Page 21 - GBC Fall Eng 2016

The defendant was a ski resort that held a snow tubing competition in which two-person teams would slide down a mogulled portion of a steep hill. Although the plaintiff signed a waiver, he had consumed alcohol and, by the time of the second heat, he was visibly drunk – a condition evident to the defendant’s employees, who later acknowledged that they did not think he should have continued with the competition. However, he was allowed to proceed (and even provided with another tube after he lost the first one).
During the competition, Crocker suffered a neck injury and was rendered a quadriplegic. Though found to have been contributorily negligent to a degree of 25 per cent, the resort was liable for the remainder of the loss.
Citing the Menow decision as a precedent, the Court found that the Resort had “a positive duty to take positive steps to prevent a visibly intoxicate person” from competing in the competition. As the promoter of a dangerous sport, the resort owed Crocker a duty of care to “take all reasonable steps to prevent him from participating in the sport when it was aware that he was visibly intoxicated,” a duty it failed to discharge.
The Court acknowledged that while people engage in dangerous sports regularly, it was not acceptable for the resort to leave a competition
open to individuals who were incapacitated. Again, the resort had reasonable options available: it could have disqualified the plaintiff when it realized he was drunk or simply taken physical measures to prevent him from participating in the event – all of which were easy enough to do. The waiver was ineffective because it did not exclude the resort from liability and, more notably, the waiver was not drawn to his attention – Crocker was unaware that it existed (he had only executed the entry form, to which the waiver was discreetly attached).
APPLICATION TO YOUR FACILITY
What is to be taken from the case law and statutes? What measures and options are available to golf clubs when alcohol is consumed on its premises? There are literally dozens of past examples where a golf course followed the rules, had provincially trained staff serving alcohol and aggressively monitored the consumption of their guests only to be named in a legal action. Regardless of the inability of a golf course to avoid a lawsuit, the reality is that proper risk management is critical and will be your only defense if something goes wrong.
First and perhaps foremost: be vigilant. A golf club, be it private or public could be cast as a profit driven enterprise and it is arguable, if not evident from both the case law and statute, that our courts will impose a greater duty of care on a commercial host.
Every golf course must consider what steps it can take to monitor alcohol consumption both on and off of the course. As a minimum, the appropriate provincial Liquor Service Training Program must certify all golf course employees tasked with serving alcohol, including any employees working at a halfway house or serving from a beverage cart. 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.
LIMIT YOUR EXPOSURE
In the end, incidents both on and off course where alcohol played a role and it was reasonably foreseeable that personal injury could arise therein, can and will place a golf club in a position of increased exposure to significant monetary damages. In addition any and all claims will automatically trigger a significant increase in the club’s annual insurance premiums. Do your best to stay vigilant and train staff appropriately to limit your exposure.
LIqUOR LIABILITY SIgNAgE
The NGCOA Canada has developed liquor liability posters available to you as an electronic download. Visit the following link to download your 8.5 x 11 full colour poster that you may display at your course: http://www.ngcoa.ca/benefits/1729/lower-your-liquor-liability
*The sign wording will not by itself, absolve the Golf Club from liability but will bolster the proof of a Due Diligence defence when integrated with an effective liquor liability protection program. There can be no guarantees that the provision from indemnity will apply as against third parties who have not contractually forfeited any rights to proceed against the Golf Club for its negligence.
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