Date: Thu, 4 May 2006 06:41:56 -0400

From: Benjamin Zipursky

Subject: Childs v. Desormeaux

John and I of course agree that fellow human beings we have moral duties to help each other. Moreover we think that it is a mistake to suppose that one gets clearer on duty in tort by putting this moral observation to one side. We do think it is typically very important in understanding the existence and scope of a duty to understand the nature of the relationships among the relevant parties. We do not believe that there is a starting point of "no duty" in negligence law (or in life, for that matter!). In these points, I doubt that we differ too much from your starting point, or that of others in this discussion.

The end of Steve's discussion raises the case of a person who lends his car to someone who is (evidently) drunk, and injures the plaintiff. This example is nice because it is the opposite of Richard Wright's point that in principle we might want to decline to recognize de minimis risk creation as misfeasance, but there are procedural reasons to push that sort of case into breach (nice point). The question that arises from considering these two points is whether, as Richard suggests, (low) risk magnitude is the only reason for declining to treat risk creation of the sort that holding-a-party-where-one-serves-alcohol constitutes misfeasance generating a default duty rule.

Certainly, many of Steve's observations about perverse incentives have the flavor of second level policy reasons for rejecting a duty that, so far as the structure of negligence law goes, should really be viewed as prima facie present. I agree with what I take Stephen's inclination to be about these policy arguments; they do not seem powerful enough to defeat the argument that there is a duty, assuming that we are in the heartland of duty, rather than in an affirmative duty case. For what it is worth, my sense of Canadian law on duty (and, indeed, perhaps that of many American jurisdictions) is that the sort of default framework we see in the Restatement Third for risk-generation cases does not really apply; if one is dealing with a "novel" duty argument, it is not quite accurate that the "policy" arguments must achieve some high level of strength.

With all of this said, my response to the case of lending a car to someone who is drunk is that it is different from being a social host who permits someone get drunk and then drive home, and it is so for many reasons, not simply that the risk is plainly very high or that the unreasonableness is obvious. It is helpful to focus on the difference between, on the one hand: supplying the instrumentality of harm to a person who is incapable of using it in a safe manner, and intends to use it, with, on the other, failing to stop someone who is incapable of using a car safely from doing so.

Of course, Steve offered the case for another reason: to analogize supplying the car to one who is drunk to supplying the alcohol to one who intends to drive and will likely drive after the party and may become drunk if supplied with alcohol.

I confess that I think there is a difference and that it is not just a matter of magnitude of risk. I am still groping for it; here is a shot: the social host case involves whether there is a duty to see to it that an adult guest does not act irresponsibly and dangerously as a result of being a guest and consuming alcohol that one has supplied; that is a very different question from whether there is a duty to refrain from supplying to an incompetent person a means for negligently doing great injury to others.

I suppose I must leave it at this.
Ben Zipursky

>>> "Stephen D. Sugarman" 05/04/06 2:02 AM >>> >>>

RE: ODG: Childs v. Desormeaux

I think that it would be better to start with the position that duties arise from relationships and that as fellow humans we have moral duties to help each other. If we unreasonably fail to do so, we fail in our duty. I have a pretty good sense that Lewis rejects this idea and believes instead that we start with no duties to any fellow human and that no one ought to be able to complain about our failing to help them. Their only complaint can be that we affirmatively carelessly hurt them. Ben and John probably think this way too. Yet, those with this view latter would allow for some exceptions where there are special undertakings, or special relationships. I am pretty confident of that.

Even under my approach, there may well be good reasons why tort law should not make it a legally enforceable duty to help others. And those reasons may apply most forcefully when our relationship to another person is thinnest (so-called stranger cases). But all of the hypos being considered here seem to involve people with thick relationships -- host/guest, friend/friend, drink provider/drinker, often all of them. Those seem to me to be quite suitable grounds for asking one to take steps to help the other.

And one way of helping is to take reasonable steps to prevent the person from doing the terrible act of harming yet another person through drunk driving.

Again, there may be good reasons why we might not want to make it a legal duty to interfere to try to prevent the drunk driving accident. But, I'd like to have our attention focus on them.

In general, no duty reasons, in my view, can include the idea that in this setting there is a trumping social value at stake that would be trampled if a legal duty were imposed. But frankly the liberty of the host simply to ignore the peril a friend and guest is likely to create is not a value I'd give great weight to. (Lewis might find it offensive for the law to seem to let the drunk off; yet surely we could agree that the drunk would have to indemnify the host, if financially able, and hence have primary responsibility fall on the drunk.)

Another reason for no duty is what I call perverse behavioral responses to legal duties. If we really believed that large numbers of people would stop being social towards each other in fearful reaction to the creation of a tort duty, then that might be a convincing reason not to impose it. Or if we believed that a lot more people would get drunk and depend on hosts to look out for them if we imposed a legal duty, that too might be a reason not to impose the duty (although I am highly skeptical about the reliability of claims like this).

Some might find it sufficient grounds for a no duty rule that they are convinced that the host will not take any precautions despite the legal duty and/or that they are convinced that too many hosts will find themselves bankrupted leading to a great deal of social disruption (although I am skeptical about the reliability of this sort of claim). And so on.

It was just this sort of back and forth argument that makes Tarasoff so stimulating. Maybe the California Supreme Court was right in refusing to conclude that the psychiatrist had no duty to take some responsibility for the behavior of his/her client; or maybe it was wrong and that there are convincing reasons not to attach legal duties to this relationship.

But once you recognize that some sorts of relationships clearly give rise to what others are calling affirmative legal duties, it becomes necessary in my view to argue why they should not also apply in the case before us (or why they should apply in the case before us). And, in this context, I suggest, the labels nonfeasance and misfeasance are not helpful. Surely the hotel clerk has a duty to warn the hotel guest when a fire breaks out, even though failing to do so is nonfeasance. Maybe commercial relationships like this are more suitable for legal duties because hotel clerks can be trained to do the right thing and because there is a clear social understanding that when you go to sleep in a hotel the hotel operators will take precautions to protect you. But then let's talk about whether the social host setting is sufficiently like that of the hotel or not, and why.

I realize that my examples here focus on protecting the guest and not a third party (Tarasoff aside) but that misses the point in my view. If you loan your car to someone and they injure someone else, I have no problem saying that you owe the third party a duty because it is your car, just as you might be said to owe a duty to the victim of the drunk driver in the social host setting a duty because it was your booze, or your home in which it was drunk, or your friend who got drunk.

Note, of course, in the lending the car setting, this is not strict liability and so P must show that you acted unreasonably -- like loaning it to someone who is drunk.

Finally, if we are prepared to hold liable in tort someone who loans his car to a person who is drunk when that drunk goes out and carelessly runs over the plaintiff, then just why is it exactly that we should be so hesitant to hold liable someone whose booze makes the person drunk and who makes no effort to send the drunk home in the car of a sober guest or in a taxi?

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