By Shelley Boyes
The widely reported case of a Barrie, Ontario woman who was seriously injured in an accident while driving drunk -- and who last fall received over $300,000 in damages from an Ontario Superior Court d...
The widely reported case of a Barrie, Ontario woman who was seriously injured in an accident while driving drunk — and who last fall received over $300,000 in damages from an Ontario Superior Court decision — cast a sobering pall over many employee parties.
Some employers cancelled or dramatically curtailed upcoming social events, such as Christmas parties and annual ski trips. Others implemented strict no-alcohol rules for all company-sponsored events. Still others appointed managers and senior staff to act as “sobriety watchdogs” with the authority to cut off the bar privileges of any employees deemed to have over-indulged, or to send them home.
But since nearly a year has passed since this landmark decision was published, many employers will have relaxed their vigilance. These will include engineering firms that have survived a summer of office picnics and golf days without serious incident. With Christmas and other winter festivities fast approaching, however, it’s an ideal time to review the facts that led to the record damage award in Hunt v. Sutton Group Realty Inc. and evaluate the policies and procedures you have in place to protect your employees (and innocent third parties) from injury and your firm from crippling liability.
The facts and findings in Hunt
In December 1994, a part-time receptionist named Linda Hunt who was working for a Barrie, Ontario realtor became intoxicated during an office party hosted by her employer. She was engaged in employment duties at the time — answering the phone and so on, and was expected to clean up after the party was over. At some point, her employer became concerned about her state of inebriation, warned that he would call her husband to come and pick her up, but never carried through with this promise. After the party, Hunt and several colleagues stopped at a nearby pub where they ate and consumed more drinks.
Although the weather was a mix of freezing rain and snow, the plaintiff left to drive home. On the way, she was involved in an accident and suffered a variety of serious injuries, including brain damage. Ultimately, she sued her employer for failing to take adequate steps to prevent her from leaving her place of employment. (She also sued the pub where she and her colleagues had stopped for more drinks, but as it had no insurance and had gone out of business, the employer bore the full brunt of the damage award.)
When the case finally came to court in the fall of 2000, the judge, Justice Marchand, found that her employer had owed Hunt a duty of care to safeguard her from harm. The judge found this duty especially evident because the employee lived far from Sutton’s offices and was required to travel a substantial distance, often at night and in bad weather. According to the Court, the employer ought to have reasonably foreseen that the danger of driving in the conditions prevailing that night was heightened by Hunt’s intoxication. The employer should have foreseen that possible harm could come to her, or others, and taken concrete steps to prevent her from driving home.
While the employer agreed he had a duty to keep his place of employment safe, he denied he had a duty to supervise his employees’ drinking or to control their private lives, which would have extended his duties beyond the place of employment. He also argued that taking the employee’s car keys away would have amounted to theft and that forcing Hunt into a cab could have been seen as assault or false imprisonment.
Justice Marchand dismissed these arguments and specifically stated that an employer’s duty of care extends beyond a simple, managerial authority to protect employees from the risk of personal injury while on duty. He found this duty extends to a more general responsibility to ensure that employees do not engage in any behaviour likely to cause harm that is “reasonably foreseeable” regardless of where the harm occurs — such as in the case of Hunt being allowed to drive drunk at night in bad weather.
In the end, the judge awarded Hunt general damages, present and future loss of income and other awards totaling over $1 million, but he also found her 75% responsible for the accident. That left her employer liable for 25% of the responsibility — and damages of more than $300,000.
“No booze” rules no protection
While some employers have responded to the Hunt decision by implementing no-alcohol rules for any event they host, legal experts say this offers nothing like the iron-clad protection those employers hope for. Anyone who has ever attended or chaperoned a high school dance will know that determined employees can find ways to sneak in their own alcohol. So a no-booze policy, if not monitored and enforced to what might be viewed as an oppressive degree, may give employers a false sense of security.
(There have also been cases in which employees were drinking secretly at work, for example, in a car in the company parking lot while on breaks as was the case in Flynn v. Eaton Yale). After injuring themselves or others in accidents while driving home, they were still able to haul their employers to court and win a finding of liability against them — although the decision in the Flynn case was recently overturned on appeal.)
Hosting an employee party at a hotel or other third-party-managed location will not guarantee protection by passing potential liability on to the hotel and its professional bartenders because the judge may still invoke the employer’s duty of care. Similarly, so far there have been no Canadian cases involving employee parties off-premises and outside normal working hours where there has been “social host liability” imposed on the employer. To date, the circumstances have enabled judges to invoke the more stringent duty of care imposed on employers.
Taking the high side of caution
Employers should come down on the higher side of caution anyway, legal experts insist. They offer general suggestions like these to employers planning social events for employees:
Never host an open, unmonitored bar where employees can serve themselves (as was the case in Hunt v. Sutton).
If the event is held off-site and is subject to a contract with, for example, a hotel, ensure the contract requires the hotel to immediately inform identified company managers of any employee whom the bartender has refused to serve because the person appears to be intoxicated.
Establish a monitoring system to track the potential intoxication of any employee. This could consist of a ticketing system in which each employee is allotted a limited number of tickets for drinks before having to buy additional tickets from a designated manager, who is also on the look out for signs of intoxication (e.g. slurred speech, glassy eyes, a red face or an unsteady gait). Another method would involve instructing event bartenders to be on the alert about serving too many drinks to any one individual, and for any physical signs that an employee is becoming intoxicated.
Remind employees, in writing, before the event (e.g. on the invitation or notice) that no employee should drink and drive. Staff should also be reminded of the procedures and precautions you’ve taken to protect them, such as:
— providing free taxi chits or designated drivers on request;
— limiting or cutting off alcohol service if anyone appears to be becoming intoxicated;
— providing reduced room rates at hotels.
It’s a good idea for the moderator or event coordinator to repeat these rules and arrangements during the event, ideally, using a microphone so everyone can hear no matter what the noise level.
If an employee is obviously under the influence, you should take concrete action to ensure the employee doesn’t drive, including:
— accompanying the employee to the taxi cab and ensuring he or she gets in;
— asking, even ordering, the employee to hand over his or her car keys;
— asking a colleague who is not under the influence to drive the employee home, do it yourself or call a relative to come and pick the employee up. (Maintain a list of telephone numbers of spouses, family members or fri
ends who can be called upon.);
— making arrangements with a nearby hotel to accommodate the employee for the night (even if it’s at the employer’s expense) and arranging transportation to the hotel.
If an intoxicated employee is unwilling to comply with any of these alternative arrangements and insists on driving, call the police to intervene.
If driving conditions are bad, the employer is under an increased obligation to ensure that any employee under the influence doesn’t drive. In light of recent awards in cases like Hunt v. Sutton, it’s also wise to check your liability insurance policies to ensure your firm would be covered in similar situations and that the coverage is adequate.