Date: Wed, 3 May 2006 09:46:36 -0500

From: John Goldberg

Subject: Childs v. Desormeaux

Well it's nice to be able to unite the group, even if only in the conviction that I am wrong. :-)

I view misfeasance v. nonfeasance as a distinction concerning the nature of the duty owed by an actor to another, and hence as one that does not track in any direct way the act - omission distinction or the divide between risk-creation and non-risk-creation. So maybe that's part of the disagreement. Or maybe I am just horribly confused.

Suppose host H invites some adult friends over for a "Star Wars" movie marathon, the plan for which is to watch all six Star Wars movies in one sitting. (Unimaginable, I know.) The marathon is scheduled to start at noon and thus goes far into the night. No alcohol is served, but by the time the event is over, it is 3 a.m. and everyone is thoroughly exhausted and quite obviously bleary. Nonetheless, the guests leave without H making any effort to address the situation (e.g., by calling a cab for the guests, or offering to have them stay over, or brewing a pot of coffee). Because he is bleary, guest G drives carelessly on his way home from the event and hits and injures other driver P. Would one say that H has committed misfeasance against P simply because H hosted the Star Wars marathon? It seems to me much more natural to say that, if there is a tort here at all, it must be a tort of nonfeasance -- H's failure to take steps to control the conduct of G in light of G's condition at the end of the event, as opposed to H's hosting of the event. (It is, to my mind, utterly implausible to say that H owed a duty, for the benefit of persons such as P, to refrain from hosting a movie marathon notwithstanding that doing so created certain risks of physical harm to persons such as P.) Pretty much the same goes, I think, for the host of a function at which alcohol is made available to adults in the ordinary course. It is legally, and as a matter of social norms, a perfectly acceptable activity. Given this baseline of acceptability (which contrasts with a glue-sniffing party or a party at which illegal drugs are on offer), the complaint in Scenario 2 must in my view be about what the host failed to do by way of monitoring and controlling his guest's conduct once they were at the party, not the holding of the party in the first place. Again, the act of hosting such an event may be a ground for arguing that the host has now incurred an affirmative duty to monitor or control his adult guests' behavior, but it is not itself a misfeasance as to third-parties.

Or consider landlord L, who rents an apartment to tenant T. The apartment comes with a basement storage space in which L stores an old unicycle. Now suppose tenant T, who is putting away the boxes he used in moving into the apartment, spots the unicycle and takes it upon himself to try to ride it in an inappropriate place (say a crowded public sidewalk), even though he has no idea how to do so, as a result of which T injures pedestrian P. Would one suppose that L's renting of the apartment to T was misfeasance as to P just because it carried with it the creation of certain dangers to others by virtue of providing T with access to the unicycle?

Again, apologies if I am just missing the point here.

JG

-----Original Message-----
From: Robert Stevens
Sent: Wednesday, May 03, 2006 8:24 AM
To: Goldberg, John
Subject: RE: ODG: Childs v. Desormeaux

I don't think this scenario is a non-feasance case at all. The defendant has failed to prevent the driver from drunkenly injuring another, but that doesn't make it a case of non-feasance.

If the defendant had not acted by having a party, the car crash would not have occurred. If the party had been carefully organised, so that drivers were not supplied with excess alcohol, the accident would not have occurred.

A next door neighbour who knows the wild party is going on and hears the drunken revellers getting into their cars but does nothing to prevent them driving off, has not by his actions made any subsequent victim worse off. By contrast, the person who throws the party cannot say he has done nothing, and cannot claim that he has merely failed to protect the victim from a harm which would otherwise have occurred. That is like a car driver saying that his failure to apply the brakes was merely non-feasance.

If I load a gun and leave it in my lap and a child picks it up and shoots you, I have by my actions made you worse off. Your complaint is not (simply) that I failed to stop the child from shooting but either (1) that I was careless in loading the gun and leaving it where the child could get it or (2) by enabling by my actions the child to obtain the gun I came under a positive duty to act to protect others.

There are easy precautions to take to prevent guests leaving your parties drunk. If you don't want to take them, don't throw parties.

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