Mass. App. remands textbook 'keys-in-ignitions' case on foreseeability analysis

Today the Massachusetts Appeals Court published a clean and concise opinion on negligence, focusing on foreseeability as an aspect of duty.  The decision covers basic elements and points of civil procedure, so could be of use to tort profs introducing negligence this semester.  The case is R.L. Currie Corp. v. East Coast Sand & Gravel, Inc., No. 17-P-1186 (Aug. 21, 2018).

The facts are a classic keys-left-in-car-then-stolen scenario, unfortunately involving heavy equipment instead of a car.  Employee of defendant snow-plow service left a front loader running idle and unlocked in a shared company lot.  There had been previous thefts of materials, but not heavy machinery.  Keys were routinely left in unlocked vehicles, but hidden.  In the employee's four-hour absence, the loader was driven by an unknown third party and crashed into two of plaintiff's trucks.

The trial court dismissed for failure of foreseeability, deciding no duty as a matter of law and awarding summary judgment.  The court here aptly reiterated the dual role of foreseeability as an aspect of duty and of causation.  The Massachusetts Supreme Judicial Court previously declined to adopt a doctrine of no liability as a matter of law for "keys left in ignitions" cases, employing general notions of foreseeability instead.  Upon such precedents, the appellate court remanded, concluding that the trial court erred in finding intentional vandalism beyond the scope of foreseeability as a matter of law.

Incidentally, the panel author is relatively new to the court, since July 2017.  Associate Justice Dalila Wendlandt is New Orleans born (close to my heart) and was a proper engineer who built robots at MIT before going to law school, joining the IP litigation group at Ropes & Gray, and publishing in patent law.

[UPDATE, Aug. 25: Only days after this case was decided, shocking video came to light in an ambulance-keys-in-ignition story in my home state of Rhode Island that could fuel law school hypotheticals for months. Miraculously those involved sustained only minor injuries, and complicating matters, the teen perpetrator was autistic. No criminal charges are anticipated. See WJAR Providence.]

Mass. appellate courts render two wrongful death opinions in attenuated duty and causation

Massachusetts appellate courts have rendered two wrongful death opinions in the last two days, both favoring plaintiffs.

In Dubuque v. Cumberland Farms, Inc. (AC 17-P-266) (June 6, 2018), the Court of Appeals upheld a $20m judgment against the convenience store after inadequate "bollard" protection of a pedestrian who was killed when struck by an out-of-control car.  The opinion includes an interesting discussion on evidence regarding the admissibility of past pedestrian-car collisions arguably similar or distinguishable.

Today in Correa v. Schoeck (SJC 12409), the Supreme Judicial Court reinstated Walgreens pharmacy as a defendant in the tragic death of a 19-year-old who was unable to fill a prescription for life-saving medication.  The prescription was hung up on paperwork somewhere among pharmacy, doctor's office, and insurer.  The court held the pharmacy bound to at least a thin reed of duty in the negligence claim.

Mass. supreme court: MIT owed no duty in suicide case

Today the high court of Massachusetts held no duty, as a matter of law, in a wrongful death case of attenuated duty and causation in which the plaintiff sought to hold the Massachusetts Institute of Technology liable in negligence for a struggling student's suicide.  The court left the door open for proof of a special relationship on different facts.

Tort watchers and university counsel near and far have been awaiting the decision in Nguyen v. Massachusetts Institute of Technology, No. SJC-12329 (May 7, 2018).  The November 7 oral argument in the case is online here.
 
A university-student relationship is not completely outside the custodial scope that gives rise to a duty in tort law in K12, the court held; nor is it completely the same.  Rather, the court "must ... take into account a complex mix of competing considerations.  Students are adults but often young and vulnerable; their right to privacy and their desire for independence may conflict with their immaturity and need for protection."

With regard to a suicide risk, reasonable foreseeability is key to the special relationship/duty analysis.  Relevant factors include whether student reliance on the university impeded others who might have rendered aid, as might occur in a student-residential environment; and, from research by emerita Washington & Lee University Law School professor Ann MacLean Massie, the court quoting,

"degree of certainty of harm to the plaintiff; burden upon the defendant to take reasonable steps to prevent the injury; some kind of mutual dependence of plaintiff and defendant upon each other, frequently . . . involving financial benefit to the defendant arising from the relationship; moral blameworthiness of defendant's conduct in failing to act; and social policy considerations involved in placing the economic burden of the loss on the defendant."

In discussing the flexibility of this analysis, Judge Learned Hand's famous BPL test made an appearance (a test customarily directed to breach rather than duty), off-setting the gravity of a suicide by probability, and balancing the result against the burden on the university of employing effective preventive measures.  The court also emphasized the dispositive nature of actual knowledge: "Where a university has actual knowledge of a student's suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student's stated plans or intentions to commit suicide, the university has a duty to take reasonable measures under the circumstances to protect the student from self-harm."

In the instant case, "Nguyen never communicated by words or actions to any MIT employee that he had stated plans or intentions to commit suicide, and any prior suicide attempts occurred well over a year before matriculation."  He also strove to partition his mental health treatment from his academic life.

The court upheld summary judgment for the defendant on the tort claims as a matter of law.

Mass. high court allows generic-drug consumer to sue Big Pharma for reckless labeling

Just more than a week ago, the Massachusetts Supreme Judicial Court (SJC) issued an adroit and important decision on drug manufacturer liability.  In a decision worthy of other states’ attention, the SJC allowed a common law recklessness claim for failure to warn, unobstructed by federal preemption.  The case is Rafferty v. Merck & Co., No. SJC-12347 (Mar. 16, 2018) (PDF), per Chief Justice Ralph Gants.

It was in the last season of Boston Legal in 2008 (s5e02) that Alan Shore (James Spader), maybe my favorite TV lawyer, took on Big Pharma, right on the heels of victory over Big Tobacco.  In real life, Big Pharma has long been about the business of avoiding tort liability.  When labeling defects have been alleged, the Big Pharma defense has found traction in federal preemption, owing to the FDA’s close supervision of labeling under the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301, et seq.

One thread of this debate involves the relative responsibilities of brand-name and generic manufacturers.  In 2011, in PLIVA, Inc. v. Mensing, 564 U.S. 604, the U.S. Supreme Court, 5-4, rejected liability for a generic drug maker accused of failure to warn of side effects when the label matched that of the brand-name equivalent.

In the SJC last week, the plaintiff also was injured taking a generic drug, but sought to hold the brand-name maker accountable in negligence and consumer protection, accusing the maker of failure to warn on the label that the generic provider copied.  The plaintiff took the generic drug finasteride, in lieu of defendant Merck’s brand-name drug Proscar, to treat an enlarged prostate.  The label warned of sexual dysfunction as a temporary side effect, but the plaintiff experienced persistent dysfunction.  The plaintiff alleged that Merck was aware of the risk from several studies and had changed the warning label accordingly in some foreign markets, including Italy, Sweden, and the United Kingdom.

Significantly, then, the plaintiff admittedly complained against a defendant whose drug he did not take.  But the plaintiff traced causation to Merck, because FDA regulation of generic drugs compelled the generic maker to copy the Merck label, and PLIVA precluded liability for the generic maker.  The trial court dismissed, holding that brand-name-maker liability to a patient who did not take the maker’s drug also would “disturb the balance struck” by statute and regulation for the approval of generic drugs.

The SJC regarded the problem as one of duty.  Typically, the court explained, a manufacturer owes a duty of care only to consumers of the manufacturer’s own products.  The First Circuit upheld that logic in a 1983 case under Massachusetts law, Carrier v. Riddell, Inc., 721 F.2d 867.  The court, per then-Circuit Judge Stephen Breyer, denied recovery to a high school football player who blamed a helmet defect for his severe spinal injury.  He had not used the defendant-manufacturer’s helmet, but teammates had.  He alleged that had the defendant properly labeled its helmets, he would have been informed properly about his own.  The SJC further analogized the problem to the effort to hold responsible for a shooting an earlier-in-time actor accused of failing to secure the firearm.  The key to this duty analysis, the court explained, is the foreseeability of a plaintiff-victim—reminiscent of Judge Cardozo’s classic “orbit of duty” analysis in Palsgraf.

Duty in the drug liability problem, the SJC reasoned, is not the same as the product liability analysis in Carrier.  Rather, consistently with the federal regulatory scheme, Merck knows that generic manufacturers will be compelled to rely on its labeling.  Merck therefore has control over the generic label, and duty follows control.  One might say that the consumers of the generic drug are therefore foreseeable victims, for duty purposes, or that the chain of proximate causation runs intact through the intermediary generic maker, because the intermediary lacks control over the label.  Like Palsgraf itself, the case demonstrates the fluid interchangeability of duty and causation.

However, the court further reasoned, negligence, like strict liability, might be too low a liability threshold.  Shifting the liability of generic consumers on to brand-name makers adds to the cost of drug research and development in a way that might interfere with the legislative-regulatory scheme.  Under PLIVA, the brand-name maker could not share joint liability with the generic maker.  At the same time, allowing the brand-name maker wholly to escape liability would allow an injured plaintiff no recovery under any circumstances.  A balance may be struck, the court concluded, when the plaintiff can prove recklessness, or more, intent, on the part of the brand-name maker.

The court wrote: “We have nevertheless consistently recognized that there is a certain core duty—a certain irreducible minimum duty of care, owed to all persons—that as a matter of public policy cannot be abrogated: that is, the duty not to intentionally or recklessly cause harm to others.”  The court analogized to the duty of care owed by defendants in other exceptional areas of Massachusetts tort law: landowner to trespasser, defamation defendant to public figure, bailee to bailor, and athletes and coaches to competitors.

Otherwise put, the court maintained the essential balance of tort law upon its four fundamental elements, duty, breach, proximate cause, and injury.  The extension of liability to a defendant-manufacturer who did not actually make the injurious product depressed the thresholds for duty and causation.  To maintain balance, the requisite standard of breach is amplified to recklessness or intent.  Physical injury remains constant. 

Chief Justice Gants’s opinion in Rafferty is insightful and masterful.  It takes account of the greater endeavor of tort law to define civil wrongs, while balancing the corrective role of the judiciary with the policy-making role of the legislative and executive branches, and also striking a balance in federalism between tort accountability in the states and market regulation under the Commerce Clause.  At the same time, the decision recognizes how these balances are struck across the body of tort law in areas that usually seem only distantly related, from premises liability to reputational harm to sports.  This would be one for the casebooks, if casebooks were still a thing.