Date: Wed, 3 May 2006 14:31:20 -0400

From: Benjamin Zipursky

Subject: Childs v. Desormeaux

Unsurprisingly, I tend to agree with John on the perils of leaping too quickly to the idea that social host cases involve misfeasance. It seems that Richard and other respondents are sympathetic with the idea that the distinction could be overused, or could be used to support claims about breach or duty that are overstated.

I think that John and I have a more specific misuse in mind, which other respondents are not willing to call a misuse, but believe is correct. I think it might be helpful to re-state the concern without using the nonfeasance/misfeasance distinction.

There is a tendency to believe that post-MacPherson, post-Heaven versus Pender duty analysis should start with a broad recognition that we have duties to one another to take act reasonably so as avoid causing others foreseeable harm. John and I certainly agree with that, at least at a sufficiently broad level, and have said so in many places. However, most doctrinalists, ourselves included recognize that this default of "duty" is inapplicable in a variety of categories: pure emotional harm, pure economic harm, and affirmative duty cases being the most frequently articulated. As to the latter, doctrinalists tend to soften the strong default statement by saying that the general duty to take care against physical harm to others is applicable to cases where the defendant is generating risks to others. I shall call the latter the Restatement (Third) Draft position. Other doctrinalists would have articulated the same point by saying that the duty in misfeasance cases applies broadly to foreseeable sufferers of physical harm. John and I agree with the basic idea articulated here, and we are roughly speaking willing to sign on to the statement when put in terms of misfeasance. But if misfeasance is then translated into "defendant generating risks to others", and the Restatement Third generality is used to replace the misfeasance statement, we become a bit more worried. And then the worry is confirmed when the social host scenario (which John has as a second scenario in his earlier e-mail), is deemed a case of misfeasance.

And so, without using the terms "misfeasance" or "nonfeasance", the concern might be put as follows:

Assume that, among the set of acts that could be causes-in-fact of foreseeable physical injury to others and could be characterized as risk-generation, there is some subset that qualify as sufficient to trigger the default rule of duty. Is hosting a star wars party among these acts? Is being a social host at a party where alcohol is provided by the hosts, in the manner of John's example 2? How about the unicycle case? Richard seems to think that the subset is the whole set, as do the Restatement (Third) drafters. We doubt it. Of course, the problem may be something about this idea of the default rule, anyway.

Sorry to clog this up.

BZ

>>> "Wright, Richard" 5/3/2006 12:01 PM >>>

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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