Full Case Name:  Chester Whelen, Plaintiff and Donald Barlow and Barlow Hotels Ltd., Defendants

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Country of Origin:  Canada Court Name:  Alberta District Court, Judicial District of Edmonton Primary Citation:  1975 CarswellAlta 242 Date of Decision:  Friday, December 19, 1975 Judge Name:  Crossley D.C.J. Alternate Citation:  [1976] W.W.D. 35 Judges:  Crossley D.C.J. Attorneys:  W.J. Nugent (plaintiff); S.F. Goddard (defendant) Docket Num:  none given

Plaintiff Whelen was drunken, threatening and disorderly in defendant Barlow's hotel bar, where he kept guard dogs for the purpose of preventing break-ins and keeping the peace. After the plaintiff and friends were asked to leave the premises and not return, he later returned, making threatening gestures and was bitten on the face and arm by one of the guard-dogs. The court held that the plaintiff was 2/3 contributorily liable for his injuries, since when he returned he was trespassing; the defendant was 1/3 contributorily liable since the court held that keeping volatile guard-dogs as bouncers was not reasonable.

Subject: Torts

Honour Judge A. W. Crossley:

1     The facts in this case which I find are as follows. On or about the 2nd of April, 1973, at approximately 8:30 p.m. the plaintiff, together with two companions, entered the premises of the Fawcett Hotel owned by the defendant company. The conduct of the plaintiff and his two companions from the time that they entered the hotel was certainly of a rowdy nature. There was an argument or discussion as to who was to pay for a round of beer; two of the persons attempted to twist wrists; and one of the persons directly confronted Mrs. Barlow, who was looking after the bar, used very bad language and threatened her with physical assault. Mrs. Barlow warned the persons about their behavior and apparently after a short period of time these persons left the bar but while doing so one of them took a shuffleboard rock and bounced it around the premises.

2     I have no doubt in my mind that the plaintiff and his companies were quite drunk at the time that they entered the bar. Mrs. Barlow called for her husband who came down to the lobby with a guard dog on a leash and went outside and warned the three persons about their behavior and barred them from entering the hotel premises again. The defendant, Donald Barlow, then went upstairs and while there was summoned by a warning bell which was rung by Mrs. Barlow. Mrs. Barlow, in her evidence, said that arrangements had been made to summons Mr. Barlow at the time in question if one or all three of the parties reappeared again on the premises. One of them in fact did so and she promptly called for Mr. Barlow to come down. Mr. Barlow's evidence is that he came down the stairs with his two watchdogs and that the plaintiff Whelen was in the lobby of the hotel. The plaintiff Whelen then came close to Mr. Barlow and made a threatening gesture whereupon the dogs naturally reacted and the plaintiff was bitten by one of the dogs on the arm and the other dog bit him on the face. Whelen's evidence was that he came back into the hotel in order to get a case of beer after having been barred and that in the lobby he ran into Mr. Barlow with the dogs. Wherever there is a conflict between the evidence of the plaintiff and his witnesses and that of the defendants, I accept the evidence of the defendant and his witnesses.

3     The evidence of Mr. Barlow is that the dogs were obtained primarily as guard dogs because of several break-ins that the hotel had had but that on rare occasions one of the dogs was placed behind the bar in order to keep peace. I also accept the evidence of the defendant and his witnesses that the dogs were highly trained competent guard dogs, one being a Doberman Pinscher and the other a cross between a Doberman Pinscher and a German Shepherd. The defendant brought the dogs down on the evening in question because of the former problems involving the plaintiff and his companions. There is no doubt in my mind that the plaintiff was quite negligent in coming into the hotel. He was, in fact, a trespasser and he should not have been there. The only point that bothers me with respect to this case is the use of guard dogs of this nature at the time and place. I can certainly understand that these dogs could validly be left on the premises after the patrons had left and the bar in effect was closed down. However, I cannot accept the proposition that dogs of this nature, being highly volatile and highly skilled guard dogs, should be used, in effect, as bouncers. There was nothing in the situation as I understand it that presented a real danger. When the defendant came down he did so in answer to a summons without knowing what the problem was except that there was a problem. In effect, there were three drunks who were acting as drunks sometimes do -- mean, disorderly and destructive -- but it seems to me that when the defendant Donald Barlow brought the dogs down to the lobby he over reacted.

4     Under the circumstances and because of the conduct of the plaintiff and because of the fact that he was barred from the hotel, I feel that his actions contributed mostly to the unfortunate injuries that occurred and I am going to assess damages on the following basis:

(a) Against the plaintiff -- 2 / 3 liability
(b) Against the defendants -- 1 / 3 liability.

5     I understand that damages have been agreed upon and there will be costs accordingly.

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