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.
 |
| CC0 1.0 via Wikimedia Commons |
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.
 |
| Paul Brennan via PublicDomainPictures.net |
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.
 |
| Open Food Facts CC BY-SA 3.0 |
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.
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.
.jpg) |
| Michael Coghlan CC BY-SA 2.0 via Wikimedia Commons |
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.
 |
| BLM protest in Baton Rouge in 2015 (Alisdare Hickson CC BY-NC 2.0 via Flickr) |
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.
 |
| plastic chair by Chris CC BY-NC-SA 2.0 via Flickr |
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.
 |
| Evidence of MS in an MRI (James Heilman, MD, CC BY-SA 4.0 via Wikimedia Commons) |
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.
 |
| Houston gun show in 2007 (M&R Glasgow CC BY 2.0 via Flickr) |
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).
 |
| Gerd Altmann licensed by Pixabay |
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.
A Savory Tort Investigation
I've posted for public download [no longer posted; contact me for file] files of the investigation into the matter of Boston University (BU) Professor David K. Jones, who died on September 11, 2021, when he fell through a rusted stairway near a Massachusetts Bay Transportation Authority (MBTA) station.
When the Suffolk County (Mass.) DA announced in January that no criminal charges would be filed in the death, I requested the investigative files under state public records law. Record Access Officer Claudia Buruca filled my request promptly and kindly (in May; I'm just getting around to it). The ZIP file I created in Dropbox runs about 97.3 megabytes and includes documents, images, and 911 audio, all appropriately redacted by the DA's office to protect the privacy of the decedent and family.
I wrote about the incident here last October. A professor in the School of Public Health at BU (in memoriam) and husband and father of three in Milton, Mass., Jones was a runner and was out training for a marathon. He mounted a stairway on MBTA property in Boston that connected Old Colony Avenue, below, with Columbia Road, passing overhead. Four treads in the uppermost part of the stairway were missing, and Jones fell through, about 20 feet, to his death.
In reference to the DA's decision on criminal charges, I wanted to know more about why the rusted stairway was accessible to Jones. The file (in accordance with subsequent news reporting) revealed that demolition of the stairway had been planned, but was delayed by confusion over what state agency was responsible. In the meantime, the stairway was blocked at top and bottom. The stairway has been demolished since.
A warning: in the following paragraphs I will describe
the evidence dispassionately, and the details might be troubling to some
readers, especially if you knew Jones.
.jpg) |
| All photos are from the investigative file. |
 |
| A Google Street View image from November 2020 shows the fence footing sitting well past the stairway corner. |
.jpg)
Either way, it was never very difficult for a person to squeeze around the end of the fence and onto the stairway. There is video surveillance of Jones walking—not running—up the stairs, and then of him falling. But no camera captured how he circumvented the fence at the bottom, nor what happened when he encountered the gap in the stairs.
I had assumed, based on my own experience as a runner, that Jones had run up the stairs, probably looking up and ahead, and lost his footing at the missing treads. So I was surprised to see that he walked up. Also surprising, about nine seconds, give or take, elapsed between his disappearance from camera view, moving up the stairs, and his falling back through the camera view. That's more time than would have been needed to go the rest of the way. One possibility is that he lost his footing, but was able to hold on to something for a short time before falling. Another possibility is that he saw the gap, tried to circumnavigate it, and failed. There's no way to know.
Whatever the unknown circumstances, personally, I am satisfied that the DA made the right call. The delay in demolition of the stairway, the too easily circumventable fencing, and the missing danger sign significantly and unnecessarily exacerbated the risk of injury or death and evidence bad public policy. But the conditions don't, in my mind, rise to the level of criminal negligence, which involves willful ignorance of an obvious risk of harm—much closer to civil recklessness than to civil negligence. For Jones's part, he had to know that he was taking some risk in circumventing the fencing. And I say that mindful that I've made some bad choices myself in the past, so there but for the grace of God....
 |
| Rusted treads that had not yet detached. |
At the same time, why did the staircase rust so to begin with? Ironically, Jones worked as a public health scholar studying social risk factors. Bigger questions loom about our aging infrastructure and who pays the price when it fails.
 |
| Photo by Marco Verch (CC BY 2.0) |
Plaintiff Harrington was hospitalized after police found her unresponsive in her parked car. In the complaint, she alleged that sheriff's deputies "joked about her incapacitated condition and played along when nurses asked them to guess her blood alcohol content" (BAC). A nurse thereby disclosed Harrington's BAC, and, the complaint alleged, deputies then coaxed the record from a doctor. Harrington was charged with driving under the influence.
Subsequently, Harrington sued county officials and Madison Valley Hospital, the latter on theories of state statutory information privacy and common law invasion of privacy, negligence, and negligent infliction of emotional distress. The hospital sought dismissal on grounds that the federal Health Insurance Portability and Accountability Act (HIPAA), cited by the plaintiff in the complaint, affords no private right of action. The federal district court, per Chief Judge Brian Morris, denied the motion to dismiss, recognizing that while HIPAA does not itself authorize private enforcement, it also does not preclude state law from providing greater privacy protection.
The case caught my attention because its facts point to something for which I've advocated, the use of tort law to fill gaps in informational privacy protection in the United States. The law has not kept up with Americans' expectations of privacy, much less the norms of the world, but the common law should be sufficiently dynamic to reflect the evolving social contract. I see drift in this direction in the expansion of medical fiduciary duty in emerging precedents in the states, such as Connecticut's Byrne v. Avery Center for Obstetrics & Gynecology, P.C., in 2018.
A theory as tenuous as negligent infliction of emotional distress, "NIED," can't usually stand on its own. And tortious invasion of privacy has a poor track record in protecting personal information that is already in limited circulation. However, paired with a medical provider's fiduciary duty and bolstered by a privacy violation recognized in regulation, either tort theory might be ripe for redefinition.
The case is Harrington v. Madison County, No. 2:21-cv-00015 (D. Mont. Dec. 6, 2021). Hat tip to Linn Foster Freedman at Robinson+Cole's Data Privacy + Cybersecurity Insider.
 |
| Pixabay by Ronald Plett (license) |
In a case the Massachusetts Supreme Judicial Court (SJC) decided in late October, Raynham, Mass., police officers on mandatory firearms training on public property in 2017 organized takeout for lunch for a paid break. Returning to the training site in his personal truck with the takeout, one officer drove the gravel path "faster than [he] should have," braked, and slid into and injured another officer seated at a picnic table.
The plaintiff-officer was permitted to claim state worker compensation, because he was injured on the job. The defendant-driver's insurer meanwhile claimed immunity under the Massachusetts Tort Claims Act, because the insured acted "within the scope of his ... employment." The SJC denied the insurer of the defense.
The common law test for "vicarious liability, respondeat superior, and agency," the court explained, is "whether the act was in furtherance of the employer's work," and the same test informs the invocation of statutory immunity. That analysis comprises three factors in Massachusetts law: "(1) 'whether the conduct in question is of the kind the employee is hired to perform'; (2) 'whether it occurs within authorized time and space limits'; and (3) 'whether it is motivated, at least in part, by a purpose to serve the employer.'"
Only the middle factor favored the insurer, the court opined, so the analysis on balance disfavored immunity.
Worker compensation and common law master-servant doctrine are indistinguishable as a practical matter in many cases, when an employee suffers injury doing the employer's bidding. Doctrines in both veins rely on "scope" or "course of employment" tests.
But even when the language is the same, the tests differ, and in some cases, the difference matters. Worker compensation tests only loosely for a causal connection between employment and injury, thus famously allowing a traveling salesman to recover when his overnight motel was destroyed by a tornado. Vicarious liability, and thus, Massachusetts immunity, requires a closer causal nexus between the employee's specific pursuit and the injury that results.
In this analysis, the defendant-driver's lunchtime carelessness, for which he was suspended for five days, was not a "frolic" as escapes worker compensation coverage, but, at the same time, was not in furtherance of the employer's work, so qualified for neither vicarious liability nor statutory immunity.
The case is Berry v. Commerce Insurance Co., No. SJC-13089 (Mass. Oct. 25, 2021). Justice Dalila Wendlandt wrote the unanimous court opinion.
 |
| Pxhere CC0 |
The plaintiff-postman in the case was covering an unfamiliar route when he was bit in the wrist and thigh by German shepherd-golden retriever mix "Chewbacca." At trial, the jury awarded the plaintiff $375,000 in damages. The defendants asked for a new trial, arguing that the jury was tainted by improper admission of information about the plaintiff's federal worker compensation benefits, in violation of the collateral source rule.
Before the jury verdict, on the last day of trial, the parties had struck a handwritten "high-low" settlement agreement. They set a floor recovery of $150,000, if the jury verdict were anything less, and a ceiling of $1,000,000, if the jury verdict were anything more.
The plaintiff argued that the settlement agreement precluded appeal. But it didn't say that. Holding that the settlement agreement was to be construed as a "contract like any other," the Appeals Court found no language convincingly demonstrating defendants' waiver of appeals. At the same time, the court held that the evidentiary admission in violation of the collateral source rule was harmless error, affirming the denial of new trial.
Regarding the high-low agreement, the court found "little law in Massachusetts." More than 20 years ago, two New York attorneys described the agreements as "[a]n often underutilized and misunderstood litigation technique." At NYU in 2014, a research fellow examined the agreements' potential and limits in New York, Maryland, and Virginia; see also the ABA Journal in 2005. An Illinois attorney wrote favorably about the "misunderstood" agreements in 2019, after a medmal plaintiff-baby's verdict was halved by a high-low from $101 million. Virginia attorneys advised on drafting the agreements in 2007.
In a harder scholarly vein, research published in The Journal of Law & Economics in 2014 reported empirical research on high-low conditions and posited optimal conditions for their appearance. Published soon thereafter, a Michigan law student argued that high-low agreements should be disclosed to juries.
The Massachusetts case is David v. Kelly, No. 20-P-706 (Mass. App. Ct. Oct. 25, 2021). Justice Mary Thomas Sullivan wrote the opinion of the court, which Justice Kenneth V. Desmond Jr. joined. Justice Sabita Singh dissented as to the court's conclusion that the error on the collateral source rule was harmless rather than prejudicial.
 |
| Canning Town Station in 2020 (photo by Ewan Munro CC BY-SA 2.0) |
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 Theory. Wells, 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.
 | |
| Not where the party was: historic Henfield House in Lynnfield, Mass. (photo by John Phelan CC BY 3.0) |
A 33-year-old father of two, Keivan B. Heath was shot and killed at a house party in Lynnfield, in northeastern Massachusetts, in the early-morning Sunday hours of Memorial Day weekend in 2016. The plaintiff in wrongful death sued party organizers and the homeowner, who had rented out the house.
According to the court opinion, drawing facts from the complaint with reasonable inferences in favor of the plaintiff, defendant Victor had "informed the [homeowner] that he planned to hold a college reunion party. However, he advertised a Saturday event on social media as the 'Splash Mansion Pool Party,' open to 'Special Invitation & Girls Only,' with three named disc jockeys to provide the music." More than 100 persons attended.
The property was the home of the Styller family. The property comprised "a 5,000 square foot home, a three-car garage, a 2,000 square foot patio, an in-ground heated pool, and a pool house with a fireplace and a bar on a three-acre lot in Lynnfield." Defendant Styller
rented out the premises for short periods of time using a variety of Internet platforms [including Airbnb and HomeAway (now Vrbo), according to Boston magazine]. During each rental, the [Styller family] would leave the property and stay elsewhere. In the listings, the defendant touted the property's secluded location, fenced-in yard, and electronically operated gates. He also described the property as being in one of the safest areas in Massachusetts. Renters used the house for, among other things, business retreats, conferences, "photo shoots," and reunions.
The court described the tragedy:
At approximately 3 a.m., police received two 911 calls reporting that someone at the party had been shot; one caller said that the decedent was "dying," and the other reported that people were attempting cardiopulmonary resuscitation and then said, "he's gone." Police arrived to find many vehicles leaving and people fleeing on foot. The decedent was lying alone, face up and unresponsive, near the pool. He was transported to a nearby hospital, where he was pronounced dead in the emergency room. The cause of death was two gunshot wounds to the chest.
The murder remains unsolved.
Affirming dismissal in favor of Styller, the SJC opinion is a straightforward analysis of duty in negligence. The duty of a property owner reasonably to maintain property in a safe condition does not extend generally to protect an injured from the "dangerous or unlawful acts" of third parties.
The plaintiff attempted to predicate liability on "special relationship" exceptions for foreseeable harms and for common-carrier defendants. The court rejected both theories. On foreseeability, courts have drawn exceptions in cases in which property owners knew of violent crimes on premises in the past. But plaintiffs could not sustain the allegation here. "Although the complaint cites a finding made by a Land Court judge in a related case that short-term rentals have 'significant external effects on the neighboring community and community at large,' it does not allege that short-term rentals are correlated with an increase in violent crime" (footnotes omitted).
Significantly for the short-term rental market, the court refused to analogize an Airbnb, Vrbo, etc., host to a common carrier or place of public accommodation, such as a transport provider, restaurant, or hotel, which would enhance the defendant's duty. "This comparison missed the mark," the court wrote.
Aside from the fact that there is no allegation of any relationship between the defendant and the decedent other than the fact that the decedent was shot and killed on property owned by the defendant, perhaps the biggest difference between the relationship between a business establishment and its customers and the defendant's relationship to the decedent is that the defendant had no control over the premises during the rental period.
Styller's duty as a property owner stopped with the condition of the property at the time he turned over the keys.
In a related case decided the same day, the SJC ruled against Styller in a dispute in Land Court with the town of Lynnfield.
After the Heath murder, Lynnfield amended town law expressly to ban short-term property rentals, such as Airbnbs. Lynnfield asserted that short-term rentals such as Styller's already violated the law. But ordinances, such as a prohibition on operating a "lodging or rooming house," were ambiguous on the contemporary home rental question.
The SJC disagreed with the Land Court's ruling that the short-term rental of a whole home violated the law as to rooming houses, before amendment. However, Styller wanted a ruling that his prior use was permissible, and the SJC would not go that far. In the sum of various provisions, the court held, town law "clearly and unambiguously excluded, in pertinent part, purely transient uses of property in [a residential zoning district]."
Of interest from a procedural perspective, the court ruled on the zoning case despite alleged mootness arising from Styller's sale of the property. "Unlike standing, 'mootness [is] a factor affecting [the court's] discretion, not its power,' to decide a case," the court explained.
[W]e view the viability of short-term rental use of property in the context of existing zoning regulations as one of public importance, in the sense that it raises "an important public question whose resolution will affect more persons than the parties to the case" and that "is primarily a matter of statutory [or, in this case, zoning bylaw] interpretation, not dependent on the facts of the particular case."
As well, Styller argued that the permissibility of the rental before the town amended the law remained a live issue in collateral matters of insurance coverage.
The wrongful death case is Heath-Latson v. Styller, No. SJC-12917 (June 7, 2021) (Justia). The zoning case is Styller v. Zoning Board of Appeals, No. SJC-12901 (June 7, 2021) (Justia). Chief Justice Kimberly S. Budd wrote both opinions for a unanimous court, excluding the two most recently appointed justices.
 |
| Ischemic bowel in CT scan (image by James Heilman, MD, CC BY-SA 3.0) |
The plaintiff-patient presented at the emergency room at 1 a.m. in severe abdominal pain and with a history of gastric bypass surgery and hernia repair. The defendant-doctor correctly suspected ischemic bowel, a blood blockage, and, at 3 a.m., sent the patient for a CT scan. Based on the scan results, the doctor, at 4:23 a.m., ordered the patient to surgery, which commenced by 6:30 a.m.
The court summarized, "The main dispute at trial was whether [the doctor] acted within the standard of care by ordering the CT scan and waiting for the results, or whether he instead should have contacted a surgeon earlier." On appeal from judgment entered for the doctor, the plaintiff charged that the jury was erroneously instructed to allow for error in the doctor's professional judgment.
Tracking model jury instructions (p. 5), the trial judge had instructed, inter alia:
"If, in retrospect, the physician's judgment was incorrect, it is not, in and of itself, enough to prove medical malpractice or negligence.
"Doctors are allowed a range in the reasonable exercise of professional judgment and they are not liable for mere errors of judgment so long as that judgment does not represent a departure from the standard of care resulting in a failure to do something that the standard of care requires or in doing something that should not be done under the standard of care.
"In other words, a doctor is liable for errors of judgment only if those errors represent a departure from the standard of care."
In affirming for the doctor, the court upheld the instruction. The court reviewed a range of approaches in other states to "error of judgment" instruction in medical malpractice cases. Hawaii and Oregon, for example, reject the instruction as posing too great a risk of confusion for the jury. California accords with the Massachusetts position. Other states, such as New York, use the instruction "only where there is evidence at trial that the physician chose from one of several medically acceptable alternatives." In defense of the Massachusetts position, the court reasoned:
If properly formulated, such an instruction focuses the jury's attention on the standard of care, rather than the particular results in a case. The instruction also recognizes the reality that, like all professionals, medical professionals need to make judgment calls between various acceptable courses of actions and they should not be found liable unless those judgment calls fall outside the standard of care.
The range of approaches demonstrates civil courts' long struggle with hindsight bias, especially in medical malpractice. Hindsight bias is a natural human tendency to overestimate one's ability to make a decision correctly when viewing the decision as if in the past, ignorant of consequences, but from a perspective in the present, informed, in fact, by subsequently acquired information. Shankar Vedantam talked about the problem on The Hidden Brain podcast in 2020.
Hindsight bias is not unique to medical malpractice, nor even to tort law. Psychologists have documented hindsight bias in "accounting and auditing decisions, athletic competition, and political strategy," besides medicine. As I wrote in a book on legal pedagogy in 2019, the cartoon South Park even invented a character, Captain Hindsight, to make fun of the human foible. Hindsight bias inevitably contaminates every tort case, and countering it often is an appropriate strategy in legal argument and jury instruction. For a juror, like any decision maker, it is difficult to reconstruct a past decision to the complete exclusion of undesired consequences.
The problem is exaggerated in the medical context because of the simplicity of the doctor-patient relationship. A patient sees a doctor for one purpose, exclusively: to get better. A doctor has one and only one job: to heal. When healing is not the result that a patient experiences, and the jury has knowledge of that consequence, it is deceptively easy for jurors to confuse the doctor's failure to heal with a departure from the standard of care. The Massachusetts instruction is designed to clarify the distinction for jurors.
The case is Paiva v. Kaplan, No. 19-P-1789 (Mass. App. Ct. May 28, 2021). Justice Joseph M. Ditkoff authored the opinion of the unanimous panel that also comprised Justices Vuono and Milkey. In a former post as general counsel of the District Court, Justice Ditkoff's responsibilities included drafting standardized jury instructions.
