Date: Tue, 2 May 2006 18:43:37 -0500

From: John Goldberg

Subject: Childs v. Desormeaux

I've been following the thread on social host liability with interest.

I hope that I am building on earlier observations by suggesting that it might be helpful to refrain from treating all social host scenarios as presenting the same case. For example, one might distinguish the following three scenarios (no doubt there are other ways to carve up this domain):

1. Social host H induces G, his adult guest, to drink to excess (say by regularly refilling G's glass, or by planning a party that features drinking games in which G participates, etc.). G gets intoxicated at the party, drives away drunk and, because of his drunkenness, hits innocent driver P, injuring P.

2. Social host H welcomes his numerous cocktail party guests at the door of his house by indicating that wine or beer is available for consumption in the kitchen and that snacks can be found there and in a sitting room. H is very busy hosting the event and does not dole out or monitor any guest's consumption of alcohol. Adult guest G becomes intoxicated at the party, drives off drunk, and hits and injures innocent driver P.

3. Social host H holds a backyard picnic for his daughter A, who recently graduated from college and recently became old enough to buy and drink alcohol on her own. H knows, or should know, that several of A's friends who will be attending the party are not of drinking age. H is very busy hosting the party and does not dole out or monitor guests' consumption of alcohol. One of A's friends, B, a minor, drinks to excess without H being aware of it. B, who is a licensed driver, drives drunk and hits and injures driver P.

My hunch is that scenario 1 is the strongest cases for imposing at least some liability on H, that scenario 2 is the weakest, and that scenario 3 is in between, and that this rank ordering does not turn solely on how the issue of breach will play out in each of them.

In 1, P can (I think) fairly be described as suing H for misfeasance as to P rather than nonfeasance as to P, so the broad, foresight-based duty rule for misfeasance risking physical harms to others applies. There's a remaining issue of proximate or superseding cause, but given H's active intervention in getting G drunk, I don't think H can point to G's drunk driving as a reason not to hold him responsible. (H, if you like, literally helped make G drunk and is responsible for sending him out into the world in that state.)

In 2, by contrast, P looks to be suing H for nonfeasance as to P. P's complaint, in other words, is that H failed to control, or control for, competent adult G's getting himself intoxicated. As such, there may be no duty owed by H as to P, since foreseeability is not the test for duty in cases of nonfeasance, and because none of the standard exceptions apply. (P could try to invoke something like a Tarasoff duty, but I think it's pretty obvious that social hosts are not in a position vis-a-vis their adult guests that psychiatrists are in vis-a-vis their dangerous patients.) Even if there is a duty owed by H to persons such as P, I would argue that G's drunk driving constitutes a superseding cause -- it is G's responsibility not to drive in the way he did, and the fact that various persons, including H, helped make it possible for him to act in that irresponsible way is not a ground for holding them responsible also.

(This last bit of analysis might drive the likes of Steve Sugarman crazy. Apologies in advance. What can I say? There are still a few of us in the U.S. who have not yet reconciled themselves to the "Californication" of tort law -- apologies now to the Red Hot Chili Peppers -- whereby duty is reduced to policy balancing and responsibility-driven doctrines like superseding cause are turned into 'enabling torts' and 'apportionment' doctrines. But that's a topic for a much longer conversation ....)

Finally, in 3, I would say that P is suing H for nonfeasance as to P, but, unlike in 2, it is somewhat more plausible to hold H to have owed a duty to take reasonable steps to control for guests' drinking, given that he is an adult who is hosting a party that will be populated at least in part by minors and at which alcohol will be present. (This on the assumption that adults generally have greater obligations to look out for the welfare of, and control the behavior of, minors in their temporary custody, at least where certain dangers are fairly evidently lurking.) Because we are dealing with a minor driver, H's superseding cause argument may be weaker than in scenario 2, although perhaps it still ought to prevail.

One last note. It may be that the demise of social host liability in California was achieved, as Steve says, by legislation that succeeded only because of lobbying from the alcohol industry. But the same thing has happened in other states whose courts have recognized social host liability. (E.g. New Jersey.) And courts in many states, at least some of which are presumably less vulnerable to political pressure than state legislatures, have also declined to recognize social host liability, even where they have recognized liability for commercial establishments.

Thus, I don't think the lobbying to which Steve refers is taking place in a vacuum, but rather is feeding on a widely-shared (though surely not universally-shared) sentiment that, as Lewis Klar suggests, there is something problematic (at least in some cases) about treating a social host as responsible for another adult's drunk driving.

-----Original Message-----
From: Lewis KLAR
Sent: Tuesday, May 02, 2006 5:26 PM
Subject: Re: ODG: 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.

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