Showing posts with label duty. Show all posts
Showing posts with label duty. Show all posts

Wednesday, March 27, 2024

Free torts textbook ready for academic year 2024-25


TORTZ: A Study of American Tort Law is complete and revised for the coming academic year 2024-25.

The two-volume textbook is posted for free download from SSRN (vol. 1, vol. 2), and available in hardcopy from Lulu.com at cost, about $30 per volume plus shipping.

This final iteration of the book now, for the first time, includes its final three chapters: (16) interference and business torts, (17) government liability and civil rights, and (18) tort alternatives.


TORTZ TABLE OF CONTENTS

Volume 1

Chapter 1: Introduction

A. Welcome
B. The Fundamental Problem
C. Parameters
D. Etymology and Vocabulary
E. “The Pound Progression”
F. Alternatives
G. Review

Chapter 2: Intentional Torts

A. Introduction
B. Assault

1. History
2. The Restatement of Torts
3. Subjective and Objective Testing
4. Modern Rule
5. Transferred Intent
6. Statutory Torts and Harassment

C. Battery

1. Modern Rule
2. The Eggshell Plaintiff
3. Knowledge of a Substantially Certain Result
4. Common Law Evolution and Battered Woman Syndrome

D. False Imprisonment

1. Modern Rule
2. Problems

E. Intentional Infliction of Emotional Distress (IIED)

1. Dynamic Intent
2. Modern Rule
3. The “Heart Balm” Torts

F. Fraud

1. Fraud in Context
2. Modern Rule
3. Pleading Fraud
4. Exercise

G. The “Process” Torts

1. Innate Imprecision
2. Modern Rule
3. Majority Rejection of Malicious Civil Prosecution

H. “Prima Facie Tort”

1. Origin of Intentional Tort
2. Modern Rule

Chapter 3: Defenses to Intentional Torts 

A. Introduction
B. Defenses of Self, Other, and Property
C. The Spring Gun Case
D. Arrest Privilege and Merchant’s Privilege
E. Consent

1. Modern Rule
2. Scope of Consent
3. Medical Malpractice
4. Limits of Consent

F. Consent in Sport, or Recklessness

1. The Problem of Sport
2. Recklessness

Chapter 4: Negligence

A. Introduction
B. Modern Rule
C. Paradigmatic Cases
D. Historical and Theoretical Approaches to Negligence

1. Origin
2. Foreseeability
3. Custom
4. Augmented Standards
5. Economics

a. Introduction
b. “The Hand Formula”
c. Coase Theorem, Normativity, and Transaction Costs

6. Aristotelian Justice
7. Insurance and Loss-Spreading

E. Landowner Negligence, or Premises Liability

1. Theory of Duty and Standards of Breach
2. Common Law Tripartite Approach
3. Variations from the Unitary Approach in the Third Restatement
4. Applying the Framework, and Who Decides

F. Responsibility for Third-Party Conduct

1. Attenuated Causation, or “the Frances T.  Problem”: Negligence Liability in Creating Opportunity for a Criminal or Tortious Actor
2. Vicarious Liability and Attenuated Causation in the Employment Context: Respondeat Superior and “Direct” Negligence Theories

G. Statutory Torts and Negligence Per Se

1. Statutory Torts
2. Negligence Per Se

a. Introduction
b. Threshold Test
c. Three Mile Island

H. Medical Negligence
I. Spoliation of Evidence

1. Introduction
2. Minority Rule
3. Recognition or Non-Recognition of the Tort Approach
4. Majority Approach

J. Beyond Negligence

Chapter 5: Defenses to Negligence

A. Express Assumption of Risk (EAOR)
B. EAOR in Medical Negligence, and the Informed Consent Tort

1. Development of the Doctrine
2. The “Reasonable Patient” Standard
3. Modern Rule of Informed Consent
4. Causation in Informed Consent
5. Experimental Medicine

C. “Implied Assumption of Risk” (IAOR)

1. Everyday Life
2. Twentieth-Century Rule
3. Play and Sport
4. Work

D. Contributory Negligence

1. Twentieth-Century Rule
2. Complete Defense
3. Vitiation by “Last Clear Chance”

E. Comparative Fault
F. IAOR in the Age of Comparative Fault

1. The Demise of “IAOR”
2. Whither “Secondary Reasonable IAOR”?
3. Revisiting Mrs. Palsgraf at Gulfway General Hospital

G. Statutes of Limitations
H. Imputation of Negligence

Chapter 6: Subjective Standards

A. Introduction
B. Gender

1. The Reasonable Family
2. When Gender Matters

C. Youth

1. When Youth Matters
2. Attractive Nuisance
3. When Youth Doesn’t Matter

D. Mental Limitations

1. General Approach
2. Disputed Policy

Chapter 7: Strict Liability

A. Categorical Approach
B. Non-Natural Use of Land
C. Abnormally Dangerous Activities

1. Defining the Class
2. Modern Industry

D. Product Liability

1. Adoption of Strict Liability
2. Modern Norms
3. “Big Tobacco”
4. Frontiers of Product Liability

Chapter 8: Necessity

A. The Malleable Concept of Necessity
B. Necessity in Tort Law
C. Making Sense of Vincent
D. Necessity, the Liability Theory

Chapter 9: Damages

A. Introduction
B. Vocabulary of Damages
C. Theory of Damages
D. Calculation of Damages
E. Valuation of Intangibles
F. Remittitur
G. Wrongful Death and Survival Claims

1. Historical Common Law
2. Modern Statutory Framework

a. Lord Campbell’s Act and Wrongful Death
b. Survival of Action After Death of a Party

3. Problems of Application

H. “Wrongful Birth” and “Wrongful Life”
I. Punitive Damages

1. Introduction
2. Modern Rule
3. Pinpointing the Standard

J. Rethinking Death Compensation

Volume 2

Chapter 10: Res Ipsa Loquitur

A. Basic Rules of Proof
B. Res Ipsa Loquitur (RIL)

1. Modern Rule
2. Paradigmatic Fact Patterns

Chapter 11: Multiple Liabilities

A. Introduction
B. Alternative Liability
C. Joint and Ancillary Liability
D. Market-Share Liability Theory
E. Indemnification, Contribution, and Apportionment

1. Active-Passive Indemnity
2. Contribution and Apportionment
3. Apportionment and the Effect of Settlement

F. Rules and Evolving Models in Liability and Enforcement
G. Review and Application of Models

Chapter 12: Attenuated Duty and Causation

A. Introduction
B. Negligence Per Se Redux

1. The Problem in Duty
2. The Problem in Causation
3. The Problem in Public Policy

C. Duty Relationships and Causation Timelines

1. Introduction
2. Frances T. Redux, or Intervening Criminal Acts
3. Mental Illness and Tarasoff Liability
4. Dram Shop and Social Host Liability
5. Rescue Doctrine and “the Fire Fighter Rule”

a. Inverse Rules of Duty
b. Application and Limits

6. Palsgraf: The Orbit and the Stream

a. The Classic Case
b. A Deeper Dig

D. Principles of Duty and Causation

1. Duty
2. Causation

a. The Story of Causation
b. Proximate Cause in the Second Restatement
c. Scope of Liability in the Third Restatement
d. Proximate Cause in the Third Restatement, and Holdover Rules
e. A Study of Transition: Doull v. Foster

E. The Outer Bounds of Tort Law

1. Balancing the Fundamental Elements
2. Negligent Infliction of Emotional Distress (NIED)

a. Rule of No Liability
b. Bystanders and Borderline NIED

3. Economic Loss Rule

a. The Injury Requirement
b. Outer Limits of Tort Law
c. Loss in Product Liability and the Single Integrated Product Rule

Chapter 13: Affirmative Duty

A. Social Policy
B. The American Rule
C. Comparative Perspectives
D. Bystander Effect, or “Kitty Genovese Syndrome”

Chapter 14: Nuisance and Property Torts

A. Trespass and Conversion
B. Private Nuisance
C. Public Nuisance and the Distinction Between Private and Public
D. “Super Tort”

Chapter 15: Communication and Media Torts

A. Origin of “Media Torts”
B. Defamation

1. Framework and Rules
2. Defamation of Private Figures

a. Defamation Proof
b. Defamation Defense

3. Anti-SLAPP Defense
4. Section 230 Defense
5. Constitutional Defamation

a. Sea Change: New York Times Co. v. Sullivan
b. Extending Sullivan
c. Reconsidering Sullivan

C. Invasion of Privacy

1. Framework and Rules

a. Disclosure
b. Intrusion
c. False Light
d. Right of Publicity
e. Data Protection

2. Constitutional Privacy and False Light
3. Demonstrative Cases

a. Disclosure and Intrusion
b. Right of Publicity
c. Bollea v. Gawker Media

4. Data Protection, Common Law, and Evolving Recognition of Dignitary Harms

Chapter 16: Interference and Business Torts

A. Business Torts in General

1. Tort Taxonomy
2. The Broad Landscape
3. Civil RICO

B. Wrongful Termination
C. Tortious Interference

Chapter 17: Government Liability and Civil Rights

A. Sovereign Immunity

1. Federal Tort Claim Act (FTCA) and Foreign Sovereign Immunities Act (FSIA)
2. Text and History of the FTCA
3. Discretionary Function Immunity

B. Civil Rights

1. “Constitutional Tort”
2. Core Framework
3. Official Immunities
4. Climate Change

C. Qui Tam
D. Human Rights

1. Alien Tort Statute
2. Anti-Terrorism Laws

Chapter 18: Tort Alternatives

A. Worker Compensation

1. Introduction and History
2. Elements and Causation
3. Efficacy and Reform

B. Ad Hoc Compensation Funds

Saturday, February 17, 2024

Foul-ball injuries persist at baseball games

Pixabay CC0 1.0 via Get Archive

The American Museum of Tort Law (AMTL) hosted a Zoom panel Thursday on the problem of foul balls injuring baseball fans.

(UPDATE: Video posted, Feb. 27.)

American tort law students usually are acquainted with the so-called "baseball rule." The "rule" represents the legal supposition that fans who attend baseball games understand and accept the risk that a foul ball might fly into the stands and cause injury. More accurately stated in contemporary terms in American tort law, the "rule" is that a professional baseball enterprise does not have a duty to avert injuries that are part of the game of baseball.

You can tell from my quote marks that I don't like the characterization of "the baseball rule" as a rule, because it's not. The "rule" is oft stated as such in popular culture and too often in law. But it does not represent a consistent "rule" of decision in tort cases. Plaintiff lawyers have circumnavigated it many times, justifiably so. And if the "rule" were a rule, it would be a bad one. Horrific injuries happen too often, such as shattered eye sockets and blinding. Two children were critically injured in the minor leagues in the past season.

You can see the problems even on the face of the "rule." Not everyone who goes to a baseball game knows that there is a danger of being hit by a foul ball, especially the risk of substantial bodily harm in a line drive with a 100-mph exit velocity. Baseball clubs put up some nets specifically to protect fans from these injuries in some places, such as behind home plate, but the nets fall far short of full coverage. Fans sitting in unprotected seats might not see the difference. Certainly fans might not know the scope of potential injury. Finally, the assumption-of-risk doctrine that animates the "baseball rule" was crafted to preclude lawsuits by sport participants. The doctrine has been extended tentatively and sometimes dubiously to fans.

As in many tort cases, the functioning of the tort system in foul-ball cases is being disrupted by arbitration clauses in baseball ticket terms and conditions, and by non-disclosure agreements in settlements. Secrecy impedes tort's norm-setting and deterrence functions. If fans don't understand the danger and frequency of foul ball injuries, they're unlikely to find out from reported cases.

Hosted by Melissa Bird for the AMTL, the panel comprised Ken Reed, Jordan Skopp, and Greg Wilkowski. Reed is Sports Policy Director for League of Fans, a Ralph Nader project that covers the foul-ball problem. Skopp, a New York realtor, is the activist-founder of the grassroots Foul Ball Safety Now!, which hosts a trove of information. Wilkowski is a Chicago lawyer presently representing plaintiffs in a class action against the Peoria Chiefs (e.g., Journal Star).

Wednesday, February 7, 2024

Criminal verdict in Mich. school shooting suggests parent vulnerability to civil negligence claims

2018 National School Walkout
Public domain via Rawpixel

The criminal conviction of gun-owning parent Jennifer Crumbley yesterday in the 2021 school shooting in Oxford, Mich., (e.g., USA Today via Courier Journal) got me thinking about parents' exposure to civil liability.

There's no question that parents of a minor-age school shooter can be held liable indirectly for injuries and deaths upon a theory such as negligent storage or entrustment of a firearm. There have been many civil lawsuits arising from school shootings upon analogous negligence theories leveled against school officials, police, gun sellers, and gun manufacturers.

What I do not know is whether there ever has been a civil verdict against a parent. A civil liability theory follows naturally upon a criminal conviction. But criminal prosecution of parents in these cases has been exceedingly rare, Crumbley's being the first such conviction.

Without the beyond-a-reasonable-doubt standard having been proved already in a criminal case, the civil negligence case presents daunting hurdles in duty and proximate causation. It's never easy to hold an earlier-in-time actor liable in negligence for the intentional criminal conduct of a later actor, whom judge and jury are likely to regard as a superseding cause. Such claims are not infrequent, though, and plaintiffs keep bringing them, because intentional criminal actors tend to lack assets that would make a plaintiff whole.

Brendan Pierson for Reuters reported a rundown in 2022 of civil actions in major school shootings: Uvalde, Texas; Columbine, Colo.; Red Lake, Minn.; Blacksburg, Va.; Newtown, Conn.; Parkland, Fla.; and Santa Fe, Texas. Claims that have been resolved so far have ended with settlements or defense verdicts.

Among those cases, Pierson mentioned claims against parents only in the report on the 2018 shooting in Santa Fe, Texas. In 2023, plaintiffs in the Santa Fe case settled with ammunition retailer Luckygunner (AP). The latest report I can find on the case against the parents, from the Daily News of Galveston County, Texas, said in December 2023 that the negligence case against the parents of Dimitrios Pagourtzis remains on the trial court docket.

Please comment here if you know of a civil verdict or settlement against parents in a school shooting case. I would be curious to know also whether homeowner insurers have covered or not covered in such cases.

Friday, January 26, 2024

Law immunizes school social worker in teen's suicide

PickPik
A public school social worker is immune from liability in the suicide of a 16-year-old boy, the Massachusetts Appeals Court ruled in the fall in a case at the border of the common law "suicide rule" and the law of sovereign immunity.

A student at Acton-Boxborough Regional High School, the troubled teen committed suicide at his home while on summer break in 2018. The teen had been under the care of a licensed clinical social worker on contract with the school district.

Six weeks before the teen's death, his girlfriend, another student at the high school, had told the social worker that the boy was drinking and weeping, exhibiting suicidal behavior, and in crisis. According to the plaintiff's allegations, the social worker assured the girlfriend that the teen would get the care he needed and that the social worker would inform the boy's parents.

The social worker met with the boy subsequently, but did not contact his parents. The girlfriend alleged that she would have contacted the parents had she not been assured that the social worker would, and that the social worker's failure appropriately to respond legally caused the teen to take his own life.

The "suicide rule."  It is sometimes said that American common law has a "suicide rule," which is expressed variably as a rule of duty, causation, or scope of liability. Under the rule, a person does not have a legal duty to prevent the suicide of another. In causal terms, an actor's failure to prevent the suicide of another cannot be deemed the legal cause of the suicide, because the intentional, in some jurisdictions criminal, suicidal act is a superseding proximate cause.

It is widely understood, however, that the suicide rule is not really a rule. That is, it's not an absolute. Rather the rule simply recognizes that non-liability is the result that courts most often reach in analyses of duty, causation, or scope of liability on the fact pattern of a decedent's family claiming wrongful death against someone who knew of the decedent's suicidal potential and failed to prevent the death. (Read more in Death case against Robinhood tests common law disfavor for liability upon negligence leading to suicide (Feb. 9, 2021).)

Massachusetts courts have demonstrated especial receptivity to liability arguments contrary to the suicide rule. In 2018, the Supreme Judicial Court (SJC) ruled "no duty" in a student-suicide case against MIT, but proffered an analysis that signaled leniency to the plaintiff's theory. Then in 2019, the SJC let a student-suicide case proceed against Harvard University. Reading the map of this forking road, the Appeals Court rejected liability for an innkeeper in the suicide of a guest in 2022.

Massachusetts also was home to the infamous case of Michelle Carter and Conrad Roy, which was never litigated in its civil dimension. Roy's family alleged that Carter actively encouraged Roy to commit suicide. The case demonstrates that the line between failure to prevent a suicide and assistance in committing suicide is sometimes uncomfortably fine.

Sovereign immunity.  The three cases from 2018, 2019, and 2022 all bore on the instant matter from Acton. But the Acton case also added a new wrinkle: the peculiar causation rule of the Massachusetts Tort Claims Act.

Sovereign immunity usually protects a governmental defendant, such as a public school, from liability in a case that otherwise would test the suicide rule. State and federal tort claims acts waive sovereign immunity in many personal injury lawsuits. But the waiver comes with big exceptions.

Suicide cases typically fail for either one of two exceptions. First, tort claims acts, including the Federal Tort Claims Act (FTCA), disallow liability predicated on an affirmative duty, that is, a failure to act affirmatively, rather than on an allegedly tortious action. Wrongful death complainants in suicide cases often allege the defendant's failure to intervene, and that allegation doesn't make the cut. FTCA liability can arise from an unreasonable "omission" of action. The line between such an omission and a failure to act affirmatively is fine and not material here, so I will conflate the two as immunized inaction.

Second, sovereign immunity waivers, including the FTCA, disallow liability for officials insofar as they exercise the discretion that it is their job to exercise. This exception for "discretionary function immunity" can be challenging to navigate, but is critical to prevent every governmental decision from collapsing into a tort case. If a government official makes a poor policy choice, the remedy should be in civil service accountability or at the ballot box, not in the courtroom. The tort system should be reserved for actions that effect injury by contravening social and legal norms. (Learn more with Thacker v. Tennessee Valley Authority, SCOTUSbrief (Jan. 13, 2019).)

These exceptions ordinarily would preclude liability on the facts of the Acton case, insofar as the plaintiffs claimed that the social worker failed to prevent the teen's suicide or committed a kind of malpractice in the the provision of counseling, leading to the suicide. The former theory would fail as inaction, and the latter theory would fail as disagreement over the social worker's discretionary choices.

However, Massachusetts statutes are rarely ordinary, and the Massachusetts Tort Claims Act (MTCA) is not co-extensive with the FTCA.

Under its section 10(b), The MTCA provides for discretionary function immunity similarly to the FTCA. Another section, 10(j), provides a potent state immunity not found in the FTCA and characterized as a rule of causation. (Read more in Court denies police immunity under state tort claims act in death of intoxicated man in protective custody (July 22, 2022).) The court in the Acton case did not reach the section 10(b) issue and dismissed the claims against the social-worker defendant under section 10(j).

Section 10(j) on its face recognizes the possibility of a claim "based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person" (my emphasis). But the section disclaims liability when the third-party conduct "is not originally caused by the public employer or any other person acting on behalf of the public employer."

The magic happens in the phrase "originally caused." And if you're expecting that that phrase has a well honed technical meaning, prepare to be disappointed.

Historically, common law courts sometimes tried to distinguish mere (pre-)"conditions" from "causes." The famous tort scholar William Prosser wrote in the 20th century on the futility of that semantic wrangling. He opined, and American common law tort in the 20th century recognized, that the salient distinction the courts had been chasing is between scientific causes and legal causes. Even if we can determine scientifically that a butterfly flapping its wings caused a tsunami, we do not necessarily conclude that the butterfly is responsible for the tsunami to a degree that would satisfy legal standards. (Read more in State supreme court upends causation in tort law, promising plenty post-pandemic work for lawyers (Feb. 28, 2021).)

Not every actor who exerts causal force along the chain of events that ends with personal injury is thereby legally responsible for that injury. Tort law employs the term "proximate cause" in an effort to parse the timeline and trace back legal responsibility only so far. Of course, once we acknowledge that ours is a problem of degree, we always will have to wrestle with "how much is too much?"

Like common law courts historically, the legislators who drafted MTCA section 10(j) likely were after this same distinction, even if they might have drawn the line in a different place from the courts. And it's likely they would have drawn the line closer to the injury, that is, more stringently against plaintiff claims. So in a suicide case, a Massachusetts court is likelier than otherwise to find the suicide rule alive and well when the intentional violent act of taking one's own life intervenes between state actor and death.

Thus was the outcome in the Acton case. And fairly so. Whatever the social worker failed to do when the decedent teen was still in school, it strains credulity to assert an intact causal chain leading from her response to the girlfriend's alarm all the way to the boy's suicide on summer break six weeks later. It's plausible that the social worker's response was a cause, and that the suicide might have been averted in a counterfactual world in which the social worker reacted more aggressively. But the social worker's response looks like a small sail on the sea of complex causal forces that resulted in the tragedy of a suicide.

Accordingly, the court concluded that, legally, for the purpose of section 10(j), "[the boy's] suicide was the result of his own state of mind and not the failures of [the social worker]."

In its own text, section 10(j) enumerates some exceptions, but the court held that none applied. The plaintiff argued for the applicability of an exception when a state defendant makes "explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken, ... to the direct victim or a member of his family or household." Regardless of whether the social worker's assurances to the decedent's girlfriend qualified as sufficiently specific, the girlfriend was not a member of the boy's family or household, the court observed.

The plaintiff argued also for the applicability of an exception "for negligent medical or other therapeutic treatment received by the patient [decedent] from [the state defendant]." Regardless whether the counseling relationship qualified the boy as a "patient" under this provision, the court opined that the plaintiff's theory comprised wholly a claim of failure to inform the parents, and not, as the plaintiff expressly alleged, a theory of negligent medical treatment that would qualify for the 10(j) exception.

To my mind, the court might have gotten it wrong on this latter score. In the final pages of the decision, the court dealt separately with the plaintiff's claim of negligent treatment. Briefly discussing the MIT and innkeeper cases, the court recognized that the plaintiff's argument for a duty relationship between social worker and student that would contravene the suicide rule "has some force." Then, summarily, the court declined to resolve the issue, finding the negligent treatment claim subsumed by the 10(j) analysis.

The court could have reached the same conclusion by finding an insufficient factual basis for the plaintiff's claim of negligent treatment. Or by blocking the negligent treatment claim with discretionary function immunity under section 10(b). Or the court could have allowed the plaintiff to attempt to develop the factual record to support the complaint on the negligence theory. It's likely the plaintiff could not and would have succumbed to a later defense motion for summary judgment.

In applying section 10(j), the court wrote that "the amended complaint does not allege that [the social worker] was negligent in ... 'treatment.'" Yet in discussing the negligence claim just two paragraphs later, the court wrote that the plaintiff "contends that '[the social worker's] negligence, carelessness and/or unskillful interactions with and/or failure to provide [the boy] with the degree of care of the average qualified practitioner ... were direct and proximate causes of ... death.'"

Then the court referred back to its 10(j) analysis to reject the latter contention. I have not read the pleadings or arguments in the case, so I might be missing something. The plaintiff's clumsy use of "and/or" legal-ese doesn't scream expert drafting. But in the court's opinion, the logic looks circular and iffy.

The case is Paradis v. Frost (Mass. App. Ct. Sept. 22, 2023). Justice Maureen E. Walsh wrote the unanimous opinion of the panel that also comprised Justices Blake and Hershfang.

Postscript. Regarding the death in this case and the family's decision to litigate in wrongful death: The family wrote on GoFundMe in 2018 that their life insurance would not cover their funerary costs, I suspect because the policy excluded coverage for suicide. The fundraising yielded $15,450 for the family.

The case raised awareness and spurred discussion of teen suicide and suicide prevention (e.g., Boston Globe (Dec. 16, 2018) (subscription), NPR Morning Edition (Dec. 15, 2019)). At the same time, sadly, the alarm raised by the decedent's girlfriend, then a high school sophomore, was informed already by the experience of four prior student deaths by suicide in the preceding two years at the same school, WGBH reported

Advice on teen suicide warning signs and prevention can be found at, inter alia, Johns Hopkins Medicine, Northwestern Medicine, and the American Foundation for Suicide Prevention.

Wednesday, January 24, 2024

TORTZ volume 2 unpacks duty, causation, damages, introduces nuisance, defamation, privacy

Tortz volume 2 is now available for affordable purchase from Lulu.com and for free PDF download from SSRN.

Tortz volume 2 follows up volume 1 (Lulu, SSRN, The Savory Tort), published in 2023 and pending update this year. I am using Tortz volumes 1 and 2 with students in my American tort law classes in the United States and in Poland this academic year.

The two-volume Tortz textbook represents a survey study of American tort law suitable to American 1L students and foreign law students. In volume 1, the first eight chapters cover the fundamentals of the culpability spectrum from intentional torts to negligence to strict liability.

Volume 2 comprises chapters 9 to 15: (9) damages, (10) res ipsa loquitur, (11) multiple liabilities, (12) attenuated duty and causation, (13) affirmative duty, (14) nuisance and property torts, and (15) communication and media torts. 

Contemporary content in Tortz volume 2 includes exercises in pure several liability; treatment of opioid litigation in public nuisance law; recent criticism of New York Times v. Sullivan in defamation law; and exposure to common law developments in privacy law, such as the extension of fiduciary obligations to protect personal information.

Three final chapters will be added to Tortz volume 2 for a revised edition later in 2024: (16) interference and business torts, (17) government claims and liabilities, “constitutional tort,” and statutory tort, and (18) worker compensation and tort alternatives. Any teacher who would like to have copies of draft materials for these chapters in the spring is welcome to contact me.

Tortz is inspired by the teachings of Professor Marshall Shapo, a mentor to whom I am deeply indebted. Marshall passed away in November 2023.

My thanks to Professor Christopher Robinette, Southwestern Law School, who kindly noted the publication of Tortz volume 2 on TortsProf Blog even before I got to it here.

Friday, September 8, 2023

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.

Friday, September 2, 2022

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.

Monday, July 18, 2022

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.

Monday, June 28, 2021

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.

Sunday, February 28, 2021

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.