Unforeseeability precludes lessor liability for saloon shooting, but court fails to mention 'scope of liability'

Jernej Furman CC BY 2.0 via Flickr

A property owner could not be held liable for the fatal shooting of a musician at a lessee nightclub, the Massachusetts Supreme Judicial Court held in August.

The court applied conventional principles of foreseeability, but made no mention of recently adopted "scope of liability" analysis.

In the tragic conclusion of a personal feud, 23-year-old musician Drake Scott was shot multiple times and killed at the City Limits Saloon in Boston in February 2016. Gregory Wright was found guilty of first-degree murder in the incident in 2019 and, at age 39, sentenced to life without possibility of parole. (E.g., CBS News.)

In subsequent civil litigation, Scott's mother sued UTP Realty, LLC, alleging negligent failure to prevent the shooting with better security or lighting. UTP had acquired the property, and with it the saloon's lease, in November 2015. The plaintiff said that past incidents of violence at the saloon should have put UTP on notice of the risk. UTP's principal denied any actual knowledge of the history.

Massachusetts does not recognize the common law invitee-licensee distinction in premises liability, rather observing a unitary standard of reasonableness—though that probably would not have mattered here. The older common law framework might have been less forgiving of UTP, as property owners owe a duty of reasonable investigation to discover risks. Still, the duty is merely one of reasonableness; it does not follow necessarily that even a diligent UTP investigation would have discovered the risk that resulted in Scott's murder.

More importantly, the court determined that Scott's murder was not reasonably foreseeable. Accordingly, UTP simply owed no duty to Scott, and by extension in wrongful death, his mother.

"The word 'foreseeable' has been used to define both the limits of a duty of care and the limits of proximate cause," the court quoted its own precedent citing legal treatises. "As a practical matter, in deciding the foreseeability question, it seems not important whether one defines a duty as limited to guarding against reasonably foreseeable risks of harm or whether one defines the necessary causal connection between a breach of duty and some harm as one in which the harm was a reasonably foreseeable consequence of the breach of duty."

UTP's property ownership was brief and at arm's length; Wright's act was sudden and brutal. In causal terms, an intervening cause in the person of an intentional criminal actor, especially in case of a violent offense, more often than not becomes a superseding cause, absolving an earlier negligent actor, such as a property owner, of legal responsibility. Upon that rule, the conclusion here is noteworthy, but not surprising. The same goes for the court's recognition that duty and legal causation offer alternative expressions of reasonable foreseeability.

The court's reasoning surprising, however, in the context of the court's recognition, amid what appeared to be a heated disagreement, of the Third Restatement approach to duty and causation in 2021, in Doull v. Foster, which I wrote about at the time.  Acknowledging the overlap between duty and legal causation, the Third Restatement sought to relocate policy-driven analysis to a more straightforward new element, "scope of liability."

Moreover, the Third Restatement eschewed the superseding causation approach as a way of solving the problem of multiple actors. Once the scope-of-liability hurdle is overcome, the Third Restatement favored instead the recognition of a question of fact as to the apportionment of liability between multiple culpable actors, even if one was merely negligent and the other committed an intentional crime.

Neither scope of liability nor apportionment, nor the Third Restatement nor Doull, for that matter, earned a mention in the instant case: a sound conclusion, in my opinion, but evidence in support of my skepticism of Doull's eagerness to embrace reform,

On the one hand, if it ain't broke, don't fix it. On the other hand, litigators and trial judges fairly might wonder when to Doull and when not.

The case is Hill-Junious v. UTP Realty, LLC, No. SJC-13380 (Mass. Aug. 16, 2023). Justice Serge Georges, Jr., wrote the unanimous court opinion. Justice Georges had just been appointed in December 2020 and did not participate in Doull.

Motel not liable for guest's suicide, court rules, despite family warning of risk, asking for room number

CC0 1.0 via Wikimedia Commons

The Massachusetts Appeals Court yesterday rejected Motel 6 liability for the suicide of a guest.

The September 1 decision broke no new ground, but reiterated the interrelationship of duty doctrines in negligence and Massachusetts repudiation of the common law "suicide rule."

Decedent Michael C. Bonafini took his own life in a room of the Motel 6 in Chicopee, Massachusetts, just north of Springfield in 2015. The mother and wife of the decedent blamed the motel because they went there in the night and morning trying to reach him, and motel staff would not reveal his room number. In the morning, the mother told the motel clerk that the decedent was at risk of suicide. The clerk called the room, but the decedent answered and immediately hung up. He was found dead when the motel manager entered the room at noon checkout time.

The case implicates potentially conflicting duty relationships in the common law of negligence. The reputed "suicide rule" of historical common law held that there can be no liability for a suicide. At the same time, common law recognizes an affirmative duty of an innkeeper to a guest, and the Massachusetts Supreme Judicial Court has recognized a duty to prevent suicide in some circumstances.

Historically, courts were loath to impose accident liability for an intentional act of self-harm on an earlier-in-time actor, especially when the intentional act was an attempt to commit suicide. The conclusion could be reached either by ruling that there was no duty to prevent another from intentional self-harm, which usually was criminalized, or by reasoning that the abrupt, violent, and intentional act of suicide dispositively interrupted the requisite chain of proximate causation.

It's arguable that there never was a "suicide rule," per se, rather a doctrine of duty and causation that was informed by social norms. Norms change. Suicide is less often today regarded as a matter for criminal justice, even if criminal laws remain on the books to justify the intervention of authorities. The trend in tort law is to employ the usual doctrines of duty and causation to analyze the facts of each case. That said, the "suicide rule" still holds sway, because the doctrines of duty and causation still disfavor the imposition of an affirmative duty to prevent injury and disfavor negligence liability for causal actors earlier in time than intentional injurers (this blog, Feb. 9, 2021).

On the question of duty, the instant case is complicated in two respects, one on the law and one on the facts. First, an innkeeper-guest relationship is one in which common law historically does impose an affirmative duty, on the innkeeper for the protection of the guest. Second, insofar as an affirmative duty might exist, it can be predicated on knowledge of risk, which the decedent's mother gave to the motel clerk.

The innkeeper-guest relationship did not get the plaintiffs to the finish line. The purpose of the common law duty is to oblige an innkeeper, like a landlord, to protect the guest from risks the innkeeper might know about, and the guest does not, in the vein of premises liability; or, at the extreme, risks of any nature that an innkeeper might be better positioned to mitigate than a guest can.

The court summarized past cases in which Massachusetts courts recognized an innkeeper-to-guest duty: failure to prevent stabbing by intruder for want of an adequate security system; failure to protect guest from fire set by arsonist; and failure to prevent battery by another guest. All three examples implicate an intermediate intentional, and tortious or criminal actor. But in the first two cases, the causal risks relate to the premises: a security system and fire response. There is no intermediately causal premises risk in the instant case.

The battery case seems more on point, and the court here did not make the distinction plain. But on the facts of that case, the plaintiff was stabbed at an event for which the defendant innkeeper had hired security guards. The case is best understood as a duty voluntarily undertaken by the defendant, and then executed negligently. In one count based on innkeeper-guest duty and one count based on ordinary negligence, the plaintiff complained that the security guards had negligently failed to restrain a drunken patron. The jury returned a generalized plaintiff's verdict that the court concluded was supported by the evidence.

So the problem for the plaintiff-representative in the instant case is that the decedent was not injured by the premises, and the defendant motel voluntarily undertook no duty to protect the decedent beyond the usual duties of an innkeeper. In fact, the innkeeper-guest duty arguably cuts against the plaintiff's position. Were a clerk to violate a guest's privacy by revealing the room number to a requester concealing ill intentions, the motel could be held liable for injury inflicted on the guest by the requester-intruder.

That said, the decedent's mother and wife were understandably frustrated with the clerk's stubbornness, under the circumstances, and their fears were vindicated tragically. The plaintiff's best strategy was to tie the alleged misconduct of the defendant to the responsibilities of an innkeeper, moving the causal focus away from the decedent's intentional act and changing the conversation from negligent failure to act to negligent action. In this vein, the plaintiff alleged not that the clerk necessarily should have revealed the room number, but that, instead of telephoning and giving up, the clerk should have summoned police to conduct a wellness check.

The court did not indulge the plaintiff's theory long enough to parse the details. But the basic problem even with the plaintiff's best gloss on the case is that the mother and wife could have called the police, too, and did not. Indeed, the court, fairly or not, faulted the family for being coy in characterizing the risk: "Indeed, all that is alleged is that [the] mother and wife informed motel employees that [decedent] was at risk of suicide, and asked for his room number so they could assist him. They did not tell the employees that [he] had stated an intention or plan to commit suicide or that he had recently attempted suicide." Perhaps the family feared negative repercussions of police intervention.

The plaintiff's case was buoyed modestly if insufficiently by Massachusetts high court holdings that a university may be held liable for a student's suicide. In 2018, the Supreme Judicial Court ruled that MIT did not owe a duty to a student who committed suicide on the facts of the case (this blog, May 7, 2018). But the court left the door open to a different analysis on different facts, and, the next year, the court allowed a case to go forward against Harvard (this blog, Sept. 30, 2019).

The Appeals Court distinguished the instant case from the Harvard case because the motel did not have enough information to ground an affirmative duty. In the Harvard case, the court looked to "stated plans or intentions to commit suicide." Here, again, the mother and daughter were coy as to the severity of the risk. And, the court added, there was no evidence that anything the decedent said or did suggested suicidal intentions to motel staff. Indeed, while a university knows a lot about its students, sometimes even affirmatively providing mental healthcare, innkeepers, the court opined, "usually are unlikely to know much—if anything—about their guests."

Incidentally, criminal liability for another person's suicide is a different problem. I mention it only because Massachusetts is the state in which Michelle Carter was convicted of involuntary manslaughter in the suicide death of Conrad Roy. A civil case was settled in 2019. Just a couple of weeks ago, I watched The Girl from Plainville (2022), a serial dramatization, and I don't recommend it. Maybe too soon to be reminded that the matter was a tragedy for everyone involved.

The instant case in the Appeals Court is Bonafini v. G6 Hospitality, LLC, No. 20-P-1409 (Sept. 1, 2022) (temporary court posting). Justice Gabrielle R. Wolohojian wrote the opinion of the unanimous panel.

Police negligence suit against BLM organizer goes ahead after La. Supreme Court greenlights duty

BLM protest in Baton Rouge in 2015
(Alisdare Hickson CC BY-NC 2.0 via Flickr)

A lawsuit against Black Lives Matter organizer DeRay Mckesson lives on since the Louisiana Supreme Court opined in March that state law allows imposition of a duty in tort law and does not preclude liability to police under the firefighter rule.

I wrote about the Mckesson case in April and November 2020. In the case's winding appellate disposition, the U.S. Supreme Court faulted the Fifth Circuit for jumping the gun on Mckesson's First Amendment defense and entreated the court to certify questions of state tort law to Louisiana.

It is not alleged that Mckesson himself threw any projectile at police, so the defense asserted that the intentional criminal action of a third party supervened in the chain of causation between Mckesson's organizing and police officer injury. But the Louisiana Supreme Court was unsympathetic, characterizing the pleadings as alleging related criminal conduct by Mckesson. The court reasoned:

Under the allegations of fact set forth in the plaintiff’s federal district court petition, it could be found that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a crime (the blocking of a heavily traveled highway, thereby posing a hazard to public safety), directly in front of police headquarters, with full knowledge that the result of similar actions taken by BLM in other parts of the country resulted in violence and injury not only to citizens but to police, would render Mr. Mckesson liable for damages for injuries, resulting from these activities, to a police officer compelled to attempt to clear the highway of the obstruction.

The court also rejected Mckesson's the firefighter-rule defense. The common law rule (in Louisiana, "the professional rescuer's doctrine"), not universally recognized, ordinarily disallows recovery by emergency responders for injury incurred in the course of the job, upon the theory that the job is what the responder is compensated for, and responsible parties should not be deterred from summoning emergency response.

The court took the occasion of the Mckesson case to ponder whether the firefighter rule survived the statutory adoption of comparative fault in Louisiana. The rule embodies a form of implied assumption of risk, the court reasoned. Louisiana is not a pure civil law jurisdiction, but the courts rely heavily on statute in accordance with the civil law tradition. Though the legislature left the details of comparative-fault adoption to the courts to work out, the high court acknowledged, the lack of any explicit recognition of the firefighter rule left it displaced.

The case in Louisiana is Doe v. Mckesson, No. 2021-CQ-00929 (La. Mar. 25, 2022). The case in the Fifth Circuit is No. 17-30864.

No duty: Court clears homeowner of liability in fatal shooting that sparked town ban on Airbnb

Not where the party was: historic Henfield House in Lynnfield, Mass.
(photo by John Phelan CC BY 3.0)

A homeowner is not liable in the shooting death of a party guest in a case that sparked a town ban on Airbnb, the Massachusetts Supreme Judicial Court ruled on June 7.

A 33-year-old father of two, Keivan B. Heath was shot and killed at a house party in Lynnfield, in northeastern Massachusetts, in the early-morning Sunday hours of Memorial Day weekend in 2016.  The plaintiff in wrongful death sued party organizers and the homeowner, who had rented out the house.

According to the court opinion, drawing facts from the complaint with reasonable inferences in favor of the plaintiff, defendant Victor had "informed the [homeowner] that he planned to hold a college reunion party. However, he advertised a Saturday event on social media as the 'Splash Mansion Pool Party,' open to 'Special Invitation & Girls Only,' with three named disc jockeys to provide the music."  More than 100 persons attended.  

The property was the home of the Styller family.  The property comprised "a 5,000 square foot home, a three-car garage, a 2,000 square foot patio, an in-ground heated pool, and a pool house with a fireplace and a bar on a three-acre lot in Lynnfield."  Defendant Styller

rented out the premises for short periods of time using a variety of Internet platforms [including Airbnb and HomeAway (now Vrbo), according to Boston magazine]. During each rental, the [Styller family] would leave the property and stay elsewhere. In the listings, the defendant touted the property's secluded location, fenced-in yard, and electronically operated gates. He also described the property as being in one of the safest areas in Massachusetts. Renters used the house for, among other things, business retreats, conferences, "photo shoots," and reunions.

The court described the tragedy:

At approximately 3 a.m., police received two 911 calls reporting that someone at the party had been shot; one caller said that the decedent was "dying," and the other reported that people were attempting cardiopulmonary resuscitation and then said, "he's gone." Police arrived to find many vehicles leaving and people fleeing on foot. The decedent was lying alone, face up and unresponsive, near the pool. He was transported to a nearby hospital, where he was pronounced dead in the emergency room. The cause of death was two gunshot wounds to the chest.

The murder remains unsolved.

Affirming dismissal in favor of Styller, the SJC opinion is a straightforward analysis of duty in negligence.  The duty of a property owner reasonably to maintain property in a safe condition does not extend generally to protect an injured from the "dangerous or unlawful acts" of third parties.

The plaintiff attempted to predicate liability on "special relationship" exceptions for foreseeable harms and for common-carrier defendants.  The court rejected both theories.  On foreseeability, courts have drawn exceptions in cases in which property owners knew of violent crimes on premises in the past.  But plaintiffs could not sustain the allegation here.  "Although the complaint cites a finding made by a Land Court judge in a related case that short-term rentals have 'significant external effects on the neighboring community and community at large,' it does not allege that short-term rentals are correlated with an increase in violent crime" (footnotes omitted).

Significantly for the short-term rental market, the court refused to analogize an Airbnb, Vrbo, etc., host to a common carrier or place of public accommodation, such as a transport provider, restaurant, or hotel, which would enhance the defendant's duty.  "This comparison missed the mark," the court wrote.

Aside from the fact that there is no allegation of any relationship between the defendant and the decedent other than the fact that the decedent was shot and killed on property owned by the defendant, perhaps the biggest difference between the relationship between a business establishment and its customers and the defendant's relationship to the decedent is that the defendant had no control over the premises during the rental period.

Styller's duty as a property owner stopped with the condition of the property at the time he turned over the keys.

In a related case decided the same day, the SJC ruled against Styller in a dispute in Land Court with the town of Lynnfield.

After the Heath murder, Lynnfield amended town law expressly to ban short-term property rentals, such as Airbnbs.  Lynnfield asserted that short-term rentals such as Styller's already violated the law.  But ordinances, such as a prohibition on operating a "lodging or rooming house," were ambiguous on the contemporary home rental question.

The SJC disagreed with the Land Court's ruling that the short-term rental of a whole home violated the law as to rooming houses, before amendment.  However, Styller wanted a ruling that his prior use was permissible, and the SJC would not go that far.  In the sum of various provisions, the court held, town law "clearly and unambiguously excluded, in pertinent part, purely transient uses of property in [a residential zoning district]."

Of interest from a procedural perspective, the court ruled on the zoning case despite alleged mootness arising from Styller's sale of the property.   "Unlike standing, 'mootness [is] a factor affecting [the court's] discretion, not its power,' to decide a case," the court explained.

[W]e view the viability of short-term rental use of property in the context of existing zoning regulations as one of public importance, in the sense that it raises "an important public question whose resolution will affect more persons than the parties to the case" and that "is primarily a matter of statutory [or, in this case, zoning bylaw] interpretation, not dependent on the facts of the particular case."

As well, Styller argued that the permissibility of the rental before the town amended the law remained a live issue in collateral matters of insurance coverage.

The wrongful death case is Heath-Latson v. Styller, No. SJC-12917 (June 7, 2021) (Justia).  The zoning case is Styller v. Zoning Board of Appeals, No. SJC-12901 (June 7, 2021) (Justia).  Chief Justice Kimberly S. Budd wrote both opinions for a unanimous court, excluding the two most recently appointed justices.

State supreme court upends causation in tort law, promising plenty post-pandemic work for lawyers

"Cause and Effect" by Marina Noordegraaf CC BY-NC-SA 2.0

The high court of Massachusetts, in a 3-2 decision, has effected a seismic shift in tort law, adopting on Friday a new approach to legal causation.

The court's holding casts into uncertainty fundamental rules developed over more than a century across the full range of tort liability theories.  Years, even decades of litigation may be required to fully map out the change.

In short, the Massachusetts Supreme Judicial Court rejected the conventional rule of "substantial causation" in favor of analyzing "scope of liability" and "multiple sufficient cause," an approach counseled by the Third Restatement of Torts: Liability for Physical and Emotional Harm (2010), an influential scholarly treatise published by the nonprofit American Law Institute (ALI).  The court ordered the change for only some cases in negligence, but left open the possibility that the change would affect the whole of tort law in the Commonwealth.

Aristotle by Francesco Hayez (1811)

Cause and Effect

Almost every liability in tort law requires causation.  That is, a defendant is only liable when the plaintiff can prove that her or his injury was caused by the defendant.  But the meaning of cause has been famously elusive in law and a subject of multidisciplinary debate for millennia, spanning Aristotle's metaphysical analytics in 4th century B.C. philosophy, St. Thomas Aquinas's meditation on the existence of God in 13th century theology, and the problem of quantum superposition in 21st century physics.

Causation in law is dominated by the concept of "scientific causation," termed informally "but-for cause," and known also as "factual causation."  To recover, a plaintiff must prove causation by showing that but for the conduct of the defendant, the plaintiff would not have been injured or suffered loss.

Scientific causation goes a long way to providing a legal standard, but not all of the way.  Legal scholars have long recognized that the approach has shortcomings, especially in cases of "overdetermined" causation.  That is, the test sometimes fails to indicate causation in the presence of multiple culpable defendants.  The test also sometimes indicates causation for one defendant, of many, whose culpability is so minimal as to be exonerating.

Image by State Farm (CC BY 2.0)

The classic example of improper failure of causation is a plaintiff's home consumed by two converging fires.  The multiple causes of destruction are said to "overdetermine" the harm.  The jury might conclude that but for either fire, the home would have been consumed anyway by the other fire.  Thus, it seems, neither fire is a but-for cause of the destruction.  At best, it is difficult, if not impossible, for the jury to determine whether either fire was a but-for cause.  Yet it cannot be right that the arsonist who started only one of the fires escapes civil liability.  If either fire by itself would have destroyed the home, then each fire is a "sufficient" cause of the destruction, and that standard supports liability.

Pixabay by Gerd Altmann

In rarer cases, but-for causation indicates causation when common sense suggests otherwise.  Imagine that science one day so masters the complexity of weather systems that it can be proved that but for the beating of a carpet on a Cape Town balcony, a hurricane would not have struck New York ("the butterfly effect," like in time travel, but not really).  The carpet beater might be a scientific cause of the hurricane, but we would be reluctant to say that the carpet beater is responsible for the hurricane.  The principle can be extrapolated to physical systems known to contemporary science, such as human pathology.  Consumption of a single cigarette might be proved to have catalyzed cancer in the plaintiff, alongside other causes, such as genetic predisposition and a history of pipe smoking.  But we might not agree that the proven catalysis by itself is a sufficient reason to charge the cigarette seller with civil liability for the whole of plaintiff's suffering.

To better calibrate the rule of causation to tort liability, American tort law in the 20th century developed the concept of "substantial causation," sometimes, if at risk of imprecision, called "legal causation" or "proximate causation."  Liability came to require that the defendant's conduct was a scientific cause and a substantial cause of the plaintiff's injury, or, in rare cases fitting the fire paradigm, a substantial cause indivisible from other sufficient causes, together constituting a scientific cause.

Pixy (CC BY-NC-ND 4.0)

A Substantial Disagreement

The rule of substantial causation attracted adherents and opponents.  Adherents said that the concept worked well, because it is understandable to ordinary people, especially jurors.  Tort law is about enforcement of the unwritten social contract.  We, ordinary members of the society, have a shared intuition about when a scientific cause is as powerful as a home-wrecking fire, justifying declaration of a civil wrong.  Likewise, possessed of common sense, we can recognize a trivial scientific cause as an insufficient basis to impose liability.

Precisely so, opponents responded.  Substantial cause invites a jury to disregard proof of scientific causation and to make moral judgments about responsibility.  The rule employs the hopelessly amorphous standard of substantiality to allow juries and courts to make policy and conceal their hubris with the aroma of equitable legitimacy.

The policy-making potential of legal causation was not lost on lawyers and jurists, many of whom embraced it as socially desirable.  One can argue that civil juries, guaranteed by the Seventh Amendment and heralded by Alexis de Tocqueville, if mocked by Mark Twain and Dave Chappelle, are the inspired mechanism with which America democratically injects public policy into the civil trial.

Pixy (CC BY-NC-ND 4.0)

And although causation devolves to the jury as a question of fact, a court has the power to obviate the need for an expensive jury trial when a question cannot be decided but one way by ordinary minds.  In such circumstances, the question is said to be decided as a matter of law.  Thus, substantiality was termed "legal causation" and offered grounds for a judge to dismiss a case, rather than let the liability question reach the jury.

Judges might be more or less bold or overt in how they exercise power through legal causation, depending on how their jurisprudential philosophies regard the propriety of judicial policy-making.  In a highly regarded paper in 1983, economically minded scholars William Landes and Richard Posner suggested that if the facts of a case point erroneously toward a politico-economically inefficient result, "cause comes to the rescue."  In other words, the rule of legal causation empowers the court to direct the outcome and "the optimal result to be achieved."  (Both Landes and Posner are affiliated with the University of Chicago Law School, known for its commitment to law and economics; Justice Kafker earned his law degree there.)

A Third Way

Substantiality detractors got the better of the argument when the ALI drafted the Third Restatement in the 20-aughts.  The authors did not take policy and pragmatism wholly out of the judicial process, but sought to abate confusion about where they reside by moving them.  The Third Restatement approach moves "legal causation" from the "cause" element of negligence into a new inquiry, "scope of liability."  The similarly ancillary function of the "duty" element of negligence also was moved and merged at this new address, though that's a blog post for another day (and a question left open by the Massachusetts ruling).  The new approach means to give judge and a jury a place to circumscribe defendant liability exposure without the semantic gamesmanship arguably required by the conventional analysis of causation and duty.

The restatement project is often criticized for seeking to progress the law rather than merely restate it.  The line is finer than it might seem.  On this point, one certainly can say that the authors intended to change the law of the states.  At the same time, it's equally defensible to say that the authors sought to help the states to clarify the law, that is, to better state, or restate, what they were doing already.

Pulmonary embolism by Baeder-9439 (CC0 1.0)

A Tale of Two Causes

The case before the Court in Massachusetts involved the death of a patient and two instances of medical malpractice.  Plaintiff Laura Doull died from complications of chronic thromboembolic pulmonary hypertension, or CTEPH.  The jury determined that a nurse practitioner was negligent in failing to diagnose Doull with a pulmonary embolism in 2011, and that Doull's doctor was negligent in supervision of the nurse practitioner.  However, the jury also determined that neither instance of negligence was a but-for cause of Doull's death from CTEPH; in other words, Doull's death was a consequence of her illness and not of anything the nurse practitioner and doctor did, right or wrong.  The defendants were not responsible.

On appeal, the plaintiff argued, among other theories, that the trial judge had not instructed the jury properly.  The trial court had instructed the jury on but-for causation, but not on substantial causation.  All five justices who heard the case for the Supreme Judicial Court affirmed the judgment for the defendants.  The court was unanimous in holding that the plaintiff's case must fail, because the jury determined that but-for causation failed.  First, there was no need for the jury to consider legal causation when there was no factual causation.  Second, this case was not about two fires converging on a house.  Though a consequence of two actors, there was only one misdiagnosis.

Justice Kafker

In a majority opinion authored by Justice Scott Kafker and joined by Chief Justice Kimberly Budd and Justice Elspeth Cypher, the court reached the sweeping conclusion that the Commonwealth adopts the Third Restatement approach to causation.  The change makes no difference in the instant case, because but-for causation still is required under the Third Restatement approach, in fact is the nub of what remains in the causation element, legal cause having been removed to scope of liability.  The concurrence, authored by Justice David Lowy and joined by Justice Frank Gaziano, would not have changed the Commonwealth's approach to causation, but would have ruled that the omission of the substantiality instruction was harmless error.

The plaintiff's argument predicated on failure to instruct on substantiality played into the majority's position on the Third Restatement.  Recall that critics of substantiality contend that it invites jurors to disregard scientific evidence and reach a liability determination despite the failure of but-for causation.  Because but-for causation was required, and the jury found it absent, the plaintiff's plea of error suggests that an instruction on legal causation should have been permitted to obfuscate the jury's view of factual causation.  "What originated as an exception to but-for causation would swallow the rule," the majority wrote.  The old approach "blurred the line between factual and legal causation," indeed, "conflates and collapses the concepts of factual and legal causation." 

Image by johnny-automatic (CC0 1.0)

In most cases, the court majority concluded, the but-for instruction on causation alone is sufficient, even when there are multiple potential causes.  "There is nothing preventing the jury from assessing the evidence and determining which of the causes alleged by the plaintiff were actually necessary to bring about the harm, and which had nothing to do with the harm," the majority reasoned, and the jury did just that in the instant case.  As to the paradigmatic two-fire scenario, the court wrote that

in the rare cases presenting the problem of multiple sufficient causes, the jury should receive additional instructions on factual causation.  Such instructions should begin with the illustration from the Restatement (Third) of the twin fires example so that the complicated concept can be more easily understood by the jury.

After the illustration, the jury should be instructed, "A defendant whose tortious act was fully capable of causing the plaintiff's harm should not escape liability merely because of the happenstance of another sufficient cause, like the second fire, operating at the same time."  The jury should then be instructed that when "there are two or more competing causes, like the twin fires, each of which is sufficient without the other to cause the harm and each of which is in operation at the time the plaintiff's harm occurs, the factual causation requirement is satisfied."

In such cases, where there are multiple, simultaneously operating, sufficient causes, the jury do not have to make a but-for causation finding.

(Footnote and citation omitted; paragraph breaks added.)  The majority also noted, likewise as counseled by the Third Restatement, that a jury may be admonished to disregard trivial causes to redress the rare problem of a false positive in but-for causation.

Justice Lowy

Cross Concurrence and Tort Retort

The concurrence disagreed sharply over the abandonment of substantial causation, and the text of the opinion hints at a heated debate.  "Today the court abandons decades of precedent in an attempt to clarify confusion that does not exist," Justice Lowy opened.  "Abandoning the substantial contributing factor instruction in circumstances where there is more than one legal cause of an injury will, in my view, inure to the detriment of plaintiffs with legitimate causes of action while not clarifying the existing law of causation."

Substantiality has long been the rule for clarity in cases of multiple potential causes, Justice Lowy explained.  It was the approach of the Second Restatement, published in 1965, and before it, the First Restatement, published in 1939, and appeared in Massachusetts case law as early as 1865.  

The test has endured because it works, Justice Lowy reasoned.  The "counterfactual framing" of the but-for test, compelling the jury to imagine a reality in which a defendant's conduct did not occur, paints only half a picture and risks misleading the jury.  In multiple-cause cases, counterfactuals "invite the jury to get caught up in speculative combinations of 'what if' and 'if only,'" Justice Lowy wrote.  "In the sorts of byzantine fact patterns that often arise in medical malpractice, toxic tort, and other tort cases with multiple causes, an instruction on but-for causation provides defendants with tools unavailable to plaintiffs," such as blaming a party not on trial (civil "Plan B").

Pixabay by b0red

The substantiality test "focus[es] jurors' attention" inversely: "it frames causation to have a juror start by considering what actually happened, and whether the defendant's actions played a part in producing the result."  The instruction "focuses the jurors ... directly on what ought to determine legal responsibility: the conduct of the parties."

The concurrence accused the majority of "abandon[ing] what has been our steady and successful practice" of instruction on substantiality.  "Why the sudden about-face?" the concurrence asked rhetorically, then answered: "Only one thing has changed: the Restatements."  In the majority's reasoning, the concurrence observed, "citations to our cases drop off.  Instead, the court replicates an abstract and academic discussion of the problems that the Restatement (Third) of Torts found with the standard" (footnotes omitted).

In footnotes, the concurrence suggested that any confusion results from the Third Restatement's cross-jurisdictional comparison, which omits Massachusetts, and observed, citing Hawaii, that other states have continued to test for substantiality in the decade since the Third Restatement appeared.

The majority responded in its footnotes.  The Third Restatement approach has not been adopted nowhere.  The Iowa Supreme Court adopted the Third Restatement in 2018, the majority noted.

Pixy (CC BY-NC-ND 4.0)

Referencing judicial confusion over multiple causes, the majority noted: "For an example of this confusion, look no further than the concurrence."  The majority disputed the concurrence's conclusion that the Third Restatement approach favors defendants.  And the majority rebutted the concurrence's assertion that the substantiality test has been working: "Beyond the concurrence's own appraisal of the situation, it is not clear what evidence, empirical or otherwise, there is that the use of the standard has been 'steady and successful.' ....  Indeed, when forced to decide what standard to use, the experienced and capable trial judge in this case observed, 'Well ... I know that the law has been somewhat confused in some people's eyes ....'"

The majority took umbrage at the concurrence's suggestion that the court would change Commonwealth law simply to pursue the lead of the Restatement.

The concurrence minimizes the numerous extensive critiques of the substantial factor test....  The concurrence also suggests that we are somehow simply following academic fashion in adopting the Restatement (Third).  This statement ignores that the substantial factor test originated with the Restatement and that the case law the concurrence cites ... has demonstrated great respect for the development of the law as reflected by the Restatement of Torts....  We turn to the Restatement not because it is fashionable to do so, but because the American Law Institute has struggled greatly with the complicated question of causation in negligence cases and is constantly trying to improve the legal standard in this area, including recognizing its own errors in this regard.

Justice Kafker is a member of the ALI.

"The Restatements are owed respect," Justice Lowy retorted.  "Our cases, however, deserve more."

But What About

I'm not a fan of change.  The worst part of all of this for me is that from here on out, I am going to have to teach Massachusetts torts students two versions of attenuated duty and causation, which already is the longest and hardest chapter of the textbook.  Am I going to get more credit-hours to cram it all in?  No.  Am I going to get paid more to prep more?  Definitely no.  And then there are the unanswerable questions.

Asbestos shingles by Mary Lotus (CC BY-SA 3.0)

The instant case arose in medical malpractice, though the majority extended the new causation rule through negligence.  Or most of it.  The court explicitly declined to apply the new rule in cases of toxic torts, at least for now.  Toxic tort cases, such as asbestos claims, are similar to multiple-sufficient-cause cases in that it is difficult, if not impossible, for a jury to trace a plaintiff's illness to one causal agent, one asbestos producer, even while it seems likely that defendants, asbestos producers, collectively are responsible.

In a very few jurisdictions, this problem has led to a controversial approach to liability based strictly on a defendant's share of the product market.  Massachusetts has not gone that far, but has loosened the causation requirement, essentially allowing substantiality to overwhelm scientific causation.  That approach becomes problematic, now, in light of the court's abandonment of substantiality.

Because the but-for test "seem[s] ill-suited" for toxic-tort cases, the majority opined in a footnote:

It is simply not clear whether the concerns we have with the substantial contributing factor test justify eliminating it in these cases.  Given the volume of these cases, their great importance, and the idiosyncrasies that make them unique with regard to factual causation, it would be unwise to apply our holding to these cases as well without first having the benefit of full briefing and argument.  Our hesitance, however, should not be taken as a continuing endorsement of the substantial factor approach in toxic tort cases given the concerns we have expressed today.

Pot, kettle, the concurrence wrote.  "For all its purported confusion, the [substantiality] standard continues to work well in toxic tort cases—except for the fact that the court also invites in a footnote overturning what it otherwise praises."

In fact, the problem is bigger than toxic torts, and bigger than a law professor's woes.  The problem of this decision's scope extends to all of tort law.

Remember, a plaintiff in civil litigation must prove causation to recover.  That's not a rule of only medical malpractice, nor a rule of only negligence.  It's a rule of all torts.  All torts require causation.  The elements of conventional negligence, duty, breach, causation, and injury, are the elements of all torts, stripped of factual context, unexcepted by special circumstances: the fundamental particle components of a compensable civil wrong.  

Photo by Phil Roeder (CC BY-NC-ND 2.0)

Thus, again in a footnote, the concurrence hinted at a parade of horribles: "[A]dopting a new approach to cause-in-fact issues in torts will encourage litigants to press for its application in other areas of the law beyond negligence, such as commercial disparagement, defamation, and false representation."  I earlier mentioned an arsonist; basic intentional torts require causation, too.  The problem of causation is so not confined to negligence that the concept of "foreseeability" is used loosely to flesh out legal causation and, simultaneously and alternatively, to locate and describe the outer bounds of the civil liability system in total.

So, tort lawyers, on your marks....

The case is Doull v. Foster, No. SJC-12921 (Feb. 26, 2020).  Justice Dalila Wendlandt and Justice Serge Georges, Jr., were sworn into the court in December 2020 and did not participate in the decision.

Big Oil deploys slick strategy to stay ahead of liability

Image by Ucheke CC BY-SA 4.0

On February 12, the UK Supreme Court allowed a claim of environmental catastrophe by 40,000 to 50,000 Nigerian farmers to proceed in English courts against defendant Royal Dutch Shell.  The ruling came just two weeks after farmers prevailed in a significant but more limited case against Shell's Nigerian subsidiary in a Dutch appellate court in The Hague, after 13 years of litigation, and eerily echoes the still unfolding saga of the Chevron-Ecuador battle over Lago Agrio in the Amazon.

I'm compelled to mention the UK case, though it has been covered exhaustively in the media (e.g., N.Y. Times), because I wrote just last week on the controversial scope of "alien tort" liability in U.S. courts.  The case against Royal Dutch Shell ("Shell"), for devastating oil pollution in the Rivers State of the Niger Delta, is a kind of alien tort case in UK and Dutch courts.  In the UK, no specific statutory authorization is required to sue Shell, which is incorporated in the UK and headquartered in The Hague.  Rather, jurisdiction may be invoked upon the plaintiffs' demonstration of a duty in common law tort owed by the defendant company.

UK Supreme Court
(photo by M. Zhu CC BY-NC-ND 2.0)

The UK ruling is preliminary only; the court held that the plaintiffs demonstrated a "real issue to be tried," the preliminary standard, over the role of Shell in the pollution. The nub of the problem for the plaintiffs is that operations in Nigeria were run by, and not exclusively owned by, a subsidiary corporation of Shell, the foreign-registered Shell Petroleum Development Company of Nigeria Ltd. (SPDC).

The corporate shell is designed specifically to insulate the parent company against liability for the conduct of the subsidiary.  To penetrate the shell and reach the parent, the plaintiffs must show that Shell, the parent company, directed the conduct of SPDC, the Nigerian subsidiary, or worked jointly with SPDC.  The court in The Hague allowed jurisdiction upon a comparable control theory in 2015, though ultimately entered a monetary judgment only against SPDC.

The preliminary ruling from the UK Supreme Court does not yet establish direction or joint control, but says that the plaintiffs have made a sufficient showing to serve their lawsuit on Shell.  Rather than digging into the facts, the Supreme Court faulted the courts below, both the majority that had rejected the plaintiffs' claim and the dissent, for looking too closely at the plaintiffs' evidence and effecting a sort of "mini-trial" on the question of Shell control before the case has even been pleaded properly.

Nchanga Copper Mine, Zambia, 2008
(photo by BlueSalo CC BY-SA 3.0)

Environmental damage and human toll in the developing world as a result of resource extraction by western corporations is, sadly, not a new problem, and the UK Supreme Court invoked its experience in a prior case.  In 2015, plaintiffs in Zambia won the right to sue UK-based Vedanta Resources upon allegations that copper smelting had poisoned the water supply with "rivers of acid," containing sulfuric acid and other dangerous toxins.  The cooper operation in Zambia was owned by a Vedanta subsidiary, Konkola Copper Mines.  After the Supreme Court allowed suit in England, Vedanta settled with more than 2,500 Zambian claimants.

Vedanta was decided in the spring of 2019, and only then, after the lower courts had rejected the claims against Shell, did the Supreme Court admonish judicial restraint on questions of fact in preliminary proceedings and set out an approach to analyze parent-company duty: "depend[ing] on the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary."

Niger Delta, Nigeria
(ESA photo CC BY-SA 3.0)

In pleadings and on appeal, the plaintiffs asserted a dozen bases in fact to demonstrate Shell control of SPDC, including mandatory compliance standards for subsidiaries on health, security, safety, and environment; business principles; and best practices for assets, facilities, and infrastructure.  According to the plaintiffs, "[Shell's] executive remuneration scheme depended to a significant degree on the sustainable development performance of SPDC."  The plaintiffs alleged that Shell "for many years had detailed knowledge about widespread pollution in the Niger Delta caused by spillages and leakages of oil from infrastructure operated by SPDC, including knowledge of the frequency, location and size of oil spills, including its failure to protect its oil infrastructure against the risk of damage caused by the criminal acts of third parties."

According to the New York Times report on the case, Shell is retreating from investments in the Niger Delta and other sites near human habitation, preferring to drill offshore.  Meanwhile, disputes endure over responsibility to clean up the pollution left behind by extraction and over the efficacy of cleanup efforts.  In this way, the Nigeria case is strikingly similar to others in the world, notably, the long-running dispute between rain-forest communities in Ecuador and oil giant Chevron, successor to Texaco.

In the case against Chevron, an Ecuadorean court in 2011 ordered Chevron to pay $9.5bn to residents of Lago Agrio, a community in the Amazon, for catastrophic oil pollution there.  In 2014, a U.S. federal court ruled that the judgment was procured through fraud, and the plaintiffs' champion U.S. attorney, Steven Donziger, was disbarred in 2020.  The plaintiffs' efforts to collect on the award in courts with jurisdiction over Chevron assets in other countries, such as Canada and Argentina, have failed so far.  Donziger is appealing his disbarment while also facing contempt prosecution in New York.  Celebrity environmentalists continue to hail him as a hero, railroaded by Big Oil.  Meanwhile a district court in The Hague has demanded (subscription), pursuant to arbitration, that Ecuador nullify the judgment, and the matter continues to haunt Ecuador's destabilizing presidential elections.

For the third time, I'm having my comparative law class read Paul M. Barrett's Law of the Jungle, which chronicles the Chevron-Ecuador matter until the book's 2015 publication.  For my money, Barrett's is the most even-handed account out there.  (See also coverage by Michael I. Krauss for Forbes.)  And it's not flattering of Donziger.  But it's also not flattering of Texaco.

The complicated truth of what happened at Lago Agrio is a tragedy in multiple dimensions, generating plenty of blame to go around.  Donziger might have played fast and loose with the law in Ecuador, after being rebuffed in the United States, but he was navigating the outstretched hands of a sorely corrupt judiciary.  The devastation at Lago Agrio is real, and no one, oil firms or government, has ameliorated it.  At the same time, much, if not most, of the pollution can be traced directly to the national oil company of the Ecuadorean government, which at various relevant times bore exclusive or joint responsibility for Lago Agrio.  Even insofar as Texaco controlled the site, government regulators, also riddled with corruption, were utterly derelict in their duty to protect fundamental human rights and enforce industry norms.  To date, the people of Lago Agrio, maybe the only innocent actors in the whole story, have been left to struggle with the horrific health consequences and daily challenges of water and land contaminated by lethal toxins.

In Nigeria, Shell and SPDC also lay blame on the Nigerian government, a partner of SPDC in the extraction operation through the state-owned Nigerian National Petroleum Company.  I have no doubt that the government bears responsibility both for what it did as an owner and what it did not do as a regulator.  I wager that Shell and SPDC, like Texaco and Chevron, are guilty of conscienceless exploitation, but also behaved as rational corporate actors, splitting the difference between the costs of malfeasance and the benefits of non-regulation.  Like in Lago Agrio, the people of the Niger delta are left to endure the consequences of symbiotic opportunism, while the perpetrators point their fingers at each other.

Shell corporate building in The Hague
(photo by Mr. Documents Uploader CC BY-SA 4.0)

Maybe the concept of "alien tort" in the UK is turning the tide at last.  One might expect Shell to follow Vedanta's example and settle, for public relations reasons, if nothing else.  Reuters reported that Shell settled another Niger Delta pollution claim in British courts in 2015 for €70m.  Shell has consistently pledged to clean up Niger Delta pollution, even while disavowing responsibility.  But Shell did not settle the case in the Netherlands, where the company has been able to postpone liability for 13 years to date.  The AP reported that two of four farmer-plaintiffs died since the case there was filed in 2008.  An appeal to the Dutch Supreme Court may yet be filed, and Big Oil might be emboldened by Chevron's experience.

Rivers State, Nigeria
(image by Jaimz height-field CC BY-SA 3.0)

If Shell digs in its heels in the UK, the plaintiffs have an uphill battle ahead.  They will have to produce clearer evidence to persuade the trial court that Shell exercised control at the local level, and then to link Shell oversight to the pollution in proximate causation.  Shell, fairly, will seek to muddle the chain of causation with the intervening actions of venture partners, private and public, and the third-party actions of criminals who sabotaged and burglarized the oil pipeline.  The Dutch appellate court mitigated the plaintiff-farmers' win there by nullifying defense liability in part for the actions of saboteurs, even while recognizing with regard to one claim that SPDC made nefarious access to the pipeline too easy.

If ever there is a settlement or award for plaintiffs that turns ripe for enforcement, it will remain to be determined how effectively money can be converted into remediation in a legal regime whose wavering commitment to the rule of law has been complicit in damage to the Niger Delta environment for the six-decade duration of the nation's independence.  To the plaintiffs' favor, for now, in the UK, their case is informed by their experience in The Hague, where the trial court afforded plaintiffs latitude to probe Shell files for evidence of corporate control.

The case in the UK Supreme Court is Okpabi v. Royal Dutch Shell Plc, [2021] UKSC 3 (Feb. 12, 2021).  Lord Nicholas Hamblen delivered the opinion, with which Lord Hodge, Lady Black, and Lord Briggs agreed.

Death case against Robinhood tests common law disfavor for liability upon negligence leading to suicide

U.S. CFPB images

The family of a 20-year-old college student who committed suicide has sued the lately notorious Robinhood financial services company.

Filed yesterday in California, the suit has been reported widely (e.g., Fortune), as was the death in the lockdown summer of 2020 (e.g., Financial Times, Forbes).  I feel compelled to mention the case here because, in tragic coincidence, my Torts II class covered suicide in causation just last night.  Hat tip to law student Paul McAlarney, who spied the story at CNBC.  Courthouse News has the complaint. 

In the instant case, decedent Alex Kearns, a sophomore at the University of Nebraska–Lincoln, ran in front of a train while believing mistakenly that he had lost about $730,000 in investments through Robinhood.  The service emailed him to demand a deposit of $178,000 to rectify his negative balance, Fortune explained, without clarifying that he had options in his account that could more than cover the deposit.

I am no investment wiz, but McAlarney said that a representation of negative balance like this is normal in margin trading, and that understanding one's actual position can be "tricky" and "super confusing" for beginners.  Kearns tried three times to reach Robinhood customer service, to no avail; we all know how that goes.

Historically, common law was not friendly to claims of tort liability against actors whose negligence was alleged to have precipitated suicide.  The abrupt and powerfully intentional act of suicide was, and usually still is, regarded as a supervening cause of loss, breaking the chain of legal causation between injury and the conduct of actors earlier in time, and freeing them of legal responsibility.  The rule arose naturally from the social stigma that attached to suicide historically, and, relatedly, the criminalization of the act.

In recent decades, however, the historic common law approach softened.  Understanding of mental health issues diminished the stigmatization of suicide and pushed a wave of decriminalization.  Insofar as suicide remains criminalized or regulated as a civil offense, the rationale today is more often to facilitate mental health intervention than to deter or punish.  Accordingly, courts have evidenced increased willingness to see negligence as a legally cognizable cause in the aggravation of mental illness.

I wrote here on the blog about two cases in the last three years arising in higher education in Massachusetts.  In a case against MIT, in 2018, the Supreme Judicial Court (SJC) held that the defendant university could not be held liable in the suicide of a student, Nguyen, for failure of duty.  However, the Court wrote that it was not rejecting wholesale a university-to-student duty to prevent suicide; rather, on the facts, MIT could not have foreseen the tragedy.  Then in a case against Harvard, in 2019, the Superior Court followed the SJC's lead and refused to dismiss a liability claim in the suicide of a student, Luke Tang (documentary film).  That case is now in discovery (search Middlesex County case no. 1881CV02603).

The civil iteration of the Michelle Carter case, in which Carter, by text message, exhorted teen peer Roy Conrad to commit suicide, would have marked a profound test of the old common law rule, but was settled in 2019.  Pending in the Massachusetts legislature is a bill, "Conrad's Law," that would explicitly criminalize the facilitation of suicide.  Carter was convicted of involuntary manslaughter, and the SJC upheld the conviction as against a First Amendment challenge.  The U.S. Supreme Court denied certioari.

At the end of December, the Sixth Circuit affirmed denial of a Cincinnati school board's motion to dismiss a suit over a third grader's suicide precipitated by bullying.  Professor Alberto Bernabe wrote about the case for his Torts Blog and observed, as to proximate causation, "the court found that the boy’s suicide was plainly foreseeable, especially considering [that] the school’s guidelines on bullying include suicide as a risk."

Tragedy arising from investment losses is not new.  My torts casebook with Professor Marshall Shapo, in the chapter on attenuated duty and causation, noted a mass shooting and suicide by a day trader in 1999.  The Georgia Court of Appeals affirmed summary judgment for the shooter's former employers as against claims by victims.  The court wrote that "the issue of proximate cause is so plain, palpable, and indisputable as to demand summary judgment for the defendants."  The Kearns case relocates the risk to the private home and compounds the matter with investor inexpertise, changes wrought, for better and worse, by the electronic democratization of access to financial markets.

The case is Kearns v. Robinhood Financial LLC, No. 21CV375872 (Cal. Super. Ct. Santa Clara Cty. filed Feb. 8, 2021).

Landlord owes no duty to cyclist attacked by tenant's dog, court rules, citing breed discrimination ban

A "dog law" decision in the Massachusetts Appeals Court today recognized the state's ban on breed-specific legislation and refused to recognize a landlord duty to protect a passing bicyclist from a tenant's pit bull.

Pixy.org CC0

In affirming the defendant's motion for summary judgment, the court recited the plaintiff's facts.  Plaintiff-bicyclist Creatini had his dog on a leash as he passed the unfenced yard of tenant Mills, owned by defendant-landlord McHugh.  Mills's pit bull terrier left the yard, gave chase, and attacked the plaintiff's dog.  The plaintiff fell from his bike and was injured—in the fall, not directly by the pit, though no word on how the plaintiff's dog fared.  McHugh knew that Mills kept the pit bull and had told him to get rid of the dog.

The court rejected plaintiff's effort to charge the landlord with a landowner duty of care in negligence.  Massachusetts approaches landowner liability through the "reasonableness under all the circumstances" approach, rather than the formalist common law framework of invitees and licensees.  Under either approach, landowner liability exposure can project beyond the property line along with a "condition of property," such as a dog.  But here, McHugh's knowledge was limited to the presence of a dog, not a foreseeable danger.  "Nothing in the summary judgment record indicate[d] that McHugh was aware that Mills's dog was aggressive or prone to attack passers-by," the court wrote.

The short case decision is instructive on duty in tort law, generally, and on animal law, in particular.  As to duty, the court briefly recited the conventional approach.  While it may be said that all persons owe a duty to all others to avert harm through the exercise of reasonable care, it is simultaneously true in American tort law, in general, that persons do not owe a duty to strangers with whom they have no interaction.  A "special relationship" recognized in common law also can give rise to duty, as for an innkeeper to a guest, but no such theory pertained here.

Photo by Airman 1st Class Jeremy Wentworth, 97 AMW/PA

Landowner liability grounds duty in the particular relationship between the premises owner (or controller) and one who comes on (or here, very near) the land.  To test here whether landlord and stranger-passerby were connected by strong enough a thread to support duty, the court quoted precedent, which in turn quoted 20th-century tort scholars Prosser and Keeton, recognizing the weight of public policy and common sense in the analysis (quotation marks and ellipses omitted):

The concept of duty is not sacrosanct in itself, but is only an expression of the sum total of considerations of policy which lead the law to say that the plaintiff is entitled to protection.  No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.

The plaintiff pointed to precedent in which the Supreme Judicial Court (SJC) recognized a duty owed by a keeper of firearms to a policeman shot by a man who had access to the keeper's home, whom the keeper knew to be under psychiatric observation, and who stole one of the weapons.  Foreseeability in that case was stronger on the facts, and, critically, the SJC had relied on a common law duty, echoed in statute, to manage a dangerous instrumentality, the gun, with the utmost care.

In animal law, in contrast, Massachusetts statute charges a dog owner, but the dog's owner only, with strict liability for injury inflicted by the dog.  Moreover, the court declined the plaintiff's entreaty to treat pit bulls (not actually a breed) specially as a "dangerous instrumentality," like a gun, volatile chemicals, or explosives.  (The defendant disputed the dog's breed, a question of fact, the court recognized, but not one that needed to be resolved for summary judgment.)  The court cited a line in a 2008 SJC opinion stating that a pit bull is "commonly known to be aggressive."  But subsequently enacted legislation dictates a contrary policy inclination.  The court recognized in footnote:

[D]ogs cannot be regulated based on their breed. In 2012, Massachusetts amended G. L. c. 140, § 157, to provide in part: "No order shall be issued directing that a dog deemed dangerous shall be removed from the town or city in which the owner of the dog resides. No city or town shall regulate dogs in a manner that is specific to breed."

Patrick Stewart and Dinero the Dog

in Star Trek: Picard (2020) (© CBS 2019)

Indeed, the 2012 Massachusetts law against breed-specific regulation was a victory for animal protection advocates.  The SJC's 2008 observation was correct as a statement of public perception, and perhaps reality.  But insofar as aggressiveness is a pit trait, it is a function of human selection.  Breed-discriminatory legislation leads to excessive euthanasia of animals that are not dangerous.  (Not for the faint of heart, be warned, Wikimedia Commons has a moving graphic image of euthanized pits, and I could not stomach using it here.)  Read more at "Stop BSL."

Pit bull advocates include Patrick Stewart, Star Trek's Captain Picard.  He was recently coronavirus-vaccinated and is soon to start shooting Picard season 2, a show on which he wanted to be sure that his character's dog is a pit.  Advocates also include one of my sisters, who today brings a new (human) baby home to live with her pits, Mia and (the original) Baby, the sweetest dogs I've ever known.  And combating breed discrimination has been a cause of the Animal Law Committee of the Tort Trial Insurance Practice Section of the American Bar Association, with which I've volunteered in the past.

[UPDATE, Jan. 28:] See CBS Sunday Morning correspondent Martha Teichner with her bull terrier, Girlie, featured in The New York Times on January 22 (subscription).  [Jan. 31:] See her talk about her new book, a dog romance, on CBS Sunday Morning, embedded below

© ASPCA

Among many groups, the American Society for the Prevention of Cruelty to Animals (ASPCA) tracks anti-breed discrimination legislation and counted 21 state bans on breed-specific legislation (BSL) as of April 1, 2020.  "There is no evidence that breed-specific laws make communities safer for people or companion animals," the ASPCA writes, and the Centers for Disease Control and Prevention (CDC), having studied dog bites and human fatalities, also opposes BSL.  In my home state of Rhode Island, local breed-specific legislation seems to persist, despite abrogation by state law in 2013.

The case is Creatini v. McHugh, No. 19-P-1159 (Mass. App. Ct. Jan. 27, 2021).  Justice C. Jeffrey Kinder authored the opinion of a unanimous panel that also comprised Justices Massing and Grant.

One must admit, duty in dog law is a succulent subject.