Date: Wed, 3 May 2006 11:01:05 -0500

From: Richard Wright

Subject: Childs v. Desormeaux

I never have liked the term "misfeasance," which literally means mis-doing and implies fault, but it is the term usually used to distinguish between acting or failing to act ("doing" or "not doing") in a way that creates a foreseeable risk to another (which may or may not be faulty), and on the other hand failing to act to protect another from a risk created by someone else ("nonfeasance"). That is how I see the basic distinction between "misfeasance" and "nonfeasance." I think it is the basic distinction between situations that are viewed as morally quite different -- at least under equal-freedom, rights-based theories of morality and law, rather than utilitarian efficiency theories. In many "nonfeasance" situations, as well as some of the so-called "no duty" or "limited duty" situations involving "misfeasance" (e.g., land owners' duties toward trespassers and licensees), it is not the case, as I think Steve implied, that one has no duty to act reasonably, but rather that the non-duty or limited-duty describes what is deemed reasonable care in those types of situations. I have written about this in several articles.

Labeling a situation or activity as involving misfeasance in this sense does not mean, as John seems to assume below, that it is faulty or wrongful per se. It merely means that one has a general duty to take reasonable care in the situation or activity, given the foreseeable risks of physical injury to others that one is creating by one's action or inaction. Thus, I agree that it is utterly implausible to say, in John's movie marathon hypothetical, that one has a duty to refrain from hosting the marathon given the foreseeable risks of physical harm to third persons (or the participants themselves). Rather, one has a duty to take reasonable care in hosting the marathon given the foreseeable risks of physical injury (granting, arguendo, that hosting such a marathon would create a foreseeable risk of exhaustion and bleariness such as to impair one's driving ability, which is not clear to me -- unless the participants had too little sleep the night before or alcohol was being consumed! But I am a night owl.)

The same holds for the social host of a party where alcohol is served. As with driving, the foreseeable risks to others give rise to a duty to take reasonable care in one's conduct of the party -- as John states. Driving is also a socially acceptable activity. But one who drives -- or allows another to drive one's car -- has a duty to take reasonable care given the foreseeable risks of physical injury to others. IMHO, John continues to confuse breach with duty, and to want to have the breach issue treated as a duty issue. It is precisely this confusion that the drafters of the Restatement Third have tried to avoid (I hope this won't be a red flag for John, who rightly argued that the drafters initially went overboard by essentially eliminating the duty element).

The same holds for the person who leaves guns, dynamite, axes, gasoline, unicycles, etc. laying around. For some of these activities, the foreseeable risks may be so slight that no care at all is required. John's unicycle example seems to me to be such a case. For others, as the foreseeable risk increases, more precautions are required.

- RWW

-------------------------------------------------------
From: Goldberg, John
Sent: Wed 5/3/2006 9:46 AM
Subject: RE: ODG: 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.

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