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.

• SSRN volume 1
• SSRN volume 2
• Lulu.com hardcopies

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.

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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 Claims 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

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.

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.

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.

'Sudden emergency' doesn't spare driver from jury trial

Rawpixel CC0

A medical emergency did not necessarily let a driver off the hook for an injury-accident, the Massachusetts Appeals Court ruled yesterday, in a rare appellate appearance of "the sudden emergency doctrine."

The sudden emergency, or "inevitable accident," doctrine is less doctrine and more self-evident application of negligence law. The simple rule is that if a driver has a medical emergency and thus unavoidably causes an accident, that's not negligence. The doctrine requires that the medical emergency be confirmed by expert testimony.

You can get to that conclusion readily enough through the usual negligence analysis. A reasonable person having a heart attack could not have averted the same accident, so there was no negligence. "Sudden emergency" is just a shortcut that sanctions the conclusion and perhaps enhances a judge's confidence in awarding the defense summary judgment without a jury trial.

By the same token, however, the usual rules of negligence still apply. Saliently, the doctrine relieves the defendant of liability only insofar as the emergency is alleged to have been the proximate cause of the accident. If the plaintiff points somewhere else on the timeline, to a different alleged misconduct as proximate cause, then the defendant is not necessarily off the hook.

That's where the lower court erred in the instant cases, according to the Appeals Court. The plaintiff alleged that the defendant should have known of the risk of his medical condition and should not have been driving. That's a negligence allegation, and driving despite risk is not an emergency.

The medical evidence, even if weakly contested, supported the defendant's theory that he lost consciousness because of undiagnosed sleep apnea. As a result, his truck ran into the back of the unmoving bus ahead, which the plaintiff was driving. The loss of consciousness was a proximate cause of the accident. But not necessarily the only proximate cause.

The plaintiff's experts proffered evidence that sleep apnea is not something that attacks acutely out of the blue. Though the defendant denied chronic drowsiness, he had a medical history of difficulty sleeping at night and heavy snoring. He also suffered from comorbid conditions, such as obesity.

A reasonable person in the plaintiff's circumstances would have been on notice of the risk of driving, the plaintiff argued. And the evidence was sufficiently in dispute that the plaintiff was entitled to a jury trial on the question, the court agreed.

The court also reversed and remanded the summary judgment for the defendant's employer, as the employer would be vicariously liable for its employee's on-the-job conduct. But the court affirmed summary judgment for the employer on the direct negligence theories the plaintiff had leveled against it.

The evidence developed pretrial did not bear out plaintiff's allegations that the employer had any knowledge of a medical condition that could have impaired driving. So the jury may not hear theories of negligent hiring or supervision.

The case is Cottrell v. Laidley, No. 21-P-740 (Mass. App. Ct. Oct. 18, 2023). Justice Joseph M. Ditkoff wrote the opinion of the unanimous panel, which also comprised Chief Justice Green and Justice Hodgens.

TORTZ volume 1 now available to print on demand

I'm pleased to announce the publication of TORTZ: A Study of American Tort Law, volume 1 of 2.

Hard copies can be printed at Lulu.com for just $30 plus shipping. A free PDF can be downloaded from SSRN.

Eight chapters cover the fundamentals of the culpability spectrum from intentional torts to negligence to strict liability. After two pilot deployments of content, in 2021 and 2022, this book will be my 1L students' Torts I textbook in fall 2023.

I anticipate publication of volume 2 in 2024.

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.

To channel cases into ordinary negligence or medmal, look to implications for medmal insurance, court says

Paul Brennan via PublicDomainPictures.net

A Massachusetts court sometimes might have difficulty distinguishing between claims of ordinary negligence and claims of medical malpractice, only the latter of which must be filed first with a special tribunal. If a case implicates medmal insurance, it's more likely the latter, a court reasoned in May.

The Appeals Court had little difficulty, though, finding that a complaint over life-threatening allergic reaction to a drug administered in the emergency room sounds in medical malpractice. The plaintiff therefore erred by failing to file with the commonwealth medmal tribunal and post the necessary bond before proceeding in the Superior Court.

The court demarcated the boundary between ordinary negligence and medmal claims with reference to the legislative purpose in creating the tribunal: "to guarantee the continued availability of medical malpractice insurance." A court may be guided also by factors derived from case law: "(1) whether medical or professional judgment or competence was exercised, ...  (2) whether the claim is 'treatment-related,' even if not a traditional malpractice claim, ... and (3) whether 'the same set of facts supports both' the medical malpractice and allegedly non-medical claims...."

The instant plaintiff's "claims centered on her arriving at the emergency room suffering from an asthma attack, and the hospital's failure to provide a proper medication to her, which resulted in a severe allergic reaction. More specifically, the hospital was alleged to have deviated from the 'standard of care' by administering a medication containing lactose to [plaintiff,] who had a lactose allergy known to the hospital." The implication of medical judgment plainly positioned the case in medmal.

The case is Lane v. Winchester Hospital, No. 21-P-476 (Mass. App. Ct. May 17, 2022). Justice William J. Meade wrote the opinion of the unanimous panel.

N.J. limits mode-of-operation doctrine in classic slip-and-fall claim over grocery store grapes

Open Food Facts CC BY-SA 3.0

A grocery-story-grape, slip-and-fall case in New Jersey prompted the state high court to limit the mode-of-operation doctrine in premises liability.

I don't usually take interest in the nuances of New Jersey tort law, but the mode-of-operation doctrine is a significant player in Massachusetts, where I teach. Also, slipping on grocery-store grapes is so prototypical a case in the doctrine that it's a cliché, so I could not resist.

"Mode of operation" enjoys wide but not universal support in U.S. tort law. As well explained by Wilson Elser attorney Jennifer L. Moran in commenting on the New Jersey case:

[The] doctrine relieves a plaintiff of the burden of proving actual or constructive notice of a dangerous condition in a situation in which a dangerous condition is likely to occur as a result of the nature of the business, the property’s condition or a demonstrable pattern of conduct or incidents. The rule has been applied where food is sold or served in open containers or bins, such as food courts, supermarkets or fast food restaurants. In many cases, a plaintiff’s failure to provide any evidence that the defendant had actual or constructive knowledge of the alleged dangerous condition is the defendant’s sole opportunity to obtain summary judgment to dismiss the claim. 

The doctrine is highly correlated with self-service business, and, as I said, grab-and-go grocery-story grapes count. 

A friend of mine is a grocery store manager in Australia, and you don't want to get him started on grape-related customer slip-and-falls. The aggravation is multiplied by customers' insistence on eating the merchandise, which one might think should bring some kind of assumption-of-risk theory into play. The store once tried to sell grapes in sealed bags, my mate said, but did away with them because customers were outraged to see their nicking snackery curtailed. The store had to tolerate losses and risk as a cost of customer satisfaction. My mate was elated at the advent of no-slip flooring in the produce department.

Anyway, you can see why innovation in the presentation of grape inventory has been a big deal in the grocery biz. And Sam's Club no doubt thought it was onto something big when it started selling grapes in clamshell containers.

In the New Jersey case, the court held 4-2 that the clamshell packaging moved grapes out of the mode-of-operation doctrine. Moran explained:

The court therefore found there was no foreseeable risk that grapes would fall on the ground in the process of ordinary handling by customers. The court held the mode of operation doctrine did not apply and the plaintiff had to establish the defendants knew or should have known that the grapes were on the floor for a period of time prior to the accident and failed to take reasonable remedial action. In this recent decision, the court limits the application of the mode of operation doctrine because the merchandise was in a sealed container, finding the pre-packaged merchandise did not create a foreseeable risk of spillage and there was no nexus between the plaintiff’s fall on grapes and the self-service sale of grapes in containers.

Sam's Club accomplished something that had eluded a defendant in 2003, Moran further recounted, when the court refused to suspend mode of operation for "grapes that were sold in open-top, vented plastic bags that permitted spillage."

If shoppers remain true to form, the dissent might have the better argument in the end. Dissenting justices opined that Sam's Club knows that its customers still open the clam shells in the store, setting grapes loose.

The case is Jeter v. Sam's Club, No. A-2-21 (085880) (N.J. Mar. 17, 2022). Justice Lee A. Solomon wrote the majority opinion.

Lengthier U.S. limitations period allows claim over accidental deaths of medical students in Nevis

The Massachusetts three-year statute of limitations rather than a foreign one-year statute of limitations permitted wrongful death suits in the tragic case of two medical students killed while studying abroad, a trial court ruled in March.

Plaintiffs' decedents were students from New Jersey and California studying at the Medical University of the Americas (MUA) on the island of Nevis, in the Federation of St. Christopher (Kitts) and Nevis, in the West Indies. MUA is a nonprofit based in Devens, Massachusetts.

MUA campus, Nevis
(Bazi014 CC BY-SA 3.0 via Wikimedia Commons)

The women suffered fatal burns in their MUA dormitory when a gas cooking stove connected to an external propane tank exploded. Plaintiffs sued MUA two years later in negligence, alleging failure to inspect and maintain the stove and gas piping.

The defendant sought dismissal under the one-year statute of limitation in Nevis law. The plaintiffs contended that the more generous three-year limitations period in Massachusetts pertained.

The Superior Court in Worcester, Mass., explained the choice-of-law analysis, relying on Commonwealth high court precedent and the Restatement (Second) of Conflict of Laws:

Massachusetts applies a functional approach in determining the statute of limitations when a choice of law question arises.... Generally, Massachusetts "will apply its own statute of limitations permitting the claim unless: (a) maintenance of the claim would serve no substantial interest of the forum; and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence." .... "Stated in affirmative terms, a forum should apply its own statute of limitations permitting the claim if it would advance a substantial forum interest and would not seriously impinge upon the interests of other states." .... The focus of this choice of law analysis is on the timeliness of the action, rather than the underlying claim.

The court reasoned that oversight of the dorm was a function of the defendant's management in and directives from Massachusetts. And Nevis's interest was less than Massachusetts's when it is a Massachusetts defendant that faces liability.

The defendant also sought dismissal for forum non conveniens, and the court decided that the question is premature.

The case is Balasanyan v. R3 Education Inc., No. 2085CV01052 (Mass. Super. Ct. Mar. 29, 2022), Justice David M. Hodge presiding.

Court denies police immunity under state tort claims act in death of intoxicated man in protective custody

Michael Coghlan CC BY-SA 2.0 via Wikimedia Commons

In a lawsuit over the death of an intoxicated man in police protective custody, the defendants were not entitled to immunity under exceptions to the Massachusetts Tort Claims Act (MTCA), the Commonwealth Appeals Court held in April.

Police in New Bedford, Mass., took the plaintiff's decedent into protective custody upon finding him in a state of heavy intoxication and disturbing the peace. Police put the man in a county jail cell, where he got into an altercation with another detainee. The other detainee pushed the man to the ground, where he hit his head. The man died from complications of the injury.

Defendant officials sought immunity from the plaintiff's negligence lawsuit under the discretionary function exception to the MTCA, section 10(b), and under the causation limitation of MTCA section 10(j).

Section 10(b) is similar to the discretionary function exception of the Federal Tort Claims Act. It disallows tort claims when public defendants exercise policy-making discretion, even when discretion is abused. The theory behind this exception is that public officials require latitude to make decisions, good and bad, and not every government decision should be second-guessed in litigation. The tort claims act reserves for litigation cases in which standards of conduct are set or clear, and the plaintiff alleges negligence relative to that standard.

The court denied defendants discretionary function immunity, because state law provides that persons in protective custody should be held at police stations, referred to appropriate care facilities, or returned home. The plaintiff alleged that the decedent's commitment to the county jail was improper and proximately caused the injury and death. Police had no discretion under the law to detain the decedent in the county jail.

MTCA section 10(j) is a creature specially of commonwealth law and articulates a potent liability limitation arising in causation. Section 10(j) disallows liability for 

any 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, which is not originally caused by the public employer or any other person acting on behalf of the public employer.

Thus, state defendants disavow liability under section 10(j) when the plaintiff's liability theory is in the nature of a failure to supervise or intervene, and the more proximate cause of the injury is the conduct of a third party. Here, the defense pointed to the push to the ground by the decedent's fellow detainee, if not the decedent's own provocation.

The court also denied the defendants 10(j) immunity. The official act relevant to the plaintiff's claim was the decision to place the decedent in a county jail cell with potentially dangerous detainees, the court opined, not the precise mechanism of injury that ensued.

The case is Baptista v. Bristol County Sheriff's Department, Nos. 20-P-731 & 20-P-778 (Mass. App. Ct. Apr. 15, 2022). Justice Peter J. Rubin wrote the opinion of the unanimous panel.

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

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

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

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

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

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

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

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

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

Chair collapse provides textbook 'res ipsa' facts

plastic chair by Chris CC BY-NC-SA 2.0 via Flickr

A textbook res ipsa loquitur case is headed back to the trial court since the Massachusetts Appeals Court in March reversed dismissal.

Res ipsa loquitur is a beautiful doctrine for all kinds of reasons. I like that it's a mouthful of high-dollar words, because that keeps lawyers' hourly rates high and justifies the high cost of law school, translating into more money for professors like me. It's also fun to teach, because of its odd position at the intersection of fundamental tort elements—is it a rule of causation? duty? breach?; its location in negligence law while bearing a striking resemblance to strict liability; and its double-life in doctrines of tort and evidence law render it theoretically instructive.

At the same time, res ipsa is a straightforward and commonsense rule, and this case before the Appeals Court demonstrates its utility. "The plaintiff ... was having lunch on the outdoor deck of Sundancers restaurant in Dennis when his plastic chair collapsed beneath him," the court recounted the facts. The trial court dismissed for want of evidence of negligence by the defendant restaurant owners.

Res ipsa says simply, plastic chairs fairly may be depended on not to collapse. So when they do, it might be someone's fault. And of everyone who might be at fault, it's not the plaintiff's fault. So even if the plaintiff can't show by evidence the precise mechanism of the accident, the plaintiff still deserves a chance to persuade a jury to infer the defendant's responsibility. 

You can find my more formal discussion of the rule in the no-longer-updated Straightforward Torts, to be incorporated into Tortz: A Study of American Tort Law in the coming year.

My 2006 torts casebook with Professor Marshall Shapo uses a case with a similar fact pattern to teach res ipsa loquitur. In O'Connor v. Chandris Lines, Inc. (D. Mass. 1983), the plaintiff was injured when the bunk-beds in which she slept on a cruise ship collapsed. Like Step Brothers (2008) if someone else had put the beds together, and not as funny.

The plaintiff from Sundancers sued years later, if within the statutory limitations period, so both he and the restaurant struggled to locate relevant evidence. There might yet be insufficient implication of negligence on the part of the restaurant to persuade the jury to make the res ipsa inference. But plaintiff deserves better than summary dismissal, the court decided.

Because the record presents a number of material, disputed factual issues—including whether Sundancers provided the plaintiff with a defective and unsafe chair, whether the defect could have been detected with reasonable inspection, whether reasonable inspection was made, and whether factors other than the defendants' negligence more likely caused the accident—summary judgment should not have entered. Were this case to go to trial on the record before us, the jury would be permitted, but not required, to infer that Sundancers was negligent under the principles of res ipsa loquitur.

The case is Kennedy v. Abramson, No. 21-P-224 (Mass. App. Ct. Mar. 17, 2022). Justice Gregory I. Massing wrote the opinion of the unanimous panel.

Statute of repose bars medical negligence claim over misdiagnosis of plaintiff's muliple sclerosis

Evidence of MS in an MRI
(James Heilman, MD, CC BY-SA 4.0 via Wikimedia Commons)

A Massachusetts medical malpractice case in March reminds law students and lawyers that a statute of repose can be as threatening to a cause of action as a statute of limitations, and furthermore that the statute of repose burdens patients with diligently investigating persistent suffering.

The Massachusetts statute of repose for medmal actions states (emphasis added):

Actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitoria shall be commenced only within three years after the cause of action accrues, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.

The plaintiff suffered from multiple sclerosis, which was misdiagnosed in 2011. The results of an MRI indicating MS were never communicated to the plaintiff, almost certainly negligence. But it was more than seven years before the diagnosis was corrected.

The plaintiff tried to predicate her claim on subsequent instances of treatment by the defendant doctors. The court was not receptive. "Even if we generously read the complaint to have alleged separate acts of negligence, that reading would nonetheless be eclipsed by the fact that the 'definitely established event' of the MRI occurred nearly eight years before the complaint was filed," the court opined. A "continuing treatment exception" "would vitiate the statute of repose."

The case is Moran v. Benson, No. 21-P-352 (Mass. App. Ct. Mar. 1, 2022). Justice William J. Meade wrote the opinion of the unanimous panel.

State AGs back Mexico in suit against gun makers

Houston gun show in 2007 (M&R Glasgow CC BY 2.0 via Flickr)

In a pattern that has become familiar, the mass shooting in Uvalde causes us to check in on the various irons in the fire on gun liabilities.

The from-right-field lawsuit that most piqued my interest in the last year was that filed by the government of Mexico against American gun manufacturers over deaths in Mexico, Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc. (D. Mass. filed Aug. 4, 2021). In the culmination of a 139-page complaint, Mexico articulates causes including negligence, product liability, and nuisance.

The lawsuit is presently in briefing on defendants' motion to dismiss.

Especially interesting are Mexico's counts seven and eight, arising respectively under the Connecticut Unfair Trade Practices Act and the famously broad Massachusetts consumer protection law, chapter 93A. It was under the Connecticut law, as a claim over marketing, that courts allowed the Sandy Hook plaintiffs to work around the personal injury liability bar of the Protection of Lawful Commerce in Arms Act of 2005 (PLCAA).

Though to be clear, Mexico's starting position is that the PLCAA doesn't apply anyway extraterritorially. In February, 14 state attorneys general, led by Massachusetts AG Maura Healey, briefed the district court on their agreement with that position (CNN), seeking to expose the gun-maker defendants to liability.

Gun maker Smith & Wesson, the named defendant in the case, was based in Springfield, Massachusetts, since 1852. In September 2021, Smith & Wesson announced plans to leave Massachusetts, amid pending legislation to limit the manufacture of assault weapons, for the friendlier venue of Tennessee (WCVB).

Court: Even upon liability for mere negligence, insurer may refuse to cover statutory attorney-fee award

Gerd Altmann licensed by Pixabay

An insurer is not obliged to reimburse an insured for attorney fees awarded in a quasi-tort action under Massachusetts statute, the commonwealth high court held today.

The insured was a cleaning business operating under the "Servpro" banner. In the dispute underlying the instant case, the insured cleaned up a sewage spill and was held liable to a client who suffered respiratory injury from exposure to disinfectant chemicals.

The personal-injury complainant sued under the unusually broad unfair commercial practices statute, Massachusetts chapter 93A. Chapter 93A affords prevailing parties attorney fees, as well as double or treble damages for complainants able to prove "willful or knowing" violation.

Those powerful incentives tend to cause plaintiffs to abandon common law tort claims when the 93A claim is viable. So here, the plaintiff declined to prosecute her common law negligence claim and was awarded attorney fees on a prevailing 93A theory, an implied warranty of merchantability.

Subsequently, Vermont Mutual Insurance Co. declined to pay the full sum of the award, asserting that the policy did not cover the attorney-fee award.

The Supreme Judicial Court agreed, finding the plain meaning of the insurance contract controlling. The policy covered liability for "bodily injury" and "costs," the court acknowledged. But attorney fees are not "costs 'taxed' against the insured in the suit," the court held; rather, "costs" refers to "the narrower, technical meaning of court-related or nominal costs recoverable as a matter of course to prevailing parties."

The outcome is potentially devastating to small businesses that believe themselves to be insured against negligence liability. An attorney-fee award is enough to put a small business into bankruptcy, yet personal-injury liability insurance typically excludes coverage for fees. 

That exclusion arises, I posit, upon the logic that fees typically are awarded in the states, if at all under "the American rule," only in cases of intentional or reckless wrongdoing, for which insurers also exclude liability. Chapter 93A makes fees much more readily accessible to prevailing plaintiffs and thereby burdens business with an unanticipated transaction cost, while affording multi-state insurers with a windfall.

Notwithstanding my principled objection to deviations from the American rule as an incoherent remedy to our problem of runaway transaction costs, I see no meaningful distinction between a personal injury award and an accompanying fee award when both are predicated on conduct indistinguishable from common law negligence. Vermont Mutual was let off the hook on a technicality, to my mind, and insureds should be entitled to the coverage they reasonably believe they bargained for. 

At minimum, going forward, the commonwealth insurance regulator should compel clear articulation of the risk to insureds of such a coverage limitation specially under chapter 93A. I won't hold my breath.

The case is Vermont Mutual Insurance Co. v. Poirier (Mass. July 6, 2022). Justice Scott L. Kafker wrote the unanimous opinion.