Date: Wed, 3 May 2006 12:12:56 -0600

From: Lewis Klar

Subject: Childs v. Desormeaux

I think it is important to keep in mind that with the social host situation there are two activities which are involved. The first is the actual hosting of the party; eg setting up the bar, and monitoring drinking. All I think would agree that (Occupiers Liability law aside) one has a duty to take reasonable care to avoid injuries to foreseeable victims in the hosting of the party itself and if one is negligent in the hosting one will be liable for reasonably foreseeable injuries. Thus for example if you serve bad food, you invite disruptive and aggressive guests who beat other people up, or maybe if you allow people to drink excessively, you will be liable for what follows (subject to ordinary negligence law limitations).

The second event or activity is the after party decisions - how are your drunk guests going to get home? Normally that would be their responsibility, unless the law decides to impose a duty on the host to ensure that they get home safely. Now why would the law do that (aside from instrumentalist goals which I reject as being good legal reasons)? It cannot be merely because you created a foreseeable risk of injury by hosting a party. As I earlier indicated most activities create a foreseeable risk of injury. It can only be because the negligent manner in which you hosted the party created a foreseeable risk of injury. If so there then is a duty to take reasonable care to ensure that they get home safely. Thus we must consider negligence again, but this time in relation to what you did to make sure your guests got home safely (if you had a duty imposed upon you).

Thus it is true that to create the duty in the second activity you must determine that the first activity was done negligently. This seems to conflate duty and breach; but I do not think it does. It accepts the idea that a duty will only be created with respect to the second activity, if and only if the first activity was done negligently.

Thus I essentially agree with John that the manner of conducting the party is relevant to the existence of the duty which arises in the after party decision making (if that it what he meant to say through his hypotheticals).

Lewis Klar

>>> "Wright, Richard" 05/03/06 11:36 AM >>>

John -

I understood that you were not equating nonfeasance with no liability and also not equating misfeasance with liability.

I hope we are not getting bogged down in semantics, rather than different doctrinal elements. I believe we both agree that negligence liability requires a legally cognizable injury, duty, breach of duty, actual causation, no applicable limitation on the extent of legal responsibility ("proximate causation" or "remoteness"), and no complete defense. I took your statement, "It is, to my mind, utterly implausible to say that H owed a duty, for the benefit of persons such as P, to refrain from hosting a movie marathon notwithstanding that doing so created certain risks of physical harm to persons such as P," as implying that you believed that treating the hosting as a "misfeasance" situation rather than an "affirmative duty" "nonfeasance" situation would mean that there was a duty not to engage in the hosting. I agree that it would not, but I believe that it would mean that there is a duty to take reasonable care in one's hosting, as in all "misfeasance" situations (those in which one's activity creates foreseeable risks of physical injury to others, rather than not benefiting them by protecting them from risks that one did not create).

You still seem to believe that treating an activity as a misfeasance (ordinary general duty) situation would mean conceding both duty and breach. You state that "someone who commits misfeasance might still be off the hook on grounds such as no proximate cause." In my view, one need not employ the issue of proximate causation to avoid liability in a "misfeasance" situation (or a "nonfeasance" situation), but rather must first examine the issues of duty (generally assumed to exist in a misfeasance situation involving a foreseeable risk of physical injury), breach of duty, and actual causation (and also possible defenses). So perhaps we have different conceptions of misfeasance: mine being very sparse and simply referring to one's creating, through action or inaction, some foreseeable risk of physical injury to another, which creates a duty to take reasonable care but does not imply that that duty has been breached, and yours (apparently) encompassing the idea that "misfeasance" literally means "misdoing" or negligence, thus encompassing both duty and breach. But the duty element needs to be separated out from the breach element, in both "misfeasance" and "nonfeasance" situations.

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