A look back at Crocker v. Sundance Northwest Ltd.
Photo by Antoni Shkraba
What duty of care is owed to drunk patrons? While every scenario is dependent on its own facts, Canadian courts have often ruled in favour of the intoxicated. Here, we look at one of the most controversial cases on the subject.
In 1988, the Supreme Court of Canada grappled with the question of fault in Crocker v. Sundance Northwest Ltd. William Crocker was rendered a quadriplegic after a drunken snow tubing accident. The highest Court, in a unanimous decision, determined that social hosts do indeed have a duty to protect guests from their drunken mishaps. This is especially true when the host is a business.
Facts of the case
The respondents, Sundance Northwest Resorts Ltd., were owners and operators of a ski resort near Thunder Bay, Ontario. The ski resort’s “Sundance Spring Carnival” was a ruckus atmosphere. Alcohol was readily available, with sponsors including Molson Brewing.
To inspire a competitive and lively atmosphere, the Carnival offered $200 in prize money to the winners of the inner tube race event. Participants raced down Hanson Hill, a slope dotted with moguls, atop oversized inflated inner tubes. The goal was to reach the finish line with both team members still on their tube. There was no plan to modify the event for future participants, despite injuries in the past.
The plaintiff, William Crocker, was a 29-year-old intermediate skier, and member of the Sundance Ski Resort. He was well known at the resort’s bar for his heavy drinking habits. A few weeks prior, Crocker and his race partner, Richard Evoy, had even been denied access to a Sundance Hotel due to intoxication.
On March 19th, 1980, Crocker and Evoy watched a promotional video for the tubing event in the resort bar. This video prompted the men to register for the inner tube race occurring in 2 days. Both men registered, paid the $15 fee and signed the Release (waiver) for the race. Crocker claimed that he did not read the actual terms of the Release before signing, unaware that the form constituted a legal document. Sundance did not specifically explain to him the contents of the Release, or verify his understanding of the document, which read:
I hereby release Sundance Northwest Resorts Limited, any of their agents, from any and all damages sustained and consequences of loss, injury or damage to any personal property, from any or all actions, causes of actions, claims and demands of any nature including, without limiting the generality of the above, all and any recourses resulting from any decision of Sundance Northwest Resorts Limited or their agents.
On the morning of the race, Crocker’s breakfast consisted of a bottle of rye mixed with two 26-oz bottles of Pepsi, which he shared with Evoy. Both men were noticeably inebriated by the time they arrived at the hill. Despite that, they were served more alcohol at the resort bar, while wearing race participant bibs.
The first heat finished with Crocker and Evoy being the winning team. Following this heat, Crocker was observed drinking brandy offered to him on the hill by the Molson beer representative. He then purchased two more drinks. Sundance owner, John Beals, questioned Crocker’s ability to compete in the next heat – Crocker convinced him that he could. Neither Beals nor any other resort employees intervened to prevent Crocker from participating. Race marshal Ms. Durno recommended that Crocker withdraw from the race. However, after Crocker insisted on continuing, she noted that his signed Release made it his choice to participate, regardless of the consequences.
In the second race, the men struck a mogul at a high rate of speed. Crocker was ejected from the tube, landing on his neck. He was paralyzed instantly and rendered a quadriplegic.
Court proceedings
Crocker sued Sundance in Ontario Superior Court. He alleged that the resort was negligent in its duties as a host, by serving him so much alcohol and then allowing him to participate in the tubing event. The Court agreed that Sundance was negligent and imposed 75% of the responsibility for Crocker’s injuries on the resort. Crocker was attributed 25% of the fault. The injured plaintiff was awarded $155,000 in damages.
Both parties appealed to the Ontario Court of Appeal. This time, Sundance was successful. The appeal Court deemed that Crocker surrendered his legal rights when he signed the Release. The Court also found that he had assumed further risk to himself by becoming intoxicated.
Crocker was granted leave to the Supreme Court of Canada in 1988. As expected, Sundance argued that Crocker voluntarily assumed all risks of the tubing race when he signed the Release form. The Court disagreed, stating it was obvious to the Sundance representative that Crocker did not even read the Release before signing it. By not ensuring Crocker’s understanding of the Release, Sundance could not use it as a legal shield.
The Supreme Court ruled that Sundance had a duty of care towards Crocker. The resort was obligated to monitor participant safety during the tubing race. The Court emphasized that Sundance could have, and should have, prevented a grossly intoxicated Crocker from tubing. The Court noted the multiple chances for intervention by the resort, and the foreseeability of serious injury occurring.
Ultimately, the Supreme Court restored the trial judge’s decision. They, too, assessed fault at 75% to Sundance and 25% to Crocker. Crocker was awarded $200,000 in damages (following a further trial to determine the quantum).
Takeaway
Commercial hosts, such as resorts, bars and restaurants owe a duty of care to their drunken patrons. Serving alcohol comes with responsibility – that the host will prevent reasonably foreseeable risks.
In the words of Wilson J. of the Supreme Court:
The fact that Crocker was an irresponsible individual and was voluntarily intoxicated during the tubing competition is the very reason why Sundance was legally obliged to take all reasonable steps to prevent Crocker from competing. While it may be acceptable for a ski resort to allow or encourage sober able bodied individuals to participate in dangerous recreational activities, it is not acceptable for the resort to open its dangerous competitions to persons who are obviously incapacitated. This is, however, what Sundance did when it allowed Crocker to compete. I conclude, therefore, that it failed to meet its standard of care in the circumstances.
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