The Dangers Of Being A Host

As summer approaches, many employers’ thoughts turn to their annual summer party, barbeque or golf tournament which employees will be attending. Along with ensuring that the function is a successful social gathering, employers should put their mind to the issue of ensuring the safety of employees who have consumed alcohol during the function.

A recent Ontario case which received significant media coverage on this issue involved Sutton Realty (the "Company"). Ms. Hunt, an employee, consumed significant amounts of alcohol during the Company’s 1994 Christmas party while on shift and being paid to perform her duties. A forensic alcohol toxicologist estimated that she had more than double the legal limit of alcohol in her blood by the end of her shift. She then left her employer’s premises with co-workers, consumed at least two more drinks at a local bar, and attempted to drive home. After leaving the bar, she was involved in an automobile accident which left her with serious physical, as well as permanent brain injuries. The Court found that the Company was negligent and awarded damages to Ms. Hunt.

The Court considered the following factors to be significant:

• Approximately halfway through her shift the Company noticed her inebriated state and offered to call her husband to pick her up.

• At the end of the party, the Company offered taxis to its employees.

• The Company may have specifically offered to have Ms. Hunt driven home.

• Ms. Hunt had to travel a substantial distance home. It was dark and a serious winter storm was in progress.

• Ms. Hunt failed to engage her automobile’s four-wheel drive system which may have helped avoid the accident.

The Court, relying on an employer’s duty to keep the place of employment safe, rejected the Company’s arguments in its defence including:

• The duty does not extend to supervising employees’ drinking habits.

• The duty ought not to extend to determining its employees’ state of intoxication where no signs of intoxication exist.

• Taking Ms. Hunt’s car keys would have amounted to theft.

• Forcibly putting Ms. Hunt in a taxi would have amounted to false imprisonment or kidnapping.

The Court found that an employer’s duty extends to supervising employees so that they do not drink alcohol while on work premises, especially while on duty, so as to impair their ability to drive home. The Company owed Ms. Hunt a duty to personallyintervene and prevent her from driving home, especially in light of the weather conditions existing at the time. The Court found that had the Company insisted on Ms. Hunt leaving her keys at the office or taking a taxi home at its expense, she would have done so. It also failed to call her husband, or the police if necessary. Other alternatives included providing her with a room at a local hotel or arranging for her to be driven home by someone who had not been drinking.

In making its decision, the Court criticized the Company’s decision to have an open and unsupervised bar as it would make it impossible to monitor the alcohol consumption of employees. The Court also found that the Company should have anticipated that Ms. Hunt would stop for a drink at a bar on the way home.

As some consolation to the Company, the Court found that Ms. Hunt was 75% responsible for the accident and the resulting injuries. As a result, the total award against the Company was reduced by 75%. However, Ms. Hunt’s employer was still liable to pay $281,229.00 to Ms. Hunt for damages as a result of its negligence in failing to prevent her from driving drunk.

While the case deals with the liability of an employer that allows its employees to become intoxicated during working hours, the obligation of an employer to protect the safety of its employees would likely extend to company-sponsored events where attendance is mandatory or "strongly encouraged" and where alcohol is served. Employers should consider the following steps to avoid a similar tragedy and ensuing liability.

• Limit the amount of alcohol available to employees.

• Monitor the state of inebriation of employees.

• Ensure active steps are taken to avoid accidents and their consequences by providing free rides home by taxi or other means, securing car keys to prevent driving, providing free lodging at the location, calling family/friends to provide a ride, or calling the police to prevent driving.

To paraphrase a popular advertisement, "Employers don’t let employees drive drunk".