Date: Tue, 9 May 2006 18:43:49 -0500

From: John Goldberg

Subject: Childs v Desomeaux

Thanks, Lewis, for the helpful "exam." My sense is that my views are pretty close to yours, but since this is academia, I must find a couple of hairs to split:

(1) For these purposes, at least, Lewis seems to concede that there is a moral obligation on the part of a social host running to users of the roads who might be hurt by a guest who drinks too much at the host's event. But then he points out that this is law, not morality, which allows for the idea that the host might not be obligated for purposes of tort liability.

I am not hostile to this sort of distinction, but (to be a little contrarian) I wonder if there is too much of a concession on the first point. Sure, the phenomenon of drunk driving is a very serious social problem. And this is why folks who drink more than a little bit shouldn't be driving (or playing with guns, or ....). Indeed, it's their responsibility, morally and legally, to refrain from doing so, and they owe that responsibility to a wide range of people, perhaps anyone they might injure by driving. And perhaps it is a good or virtuous thing for others to mind the amounts that other adults are drinking, at least where driving might soon ensue.

But I don't think any of this (yet) establishes a moral duty to monitor/control on others. And I don't say this because we here in Tennessee are living in the wild west or the land of Nozickian libertarianism. The issue is more subtle than that, for there are all kinds of activities that adults undertake that pose dangers to themselves and others. For this reason, I don't think we can casually accept the proposition that: (i) the potential for undesirably risky conduct by actor A, plus (ii) some form of participation in the conduct of A by B (or some ability in B to regulate the conduct of A), (iii) suffices to generate even a moral obligation of B to attend to A's conduct.

Suppose adult Smith lends adult Jones a sound extension ladder. Jones then uses it an hour later to clean the gutters on his house. Jones does so carelessly -- say, by leaning awkwardly off of it -- and hurts himself. (Or, if you prefer, he carelessly causes the ladder to fall on a person who is by permission gardening in his yard so as to injured that person.) Was Smith duty-bound to take reasonable steps to prevent Jones's careless usage of the ladder? Was he duty-bound to rescue or protect Jones by, say, postponing a trivial errand (or refrain from going inside to watch the football game) so that he could instead continue to work in his own yard and thereby monitor Jones's use of the ladder?

(2) I doubt that what will end up counting or not counting as misfeasance will turn simply on the degree to which a given actor has "participated" in the creation of a risk of harm. (And maybe Lewis was just using that phrase as a shorthand or place-holder.) Rather, it's going to turn on contested issues of social meaning. This was the point of the Star Wars example from many messages ago. Thanks in part to the activities of groups like MADD, the significance of being a social host is changing. And it may be that there will come a point in time, if we have not arrived there yet, where the role of social host at a dinner party is treated as the equivalent to that of a chaperone at a party for high-school graduates. But that would be because we would be adopting a certain perspective on dinner parties that differentiates them from, say, ladder-lending. To say the same thing from another angle, the recognition of new duties -- genuine norms of obligatory conduct as opposed to prices, or threats of sanctions -- is to change the fabric of the relevant form of social interaction. Such change may well be desirable, but, again it is a reason why some courts and commentators are not content simply to leap from the horrendousness of drunk driving, and the potential for injuries when people drink, to the imposition of obligations on persons other than the (competent) adult drinker.

-----Original Message-----
From: Lewis KLAR
Sent: Tuesday, May 09, 2006 6:03 PM
Subject: RE: ODG: RE: Childs v Desomeaux

Hello:

No-one denies that drinking and driving is a big problem in Canada, and that we should all do something about it. Everyone feels sorry for the victims, and everyone is a potential victim.

Okay, now that I have got that out of the way, let us get down to tort law.

The problem which the Supreme Court was having with Childs is figuring out who "created" the risk of the accident and who should therefore have done something about it.

I wonder if you would indulge me by considering the following exam-type hypothetical.

"It is A's birthday. She is turning 21. B, her friend, invites her out to dinner to celebrate it. Two other friends, C and D, agree to join them. C volunteers to bring two bottles of wine (it is a BYOB restaurant). D agrees to be the designated driver. The restaurant is "E's Fine Dining". At the restaurant, the waiter uncorks one of the bottles. There is a corkage fee. A, B, and C all drink. After the first bottle is finished, the waiter offers to uncork the second bottle, they agree, and he does so. At the end of the meal, A stands up to go to the washroom, and realizes she feels dizzy. Evidently she has consumed a little too much wine for her tolerance level. She sways a bit, and bangs into a chair. This is observed by everyone, including "G", who is a diner at another table, and by the waiter. B pays for the meal for everyone. A declares in a slurred and loud voice that she will walk home. No-one insists that she be accompanied or be driven home. They all say goodnight and leave. On the way home, A because of her inebriation, wanders onto the road, against a red light. Driver F swerves to avoid hitting her, drives into a telephone pole, and is injured. Driver F sues everyone."

Everyone in this problem (including "G") could have done something to prevent this accident. No-one did a thing. Who created the risk of the accident? They all played a role; all by overt actions and G by inaction.

Who exactly would you include in the "creation of risk" role? I assume most would exclude G. You would all of course include A. Would you include B, C, D, and E? It all depends on your definition of "risk creation". (To recap: B did the inviting and paying, it was C's wine, D was the designated driver, and E served the dinner and uncorked and poured the wine, for a fee.)

McLachlin C.J. for the Supreme Court did not draw the line where some of us might. But I think most are on the same page. It is just a question of how much "participation" moves you from a by-stander to an actor.

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