There is a story out of Canada that could make for a fascinating torts case. Georgian Bay Vodka has been told to recall a batch of its vodka because the bottle shows 40 per cent alcohol by volume, but the alcohol content is actually 81 per cent. Obviously that can present an immediate health risk, but what if someone became intoxicated from a couple drinks and caused an accident? Could this be a case of vicarious liability for inebriation?
Most manufacturers get few complaints for delivering more product than advertised. However, twice the alcohol in vodka could easily lead to people using standard measurements for drinks only to find themselves intoxicated (or above the legal limit for driving) in less than half of the time.
The Liquor Control Board of Ontario issued the recall order for Batch 19 with the LCBO No. 446559. The board found the product not safe for consumption and ordered its removal from shelves.
So what is someone is arrested for DUI and says that they only had on cocktail. The currently low BAL levels make even one drink enough to trigger a DUI charge. This stuff will guarantee it. Can they claim ignorance or mistake? Probably not. The law requires the driver to monitor not just their consumption but physical state. Moreover, given the low BAL levels, any drinking before driving today is dealt with harshly.
Ok, but what if someone gets into an accident? Can they or the third party sue for negligence? That would seem a closer question. The driver would again face tough plaintiff’s conduct questions in failing to properly monitor their own physical condition before going behind the wheel. However, there is often a bit of a delay before alcohol is fully absorbed into the blood stream. (Though the rate of absorption and degree of absorption of alcohol is highest with vodka in comparison to beer or wine). Someone could have had a single drink but then found themselves with a lower response time behind the wheel. Indeed, the level of intoxication could be claimed as not their fault. While the person expected some alcohol, this is a massive difference. The third party might have a stronger claim after all the defective product is directly linked to the accident despite the intervening force of the driver.
Hopefully the recall will avoid such accidents or litigation but it would present rather novel tort issues.
The vodka is produced by the Toronto-based Georgian Bay Gin Company.