Parents are not generally liable for the negligence or misconduct of their adult children, including in a social host liquor case.
Goodvin v Penson, 2019 ABQB 867, per Schlosser, Master
Facts + Issues
The Defendants Russell and Shelly Penson owned a acreage in rural Alberta. They left the acreage for Calgary on April 29, 2016. That evening, their 21 year old son Cole hosted a party on the premises where drinking took place. The only knowledge that the parent Pensons had that their son would be entertaining guests on the property that night came from a text from their son to the effect that he “might have people over for cards or something”.
At the party, Cole Penson and the Plaintiff Devn Goodvin (age 22) were drinking. Cole was driving his father’s truck on the property when he collided with Goodvin who was driving an ATV, resulting in serious injury to Goodvin.
Goodvin claimed against Cole Penson in negligence and occupiers’ liability. He claimed against the Penson parents in negligence, for:
- Failing to supervise the party;
- Failing to instruct their son not to drive drunk;
- Failing to take away the keys for the truck; and
- Failing to impose restrictions on the party-goers.
In an Affidavit, Goodvin deposed that a third party (Jobson) was well aware of a propensity in Cole Penson to drink and drive.The Penson parents applied for summary dismissal of the Goodvin’s claim against them for all causes of action other than their statutory vicarious liability for the negligence of their son in driving the truck.
HELD: For the Defendant Penson parents; action against them dismissed except for the possibility of their statutory vicarious liability for their son as the truck’s driver.
The Court held that parents cannot be vicariously liable for the acts or ommissions of their adult children. To be liable the parents must be directly liable in their own right:
5 The starting point is that parents are not vicariously liable for the acts or omissions of their adult children: Taylor [v. King 1993 CarswellBC 209 (B.C. C.A.)];, para 44; Segstro [(Guardian ad Litem of) v. McLean (Guardian ad Litem of), 1990 CarswellBC 1809 (B.C. S.C.)], para 70; Lafarge [v. Blakney 1978 CarswellNB 85 (N.B. C.A.)], para 12; G(J) [(Guardian & Trustee of) v. Strathcona (County), 2004 ABQB 378 (Alta. Q.B.) ;], para 168; Kim [v. Thammavong, 2007 CarswellOnt 7848 (Ont. S.C.J], paras 28-30; Ferrier [v. Hubbert, 2015 ONSC 5286], para 63; and Childs [v. Desormeaux, 2006 SCC 18], para 44.
6 The liability of a parent is not vicarious — certainly not for ‘adult children’ who are legally autonomous. The action has to engage the parents as parties in their own right. Establishing things such as proximity and duty are mandatory.
Master Schlosser noted that a claim against parents in direct liability for the acts of their adult children is an “uphill battle”:
7 It is an uphill battle. There are strong policy reasons against finding parents liable as a matter of course. Adulthood is a reason in itself for negativing or limiting a duty. Essentially, what must be shown is a known risk, a propensity, perhaps a modus operandi, or a similar fact that would bring home the risk to the parents. Perhaps the closest analogy is that of an occupier for the existence of a dangerous condition on their property. This is not a novel ground of liability. The law is long established. Cases engaging a parent’s liability are highly fact-driven.
8 The types of circumstances that might suffice can be (for example):
- a material implication in the
creation of a risk to which others have been invited
(Childs , para 38);
- reasonable reliance that reasonable
precautions have been taken to reduce the risks of a (dangerous)
activity (Childs , para 40);
- breach of a duty to supervise or
control (Lafarge, para 12);
- generally, falling short of the standard expected of parents in a community (Taylor, para 45 and Segstro , para 70).
The Court held that the mere knowledge on the part of the parents that their adult children are hosting a party where alcohol is served on their premises is insufficient to render the parents directly liable, relying on Childs, para 44.
The Master held that on the evidence summary dismissal of Goodvin’s claims against the Penson parents was justified for all but the claim for their statutory vicarious liability arising from Cole Penson’s operation of their truck:
- The Court held:
12 The Plaintiff/Respondent tendered an affidavit from Dayton Jobson suggesting that Mr. Jobson was well aware of Cole Penson’s propensity to drink and drive. However, there is little or no evidence of any particular risk that might have engaged the parents’ responsibility. Certainly, Russell Penson did not admit to any concerns at his Questioning; though I acknowledge that this evidence is primarily self-serving. It appears that the only knowledge the Penson’s had of a social gathering that evening arose from a text that Cole had sent to his mother that he ‘might have people over for cards or something’.
13 Adult children are permitted to drink and to drive (though not at the same time). This is part of the responsibility that goes with turning 16 and getting a driver’s license, or reaching the age of majority. It is not an inherent requirement on the part of a parent to supervise or control these activities. A parent has to have knowledge of a risk and breach the applicable standard of care in (not) trying to prevent it (e.g. Fullowka [v. Royal Oak Ventures Inc. 2010 SCC 5]. In this case, the parents had nothing to do with creating the risk, controlling the risk, failing to set, or enforce rules, or anticipating a hazard they knew or ought to have known about.
- Master Schlosser held that the earlier cases of Oyagi v. Grossman (2007), 2007 CarswellOnt 1699 (Ont. S.C.J.) and Weir-Jones Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd. (2019), 2019 ABCA 49, 201, where summary dismissal against the parents for the antics of their children on their property were dismissed were distinguishable, having been decided before the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.) which imposed a new, lower standard for summary judgment or dismissal.
COMMENTARY
Not only does this decision pass upon the liability of parents with respect to the torts of their adult children in general; it has implications for social host liquor liability where parents leave their children on their property who go on to be tortious. This case would suggest that at least where the children are adults, a claim against the parents is weak and, absent exceptional circumstances, is open to summary dismissal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
