Suing the Wrong Party

Prof. Eugene Volokh, UCLA Law School


Wall St. J., Jan. 23, 1998

              Suppose my 14-year-old daughter has sex with a 15-year-old boy at a party and gets pregnant.  What should I do?

              Now for a harder question:  Whom do I sue?  The boy?  His parents?  My daughter's school, for not providing sufficient sex education?

              No -- I should sue the host of the party! So says a Louisiana appellate court, which just accepted such a lawsuit on the theory of "negligent supervision."  No joking.

              The court is, as usual, very vague about just what are a host's legal duties as sexual policeman.  The judges found it significant that the hostess saw the teenagers lying on a bed kissing and did nothing more than "point a finger at them and give them a look to let them know that the behavior was unacceptable."  Though kissing isn't yet a crime, the court said that in light of this evidence of the teens' "sexual propensities," the hostess should have done something more.  What exactly?  The court doesn't say.

              The sexual act in this case took place in the bathroom.  Without hidden cameras, how was the hostess supposed to know about it?  Well, the judges pointed out, some of the teenage guests knew the couple was in the bathroom.  Presumably the hostess should have somehow extracted this information from them.  Because she didn't, she now faces a jury trial that could cost her hundreds of thousands of dollars.

              Teenage pregnancy is a serious problem, but turning party hosts into an antisex patrol isn't going to solve it.  Kids can get pregnant in a car or behind a barn.  Will we hold car owners liable for pregnancies conceived in the back seat?  Whoops, forget I suggested that.

              Our society has evolved into a bizarre mix of far too little responsibility and far too much.  We don't teach our 14- and 15-year-olds to behave responsibly; but then we impose vast legal responsibilities on some for the misconduct of others.  In one recent appellate case (later reversed), the court held that an employer could be liable for not stopping an affair between two employees, whose ex-spouses had sued the employer for "negligent interference with familial relations."

              The consequences of this burgeoning liability are familiar.  First, loss of liberty:  Each new legal duty is another restriction on how we conduct our personal and professional lives.  Second, injustice:  Those who don't know about these novel duties can lose their life's savings.  Third, overdeterrence:  Those who do know their new duties will, if they're smart, simply stop doing risky things like letting their kids throw parties.  And fourth, a further corrosion of our sense of who should be responsible -- in this case, the children and their parents, not some third party who has neither the ability nor the authority to teach others' children to behave wisely.

              [The case described here is Doe v. Jeansonne, No. 97-795, 1997 WL 757999 (La. App. Dec. 10, 1997).]