Date: Wed, 3 May 2006 08:44:26 -0500

From: Richard Wright

Subject: Childs v. Desormeaux

I would like to record my agreement with Robert (and, I think, Steve, on the misfeasance vs. nonfeasance and duty vs. breach issues). None of John's scenarios involve nonfeasance rather than misfeasance. The providing of alcohol at the party is an act creating a foreseeable risk of physical injury to others, thereby giving rise to the general duty of reasonable care. One may want to create an exception to that general duty, for various reasons, but it would be an exception to the general duty with respect to acts creating foreseeable risks to others, rather than the carving out of a special nonfeasance duty. Would John want to argue that it was a nonfeasance rather than misfeasance situation if the provided substance were glue for sniffing, or LSD or some other mind-altering substance? I don't think so.

Contrary to John, I also don't see a good superseding cause argument. A superseding cause must be an intervening, but-for, highly unexpected cause of the plaintiff's injury. Someone getting drunk on alcohol at a party at which alcohol is served and thus driving away drunk and injuring someone is not highly unexpected, but quite foreseeable.

So, if there is to be no liability, it must turn either on the breach issue, as Steve argues, or on the creation of a special exception to the general duty of reasonable care. I think there should not be a special exception, and that it should turn on the breach issue. What precautions should one reasonably take as a social host, given the foreseeable risks of physical injury to others? Certainly, in John's second scenario, if the host had reason to know that the guest was drinking too much, I think he should be liable if he failed to limit the person's drinking or to stop him from driving away drunk.

Moreover, he should be liable regardless of whether such liability would be an effective deterrence or insurance mechanism. As people no doubt know, I also agree with Robert's comments regarding the rights-based grounds of tort liability.

- Richard

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