A bar found 20% liable for an impaired driving accident has to pay two-thirds of the plaintiff’s legal costs and wound up paying double for damages what the at-fault motorist paid.
Hummel v. Jantzi, released May 14 by the Ontario Superior Court of Justice, follows a 2019 ruling in a 39-day motor vehicle personal injury lawsuit. Wesley Hummel was catastrophically injured near St. Catharines in the early morning hours of June 7, 2012.
Hummel was a passenger in a vehicle driven by Philip Jantzi (and owned by his father) when the vehicle left a roadway and hit a tree. Jantzi had a blood alcohol level of 0.19% (more than twice the legal limit) when his blood was tested after the accident.
Hummel filed a lawsuit. He named the driver, vehicle owner and All Star Tap & Grill (where Hummel, Jantzi and four other companions had been drinking) as defendants.
In the 2019 ruling, Jantzi was found 80% liable and the All Star was found 20% liable. Ontario Superior Court Justice Gerald Taylor awarded about $12 million in damages.
“Notwithstanding the judgment in this case, it appears that the plaintiffs have accepted the sum of $3 million paid by the defendants together,” Justice Taylor wrote in his recent ruling on apportionment of costs. “Of this amount the Jantzi defendants paid $1 million and the All Star Tap & Grill has paid $2 million.”
The May 14, 2020 ruling does not say how much the plaintiff’s legal costs were.
As a result of the ruling, the vehicle owner and driver together had to pay only one-third of the plaintiffs’ costs. The other two-thirds have to be paid by the commercial host, All Star Tap & Grill. This, Justice Taylor reasoned, is because the auto liability policy has a $1-million limit while the commercial host’s liability policy had a $2-million limit.
All Star Tap & Grill argued in court that the driver was responsible for the majority of the plaintiffs’ damages so the apportionment of liability for the plaintiff’s costs should be the same as the apportionment of liability in the trial verdict.
After factoring in Hummel’s contributory negligence, the All Star Tap & Grill calculates that it is 25% liable and should therefore only have to pay 25% of Hummel’s legal costs.
The fact that the plaintiff was drinking at the same bar makes the math a bit less straightforward. Although the commercial host was only 20% liable, the plaintiff was found contributorily negligent by 25% and the host was found 20% responsible for contributing to the plaintiff’s contributory negligence.
Hummel was contributorily negligent for riding in a vehicle knowing the driver was impaired, not wearing a seatbelt, and encouraging the driver to speed up.
In making the commercial host two-thirds liable for the plaintiff’s legal cost, Justice Taylor cited Rochon v. Macdonald, a 2014 Ontario Superior Court of Justice ruling in a different host liability case. Justice Taylor said cost awards in such cases are at the discretion of the court and must be considered in the context of the specific lawsuit.
One reason for cost awards is to encourage parties to settle, added Justice Taylor.
One of the reasons the trial took 39 days is All Star Tap & Grill’s liability was contested and All Star Tap & Grill contested the quantum of the plaintiffs’ damages, Justice Taylor noted.
Before the accident, Hummel, Jantzi and their four companions had ordered four rounds of 12 glasses of beer each at the All Star. Each glass had about half a bottle’s worth of beer. There was a special deal where each round cost $12, which Justice Taylor characterized as “specifically discouraged” by the Smart Serve program. On cross examination, a server had agreed it is difficult to count the number of drinks any individual patron consumes if a group orders the 12 for $12 special.
Justice Taylor did note the defendants initially rejected an offer by the plaintiff to settle for $2.8 million. The All-Star Tap and Grill offered to settle for $500,000 plus 15% of the plaintiff’s partial indemnity costs and the plaintiff rejected that offer.