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10/21/2007

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Raul

I recall that if you are crew on a seafaring vessel it is your "duty" to render assistance to other vessels in distress. Could this be constituted as an example of "good Samaritan duty" being legally imposed? What is the legal framework that makes this enforceable? Is the tavern-owner's position similar to that of a merchant-marine?

Phil

Perhaps one of the reasons social-host liability hasn't caught on yet is that the "duty" one is expected to perform is onerous.

Should one of my guests insist on driving home drunk, I have two choices: either take his keys by force, or call the police and have him caught.

In the first case, I could get badly hurt -- and, if my friend is only slightly over the legal limit, the combined physical harms to me and my friend are probably much higher than to the sum of the expected harms to all drivers on the road.

In the second case, my friend will lose his license, and perhaps his freedom. The penalty for getting caught driving drunk is much higher than the harms resulting from the individual infraction, as a deterrent, required because of the fact that so few drunk drivers are caught. So this is not something I would do to a friend. A stranger, perhaps, but not a friend.

The fact is that social hosts faced with an intoxicated friend who insists on driving have no reasonable recourse.

ChinaCoalWatcher

New Jersey has been ahead of most states on rulings finding third party liability. See Kelly v Gwinnell, S. Ct. N.J., 1984.

A few years ago I was a pub in Norwich in the UK where, apparently as a replacement for the judgment and legal-liability-calculus of the bartender, they had just installed a clever Rube-Goldberg-like automated contraption which connected a straw-dispenser, a "Breathalyzer", and a series of tiny "key safes" (like miniature versions of the arrays of lockers you might find at train stations or post officers).

You were encouraged (though not required) to put your car key in the safe at the beginning of your evening, and at the end you would swipe your credit card (for payment and security?), get a straw, blow in the hole, and if you scored less than the legal limit, your little safe would open.

Despite the ease of imagining several different ways of defeating the machine, I still thought the device was brilliant, but my friend in the city told me the pub removed it within a year. Apparently some patrons were happy to use the device early in the evening, but had become quite belligerently upset with their choice later when they were denied their keys. Six years later, I haven't seen or heard of anything comparable.

But it's clear, at least in the case of public places of inebriation, that instead of conscripting the workforce with unpredictable legal liabilities, a government could buy these contraptions and simply require their universal installation and use.

In the alternative, a government could require the installation of similar engine-lock devices on all new automobiles which would also remedy the private-gathering drunkenness problem, but where "machine-defeating tactics" would be much less conspicuous than in a bar or club.

The obvious economic question is whether either of the two strategies above pays its own wage. My guess is that the engine-locks would. According to the BTS, there are about 230 million passenger cars, pickup trucks, and SUV's in the US.

Assuming it costs about $250 to add such a device to a new vehicle and that 5% of vehicles are replaced every year, the cost would be about 3 billion a year. Doubling both to $500 and 10% would be about 12 billion (which in my guess is a fairly liberal estimate).

But if 16,000 lives are lost every year now, and the engine-lock strategy would save, say, half of them in the long run, and the total costs as reflected in insurance premiums from each incident average $1.5 million, (I guess these to be conservative estimates), then the cost saved would probably be in excess of 12 billion - which doesn't include savings from less enforcement and other effects. A pretty solid case.

The New Jersey experience has not evidenced anything near this kind of effectiveness despite decades of imposing third-party liability. This while cheap and effective technologies have existed for years and languish waiting for politicians to deal with a death rate 15-times greater than loses of soldiers in Iraq.

James

I'm not sure if I'm for social liability laws. The main reason is it removes personal responsibility and puts us on the dark path to being able to blame others for our problems. Unfortunately, I do understand why we do have such laws as a body-count (think drunk driving) does have a tendency to make all kinds of interesting things happen.

James

paco

Why not extend liability further to liquor distributors and to manufacturers of alcoholic beverages so that the cost of alcohol will include the full social costs of drunk drivers?

Jack

Without opposing our social contract that the statistical risk of driving while over the .08 limit is unacceptably high, we should not expect 100% compliance to reduce fatal accidents by anything close to the 40%. Some sizable fraction of the accidents would be caused by the same things that cause the other 60% of highway fatalities of speeding, cellphonitis and the curious mania of tailgating at freeway speeds.

Apparently, causality is far higher at intoxication levels that are well over .10 so hosts and bartenders are able to help the most by spotting and doing something with those who show outward signs.

But that doesn't help much with the problem of liability at .08, a level that's probably difficult to detect by casual observation. Fortunately? it would seem few third party court cases would revolve around the .08 threshold as even breath tests are not too accurate and how would one demonstrate the bartender or host knew, or should have known?

It can get messy! Here (Alaska) there's an interesting state Supreme Court issue in which a bar, perhaps operating after hours, sold beer to a 20 year old minor, who had been previously drinking at a river's edge beach party, took someone's four-wheeler ATV without permission and was killed after running into a poorly marked cable across an access road to the private property.

The liability has been decided, in lower court, in percentages of negligence, but one attorney is lamenting the percentage method creating an incentive for the bar to allow patrons to get more drunk so they'll do something unusually foolish which would lower the percentage of dram shop liability. The case has also brought before the SC the loss of parental consortium including the deceased not being there to care for them in their old age.

Chinacoal: In a post on the Becker side, I held out some hopes that making breath tests freely available to use on a voluntary basis would be helpful, but you reportage on the UK key lock-up has dampened my enthusiasm for that idea somewhat. Ha! a recent letter to the editor here read:

"Why are bars allowed parking lots?"

Doug G

This is a conspiracy. The Hawaiian Punch people have to be behind it.

Jeremy

The Supreme Court of Canada tackled the topic of social host liability in 2006 in a case called Childs v. Desormeaux.
http://scc.lexum.umontreal.ca/en/2006/2006scc18/2006scc18.html

The crux of the Court's reasoning focussed on the proximity (or lack thereof) between victims and hosts. In that context, the Court relied on a consideration not mentioned by either you or Becker: the autonomy of the guest/drunk driver. The Court held that there was no duty of care owed by social hosts of BYOB parties for the reason that, among other things, do impose such a duty would unjustifiably interfere with the "personal choice" of the guest/driver.

I find the autonomy argument misguided. In cases of nonfeasance, it has typically been the autonomy of the defendant that deserves consideration, not the "second party." I wonder what you think of this point? Ought this be a relevant concern, and if so, how should it be weighed?

Greggory M

I have always been a little queasy about social host liability -- even on the relatively non-controversial front of 'state "dram shop" laws.' I wonder if all of this isn't as much an issue of "whether in particular circumstances collective punishment is an efficient method of minimizing harm" as one of the punishments for (e.g.) drunk driving simply being so insufficient as a deterrent that the law, instead of fixing the dyke, has built a sluice channel to (try to) take some pressure off of it. I mean, if everyone convicted of a drunk-driving offense lost her license for a year and everyone convicted of a second drunk-driving offense got 10 years in jail, something tells me recidivism would be down -- if for no other reason than many would-be repeat offenders would be off the streets.

Fernando

It seems that Mr. Becker presents sound reasoning that allocating the liability, in this case, upon third-parties would not solve the problem, for it would be circunventable (through e.g. via insurance), would increase the litigation lottery and would blame those that cannot control in all instances other´s behavior. To punish the drunk with the adequate and sufficient penalties and to increase the official power to search for them world be, I think, the best solution.

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Lily

I am a chinese girl.I have read your for twice.There is a custom in China that the host should provide enough alcohol for guests, the more the better.The means of chief transport is cart or other driven by horses or donkey in the past,so that didn't incur heavy losses.But with the development of economy the number of automobiles is growing larger and larger,the people still keep the conventional custom.The host let guests drink so much alcohol to express his or her friendliness.This causes so many accidents that lawsuits of accident is over 60% in Chinese elementary court.If enforce the host liabilities will contradict the social custom,so in China there isn't host liabilities ever.Although the custom changed a little in recent years ,especially in South China,it is stubborn for many people and it bring more accidents.What do you think about this social custom.

Lily

I am a chinese girl.I have read your for twice.There is a custom in China that the host should provide enough alcohol for guests, the more the better.The means of chief transport is cart or other driven by horses or donkey in the past,so that didn't incur heavy losses.But with the development of economy the number of automobiles is growing larger and larger,the people still keep the conventional custom.The host let guests drink so much alcohol to express his or her friendliness.This causes so many accidents that lawsuits of accident is over 60% in Chinese elementary court.If enforce the host liabilities will contradict the social custom,so in China there isn't host liabilities ever.Although the custom changed a little in recent years ,especially in South China,it is stubborn for many people and it bring more accidents.What do you think about this social custom.

Immanuel Kant

Judge Posner iiih I wanna drink and so what? iihhh. It would be great if all people drive drunk because the best economic cost-benefit analysis shows without doubt that it would for sure increase the death rate among drivers and pedestrians and everybody would be dead. And without people, no problems would occur, or better, all the problems would be solved. The economists wouldn´t have ends to achieve (anyway their discussions are based onle in means).
Judge Posner read more the German idealists. Put aside Mill.

Yong ZHAO

Well, I would not agree with the girl posted above.Yes, of course, currently in China there's no such law or statutes provided "social host" liability , as well as in case. But in Chinese Contract law or tort law, it does have the "third party liability" in many circumstance, such as the employer's liability,liability of the owner of the vehicle for selecting the driver,and the transportation company's liability for the injure of passenger, etc. It's true that it is tradition of Chinese the host had to provide how much their guests require.But I think in United States the host would not deny the guests' requirements. Social customs is a problem when consider these problems concern law-making no matter in judge-making way or parliament-making, but whatever the difference is, there's one very essential principle should not be neglected: take responsibility for ourself. If we take account the social cost,(if there have social cost, because an accurate cost analysis is difficulty to conduct),the problem turns to the which party should burden how much.Beside, many other problems would rise such as what Posner has concerned.

Yong ZHAO

Well, I would not agree with the girl posted above.Yes, of course, currently in China there's no such law or statutes provided "social host" liability , as well as in case. But in Chinese Contract law or tort law, it does have the "third party liability" in many circumstance, such as the employer's liability,liability of the owner of the vehicle for selecting the driver,and the transportation company's liability for the injure of passenger, etc. It's true that it is tradition of Chinese the host had to provide how much their guests require.But I think in United States the host would not deny the guests' requirements. Social customs is a problem when consider these problems concern law-making no matter in judge-making way or parliament-making, but whatever the difference is, there's one very essential principle should not be neglected: take responsibility for ourself. If we take account the social cost,(if there have social cost, because an accurate cost analysis is difficulty to conduct),the problem turns to the which party should burden how much.Beside, many other problems would rise such as what Posner has concerned.

Mark

For social hosts who are not business entities where the situation of liability might come up, the solution here is simple. Follow the principle of avoidance of responsibility that tries to remove responsibility from drunk drivers and, before any of your guests leave, ensure that you yourself are in an inebriated state.

This way you do not need to know whether or not they are driving, and you can enjoy yourself at your own party, as you can claim that due to your drunken state, your judgment was equivalent to that of a child and it was impossible for you to make utility-maximising decisions about whether or not it was safe for a guest to leave your party.

To really attempt to avoid responsibility, invite some teetotaller guests upon whom the question of liability can be directed, even though they are not technically hosts -- they're the only sober (and therefore rational) people in the room.

I would not actually suggest the sort of thinking above is an attractive direction for society to move in, but when the legal philosophy is to remove responsibility from the primary law-breakers and place it on non-harmful members of society, these become the best practices of the self-interested.

Jim

It drives me nuts that no one is able to take responsibility for their own actions. Why is there always someone that has to shoulder the blame?

If you have had too much to drink, it's nobody's fault except your own, not the person who served you, the person who delivered the material, the person who made the material, etc. It's your own dang fault. Why can't the courts and politicians see that?

Jim

It drives me nuts that no one is able to take responsibility for their own actions. Why is there always someone that has to shoulder the blame?

If you have had too much to drink, it's nobody's fault except your own, not the person who served you, the person who delivered the material, the person who made the material, etc. It's your own dang fault. Why can't the courts and politicians see that?

Jack

"It drives me nuts that no one is able to take responsibility for their own actions."

Were that human nature our body of laws and penalties would be very small. Statistically, it simply doesn't work which provides the basis for the topic of the day here and the thrust of the MADD mom's legislative changes of the last couple of decades.

"Why is there always someone that has to shoulder the blame?"

Are there any other, realistic, means of trying to lower the 16,000 alcohol related highway deaths each year? Are we not, at least partially "our brother's keeper" in some sense? especially in the case of "not letting friends" or bar patrons drive drunk? Should some innocent user of our highway "shoulder" the harm if we don't?

电炉

thanks for you

St. Darwin Assisi's Cat

Hello Judge Posner ... your writing is so eloquent, factual, to-the-point -- third party, social host, and employer liability are important but they don't stop drunk driving or tortious conduct by drunk persons. The economic view of this emotionally charged subject is all well and good but the deal of being a drunk or loving a drunk is a very very hard road to travel -- I will be visiting a woman now suffering from beginning dementia who asserts it was her daughther's husband's fault she died in a horrific drunk driving accident killing not only herself but a man who would have celebrated 35 years of marriage ... this woman fails to remember that she drank with her daughter, her son drank with her daugther, yes, her husband drank with her, I drank with her ... the point is WE ALL DRANK ... in a 'twisted way' we are all responsible for drunks .... we all enable this behavior each time we witness the drinking or drink ourselves. I would guess you have not had 'drunks' in your family, you have never been a drunk nor have you ever loved a drunk -- this is ok Judge Posner but for those of us where drunk is near and dear economic logic just doesn't cut it.....

St. Darwin Assisi's cat

Thinking about this last night....what about the law firm filled with all those prestigious law school graduates who know their paralegal is a drunk and then takes that person to trial and makes them drive an auto with alcohol in their body? What about the adults ages 29 and 30 who buy liquor for their 19yo babysitter and the babysitter has a drunk driving accident causing damage to a parked car and medical damage to themselves ... who is liable? What about Kenned and Chap-a-qui-dik? What about our President admitting his alcohol issues then featuring his daughter on MSN.com also with alcohol issues, toasting her engagement with ALCOHOL? What about Gore's son with drug issues -- where is liability if he is at a film festival, everyone knows who he is, film organizers serve him alcohol which causes him to use drugs and then he injures someone? All of these What if questions remind me of Ohio Northern University's Professor David Benson in Torts class....proof is always the problem....

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