Date: Sat, 3 Jun 2006 13:16:21 -0400

From: David Cheifetz

Subject: Childs v Desormeaux, again

Dear Colleagues:

For those attending next week's symposium and who will manage to be awake and in attendance at 8:30 a.m. on the 10th; and all others, too - even those already thinking of what you'll put on next year's tort exams:

1. Assume all of the findings of fact and assume Courrier (the host) had decide to go out for air, or for a drive etc. to pick up supplies, after Desormeaux left. Courrier's route puts him on the same road as the Childs vehicle, travelling in the same direction, in about the same location and about the same time, so that when Desormeaux shows up - he'd stopped somewhere for nature, or got lost for longer - both the Childs vehicle and the Courrier vehicle are involved in the accident.

2. Or, assume that Courrier realized that he needed some supplies and didn't feel like driving to the store. So he asked Desormeaux to give him a lift there and and back. Courrier is in the car when it collides with another vehicle. Would Courrier have had a cause of action against Desormeaux?

3. Courrier also sues Desormeaux. The actions are tried together. Bearing in mind the finding that Courrier was deliberately blind to Desormeaux's alcohol consumption -

4. Consider these questions:

a. Would Courrier had had a cause of action against Desormeaux?

b. how does volenti apply to Courrier's claim? Would Courrier's deliberate blindness amount to voluntary assumption of both factual and legal risk if he got in the car with Desormeaux? Or contributory fault, at least?

c. how does contributory fault apply to Courrier's claim if a basis involves Desormeaux's drinking at the Courrier house? How could it not given the deliberate blindness finding and the finding that Desormeaux was exhibiting signs of impairment which were or ought to have been seen?

d. if the trial judge finds that Courrier was also at fault for his own injuries on account of C's involvement in D's becoming as impaired as he was - bear in mind, here, that we're not asking ourselves a question that is based on any duty C owes to anybody else - regardless of whether he can succeed against D, in what way might (or should) that findings underlying the conclusion that C failed to take reasonable care for his own safety affect the issues of the existence of Courrier's duty (if any) to the rest of the world?

e. what are the odds a trial judge would have found for Courrier but against Childs on the basis that a duty was owed to Courrier but not to Childs? The only difference between the two would be that Desormeaux had been at the party, but not Childs. However, on what basis could a judge find that Desormaux did not owe at least a prima facie duty of care to Courrier? I suggest there'd certainly be a duty if an accident occurred while Desormeaux was still on the Courrier property. Does it make sense to say the duty to Courrier ends as soon as Desormeaux leaves the property, at least for the case where Courrier isn't a passenger or Desormeaux hasn't been told that Courrier plans to drive in D's direction because C is going to the store?

f. imagine the outrage if a trial judge found for Courrier but not Childs.

4. For those members of the judiciary lurking, what will you do if you get what amounts to a case with Childs' level facts or less - less would be the absence of the deliberate blindness finding - when defence counsel moves for a non-suit at the close of the evidence? Will you grant it if you are trying the case with a jury? What will you tell the jury about what the law is, and what the plaintiff has to show to succeed, if you don't? What are the odds that a jury will dismiss the case if you don't non-suit.

Let's assume that in this hypothetical case plaintiff's counsel argues that Childs doesn't apply because the argument now being made wasn't made there so there's no ruling right on point and the new argument isn't necessarily a part of the Child's rationale. What argument is that? It's that Childs stands only for the proposition that the mere fact of social host status isn't sufficient to create the prima facie duty. In the hypothetical case, the argument is that the social host status is merely one of the facts which, all taken together, create the prima facie duty.

What do you do, then? Better you than me.

On a different note. I rather suspect someone, soon, will write something about the merits of the Childs decision.

5. For those of you who might wonder why the Childs question was framed as it was by the courts, or argued as it was by the Childs' counsel - consider this. It seems that winning or losing against Desormeaux wouldn't have made a real financial difference to Childs total recovery from all sources, so why not argue the broad principle? That is, why "risk" the a judge finding liability on a narrow fact driven basis and holding that, therefore, there was no need to decide the question of whether the mere status of social host is sufficient to create the prima facie duty.

Desormeaux had $1 million of liability insurance but nothing much more. Three of the other teens in the Childs' vehicle (she wasn't the owner or driver, I'm using that description for convenience) were seriously injured. A 4th was killed. The 2 passengers in the Desormeaux vehicle had some injuries. All of the teens had claims against Courrier if Childs had. The inebriated (apparently comatose at impact) passengers in the Desormeaux vehicle probably had a claim, too. So Childs wouldn't have received the full 1 million, just a prorated amount - which might not have been all that much.

The MADD web site contains an article reporting that Childs claimed $3.2 million in damages from Courrier. It's sufficient to say that, by the time of trial or at least appeal Childs had probably received, or it was clear that she would eventually receive, at least that amount in combined payments from her father's automobile policy under the underinsured motorist coverage, the Ontario uninsured motorist fund, and her statutory accident benefits entitlement - also payable by the insurer of her father's automobile insurer.

In short, she'd already recovered or would eventually receive the the tort "value" of her case, so why not argue principle, only? She had nothing to lose except court costs, and everything to gain if principle was the motivation. The costs, of course, payable to Desormeaux (that is, to the insurer of Desormeaux) of losses at each level could be quite a significant amount if demanded. And her own legal fees could be, too. The trial judge awarded Desormeaux & Zimmerman costs with the comment " "Hopefully, the Defendants will not seek an order of costs against Zoe Childs." The Ontario Court of Appeal did not award costs to anyone. The SCC dismissed the appeal with costs.

If something had been worked out to protect Ms. Childs funds from those exposures ....

Anyway, it's food for thought.

Finally, I look forward to meeting those of you attending next week's Symposium. Kudos to Jason Neyers for making it happen and to the rest who have or will be contributing to the success of the symposium by presenting papers, commenting, or "merely" attending.

David Cheifetz

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