Drinking Establishment and Driver share liability when Passenger sustains Catastrophic Brain Injury

A passenger sustained a catastrophic brain injury and skull fractures in a single-car collision, when the driver lost control and hit a tree at the side of the road. The driver was speeding and failed to obey a stop sign at an intersection, and he plead guilty to the charges of impaired driving and causing bodily harm to the accident victim.

The car accident occurred after an evening of drinking with friends at a Pelham and St. Catharines area bar. At the time of the accident, both the accident victim and driver were intoxicated and evidence suggests that they were impaired when they left the bar but bar employees failed to take steps to prevent over-serving and ensure the patrons had a safe ride home.

The plaintiffs (including the injured passenger, his parents and siblings) commenced a lawsuit to recover damages from the driver and the owner of the vehicle, for negligence in causing the accident.  The drinking establishment, All Stars All Stars Tap & Grill, was also named as a defendant in the lawsuit, for serving the driver alcohol until his ability to drive became impaired and for failing to take reasonable steps to prevent the defendant from driving once he became impaired.

In Hummel v. Jantzi (2019), the personal injury action proceeded to trial.  The issues to be resolved include: the restaurant’s liability; whether the injured passenger was contributorily negligent; and the amount of damages sustained by the accident victim and his family members.   The following facts were undisputed:

• the driver was negligent in his operation of the motor vehicle, given that he was speeding (80 km/hr in a 50 km/hour zone), ran a stop sign and was impaired by alcohol
• the driver owed his passenger a duty of care
• the vehicle owner is also liable for the plaintiff’s damages, pursuant to the Highway Traffic Act, s. 192(2)

Background

Along with four other friends, the driver (Philip Jantzi) and the accident victim (Wesley Hummel) made arrangements to watch a Stanley Cup final hockey game at ‘All Stars’ in Fonthill (Pelham) Ontario, on the evening of the accident.  Before driving to the bar, the group of young people met at the plaintiff’s residence in Fonthill.  Jantzi drove himself and another friend, Greg Kozachenko, both of whom lived in nearby St. Catharines, and the two arrived in Fonthill around 8 p.m., where they and two other friends, including the plaintiff, drank beer that had been supplied by Mr. Jantzi.  Mr. Jantzi stated that he did not consume more than one or two beers at the Hummel residence (out of possibly 12 beers that he brought) and he was sober when he drove to the bar.

Jantzi drove the three other men as well as two female friends to the bar. One of the females had to sit on the other’s lap in the front seat, as the car was only meant to accommodate five occupants.  Jantzi testified that they all drank quite a bit of beer; “everyone in the group got drunk”; and none of the ‘All Stars’ employees asked them who was the designated driver.  

Jantzi drove the group back to the Hummel residence at around 1 p.m., and he testified that he then decided to stay overnight because he was aware that he shouldn’t be driving (although he didn’t know exactly how much beer he had consumed).  He also stated that he was offered some wine but only took one sip and left the rest.  Then, the plaintiff allegedly asked Jantzi to drive him to buy some cigarettes at a nearby 24-hour gas station, so Hummel, Jantzi and Kozachenko left in the car, with Kozachenko in the back seat.

Testimony by several friends corroborated the fact that no one at the bar expressed an interest on how they were getting home.  The friends also agreed that they had all consumed quite a bit of alcohol at ‘All Stars’ (but didn’t know quite how much) and the young men, at least, were drunk when they left the bar.  Both of the female friends stated that when they asked who would be driving them to the Hummel home, one of the young men told each of them that Jantzi was a ‘pro drunk driver’.  And, the two females respectively gave evidence that Jantzi’s driving was ‘reckless’ and ‘erratic’ when they left the bar.

The car accident occurred at 1:37 a.m. while returning to the Hummel home after three of the male friends went for cigarettes at the gas station. Neither Jantzi or Hummel were wearing seat belts at the time of the crash. 

Jantzi told police at the scene that the guys in the car “were telling me to go fast, so I did” but admitted it was “stupid” to go along with their request.   At the trial, Jantzi testified that Hummel, the plaintiff, reached over and grabbed the steering wheel just before he lost control of the car and when they were nearing the intersection; but Jantzi said he initially withheld this information because he didn’t want to blame his injured friend when it was possible he may not survive the crash. Jantzi also said that he reached over to punch Hummel for grabbing the steering wheel and was then unable to react to get the vehicle back under control. 

All three of the car occupants were injured in the accident, but Hummel’s injuries were by far the most severe.  Hummel, who was seated in the front seat, sustained a catastrophic brain injury and skull injuries, and was airlifted by ambulance to a Hamilton General Hospital. The driver, Jantzi, suffered a severely fractured ankle, and the rear seat passenger, Greg Kozachenko, sustained a head injury.  Both were taken by ambulance to hospital.  

Is the bar, ‘All Stars’ negligent and liable?

With regards to the actions of the drinking establishment, the owner of the bar, Jovica Stankovic, stated that all bar employees must have a Smart Serve certificate and follow Smart Serve rules.

The Smart Serve workbook was introduced at evidence during the trial and includes the following rules and suggestions for bars and servers.

• Pursuant to the Liquor Licence Act, a server must not serve alcohol to the point of a customer’s intoxication
• If a guest is intoxicated, “the server and/or licensee have a further “duty of care” to protect the guest and others from the dangers that relate to the guest’s intoxication” until the guest is again sober.
• Avoid practices that encourage immoderate drinking, such as discounted liquor prices
• Servers should count the drinks served to a patron to avoid intoxication because patrons may be too drunk to drive but may show no signs of intoxication.
• Employ ‘Chat and Check’ when greeting and seating patrons, which includes finding out whether they were drinking before they arrived and are driving.
• Establish a house policy to facilitate responsible serving of alcoholic beverages.
• Promote food sales, as food and non-alcohol drinks consumed during drinking will slow down the rate of alcohol absorption

Stankovic testified that ‘All Stars’ staff “are expected to use common sense to avoid over-serving beer”.  And, if someone appears intoxicated, they will be refused beer and staff should inquire how they will be getting home.  However, the owner admitted that staff didn’t keep track of how much each person in a group drank during the ‘12 for 12 special’ typically held on Wednesdays, which was intended to bring in younger patrons.

The manager of the bar, who was on duty on the evening of the accident, also testified and said that servers were strict about checking identification for customers. She further stated that she remembered the group of friends and had time to chat with them, and she noted that they were well-behaved and appeared “perfectly fine” when they left the bar.

Findings

Two experts in the metabolism of alcohol gave opinions on Jantzi’s likely blood alcohol concentration (BAC) at the time of the accident.  Dr. Rosenboom, a pharmacology expert specializing in how alcohol metabolizes and effects human behaviour, testified that Jantzi likely had a BAC between 217 and 254 when he left ‘All Stars’, and between 207 and 229 at the time of the accident.  At this level of BAC, he would have showed observable signs of intoxication, including slurred speech, red eyes, staggering and stumbling, and impaired fine motor skills.  An expert in forensic toxicology, Dr. Corbett, also testified and he calculated that Jantzi’s BAC was between 192 and 242 at the time of the accident.

Justice Taylor considered the following circumstances and actions taken by ‘All Stars’ staff as they pertained to the question of the bar’s liability. 

• Jantzi drank much more than his share of alcohol that was served to the group of six friends
• The bar had only two servers and no one at the door to check identification, contrary to the manager’s statement that ‘All Stars’ is strict about checking ID.  Further, none of the friends remembered being asked whether they are of legal drinking age (although the two female friends were just weeks past their 19^th birthdays and could conceivably have been younger than legal drinking age).
• No water was served or food offered to the group of friends.
• The two staff assumed that everyone in the group was drinking the same amount out of the 12 for 12 special and there was no attempt made to count drinks. 
• The price of 12 ounces of beer in the ‘special’ was discounted to $2 versus the normal cost of $4.25  
• The group was not asked whether they have a designated driver or how they would get home.
• Jantzi exhibited obvious signs of intoxication when leaving the bar, based on the above expert testimony as well as evidence given by several in the group

Pertaining to ‘Civil liability’ under the Liquor Licence Act, if an employee sells alcohol to a person “whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person”, then the other person may recover damages against the person who, or whose employees, sold the alcohol. 

Justice Taylor stated that ‘All Stars’ owed a duty of care to the plaintiff and the bar should have been vigilant in preventing an intoxicated person from putting other road users at risk.  And, because it was common for patrons to leave the location of the bar by car and there was no evidence that public transit was available, it was extremely likely that patrons would drive after leaving the bar.  However, bar staff failed to fulfill their responsibilities set out by the Smart Serve program (as noted above) and therefore, Justice Taylor concluded that ‘All Stars’ breached their duty of care to the plaintiff.  The judge also dismissed the defendant’s argument that the bar was absolved of its duty of care when the group reached the Hummel residence safely before setting out again to buy cigarettes, since (under Smart Serve) a drinking establishment continues to be responsible to patrons until they are sober.    

Justice Taylor found ‘All Stars’ 20 percent liable for the plaintiff’s damages and Jantzi 80 percent liable.  The judge then considered whether the plaintiff is contributorily liable for his own injuries.

Is the accident victim contributorily liable?

Evidence given by experts revealed that Hummel’s BAC when leaving ‘All Stars’ was between 122 and 152, which can effect thinking and risk-taking and can result in observable signs of intoxication.  The judge held that ‘All Stars’ is 20 percent liable for over-serving alcohol to the plaintiff, for the same reasons as applied to Jantzi.

Three qualified experts in biomechanics and accident reconstruction testified at the trial and they concluded that the vehicle was moving towards the left at approximately 80 km/hr when it struck the tree.  However, the two experts in biomechanics disagreed on whether Hummel would have suffered a right skull fracture if he had been restrained by a seat belt.  One expert believed a properly restrained front-seat passenger would not have struck the car’s interior during the initial impact, although a passenger may have suffered a concussion during the post impact vehicle rotation.  The other expert believed that the skull fracture did result when Hummel’s head struck the B pillar when the vehicle rotated after hitting the tree.

Justice Taylor accepted the latter opinion and believes that the plaintiff would have suffered a skull fracture even if wearing a seat belt; however, the judge opined that the injury would have been less severe.  The judge also noted Jantzi’s evidence that his friends encouraged him to drive faster, which Jantzi maintained from the beginning.  And, Justice Taylor pointed out that the plaintiff knew that Jantzi would be the designated driver and Hummel had substantial opportunity to see that Jantzi was intoxicated and in no condition to drive safely; nevertheless, he chose to ride as a passenger in Jantzi’s vehicle. On the other hand, the judge found he could not accept Jantzi’s testimony that Hummel grabbed the steering wheel because Jantzi made no mention of this until well after the crash.  Justice Taylor concluded that Hummel was contributorily negligent; accordingly, Jantzi’s liability should be reduced by 25 percent.  Further, the judge found that ‘All Stars’ is 20 percent liable for over-serving alcohol to the plaintiff, for the same reasons as their failure in duty of care to Jantzi.

Awarded damages

Initial tests at the Hamilton hospital indicated a Glasgow Coma Scale reading of 5, which signifies a marked impairment of consciousness, and a CT scan revealed a depressed skull fracture of Wesley Hummel's right side.  His immediately identified injuries include brain injury and several skull fractures, homonymous hemianopsia (left-sided vision deficit) including a subarachnoid hemorrhage, subdural hemorrhage, diffuse axonal injury and intraparenchymal hemorrhage.  The injured man underwent surgery to remove bone fragments in his skull, and relieve pressure and swelling in his brain. 

Wesley Hummel suffered a catastrophic traumatic brain injury (TBI) that involves the loss of one third of his brain cells. His injuries include multiple skull fractures, left-side homonymous hemianopsia (left-side vision deficit), fractures of the transverse process of the L2-L4 vertebrae and a small bilateral pulmonary contusion.  The brain injury also caused cognitive deficits, seizures, and multiple complications, including speech difficulties and a lack of coordination on his left side.  And, he is unlikely to experience any further recovery.

Prior to the accident, the plaintiff was employed as a finish carpenter. He was a healthy young man who enjoyed various sports activities; was involved in his church; and had an active social life.  But his life changed drastically as a result of his injury. He will never be able to return to work, needs constant supervision, and can no longer drive a vehicle.  Hummel will also require ongoing treatments, including rehabilitation therapy, for the rest of his life.  And, although he has a devoted family and was not experiencing significant pain at the time of the trial, the judge concluded that he suffered a substantial loss of enjoyment in life.  On this basis, Justice Taylor awarded general damages for pain and suffering in the high range.

In summary, the following damages were assessed for Wesley Hummel:

• $300,000 in general damages
• $1,741,863 for future loss of income to age 65
• $356,627 for gross past loss of income
• $9,055,000 for the cost of future care, including attendant care and various therapeutic treatments.  Also included are transportation costs and home maintenance to age 80.
• $40,000 for an OHIP subrogated claim

In addition to the accident victim's damages for his personal losses, under the Family Law Act, the judge awarded damages to Hummel's parents and siblings for loss of care, companionship and guidance.  Damages for each of his parents was assessed at $175,000 and his four siblings were each awarded $25,000.   Note that the awarded damages will be adjusted based on the findings of contributory liability and negligence.

This tragic accident serves as a warning to drinking establishments who focus on selling patrons as much alcohol as possible to the point of intoxication without due care to their safety.  It's also a reminder of the importance of arranging a safe ride home when you drink.  

If you or a loved one were injured as a result of driving negligence, talk to an experienced car accident injury in your community and find out if you have legal grounds to make a claim for compensation.