Urge no one to drink: when fellow diners share liability
A man who drank with nine colleagues, drove home and killed a cyclist sued the nine for 40 per cent of the damages, arguing that they had failed to see him home safely; the Lanxi court dismissed the claim because they had told him to take a taxi, did not know he had a car and had done all that was required of them. The article sets out the four situations in which fellow drinkers do bear liability, from forcing drink on another to failing to see an intoxicated person safely home.
On 18 August 2019 a report in the Qianjiang Evening News trended on Sina Weibo under the heading "drink-driver kills someone, sues the colleagues at his table". The report ran as follows. On a day in February this year, Lao He drank several glasses of liquor at a dinner with nine colleagues. When the meal ended his colleagues told him to take a taxi home. Instead of taking a taxi, however, he went to fetch his own car and drove home, and on the way collided with a cyclist, Li, who was injured and died after being taken to hospital. The traffic police found Lao He wholly responsible and Li not at fault. Lao He subsequently reached a compensation agreement with the deceased's family.
Lao He then sued the nine people who had dined with him in the Lanxi City People's Court, arguing that they had drunk with him, had failed in their duty of care and attention, and had not safely escorted him home, so that he drove home drunk and had the accident, and that they should bear 40 per cent of the compensation.
The court held that the defendants had taken Lao He to the appointed place and told him to take a taxi home; that Lao He had not driven to the dinner, so the defendants did not know where his car was and had not heard that he intended to drive home; and that the nine defendants had therefore performed their duties to remind, look after, protect and notify. The claim was dismissed at first instance.
Once the story trended, readers said Lao He's conduct was both shameless and absurd: he had drunk and driven in disregard of the lives of others, and then tried to drag his friends into it and make them share the responsibility. Having made his own mistake, he looked for the cause in other people, a display of character that left people astonished. The episode gave readers something to laugh about and sounded the alarm once again: do not drive after drinking, and do not drink if you are driving.
In what circumstances do fellow diners bear liability?
Some readers also worry that they may one day be caught up in something similar, since dinners and drinks with friends at the same table are unavoidable. In fact, so long as the duties to dissuade, notify, assist, escort and look after are performed, liability can be avoided.
Under the Tort Liability Law of the People's Republic of China and related legislation, in most cases the drinker who suffers the harm bears the loss. In the following circumstances, however, those who drank with that person also bear liability.
1. Knowing that the drinker cannot drink.
Where drinking brings on a heart condition, myocardial infarction or similar illness in the drinker, causing disability or death, whether the others knew of that person's state of health is the precondition for fault-based liability. If they did not know, and urged only a small amount of drink which then triggered the illness, they bear no fault-based liability, though they may bear part of the loss on the principle of fairness. If, not knowing, they urged a large amount of drink, they bear liability for the loss.
2. Pressing drink on another.
Where there is clear pressure to drink during the meal, or drink continues to be pressed on a person who is already drunk, has lost clear consciousness and cannot control himself, the person pressing the drink bears liability for the resulting harm.
3. Failing to dissuade driving, swimming or strenuous exercise after drinking.
Under the Tort Liability Law, where a person knows that another is going to drive after drinking and does not dissuade him, those who drank with him bear some responsibility if an accident occurs, since they are obliged to stop an intoxicated person. If they did dissuade him and he ignored the advice, they are not liable.
4. Failing to see an intoxicated person safely home.
Whether those who drank with a person bear liability where he is not seen home and later falls and injures himself depends on his state of mind at the time. If he has lost, or is about to lose, control over himself and cannot direct his own conduct, those who drank with him are under a duty to look after him. If they do not take him to hospital or see him safely home, or do not ensure that someone will look after him within a reasonable time, for example because there is no one at home, they bear liability for any accident under the Tort Liability Law.
Fellow drinkers bear fault-based liability only where their conduct is at fault and that conduct causes harm or loss to another. The rule to remember is therefore: urge no one to drink, and do not drive after drinking.
Drinking and driving harms others and oneself
The most innocent person in this affair was not Lao He's friends but Li, who was struck and killed, and for whom the disaster truly came out of nowhere. Lao He's conduct was not only absurd but contemptible: as an adult he took no responsibility for his own actions and tried to push it onto others, and by driving after drinking in the hope that nothing would happen he was bound to come to grief sooner or later for ignoring the rules.
Drink-driving happens almost every day, and it ruins not only the driver's own future but that of others. One person's mistake causes a lifetime of pain to two families. Refusing to drink and drive begins with the individual, and begins now.