© 2003  Karen Selick
Go Ahead, Make Our Day
An edited version of this article first appeared in the November 4, 2003 issue of The National Post.  If you wish to reproduce this article, click here for copyright info.


Don't Shift the Injury to Another Victim

Eighteen-year-old Zoe Childs was rendered paraplegic by a drunk driver in the early hours of New Years Day, 1999. Next week , the Ontario Court of Appeal will consider her lawsuit against the couple who hosted the party from which their intoxicated guest, Desmond Desormeaux, was driving home.

Did the hosts have a duty to prevent Desormeaux from driving after he drank the beer he brought to their home? Should they pay damages to the blameless young woman who was injured because they let him leave intoxicated? These are the questions the court will have to answer.

This case is a screaming example of the legal maxim "Hard cases make bad law."  No-one can help feeling sorry for the innocent victim. It could have been any of us. But justice isn't a simple matter of channeling money to a plaintiff who excites strong sympathy. Imposing liability on "social hosts" like these defendants would have many undesirable repercussions. While it might satisfy a court's compassionate impulses, it would be bad law.

First, what measures would a future host have to take to fulfill his legal obligations? Would he have to detain an obstinate guest by physical force, wrest the car keys from his hand, or rifle the guest's pockets or purse for them? Would he have to stuff him kicking and screaming into a cab? In other words, would the host have to commit other crimes (assault, forcible confinement) to protect the guest from possibly committing one? Would a host have to call the police on a friend, relative, or boss?

Would hosts have to administer breathalyzer tests to departing guests? After all, police officers can call in such equipment if they're unsure. If a layman chooses to make such critical judgment calls unassisted, will it guarantee him a trip to court with lawyers and judges second-guessing his decision?

Then there's the question: why stop at imposing liability on the host? In Mr. Desormeaux's case, there were ten other guests present who could just as easily have observed his intoxicated condition--in fact, more easily, since they weren't busy entertaining others. Any one of them could have taken measures to stop him from driving, but they're not being sued.

It appears, therefore, that the motivating force behind the lawsuit is to get money from the hosts' homeowners liability insurance--which brings us to another problem. A judgment for the plaintiff would simply shift some of the injury to another innocent victim: namely, the hosts' insurance company. It's hard to muster public sympathy for insurance companies; nevertheless, when the company agreed to underwrite this couple's liability risks, the law did not make it potentially liable for the actions of Desormeaux. Had the company known it would end up responsible for this additional risk, it would have charged higher premiums, or perhaps declined coverage to this couple.

Changes in the law invariably bring unintended consequences. Here, a judgment for the plaintiff will probably mean higher home insurance premiums for all Canadians. Some homeowners would be bound to lose their houses because they can no longer afford insurance.

Then there's the floodgates problem. Several other lawsuits are waiting in the wings for Ms. Childs' claim to be resolved. Mr. Desormeaux brought two friends to the party. They also left with him and were injured in the accident. If the hosts are found to have breached a duty of care, these two will also be eligible for compensation, even though both were thoroughly intoxicated before they even got there. Even more disturbing is the possibility that Mr. Desormeaux himself might be able to successfully sue his hosts if the court finds that it was their responsibility to keep him off the road.

The philosophical implications of this case are enormous. Consider any two people in a room together. So long as both are sober, each is responsible for his own actions, and neither is responsible for the actions of the other. But the moment one chooses to get drunk, he abdicates the burden of being responsible for himself and thrusts it upon the other. Do we really want the kind of society where any of us can suddenly find himself cast in the role of nursemaid to a drunk without our consent?

A rule like this would penalize the responsible members of society for the sake of the irresponsible. The trial judge who first heard the case recognized this and declined to award damages to Ms. Childs. Let's hope the Court of Appeal leaves his decision undisturbed.

A footnote about Mr. Desormeaux. Before the party, he had two convictions for impaired driving and one for driving while disqualified. After this accident, he was convicted again and sentenced to 10 years in jail. Although he was a proven menace to other highway users, although he never seemed to learn from his mistakes, although he had already demonstrated that he wouldn't obey a prohibition on his driving, Mr. Desormeaux was released on parole within 15 months and may be on the highway as you read this.

We can legitimately debate whether jail serves as a deterrent to crime, or whether punishment is appropriate for someone with alcoholism. What we can't debate is that keeping Mr. Desormeaux in jail for his full sentence would at least keep him off the roads and out of the path of other people's cars.

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January 1,, 2004