Date: Wed, 3 May 2006 15:16:02 -0500

From: Richard Wright

Subject: Childs v. Desormeaux

I promise to make this my last post on this topic, for today at least. Not because I don't find it interesting and informative, but because I'm already too far behind on other things!

I like Ben's characterization of the issue:

Assume that, among the set of acts that could be causes-in-fact of foreseeable physical injury to others and could be characterized as risk-generation, there is some subset that qualify as sufficient to trigger the default rule of duty. Is hosting a star wars party among these acts? Is being a social host at a party where alcohol is provided by the hosts, in the manner of John's example 2? How about the unicycle case? Richard seems to think that the subset is the whole set, as do the Restatement (Third) drafters. We doubt it. Of course, the problem may be something about this idea of the default rule, anyway.

In what I wrote before, I could be taken to state that the subset is the whole set. I might also be comfortable with the view that the subset only includes those activities that involve a real or non-fantastic (per Lord Reid in Bolton v. Stone) foreseeable risk of physical injury to others. That specific factual issue would then be a duty issue, rather than being the first part of the breach of duty analysis (which requires a finding of unreasonable conduct in light of the foreseeable risks), and it would matter (but only where there is a jury) where the issue is allocated only if duty issues are for the judge rather than the jury even when they turn on a factual issue and reasonable persons could disagree about the factual issue (a common view, although contrary to Cardozo's position in Palsgraf). The Third Restatement draft, with which I think I agree on this point, takes the view that such case-by-case factual issues are better treated as breach issues rather than duty issues, and that a duty exists unless there is some strong categorical policy reason for not imposing a duty of reasonable care no matter how great the foreseeable risk to others created by the defendant's conduct. It is not clear to me how John and Ben would distinguish "default general duty" ["misfeasance"] cases from non-default, exceptional, "affirmative duty" ["nonfeasance"] cases other than through the distinction between creating risks to others and merely failing to protect others from risks created by someone else. Indeed, Ben's subsequent posts, after his initial post, seem to confirm that they also find this distinction to be the critical one.

But all the social host hypos involve the creation of a foreseeable risk to others, including risks of post-party negligent driving by inebriated guests, by hosting a party at which alcohol is served or imbibed. Moreover, I believe that all of them involve a real rather than a fantastic foreseeable risk of someone at the party getting drunk and thus driving home drunk and thus causing an accident and injuring others as well as themselves, absent reasonable monitoring and control of the guests' drinking. Indeed, it is those foreseeable drunk-driving risks that are one of the primary reasons for recognizing a duty of the social host to monitor and control the drinking of the guests at the party. So I don't think Lewis's interesting attempt to bifurcate the at-the-party and post-party responsibility of the host for duty purposes works. Just as the need to stop serving or to more closely monitor a guest at the party may arise from negligently over-serving or failing to properly monitor the guest beforehand, the need to prevent the inebriated guest from driving herself home arises from the same default general duty of reasonable care given the foreseeable post-party consequences of serving alcohol at the party. (Contrary to what Lewis seems to state, a post-party duty to prevent drunk guests from driving themselves home may exist in the absence of any negligence by the host during the party. If, despite reasonable monitoring and control during the party, it becomes apparent to the host after the party that the guest has become drunk due to imbibing the host's alcohol -- or perhaps even the guest's own alcohol -- at the host's party, an affirmative duty may then arise to prevent the inebriated guest from driving home, similar to the affirmative obligation imposed on a driver who non-negligently runs into someone on the road to stop and take reasonable care for the person whom the driver has injured.)

- Richard

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