Nuts and Bolts Liability

November 21, 2011

How to Know When You Need to Call a Lawyer!

Shelley Timms, B.A., LL.B., LL.M.
Timshel Services Inc.
Alcohol Risk Management

Liability issues are faced by everyone. It does seem that there are more lawsuits and more ways to be sued but some of the risks have not changed. For the Student Union Manager, there will always be students, some considered to be ‘children’ in the eyes of the law; there will always be those who want to take risks; and there will always be alcohol (and drugs).

The following is a primer on some of the basics to keep in mind when planning activities with the Student Union (SU) Board and running the Union.

The Basics: Duty of Care/Due Diligence
Generally, anyone living in Canada is required to be sure that any activity, or failure to do an activity, does not result in damage or harm to others. This is called the duty of care, and the failure to take a reasonable approach to duty of care could result in a finding of negligence.

When we drive, we are expected to abide by the rules of the road — aggressive driving can result in crashes, and liability will be found on the failure to follow the duty of care. Likewise, we are expected to clear our walkways of ice, insure that our dogs don’t bite or knock over other people, etc. Due diligence is what we do to be sure that our activities and actions do not cause harm.

For the Student Union, due diligence includes developing and using policies on the use of premises, how activities are conducted, and the use and non-use of alcohol. Obtaining comprehensive insurance and training and education are necessary.

One of the most important tools is communication with the institution and the campus police/security. It is common that within the college or university, the individual departments tend to think of themselves as a distinct unit such as residence, athletics, academics, administration, security, student union. However, to the world beyond the borders of the institution, it is all one and even though some of the departments may be individually incorporated such as many student unions, that will make little difference to the ‘off-campus’ person who has suffered harm. It simply means that there may more pockets to look to for compensation, but the damage to the institution reputation has been done. There definitely needs to be more communication between the groups to deal with problems as they arise, and not wait until something truly bad has happened.

Duty of Care/Special Relationship
When alcohol is served and this results in someone becoming intoxicated, if damage or injury occurs, the Canadian courts have been especially tough on ‘commercial hosts’. A commercial host tends to be a licensee — an entity licensed to sell alcohol. Since alcohol is essentially a drug, the courts have stated that there is a special relationship on commercial hosts with respect to their patrons. They must track and monitor the amount of alcohol consumed by a patron while he or she is in the bar, look for signs of intoxication, not serve someone who is obviously intoxicated and definitely not serve someone who is under the age of majority.

The courts have stated that it is a cost of doing the business of selling alcohol that the commercial host must look after its guest. This can be difficult if the guest has been drinking before he or she arrives at the bar, and doesn’t show signs of intoxication. However, the Ontario Court of Appeal recently stated that even if the person doesn’t look intoxicated, the commercial host still has a duty to insure that the guest doesn’t come to harm or cause harm to someone else.

When a court determines if a person or group is negligent, one of the components is “foreseeability”- was the result something that could have been predicted in advance? The easiest example is that when a drunk person drives a car and crashes it, that should have been foreseeable. If a bar has its washrooms up or down a flight of stairs and a patron falls down due to intoxication, then that is foreseeable.

There are also situations in which an activity might not result in something foreseeable, but there is time to do something to avoid it continuing. One case involved three different people who shimmied up a pole in a beer garden. The court stated that the first time was not foreseeable, but by the third time, in which the person fell and landed on another patron causing injury, that was foreseeable. The organizers should have moved someone to the pole to avoid further people from climbing as a fall was almost inevitable. It is an example of how managers/staff and organizers must constantly assess any situation.

Occupiers’ Liability
Some provinces have Occupiers Liability legislation while others rely on the common law, but the basics are the same — whoever has control of the premises has the responsibilities that go with it. The law considers three aspects when determining liability:

  1. Condition of the premises
  2. Condition of the people using the premises
  3. The type of activity being conducted on the premises.

In short, the Student Union must look at whether it is safe for users to walk around the premises, where are the washrooms, in what condition are stair railings if there are stairs; are there any sharp edges that could injure if bumped into, etc.

When alcohol or drugs is added to the mix, that definitely affects the condition of the user so that if someone is intoxicated, then that person needs to be removed from the crowd to avoid any problems and potential injuries.

Finally, some activities such as dancing could be a problem when combined with the condition of the premises or the users.

Fighting during an activity could be a combination of the three basics, playing pool could turn into a ‘dangerous activity’, and the foam dances of the 90’s were a liability disaster in the making. It should be noted that fighting that occurs just outside the bar may still be considered to be on the premises.

Student Unions must also be careful if they rent their premises to other groups. There need to be policies for both on-campus groups and off-campus groups that include proper insurance, training of the people involved, and policies.

Waivers are useful if time and energy is put into them. This means that simply shoving a piece of paper in front of someone and telling them to read it and sign it, will not result in a defence in court. To make waivers worth anything, someone must sit with the person being asked to sign the waiver, explain it — especially anything dealing with limited liability or waiver of liability – ask if there are any questions, and then watch the person sign it, even initial the liability portions.

Usually, there isn’t sufficient time to do the above and as a result, most waivers are not worth the paper on which they are printed. Further, only those who are 18 and over can sign them as those under 18 must have a parent or guardian sign.

Underage Issues
The campus environment includes all ages, but keep in mind there are two ages that are legally important. First, as described above, 18 is the age to be considered an adult. If someone under 18 signs a contract or waiver, it likely will have no value. Keep in mind that Canadian courts describe anyone under 18 as a minor and to sue or be sued, he or she must have a litigation guardian.

Secondly, 19 is the age of majority for drinking in most provinces. Only Alberta, Manitoba and Quebec allow drinking at 18 (Alberta is considering raising the age to 19). While most campuses have all-ages events, they must monitor those events carefully, as the friends of minors will happily supply alcohol to them. If this is spotted at any SU event, both people must ejected immediately, and consideration should be given for further consequences. A liquor licence will be suspended if underage drinking is found, and campus bars are favourite targets of many liquor inspectors.

Transportation and Off-Campus Events
Many Student Unions sponsor activities off-campus which can present their own set of issues. Keep in mind that many bus companies will not allow drinking on the bus. This is for safety reasons, not to be boring or a pain. There have been people who have become intoxicated who have harassed the bus driver, putting all the passengers at risk.

The organizers of the event probably shouldn’t consume alcohol as they will need to keep an eye on all the participants —counting, knowing where one or two have wandered off, insuring that no one is left behind. They are also responsible for the conduct of the participants at the event such as cheering on the team at a rival’s college.

There may issues of insurability of the event which need to be explored in advance. Further, the off-campus event may have its own risks that need to be discussed and planned.

Alcohol is a social tool for many people and there is a perspective that it is a ‘must’ to participate in many activities in college or university. The down side is that many of the students are not ‘experienced’ — many of them have tried alcohol before the campus, some often, but most have not learned how to drink. They may feel entitled to drink as much as they want or to arrive at the campus pub or event already primed.

The SU needs to have a policy as to how to deal with these issues and to be sure that the policy is followed. It needs to have staff trained at the door to recognize if someone may be too primed and to obtain assistance for that person to return home, to insure that a majority event does not allow ‘underagers’ into the event, and to also staff the event to insure that everyone is having a good time and safe time. If there is any concern about someone arriving intoxicated not just on alcohol but on drugs, the staff must refuse entry to that person, otherwise the liquor licence is on the line.

Any event in which alcohol is served has its risks. The majority of participants will be fine, but it only needs one or two to change the dynamic. It is critical that the staff and the organizers receive training in alcohol service, in aggression management, and liability issues, as well service management. Anyone wanting the job just to be a friend to those who will come to the events is a liability to the SU.

The Student Union needs to be aware that the courts have imposed a high standard of care on commercial hosts regarding service of alcohol and the most recent case was against a student pub in Ontario.

The above provides an overview of some of the issues a Student Union must consider in its event planning, and is not an extensive outline of the law. Hopefully, it will help the SU to recognize where problems could be found, and if necessary, seek the guidance of legal counsel. However, good risk management, also with the help of legal counsel, can reduce liability exposure, and insure that the students have a great and safe experience.

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