A scenario:
You are with a group of friends in a bar on a Friday night and one of them has had rather a lot to drink – much more than he usually does. He seems happy, despite slurring his words and taking a few moments to get his balance. But, as he slurs his goodbye at the door of the bar, it flashes through your mind that maybe you should walk him home. ‘Nah’, you think, ‘he’ll be fine’ – and he would certainly protest. Ten minutes later he stumbles and falls into the river and drowns. Did you have a duty to walk him home? What about the others in your group? Moreover, might that duty have been a legal one?
A lawsuit currently being filed in the US raises precisely these sorts of questions. The parents of a (then 19 year old) student are suing various individuals for negligence after the student drank 17 shots of vodka in 2 hours and was later found dead. As well as the bar in which she was drinking and the organizers of the party, they are also suing her boyfriend.
In negligence law, in order for a claim of negligence to succeed, four things have to be established: 1) that there existed a duty of care between the defendant and the claimant, 2) that the duty of care was breached, 3) that there was loss (damage/harm) experienced by the claimant, and 4) that this loss was caused by the breach of the duty of care. In the case of the US student, the student is the claimant and the various individuals being sued for negligence are the defendant(s).
Duty of care
The criterion of particular interest in this case is the possible existence of a duty of care towards the intoxicated student. And this is most interesting when we consider the student’s boyfriend. A duty of care is much easier to establish when there is a formal relationship between the two parties. An archetypal example is the formal relationship between a doctor and his patient, or a legal guardian and the child for whom s/he is responsible. The bar in which the student was drinking probably fits this form as well (in England and Wales, it is also an offence to serve a drunk person alcohol (Yes, it is!)). However, when the relationship between the parties is informal, such as friend or partner, or perhaps just an acquaintance, things are much less clear-cut.
Responsibility for
But this is not just a legal question. It may well be that there is an ethical understanding of duty of care that probably is related to, but would exist independently of, the legal duty. This ethical duty is something over and above the general imperative to do good for others where we can: a mother seems to have an ethical duty to look after her child independently of her legal obligations, and this ethical duty belongs to her and not the random person on the street. What this duty consists in is probably something like doing one’s best to ensure that certain things happen, or don’t happen, to the person to whom you owe the duty. It is probably more naturally translated into the idea of being responsible for another person.
Instructive disanalogy
So what about the voluntarily intoxicated (or high, or otherwise rendered-less-than-fully-capable) person? Who, and under what circumstances, might acquire responsibility for him? It might be argued that the relevant comparison is with the duty to help the person bleeding in a ditch. But, on closer inspection, important disanalogies emerge. First up is the actual occurrence of harm. The person bleeding in the ditch is, well, bleeding, whereas the drunk person leaving the bar in our scenario is happy and pain-free. The second difference is an active request for help. The bleeding person – we imagine – is calling out for help, whereas the drunk person may actually protest at your attempts to take him home before he wants. The third difference is the voluntariness of the predicament. Drinkers voluntarily take a risk when they drink, whereas the victims of accidents are often less ‘to blame’ for their situation (although risky activities, like performing extreme BMX stunts, might be closer to involving a similar voluntary risk).
These latter two points raise the crucial issue of the autonomy of the intoxicated person and how this interacts with having a responsibility for him. It may be that there’s some sort of inverse relationship, but this is far from clear. Relatedly, it does seem somehow unfair that the drinker’s voluntary recklessness with alcohol leaves you responsible for him.
Conceptual tools
The tools we need to suggest some sort of answer to the ‘who’ and ‘when’ questions likely come in the form of the concepts of: foreseeability of harm, closeness of the relationship to the intoxicated person, and suitability to help (if a large man is going to need propping up or even carrying, there needs to be strength; if I live close by, it’s less of an inconvenience for me to assist). These are invoked in various guises in English case law dealing with negligence but, even if there were no such law, we would still use these sorts of concepts to assess our ethical intuitions about responsibility for others. Moreover, whilst in English law (at least), it is difficult to establish a duty of care in relation to pure omissions, this may not always correspond with our ethical intuitions.
Lingering questions
However, even when employing these conceptual tools, I think the US case and the scenario above still leave many questions without clear answers:
- What about the person who intentionally sets out to drink himself into a helpless stupor? Do we owe less of a duty to him than the person who just failed to recognize her limits? Is it fair that he generates this responsibility?
- What about the person we only met a few times, but to whom we’re not a stranger? Does simply getting to know someone better really generate for me a new (latent) responsibility?
- At what point does the responsibility kick in and how do we justify overriding the drinker’s autonomy? To what extent should it?
- What about when there are a few potential candidates for acquiring this responsibility? Are they all jointly responsible or, if one person takes responsibility, does this dissolve that of the others?
So
As you head out for your Friday night drink this week, spare a thought for those for whom you could be generating responsibilities…
I see a potential objection with the point made about “voluntariness of the predicament” of drunkenness as it could relate to sexual consent issues. It is generally thought, at least in the U.S., that drunk people (or drunk to a certain level?) cannot consent to sex; the responsibility to not have sex falls to the sober or more sober party. Does the voluntariness of drunkenness have any bearing on the responsibility of the sober party to not have sex with the drunken party? What if both parties are drunk?
Related to your topic, are friends of a woman responsible for preventing her from going off with a man when she’s drunk? Where does social/shared responsibility end and paternalism begin? (Is intoxicating yourself even a moral thing to do?)
A really thought provoking post. With regards to your first lingering question,I take it that it is intuitively plausible to suppose that we have a lesser duty to the ‘intentional intoxicator’ than we do to the drinker who doesn’t know her limits. Further, it seems that one way to explain this discrepancy is to appeal to the apparent difference between the two agents’ autonomy with regards to their intoxication; in so far as the intentional intoxicator sets out to intoxicate herself, she seems to have more autonomy with regards to her coming to be intoxicated than the agent in the other example.
The difficulty though is that this appeal to the autonomy of each agent opens up something of a Pandora’s box, since it is not immediately clear where our enquiries concerning each agent’s autonomy should stop. For instance, there could be several ways in which the intentional intoxicator’s autonomy could be diminished; suppose that she is in the throes of grief after the death of a relative, and intentionally intoxicates hereself because it is the only thing that can numb her pain. Alternatively, suppose she is in a social group which encourages heavy drinking, etc. The point is that if we try to justifylesser duties on the basis of the agent’s autonomy in coming to be intoxicated, there needs to be some non ad hoc point at which antecedent causes of the agent’s wanting to intoxicate herself do not affect our judgement concerning her autonomy in doing so. Given the difficulty of doing this, might it be more practical to keep the duties consistent between the two cases?
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