Determining Social Host Liability
Social host liability is a situation in which, as a result of a social host's actions or inaction, damage or loss was sustained by another party. Typically, lawsuits regarding social host liability have involved those hosting a social gathering which got out of hand.
In particular, cases have centered on what duty social hosts owe to their guests who have become overly intoxicated and subsequently caused damage.
The Supreme Court of Canada decision, Childs v. Desormeaux, is the leading case with respect to social host liability. The post-Childs jurisprudence on the topic, however, demonstrates no clear formula for determining whether or not a duty of care is owed by social hosts to guests or third parties. Instead, this duty tends to hinge on fact-specific determinations pertaining to two main issues: (1) the host’s knowledge of a guest’s intoxication and/or future plans to engage in the potentially dangerous activity; and (2) whether “something more” is present in the facts of the case which creates a positive duty upon the social host to act.
A Duty of Care analysis regarding an allegation that a social host failed to act consists of three main elements:
A. Was the damage reasonably foreseeable by the social host?
B. Was there sufficient proximity between the damage and the social host such that there was a duty to act?
C. Was the duty, if any, negated by policy considerations?
The foreseeability case law relating to social host liability has focused upon the host’s knowledge as to the relevant guest’s level of intoxication and whether it was reasonably foreseeable that they would engage in certain acts and behaviors that led to an accident. Childs notes that it would have to be demonstrated that “an overt act of the defendant has directly caused foreseeable physical harm to the plaintiff.” A failure to act may not alone establish a DOC. In Wardak v Froom, Justice Matheson considered several factors which may inform social hosts of their obligations to guests: knowingly providing alcohol to minors; monitoring and supervising the party, and evidence of intoxication.
While proximity is relatively easy to establish between a social host and a guest, it is more complicated when trying to connect a social host to a third party. In Childs, the Court left open the possibility of establishing a DOC in certain circumstances where a guest has injured a third party. Much of the post-Childs jurisprudence has focused on examining whether “something more” is present to suggest a positive DOC existed.
Hosting a party, “without more,” does not suggest the creation of a risk of the level required to impose a duty of care on social hosts to members of the public. The ‘something more’ from Childs consists of the fact that alcohol was served to underage teenagers. This situation may establish a duty “in the creation of risk or his or her control of a risk to which others have been invited.” Notably, the Supreme Court’s decision in Childs did not preclude a finding of a DOC where there is a paternalistic relationship. The establishment of a paternalistic relationship of supervision and control can bring legal strangers into proximity.
A paternalistic relationship can be found in situations where a social host is hosting underage minors, particularly when alcohol is involved. As noted in Lelarge v. Blakney, the DOC under a paternalistic relationship “varies with the age of the child” and the degree of supervision and control required diminishes as a child reaches the age of majority. With this said, even if a paternalistic relationship is established, it is not guaranteed that a DOC would follow, as the damages would have to have been reasonably foreseeable as a result of the social host’s conduct.
The difficulty with determining social host liability is that there is limited valuable precedent. In several instances, lower courts appear to be reluctant to dismiss social host cases on summary judgment where there is a valid argument that the case may fall into an exceptional category. This is particularly true in cases that involve underage drinking. These cases are often interpreted as possibly falling into the “paternalistic relationship” exception.
A positive DOC may be held to exist in paternalistic relationships of supervision and control. This duty rests on the special vulnerability of the plaintiffs and the “formal position of power of the defendants.” There are, however, an equal number of cases in which motions for summary judgment have been successful in asserting that no DOC exists, even when the case involves underage drinkers. Although none of these cases resulted in a verdict, and many declined to grant a summary judgement, they provide insight into the judicial process required in examining such a liability.
A claimant could ask the Court to recognize a new DOC - one between adult private social hosts and a member of the public injured by their minor guests who consumed alcohol. The COVID-19 pandemic has resulted in many establishments having to close, which has pushed social drinking into private residences. This may give rise to facts that require the imposition of a DOC. Typically, however, courts have proved unwilling to extend social host liability beyond that presently envisioned by the law. The Liquor License Act already criminalizes the serving of alcohol to minors. As a result, it has been argued that social hosts can only do so much, particularly when individuals are arguably responsible for their own voluntary conduct.