In March of 2005, the BC Supreme Court determined the Steveston Hotel in Richmond, BC, was 50 per cent liable in a civil case relating to a drunk driving accident. The hotel, which operates a pub, was found to be of the same degree of fault as the driver.
This is the largest portion of blame ever to be assigned against a pub in a drunk driving civil suit in Canada. The decision was upheld upon appeal to the BC Court of Appeal in May 2006. Although there is still the option of a Supreme Court appeal, this decision is a wake-up call for all bar owners and staff about the necessity of responsible beverage service.
What was the Steveston Hotel case?
On June 12, 1999, Harry Thomas McWilliams left the Steveston Hotel's Third Avenue Pub with tragic results. The facts of the case indicate McWilliams was "grossly intoxicated," yet was permitted to consume alcohol while in the bar, and drove home in his own vehicle despite his condition. On the way home, he drove into a crowd of youths gathered in the street, injuring five people. One victim's head crashed through the car windshield. Another victim is brain damaged and needs permanent professional care. Just 24 years old, he is unlikely to ever be capable of working again.
While damages have not yet been determined, the hotel will likely owe millions to the accident victims. It has also been suggested that the driver may not have adequate funds to pay his portion of the damages, which means the hotel may have to pay closer to 100 per cent of the money awarded.
A pivotal fact of the case impacting the allocation of blame is that an acquaintance of Harry McWilliams was in the pub and recognized his impairment. Robyn Strang asked other patrons and the bar staff for help in finding him a safe ride home. When she could not secure a ride for him, McWilliams left the establishment driving his own car. It is here that the Steveston Hotel staff were legally obligated to intervene. They did not.
Why was the Steveston Hotel at fault?
The hotel's liability was based on several infractions of the BC Liquor Control and Licensing Act and Occupier's Liability Act. Each Act states specific requirements for safe operations of a commercial establishment serving alcohol.
The Occupier's Liability Act indicates that it is the responsibility of licensees to protect patrons (and third parties) from harm that may be associated with the activity of consuming alcohol. This "duty of care" means a host establishment must act to maintain the physical safety of patrons and employees. These obligations include refusing entry to intoxicated people and removing intoxicated people from the premises responsibly.
An important consideration is that "duty of care" also extends off-premises. Pub employees must not permit patrons to leave their establishment in a manner that is likely to result in foreseeable injury to themselves or others; namely, while intoxicated. In other words, commercial providers of alcohol have a duty of care to see that intoxicated patrons get home safely.
Therefore, Steveston Hotel staff were legally required to intervene when Harry McWilliams attempted to drive home. Staff had been notified explicitly that he was intoxicated and that he did not have plans to get home safely. However, testimony proved that the pub left it to Robyn Strang, an acquaintance of McWilliams, to try to find him a ride, when it was, in fact, the hotel's legal responsibility to do so.
Permitting McWilliams to drive away from the pub in his condition resulted in foreseeable damage that could have been avoided. By allowing him to get behind the wheel, the hotel breached its duty of care. This act signified negligence and was the cause for judgment.
What does all this mean?
This judgment should be considered a wake-up call for all in the beverage service industry. BC's Liquor Licensing and Occupier's Liability Acts require responsible beverage service. The judgment against the Hotel will cost much more than the total profits that would be earned by continuing to serve drinks to intoxicated patrons. Selling more alcohol to customers who are impaired is not worth the risk. As should be clear from this case, neither is ignoring your duty to care for your patrons' welfare.
Would you be found at fault?
As a bar owner or manager, the key question to ask yourself when facing a lawsuit is: "Could you or your servers have reasonably foreseen that serving more alcohol to this person would have probably caused him to become intoxicated and dangerous to himself or others?"
You'll also want to know how much the person drank, how quickly, and whether there was a noticeable change in behaviour. Of course, responsible beverage service will minimize the likelihood you'll find yourself in this position.
How can you protect yourself from liability?
Prevention is the best defence. Serving It Right, the responsible beverage service program administered by go2, provides important information on the effects of alcohol and techniques for preventing over-service. This information is invaluable for host owners, managers and staff in maintaining a safe operating environment.
Serving It Right guidelines recommend bar staff monitor patrons' drink intake and make reasonable assumptions about intoxication levels. Staff should also watch customers for physical signs such as:
- Red or bloodshot eyes
- Excessive sweating
- Decreased alertness or responsiveness
- Loss of fine or gross motor skills (fumbling with keys or change, bumping into things, etc.)
- A host establishment should also use its security staff to monitor the sobriety of patrons when they enter and leave the premises. If a departing patron appears intoxicated, the doorman should take steps to make sure that the person does not get behind the wheel of a car.
Consider making use of taxi vouchers for intoxicated patrons part of your House policy.
So, all your staff know the Serving it Right guidelines. Isn't that enough?
In a word, no. The Steveston Hotel's owner indicated the pub relied on Serving It Right principles to meet proper alcohol service requirements. Although each bartender and server involved was Serving It Right certified, case testimony proved the staff did not follow the guidelines in practice.
On June 2nd 2005, with the support of ABLE BC and BarWatch, go2 hosted an information session on the implications on liability, risk assessment and risk management as a result of the Steveston Hotel and other recent cases.
In addition, go2 is planning to undertake a number of initiatives that will highlight best practices and provide information and resources for operators to learn more about implementing a Responsible Beverage Service program.
For more information on this initiative, contact: info@servingitright.com
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