The case against a baseball team operating a beer tent at a tournament in commercial host liquor liability was dismissed after a summary trial despite the lack of a system to monitor patron consumption, because the evidence did not establish that the team had over served the plaintiff or that he was exhibiting signs of intoxication, or that any intoxication contributed to the accident.
Knibb v. Foran, 2017 ABQB 375, per Eidsvik, J. 
FACTS AND ISSUES
A baseball team organized a baseball tournament, at which team member volunteers operated a beer tent where they sold Molson beer and food. The proceeds were to be used to purchase new team uniforms and other sundries for the team. They had a rule prohibiting patrons from bringing their own beer into the tent. There was a conflict in the evidence as to whether or not they had an understanding among themselves not to serve visibly intoxicated patrons or to preclude such patrons from driving home. The team did not have a system to monitor the amount of alcohol served to patrons.
Alcohol was only sold at the tournament through the beer tent. However, the evidence was that it was normal for alcohol to be brought to the location of tournaments by others in coolers. A drinking game was played for one game where beer coolers were at each base and every time a player made it to a base a beer could be consumed. There was no evidence as to who organized that game or supplied the beer.
The Plaintiff Knibb was a 22-year-old man with a history of alcohol abuse. The evidence established that such persons can develop a tolerance for alcohol such that their display of outward signs of intoxication is reduced. He was living with his aunt and uncle and working on their farm.
The Plaintiff refused his uncle’s invitation to come to the tournament with him that morning. His uncle recalled that he eventually showed up but could not recall when. The Plaintiff ultimately joined his uncle at a table in the beer tent (at a time not precisely known) and the group drank beer at the table while watching a Stanley Cup final game on TV (which started at 6:18 p.m.). When a friend joined them at 8:00 – 8:30 p.m. he noticed that the Plaintiff had a can of Molson’s in his hand. Nobody saw the Plaintiff buy that (or any) beer. When the friend left the group at 9:52 p.m. he noticed that the Plaintiff had a beer in his hand but did not know whether or not it was the same beer that he had when the friend first joined the table. Nobody saw the Plaintiff get up from the table as if to buy a beer or anyone buying him a beer.
The beer tent cleared out at 9:52 p.m. after the game ended so the Plaintiff had likely been in the tent for about three hours. It was known by all that the Plaintiff did not own a vehicle and thus would be walking home. This was a short distance, given that it was a two to three minute drive. There were two bars located one block from the beer tent in the direction towards the Plaintiff’s home.
The Plaintiff’s blood alcohol level established by hospital blood tests at 12:23 a.m., after the accident, was approximately 228mg/100ml (as compared to the legal driving limit of 80mg/100ml). This suggested that the Plaintiff had 8.7 – 10.7 beers in his system (and perhaps more, depending on the assumptions used). The expert extrapolated that under one scenario, the Plaintiff’s blood alcohol level at the time of the accident would have been 243 – 258mg/100ml and 200 – 230mg/100ml back at 9:00 p.m.
The accident occurred at 10:53 p.m., more than an hour after the Plaintiff left the beer tent. He was walking down a country road with his back facing traffic. Although there was no traffic other than the Defendant Foran’s vehicle, Foran had been drinking himself. Accident reconstruction evidence established his speed at 61 – 70km/h in a 50km/h zone. Immediately before the accident, Foran was distracted by a child in the back seat. When he returned his gaze to the road in front of him, it was too late for him to drive around the Plaintiff.
HELD: For the Defendants; action dismissed.
1. The Court summarized the duty of care and post upon commercial hosts and found that in this case, the defendant team members were commercial hosts:
 The law with respect to the duty of care of a commercial host is relatively settled: Jordan House v. Menow 1973 CanLII 16 (SCC),  SCR 239; Stewart v. Pettie 1995 CanLII 147 (SCC),  1 SCR 131; Childs v. Desormeaux 2006 SCC 18 (CanLII),  1 SCR 643, Calliou Estate v. Calliou Estate 2002 ABQB 68 (CanLII) at para 33. A vendor of alcohol in a commercial setting owes a general duty of care to those to whom they serve alcohol and to those who may be affected by the conduct of these patrons (who are most often users of the highway).
 Here the Team Members profited from the sale of alcohol for their team and as a result, they were entrusted with special responsibilities and a special relationship to the public to curtail the risks associated with that trade (see Childs at para 37). These responsibilities, or duties, included monitoring the amount that a patron is drinking to ensure no over consumption, and if there is intoxication, that is known, or ought to have been known, that the commercial host make enquiries and ensure a safe passage home for that patron.
 In Pettie however the Supreme Court cautioned that although the existence of a “special relationship” will frequently warrant the imposition of a positive obligation to act, the Plaintiff must also prove that there is foreseeability of the risk. “Where no risk is foreseeable as a result of the circumstances, no action will be required.” (see para 49). The foreseeable risk will arise if the commercial host is aware, or should have become aware through proper monitoring of the alcohol service, that the patron has become intoxicated and that he is in potential danger to himself or others without intervention.
2. Court held that the team members were commercial hosts. They had served alcohol to patrons of the beer tent, earning profits that went towards the team’s expenses.
3. While it was a “reasonable possibility” that the Plaintiff had been served beer by the team members in the beer tent that night, the Court held that it was not safe in the circumstances to infer that they had actually done so. Nobody saw him buy any beer or anybody else buying one for him. Beer had been brought to the tournament by others. Although he seemed to be drinking the same brand that was served by the beer tent, Molson’s is a common brand and could well have been brought onto the tournament facility by others.
(a) The Court concluded as follows:
 In my view, it would be a reasonable possibility to find that Mr. Knibb was served some beer in the tent that night. It is not an all (10 beer or so) or nothing proposition as argued by the parties. Frankly, the basic problem here is that there is an evidentiary gap about what, where and when Mr. Knibb drank in order to get as intoxicated as he did. I am cognizant that Mr. Knibb has the burden of proof, and that with this evidentiary gap, it may be unsafe to speculate to fill in the gaps by way of the inference the Plaintiff asks that this Court to make considering that it has been somewhat neutralized by another possible theory of what happened that night.
 More specifically, although I can accept that it is a reasonable inference that Mr. Knibb may have purchased some beer at the tent (maybe the two he was seen drinking), especially considering the time he spent in the tent watching the game, it is not known when or how much he may have purchased them or others, if at all. Or, for that matter whether other people bought him some beer. Accordingly, although I accept that the Team Members most likely acted as a commercial host to Mr. Knibb that night, the gap of evidence about the parameters of their interaction with Mr. Knibb makes it difficult to assess the next factors that need to be proven to assess liability against any of them, as will be discussed below.
(b) The Court also noted that there were two bars between the tournament facility and the Plaintiff’s home, at which he would have had enough time after leaving the tournament facility to have consumed alcohol at one of those establishments before the accident occurred.
4. The Court rejected the Plaintiff’s argument that the evidence established that the Defendant team members knew or ought reasonably to have known that the Plaintiff was intoxicated when he left the beer tent, notwithstanding that they did not have a system for monitoring patron consumption or trained serving staff.
(a) In the first place, it was possible that the Plaintiff (an experienced drinker who may not have exhibited signs of intoxication) was exhibiting signs of intoxication that ought to have been noticed at the time that he left the beer tent. The toxicologist acknowledged that it was possible that the Plaintiff had as little as 200mg/100ml as a blood alcohol level when he left, and he was an experienced drinker who may not have shown outward signs of intoxication as a non-experienced drinker might have:
 Based on the statements Mr. Knibb gave to Dr. Suffield, Dr. Jones agreed that Mr. Knibb would likely have developed a significant tolerance to alcohol. So that it was quite possible that even with a blood alcohol level of 200 to 260 mg %, Mr. Knibb may not have been exhibiting signs of intoxication before he left the tent at 10:00 p.m.
 I am cognizant on this point that Mr. Knibb may have been miss-remembering when he was drinking at this level and I am prepared to accept that he may have tempered his drinking habits somewhat while living with his uncle and aunt. Nonetheless, this is an inexact science and as I said above, I am prepared to find that Mr. Knibb had developed a tolerance to alcohol compared to others and that it is possible that he could have exhibited less signs than others at the same BAC levels of intoxication.
(b) Furthermore, the evidence of people who knew the Plaintiff well (his uncle and his friend) testified that the he was showing little or no outward signs of intoxication:
 We also however have direct testimony of the uncle and friend which, I agree with defence counsel, is quite compelling about his outward exhibition of signs of intoxication – and that was that there were little to none. His uncle swore that Mr. Knibb was talkative and that you could tell that “he had a few drinks in him”. Mr. Finlay agreed that Mr. Knibb did not look intoxicated while sitting with him that night. Neither speaks of any significant level of intoxication which would have suggested that he should not have been served by the Team Members nor that the Team Members should have known that Mr. Knibb was intoxicated in the plus or minus 200mg range.
(c) The Court concluded as follows on this issue:
 In sum, we know that Mr. Knibb was intoxicated in that his BAC was well above 80 mg while in the tent, but on the direct evidence it appears that he may well have been one of those drinkers that did not exhibit significant intoxication signs that would have alerted the Team Members to the fact that he was at the level he was.
 However, merely observing the signs of intoxication is no substitute for monitoring the number of drinks consumed by patrons (see Pettie at para 52 and Holton v. MacKinnon 2005 BCSC 41 (CanLII) at para 136). The problem here, again, is that we don’t know if and when Mr. Knibb consumed any alcohol purchased from the Team Members. It could be that even if the Team Members had a reasonable monitoring system in place it would not have led them to assume that Mr. Knibb was intoxicated by the time he left the tent because of this gap in evidence. Further, we don’t know when he might have purchased the beer so as to try and ascertain his level of intoxication at that time or how many beers were served to find that the Team Members were derelict in their monitoring duty. It seems common sense that you can only be liable for failing to monitor consumption if the Plaintiff can show at least approximately how much was actually served – as noted above there is a serious evidentiary gap in this regard.
5. The Court held that the circumstances did not establish that the team members had a duty to intervene, even if the Plaintiff’s intoxication should have been known to them, i.e. the Plaintiff did not establish that it was reasonably foreseeable that his intoxication put him in potential danger.
(a) The Plaintiff’s uncle and friend, people who knew and cared for him, did not intervene and, if they did not, it could not be said that the Team Members ought to have:
 The significant problem that the Plaintiff has with his argument is that even if he could have shown that he was served alcohol to a certain point of intoxication (the level of which is very unclear when he left the tent), would it have been reasonable to expect the Team Members to stop him from walking home? His uncle, who left shortly beforehand, did not feel that it was necessary to intervene and offer his nephew a ride home. The Plaintiff says this was because he was still mad at him for not helping at the baseball tournament. A more logical explanation in my view, is that he left him only because he thought that he could walk home safely. The distance between the baseball diamonds and home was quite short – Mr. Noren said that it would take him “2-3 minutes” to get home by car. An uncle, upset or not, would not have left his nephew if he thought that he was so intoxicated that he would need assistance home – I simply find this proposition hard to believe and it does not coincide with the evidence.
 So if a reasonable person would not intervene, and one who obviously cared personally about Mr. Knibb’s wellbeing, not just because he owed any sort of legal duty of care like a commercial host, how can it be said that the Team Members should have intervened? In my view the evidence does not support such a finding.
. . .
 In my view, this case is akin to the Pettie case where the Supreme Court discussed the foreseeability of risk even when a “special relationship” has been established as a commercial host. In Pettie, it was reasonable in the circumstances that the sober persons who were with the Plaintiff would take care of him on his way home. Similarly here, had they known of Mr. Knibb’s level of intoxication, it would have been reasonable for the Team Members to assume that Mr. Knibb’s friend and uncle would take care of him if necessary to ensure his safe passage home since they all left at approximately the same time as far as we know. It is not reasonable therefore to find that the Team Members owed a duty of care in these circumstances to intervene in Mr. Knibb’s planned way home.
6. The Court having ruled that a duty of care had not been established, it did not have to rule on whether or not the standard of care imposed on the Team Members as commercial hosts had been breached. However, Court held in obiter dicta that she would have held that the standard of care had not been breached in the circumstances.
7. The Court held that the Plaintiff’s evidence had not established causation linking any negligence on the part of the Defendants to the Plaintiff’s ultimate accident.
(a) Acknowledging that the Plaintiff may have been negligent in walking with his back to traffic, this conduct may not have been caused by any intoxication on his part, and he was not seen to be staggering or otherwise exhibiting outward signs of difficulty at the time of the accident:
 Mr. Knibb was walking with his back to traffic. It might possibly have been safer to have been walking against traffic in this situation and he could have also then walked in the shoulder instead of in the driving lane proper.
 Dr. Jones indicated that at the time Mr. Knibb was struck he was likely at the level of intoxication that he equated to the “Excitement stage” and this includes issues such as “loss of critical judgement”. However, it is not a given that Mr. Knibb’s level of intoxication led him to act negligently. When he was hit he was walking the right direction on a quiet road towards his home three to four feet from the side of the road where there was lots of room for any car or truck to get by him. He might well have walked the very same way many times before stone cold sober. It is a far cry from the facts in Jordan where the Plaintiff was “staggering” in the middle of a busy highway on a cold, dark and rainy night.
(b) Additionally, the negligence of Defendant Foran clearly contributed to the accident such that it may have occurred regardless of the level of the Plaintiff’s intoxication. The Court expressly held that the “material contribution” test on causation did not apply to the Defendant team members here:
 In any event, even if it was negligent for Mr. Knibb to walk down the road as he was, can it be said that his intoxication contributed to this collision? But for Mr. Foran’s obvious negligence in taking his eyes off of the road, failing to watch where he was going, and speeding, this collision was completely preventable. There was a lot of room to have driven around Mr. Knibb.
 The Plaintiff argues that the “material contribution” test should apply here since it is impossible to show which act or acts contributed to the risk of injury. This argument presupposes that I have found that the Team Members had some negligence that contributed to the injuries vs. Mr. Foran’s negligence. I find that there is not a proven causal relationship as discussed. Accordingly, the “material contribution” test is not applicable in these circumstances.
8. In summary the Court concluded as follows:
 In sum, as discussed above in detail, the case against the Team Members suffers many frailties: 1.a gap in evidence about whether and how much Mr. Knibb may have consumed in the beer tent, and even once I infer that he drank some beer purchased from the Team Members, it is unclear how much or when it was purchased. 2. A gap in evidence about whether Mr. Knibb had already drank alcohol before he arrived, whether he brought alcohol into the tent from the fields, and whether he drank after he left the tent and before the collision. 3. The fact that he was with a friend and relative that did not think that they needed to intervene to get Mr. Knibb home safely hence making any risk of harm unforeseeable on the part of the Team Members. 4. The fact that Mr. Knibb was walking, not driving, a short way home on a quiet country street when he was hit. 5. And finally my finding that Mr. Knibb’s intoxication did not contribute to the collision with Mr. Foran who was clearly negligent and caused this collision.