Who’s liable for drinking and driving?

Is an employer liable when an inebriated employee injures someone after work?

In the case of John v. Flynn, the Ontario Court of Appeal considered whether an employer is liable when an inebriated employee injures an innocent third party in circumstances where the employer had no knowledge the employee was drunk and where the employer did not provide the alcohol to the employee.

The case: John v. Flynn [2000] O.J. 128 (Sup. Ct.), reversed (2001), 54 O.R. (3d) 774 (C.A.), leave to appeal to the Supreme Court of Canada refused May 2, 2002, [2001] S.C.C.A. No. 294

In John, the plaintiffs, Claude John and his wife Rose John, sued Shawn Flynn and his employer, Eaton Yale Ltd., as a result of an automobile crash caused by an off-duty and impaired Flynn. He had become intoxicated prior to working the midnight shift at Eaton Yale, continued to drink during his shift and kept drinking after he left work. He arrived safely at home. When he got into the car again shortly after his return home, Flynn was involved in a serious motor vehicle accident with the Johns.

Eaton Yale took the position that since Flynn arrived safely at home and the accident was caused after he arrived home, it could not possibly be held liable. The trial judge found Flynn’s arrival at home did not relieve Eaton Yale from liability for the harm caused to the Johns.

The trial was heard by a judge with a jury in London, Ont. The jury apportioned 30 per cent of the liability against Eaton Yale and 70 per cent against Flynn. As noted by the Ontario Court of Appeal:

The jury’s answers related to the general system that Eaton Yale had in place to monitor the behaviour and safety of its employees, and the jury’s findings regarding Eaton Yale’s liability appear to be based solely on the general manner in which the company supervised its employees, rather than on any explicit duty owed to the Johns.

Eaton Yale appealed the decision. In June 2001 the Ontario Court of Appeal granted the appeal and dismissed the action against Eaton Yale. The Johns’ motion for leave to appeal to the Supreme Court of Canada was dismissed on May 2, 2002.

In order to better understand the appeal court’s decision it is necessary to thoroughly review the facts. Eaton Yale owned a unionized manufacturing plant in Wallaceburg, Ont. Flynn was a general labourer working the midnight shift from 11 p.m. to 7 a.m. on Dec. 9-10, 2002.

Prior to his shift that night, Flynn drank steadily for about eight hours. He nevertheless drove to work. During the course of his shift, he drank in his car in the company parking lot during two 10-minute breaks and one 20-minute lunch break.

Flynn performed his job without incident and was successful in concealing his impaired state from his supervisor and co-workers.

He completed his shift at 6:30 a.m., consumed another beer in the company parking lot, and then drove home. It took him about 25 minutes to get home. Flynn entered his house and then, several minutes later, drove away and collided with John. Flynn’s blood alcohol concentration one hour after the accident was twice the legal limit.

Eaton Yale had a well-known policy in respect of employees who arrived at work impaired or who consumed alcohol at work. Such employees were sent home in taxis and disciplined the next day. The company had been aware some alcohol consumption was likely taking place in the parking lot because empty beer and liquor bottles were found at the back of the lot from time to time. Eaton Yale had not sold or provided alcohol to any of its employees on Dec. 9 or 10, 1992, nor had it hosted a party or social event.

At trial significant weight was placed on the fact that, in May 1990, Eaton Yale was notified by Flynn that he had an alcohol abuse problem when he voluntarily requested Eaton Yale’s support through the company’s employee assistance program (EAP). Before that time the company had been unaware of Flynn’s problem since he had never been observed by management in an impaired state at work. Flynn attended an alcohol abuse program but upon his discharge the accompanying prognosis for his abstaining from alcohol was not favourable. This prognosis was made known to Eaton Yale.

When Flynn returned to work from the program he signed a Last Chance Agreement (LCA) under which he could be terminated if he did not attend Alcoholics Anonymous meetings and abstain from drinking for one year. Eaton Yale did not monitor the LCA. As the EAP required confidentiality, Flynn’s direct supervisor was not told of Flynn’s involvement with the EAP or the terms of the LCA.

In its decision the appeal court noted it had been assumed by the trial judge as proven that Eaton Yale knew Flynn had been drinking extensively before, during and after he had left work. In fact, the evidence was to the contrary. The jury made no such finding in respect of Eaton Yale’s knowledge in its verdict.

In dismissing the action against Eaton Yale the appeal court found the company owed no duty of care to the Johns. The appeal court stated, “the fact that Flynn was involved in the EAP (though this was not known by his supervisor on the night in question) and the fact that Eaton Yale was aware that some drinking was occurring on its premises, without more, is not sufficient to establish an expansive duty of care on Eaton Yale to all members of the public who may come into contact with Eaton Yale employees outside the Eaton Yale plant... The trial judge erred in assuming Eaton Yale, as employer, owed a duty to Flynn, as employee, to protect Flynn from harm, in general, and that this duty of care could be properly extended to hold Eaton Yale liable for all of Flynn’s actions following his departure from work.”

The appeal court added there was no basis to hold the company liable for the loss suffered by the Johns when the accident was not associated with Eaton Yale in any way other than the fact one of its employees, who had finished his shift for the night, was involved in the collision. Moreover, Eaton Yale was not aware Flynn was drunk on the night in question, it did not provide him with alcohol and it did not condone his driving while intoxicated. Therefore Eaton Yale was not responsible for Flynn’s actions.

Be vigilant when alcohol is involved

The appeal court noted an employer’s duty to provide a safe workplace to its employees should not be confused with cases where a duty has been imposed upon a commercial host (or social host) where the host has knowledge of the intoxication of its patrons.

According to the appeal court the confusing of these unrelated duties at trial led to the wrong result in this case.

An employer has a duty to maintain a safe workplace for its employees. The appeal court noted, however, “the notion that an employer, operating a plant for the manufacture of truck and automobile parts, has a duty to monitor its employees to determine if it is safe for them to drive home [where that employee has deliberately concealed his consumption of alcohol in direct contravention of the employer’s policies] is novel in the extreme.”

Despite Eaton Yale’s knowledge of Flynn’s drinking problem, a special duty was not imposed on the company to monitor Flynn. Nor did notice of the drinking problem create a new duty on Eaton Yale. Likewise the LCA did not impose an obligation on the company to insist Flynn carry out the terms of that agreement. It was Flynn’s responsibility to live up to such terms as his failure to do so would expose him to discharge for cause.

While the appeal court decision may be a relief to employers, the decision speaks arguably only to its specific facts. The result would conceivably have been different if Flynn had caused the accident in the course of his job duties for the company or if Eaton Yale had been specifically aware Flynn was inebriated at the end of his shift. Nothing in this decision lessens the duty of a commercial or social host who knowingly permits an inebriated guest to drive. Employers should continue to be vigilant whenever employees and alcohol are involved.

Cases of note

Hunt v. Sutton Group 2002 CarswellOnt 2604 (Ont. C.A.)

Linda Hunt drank at a company-sponsored party for staff and customers during office hours. At 4 p.m. her boss noticed she appeared to be intoxicated and said he would call her husband if she continued. The boss said Hunt did not appear intoxicated after that discussion.

Hunt didn’t leave the office until 6:30 p.m. Her boss offered cabs to everyone and another employee, who hadn’t been drinking, offered her a ride home. Hunt refused the offer and drove to a pub where she stayed until 8 p.m. While at the pub she consumed two beers. The weather was bad, and Hunt lived a considerable distance away, so one of her colleagues offered her a place to stay to avoid the long drive home. Hunt refused the offer and was involved in a car accident at 9:45 p.m., more than three hours after she had left work. She was seriously injured in the accident.

The employer and the pub were held liable for 25 per cent of the damages. The employer argued it took reasonable steps to safeguard her by offering to call her husband, offering free taxi rides to everyone at the party and having a co-worker who had abstained from drinking offer a ride home.

The judge found the employer’s efforts insufficient. He said the employer could have taken the keys away from her, taken her to a hotel or called her husband. As a last resort he said the police should have been called.

The employer appealed. The appeal court allowed the appeal on the basis the trial judge had improperly discharged the jury. A three-judge panel of the appeal court tossed out the $300,000 Hunt had been awarded, ruling it was up to a jury — not a judge — to determine how far employers must go to stop intoxicated employees from driving.

The appeal court ordered a new trial on the issues of liability and damages. Therefore it remains to be seen if a new trial will result in a similar finding in respect of the onerous obligations imposed on the employer in this case.

This in-depth look at employer liability was provided by Craig Vander Zee, a litigation and employment law lawyer with Goodman and Carr LLP. He can be reached at (416) 595-2300. He was counsel to Eaton Yale in the case at the trial and appeal along with Carlton Mathias.

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