Date: Tue, 9 May 2006 19:36:36 -0400

From: Anthony Sebok

Subject: Childs v Desormeaux

David's comment about the practical implications of the Childs decision is very interesting. The decision surprised me not because of its outcome but because of its reasoning. The SCC twisted the plaintiff's theory of the case so that the holding refers to a duty in negligence that is much more extreme than the plaintiff intended, or I suspect, that most critics of the outcome would endorse.

If I am not mistaken, the SCC exploited what it called an ambiguity in the trial court's decision. In para. 28 the SCC noted that the trial court found that the plaintiff did not prove that the defendant knew nor should have known that Desormeaux showed signs of impairment when he left the party. (Contradicting fact #6 in David's list below.) The SCC concluded in para. 29 that under the facts proven by the plaintiff, the only duty that could have been breached by the defendant was the duty to protect third parties on the highway from guests at his party "who had gotten drunk in the past."

I am pretty sure that this was not the plaintiffs' theory of the duty at issue, and even if that is what the trial court found, it strikes me as singularly unhelpful to decide the case on this basis. As the SCC noted, the theory of social host liability in the US is usually based in the idea that social hosts have a duty not to serve additional alcohol to guests of the host who "are visibly inebriated." (Para 44; this is the rule, for example, that the California Supreme Court announced in Coulter v. Superior Court of San Mateo County, 21 Cal. 3d 144 (1978)). This rule may be too liberal for some people (it was too liberal for the California legislature) but it seems to narrow the proximity question raised by the SCC to a reasonable level. The duty the SCC attributed to the plaintiffs in this case does seem too broad and vague - and it also seems like a red herring.

It seems to me that in the next case the plaintiff needs to clean up the ambiguity identified by the SCC. The next case should involve a social host who knew or should have known that the guest was impaired and nonetheless to whom they served a drink. I wonder what the SCC would do then?

That is my practical point. Figuring out the theoretical difference between the duty upon which the SCC ruled and the duty the plaintiff ought to have alleged is trickier. What is the difference between (1) inviting a known habitual drunk driver to a party where alcohol is served and not monitoring their consumption and (2) serving alcohol to a visibly impaired guest who one knows will drive? The act of pouring the drink (or having one's agent pour the drink) seems to make all the difference in the world; it is what persuades many that there is no difference between social hosts and commercial hosts. But, to return to Richard's line of inquiry, how great a difference is there between (1) and (2) on the level of additional risk created to third parties? Not much, I would think. I have never seen an American court find a duty under (1), and I suspect that even in NJ the duty would be limited to (2). This suggests that the effort to coherently distinguish between misfeasance and nonfeasance is worthwhile. I agree with John and Ben that it is important to explain the difference. I would find the SCC's decision more persuasive in Childs - which knocks (1) out of the box - if they could explain to me what they would do in a case where they were faced with (2).

Anthony Sebok
Brooklyn Law School

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