Week Thirteen, Part 1 - Torts: Naked Before The World

With the exam in Legal Writing fast approaching, I’ve cut back on my preparation in the substantive classes. There’s not enough time to read and brief every case. Apparently, I’m not the only one.

In Torts, we’re stuck on the third element of negligence: causation. Our issue for today is “intervening cause.” I write in my notes: “an independent act which contributes/causes P’s injury.”

Professor Charles Rice calls on student Tom Longo to discuss Kelly v. Gwinnell, a 1984 case from the New Jersey Supreme Court.

Longo doesn’t bother to stand up. Instead he calls out from the back, “Sorry, sir. I didn’t get to it.”

Yikes! It’s the first time all year a prof has caught a 1L coming to class "naked," that is, with no prep.

Since Rice doesn't use a seating chart, he looks about for the source of the disembodied voice. No luck. “Mr. Longo, show yourself!”

No one ever jumps up in Torts, but Longo sets a new record for sluggishness. The chair slides out and his legs straighten. Then he tilts his torso upward like a senior citizen with arthritis.

We all turn to look. Since Longo’s in the back center of the lecture hall, the people in front and middle have to twist in their seats. Those of us on the wings crane our necks.

Longo has on jeans and a striped polo. He wears his hair longer than most, kind of Euro. It doesn’t touch his shoulders, but the strands in front are long enough to lie down when combed straight back. I’ve talked to Tom a few times, and know he’s a Long Island native and undergrad Domer.

“Mr. Longo,” Rice says. “Not having any idea about a case is no impediment to discussing it!”

We laugh and Longo blushes, red as a flashing beacon on the Jersey shore.

Rice recites the facts. The plaintiff, Marie Kelly, was injured by a drunken driver in a head-on collision. She sued not only the motorist (Mr. Gwinnell) but also the social hosts (Mr. Zak and his wife) who had served him two or three drinks. The issue is whether the Zaks’ independent act was a proximate cause of Kelly’s injury.

Rice asks, “May a social host be liable?”

“Yes.”

“Mr. Longo, before you blurt out an answer, consider the elements! Does the law impose a duty of care on social hosts not to serve liquor to the point of intoxication.”

“Not sure. There’s a duty for bars not to serve someone who’s already drunk.”

“Good. Commercial sellers have such a duty,” Rice says. “But what about social hosts?”

Longo doesn’t know.

In this case, the New Jersey court imposed a duty. It wrote, “In a society where thousands of deaths are caused each year by drunken drivers, where the damage caused by such deaths is regarded increasingly as intolerable, where liquor licensees are prohibited from serving intoxicated adults, and where long-standing criminal sanctions against drunken driving have recently been significantly strengthened to the point where the Governor notes that they are regarded as the toughest in the nation..., the imposition of such a duty by the judiciary seems both fair and fully in accord with the State’s policy.

Rice tells us that social host liability is a minority opinion. Most states don’t agree.

“What about the Domer rule,” Rice asks, “where an underage student may drink in his room as long as no one sees him and there’s a bag around the bottle?”

We laugh. How does Rice know?

“It’s designed to encourage solitary drinkers,” Rice deadpans.

“No liability,” Tom says.

“Don’t give a conclusion! Approach the question like you would on an exam – from the top down. Duty, breach, causation, damages.”

That done, Rice questions Longo on whether bartenders may be held personally liable. He says their main responsibility is not to serve liquor to someone already intoxicated.

“Although the book doesn’t agree,” Rice says, “in some jurisdictions a bar could be liable to the drunk driver himself for injuries suffered.”

A student asks about underage drinking and bartender liability.

“In that situation, it’s ‘Katie, bar the door,’” Rice says.

Longo’s been standing for so long he’s no longer blushing.

Rice lets him sit.

I expecting to hear something like, “Make sure you never appear in New York Municipal Court unprepared.”

Instead Rice says, “Thank you, Mr. Longo. You were magnificent.”

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