Date: Wed, 3 May 2006 09:35:29 -0400

From: Jason Neyers

Subject: Childs v. Desormeaux

I agree with Robert that the example that John is talking about is not nonfeasance (see Weinrib, Case for a Duty to Rescue where he calls it pseudo-nonfeasance). But, what makes the Childs case more interesting than any other example we have been taking about is that the defendant's did not supply any alcohol at all. It was a bring your own alcohol event.

Is Childs a case of nonfeasance? Is hosting the party the risk creating event? I tend to think that even if one characterizes Childs as nonfeasance it still meets the property owner exception recognized in the PC's decision in Goldman v. Hargrave (the property owners ability to exclude others from intervening creates a limited duty to either allow intervention or take care). As I remember the case it requires a subjective/objective analysis -- given the resources of this particular plaintiff and their particular knowledge what would a reasonable person have done. If that is the case, then in Childs there should be a duty if the property owner knew that the guest was intoxicated and that they had the means of driving.

Great debate.

Robert Stevens wrote:

I don't think this scenario is a non-feasance case at all. The defendant has failed to prevent the driver from drunkenly injuring another, but that doesn't make it a case of non-feasance.

If the defendant had not acted by having a party, the car crash would not have occurred. If the party had been carefully organised, so that drivers were not supplied with excess alcohol, the accident would not have occurred.

A next door neighbour who knows the wild party is going on and hears the drunken revellers getting into their cars but does nothing to prevent them driving off, has not by his actions made any subsequent victim worse off. By contrast, the person who throws the party cannot say he has done nothing, and cannot claim that he has merely failed to protect the victim from a harm which would otherwise have occurred. That is like a car driver saying that his failure to apply the brakes was merely non-feasance.

If I load a gun and leave it in my lap and a child picks it up and shoots you, I have by my actions made you worse off. Your complaint is not (simply) that I failed to stop the child from shooting but either (1) that I was careless in loading the gun and leaving it where the child could get it or (2) by enabling by my actions the child to obtain the gun I came under a positive duty to act to protect others.

There are easy precautions to take to prevent guests leaving your parties drunk. If you don't want to take them, don't throw parties.

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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