Date: Wed, 3 May 2006 07:39:51 -0500

From: John Goldberg

Subject: Childs v. Desormeaux

Hi Steve:

Thanks, your comments are helpful, as always.

Although there may be no breach in Scenario 2, I don't think the example hinges on that conclusion, or needs to hinge on it, because there is a prior question of duty and a subsequent question of proximate/superseding cause. Thus, if we imagine, as you do, various precautions H might have taken but unreasonably failed to take with respect to the risk of his adult guest's drunk driving, I think that there is still a strong argument that H should not be held liable precisely because H was not under a duty to take reasonable affirmative steps to protect the likes of P against drunk driving by the likes of G. Contrary to your assertion, nonfeasance has everything to do with this analysis -- it hinges on the fact that P is complaining of a failure on H's part to control the conduct of another competent and responsible adult, as opposed to H's having played the active role imagined in scenario 1. Some no duty cases really are no-duty cases, rather than no-breach cases.

Of course, one can question (as I did in my e-mail, briefly) whether there is some reason to think that a scenario 2 social host case warrants an exception from the general rule of no duty that governs nonfeasance. (More radically, one could question the rule itself, though I think its rejection would prove unpalatable for a number of reasons.) But notice that nonfeasance has already done a lot of work by placing the burden on the plaintiff to argue for the applicability of an exception. And the analysis of that argument can (and I think should) look quite different from the policy inquiry that you suggest. For one thing it is an inquiry that, at least in the first instance, should be about law, not policy per se. That is, lawyers and judges ought to look to recognized doctrinal exceptions to the no-duty rule, such as Tarasoff, and attempt to analogize or build on those. Second, the inquiry is an inquiry into obligation, not an inquiry into social welfare, and, at a minimum, your framing of the issue as one of policy runs the risk of conflating these two. The question is not, whether, all things considered, it would be better from society's perspective to hold social hosts liable to drivers injured by drunk guests (here I essentially agree with Robert Stevens' doubts about the propriety or wisdom of asking judges to answer these sorts of questions, although I am less moved by his apparent view that morality demands that social hosts engaged in ordinary, non-criminal activity should routinely be held responsible for the wrongful acts of others who participate in such activity). It is rather the question of whether, given tort law's hesitancy to recognize affirmative duties, there is something compelling about this sort of scenario that warrants or counsels against creating a binding norm -- violations of which will generate potentially significant liability to others -- specifying that social hosts must from now on take steps to keep track of and control their guests' behavior. (Yes, yes, one can argue that this latter question 'really' just 'boils down' to the all-things-considered social welfare question, but the possibility of being a reductionist is hardly an argument for the propriety of being a reductionist.)

Finally, I would suggest that, even if one is looking at tort law as a social engineering mechanism, before one throws it out as a too-cumbersome and too-expensive mechanism for deterrence and compensation, one would have to take account of the intangible (hard-to-measure) deterrence value provided by a body of law that tracks and reinforces norms of responsible conduct. That is, one can't just assess the efficacy of tort law on the assumption that society is a collection of Holmesian bad men, one also has to take into account the effect on norm-followers' behavior of a system of norms that is shored up, in part, by tort law as one among many social practices concerned with holding persons responsible to moderate their conduct in light of the interests of others.

JG

-----Original Message-----
Sent: Tuesday, May 02, 2006 8:41 PM
To: Goldberg, John
Subject: Re: ODG: 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.

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