction Research Foundation, School for Addiction Studies. Lacing the talk with humor, relevant court cases and a few personal anec- dotes, Mercer traced the development of the decision that commercial establishments that serve alcohol should share responsibility for their customers' inebriation - and the gradual extension of that decision to include social hosts: in- dividuals, companies, groups and even municipalities. Although "every case in which social awarded. THE HURON EXPOSITOR, JUNE 28, 1989 — SA McLaughlin Chev-Olds Ltd. 13 Main St. Seaforth 527-1140 • Service • Selection • Savings • Satisfaction • Leasing • Complete BODY SHOP Service TOWNSEND FARM SUPPLY - WALT©N - 887-9044 Purina Livestock Chows 8, Supplies Health Products & Pet Foods SUPPLY IS DWINDLING ELE.CT.ROHOME Air Conditioning WINDOW UNITS (5 Year Warranty) StPikes9 $499. ertin Hurry ... While Supplies Last ALL REG .a26.95 Jammers 1995 VERBERNE APPLIANCE AND REFRIGERATION "Where Sales and Service Go Hand in Hand" 345-2262 ALL 'Ammer Yarns %TO ��OFF ALL REG. 111.95 Beach Bags 9• Valuers - 95 37 Main St. S., Seaforth Anne James, Proprietor 527-1830 NOBEL SANITATION GARBAGE PICK-UP Seaforth & Tuckersmith Part of the reason for that was because meet has the right to refuse to continue 20 years ago it was harder to prove just to serve a patron, to physically restrain how intoxicated a person was - there an intoxicated customer, or to call the weren't really any standards to go by. police. "Now we have a recognized level of in- In fact, under the Liquor Licence Act, toxication in the Criminal Code: .08 (per licenced establishments are not allowed cent)," Mercer said, adding that a per- to serve someone who is or appears to be son can qualify as "impaired" with as lit- already intoxicated, nor are they allow- tle as .01 per cent. ed to serve' a patron drink after drink "to He said statistics indicate that the the point of intoxication," Mercer said. average blood alcohol count of Londoners OCCUPIERS LIABILITY charged with impaired driving or driving The -extension eifbr responsibility over -80 (more than .08 per cent) .is +x.7475 to ,private..homeoiviters ,hasn't been - more than twice the legal limit. greeted with a lot of enthusiasm. "Do you know how many drinks the "We've been very reluctant to find average man has to have to get to that social hosts liable," said Mercer. "Why? point?" he asked. "Nine point two in the It doesn't make any difference to an in - previous three hours." He also said that jured third party where an intoxicated 49 per cent of those drivers had been person got the alcohol." drinking in commercial establishments. He added that he's always surprised by "We've heard the argument for years the number of people who are fanatic that you should have no more than one anti -smokers but still condone excessive drink per hour,to avoid being impaired," drinking: "Their attitude is: 'nobody said Mercer. "These statistics indicate smokes in my house - not even on my that some commercial establishments are front door - not within 50 yards of my serving patrons at a rate of more than house! But come on in and drink your one drink every 20 minutes." brains out."' INCREASED COSTS It's changing, but slowly, he said. Public attitudes toward drinking and However, there's a provincial act that driving have undergone a "remarkable may help close the gap between a com- change," said Mercer, mercial host's responsibility and a social It's no longer acceptable to take the host's. restrained attitude towards drinking and It's the Ontario Occupier's Liability Act driving that we did in the past," he said. (1980), which says an occupier must take "I think it's because of a general public "reasonable care" to ensure the safety of awareness of how much drinking and those in the premises. driving costs" in terms of loss of life, ir- And an occupier is any person "with reparable injuries, and personal grief and the care and control of the premises, and suffering. the power to admit or exclude others," Another cost is the straight financial said Mercer. cost of seeing a drunk driving case That means it could be a service club, through the courts. a municipality It could cost up to $250,000 to bring a p Y - or a homeowner. case right through to the Supreme But whether it's a group or ani e - g g dividual, the occupier must ensure three Court," said Mercer. And that doesn't things: the condition of the premises, the conduct of the people, on the premises and the activities of the people on the necessarily include the damages host liability has been extended has been "This year in Canada there will be premises decided in the last decade," a variety of 500.600 cases in which the liability is For example, Mercer cited a case that factors have influenced the trend, he greater than $1 million," he said. Most took place in 1981. A 56 -year-old man who said. drivers carry a maximum of$1 One factor is a shift in public opinion, liability on their insurance. milli011 spent the day drinking at the Pacific Na - he said. tional Exhibition fell over a railing on a That's another factor in the trend staircase, sustaining serious injuries. He "The law evolves according to the toward "portioning out" responsibility, at sued, claiming the railing was too low. court's perception social regah�g)ty," d leaMercer. Most drivers' insurance policies "Hs blood alcohol level was 203, which Mercer. "Now (they're recognizing) ercial establishments, said drinking and driving is a problem that "won't come anywhere. near covering the thing that sts h caused himg wasn't the to fall on othe hasn't been effectively dealt with. damages. So the injured parties will stairs," said Mercer dryly. "People used to think if you drink and reach into another pocket - the insurance drive, and you get caught, well, it's no company of the establishment that serv- ' However, the man won his case, big deal," he said, adding that even the ed the liquor." because regulations indicated that the And it's to railing, which should have been about 42 ing police nddrivingk a r especially at hole lenient view of idays s the driver'spsharer of the ostia from the inches high, was only 36 inches high. The like Christmas. driver. court found the PNE and the City of Twenty years ago a hasrould have ex- empted himself from any responsibility by saying that a guest who left and was caught driving ,impaired had "looked OK to me" when the guest left. The hospitality industry says this trend transfers too much responsibility to the server and leaves too little with the drinker, Mercer said. "I say no, it doesn't." Any establish - Vancouver liable, saying that if they were going to serve alcohol they "should at least adhere to the minimum stan- dards about things like stair railings," Mercer said. The ruling could also easi- ly apply to private homes, he added. ELECTRIC LTD. l(lrkton 229:13222 !Industrial ®Farm !Residential :Palo Lino•Constructian 80sucket ;truck S.ndee •.Hyrdro,Pol.s •S 1e5tric„M®,tor,Repalrs !Rewinding •$ples,end Service 52.00 Curbside in town every 7 days 90. 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