Publican

JOINT VENTURE DRINKING
WHO’S AT FAULT?
by Lorne Folick and Michael Bellomo, Dolden Wallace Folick LLP
All commercial alcohol providers have a legal duty
to protect their patrons who become intoxicated
on their premises and cannot care for themselves
as a result. This includes ensuring that intoxicated
patrons have a safe ride home. It is becoming
increasingly common in commercial host lawsuits
to encounter situations where two patrons drink to
excess in the same licensed establishment and then
leave together in the same vehicle. Tragedy often
results and the injured passenger sues both the
driver and the commercial host for damages. In such
cases, passengers are often found to have been, at
least partially, the authors of their own misfortune,
having over-imbibed with the other patron before
deciding to accept the ride. However, the question
of who is at fault in such circumstances is becoming
increasingly complicated. In fact, recent court
decisions have increased commercial hosts’ liability
exposure by “transferring” back to the host some of
the intoxicated passenger’s fault arising from the
choice to ride with a drunk driver.
The Ontario Court of Appeal case of McLean v.
Knox illustrates the point. This case reinforces the
principle that the driver, passenger, and commercial
host may all share liability for the passenger’s
injuries. In that case, the Court emphasized
that determining who is at fault in this situation
involves not only considering the commercial host’s
liability for over-serving the driver, but also the
host’s responsibility for over-serving the plaintiff
passenger, thereby compromising the plaintiff’s
ability to think rationally.
McLean v. Knox, 2013 ONCA 357 (C.A.)
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The facts in McLean are simple. The plaintiff
McLean and the defendant Knox were drinking
together at Finnigan’s Road House. Both McLean
and Knox were, “seriously intoxicated”, according
to the Court, when they and two others drove
away in Knox’s vehicle, with Knox at the wheel.
Tragically, Knox lost control of the vehicle, and
McLean sustained significant injuries. McLean
sued Knox and Finnigan’s, alleging that they were
both liable for his injuries. At trial, the jury was
asked to determine the amount of damages, and
to apportion liability between McLean, Knox, and
Finnigan’s.
The jury concluded that McLean was 15% liable for
his injuries, Finnigan’s was 1% liable, and Knox was
84% liable. Not surprisingly, the plaintiff appealed
this apportionment of liability, arguing that the
jury erred in apportioning only 1% liability against
Finnigan’s.
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The Ontario Court of Appeal agreed that the jury
first should have been instructed to assign liability
for the accident between only Knox (as driver)
and Finnigan’s (for “over-serving” Knox). The next
step should have been, according to the Court of
Appeal, to assess liability for the plaintiff’s damages
between Knox, Finnigan’s, and McLean. The Court
of Appeal concluded it was open to the jury to find
Finnigan’s partly liable for any part of the plaintiff’s
own contributing negligence.
The Court of Appeal commented that, “the degree
of the commercial host’s responsibility for allowing
the driver to become impaired, as a matter of
logic, will normally be similar to the degree of the
commercial host’s responsibility for allowing the
passenger to become impaired.”
Rather than order a new trial, the Court in McLean
ordered the parties to decide the apportionment
of liability amongst themselves.
What the McLean case shows is that a plaintiff
passenger may be able to “set off” and reduce some
of his or her own fault where the commercial host
has “overserved” both driver and passenger.
The McLean case emphasizes how commercial
liquor providers increasingly face the prospect
of civil liability as a result of the actions of their
intoxicated patrons. In this context, it is essential
that commercial liquor providers take care to
monitor their patrons’ consumption. They can
protect themselves by creating and implementing
clear and effective policies and procedures for
serving alcohol; having effective management
supervision; constant training of employees
and managers on policies and procedures and
industry standards; and preserving evidence of
any incidents.
Lorne Folick is a senior partner at Dolden Wallace Folick LLP and has a practice
dedicated exclusively to insurance defence litigation. Lorne has a wide range
of experience. He is particularly well-regarded in the field of liquor liability.
Lorne is a co-author of Liquor and Host Liability Law in Canada, published
by Canada Law Book.
Michael Bellomo is a litigation associate at Dolden Wallace Folick LLP. His
practice is dedicated to insurance defence litigation with a strong focus on
liquor liability matters.
Go to www.dolden.com.
26 The Publican