Date: Tue, 2 May 2006 18:41:24 -0700

From: Stephen Sugarman

Subject: Childs v. Desormeaux

John,

Please don't get me wrong. I was not arguing for a social host duty in tort, and I pointed out that the California Supreme Court's attempt to impose a duty was overturned by the legislature. I was, rather, trying to point to the issues that I think should be considered in deciding whether there is a duty and differentiating them from those considerations that should apply in determining whether there is a breach.

In your example #2 of the cocktail party for adults, it is not clear to me what is the precaution that P would argue D should reasonably have taken. Hence, in today's world that seems to be a no breach case, whether or not there is a duty. Suppose, however, it was the clear social custom not to leave open bottles out at cocktail parties and that it was the clear social custom to monitor guests and to offer them rides in case they managed to become drunk and had in mind driving off on their own. In that case, P would have lots of things to point to as precautions that D failed to take. And if there were a duty, P very likely would win, in my view --- and the fact that this is styled as a "nonfeasance" case has nothing to do with it, in my view, and in no way helps D. Of course, I concede, that even with these assumed facts one might, for what I call policy reasons, decide there simply should be no duty of care imposed on social hosts -- and the result would be as it is in other true no duty cases, as I see it,. That is, "unreasonable" Ds get off. I tried in my last posting to discuss the sort of reasons that might justify no tort duty.

As you know, I don't favor using tort law at all in these settings. In Quebec, for example, the victim would be appropriately compensated by the auto accident compensation scheme and I would not favor providing the victim with more money.(Nor would I be keen on German-style social cost accounting that allocated some of the compensation burden on auto insurance and some of it on homeowner insurance.) The drunk driver
would be appropriately punished by the criminal law, I would hope. And I personally doubt that the threat of tort liability would make hosts behave in a socially more responsible manner. Hence, for me imposing a duty in this setting is largely a way of enriching lawyers and increasing insurance costs -- two things I am not especially in favor of. YET, I feel the same way about auto accidents that do not involve drunk drivers who get drunk at friend's homes. Hence, I realize that my position is far more sweeping. As a result, defense of social host liability is perhaps best made by someone who, at the core, is more of a fan of tort liability than I am.

Steve

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