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The "Lullaby Standard of Care" for Tavern Owners

Case Study: Linton v. Tholos Restaurant

September 2016

Justice Pollak's recent decision in Matthew Linton et al v. Tholos Restaurant et al.1 raises the old issue of the extent to which a restaurant must take positive steps to keep an intoxicated patron from hurting himself.

In my opinion, Justice Pollak's decision could extend the liability of a restaurant and make it an insurer of its patrons' safety. This could increase the risk of taverns and their insurers, and expose them to near-unlimited liability.

The lawsuit arose as a result of a bachelor party on May 22, 2009, in Collingwood. The Plaintiff, Matthew Linton, consumed alcohol over the course of the day and evening, including on the premises of the defendant Tholos Restaurant and the defendant Kaytoo Restaurant and Bar. Afterwards, the Plaintiff and his friends walked back to their rented chalet. At the chalet, the Plaintiff fell down an exterior stairwell and suffered a severe traumatic brain injury.

An expert toxicologist concluded that the Plaintiff consumed between 13 and 21 bottles of beer between 6:00 pm and the time of the fall (1:00 to 1:30 am). The toxicologist noted that this amount of alcohol consumption would have caused the Plaintiff to suffer obvious and marked levels of impairment. This expert evidence stood in contrast to the evidence provided by the factual witnesses, which was that the Plaintiff showed no signs of intoxication.

Tholos Restaurant and Kaytoo Restaurant moved for summary judgment. The restaurants argued that their liability turned not on the facts of the case, but rather on the legal limits of the duty of care that they owed to the Plaintiff.

...they argued that the duty of care ends after the customer leaves the bar and arrives safely at his destination.

The restaurants agreed that commercial hosts owe a duty of care to a customer who cannot take care of himself as a result of intoxication. That said, they argued that the duty of care ends after the customer leaves the bar and arrives safely at his destination. This formulation of the duty of care was upheld by the Ontario Superior Court in Schryer (Litigation Guardian of) v. 1232215 Ontario Ltd., [2009] 179 ACWS (3d) 1226.

In contrast, the Plaintiff argued that it is not an established principle of law that the duty always ends when the patron arrives at his final destination. Instead, the Plaintiff claimed that the duty of care depends on the facts of each case. The Plaintiff argued that the commercial host's duty to protect its patrons should "logically end only when the patron is no longer exposed to injury by reason of his intoxication." Therefore, this duty would not necessarily end simply because the Plaintiff arrived home safely.

Justice Pollak did not grant summary judgment because she lacked important evidence about the sequence of events and the Plaintiff's level of intoxication. She emphasized the expert's evidence that the Plaintiff must have consumed between 13 and 21 beers, and must have been observably and heavily intoxicated. Justice Pollak did not, however, rule on the issue of the scope of the restaurants' duty to ensure that the Plaintiff did not harm himself as a result of his intoxication.

It appears to me that the restaurants in this case took reasonable steps to ensure the Plaintiff's safety. It was clear that he was not going to drive and he walked out of the bar with a group of his apparently responsible friends who should have looked after him. In Stewart v. Pettie,2 the Supreme Court of Canada noted that a bar's responsibility could be discharged by making sure that the patron "got home safely". Justice Pollak's decision, however, suggests that a tavern will not meet its standard of care simply by ensuring that a Plaintiff gets home. This raises the question of what action a tavern should take when it has an intoxicated patron on its hands. Are taverns to keep patrons on the premises until they sober up? Should taverns hire employees to escort patrons home, tuck them into bed, kiss them on the forehead, and sing lullabies until they fall asleep?

I believe tavern owners can learn two lessons from Justice Pollak's decision. First, beware when overserving patrons, because your liability may extend beyond the tavern door, even when you take steps to ensure that intoxicated patrons are reasonably safe. Second, motions for summary judgment should be brought only in cases of an undisputed evidentiary record regarding intoxication. I am interested to see what Justice Pollak decides at trial.

1 2016 ONSC 4167.
2 [1995] 1 S.C.R. 131.


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