Date: Thu, 4 May 2006 13:30:17 -0600

From: Lewis Klar

Subject: Childs v. Desormeaux

I thought I was finished but Stephen drew me back in.

I am not sure if Stephen intended to state that I reject his notion that as fellow human beings we have moral duties to help each other and if we unreasonably fail to do so, we fail in our duty. Because if he did mean this, he is incorrect, I am totally with him. I was discussing legal duties, and more specifically tort law duties. I was not referring to moral duties or even to statutorily imposed duties; only tort duties.

For what it is worth, I am a pretty caring guy and believe that we all have moral duties to help each other out. What I reject, and I think he knows this, is the creation of legal duties to assist by common law judges in tort, based only on their own personal moral values, with assistance from counsel to lead them onto the right path in case the judge goes morally astray, in private causes of action in tort. There are lots of reasons why I believe this, but that is for another time.

As for letting the drunk off, I agree that the drunk is not let off. The drunk has to pay for the damage done, even if someone else gas to pay as well. We are all agreed on that.

As for Richard Wright's point that to try to separate the party from the after party, as I tried to do, does not work, let me reply. I agree it does not work if you include in the activity of "hosting" the party, the additional responsibility of seeing that everyone gets home safely. The same for driving a car. If you consider part of the responsibilities of driving a car carefully, the responsibility to stay and help out if there is an accident, even if the driver actually drove carefully, then a driver who does not stay has breached his or her duty. But that begs the question. What does "hosting" or "driving carefully" entail? Why is it the host's responsibility as host to make sure everyone gets home safely, even if the host took every conceivable precaution to ensure that the drinking at the party was reasonable? Is it because the host "created the risk" by hosting a party? The same could be said of the person who supplied the alcohol, the person who invited the drunk to the party, the persons who helped organize the party, and so on. Why draw the line at the host? Unless the host's negligence was the effective cause of the ultimate accident which distinguishes the host from everyone else I mention, the host is a mere stranger (legally speaking, not theologically or morally). And yes, for the record I agree that everyone has a moral duty to do something about the drunk, and if they do not, it is shameful. Maybe society through its elected representatives should do something about it and pass a law!

Lewis Klar
University of Alberta

>>> "Stephen D. Sugarman" 05/04/06 12:02 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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