Designated Driver’s Beware

Update:

See story in the Star

See the Ontario Superior Court decision, Inga Richardson  v.  Joey Sanayhie, 2010 ONSC 3000 which was released on May 26, 2010.

In November, 2007 Inga Richardson and her common-law spouse, Joey Sanayhie were invited to a house party. Ms. Richardson planned on drinking at the party and Mr. Sanayhie agreed to be her “designated driver”.

Once at the party, Ms. Richardson drank alot of alchohol and became intoxicated.  As promised, Mr. Sanayhie, as the “designated driver” drove Ms. Richardson home. As this couple were being driven by Mr. Sanayhie, they began to argue.

As the argument increased, Ms. Richardson threatened to jump out of the moving motor vehicle. In response to this threat from his spouse, Mr. Sanayhie continued to drive on the streets of Oshawa and did not slow down or stop the vehicle, which this couple travelled in.

Unfortunately, a drunken Ms. Richardson followed through on her threat and jumped from the moving car. Subsequent to the jump from the car, Ms. Richardson sustained catastrophic injuries to her body and suffered severe brain damage.

After the assessment of the damage that Ms. Richardson sustained; Ms. Richardson launched a civil law suit against her common-law spouse, Mr. Joey Sanayhie.

Ms. Richardson suggested, through her lawsuit, that Mr. Sanayhie had breached his numerous duties of care as the “designated driver”. The lawsuit suggests that Mr. Sanayhie, as the “designated driver” should have supervised her drinking at the house party and prevented her from jumping out of the car, during the ride home on the Oshawa street.

On May 17, 2010 the defendant, Mr. Sanayhie and his counsel, John J.Adair appeared in the Ontario Superior Court in front to Justice Edward Belobaba with a motion under rule 21.01(1)(a) to strike those paragraphs that allege that Mr. Sanayhie, as designated driver, was required to monitor and control Inga’s consumption of alcohol at the party and generally supervise her behaviour. In failing to do so, he breached a duty of care and was negligent.

After listening to the defendant’s motion, Justice Edward Belobaba wrote the following:

” The focus here is on that portion of the pleading that would impose on a designated driver, in the absence of any special agreement, a general duty to supervise and control the alcohol consumption of his passengers and generally ensure that every passenger gets home safely. The defendant says that there is no such duty in law and for good reason. The imposition of these additional duties to monitor and control the passenger’s alcohol consumption would discourage people from ever agreeing to be a designated driver. This would not be in the public interest. The defendant submits that the impugned paragraphs do not disclose a reasonable cause of action and should be struck.

I agree with the defendant. In my view, there is no chance that a sensible trier of fact would impose such duties on a designated driver. The impugned paragraphs are certain to fail. The motion to strike is granted.”

Justice Edward Belobaba also wrote:

” Joey did not invite Inga to subject herself to a risk that he created or controlled. There is no evidence that the relationship between Joey and Inga was one in which Joey exercised power and control over a vulnerable and dependent spouse or that Inga reasonably relied on Joey to supervise and control her alcohol intake whenever they went out to a party.”

” The fact that Joey and Inga were living together does not mean that Joey, as the designated driver, had a duty to monitor and curtail Inga’s consumption of alcohol. There is no evidence of any specific discussion or agreement wherein Joey promised to do so. Absent such agreement, Joey was under no obligation to monitor and limit Inga’s alcohol consumption.”

In addition to this portion of the suit being struck, counsel agreed, on consent, to an order also to go to striking paragraph 7 and that portion of paragraph 12 that refers to the Occupier’s Liability Act. Counsel agree that occupier’s liability is not a viable basis for the plaintiff’s claim.

This is an important victory, considering what the consequences may have been, for all “designated drivers” if Justice Edward Belobaba had ruled in Ms. Richardson’s favour.

Now a trial must take place to decide on the other issues raised by Ms. Richardson and her counsel in the lawsuit as to whether or not Mr. Sanayhie was negligent or somehow responsible for not driving slower or stopping once Ms. Richardson had threatened to jump from the car while it was in motion.

In relation to the continuation of this matter,  Justice Edward Belobaba wrote:

” The defendant does not seek to strike the paragraphs that allege that Joey was negligent in the operation of the motor vehicle. The paragraphs that allege negligence in not slowing down or coming to a stop once the threat to jump out was made by the intoxicated passenger remain intact.”


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