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Commercial hosts serving alcohol owe a duty of care to patrons.
Murphy Battista
October 24, 2017

Commercial hosts serving alcohol owe a duty of care to patrons.

Commercial Host Liability

This past March, Mr. Justice Kent of the Supreme Court of British Columbia set a new precedent in Widdowson v. Rockwell, 2017 BCSC 385, a summary trial of a commercial host liability claim.

Murphy Battista LLP’s Paul Bosco and Joe Battista, Q.C. represented the plaintiff, Stuart Widdowson who was walking home from work in Port Moody around 5 pm when he was hit by a truck driven by Rockwell. Rockwell had been drinking at the Cambie Bar and Grill in downtown Vancouver with his coworkers that afternoon. Mr. Widdowson was left with brain damage.

Rockwell was found liable. But the court also reviewed the accountability of a commercial establishment when serving alcohol to patrons and, on the facts, found the owner and operator of The Cambie 25% at fault for Mr. Widdowson’s injuries.

Read CBC coverage.

Why is the case important?

The case addresses the question of who is liable if an intoxicated patron of a commercial establishment (like a bar or pub) subsequently injures an innocent third party. The case also addresses whether the arrival home of an intoxicated patron puts an end to a commercial host’s duty of care. The result illustrates a departure from the previous state of the law on commercial host liability.

The case stands for the proposition that commercial enterprises serving alcohol to patrons have a duty of care to patrons not to over serve. If they do over serve, then that duty of care requires that they take steps to ensure that the intoxicated patron does not come to harm or harm others with whom they may reasonably come into contact. If they do not take those steps, then they may be assigned some liability for injuries to a member of the public.

The facts

On February 17th, 2012, the plaintiff Mr. Widdowson was walking home from work at 5:00 pm. He was on the sidewalk when the defendant Rockwell, lost control of the truck he was driving and struck Widdowson. Mr. Widdowson suffered severe injuries including a traumatic brain injury. At the time of the accident, Rockwell had a blood alcohol level approximately four times the legal limit and was described as “falling-down drunk.”

A few hours before the accident, Rockwell and some coworkers met at The Cambie Bar and Grill in Vancouver (“The Cambie”) and proceeded to consume a significant amount of alcohol. Rockwell left The Cambie with a co-worker and drove to his company truck home. On the way, Rockwell stopped and purchased a six-pack of beer and a mickey of whiskey, which he consumed at his home before getting back in the company truck and attempting to drive his co-worker home.

On the way to his coworker’s home, Rockwell lost control of the truck while ‘gunning’ a turn. The truck fishtailed and struck Mr. Widdowson who was on the sidewalk. Rockwell was arrested at the scene and pled guilty to dangerous operation of a motor vehicle. He was sentenced to nine months in jail for that offence.

The court found Rockwell 75% liable for Mr. Widdowson’s injuries. But it also found The Cambie at fault, holding the owner/operator (Cambie Malone’s Corporation) 25% responsible for Mr. Widdowson’s injuries on the basis that it failed in its duty of care, specifically, the duty not to over-serve its patrons. Further, the Cambie did not take steps to make sure Mr. Rockwell did not leave the bar

The issues

There was no question that Rockwell was driving while intoxicated, and while contributory negligence on the part of Mr. Widdowson was initially alleged, the court ruled that facts showed this was not the case. Mr. Widdowson was a true innocent third party: in the wrong place, at the wrong time.

Therefore, the only liability issue in dispute was whether the pub had any legal responsibility for Widdowson’s injuries and, if so, how fault for the accident should be allocated as between Rockwell and the pub.

The case came down to the sequence of events leading up to the collision, and whether the Cambie Bar and Grill was liable for some of the accident for serving Rockwell to the point of intoxication.

Both the current BC Liquor Control and Licensing Act and the Liquor Control and Licensing Act do not definitively state that liability falls on the commercial host (in this case, the Cambie Bar and Grill) although they do prohibit serving intoxicated patrons.

Since Rockwell stopped at home and consumed more alcohol after leaving the Cambie Bar and Grill, the defendant pub argued that its duty of care ended when Rockwell arrived at his own home safely.

The result – commercial host liability

This decision is precedent setting in BC because rejects the defence that safe arrival home by an intoxicated patron brings an automatic end to commercial host liability. Instead, the court took a common sense approach stating that:

[81] there is little logic to the bald proposition that a safe arrival home “breaks the chain of causation” or otherwise discharges the pub’s duty of care.  Ought it really matter whether the pub-induced intoxication triggers a fall while walking home as opposed to a fall once the drunken patron has successfully crossed the threshold into his house?  Does it make any sense that liability can be imposed for alcohol-caused injury to third parties before arrival at home but not if the same injury occurs after leaving the home a few minutes later?

The court held that it was important whether the facts showed that the Defendant’s conduct caused “or contributed to” the plaintiff’s injury. The court confirmed the causation is a practical question of fact best be answered by ordinary common sense.

The key findings

The judge noted:

[82]        ….. it is not necessary for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury … as long as it is part of the cause of an injury, the defendant is liable: Athey at para. 17

[83]        In the present case it would be artificial in the extreme to say that Rockwell’s intoxication, which was caused at least in part by the excessive consumption of alcohol at the pub, was not a cause of the subsequent accident simply because he spent a few minutes at home before again venturing onto the road.  I have found as a fact that the pub’s breach of duty led to Rockwell being substantially impaired when he first left the pub and got into his vehicle.  That intoxication still existed at the time of the accident, albeit increased by subsequent alcohol consumption, and hence it was clearly part of the cause of the accident and of the resulting injuries sustained by the plaintiff.  Applying the causation principles referred to above, that is sufficient to found liability on the part of the pub in this case.

The standard of care expected of a commercial host

Further, the court reviewed the standard of care expected of a commercial host, noting that:

[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.

On the facts of this case, the court found that:

[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”.

On this basis, the court concluded that the pub’s employees and therefore the pub’s owner did not meet the required standard of care and, therefore, their conduct was negligent.

Bottom line

Commercial hosts (bars, pubs, restaurants) that serve alcohol owe a duty of care to their patrons not to over serve. If they fail in that duty they may well be held liable for ensuing injuries to the patron and/or innocent third parties depending on the facts.

The decision qualifies earlier cases that held that a commercial host’s duty of care was fulfilled by ensuring a drunk patron got home safely. The facts will always be crucial in these cases. The decision’s list of general standards of conduct for commercial hosts to follow is useful. But it is still unclear what efforts must be made and what events must occur before a commercial host’s liability, for the actions of drunk patrons that cause injuries, ends.

 

 

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Car stolen from dealership involved in three collisions causing injuries – dealership 15% liable; plaintiff not contributorily negligent
Murphy Battista
September 19, 2017

Car stolen from dealership involved in three collisions causing injuries – dealership 15% liable; plaintiff not contributorily negligent

Stolen car causes accidents

In the recent and highly unusual case of Provost v. Bolton, 2017 BCSC 1608, Murphy Battista’s Alex Sayn-Wittgenstein and Paul Bosco represented the plaintiff, Richmond RCMP Corporal Quinn Provost, for injuries sustained when a stolen vehicle hit his cruiser during a high-speed chase.

Why the case is important

This case illustrates that commercial enterprises may well have a duty of care to the public and can be assigned some liability for injuries (fault) where their failure to adhere to the required standard of care results in injuries to a member of the public. Although the facts of this case were unique, the law was previously unsettled.

The facts

The defendant, Mr. Bolton, stole a truck from Dueck Downtown Chevrolet Buick GMC dealership that had been left on the lot with the keys in the ignition, engine running, and doors unlocked. Bolton was then involved in a chase with the RCMP that resulted in three separate collisions.

Mr. Bolton did not have valid car insurance, which may have required the Plaintiff to advance an UMP (underinsured motorist protection). UMP claims are a “last resort” when there are no other resources available, and significant deductions need to be applied, sometimes leading to plaintiffs not being properly compensated.

Cpl. Provost was not directly involved in the pursuit, but he was injured while attempting to assist in the arrest when Mr. Bolton struck his unmarked car head-on. Cpl. Provost suffered a fractured neck, a fractured tibial plateau requiring surgery, and an injury to his hand.

On Cpl. Provost’s behalf, Alex and Paul argued that the employee who left the vehicle was negligent, and the dealership was vicariously liable on his behalf as his employer.

The issues

A key issue in this case was whether the dealership owed the public a duty of car, or whether this was too remote.

Alex and Paul argued the dealership had a responsibility to consider safety measures to prevent thieves from stealing cars and putting other drivers in potentially dangerous situations as this was a reasonably foreseeable consequence of their actions.

ICBC, on behalf of the dealership, claimed it owed no duty of care to any of the injured plaintiffs, as this incident was too remote.

ICBC further argued Cpl. Provost was partially responsible for his own injuries for having removed his seatbelt just prior to the collision in anticipation of pursuing Mr. Bolton on foot.

Alex and Paul argued it was entirely reasonable for Cpl. Provost to have removed his seatbelt in the circumstances.

The result – commercial enterprise liability

This benchmark judgment from Mr. Justice Kelleher found the accused car thief, Mr. Bolton 85% at fault for this accident, but also held that the car dealership was 15% at fault. Justice Keller noted that it was reasonably foreseeable that the truck could be stolen given the circumstances. The truck was left running and unattended in an insecure location open to the public and the dealership was located in a high crime area of Vancouver.

The Court further held it was reasonable for Corporal Provost to have removed his seatbelt in the circumstances, and did not find him at all contributorily negligent.

The damages portion of the trial is set to continue in November.

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Distracted driving kills. It's #Notworthit. Join the Campaign.
April 5, 2017

Distracted driving kills. It’s #Notworthit. Join the Campaign.

As personal injury lawyers we are reminded on a daily basis that distracted driving is a huge problem in our wired world and one that is costing lives.

Distracted driving: the statistics and the neuroscience

Distracted driving is now responsible for more motor vehicle deaths than drunk driving. The neuroscience shows that drivers are distracted not just for the number of seconds that their eyes are actually off the road and looking at their phones, but that it takes several seconds after their eyes are back on the road before their minds are processing what they’re doing. While distracted driving is responsible for countless serious crashes and devastating injuries every year, it is also driving up everybody’s insurance costs through the everyday fender-benders caused by people thinking it’s okay to check their phones while driving in traffic.

The human cost of this epidemic extends far beyond the people directly injured (or killed) in accidents caused by distracted drivers. It extends to their families, friends, and communities.

Friend don’t let friends drive distracted.

In a bid to try to curb the continued rise of injuries and fatalities due to distracted driving, The Trial Lawyers Association of British Columbia has teamed up with a number of partners to create the BC Coalition to End Distracted Driving. You can learn more about the Coalition and the campaign by clicking HERE.

When society finally decided it was not “okay” to drink and drive, and there was a significant social stigma attached to it (coupled with harsher penalties), drunk driving rates and fatalities went way down. We hope that this will eventually be the case with distracted driving. This will only happen if each of us commits to leaving the phone alone while we are driving and take steps to make sure our families, friends and loved ones do the same. It’s really not worth it.

What you can do right now

Visit the website www.distracteddrivingkills.ca and share the content to your networks.

We are hoping that everybody will go to their website and have a look. Please sign up for their email list and like it on Facebook. The wider the message can be spread, the better.

 

 

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ICBC Part 7 benefits Q+A video
Murphy Battista
March 10, 2017

ICBC Part 7 benefits Q+A video

If you’ve been injured in a car accident (or any motor vehicle accident) in BC you may have heard people talk about ICBC Part 7 (no-fault) benefits. Sometimes they are called ICBC no-fault benefits, ICBC accident benefits and sometimes just “Part 7 benefits.”

What they are, and how they work

Start by having a look at this great Q+A video put together by the talented folks at Spinal Cord Injury BC. Kristina Shelden, one of our dedicated Resources Coordinators at the Personal Injury Resource Centre, interviews Murphy Battista partner Scott Stanley about the basics every injured person should know when it comes to ICBC Part 7 benefits.

You can find further information on ICBC Part 7 benefits in Murphy Battista lawyer Kevin Gourlay’s presentation for the PIRC Seminar Series HERE.  For more detail information you can download our Laymen’s Guide to ICBC Part 7 Benefits or you are always welcome to contact any one of our three offices to speak to one of our lawyers.

If you enjoyed this video and found it useful you might want to check out the other videos on SCI BC’s Youtube Channel.

 

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Disclaimer

Information provided in our blog posts is not intended to be legal advice.

The outcome of every legal proceeding will vary according to the facts and unique circumstances in each individual case. References to successful case results where the lawyers at Murphy Battista LLP have acted for clients are not necessarily a guarantee or indicative of future results.