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Date: Mon, 8 May 2006 12:00:53 -0400 From: Benjamin Zipursky Subject: Childs v Desomeaux
A few responses to the recent e-mails: (1) One of the commendable features of the decision, in my view, is the choice of the level of generality selected. Presumably, a lot of lower courts will have to take guidance from this case in a wide variety of scenarios. Many of you in Canada know this court well, which I do not, but it looks to me like the Court wanted to balance two constraints: (a) having a fairly general holding regarding cases where the basic hook is that the defendant was the social host, and denying the existence of duty in such cases; (b) leaving room for a line of cases to open up where the host basically tanks up someone who is not acting at full capacity because he is already inebriated and puts him behind the driver's seat. I think the oddities David rightly point out have to do with the court's trying to accommodate (a). In that regard, I wonder whether the court in its heart of hearts really believed there was this kind of avoidance of knowledge (as opposed to being willing to accept it as a matter of fact so as to reach a fairly broad holding); I tend to doubt it. (2) I think it is not limited to BYOB cases, and that it was sensible of the court not to force lower courts and lawyers to think through "who supplied it" issues in future cases. (3) I think the court's comments regarding foreseeability are, as Neil suggests, not very credible. Indeed, I found this a point of fairly striking disingenuousness in an otherwise quite open decision. I hope some of you who are scholars of this court might be able to say why the court felt the need to do this, since it is not credible, and since its other reasons for reaching the result would have been sufficient. Obviously, it makes the case look easier, but at some cost in credibility. (4) I, of course, was gratified to see the court's treatment of the nonfeasance/misfeasance, having pushed (with John Goldberg) the same point before. Notably, the court takes a line that seems straightforward and comprehensible, but that Richard Wright quite plausibly criticized in an earlier exchange: it essentially asserts that holding a party is de minimis risk-creation, and therefore does not bring one within misfeasance. I am sympathetic with what I took Richard's point to be: that even if in theory there is some de minimis risk-creation, it seems ill-advised to invite courts to slice the nonfeasance/misfeasance issue that way as a matter of law. Maybe Richard's point was principally applicable to American jurisdictions, where the judge/jury distinction connects with the duty/breach distinction, and so perhaps he would accept this in Canada. But in any case, I find it conceptually unsatisfactory, and so am on the lookout for a better way to explain the point: to repeat, not any action that creates a risk of injury to others counts as misfeasance for purposes of duty analysis. I believe that there is a normative point regarding whether the injuring of the plaintiff should count as the social host's misfeasance; if we regard the adult drunk driver as autonomous, then it is only his doing, not the social host's. To be sure, a great deal must be said here to explain why this is not begging the question. To my mind, it was quite interesting that in a unanimous high court opinion that read quite well, something like this idea seems to be both implicit and commonsensical. But of course question-begging arguments do sometimes manage to sound good. (5) Again, I have not followed the development of case law on what is a "novel duty", but I would have thought the following two ideas would be important: (i) from the point of view of legal actors, would the duty be regarded as a fairly clear legal application of incontrovertibly recognized legal duties? (ii) would the movement from the allegedly clear categorical duty to the alleged application involve only a minimal amount of judgment about moral questions and policy issues as to which one could imagine substantial differences among courts? I would think in this case, the answer to both questions would be no, and that, therefore, it should count as a "novel duty" case. Nothing about this analysis is meant to pre-judge jurisprudential issues about whether it is a legal duty or is objectively there; the idea is simply that courts ought to be pushed to articulate their reasons more clearly, and not feign "easy application" for a certain kind of case.
Ben
Zipursky
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