Date: Wed, 3 May 2006 12:36:28 -0500

From: Richard Wright

Subject: Childs v. Desormeaux

John -

I understood that you were not equating nonfeasance with no liability and also not equating misfeasance with liability.

I hope we are not getting bogged down in semantics, rather than different doctrinal elements. I believe we both agree that negligence liability requires a legally cognizable injury, duty, breach of duty, actual causation, no applicable limitation on the extent of legal responsibility ("proximate causation" or "remoteness"), and no complete defense. I took your statement, "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," as implying that you believed that treating the hosting as a "misfeasance" situation rather than an "affirmative duty" "nonfeasance" situation would mean that there was a duty not to engage in the hosting. I agree that it would not, but I believe that it would mean that there is a duty to take reasonable care in one's hosting, as in all "misfeasance" situations (those in which one's activity creates foreseeable risks of physical injury to others, rather than not benefiting them by protecting them from risks that one did not create).

You still seem to believe that treating an activity as a misfeasance (ordinary general duty) situation would mean conceding both duty and breach. You state that "someone who commits misfeasance might still be off the hook on grounds such as no proximate cause." In my view, one need not employ the issue of proximate causation to avoid liability in a "misfeasance" situation (or a "nonfeasance" situation), but rather must first examine the issues of duty (generally assumed to exist in a misfeasance situation involving a foreseeable risk of physical injury), breach of duty, and actual causation (and also possible defenses). So perhaps we have different conceptions of misfeasance: mine being very sparse and simply referring to one's creating, through action or inaction, some foreseeable risk of physical injury to another, which creates a duty to take reasonable care but does not imply that that duty has been breached, and yours (apparently) encompassing the idea that "misfeasance" literally means "misdoing" or negligence, thus encompassing both duty and breach. But the duty element needs to be separated out from the breach element, in both "misfeasance" and "nonfeasance" situations.

- Richard

--------------------------------------------------------
From: Goldberg, John
Sent: Wed 5/3/2006 11:21 AM
Subject: RE: ODG: 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.

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