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Benjamin Zipursky 5/3/2006 2:31 PM >>>
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.
