Burlington Lawyer | Negligence at Oktoberfest
Burlington Lawyer | Negligence at Oktoberfest
Donaldson v. Doe,
[2009] B.C.J. No. 154
NEGLIGENCE - FORESEEABILITY - It was not foreseeable that respondent would pose a risk to Oktoberfest patrons when he left the premises carrying a glass beer mug.
Appeal from the dismissal of appellant's action. Appellant was injured when he was struck in the face by the respondent B with a glass mug that had been handed out to patrons of Oktoberfest. It was not known whether B hit appellant intentionally. B was intoxicated. The trial judge held that neither the promoter of the event nor the owner of the venue owed a duty of care to appellant. The judge found it was not reasonably foreseeable that a pedestrian would be injured by B. Even if B had been over-served, and the promoter and owner knew or ought to have known that he was drunk, the judge would not have found a duty of care because allowing Oktoberfest patrons to leave with glass beers mugs did not create a foreseeable risk of harm to persons in the area.
HELD: Appeal dismissed.
The promoter and owner owed a duty of care to protect persons such as appellant from injury by patrons of Oktoberfest who left that event intoxicated. A commercial host owed a duty to third-parties to protect them from alcohol-related injuries caused by intoxicated patrons. Foreseeability with respect to the manner in which a third-party was injured was not part of the duty of care analysis. Even if the promoter and owner were negligent, in that their actions fell below the required standard of care, evidence that appellant's injury would not have occurred but for that negligence was lacking. The evidence admissible against respondents was not capable of proving that B, by reason of his level of intoxication, posed a foreseeable risk to others when he left the premises carrying a glass beer mug.
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