Showing posts with label landowner liability. Show all posts
Showing posts with label landowner liability. Show all posts

Monday, October 18, 2021

Accidental deaths on nonpublic stairways threaten public transit with tort liability in London, Boston

Canning Town Station in 2020
(photo by Ewan Munro CC BY-SA 2.0)
An English court last week exonerated the London Underground of liability in the death of a trespasser who fell down fire-escape stairs; meanwhile, in New England, investigation continues into the death of a Boston professor who fell from disused stairs in the Massachusetts Bay Transportation Authority (MBTA) system.

The facts of the cases differ, but both point to the obligation of aging transit systems to secure their physical infrastructure, even against risks to trespassers.

Bernard Ovu, a 35-year-old IT specialist for the UK Bar Council, fell, hit his head, and died in 2017.  On a meandering journey on a bitter-cold night, Ovu was returning home from a wedding; a post mortem test reported his blood-alcohol level at 0.176%.  At about 2 a.m. at the Canning Town Station, Ovu went through an emergency exit door, where an emergency stair led to a second door to the street.  Surveillance showed that Ovu reached the street-level exit door, but, for unknown reasons, did not push it open.

An image in the Ovu opinion depicts Canning Town Station.
The triangle marks the platform exit; the square marks street
access. Ovu fell at the circle.

Meanwhile, responding to a silent alarm, an Underground worker had secured the platform-level door.  Evidence showed that Underground policy required workers to sweep the area before re-securing the door, but no sweep was done.  Underground officials knew the emergency way was accessed occasionally, especially in late-night hours, by persons seeking to urinate or vomit.  Ovu could not reenter the platform and apparently believed himself trapped.  Seeking another exit, he fell on the stairs at 2:49 a.m. and died, possibly as a result of the combination of his injuries, intoxication, and the below-freezing temperature.

A professor in the Boston University School of Public Health, David K. Jones also was in a place where he should not have been.  The 40-year-old was out for a Saturday morning run in September when he took a staircase down from an overpass near the JFK Station.  The staircase was rusted and missing six steps: a gap through which Jones fell 20 feet to his death.  The staircase had been closed for 20 months and was fenced off at top and bottom; it is unknown how or why Jones entered it.  The MBTA removed the stairway days after the accident.

With investigation continuing in the Jones accident, the MBTA system has since suffered a bloody escalator accident and a pedestrian near-miss with debris falling from a stairway.  Commentators have thus linked the state of the transit system with the national debate over infrastructure financing.

The court in the Ovu matter ruled that Ovu was a trespasser in the emergency way and that the Underground had conducted itself reasonably relative to that status.  Despite the Underground's derogation of policy, Ovu had arrived in his predicament through his own misfeasance, and he was not in fact trapped.  It remains unclear whether Jones knowingly passed through secure fencing; if he did, then he was a trespasser on the rusty stairway from which he fell.  If that was the case, then Massachusetts law would not preclude liability, but would afford less latitude to a plaintiff than UK law.

Historically, common law was unforgiving of trespass.  The web of rules that evolved for the problem of landowner liability for dangerous conditions varied the liability rule depending on the status of the injured person.  At its simplest, distinctions were drawn in the three categories of public invitees, social guests ("licensees"), and trespassers.  The latter were owed little in the way of landowner duty, at most to refrain from the intentional or reckless infliction of harm.

Common law complexity has gradually given way to a unitary "reasonableness" standard, under which the status of the plaintiff is referred to the jury as a circumstance for its consideration.  When the Washington Supreme Court chose to retain the common law framework in 1986, it observed that only nine states had moved to the unitary standard—as well as England, by statute.  Today, half of states have adopted the unitary standard, and it is favored by the Third Restatement of Torts.

But among unitary-standard states, trespassers are not necessarily incorporated, reflecting a continuing vitality in their common law disfavor.  States, including Massachusetts, exclude trespassers from the unitary standard by a ratio better than two to one.  After some wrangling in the case law, the UK by statute incorporated trespassers into the unitary standard.

Thus, Ovu, even as a trespasser, was owed a duty of reasonable care.  A Massachusetts trespasser can prevail only upon proof of reckless or intentional wrongdoing.  If the estate and family of Jones seek liability from the MBTA, they will be far better off if the investigation uncovers a defect in how the stairway was secured.  If Jones made an innocent mistake of fact, then plaintiffs might hope to challenge his status as a trespasser and move him to within the unitary reasonableness standard.  That uncertainty might explain why there has not yet been report of a lawsuit in the Jones matter, while the Sept. 26 escalator accident yielded a suit by the first of October.

It happens that the Massachusetts Appeals Court heard a case about just such a mistake of fact in 2016.  In Bernier v. Smitty's Sports Pub, Inc., a pub patron in his 70s, Ronald Leger, was killed when he fell down a dark basement stairwell with uneven steps.  Leger mistook a door marked "Employees Only" for the entrance to the men's room.  He had been drinking, but had been to the pub and used the restroom before.  The door usually was locked, and there was no evidence that a patron had made the same mistake before.

The trial court in Bernier ruled Leger not a trespasser.  The adequacy of the marking on the unlocked door, at the pertinent time at which Leger stood before it, was incorporated into the question of negligence for the jury's consideration.  The jury awarded the plaintiffs 80% recovery after reduction for Leger's own negligence in making the mistake.

On appeal, the court affirmed.  The status of a visitor on land, trespasser or otherwise, was properly a question of law for the trial court, the Appeals Court opined.  The jury verdict was sufficiently supported by the evidence.  One could imagine a similar analysis in the Jones matter.

The English case is Ovu v. London Underground (Q.B. Oct. 13, 2021).  Master Victoria McCloud authored the opinion.  HT @ Gordon Exall, Civil Litigation Brief, via Private Law TheoryWells, Anderson, & Race, LLC, Denver, Colo., prepared a 50-state survey of landowner liability regimes in the United States in 2015 for the National Association of Minority & Women Owned Law Firms.

Wednesday, January 27, 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."

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.

Monday, September 16, 2019

Best friend of teen struck, killed by train may claim negligence without physical injury, appeals court rules

On a "zone of danger" theory, the Massachusetts Appeals Court last week reinstated the claim of negligent infliction of emotional distress by the teenage best friend of a girl struck and killed by an MBTA commuter train in Lawrence, Massachusetts.

Fence gap in NECN coverage, Oct. 31, 2014.  More from WCVB below.
Be warned, video surveillance captured girls' screams. 
Thirteen-year-old best friends Kiandra Calderon and Jenaira Fuentes were crossing rail tracks in between their homes and shops, where they bought Halloween costumes.  The court recounted, "For most, if not all, of the ten years during which the defendant [Royal Park, LLC] has owned the property, there have been large holes and gaps in the fence through which adults and children pass on a daily basis in order to reach nearby shopping plazas and the Lawrence High School." On Halloween 2014,Jenaira was struck and killed by an MBTA train.  "Kiandra, who was not struck by the train, tried to perform life saving measures on her friend and then remained close by as rescue personnel unsuccessfully tried to save Jenaira's life."



Kiandra sued on two counts, first, for negligence under the Massachusetts child trespasser statute, and second, for negligent infliction of emotional distress (NIED).  The court recognized that the two claims were essentially the same, because the trespasser statute provided the standard of care for the NIED, and the NIED provided the alleged injury required by the trespasser statute.  According to the pleadings, Kiandra's suffering was so severe that it manifested physically, as NIED claims typically require at minimum, requiring medical treatment for "anxiety, depression, sleeplessness, night terrors, nightmares, diminished appetite and food intake, bouts of extreme anger, behavioral problems at home and school, poor educational performance, and self-harm."

Even so, NIED claims are typically disallowed in the United States.  Negligence, or foreseeable accident, is regarded as too thin a reed on which to hold a defendant responsible for the merely emotional suffering of another, in the absence of physical injury.  Imagine if every romantic breakup resulted in an NIED lawsuit.  Whatever tort reformers or foreign observers might think, the United States isn't that lawsuit crazy.

There are exceptions, though, to the no-NIED rule.  Massachusetts is among the states that have kept the door open for the occasional compelling theory of NIED, not rejecting the notion outright.  And there are exceptions that are widely accepted.  Courts throughout the states are willing to award NIED recoveries to plaintiffs who were in the "zone of danger" themselves, even if narrowly escaping physical injury, reasoning that the physical threat was sufficient to make emotional distress claims credible and verifiable.  A smaller number of states are willing to award NIED recoveries to a narrow class of bystanders, those who contemporaneously witness physical injury inflicted on a close family member.

Kiandra's counsel tried to bring her within the bystander category by pleading the closeness of the teens' best friendship; the trial court was not moved.  However, the Appeals Court held, the trial court failed to consider Kiandra's own position in the zone of danger.  The girls were walking the tracks together, and just one was struck and killed.  Pending further development of the facts, it looks like Kiandra was in much the same jeopardy as her friend (see the WCVB video above, but be warned, the audio tough to hear).  The court sharply distinguished bystander NIED recovery from zone-of-danger recovery.  In the latter case, the plaintiff is a direct victim of the defendant's negligence, not an indirect sufferer as witness, and need not prove a close family relationship.  The court reversed and remanded for Kiandra to pursue her day in court.

The case is Calderon v. Royal Park, LLC, No. 18-P-1014 (Mass. App. Ct. Sept. 10, 2019).  Vuono, Wolohojian, and McDonough, JJ., were on the panel.

Friday, September 13, 2019

Appeals court rejects landowner liability for 'open and obvious' danger of backyard zipline

The same day the Massachusetts Supreme Judicial Court decided the Boston Globe case this week, the Court of Appeals affirmed summary judgment for the defendants against a landowner liability claim in which a six-year-old was injured on a backyard zipline.

A backyard zipline with a child safety seat. (Larry Koester CC BY 2.0.)
A handy defendant had installed the backyard zipline himself.  Six-year-old Aaron was visiting with his father to pick up Aaron's older brother from a sleepover.  The father aided Aaron in trying out the zipline, but after giving the boy some freedom, Aaron lost his grip, fell, and suffered compound fractures to his arm, requiring multiple surgeries.

Plaintiffs sued in landowner liability, alleging an unreasonably dangerous condition, as the zipline lacked a safety seat that could have prevented such an accident.  Defendants answered that the danger of the zipline, including the lack of a safety seat, was open and obvious, so negated the landowner's duty.

The court agreed that the condition was open and obvious, which somewhat negates the duty of a landowner, because it is the open-and-obvious nature of the hazard that makes it unforeseeable that the guest would fail to exercise reasonable care.  Plaintiffs argued that the condition was not open and obvious to the perception of a six-year-old.  The court held that when the child is under adult supervision, it is the perception of the adult, not that of the child, that controls.

However, the court held that an open and obvious condition does not necessarily negate a duty to abate an unreasonably dangerous condition "when the owner knows or has reason to know that visitors might nonetheless proceed to encounter the danger for a variety of reasons, including being distracted, forgetful, or even negligent, or deciding that the benefits of encountering the condition outweigh the risks."  Still, the court found the record "devoid of evidence that the zip line was unreasonably dangerous, or that the defendants facilitated an 'improper' or 'highly dangerous use' ...."

The conclusion is sound, but the reasoning highlights a problem with persistent common law doctrines that revolve around "open and obvious danger."  There is a tendency for litigants and courts to indulge "open and obvious" as a magical incantation that changes the rules of the match, such as here, to negate a duty of care.  Yet as the court observes, the doctrine does not necessarily negate the duty of care.  This approach gets legal duty analysis tied up in a web of factual intricacy that is not what policy-driven landowner duty is supposed to be about.

Harry Potter magic duel 095/365 (Louish Pixel CC BY-NC-ND 2.0)
Rather than indulging in a tennis match between duty, no duty, and duty again!, the courts should recognize that "open and obvious" is a factual circumstance, so goes to the standard of reasonable care exercised in warning about the danger or abating it.  That's where this case winds up anyway.  And just because it's a reasonableness analysis doesn't mean the court cannot, as here, dispose of the case in pretrial summary judgment when ordinary minds could not differ on the outcome.

I teach landowner negligence (page 25), or premises liability, with "open and obvious" as a matter of evidence rather than a sort-of defense, and I think that's the cleaner doctrine.  But I always have to warn students to watch out, in any given jurisdiction, that a judge might be entranced when counsel waves her wand and utters the spell, "Openanobvius!"

The case is LaForce v. Dyckman, No. 18-P-1234 (Mass. App. Ct. Sept. 9, 2019).  Sullivan, Massing, and Lemire, JJ., were on the panel.