Page 20 - GBC Fall Eng 2016

It should also be noted, though, that before a course can be held liable for injuries sustained by a person, the plaintiff in any civil action (the allegedly injured party who sues a golf club) must establish that the course was negligent and was in breach of a duty of care arising from a foreseeable and unreasonable risk of harm. Two seminal decisions rendered by the Supreme Court of Canada provide additional insight: Menow v. Honsberger and Crocker v. Sundance Northwest Resorts Ltd.
Menow v. Honsberger
In the Menow decision, the plaintiff (Menow) was a regular in the defendant’s bar. He had a propensity to drink to excess (he had previously been barred from this establishment for about a year before being permitted to return) and was well known to both the owner of the bar and its employees.
On the evening in question, the plaintiff commenced drinking with his employer (who left after a brief period) and continued to drink until 10 p.m. and past the point of visible or apparent intoxication. When Menow started to become a nuisance, the owner, who was aware of Menow’s deteriorating condition, insisted that he leave
(“probably...on foot” as he later told the trial court) by way of a busy street (which turned out to be Highway 8). Shortly thereafter, Menow was struck by a car and severely injured (the driver was also found to have been partially negligent).
In upholding the lower court’s decision, the Supreme Court effectively laid down the basis for a finding of liability with respect to commercial hosts and a patron. Since a finding of liability is predicated upon fault, the “guiding principle” assumes a nexus or relationship between the “injured person” and the “injuring person” which makes it reasonable to conclude that the latter owes the former “a duty...not to expose him to a reasonable risk of harm”.
Further, in assessing the risk of injury to a person (here Menow), consideration has to be given to the probability that a defendant’s (the bar) actions could result in injury: that it was “reasonably foreseeable” or probable that plying Menow with alcohol and sending him home without adequate protection or assistance, could result in his coming into contact with a car.
The Court then considered the relationship between the hotel and Menow and whether there was a nexus or relationship, close enough in proximity between the parties so as to impose a duty of care on the defendant hotel.
“It is imperative
that servers monitor every
patron’s consumption from the first tee to the 18th hole and that a proper record is kept.”
The Court concluded that there was: given the nature of the relationship between the parties (an invitor-invitee), the hotel’s/ servers’ awareness of Menow’s condition and then turning him out on to the street “created a probable risk of personal injury...if he was turned out of the hotel to proceed on foot on a much-travelled highway.”
The hotel had a duty to take steps to ensure that Menow arrived home safely. The hotel had options: putting him under the care of someone, for example, or not send him home until he was reasonably fit to look after himself. The harm and the injuries sustained were “reasonably foreseeable by reason of what the hotel did (in turning Menow out) and failed to do (in not taking preventative measures)”.
CroCker v. sundanCe nortHwest resorts Ltd.
In the Crocker decision, the Supreme Court again considered the obligations of a commercial host, but this time, within the context of a sporting accident held on the defendant’s premises.
20 Golf Business Canada