Date: Tue, 2 May 2006 16:26:19 -0600

From: Lewis Klar

Subject: Childs v. Desormeaux

I do agree with the gist of Stephen's observations. The point which I was trying to make was that I hope the SCC avoids the fallacy of assuming that merely because a social host who serves alcohol creates a foreseeable risk of danger to others, that there is thereby a duty on that social host to take reasonable steps to prevent the injuries from occurring by taking post-drinking preventative action. Merely creating a risk of harm does NOT impose a duty of affirmative action to avoid that harm. It is ONLY the creation of a risk of harm UNREASONABLY which results in the subsequent duty to do something about it. The SCC might, because of the factors mentioned by Stephen, decide that social hosts have a special responsibility to have safe parties and that if they fail in this duty, they then must make sure nothing untoward occurs. For what its worth, I think many social hosts are unreasonable in plying their guests with liquor. The problem that many people have with making them liable however is that this seems in some way to deflect blame away from the adult drunk guests. Because tort law has all but abandoned voluntary assumption of risk as a defence, and because joint and several liability means that a host who is only partly to blame for the accident which follows from the party will be 100% liable to the injured victim, some feel that the social host should not be held liable at all. If voluntary assumption of risk applied to the drunk guest, and if there was no joint and several liability, attitudes toward the liability of the host to third parties might be different.

Lewis Klar

>>> "Stephen D. Sugarman" 05/02/06 3:38 PM >>>

I think that Lewis is right in certain respects. Yes, not everyone who sees another person drinking should have a tort duty to interfere. Yes, even if there is a duty, you must have failed to act reasonably to be liable (assuming one is not proposing strict liability here -- an interesting idea in itself).

BUT, I don't think Lewis is right to say that liability in the social host context requires one to conclude that anyone serving alcohol to anyone else is an unreasonable act.

RATHER, I think the issue first is whether tort law should impose responsibilities on social hosts who serve alcohol to their guests on the ground that, because they are the providers of alcohol, a tort duty to do so responsibly should attach to that role.

In deciding whether there should be a tort duty, I think that the usual duty considerations should apply. Are social hosts parties who might reasonably be expected to change their behavior to reduce accidents?

And, on the other hand, are we concerned that a duty might yield perverse socially undesirable responses? Are the hosts who are found to have irresponsibly poured likely to have insurance to help pay for the harm they should have avoided? Are victims otherwise likely to be uncompensated if there is no social host liability (more a concern in the US, I suppose)? Is the judicial system likely to be able to tell in individual cases whether the host acted irresponsibly or not? Is there such a strong value in the society that only drinkers should be fingered as the wrongdoers that it would be viewed as inappropriate to trump this value even if many third party victim lives could be saved? And so on.

If, on balance, the judgment is that social hosts should be pressed into service by tort law to help reduce what is usually drunk driving, then the CSC should find a duty (as the California Supreme Court did nearly 30 years ago) and leave it up to individual trial courts to decide whether the host was indeed negligent AND whether prudent action by the host would in fact have prevented the harm (also a difficult issue in many cases, and yet another judicial-incompetence reason why one might oppose having a tort duty in the first place). Also, if there is a duty, then, in my view, in arguing that the host acted unreasonably, the victim ought to be able to point to both precautions that should have been taken as to actual pouring and precautions that should have been taken, for example, in terms of trying to convince the guest not to drive away from the party, etc.

I also note that in response to the decision of the California Supreme Court to impose social host liability, our state legislature (at the behest of the alcohol lobby) quickly overturned not only the social host tort duty case BUT ALSO the earlier decision that imposed a general tort duty on commercial alcohol servers!!

<<<< Previous Message  ~  Index  ~  Next Message >>>>>