June 20, 2019 by Greg Meckbach
Offering 12 beers for less than half price might be a good way for your client to get a crowd of customers into its bar, but it is not necessarily the best risk mitigation strategy.
A Niagara area bar is 20% liable for an accident caused by an impaired driver, the Ontario Superior Court of Justice ruled in Hummel v. Jantzi, released June 13. The damages are greater than $10 million.
Wesley Hummel and Philip Jantzi were drinking with four companions at the All Star Tap & Grill House in the community of Pelham, south of St. Catharines, on the night of June 6, 2012.
They got a special deal, where a group can get 12 beers for $12. Each glass had about six ounces – or half a bottle – of beer.
At about 1:30 in the morning, Hummel was riding in the front seat of a vehicle driven by Jantzi. An accident left Hummel with a catastrophic brain injury. Hummel will never work again and require supervision and treatment for the rest of his life, Justice Gerald Taylor found in his 88-page ruling.
Hummel and his family sued Jantzi and the All Star Tap & Grill. A 39-day trial was held October, 2018 through this past January. There was no debate about whether Jantzi was at least partly responsible. Jantzi pleaded guilty to operating a motor vehicle while impaired by alcohol and causing bodily harm to Hummel.
One exhibit presented in court was a photo – taken shortly after midnight – of a pyramid made of 36 empty beer glasses at the group’s table.
Justice Taylor ruled Hummel is 25% contributorily negligent for failing to wear a seatbelt, getting into a vehicle with an impaired driver and encouraging the driver to speed. This leaves Jantzi mostly liable while the bar is 20% liable.
Lawyers for the parties still have to submit their numbers so the court can finalize the judgement. Justice Taylor did assess the cost of Hummel’s future care at more than $9 million and loss of future income at $1.7 million.
On June 6, 2012, the group of six went to the bar to watch Game 4 of the Stanley Cup finals. They ordered four rounds of the 12-beers-for-$12 special.
A deal of this type is “specifically discouraged” by the Smart Serve program, Justice Taylor wrote. At the time, the bar’s regular price for beer was $4.25 a bottle.
“It was the responsibility of the All Star to be vigilant to prevent someone who was intoxicated from putting users of highways at risk by taking steps to assure that the intoxicated patron would not operate a motor vehicle,” he wrote.
Staff with the All Star had no idea whether Jantzi was in the care of a responsible person, no one asked who the designated driver was and staff did not know how much beer any one person in the group had consumed, wrote Justice Taylor.
The bar’s owner was not there the night of June 6, 2012. The owner told the court, on cross examination, that the bar had no procedure in place to monitor how much any one person drank when the 12 for $12 special was served to a group.
Both employees working that night were Smart Serve qualified.
One of the servers testified that it did not appear that anyone in the group was drinking more than the others.
But Justice Taylor found that Jantzi drank about 20 beers, which is more than one-sixth of the beer served to the group. He also found that the bar did not have enough staff on duty. There were only two servers and no one was at the door, Justice Taylor found.
Jantzi’s blood alcohol level was probably between .22 and .24% (more than twice the legal limit) when he left the bar, Justice Taylor found, citing expert witnesses. Jantzi had a blood alcohol level of 0.19% at 3:10 a.m. when his blood was tested.
A server agreed on cross examination that it is difficult to count the number of drinks any individual patron consumes if a group orders the 12 for $12 special.