Social Host Liability in the Pandemic Era

Public health regulations designed to limit the spread of COVID-19 meant that Ontarians hosted far fewer social gatherings in 2020 than in years past. Even during the holidays, when more people saw friends and family than health officials would have liked, gatherings were fewer and smaller than is customary.

For personal injury lawyers handling social host liability cases, this safely antisocial behaviour meant less work than in previous years. However, social host liability suits are far from a thing of the past – some lawyers believe that claims may arise from the few Super Bowl LV gatherings that did occur, and others expect a surge in cases when (and if) the pandemic subsides.

What is Social Host Liability?

Social host liability refers to the legal responsibility held by hosts of private social gatherings to ensure their guests do not experience harm after leaving the premises. This is a nuanced and evolving area of personal injury law; our understanding of it stems from a handful of precedent-setting cases:

Childs v Desormeaux

The question at the centre of this 2006 case was whether Julie Zimmerman and Dwight Courrier, the hosts of a New Year’s potluck, were responsible for injuries incurred by Desmond Desormeaux after he left the party. On the night of his accident, Desormeaux attended the gathering and drank roughly 12 beers in over two and a half hours. The hosts did not monitor his intake any more closely than other guests. Desormeaux eventually left the party and was involved in a two-vehicle crash on the way home. One passenger in the other vehicle, Zoe Childs, was paralyzed and another, Derek Dupre, was killed.

The Supreme Court of Canada found that Zimmerman and Courrier did not owe Childs a duty of care because their relationship with Desormeaux was not ‘proximate’ enough. In other words, the couple did not serve Desormeaux alcohol and did not realize the extent of his intoxication.

Wardak v Froom

Wardak v Froom, a 2017 case, arose from a 19th birthday party the defendants hosted for their son at their home. The plaintiff was an 18-year-old neighbour who brought his own alcohol to the event and became intoxicated. After leaving the party on foot, he got in his car and was involved in a serious single-vehicle accident.

Unlike in Childs v Desormeaux, the defendants were found liable for the plaintiff’s injuries. This was due to the fact that the injuries occurred to a guest, not a third party, and due to the ‘paternalistic relationship’ between the host and the plaintiff.

McCormick v Plambeck

In this recently decided case from British Columbia, the plaintiff was injured in a single vehicle crash after leaving a party hosted by the parents of a friend. The plaintiff, who was a passenger in the vehicle, was intoxicated; the driver, who was killed, was not.

The court ultimately ruled that the hosts were not liable for the plaintiff’s injuries. Not only had the hosts taken steps to prevent impaired driving – demanding that guests place their keys in a bowl; offering rides home to those who were too intoxicated to drive – but they were not even aware that the plaintiff and the driver had access to a vehicle. In fact, the pair stole the vehicle from a nearby lot after leaving the party.

The Future of Social Host Liability

A recent Law Times article posited that personal injury lawyers may see a sudden increase in social host liability claims if and when public health regulations are lifted.

“The COVID-19 pandemic forced the cancellation of many festive occasions usually marked by parties or get-togethers, and by the time things return to normal people could be making up for missing multiple St. Patrick’s Days, May 24s, birthdays and the like – and may be tempted to party even harder than usual,” it read. “In light of this likelihood, it’s pertinent to be up to date on the present state of social host liability.”

More urgently, some lawyers interviewed by CTV’s Your Morning suggested that social host liability cases could arise from holiday gatherings in December; although there is no precedent, hosts may theoretically be liable for spreading COVID-19.

Establishing liability in such a case would be difficult. A plaintiff would likely have to prove that the host knew they were putting guests at risk of exposure. If such a case were successful, though, it is unlikely that homeowners’ insurance would cover the costs – many policies have exemptions for communicable diseases and for acts outside public health regulations.

Contact Will Davidson LLP

If you have questions about social host liability, or if you or a member of your family have been injured in an accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our experienced team of personal injury lawyers will provide all the answers you need.

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Are Municipalities Liable for Tobogganing Injuries?

winter of 2021 will be like no other in Ontario. Many of our favourite gathering places, including ski hills and local hockey rinks, have been indefinitely shuttered to combat the spread of COVID-19. Gathering indoors with family and friends has also been banned. As a result, Ontarians are turning to alternative activities: skating at outdoor rinks; cross country skiing and snowshoeing; and tobogganing.

As personal injury lawyers well know, tobogganing is the most dangerous of these activities. According to Parachute, a national Canadian charity dedicated to injury prevention, tobogganing has the fourth highest rate of injury of all activities in Canada, behind only ATVing, snowmobiling, and driving. The charity has cited research showing that 37.7 of every 100,000 tobogganers are catastrophically injured, with 50 per cent of victims suffering head injuries and 22.5 per cent suffering injuries to the spine.

There have been at least two serious sledding accidents in southern Ontario in the past 30 days. The first occurred in Bradford West Gwillimbury on December 26. A woman sledding on ‘Deadman’s Hill,’ a popular tobogganing location in the region, lost control of her vessel and smashed into a hydro pole. She suffered broken ribs, fractured vertebrae, and a collapsed lung, and was eventually transferred to the trauma unit at Toronto’s St. Michael’s Hospital.

The second occurred on New Year’s Day in Barrie. A boy sledding at Sunnidale Park was knocked unconscious in a crash. A witness told CTV News Barrie that most children on the slope, including the accident victim, were not wearing helmets.

Personal injury lawyers in Ontario, like the rest of the province’s citizens, are bracing for an unusual winter season. An influx of tobogganing injury inquiries could be part of the change. But what are the legal options for tobogganing injury victims? Does it make sense to pursue compensation for the damages they have incurred?

Ontario’s Occupiers’ Liability Act states in section 3(1) that “an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises … are reasonably safe while on the premises.” In other words, landowners are at least somewhat responsible for the safety of visitors to their property.

However, section 4(1) of the Act states that when a person willingly assumes risks on a landowner’s property, “the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage and to not act with reckless. In other words, when a tobogganer enters public land with the intent of participating in a risky activity, that tobogganer assumes most of the liability for their actions.

This stipulation makes it difficult to bring tobogganing injury claims against a municipality. In 2009, for example, a woman was seriously injured in a tobogganing accident in Seacliff Park in Leamington, Ontario. The woman filed a $1-million lawsuit against the municipality, but the court rejected her claim, writing in its decision that “while there was a duty of care, that duty was limited to not creating a danger with the deliberate intent of doing harm or damage to the person and to not act with reckless disregard. In this case, the risks were willingly assumed by the plaintiff.”

“The defendant,” the judge wrote, “says that the hill had been used for years with no complaints and no injuries and that the plaintiff was aware of the condition of the hill after many years of use. The defendant says there is no evidence that this hill was dangerous or that there was a hidden trap or obstacle that cause the plaintiff to fall of her sled.”

In some cases, however, tobogganing injury claims against a municipality are very much justified. In 2004, Hamilton Lawyer Bruno Uggenti suffered a fractured vertebra when his sled hit a hidden, snow-covered drainage ditch at the bottom of a tobogganing hill. The City of Hamilton was aware of the ditch but failed to warn potential users of the hill of its existence. An arbitrator, and later the court, ruled that while Uggenti and his family had assumed certain risks in deciding to use the hill, they had not assumed the risk of the hidden ditch. Uggenti was awarded $900,000 in damages.

“In order for someone to voluntarily assume risk,” the court found, “that person must be aware of the existence of the risk.”

If you or a member of your family has been seriously injured in a tobogganing accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our experienced team of personal injury lawyers will review your case, explain your legal options, and provide the support you need during the legal process.

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