Duty of care
Apart from the statutory obligations and penalties discussed above, a licensee and its management and staff owe a “duty of care” to both patrons and innocent third parties.
This duty of care is imposed by the “law of negligence” and the British Columbia Occupiers Liability Act.
Lack of knowledge of a patron's level of intoxication is not a defense. A licensee must conduct its business in a way that allows it to monitor its patrons' consumption and behaviour so that the licensee knows when to suspend service and/or make arrangements to get an at-risk patron home safely.
The duty of care (the responsibility and legal liability) ends only when patrons get home or to another place where they are able to sober up. If an intoxicated patron drives away from the premises, the duty may continue until that patron reaches his or her home, or the location where they will be spending the night. When the duty is not met, an injured party may take legal action against the licensee, manager or server.
This issue most often arises when a patron who over-consumes alcohol at a licensed establishment is subsequently involved in a motor-vehicle accident. There have been many legal judgments that illustrate the wide-ranging duty of care that licensees are subject to.
Whether or not a licensee has lived up to this duty always depends on the particular facts of the situation.
Your legal duties
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Responsibility on the premises
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The first duty of the licensee and staff is to provide a safe environment for patrons and staff members alike. This involves control of the establishment’s physical environment and ambience. There is an obligation to ensure that the physical layout and condition of the premises don’t lead to injury to those who enter. This duty is imposed by the Occupiers Liability Act and applies to any premises (licensed or not) where people are permitted to enter. The law requires a licensed establishment to take special precautions to keep the premises reasonably safe for people who have been consuming alcohol.
The steps required to be taken by the licensee and its staff will depend on the activities carried out on the premises, as well as the general environment of the premises. Activities that may be safe on some premises may be unacceptably dangerous in an environment where alcohol is being consumed.
The duty under the Occupiers Liability Act also includes a duty to not let people on the premises who appear likely to do harm to others. The duty to intervene applies to the potential for violence, as well as the potential for injury due to the dangerous or negligent conduct of a patron. Although ejection may at times be necessary and appropriate, staff members must do this with care to avoid injury and potential liability for injury of a patron. Staff members may only use a reasonable degree of force in ejecting an unwanted patron. What is “reasonable” depends to a large degree on the particular circumstances arising in each case.
Responsibility off the premises
Apart from the duty of care owed to patrons while they are on the premises, a licensee and its staff owe a duty of care to patrons who are leaving the premises, as well as to the general public who may be affected by those patrons’ conduct. Even though a patron may have left the premises, the licensee’s responsibility may not end until that patron gets home or to another place and is able to sober up.
The duty of care includes taking all reasonable steps to prevent harm that could result from alcohol being consumed on your premises. Although reasonable steps will vary depending on the circumstances, a licensee and its staff should
- take a hands-on approach when it appears that intoxicated patrons may be intending to drive.
- take comments or concerns raised by other patrons seriously.
- follow up with intoxicated patrons who appear to be heading for a vehicle.
- not hesitate to call a taxi and watch that person get into the taxi and leave the premises if there is any doubt that an intoxicated person has a safe ride home.
- call the police if an intoxicated person insists on driving home.
Licensees and staff have a responsibility for both a patron's safety and the safety of others whom the patron may affect. When patrons or the public suffer as a result of what they believe is negligence on the part of a licensed establishment, they may sue.