The 'Lullaby Standard Of Care' For Tavern Owners

Justice Pollak's recent decision in Matthew Linton et al v. Tholos Restaurant et al.1 raises the old issue of the extent to which a restaurant must take positive steps to keep an intoxicated patron from hurting himself.

In my opinion, Justice Pollak's decision could extend the liability of a restaurant and make it an insurer of its patrons' safety. This could increase the risk of taverns and their insurers, and expose them to near-unlimited liability.

The lawsuit arose as a result of a bachelor party on May 22, 2009, in Collingwood. The Plaintiff, Matthew Linton, consumed alcohol over the course of the day and evening, including on the premises of the defendant Tholos Restaurant and the defendant Kaytoo Restaurant and Bar. Afterwards, the Plaintiff and his friends walked back to their rented chalet. At the chalet, the Plaintiff fell down an exterior stairwell and suffered a severe traumatic brain injury.

An expert toxicologist concluded that the Plaintiff consumed between 13 and 21 bottles of beer between 6:00 pm and the time of the fall (1:00 to 1:30 am). The toxicologist noted that this amount of alcohol consumption would have caused the Plaintiff to suffer obvious and marked levels of impairment. This expert evidence stood in contrast to the evidence provided by the factual witnesses, which was that the Plaintiff showed no signs of intoxication.

Tholos Restaurant and Kaytoo Restaurant moved for summary judgment. The restaurants argued that their liability turned not on the facts of the case, but rather on the legal limits of the duty of care that they owed to the Plaintiff.

The restaurants agreed that commercial hosts owe a duty of care to a customer who cannot take care of himself as a result of intoxication. That said, they argued that the duty of care ends after the customer leaves the bar and arrives safely at his destination. This formulation of the duty of care was upheld by the Ontario Superior Court in Schryer (Litigation Guardian of) v. 1232215 Ontario Ltd., [2009] 179 ACWS (3d) 1226.

In contrast, the Plaintiff argued that it is not an established principle of law that the duty always ends when the patron arrives at his final destination. Instead, the Plaintiff claimed that the duty of care depends on the facts of each case. The Plaintiff argued that the commercial host's duty to protect its patrons shouldlogically end only when the patron is no longer exposed to injury by reason of his intoxication. Therefore, this duty would...