Death case against Robinhood tests common law disfavor for liability upon negligence leading to suicide

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The family of a 20-year-old college student who committed suicide has sued the lately notorious Robinhood financial services company.

Filed yesterday in California, the suit has been reported widely (e.g., Fortune), as was the death in the lockdown summer of 2020 (e.g., Financial Times, Forbes).  I feel compelled to mention the case here because, in tragic coincidence, my Torts II class covered suicide in causation just last night.  Hat tip to law student Paul McAlarney, who spied the story at CNBC.  Courthouse News has the complaint. 

In the instant case, decedent Alex Kearns, a sophomore at the University of Nebraska–Lincoln, ran in front of a train while believing mistakenly that he had lost about $730,000 in investments through Robinhood.  The service emailed him to demand a deposit of $178,000 to rectify his negative balance, Fortune explained, without clarifying that he had options in his account that could more than cover the deposit.

I am no investment wiz, but McAlarney said that a representation of negative balance like this is normal in margin trading, and that understanding one's actual position can be "tricky" and "super confusing" for beginners.  Kearns tried three times to reach Robinhood customer service, to no avail; we all know how that goes.

Historically, common law was not friendly to claims of tort liability against actors whose negligence was alleged to have precipitated suicide.  The abrupt and powerfully intentional act of suicide was, and usually still is, regarded as a supervening cause of loss, breaking the chain of legal causation between injury and the conduct of actors earlier in time, and freeing them of legal responsibility.  The rule arose naturally from the social stigma that attached to suicide historically, and, relatedly, the criminalization of the act.

In recent decades, however, the historic common law approach softened.  Understanding of mental health issues diminished the stigmatization of suicide and pushed a wave of decriminalization.  Insofar as suicide remains criminalized or regulated as a civil offense, the rationale today is more often to facilitate mental health intervention than to deter or punish.  Accordingly, courts have evidenced increased willingness to see negligence as a legally cognizable cause in the aggravation of mental illness.

I wrote here on the blog about two cases in the last three years arising in higher education in Massachusetts.  In a case against MIT, in 2018, the Supreme Judicial Court (SJC) held that the defendant university could not be held liable in the suicide of a student, Nguyen, for failure of duty.  However, the Court wrote that it was not rejecting wholesale a university-to-student duty to prevent suicide; rather, on the facts, MIT could not have foreseen the tragedy.  Then in a case against Harvard, in 2019, the Superior Court followed the SJC's lead and refused to dismiss a liability claim in the suicide of a student, Luke Tang (documentary film).  That case is now in discovery (search Middlesex County case no. 1881CV02603).

The civil iteration of the Michelle Carter case, in which Carter, by text message, exhorted teen peer Roy Conrad to commit suicide, would have marked a profound test of the old common law rule, but was settled in 2019.  Pending in the Massachusetts legislature is a bill, "Conrad's Law," that would explicitly criminalize the facilitation of suicide.  Carter was convicted of involuntary manslaughter, and the SJC upheld the conviction as against a First Amendment challenge.  The U.S. Supreme Court denied certioari.

At the end of December, the Sixth Circuit affirmed denial of a Cincinnati school board's motion to dismiss a suit over a third grader's suicide precipitated by bullying.  Professor Alberto Bernabe wrote about the case for his Torts Blog and observed, as to proximate causation, "the court found that the boy’s suicide was plainly foreseeable, especially considering [that] the school’s guidelines on bullying include suicide as a risk."

Tragedy arising from investment losses is not new.  My torts casebook with Professor Marshall Shapo, in the chapter on attenuated duty and causation, noted a mass shooting and suicide by a day trader in 1999.  The Georgia Court of Appeals affirmed summary judgment for the shooter's former employers as against claims by victims.  The court wrote that "the issue of proximate cause is so plain, palpable, and indisputable as to demand summary judgment for the defendants."  The Kearns case relocates the risk to the private home and compounds the matter with investor inexpertise, changes wrought, for better and worse, by the electronic democratization of access to financial markets.

The case is Kearns v. Robinhood Financial LLC, No. 21CV375872 (Cal. Super. Ct. Santa Clara Cty. filed Feb. 8, 2021).

FDA reg doesn't preempt state medical device liability, but plaintiff must plead 'plausible' theory, Court says

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Medical-device liability claims in state courts are not preempted by federal law, the Massachusetts Supreme Judicial Court confirmed Friday, but the plaintiff before the Court failed to meet the pleading standard.

Seeking relief from the pain of osteoarthritis, Plaintiff Dunn received in her knees two injections of "Synvisc-One," a product of defendant Genzyme Corp. and an FDA-approved "Class III medical device," the Court retold.  Subsequently, she "experienced severe side effects, including 'pain and swelling in her knees, difficulty walking, hip bursitis and systemic pseudoseptic acute arthritis," resulting in falls and injuries, including a torn meniscus and broken neck.

The plaintiff sued Genzyme in negligence and product liability and under Massachusetts consumer protection law.  Commonly called "93A," after its codification, the latter theory of unfair or deceptive practices is favored by plaintiffs' lawyers for its allowance of punitive damages upon an up-to-treble multiplier.  Massachusetts allows punitive damages only upon statutory authorization, and 93A is generous, tracking tort liability theories, including product liability, that would not be thought of as statutory consumer protection in other states.

The U.S. Supreme Court ruled in 2008 that state law claims are not necessarily preempted by regulatory approval under the 1976 Medical Device Regulation Act (MDA).  To survive preemption, a plaintiff's claim must parallel, and not exceed, federal regulatory requirements.

Justice Gaziano

Applying the Supreme Court standard, the SJC determined that the plaintiff's claims met the standard.  Specifically, "negligent failure to warn, breach of warranty, negligent manufacture, products liability, and violations of [chapter] 93A—all can be interpreted as coextensive with the comprehensive Federal requirements."

Contrary to implication by the defense, the SJC held that a plaintiff asserting medical-device liability in parallel with the MDA is not required to plead with the high level of particularity (Rule 9(b)) required in fraud.  Rather, the requisite pleading standard is "plausibility": "plaintiffs asserting parallel State-law claims based upon a violation of FDA regulations must articulate only "factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief" (quoting SJC precedent).

Nevertheless, the plaintiff failed to meet that standard.  The complaint alleged foreseeability of "significant dangers," known or reasonably knowable "dangerous propensities," and, as an alternative theory, adulteration or defect of the product.  But the plaintiff alleged no factual support for causation linking the injection to the injury other than "temporal proximity."  Evidence of other complaints about the product would have helped, the Court suggested.  But deficiency of pleading does not entitle a plaintiff to discovery.

Accordingly, the Court reversed the trial court's denial of the defense motion to dismiss.

The case is Dunn v. Genzyme Corp., No. SJC-12904 (Mass. Jan. 29, 2021).  Justice Frank M. Gaziano authored the opinion of the unanimous Court.

Collateral to drug-testing race discrimination suit, Boston wins chance to demand indemnity by lab

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Is hair-follicle drug testing racially discriminatory?

That was not the question before the Massachusetts Supreme Judicial Court Friday, but the Court's decision ancillary to that disparate-impact civil rights question is instructive on indemnity.

The civil rights claim in this case was filed in 2005 and still is in litigation in federal court.  Plaintiffs in that suit are eight police officers, a police cadet, and an applicant for a 911-operator job who suffered adverse action after testing positive in hair-follicle drug tests administered by the City of Boston.  Seven of the officers were fired for cocaine-positive results.

The plaintiffs, all African American, deny drug use.  They assert that the test is inaccurate and "disproportionately yielded false positives for people of color, resulting in disparate impact by race," the SJC wrote Friday.  "During the eight years for which the plaintiffs present data, black officers and cadets tested positive for cocaine approximately 1.3% of the time, while white officers and cadets tested positive just under 0.3% of the time," the First Circuit wrote in 2014.

The city won summary judgment twice in the trial court, yet the First Circuit twice found error, in 2014 and in 2016, and remanded for further proceedings.  The case, Jones v. City of Boston, remains in the district court, though the docket shows no activity on the merits since the latter remand, suggesting a resolution might have been reached.

The instant case is a dispute in state court between the city and the test provider, Psychemedics Corp.  In the city's contract with Psychemedics, the company promised "to 'assume the defense of' the city, and to 'hold [it] harmless' from all suits and claims arising from 'wrongful or negligent' acts by Psychemedics."  After suit was filed against the city, it went to Psychemedics to talk defense.  It's not clear that the two ever got on the same page.  Psychemedics seemed to regard the suit as outside the scope of the indemnity and regarded its obligations fulfilled by offering the city technical assistance on the science.

Then, as the SJC recounted flatly, "Ten years passed."  In 2017, the city started looking around for help with its long mounting legal expenses and set its sights on Psychemedics.  "What?!" Psychemedics said.  I paraphrase.  Psychemedics sued for declaratory relief, and the city counterclaimed for breach of contract and related theories.

The case boils down to an indemnitee's duty to notify an indemnitor of the need to defend.  An indemnitee, the Court held, "must give the indemnitor 'notice and an opportunity to defend.'  The indemnitee then must allow the indemnitor to take over the defense (if it attempts to do so), and must not later block the indemnitor from doing so."  Parties are free to contract specifics, but in the absence of other specification, "'no particular form of words is necessary' to present notice and the opportunity to assume the defense."  (Citations omitted throughout.)

Justice Lenk

The SJC vacated the trial court summary judgment for Psychemedics and remanded.  The trial judge had improperly decided questions of fact, inadvertently burdening the city with having to refute the company's assertions of fact.  The SJC rejected as unproved, as yet, a number of Psychemedics theories, such as that the city had declined the company's defense or had not litigated Jones in good faith as to protect Psychemedics from liability.

To my novice reading—I am no expert on insurance or indemnity—the city fairly invoked the company's duty to defend many times, and Psychemedics tried to weasel out.  Anyway, the SJC concluded that that was how the trial court should have looked at the case on summary judgment motion, because that was the position of the city, which was the non-moving party.

The case is Psychemedics Corp. v. City of Boston, No. SJC-12903 (Mass. Jan. 29, 2021).  Justice Barbara A. Lenk, since retired, authored the opinion of the unanimous Court.

Landlord owes no duty to cyclist attacked by tenant's dog, court rules, citing breed discrimination ban

A "dog law" decision in the Massachusetts Appeals Court today recognized the state's ban on breed-specific legislation and refused to recognize a landlord duty to protect a passing bicyclist from a tenant's pit bull.

Pixy.org CC0

In affirming the defendant's motion for summary judgment, the court recited the plaintiff's facts.  Plaintiff-bicyclist Creatini had his dog on a leash as he passed the unfenced yard of tenant Mills, owned by defendant-landlord McHugh.  Mills's pit bull terrier left the yard, gave chase, and attacked the plaintiff's dog.  The plaintiff fell from his bike and was injured—in the fall, not directly by the pit, though no word on how the plaintiff's dog fared.  McHugh knew that Mills kept the pit bull and had told him to get rid of the dog.

The court rejected plaintiff's effort to charge the landlord with a landowner duty of care in negligence.  Massachusetts approaches landowner liability through the "reasonableness under all the circumstances" approach, rather than the formalist common law framework of invitees and licensees.  Under either approach, landowner liability exposure can project beyond the property line along with a "condition of property," such as a dog.  But here, McHugh's knowledge was limited to the presence of a dog, not a foreseeable danger.  "Nothing in the summary judgment record indicate[d] that McHugh was aware that Mills's dog was aggressive or prone to attack passers-by," the court wrote.

The short case decision is instructive on duty in tort law, generally, and on animal law, in particular.  As to duty, the court briefly recited the conventional approach.  While it may be said that all persons owe a duty to all others to avert harm through the exercise of reasonable care, it is simultaneously true in American tort law, in general, that persons do not owe a duty to strangers with whom they have no interaction.  A "special relationship" recognized in common law also can give rise to duty, as for an innkeeper to a guest, but no such theory pertained here.

Photo by Airman 1st Class Jeremy Wentworth, 97 AMW/PA

Landowner liability grounds duty in the particular relationship between the premises owner (or controller) and one who comes on (or here, very near) the land.  To test here whether landlord and stranger-passerby were connected by strong enough a thread to support duty, the court quoted precedent, which in turn quoted 20th-century tort scholars Prosser and Keeton, recognizing the weight of public policy and common sense in the analysis (quotation marks and ellipses omitted):

The concept of duty is not sacrosanct in itself, but is only an expression of the sum total of considerations of policy which lead the law to say that the plaintiff is entitled to protection.  No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.

The plaintiff pointed to precedent in which the Supreme Judicial Court (SJC) recognized a duty owed by a keeper of firearms to a policeman shot by a man who had access to the keeper's home, whom the keeper knew to be under psychiatric observation, and who stole one of the weapons.  Foreseeability in that case was stronger on the facts, and, critically, the SJC had relied on a common law duty, echoed in statute, to manage a dangerous instrumentality, the gun, with the utmost care.

In animal law, in contrast, Massachusetts statute charges a dog owner, but the dog's owner only, with strict liability for injury inflicted by the dog.  Moreover, the court declined the plaintiff's entreaty to treat pit bulls (not actually a breed) specially as a "dangerous instrumentality," like a gun, volatile chemicals, or explosives.  (The defendant disputed the dog's breed, a question of fact, the court recognized, but not one that needed to be resolved for summary judgment.)  The court cited a line in a 2008 SJC opinion stating that a pit bull is "commonly known to be aggressive."  But subsequently enacted legislation dictates a contrary policy inclination.  The court recognized in footnote:

[D]ogs cannot be regulated based on their breed. In 2012, Massachusetts amended G. L. c. 140, § 157, to provide in part: "No order shall be issued directing that a dog deemed dangerous shall be removed from the town or city in which the owner of the dog resides. No city or town shall regulate dogs in a manner that is specific to breed."

Patrick Stewart and Dinero the Dog

in Star Trek: Picard (2020) (© CBS 2019)

Indeed, the 2012 Massachusetts law against breed-specific regulation was a victory for animal protection advocates.  The SJC's 2008 observation was correct as a statement of public perception, and perhaps reality.  But insofar as aggressiveness is a pit trait, it is a function of human selection.  Breed-discriminatory legislation leads to excessive euthanasia of animals that are not dangerous.  (Not for the faint of heart, be warned, Wikimedia Commons has a moving graphic image of euthanized pits, and I could not stomach using it here.)  Read more at "Stop BSL."

Pit bull advocates include Patrick Stewart, Star Trek's Captain Picard.  He was recently coronavirus-vaccinated and is soon to start shooting Picard season 2, a show on which he wanted to be sure that his character's dog is a pit.  Advocates also include one of my sisters, who today brings a new (human) baby home to live with her pits, Mia and (the original) Baby, the sweetest dogs I've ever known.  And combating breed discrimination has been a cause of the Animal Law Committee of the Tort Trial Insurance Practice Section of the American Bar Association, with which I've volunteered in the past.

[UPDATE, Jan. 28:] See CBS Sunday Morning correspondent Martha Teichner with her bull terrier, Girlie, featured in The New York Times on January 22 (subscription).  [Jan. 31:] See her talk about her new book, a dog romance, on CBS Sunday Morning, embedded below

© ASPCA

Among many groups, the American Society for the Prevention of Cruelty to Animals (ASPCA) tracks anti-breed discrimination legislation and counted 21 state bans on breed-specific legislation (BSL) as of April 1, 2020.  "There is no evidence that breed-specific laws make communities safer for people or companion animals," the ASPCA writes, and the Centers for Disease Control and Prevention (CDC), having studied dog bites and human fatalities, also opposes BSL.  In my home state of Rhode Island, local breed-specific legislation seems to persist, despite abrogation by state law in 2013.

The case is Creatini v. McHugh, No. 19-P-1159 (Mass. App. Ct. Jan. 27, 2021).  Justice C. Jeffrey Kinder authored the opinion of a unanimous panel that also comprised Justices Massing and Grant.

One must admit, duty in dog law is a succulent subject.

Supreme Court vacates First Amendment decision, tells lower court to certify negligence question to Louisiana

Mckesson
(HimmelrichPR CC BY-SA 2.0)

A negligence lawsuit blaming Black Lives Matter organizer DeRay Mckesson for injury to a police officer is on hold since the U.S. Supreme Court ordered the Fifth Circuit to certify the problem in tort law to the Louisiana Supreme Court.

I wrote about this case in April.  Unidentified police officer John Doe suffered severe physical injury and brain trauma after being struck in the face by a rocky projectile while responding to a protest-occupation of a Louisiana highway.  Mckesson did not throw the rock; the officer sued in negligence, accusing Mckesson of having created a violent climate as a protest organizer.  Mckesson raised a First Amendment defense, which a divided Fifth Circuit court rejected.

On appeal, the U.S. Supreme Court invoked, if not by name, the doctrine of constitutional avoidance.  The Court vacated the Fifth Circuit decision and remanded.  The Court opined that the Fifth Circuit should have asked the Louisiana Supreme Court whether state negligence law could support liability at all, before engaging with the thorny constitutional problem under the First Amendment.

Both Doe's negligence theory and Mckesson's First Amendment defense are close questions.  Mckesson never countenanced a violent attack on police.  Under conventional tort analysis, it is possible, but not easy, to show that a chain of proximate causation runs intact from a careless defendant, through an intentional, criminal act, to injury to the plaintiff, such that the careless defendant may be held liable for the violence inflicted by the intermediary criminal actor.  Imposing liability in that way obviously raises First Amendment problems when the alleged negligence is part and parcel of free speech and assembly.

Cases of such "negligent incitement" have long been problematic in First Amendment doctrine.  The "Soldier of Fortune cases" over "gun for hire" ads, e.g., Braun, Eimann, are loosely analogous.  Results have varied, and no clear rule has emerged.  Now, in the internet era, the problem has been amplified, because universal access to mass communication has exaggerated the potential for incitement.

I suggest that the Louisiana Supreme Court solve the problem through analysis of duty (or perhaps "scope of liability," if the court wishes to embrace the approach of the Third Restatement of Torts).  Duty is all about public policy, so there is no need to whisper about the First Amendment as a thumb on the scale.  It's no stretch to conclude that the organizer of a protest, even one predicated on civil disobedience, but without specific knowledge of impending violence, does not owe a duty to protect a responding police officer.  Though the Supreme Court wished to avoid the broad constitutional question of a First Amendment defense, the state court may prioritize free speech and assembly in a public policy analysis.

The case is Mckesson v. Doe, No. 19-1108, 592 U.S. ___ (Nov. 2, 2020) (SCOTUSblog).  The opinion was per curiam.  Justice Thomas dissented without opinion, and Justice Barrett took no part.

No recklessness, no liability, court affirms in case of head injury during softball batting practice

mohamed Hassan from Pixabay

Applying recklessness doctrine in a non-competitive context, the Massachusetts Appeals Court yesterday affirmed non-liability for a collegiate softballer and Suffolk University in the case of a player hit in the head by a bat during practice.

Tort and Sport

Personal injury in sport offers fertile ground for exploring tort law, because athletic competition represents a suspension of the social contract.  Ordinarily, everyone in an orderly society knows not to push, tackle, or punch other people.  But in a sport, that can be exactly what you're supposed to do.  So a special, carefully designed standard of conduct, "the rules of the game," supersedes the usual web of unwritten norms, conveniently yielding a laboratory for socio-legal study.

If one fails to recognize the aberrant nature of the sport context, anomalous legal results pertain.  For example, every injury resulting from a collision of players on the football field is accidental, so a potential source of negligence liability.  Alternatively, many such injuries are batteries, because the defendant bore subjective intent to cause offensive contact.  At the same time, the defenses of assumption of risk and consent raise frame-of-reference problems in application.  An athlete generally assumes a risk of injury, a defendant argues, but not necessarily injury specifically in the way that it happened, the plaintiff counters.  The usual tort doctrines just don't work well to solve conflict over sporting injury.

To overcome this problem, courts in many states, including Massachusetts, have employed the tort standard of recklessness in sport cases.  Recklessness focuses on a defendant's indifference to a risk of high probability or magnitude (tests vary).  For its culpability analysis, recklessness hybridizes subjective and objective tests for culpability, thereby balancing the prohibitive prerequisite of defendant's intent with slim proof of carelessness.  The test is not a perfect tool for sporting-injury cases, but it works much better than intent and negligence rules to help courts patrol the outer boundaries of social-normative conduct in an exceptional situation.

j4p4n from openclipart.org

In Borella v. Renfro, in December 2019, the Massachusetts Appeals Court applied the recklessness standard to a case of ice-hockey injury, relying on precedent of the Supreme Judicial Court dating to 1989.  The court explained in Borella:

In a game where the players wear sharpened steel blades on their feet and are garbed in protective gear from head to toe, the playing field is a glossy ice rink, checking not only is allowed but a fundamental aspect of the way the game is played, and the object of the game is to put a puck into a goal (or to prevent the same), the plaintiff, seventeen year old Daniel J. Borella, was cut on the wrist by one of the blades worn by the defendant, Julion Scott Lever, in what Borella acknowledges was a "freak accident" occurring moments after Lever checked Borella hard from behind into the boards and took the puck away.

.... In this case, we apply [the recklessness] standard to the game of ice hockey[,] in which physical contact between players standing on two thin metal blades atop a sheet of ice is not simply an unavoidable by-product of vigorous play, but is a fundamental part of the way the game is played. We hold that where, as here, the record is devoid of evidence from which a jury rationally could conclude that the player's conduct is extreme misconduct outside the range of the ordinary activity inherent in the sport, there is no legal liability under the recklessness standard. For that reason, we affirm summary judgment in favor of Lever.

Dissenting, Justice Peter J. Rubin would have sent arguable questions of fact to the jury.  But he did not disagree, for jury instruction, that recklessness was the correct standard.

Batting Practice

Despite the efficacy of the recklessness standard in sport cases, things get tricky at the margins, especially when injury occurs off field, or outside the narrow context of competitive conflict between players in the course of the game.  The instant case presented such a challenge, as one player was hit in the head by a teammate accidentally, while the teammate was engaged in batting practice.

Should the recklessness analysis pertain to "friendly fire" in practice, too?  Yes, the Appeals Court answered, consistently with precedent in other states.  Recklessness is the appropriate standard for athletic practice.  

In the instant case, the unfortunate accident occurred between friends on the Suffolk University softball team.  The plaintiff-player walked too close to the swinging defendant-player at just the wrong time.  Their testimonies, and that of the supervising coach, might have supported findings for or against fault-based liability in negligence, but no matter.  The defendant's conduct did not rise to the recklessness standard, and the trial court correctly awarded summary judgment to the defense.

The court framed its choice of the recklessness standard as a problem in duty.  Duty in tort law is determined "by reference to existing social values and customs and appropriate social policy," the court quoted precedent.  This point is significant for reasons related to the deeper mechanics of tort law.  Without diving into the problem here, it will suffice to say that the interrelationship of duty and fault standards sometimes matters, especially when a change in the relevant law occurs, whether through common law evolution or legislative enactment.

Co-defendant Suffolk University also won summary judgment.  The players had signed waivers of university liability in negligence, and the evidence failed to support gross negligence or recklessness in the coach's and university's supervision of the softball practice.

Superior Court Decision

In affirming, the Appeals Court opinion described the Superior Court's application of recklessness doctrine as "thoughtful."  That appraisal prompted me to seek a copy of the trial court opinion.

Regrettably, Massachusetts is a jurisdiction that thrives on secrecy in trial court records.  The Superior Court for Suffolk County, which includes the metropolis of Boston, puts dockets online, and the interface looks like the same software used by my home bar jurisdiction of Washington, D.C.  But links to document images, which D.C. has offered for a few years, are not available from the Massachusetts system.  Given the state of technology in the courts and in the country, I can attribute this omission only to willful obscurity.

Graciously, attorney Robert B. Smith (LinkedIn, Twitter), Demoura|Smith LLP, who represented Suffolk University softball head coach Jaclyn Davis, shared with me a copy of the memorandum decision in the Superior Court.  The court wrote:

[Defendant-player] Ball argues that because Brandt's injury occurred while she and Brandt were participating in an athletic event, she may only be liable for conduct that was willful, wanton, or reckless. Ball contends that she is entitled to summary judgment because Brandt has no reasonable expectation of proving her conduct was willful, wanton, or reckless. The court agrees.

"Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players' consent." Gauvin v. Clark, 404 Mass. 450, 454 (1989). "The courts are wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition." Id. Therefore, "a participant in an athletic event can be liable to another participant only when his or her actions amount to a willful, wanton, or reckless disregard for the safety of the other participant." Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000) [affirming summary judgment for defendant in golf-club-to-head case].

Brandt argues that the present case is distinguishable from those requiring a showing of willful, wanton, or reckless conduct because her injury was not caused by an opponent during a competition. However, the court declines to construe the broad language of the controlling cases in a manner that excludes Brandt's claim from their purview. Members of the same athletic team participating in a team practice are no less "participant[s] in an athletic event" than members of opposing teams during a game. [Cf.] Dugan v. Thayer Academy, [32 Mass. L. Rep. 657] (Mass. Super. Ct. 2015) (willful, wanton, or reckless standard did not apply where alleged negligence occurred before and after, but not during, athletic event [field hockey]). Accordingly, the willful, wanton, or reckless standard of care applies to Brandt's claim against Ball.

The appellate case is Brandt v. Davis, No. 19-P-1189 (Mass. App. Ct. Nov. 2, 2020).  Justice Joseph M. Ditkoff wrote the opinion for a unanimous panel that also comprised Justices Wolohojian and Maldonado.  The case below was Brandt v. Davis, No. 2017-00641-B (Mass. Super. Ct. Suffolk County Apr. 16, 2019).  Presiding in the Superior Court was Justice Mark C. Gildea, an alumnus of Suffolk Law.

Time travel would warp tort law, attorney imagines

Austin Beast AB (Pixabay)

Tired of earthbound law constrained by the arrow of time?  Attorney, comedian, and comic book fan Adam J. Adler writes an enjoyable column on law for the aptly named Escapist online magazine.  Recently he tackled the implications of time travel in tort law.  Back in August, he considered transporter accident liability.

Time travel in a Groundhog Day-like scenario, Adler observes, would change the moral expectations of the objective reasonable person as he or she acquires additional knowledge about cause and effect through multiple iterations of the timeline.  In the end, Adler offers a theory on why we haven't yet met time travelers.  Check it out, and remember to suspend your disbelief and enjoy.

The article is Adam J. Adler, Time Travel Torts: How Law Gets Dicey When Dealing with Groundhog Day, The Escapist, Oct. 4, 2020.  

And speaking of time travel, Star Trek: Discovery season 3 premiered last night.  Here's the season trailer, if you can stand the excitement!

Court: Family of elder-care resident may use rare 'bill for discovery' to investigate how broken foot occurred

In an unusual case last week, the Massachusetts Appeals Court allowed a "bill for discovery" to proceed despite its arguable incompatibility with rules of civil procedure.

Mary T. Atchue, an elderly resident in an assisted living facility in Worcester, Massachusetts, sustained a broken foot while being moved.  In an action maintained by her family since her death, Atchue filed a "complaint for discovery," based in equity.

Marie Van den Broeck, BE (CC BY 3.0)

The court held that the complaint could proceed, despite objection from defendant Benchmark Senior Living, LLC, that the claim would not be allowed by the state rule of civil procedure for pre-litigation discovery.  Discovery processes specified by statute and rule supersede the historic bill for discovery in equity insofar as they pertain, the court reasoned, but the bill remains available to supplement modern practice where it does not pertain.

The viability of a bill for discovery is dependent on the viability of the underlying potential claim in litigation, the court further held.  Atchue has a viable theory on tolling the statute of limitations, and her claims survive her death under the state survival statute.  So a bill for discovery remains available.

I don't usually dig into civil procedure cases, but this one caught my eye because of the unusual disposition in pre-litigation discovery.  I've written with approval about the use of the access to information law, or freedom of information act, in South Africa having been used as a pre-litigation discovery device, specifically, in fact, for a potential plaintiff to investigate the possibility of negligence in healthcare services.

Shaped by the experience of apartheid, the South African law, and comparable laws elsewhere in Africa modeled on it, allow access to information in the private sector when the complainant can demonstrate sufficient need grounded in civil rights.

The court vacated dismissal and remanded.

The case is Atchue v. Benchmark Senior Living LLC, No. 19-P-125 (Mass. App. Ct. Oct. 5, 2020).  Justice Vickie L. Henry wrote the opinion for a panel that also comprised Justices Rubin and Wolohojian.