In Wardak v. Froom (2017), the defendants sought a summary judgement to dismiss a social liability claim against them, that arose after a young man was injured in a car accident after leaving a party at their home. The defendants, Mr. and Mrs. Froom, argued that the claim is bound to fail, both as a matter of law and on the facts. However, the plaintiffs submitted that the action is not defeated by law and complications in the facts of the case preclude making a just and fair decision by summary judgement.
The events, which gave rise to the current claim, began when the defendants threw a party at their home for their son’s 19th birthday. Although the defendants did not serve alcohol, they knew that alcohol was present and being consumed, as the party was a “bring your own booze” event. The guests attending the party congregated in the homeowners’ basement while Mr. and Mrs. Froom spent most of the evening on the main floor, but they saw the young people when they came upstairs to use the bathroom, and also when they went downstairs to check on their guests, allegedly a total of 8 times. The defendants were aware that some of the guests were under the legal drinking legal age, one of whom was the injured plaintiff, Dean Wardak.
Some of the key events of the evening in question were undisputed, namely that the plaintiff was a guest at the party, had been drinking and later left the party on foot; he subsequently got into his car at his home, drove off and was involved in a single car collision. However, there were a number of discrepancies in the reporting of several events and circumstances, some of which may have contributed to the plaintiff’s injuries.
There was evidence that the plaintiff brought vodka and also drank beer, but there were marked inconsistencies in witness accounts regarding the extent to which the plaintiff showed signs of being intoxicated. All party guests agreed that the plaintiff had been drinking, but some witnesses claimed he seemed fine and coherent, while others stated he was the most intoxicated of all the guests and clearly appeared intoxicated.
Another discrepancy was in Mr. Froom’s statement regarding the events that occurred and those of other witnesses, particularly his own daughter. Mr. Froom claimed that around 11 p.m., slightly before the plaintiff left the party, the plaintiff came upstairs and Mr. Froom thought he was acting odd and appeared somewhat unsteady on his feet. Mr. Froom alleged that he consequently asked his daughter and her boyfriend to keep an eye on the plaintiff. However, the defendant’s daughter did not mention this request, either in her statement to the police or her sworn affidavit for the current motion.
The defendant further testified that the plaintiff came upstairs a second time, at which point Mr. Froom offered to walk him home, but the plaintiff allegedly growled at him and stomped away. The defendant stated that he was concerned that the plaintiff might do something dangerous but Mr. Froom became distracted by another guest, so he once again gestured to his daughter and her boyfriend to keep an eye on the plaintiff. This account was also not supported (or denied) by his daughter’s statements or affidavit.
Mr. Froom stated that when he later noticed the plaintiff had left the party, both he and his son went to look for the plaintiff on foot, eventually arriving at his home. When they saw that the plaintiff’s car was not in the driveway, they alerted the plaintiff’s father who then joined the search for the plaintiff.
The defendant’s daughter testified that she saw the plaintiff leave and he appeared “completely zoned out” and appeared as if he was going to be sick. Because she and her boyfriend were leaving at roughly the same time, they decided to look for the plaintiff by driving with their high beams on. When they reached his house, they noticed his car in the driveway with the brake lights on. They tried to speak with the plaintiff as he reversed out of the driveway, but he drove away. She further stated that he appeared visibly intoxicated so she called 911; she wanted to follow the plaintiff but didn’t see where he went.
The plaintiff had not driven very far from his home when his car drove over a fire hydrant and struck a tree. He was taken to hospital and determined to have a blood alcohol concentration of more than three times the legal limit. As a result of the injuries he suffered in the accident, the plaintiff has quadriplegia and cognitive difficulties.
Analysis and Conclusions
The two issues to be decided in this case was whether or not the established law precludes finding a duty of care and whether the defendants met the applicable standard of care. The defendants argued, if either of these questions is answered in the affirmative, then the summary judgement motion should be granted.
The defendants relied on two social host liability rulings, Childs v. Desormeaux and Stevenson v. Clearview Riverside Resort, and argued that they owed no duty of care to the plaintiff because they did not serve alcohol at the event. The judge disagreed with the defendants’ application of these rulings.
Childs is the first case in Canada in which the Supreme Court considered the legal liability of social hosts. The central issue in Childs was whether social hosts owed a legal duty of care to third parties who may be injured by an intoxicated guest. The Court held that the hosts did not owe a duty of care to someone who attended a party with an invited guest. However, the circumstances in the current case are different, as the plaintiff had been invited and was thus, not a third-party guest.
In Childs, the Supreme Court found that there are three circumstances that could lead to a duty to act, including a “paternalistic relationship of supervision and control”. Specifically, whether there is a duty of care depends on the defendant’s objective implication in the creation of risk or their control of a risk to invited guests. The plaintiffs asserted that this case falls within the contemplated paternalistic duty because the plaintiff was legally not permitted to drink, as opposed to the circumstances in Childs which did not involve under-age drinking.
Further, because the plaintiff was a guest, he had a closer relationship with the host than would a third party, with respect to forseeability and proximity. The judge agreed with the plaintiffs and concluded that the ruling in Childs does not preclude a finding of duty of care where there is a paternalistic relationship or where the injured person was a guest.
Regarding the second case referenced by the defendants, the judge noted that Stevenson relied heavily on the laws pertaining to commercial host liability and was therefore of little relevance to the current case. The judge concluded that neither case, Childs or Stevenson, precluded a finding of duty of care in this case.
On the second issue, the defendants asserted that even if they did owe a duty of care to the plaintiff, they met that standard on the following grounds: 1) they did not serve the plaintiff alcohol or encourage him to drink; 2) they did not witness the plaintiff consuming alcohol; 3) they did not see the plaintiff act in a suspicious manner prior to his two attempts to leave the party; and 4) when they did suspect something was wrong, they did everything they could to get him home safely, such as, twice offering to walk him home, asking his daughter to keep an eye on the plaintiff, and following him home and attempting to prevent him from driving.
The judge challenged all of the defendants’ arguments on how they met their duty of care. While the defendants did not serve alcohol or encourage the plaintiff to drink, they knew there would be drinking at the party and that some of the guests were under-age. Further, there were some discrepancies in witness accounts of the plaintiff’s behavior in the basement where the party was taking place; some of the guests said he appeared very drunk but Mr. Froom claimed he was coherent and sober. Also, the hosts did not attempt to stop the plaintiff from drinking when he came upstairs the first time, although Mr. Froom admitted he saw the plaintiff `wobbling` and acting odd. The judge noted the fact that in her statements, the defendants’ daughter did not mention that her father asked her and her boyfriend to keep an eye on the plaintiff on the two occasions he mentioned. The judge also acknowledged the plaintiff’s father’s assertion that, when the plaintiff refused to be accompanied on his walk home and appeared to be ‘up to something’, Mr. Froom should have called the plaintiff’s father who was home at the time.
After considering the inconsistencies in the witness accounts and weaknesses in the defendants’ evidence, the judge ruled to dismiss the summary judgement motion. Referencing Hyrniak v. Mauldin, which set the legal standard for a motion for summary judgement, the judge found there was a genuine issue requiring a trial based on all the evidence, and it would not be fair to either party to evaluate or make inferences and a judgement based on the evidence before him.
Although the duty of care for social hosts is not held to as high a standard as the duty of commercial hosts, social hosts do owe a duty of care to their guests and may be held liable if their actions or inaction resulted in injury to a guest. However, there are a number of circumstances that impact a determination of liability, notably, when a host over-serves alcohol to a guest who is subsequently injured.
If you or a family member were hurt while a guest at a social event, call Rastin & Associates to discuss the facts of your case and find out about your legal rights in the matter.
You can call us at 844-RASTIN1 or email Rastinlaw.com