This case, litigated by Barb Legate in January 2000 (obviously in a highly competent fashion), is, in my view, potentially groundbreaking, but on the other hand, in many ways difficult to fully appreciate its future ramifications.

To appreciate the implications of any decision, it is critical that we understand its context.

Firstly, at trial, this case involved three parties: Flynn, the defendant and an employee of Eaton Yale, who, while significantly intoxicated and operating his motor vehicle, seriously injured the plaintiff Mr. John.

The case was tried by a jury before Justice Donnelly, who, on an application for a directed verdict, made it clear that he too would have imposed liability on Eaton Yale.

Secondly, there was a Mary Carter agreement between John and Flynn (Flynn’s policy limits were $200,000.00). Nevertheless, the plaintiff benefited from the agreement in at least two ways; Flynn was obviously more forthcoming regarding evidence that was very harmful to Eaton Yale, and both John’s and Flynn’s counsel, suggested in their closing arguments to the jury, that liability on Eaton Yale should be in the order of 50 to 70%. It is my understanding, that the trial Judge offered no guidance in his charge on the percentage liability. The jury ultimately found Eaton Yale 30% responsible.

Even were we to compare this result to the amount of liability imposed in “tavern liability” cases, it is certainly at the high end. Jordan House vs Menow et al (1974) S.C.R. 239, seems to be at the higher end of the “tavern” cases at 33 1/3%. I leave it to the reader to consider whether the finding is reasonable in John vs Flynn, although considering that taverns have a statutory and common law duty as well, that is well defined, not to mention the fact that they are dispensing alcohol for profit, one could reasonably wonder whether the responsibility imposed on Eaton Yale in John vs Flynn is too high, or whether tavern liability should indeed arguably be higher.

Obviously, a fuller appreciation of the facts is critical. While the reasons expressed by Justice Donnelly when dismissing a motion for a directed verdict by Eaton Yale, do not necessarily reflect the jury’s findings of fact, it is the best available information we are likely to have on the accepted facts.

In his January 14, 2000, decision on this application, he outlined the following information: (The underlining is mine.)

"THE BACKGROUND"

Eaton Yale had longstanding knowledge of a chronic problem with a small group of employees who consumed alcohol in cars in the company parking lot during work breaks. Eaton Yale had actual knowledge of:

1) Flynn’s membership in this group;
2) Flynn’s longstanding alcoholism;
3) His three month treatment for alcoholism at Brentwood Institute, arranged through Eaton Yale.

Upon his release from Brentwood, Flynn’s continued employment depended upon compliance with Eaton Yale’s aptly named ‘Last Chance Agreement’. Flynn breached each of the three alcohol related conditions in that agreement, thereby providing grounds for suspension or dismissal. Eaton Yale ignored the breaches.

Eaton Yale had a claimed policy of zero tolerance for alcohol in the work place. It had a policy of intervention to supervise known alcoholics. It gave mouth honour to those policies by sporadic postings on notice boards. In relation to Flynn both policies were disregarded.

THE FINAL WORK SHIFT

During the eight hours preceding his work shift, Flynn consumed alcohol as follows: 5, eight ounce drafts of beer, three or four drinks of tomato juice, each with one or two ounces of vodka, a bottle of beer, and four glasses of beer. About 10:55 p.m. he walked from the union hall across the street to Eaton Yale, where he reported to his foreman for the instructions for the 11:00 p.m. shift.

Eaton Yale had opportunity at specific intervals to monitor Flynn’s condition relating to alcohol:

1) When he reported to work at 11:00;
2) When he returned to work after the one o’clock break, during which he consumed a bottle of beer in his truck in the company parking lot;
3) When he returned to work after the three o’clock break, during which he consumed two bottles of beer in his truck;
4) When he returned to work after the five o’clock break during which he consumed one or two ounces of rum in his truck;
5) When he checked out from work at 6:30 a.m. and drank a bottle of beer in his truck in the parking lot.

Eaton Yale recognized that Flynn was in a dangerous workplace where the conduct of one employee had the potential to harm himself or others. Eaton Yale had an obligation to take reasonable care for the safety of its employees. It had absolute control over that workplace and the company parking lot.

Through its foreman, Mr. Beckett, Eaton Yale had opportunity to observe, supervise and control Flynn throughout the shift.

Flynn left the Eaton Yale premises at 6:35 a.m. He went directly to his truck and drove home, arriving in 20 minutes. No other person was there. He stayed long enough to take a pickled sausage and beer from the refrigerator. He returned to the highway immediately, driving with an open bottle of beer between his legs. The accident happened in a few minutes, at 7:15 a.m.

EATON YALE’S RESPONSE

Eaton Yale created the opportunity for and controlled this patently dangerous situation. A known alcoholic was permitted to work through his eight hour shift with a blood alcohol level of 174 to 210 milligrams of alcohol in 100 milliliters of blood, according to the plaintiff’s expert; or 180 to 185 milligrams, according to the defendant’s expert. In lay terms, blood alcohol levels (were) well in excess of twice the legal limit. The paternalistic relationship adopted by Eaton Yale and its status as employer warrant imposition of a positive obligation to act, premised on the foreseeability of the risk.

At the end of the work shift it was apparent that Flynn was about to drive. Eaton Yale took no steps to prevent the obvious. Eaton Yale took no precautions to curtail Flynn’s drinking either by monitoring him or the parking area where he was known to drink. It was open to Eaton Yale to send Flynn home from work by taxi, to take his car keys, to take custody of his car, to place him in the charge of a union official or other responsible person. Eaton Yale did nothing in a situation demanding something beyond passivity.

Flynn’s safe arrival at home was a fortuitous event, totally unrelated to any discharge of duty by Eaton Yale. It was not conduct to a safe haven provided by Eaton Yale. Flynn stopped long enough to reload with beer and continue on his way.

Flynn drank for eight hours preceding his work shift; he drank at every opportunity while at work. It was readily foreseeable that he would continue that established pattern and that upon leaving work he would drive his car. Foreseeability is the foundation of liability. At page 378 in Cotic v. Gray (1981) 33 O.R. (2d) 356 (Ont. C.A.), Lacourciere, J.A. states the general rule:

‘A break in the line of causation is subject to the qualification that if the intervening act is such that it might reasonably have been foreseen as anticipated, as the natural and probable result of the original negligence, then the original negligence will be regarded as the proximate cause of the injury, notwithstanding the intervening event.’

The arrival at his home did not represent the outer limit of Eaton Yale’s liability. The natural and probable result of the original negligence was that Flynn would drive his car. It was reasonably foreseeable that Flynn would come to harm on the highway. Eaton Yale failed to act in the face of obvious risk. Forty minutes later that risk became reality.

RESULT

In those circumstances Eaton Yale owed a duty of care to Flynn, and by logical extension, to other highway users; Mayfield Investments Ltd. v Stewart et al.

There was no break in the chain of causation to relieve the duty of care or to end the foreseeable risk.

The application is dismissed.”

COMMENT

It is of some interest to consider what this case is not, and yet, there are some clear implications for other bodies of law:

1) It is not an occupiers’ liability case and indeed one could analogize more closely with the Rylands vs Fletcher line of cases, wherein a land owner who allows something dangerous to escape from his property, and thereby injures a neighbour, will attract liability.

2) It is not a social host case, in my opinion, although, some may argue that it is as close as we have come in this jurisdiction to such an actual decision in our Courts.

3) On the other hand, there is a well-established body of law that deals with occupiers’ and social hosts’ liability, namely, swimming pool cases where the facts usually involve drinking at the defendant home owner’s house, usually followed by an intoxicated plaintiff diving into a pool and suffering catastrophic injuries. In all these reported decisions (except one tried before a jury and currently under appeal), no liability has been imposed on the defendant home owner/social host.

4) Perhaps the attitude of our Courts was best described by Mr. Justice Quinn in Alchimowicz vs Schramm et al (1997 O.J. 135):

“The plaintiff’s argument simply put is this. I was reckless and had no regard for my safety when I consumed excessive amounts of alcohol. After I became grossly intoxicated, all acquaintances with whom I had contact, owed a duty of care to me to ensure my safety.”

This then begs the question; in pool cases, if the plaintiff rather than diving into a pool, got into a car and injured an innocent third party, would our Courts then impose liability?

5) As mentioned above, this is not a tavern case. On the other hand, if a Court of Appeal does not interfere with the 30% finding against Eaton Yale, will taverns, in future cases (notably, unprotected defendants with large liability coverage), find themselves assessed with 30% or more liability?

6) As well, one might further wonder whether the reference by Justice Donnelly to Cotic vs Gray (above), means that just ensuring the patron gets home, will be insufficient to escape liability for a tavern where, as in John and Flynn, the patron leaves his home after arrival and causes injury to himself and others?

7) Ms. Legate, in discussing this case, has said that the liability of Eaton Yale arose out of a “special relationship” between Flynn and Eaton Yale. Indeed, there is some support for this in the trial Judge’s reasons set out above, on a motion for a directed verdict:

“The paternalistic relationship adopted by Eaton Yale and its status as employer warrant imposition of a positive obligation to act, premised on the foreseeability of the risk.”

8) If a principle of special relationship is sufficient to attract tort liability, then what other relationships can be vulnerable to such an approach? Aside from employer/employee, will it apply to a social host/occupier, at a pool party, if the guest departs in a vehicle and injures himself or others? Similarly, can a special relationship be established in imposing liability in a parent/child, teacher/student, or coach/player, etc., relationship?

As I said at the outset, this decision raises many questions and possibly opens up new avenues to explore in pursuing the claims of our clients. If we can demonstrate some of the ingenuity and determination exhibited by Ms. Legate in John vs Flynn, we may be able to do better for our clients than we have in the past.