hi there it is my midterm assignment. So i have high expectations.
This midterm will require you to read a legal case carefully. These questions do not require outside research. Instead, they require you to form and defend an opinion. Before starting work, I recommend re-reading last week’s session on negligence, and specifically the element of a “duty of care.” This will help you later.
If there is a legal topic you are passionate about and wish to write about instead, please email me at before starting work. I will do my best to accommodate appropriate requests, and can help you frame your topic so it has approximately the correct breadth.
The marking rubric can be found in the assignment submission area.
Read the following case about establishing a duty of care for private party hosts: , 2006 SCC 18. This case was decided by the Supreme Court of Canada in 2006.
In 400-600 words total, answer the following questions:
1. The Supreme Court of Canada distinguishes that duties of care exist between businesses serving alcohol and road users because of the expectation of everyone that alcohol intake is monitored and servers are trained (paragraph 18), the profit motive (paragraphs 20 – 22) and a supervisory relationship (41 – 46: there is no relationship of hosts controlling guests at a party), and says social hosts dont have these same factors present.
Do you personally think that a private person supplying a venue where people are drinking should be sufficient to establish a duty of care to road users (and making them liable to road users for negligence)? Why or why not? This question specifically has to do with the “duty of care” analysis in negligence law. You may find it helpful to explicitly do the 3-part Duty of Care analysis, paying special attention to “proximity”.
2. Do you think the Supreme Court would have decided this case differently if:
a) the host of the party had given the eventual drunk driver free alcohol,
b) if the host of the party had sold alcohol out of his fridge to the eventual drunk driver, or
c) the host had encouraged the eventual drunk driver to play drinking games
If you quote or reference a part of the case, please identify the paragraph which you referred to.
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At the request of some students, I included some relevant quotes below that you may find helpful when answering these questions. Emphasis is my own.
10 Lord Atkin recognized this problem in Donoghue v. Stevenson. He accepted that negligence is based on a general public sentiment of moral wrongdoing for which the offender must pay, but distinguished legal duties from moral obligation: . . . acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief (p. 580). My legal duty, he said, extends to my neighbour. Legal neighbourhood is restricted to persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question (p. 580). This concept, sometimes referred to as proximity, remains the foundation of the modern law of negligence.
35 The first situation where courts have imposed a positive duty to act is where a defendant intentionally attracts and invites third parties to an inherent and obvious risk that he or she has created or controls…
36 The second situation where a positive duty of care has been held to exist concerns paternalistic relationships of supervision and control, such as those of parent-child or teacher-student….
37 The third situation where a duty of care may include the need to take positive steps concerns defendants who either exercise a public function or engage in a commercial e nterprise that includes implied responsibilities to the public at large….
39 Also running through the examples is a concern for the autonomy of the persons affected by the positive action proposed. The law does not impose a duty to eliminate risk. It accepts that competent people have the right to engage in risky activities. Conversely, it permits third parties witnessing risk to decide not to become rescuers or otherwise intervene. It is only when these third parties have a special relationship to the person in danger or a material role in the creation or management of the risk that the law may impinge on autonomy.
40 Finally, there is a reasonable expectation on the part of the public that a person providing public services, often under licence, will take reasonable precautions to reduce the risk of the activity, not merely to immediate clients, but to the general public.
42 The first category concerns defendants who have created or invited others to participate in highly risky activities. Holding a house party where alcohol is served is not such an activity. Risks may ensue, to be sure, from what guests choose to do or not do at the party. But hosting a party is a far cry from inviting participation in a high-risk sport or taking people out on a boating party. A party where alcohol is served is a common occurrence, not one associated with unusual risks demanding special precautions. The second category of paternalistic relationships of supervision or control is equally inapplicable. Party hosts do not enjoy a paternalistic relationship with their guests, nor are their guests in a position of reduced autonomy that invites control. Finally, private social hosts are not acting in a public capacity and, hence, do not incur duties of a public nature…
44 Holding a private party at which alcohol is served the bare facts of this case is insufficient to implicate the host in the creation of a risk sufficient to give rise to a duty of care to third parties who may be subsequently injured by the conduct of a guest. The host creates a place where people can meet, visit and imbibe alcohol, whether served on the premises or supplied by the guest. All this falls within accepted parameters of non-dangerous conduct. More is required to establish a danger or risk that requires positive action. It might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care to third parties, which would be subject to contrary policy considerations at the second stage of the Anns test. This position has been taken in some states in the U.S.A.: N.J. Stat. Ann. 2A:15-5.5 to 2A:15-5.8 (West 2000). We need not decide that question here. Suffice it to say that hosting a party where alcohol is served, without more, does not suggest the creation or exacerbation of risk of the level required to impose a duty of care on the host to members of the public who may be affected by a guests conduct.
45 Nor does the autonomy of the individual support the case for a duty to take action to protect highway users in the case at bar. As discussed, the implication of a duty of care depends on the relationships involved. The relationship between social host and guest at a house party is part of this equation. A person who accepts an invitation to attend a private party does not park his autonomy at the door. The guest remains responsible for his or her conduct.
46 This brings us to the factor of reasonable reliance. There is no evidence that anyone relied on the hosts in this case to monitor guests intake of alcohol or prevent intoxicated guests from driving. This represents an important distinction between the situation of a private host, as here, and a public host. The public host provides alcohol to members of the public, under a strict regulatory regime. It is reasonable to expect that the public provider will act to protect the public interest. There is public reliance that he will comply with the rules that prohibit serving too much alcohol to a patron and that if this should occur and the patron seeks to drive, that the public host will take reasonable steps to prevent the person from driving. The same cannot be said of the private social host, who neither undertakes nor is expected to monitor the conduct of guests on behalf of the public.