Lutter v. Smithson, 2013 BCSC 119

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lutter v. Smithson, 2013 BCSC 119 Date: 20130128 Docket: 08-5320 Registry: Victoria Between: Jeremy Lutter Plaintiff And: Dallas Parker Smithson, Vonnie Zimmerman, Glen Mazu, Tralee Mazu, Leslie Duane Collins, in his capacity as the Executor of the Estate of Howard Allan Collins, Deceased and Vernon Taxi Inc.

Defendants And: Insurance Corporation of British Columbia, Glen Mazu, Tralee Mazu, Leslie Duane Collins, in his capacity as the Executor of the Estate of Howard Allan Collins, Deceased and Vernon Tax Inc. and Dallas Parker Smithson Third Parties Before: The Honourable Mr. Justice Macaulay Reasons for Judgment (In Chambers) Counsel for the Plaintiff: A. Wrona Counsel for the Defendant Vonnie Zimmerman: S.M. Katalinic Counsel for the Third Party Insurance Corporation of British Columbia: S.M. Katalinic Counsel for the Third Parties Glen Mazu and Tralee Mazu: L.P.S. Folick Place and Date of Hearing: Victoria, B.C.

January 10, 2013 Place and Date of Judgment: Victoria, B.C. January 28, 2013 [ 1 ] In April 2008, Glen Mazu and Tralee Mazu permitted their daughter, Brianne, to host a Bring Your Own Bottle (“BYOB”) party on their property to celebrate her 19th birthday.

Unfortunately, one of the invited guests, then 18½ year old Dallas Parker Smithson, became very drunk; eventually left the property; drove away in a vehicle; and shortly afterwards, was involved in a collision with a taxi, in which the plaintiff, Jeremy Lutter, was a passenger. [ 2 ] Lutter claims damages against Smithson and others for his alleged injuries and losses. The defendant, Vonnie Zimmerman, was the owner of the vehicle that Smithson was driving at the time of the accident.

The claims against the Mazus are for breaches of alleged duties owed, as “social hosts”, including permitting Smithson, a minor, to consume alcohol on their property contrary to the Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267 (the “ LCLA ”). The matter is currently scheduled for a 20 day trial commencing in late February 2013. [ 3 ] In a related proceeding (the “Collins action”), arising out of the death of the taxi driver, Howard Allan Collins, Zimmerman and the Insurance Corporation of British Columbia (“ICBC”) also joined the Mazus as third parties.

Neither the Collins estate nor any plaintiff in the Collins action took a position on the Mazu applications described below. Counsel did not provide me with any of the pleadings or orders in the Collins action. I assume that there is an order in place that both matters be heard at the same time and further, that counsel in the Collins action can agree as to the terms of any order that should flow from these reasons in that action. They will have liberty to speak to the matter if they cannot agree. [ 4 ] The Mazus seek

summary judgment dismissing all claims against them. Lutter, Zimmerman and ICBC say that the matters are not suitable for disposition under Supreme Court Civil Rule 9-7(2) (the “summary judgment rule”) and, in the alternative, that the evidence demonstrates that the Mazus, as social hosts, owed a duty of care to users of the road which they breached.

[ 5 ] The Mazus are understandably motivated to bring their application in the expectation that a successful outcome will obviate the need for them to participate in the upcoming potentially lengthy trial. They say that putting them to a full trial would amount to a travesty of justice in the circumstances. Although they filed their application on October 31, 2012, it was not heard until January 10, 2013, barely within the 42 day before trial requirement set by Rule 9-7(3).

Given the nature of the application, it should not have been left to such a late stage before proceeding with the hearing. [ 6 ] The application respondents say that the issues raised are interconnected with other issues that must proceed to regular trial and, in any event, the matter is inappropriate for a just determination on affidavit evidence under the

summary judgment rule. For the reasons that follow, I accept the application respondents’ submissions and dismiss the Mazus’

summary judgment application. [ 7 ] The allegation against the Mazus is that, as social hosts, they owed a duty of care to users of the road that they breached. The alleged breaches, as set out in the amended pleadings of Zimmerman and ICBC, are:

a) in permitting the Defendant Dallas Smithson (“Smithson”) to consume alcoholic beverages on their property located at 7015 Highway 6, in Vernon, British Columbia (the “Premises”) when he was not legally of age to do so;

b) in failing to maintain proper or any control over the amount of alcohol consumed on the Premises, particularly given that many of the individuals on the Premises, including Smithson, were minors;

c) in failing to use reasonable, proper or any care to control the consumption of alcohol on the Premises particularly given that many of the individuals on the Premises, including Smithson, were minors;

d) in serving alcoholic beverages in a reckless, careless and improper manner or without regard to the safety of Smithson, the Plaintiff or others, particularly given that many of the individuals on the Premises, including Smithson, were minors;

e) in failing to take away the keys of the vehicles which were located on the Premises so as to ensure the individuals on the Premises, including Smithson, could not enter into and drive a motor vehicle when their judgment was impaired by the consumption of alcohol, particularly given that many of the individuals on the Premises, including Smithson, were minors;

f) in allowing and/or permitting Smithson to enter into and drive a motor vehicle when they knew or ought to have known that his judgment was impaired by the consumption of alcohol;

g) in failing to take reasonable steps to arrange a safe ride home for Smithson when they knew or ought to have known that his judgment was impaired by the consumption of alcohol [ 8 ] Lutter, in an amended statement of claim, adds the following allegations respecting the Mazus: (

c) they continued to serve alcoholic beverages to the Defendant, “Smithson” even though he was clearly visibly intoxicated; (

d) even though the Defendant, “Smithson” was clearly intoxicated they took no or inadequate steps to get his car keys or offer him an alternate way home; (

e) they had the last clear chance to prevent the Defendant, “Smithson” from operating his motor vehicle when he was visibly intoxicated and where it would reasonably be assumed that he would constitute a danger to other users of the highway in his intoxicated state. [ 9 ] The available evidence includes the affidavits of Tralee Mazu, Glen Mazu, Brianne Jespersen (their daughter), Brett Jespersen (Brianne’s husband and boyfriend at the material time), Sara Wallis (guest), Caitlee Lewis (guest), Dallas Smithson (guest and defendant driver). All of this evidence is properly admissible on the merits of the

summary trial application. [ 10 ] As well, extracts from the examination for discovery of Smithson are in evidence, along with various documents attached as exhibits to the affidavit of a lawyer acting for Zimmerman and ICBC. Most of the latter is inadmissible on the merits, although I have relied on it to determine whether the case is appropriate for disposition under the

summary judgment rule. In that regard, I have reviewed the following: 1. Certificate of Qualified Technician showing Smithson had blood alcohol readings of 150 and 140 milligrams of alcohol in one hundred millilitres of blood taken at 4:15 a.m. and 4:38 a.m., after the accident; 2. Hospital emergency record for Smithson after the accident; 3. Brianne’s statement to the police dated April 20, 2008; 4. Police Occurrence Report dated April 20, 2008; 5. Police Occurrence Report dated April 24, 2008; 6.

RCMP Toxicology Report dated June 23, 2008, re Smithson showing blood alcohol concentration at the time of driving in the range of 165-189 mg%; 7. Extracts from the examination for discovery of Tralee Mazu; and 8. Expert report regarding Smithson’s alcohol consumption regarding, among other things, probable minimum alcohol consumption, given the known blood alcohol concentration levels. Admissions obtained on examination for discovery are admissible on a trial of the merits but it is very doubtful that the remainder of the

documents listed immediately above would be. In my view, their content opens a door to potential cross-examination at trial on issues relevant to determining the existence of the alleged social host duty and breach. [ 11 ] The application respondents complain, in part, that not all the guests at the party provided affidavits but I do not accept that contention. The evidence does not reveal the exact number who attended the party, although it certainly extends well beyond those who provided affidavits.

Brianne had permission to invite 30 to 40 guests and several are identified in the evidence who have not provided evidence. All parties had ample opportunity to obtain affidavits from whomever they wished. If the evidence was otherwise sufficient, the absence of further evidence from guests at the party would not be an adequate reason to find it unjust to decide the issues. [ 12 ] The application respondents also say that the court should be cautious in deciding a discrete issue in the litigation as I am asked to do here.

This is particularly so because there are allegations of negligence against multiple parties, including against Lutter. [ 13 ] If Lutter is partially at fault, any defendant(

s) against whom he ultimately succeeds will only be liable in proportion to the degree to which each person is at fault ( Negligence Act, R.S.B.C. 1996, c. 333, s. 1). Depending on the circumstances at the end of trial, the court may even have to consider the degree to which the fault of a non-party caused damage. [ 14 ] This raises the spectre that a finding now that the Mazus are not liable may embarrass the trial judge if she or he is required to assess individual fault. Of course, the problem is exacerbated if I were to conclude on this application that the Mazus owe a duty of care which they breached.

The additional evidence before the trial judge might well support a different conclusion. [ 15 ] As a more general proposition, I am satisfied that the novel question of liability arising out of the consumption of alcohol by a minor at a party hosted on a defendant’s property as raised in this case is best addressed after a full trial. That approach ensures the most complete record possible. In reaching that conclusion, I take into account the additional costs to the Mazus associated with the trial process but there is otherwise no prejudice. In Sidhu v. Hiebert, 2011 BCSC 1364 , the

summary judgment application judge reached a similar conclusion. [ 16 ] In Sidhu , the plaintiffs were passengers in a vehicle involved in a collision with a vehicle that Hiebert was driving. The plaintiff alleged that Hiebert got drunk at a party that the co-defendant, Rattan, hosted. The plaintiffs alleged fault against Rattan under a theory of social liability. [ 17 ] Rattan applied for

summary judgment to have all claims against him dismissed. He relied, as the Mazus do here, on the Supreme Court of Canada decision in Childs v. Desormeaux, 2006 SCC 18 , to demonstrate that a social host owed no duty to monitor a guest’s alcohol intake while at his house or to take any steps to protect other users of the highways when the guest decided to drive away from his house. [ 18 ] Justice Johnston concluded in Sidhu that the findings of fact necessary to determine whether Rattan owed a duty of care should not be made on affidavits (para. 41).

In particular, he observed that evidence relevant to foreseeability was identified in a statement made by a witness to the police, although no affidavit was available from the witness. Similarly, as I noted above, there is evidence before me not admissible at trial that demonstrates potential avenues for cross-examination. [ 19 ] The Mazus contend that Sidhu is distinguishable because the conflict in the evidence concerned whether Rattan should have known that Hiebert was intoxicated.

Counsel submits there is no such conflict in the present case partially because, on the uncontradicted evidence, the Mazus did not supply liquor to any of the guests at the party and because Mrs. Mazu admits that Smithson was intoxicated. Mrs. Mazu deposes, however, that she had no reason to expect him to drive. Counsel contends, as a result, that there are no material disputes on the evidence. [ 20 ] The application respondents say that Mrs.

Mazu’s assertion that she had no reason to expect Smithson to drive must be assessed in the context of all the trial evidence, including cross-examination of individuals who were present during the party. Having reviewed Childs, I agree. [ 21 ] Childs is a very important decision relating to social host liability. In determining the sufficiency of the affidavit material here and whether it is just to decide the issues on

summary judgment, a review of the principles that emerge from the case assists. [ 22 ] In Childs , the defendant homeowners hosted a party, during the course of which they served a small quantity of alcohol to adult guests. For the most part, the event was “BYOB”. The defendants knew that one of the guests, Desormeaux, was known to be a heavy drinker. As Desormeaux walked to his car to leave, one of the hosts inquired if he was okay to drive. Desormeaux responded affirmatively and drove away.

The accident ensued. [ 23 ] Childs was the first time the Supreme Court considered whether social, as opposed to commercial, hosts who invite guests to an event where alcohol is served owe a duty of care to third parties who may be injured by intoxicated guests (para. 8). [ 24 ] The court did not accept that the existence of a duty on the part of commercial hosts could be extended, by analogy, to the hosts of a private party (para. 23). Accordingly, the court went on to apply the first stage of the Anns test ( Anns v.

Merton London Borough Council , [1978] A.C. 728 ), and concluded, for two reasons, that the necessary proximity had not been established (para. 26): First, the injury to Ms. Childs was not reasonably foreseeable on the facts found by the trial judge .

Second, even if foreseeability were established, no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act . [Emphasis added.] [ 25 ] Of potential significance here, the trial judge in Childs never found that the hosts knew, or ought to have known, that the guest who was about to drive was too drunk to do so. For that reason, foreseeability, and accordingly proximity, were not established.

Although there was evidence that Desormeaux had a high blood alcohol rating, evidence that the hosts knew of his intoxication was absent (para. 28).

[ 26 ] At first blush, Mrs. Mazu’s admission that she knew Smithson was drunk before he left the party appears to fill the foreseeability gap that the Supreme Court first identified in Childs . That appears to strengthen the application respondents’ contention that foreseeability may be established here. [ 27 ] As to the second point made in Childs respecting the lack of a positive duty to act , the hosts and guests were all adults.

The court identified the lack of paternal relationship between host and guest, coupled with the autonomy of the guest, as factors that militated against imposing a positive duty to act on the hosts (see paras. 42–45). [ 28 ] In the present case, the application respondents point out that s. 33(1) (

c) of the LCLA forbids a host permitting a minor to consume liquor “in or at a place under his or her control.” At the material time, the uncontradicted evidence is that Smithson was 18 years old and, accordingly, a minor. I agree with the respondents that this may militate in favour of imposing a positive duty.

The evidence also reveals that other minors were present at the party, although it may be that most were also close to the age of majority. [ 29 ] To adopt some of the language in Childs , found at para. 45 , these distinctions raise the question whether an adult host is actively implicated in the creation or enhancement of the risk if she permits an underage person on her property to consume alcohol to the point of intoxication, perhaps extreme intoxication. As in Sidhu , that important question is, in my view, better left to be determined upon the fullest record available after a regular trial.

Accordingly, it would be unjust to decide the issue on a

summary judgment application. [ 30 ] There is, in my view, a significant risk of injustice in attempting to determine the answers to the essential questions that the Mazus raise in this case on a

summary trial. I dismiss the application. It is accordingly not necessary for me to review the detailed evidence filed on behalf of the Mazus, including the basis for Mrs. Mazu’s belief that Smithson would not drive and her reasons for not taking additional steps to reduce the risk that he might do so. [ 31 ] The application respondents should have approached this application differently and sought a separate determination whether it was appropriate for determination under the

summary judgment rule. I decline to order any costs in their favour. “M.D. Macaulay, J.” The Honourable Mr. Justice Macaulay