Date: Wed, 3 May 2006 11:21:47 -0500

From: John Goldberg

Subject: Childs v. Desormeaux

Richard:

I thought I was pretty careful not to equate nonfeasance with no liability and also not to equate misfeasance with liability (hence I allowed that the social host in scenario 2 might be held liable for his nonfeasance, and that someone who commits misfeasance might still be off the hook on grounds such as no proximate cause).

I also don't think I am confusing duty and breach. Rather I think you are conflating them. (And here, I take it, Robert Stevens agrees with me, even if he disagrees with my application of the misfeasance/nonfeasance distinction in the social host cases.) It might well be unreasonable as to potential car accident victims for the host not to offer to call a cab for his movie marathon guests, or the chance to sleep on his floor, or some coffee, but even if it is, there may be no liability simply because the law does not recognize an affirmative duty on the host to take reasonable steps to prevent his tired guests from driving badly.

JG

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From: Wright, Richard
Sent: Wednesday, May 03, 2006 11:01 AM
Subject: RE: ODG: 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.

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