Third-Party Liability? Becker

I agree with Posner that third party liability is desirable in some cases, but that class is narrow. One appropriate case is where a firm makes a device whose only purpose is to steal satellite signals. The firm should be held liable when one of its devices is purchased and used for that illegal, and only, purpose. In addition to the obvious advantages of discouraging the production of goods that have no or few legitimate purposes, there are gains from holding a manufacturer liable rather than having to find and sue the many users of his good. A little more complicated case is whether parents should be held responsible for the harmful acts of their teenage children. Surely, parents should be responsible for a sixteen-year old son who gets into an automobile accident while drunk at 2AM. Parents should be able to exert enough control over their teenage children to prevent them from driving at that hour while drunk. Less apparent is whether parents should be responsible for their son's actions if he gets into an accident while drunk at 8pm while driving a friend's car without his own parents knowing. The son should surely be responsible, but even parents who exercise significant and sensible discipline over their children may not be able to prevent such accidents, although of course they can punish him afterwards. Consider now the case mainly discussed by Posner, of liability by bars for the drunk driving accidents of their patrons after leaving a bar. Accidents due to drunk driving are a very serious problem in many countries, and the United States in particular does not do enough to deter these accidents. Yet I am skeptical whether holding bars, restaurants, or party-givers responsible is the right approach. The rationale behind holding say bar owners liable is that they would then control drinking by patrons who are obviously drunk, and that this would limit the number of automobile accidents by patrons after they have left a bar. I am dubious about this approach because of the difficulty of effectively enforcing such third-party liability. Only a small fraction of patrons of most bars both drink heavily and then drive afterwards. Waiters and other bar employees would have to keep track not only of how many drinks patrons have had, but also of how drunk they are, and whether they would be driving afterwards. I do not see how many bars could ever hope to have accurate information about all three stages involved in producing drunk drivers, especially whether patrons would be driving afterwards, particularly when they do not know their patrons well. To be sure, if they were liable, bars might have rules that no patron may have more than I or 2 drinks, which would be the limit in most states before most drinkers would fail the usual sobriety tests. The problem with such a rule is that it does not focus on the behavior of patrons who are potential drunk drivers. It punishes patrons who want to drink more than that and have no intention of driving while under the influence. Moreover, such a rule is ineffective against patrons who go from bar to bar and only have one or two drinks at each one. It is also ineffective against patrons who drink at home first and then add a few drinks at a bar or restaurant. The same considerations apply if bars get insurance to cover these liabilities, and then raise the cost of drinking to everyone to cover the additional costs. It could be claimed that while holding bars liable would not work perfectly, such third-party liability would cut down on the number of drunk drivers. It probably would, but would the effect be large, and how much costly and inefficient litigation would be stimulated against bars and others held liable who are not in any important way responsible for the drunk driving of persons who been at their establishments? Why not also hold friends liable who did not stop a drunk driver from drinking so much, or did not force him to take a taxi home? The ultimate question is whether the general and specific harms from imposing liability on bars to innocent patrons, friends, and others exceed the gain from cutting down drunk driving? I believe it does, especially because better approaches are available. A far more effective way for states to deter drunk driving is to target drunk drivers more closely and punish them more severely. Posner is doubtful that people who drink heavily and become a menace to others make rational decisions. Yet Scandinavian countries have found that imposing severe punishments on drunk driving, including roadblocks to detect drunk drivers before they get into accidents, has induced heavy drinkers generally to avoid driving. When individuals in these countries go out to party, they either designate someone in their group to drive without drinking, or they take public transportation to get home. Such policies may not work as well in other countries, but certainly much more can be done in the United States to discourage drunk driving. I believe that the evidence cited by Posner on the substantial decline during the past 25 years in the fraction of fatal accidents in the United States that involve drunk drivers in a significant way is in fact due to tougher policies toward drunk drivers themselves. Still, the punishments are generally not yet tough enough. I began thinking about third-party liability after the recent Chicago marathon race on a day that was unusually hot and humid. About 10,000 registered runners did not show up, presumably mainly because they knew how uncomfortable and possibly dangerous running on that day would be. The organizers added more water and medical facilities than usual in recognition of the toll running under such conditions would take. After about some 17 miles they also stopped the race for about 10,000 of the slowest runners. Nevertheless, several hundred runners had to be hospitalized, and many others became severely dehydrated. I am confident that some of those who became ill will bring lawsuits against the organizers for allowing the race to proceed, and/or for not supplying enough water and medical help. This would be a kind of third party liability by the organizers for the harm done by runners to themselves. Surely, however, the runners could know as easily as organizers what the weather would be, and know better than the organizers about their physical condition, their tendency to dehydrate, and other relevant considerations. For these reasons, individuals themselves should be responsible for whether it is wise to run under these conditions. "Third-party" liability in this case would be a mistake, and in the litigation atmosphere in the US, it is likely that some of the lawsuits could result in judgments against the marathon organizers or sponsors.

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