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How to "knock out" claims to Tavern Owners sued for injuries sustained in bar fights

August 2016

The law recognizes that large groups of people who are drinking, even in moderate quantities, can become rowdy and pose a danger to patrons of establishments that serve alcohol (though the definition of "moderate" drinking differs from person to person, especially in a country like Canada where we often swell up with national pride at the sight of beer commercials). As a result, taverns are obliged, under the Occupier's Liability Act1 to take reasonable steps to monitor the premises and to take positive steps to intervene to prevent fights if such incidents are reasonably foreseeable.

It is important to remember that the occupier's duty to provide security is not absolute. A host only has to take reasonable steps to keep patrons reasonably safe from reasonably foreseeable danger in the circumstances. In this article, some important cases involving bar fights will be reviewed to provide guidance to insurance adjusters when investigating bar fights.

Lesson No. 1: The tavern owner is not an insurer of the safety of its patrons

In Waldick v. Malcolm Ontario Court of Appeal described the tavern's responsibilities under the Occupier's Liability Act in the following manner:

... All courts have agreed that the section imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm... The duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take "such care as in all the circumstances of the case is reasonable".2

This passage contains the most important lesson to keep in mind when defending a tavern after a fight: the defence should approach every case with a critical eye. Remember that the judge will review the facts of the case to determine if the fight was reasonably foreseeable and if it was reasonable for the tavern to intervene. This area of law is malleable and gives the judge discretion to rule as she sees fit. As a result, the adjuster must thoroughly investigate the incident to uncover all of the evidence. A good defence begins with a complete investigation of the facts.

A good defence begins with a complete investigation of the facts.

Lesson No. 2: Get an exact timeline of the sequence of events to determine if the tavern staff should have reasonably foreseen violence

An important tavern brawl case is the Ontario Superior Court of Justice's decision in Mellanby v. Chapple.3 In Mellanby, the plaintiff attended a bar called Steamer Jake's with a group of friends. There were two incidents that escalated into a brawl in which the plaintiff was badly cut with a broken beer bottle. The first incident involved heated words and a torn shirt. After the first incident, the manager cautioned the participants that they would be ejected if they fought. The second incident involved visible signs of intoxication, more heated words, and a shove. The staff did not observe this incident.

The court imposed liability on Steamer Jake's because the brawl was reasonably foreseeable due to the escalating tensions among the patrons. The staff should have noticed the incidents and done more to break up the feuding groups.

Mellanby shows it is important for an adjuster to establish the exact sequence of events to determine if there was escalation that should have been noticed by the staff. This information will be crucial when defending a claim that arises out of a bar fight. Sudden, unexpected attacks may not attract liability.4

The adjuster should be prepared to interview as many witnesses as possible in order to establish the sequence of events. This can be difficult due to the confusing environment in many nightclubs and the effects of alcohol on perception and memory. I recommend adjusters interview staff members and lay witnesses, if they can be identified. When seeking lay witnesses, the adjuster should ask the bar if it has guest lists for the night in question. These can be a treasure trove of information.

Lesson No. 3: A tavern's staff must be able to effectively monitor the premises and intervene if trouble starts

This lesson also comes from Mellanby. The court noted that Steamer Jake's had a security guard outside of the establishment, but it decided not to station any guards inside the bar because it believed the presence of burly guards would interrupt the style of the establishment. This influenced the court's decision to place liability on the bar. The court concluded that Steamer Jake's had been negligent because the bar was structured in such a manner that security personnel were not in a position to monitor the premises or to intervene to prevent violence.

The lesson that can be drawn from this ruling is that the adjuster should obtain an accurate idea of both the physical construction of the bar and the training and positioning of the staff who were supposed to monitor the premises. Adjusters should obtain diagrams of the premises, either by getting a floor plan from the management or by going out and taking measurements and photographs in person. Adjusters should also investigate how many security guards were on duty on the night in question and identify their physical positions at the time of the fight.

Of course, there are exceptions...

Lesson No. 3a: Not all taverns need to have specialized security personnel

It is important to remember that the duty to prevent fights is not uniform. Some establishments do not need specialized security personnel because it is not reasonably foreseeable for a fight to break out on the premises, given their business models. In Petersen v. Stadnyk5, Petersen was injured by Stadnyk, a fellow patron and off-duty police officer. This occurred when Stadnyk forcibly ejected Petersen from the premises after Petersen made unwanted romantic advances on a female staff member. Petersen sued Stadnyk, claiming that he used excessive force while ejecting him, and sued the Winchester Café, the restaurant where the altercation occurred, for not having security in place.

To support his claim against Winchester Café, Mr. Petersen argued that, on the night in question, Winchester Café, which was normally a family restaurant, had turned itself into a bar because it had live entertainment and was open after usual dinner hours.

The judge refused to place any liability on the Winchester Café. The judge held that the Winchester Café remained a family restaurant in spite of the live entertainment. The judge noted that this was the first time the Winchester Café ever had live music and the event was not advertised. The evidence showed that the Winchester Café allowed the band to play as a favour to them, rather than in an attempt to draw patrons who did not normally frequent the restaurant. The judge noted that the Winchester Café's liquor license only allowed it to sell alcohol with meals and that it earned 68% of its revenue through the sale of food. There was no evidence that the presence of the band increased the propensity of the patrons to fight. Therefore, the judge concluded the altercation was not a foreseeable risk that Winchester had to take steps to guard against.6

Petersen shows that adjusters should learn all they can about the normal operation of the business. This information will help determine if liability will be placed on the tavern. Fights are less likely, and therefore may not be reasonably foreseeable, in restaurants that do not sell much alcohol than they are in crowded nightclubs that sell almost no food. Adjusters should therefore speak to the owner of the tavern to learn about the business model, learn about the typical clientele, find out if there had been fights in the past, and determine how much money the tavern makes from alcohol sales versus food sales or cover charges.

The best defence is a thorough investigation

This area of law gives the judge broad discretion to assign liability to tavern owners. The judge will make her decision based on the facts of the case. Bar fights are, by their nature, confusing incidents. Witnesses will often tell contradictory stories about the sequence of events, the severity of events, and the intentions of the parties. Adjusters should be prepared to leave no stone unturned in their search for evidence.

1 R.S.O. 1990, c. O.2. The Liquor License Act, R.S.O. 1990, c. L.19 also places duties on tavern owners.
2 Waldick v. Malcolm, (1989) 70 O.R. (2d) 717, affirmed by the Supreme Court of Canada in [1991] 2 S.C.R. 456. Quoted in 2010 CarswellBC 1014, quoted in Wandy v. River Valley Centures Inc., 2013 CarswellSask 583 (QB) and upheld by the Saskatchewan Court of Appeal in Wandy v. River Valley Ventures Inc. 2014 SKCA 81. See also, Whitlow v. 572008 Ontario Ltd., 1995 CarswellOnt 2438 (O.C.J.G.D.).
3 1995 CarswellOnt 5327.
4 See Wandy v. River Valley Centures Inc., 2013 CarswellSask 583 (QB) and upheld by the Saskatchewan Court of Appeal in Wandy v. River Valley Ventures Inc. 2014 SKCA 81.
5 2003 BCSC 2012.
6 I believe the subtext of this case played a role in the judge's decision to find the Winchester Café not liable. After all, the incident occurred after Mr. Petersen continued his boorish behaviour after being told to stop. The fact that Mr. Petersen appeared to seek damages for a problem he created may have left a bad taste in the judge's mouth.


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