BU prof's death was tragic accident; investigation shows bad policy, but not criminal negligence

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.

All photos are from the investigative file.

It appears that the stairway was well blocked at the top by a jersey wall, fencing, and signage. It was not as well blocked at the bottom. There was a high, temporary fence strung across the alighting threshold. Jones would have to have gone around the fence knowingly and deliberately. But doing so was not hard.

A Google Street View image from November 2020 shows the fence footing sitting well past the stairway corner.

At the left end of the alighting handrail, the fencing was anchored to a vertical steel post, which stood upon a rectangular steel footing. A Google Street View image from the preceding year shows the footing set out well past the end of the stair, so the fencing extended across the threshold and then a prophylactic foot or more. Also, while an apparently older image in the investigative file shows a "Danger / No Trespassing" sign affixed to the fence at the bottom of the stairway, that sign appears to have gone missing by the time of the Google Street View image in November 2020.

Accident-scene images show that the footing had migrated to the corner of the stairway footing and angled to 45 degrees. So a narrow gap between the end of the handrail and the start of the fencing left the stairway more readily accessible. Also, the "Danger" sign still is missing.

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.

Even in the absence of criminal negligence, it would be nice to know that the bad practices of demolition delay, circumventable fencing, and missing danger signs are being addressed by the MBTA. To be fair, the MBTA should be lauded for having closed the stairway before an accident happened in the absence of barriers.

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.

Hospital BAC disclosure prompts tort privacy claims

Photo by Marco Verch (CC BY 2.0)

The federal district court in Montana in December refused to dismiss an informational privacy claim against police, highlighting the space for state law to effect personal privacy protection in the United States.

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.

Police officer delivering lunch was off the job for immunity, injured fellow on the job for worker comp

Pixabay by Ronald Plett (license)

A personal injury claim against a police officer's automobile insurer highlights the different scope of what it means to be "on the job" for purposes of statutory immunity and worker compensation.

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 in furtherance of the employer's work, so qualified for neither vicarious liability nor statutory immunity. The officer injured was on a paid break, so was covered by worker compensation. The worker compensation system may recover in subrogation from the driver's private insurance.

If the driver himself had been injured, it's arguable whether he would have been covered by worker compensation, despite his "gross negligence," as the court described his driving. Under the worker compensation test, he was returning with lunch to the job site during a paid break. The causation requirement for worker comp is looser than the respondeat superior/sovereign immunity test. The anomalous result that might then pertain is that the driving officer would be liable in subrogation for a fellow-servant injury even though he was on the job for the purpose of worker compensation.

The case is Berry v. Commerce Insurance Co., No. SJC-13089 (Mass. Oct. 25, 2021).  Justice Dalila Wendlandt wrote the unanimous court opinion.

This posting was revised Apr. 1, 2024, with addition of the penultimate paragraph and revision to the preceding paragraph and headline. The original post improperly conflated the worker compensation analyses that would pertain to the injured officer and the vehicle driver.

After dog bites postman, $375k jury award fits between floor and ceiling of high-low settlement agreement

Pxhere CC0

In a dog-bites-postman case in Massachusetts, the Appeals Court in late October held that the parties' "high-low" settlement agreement was a "contract like any other" and did not bar the defendants' appeal.

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.

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

Canning Town Station in 2020
(photo by Ewan Munro CC BY-SA 2.0)

An English court last week exonerated the London Underground of liability in the death of a trespasser who fell down fire-escape stairs; meanwhile, in New England, investigation continues into the death of a Boston professor who fell from disused stairs in the Massachusetts Bay Transportation Authority (MBTA) system.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The English case is Ovu v. London Underground (Q.B. Oct. 13, 2021).  Master Victoria McCloud authored the opinion.  HT @ Gordon Exall, Civil Litigation Brief, via Private Law 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.

No duty: Court clears homeowner of liability in fatal shooting that sparked town ban on Airbnb

Not where the party was: historic Henfield House in Lynnfield, Mass.
(photo by John Phelan CC BY 3.0)

A homeowner is not liable in the shooting death of a party guest in a case that sparked a town ban on Airbnb, the Massachusetts Supreme Judicial Court ruled on June 7.

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.

'Error in judgment' jury instruction properly cuts room for doctor to escape liability for delay of surgery

Ischemic bowel in CT scan
(image by James Heilman, MD, CC BY-SA 3.0)

A doctor did not commit malpractice by awaiting test results before committing a patient to surgery for an ischemic bowel, even if permanent disability resulted from delay, the Massachusetts Appeals Court ruled before Memorial Day weekend.  The jury was properly instructed to allow leeway for error in judgment.

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.

Automatic-door failures fuel injuries, tort claims, but road to recovery in litigation can be bumpy

Pixabay by djedj

An Australian woman struck by a malfunctioning airport security door was denied recovery in April after failing to prove that the malfunction caused her injury.  The outcome strikes me as questionable, and the case is instructive of tort principles anyway.

If you travel much, as I do, you probably have passed through those one-way transparent security doors that whip open and closed to allow only a person at a time to pass.  They frighten me a bit, and I never linger on the threshold.  The plaintiff in the instant case likewise denied having paused upon egress from Wagga Wagga City Airport arrivals in New South Wales, yet was struck by one of the doors.  She complained of shoulder and back injury, requiring surgery, and the court confirmed that the impact of the door at least worsened a preexisting condition.

Arrivals at Wagga Wagga Airport
(2012 photo by Bidgee CC BY-SA 3.0 AU)

The doors were in fact malfunctioning.  There are two batteries, at different heights, of photoelectric cells that sense a person in the way and prevent the doors from closing.  The lower set were out of commission.  However, tests and maintenance on the doors showed that the non-functioning cells were not essential for safety; the higher set still kept the doors open when so much as a person's leg was in the way.  The plaintiff therefore failed to show a causal connection between her injury and the malfunction, nor any alleged misfeasance by the airport defendant, such as a failure to warn.

The outcome strikes me as questionable, because there seems to be no dispute that the 44-year-old plaintiff was struck by the door, and that that's never supposed to happen.  Even if the photoelectric cell failure cannot be blamed, the case seems well suited to res ipsa loquitur, which, to the best of my knowledge, is recognized in New South Wales common law, and is not mentioned by the court.  Maybe the plaintiff failed to plead the theory.  Or maybe this is a Palsgraf-esque scenario in which the court concealed skepticism of the plaintiff's injury.  Of 100,000 arriving passengers annually, there were no other reported incidents, the court troubled to say.

Anyway, the case reminds me of one that I use sometimes in torts class to teach punitive damages with a dash of professional responsibility.  In 2015, 61-year-old James Hausman won a $21.5m verdict against the Holland America Line (HAL) after being hit by an automatic sliding door on a cruise ship, in an incident captured on camera.

There's plenty to inform a class discussion just there.  Hausman's injury did not look too bad in the video, but traumatic brain injury is tricky.  And the court awarded $16.5m in punitive damages after hearing about 16 other sliding-door injuries on HAL ships.  The plaintiff's lawyer accused HAL of trying to save on air conditioning, which HAL denied, the ABA Journal reported.

Then the case took a turn.  In 2016, the district court threw out the verdict after revelations of spoliation.  The ugly dissolution of an employment relationship between Hausman and a personal assistant led to an undiscovered personal email account and deleted messages that cast doubt on Hausman's veracity (ABA Journal, Seattle Times).  The court ordered a new trial and clarified that there was no evidence the plaintiff's attorney was complicit in wrongdoing.  The docket suggests that the case ended in settlement later that year.

The Australian case is Gray v. Wagga Wagga City Council, [2021] NSWDC 108, 07 April 2021 (Wolters Kluwer).  Simon Liddy at HWLEbsworth published commentary.  The American case is Hausman v. Holland America Line-USA, No. 2:13-cv-00937 (W.D. Wash. 2016) (Court Listener).

State supreme court upends causation in tort law, promising plenty post-pandemic work for lawyers

"Cause and Effect" by Marina Noordegraaf CC BY-NC-SA 2.0

The high court of Massachusetts, in a 3-2 decision, has effected a seismic shift in tort law, adopting on Friday a new approach to legal causation.

The court's holding casts into uncertainty fundamental rules developed over more than a century across the full range of tort liability theories.  Years, even decades of litigation may be required to fully map out the change.

In short, the Massachusetts Supreme Judicial Court rejected the conventional rule of "substantial causation" in favor of analyzing "scope of liability" and "multiple sufficient cause," an approach counseled by the Third Restatement of Torts: Liability for Physical and Emotional Harm (2010), an influential scholarly treatise published by the nonprofit American Law Institute (ALI).  The court ordered the change for only some cases in negligence, but left open the possibility that the change would affect the whole of tort law in the Commonwealth.

Aristotle by Francesco Hayez (1811)

Cause and Effect

Almost every liability in tort law requires causation.  That is, a defendant is only liable when the plaintiff can prove that her or his injury was caused by the defendant.  But the meaning of cause has been famously elusive in law and a subject of multidisciplinary debate for millennia, spanning Aristotle's metaphysical analytics in 4th century B.C. philosophy, St. Thomas Aquinas's meditation on the existence of God in 13th century theology, and the problem of quantum superposition in 21st century physics.

Causation in law is dominated by the concept of "scientific causation," termed informally "but-for cause," and known also as "factual causation."  To recover, a plaintiff must prove causation by showing that but for the conduct of the defendant, the plaintiff would not have been injured or suffered loss.

Scientific causation goes a long way to providing a legal standard, but not all of the way.  Legal scholars have long recognized that the approach has shortcomings, especially in cases of "overdetermined" causation.  That is, the test sometimes fails to indicate causation in the presence of multiple culpable defendants.  The test also sometimes indicates causation for one defendant, of many, whose culpability is so minimal as to be exonerating.

Image by State Farm (CC BY 2.0)

The classic example of improper failure of causation is a plaintiff's home consumed by two converging fires.  The multiple causes of destruction are said to "overdetermine" the harm.  The jury might conclude that but for either fire, the home would have been consumed anyway by the other fire.  Thus, it seems, neither fire is a but-for cause of the destruction.  At best, it is difficult, if not impossible, for the jury to determine whether either fire was a but-for cause.  Yet it cannot be right that the arsonist who started only one of the fires escapes civil liability.  If either fire by itself would have destroyed the home, then each fire is a "sufficient" cause of the destruction, and that standard supports liability.

Pixabay by Gerd Altmann

In rarer cases, but-for causation indicates causation when common sense suggests otherwise.  Imagine that science one day so masters the complexity of weather systems that it can be proved that but for the beating of a carpet on a Cape Town balcony, a hurricane would not have struck New York ("the butterfly effect," like in time travel, but not really).  The carpet beater might be a scientific cause of the hurricane, but we would be reluctant to say that the carpet beater is responsible for the hurricane.  The principle can be extrapolated to physical systems known to contemporary science, such as human pathology.  Consumption of a single cigarette might be proved to have catalyzed cancer in the plaintiff, alongside other causes, such as genetic predisposition and a history of pipe smoking.  But we might not agree that the proven catalysis by itself is a sufficient reason to charge the cigarette seller with civil liability for the whole of plaintiff's suffering.

To better calibrate the rule of causation to tort liability, American tort law in the 20th century developed the concept of "substantial causation," sometimes, if at risk of imprecision, called "legal causation" or "proximate causation."  Liability came to require that the defendant's conduct was a scientific cause and a substantial cause of the plaintiff's injury, or, in rare cases fitting the fire paradigm, a substantial cause indivisible from other sufficient causes, together constituting a scientific cause.

Pixy (CC BY-NC-ND 4.0)

A Substantial Disagreement

The rule of substantial causation attracted adherents and opponents.  Adherents said that the concept worked well, because it is understandable to ordinary people, especially jurors.  Tort law is about enforcement of the unwritten social contract.  We, ordinary members of the society, have a shared intuition about when a scientific cause is as powerful as a home-wrecking fire, justifying declaration of a civil wrong.  Likewise, possessed of common sense, we can recognize a trivial scientific cause as an insufficient basis to impose liability.

Precisely so, opponents responded.  Substantial cause invites a jury to disregard proof of scientific causation and to make moral judgments about responsibility.  The rule employs the hopelessly amorphous standard of substantiality to allow juries and courts to make policy and conceal their hubris with the aroma of equitable legitimacy.

The policy-making potential of legal causation was not lost on lawyers and jurists, many of whom embraced it as socially desirable.  One can argue that civil juries, guaranteed by the Seventh Amendment and heralded by Alexis de Tocqueville, if mocked by Mark Twain and Dave Chappelle, are the inspired mechanism with which America democratically injects public policy into the civil trial.

Pixy (CC BY-NC-ND 4.0)

And although causation devolves to the jury as a question of fact, a court has the power to obviate the need for an expensive jury trial when a question cannot be decided but one way by ordinary minds.  In such circumstances, the question is said to be decided as a matter of law.  Thus, substantiality was termed "legal causation" and offered grounds for a judge to dismiss a case, rather than let the liability question reach the jury.

Judges might be more or less bold or overt in how they exercise power through legal causation, depending on how their jurisprudential philosophies regard the propriety of judicial policy-making.  In a highly regarded paper in 1983, economically minded scholars William Landes and Richard Posner suggested that if the facts of a case point erroneously toward a politico-economically inefficient result, "cause comes to the rescue."  In other words, the rule of legal causation empowers the court to direct the outcome and "the optimal result to be achieved."  (Both Landes and Posner are affiliated with the University of Chicago Law School, known for its commitment to law and economics; Justice Kafker earned his law degree there.)

A Third Way

Substantiality detractors got the better of the argument when the ALI drafted the Third Restatement in the 20-aughts.  The authors did not take policy and pragmatism wholly out of the judicial process, but sought to abate confusion about where they reside by moving them.  The Third Restatement approach moves "legal causation" from the "cause" element of negligence into a new inquiry, "scope of liability."  The similarly ancillary function of the "duty" element of negligence also was moved and merged at this new address, though that's a blog post for another day (and a question left open by the Massachusetts ruling).  The new approach means to give judge and a jury a place to circumscribe defendant liability exposure without the semantic gamesmanship arguably required by the conventional analysis of causation and duty.

The restatement project is often criticized for seeking to progress the law rather than merely restate it.  The line is finer than it might seem.  On this point, one certainly can say that the authors intended to change the law of the states.  At the same time, it's equally defensible to say that the authors sought to help the states to clarify the law, that is, to better state, or restate, what they were doing already.

Pulmonary embolism by Baeder-9439 (CC0 1.0)

A Tale of Two Causes

The case before the Court in Massachusetts involved the death of a patient and two instances of medical malpractice.  Plaintiff Laura Doull died from complications of chronic thromboembolic pulmonary hypertension, or CTEPH.  The jury determined that a nurse practitioner was negligent in failing to diagnose Doull with a pulmonary embolism in 2011, and that Doull's doctor was negligent in supervision of the nurse practitioner.  However, the jury also determined that neither instance of negligence was a but-for cause of Doull's death from CTEPH; in other words, Doull's death was a consequence of her illness and not of anything the nurse practitioner and doctor did, right or wrong.  The defendants were not responsible.

On appeal, the plaintiff argued, among other theories, that the trial judge had not instructed the jury properly.  The trial court had instructed the jury on but-for causation, but not on substantial causation.  All five justices who heard the case for the Supreme Judicial Court affirmed the judgment for the defendants.  The court was unanimous in holding that the plaintiff's case must fail, because the jury determined that but-for causation failed.  First, there was no need for the jury to consider legal causation when there was no factual causation.  Second, this case was not about two fires converging on a house.  Though a consequence of two actors, there was only one misdiagnosis.

Justice Kafker

In a majority opinion authored by Justice Scott Kafker and joined by Chief Justice Kimberly Budd and Justice Elspeth Cypher, the court reached the sweeping conclusion that the Commonwealth adopts the Third Restatement approach to causation.  The change makes no difference in the instant case, because but-for causation still is required under the Third Restatement approach, in fact is the nub of what remains in the causation element, legal cause having been removed to scope of liability.  The concurrence, authored by Justice David Lowy and joined by Justice Frank Gaziano, would not have changed the Commonwealth's approach to causation, but would have ruled that the omission of the substantiality instruction was harmless error.

The plaintiff's argument predicated on failure to instruct on substantiality played into the majority's position on the Third Restatement.  Recall that critics of substantiality contend that it invites jurors to disregard scientific evidence and reach a liability determination despite the failure of but-for causation.  Because but-for causation was required, and the jury found it absent, the plaintiff's plea of error suggests that an instruction on legal causation should have been permitted to obfuscate the jury's view of factual causation.  "What originated as an exception to but-for causation would swallow the rule," the majority wrote.  The old approach "blurred the line between factual and legal causation," indeed, "conflates and collapses the concepts of factual and legal causation." 

Image by johnny-automatic (CC0 1.0)

In most cases, the court majority concluded, the but-for instruction on causation alone is sufficient, even when there are multiple potential causes.  "There is nothing preventing the jury from assessing the evidence and determining which of the causes alleged by the plaintiff were actually necessary to bring about the harm, and which had nothing to do with the harm," the majority reasoned, and the jury did just that in the instant case.  As to the paradigmatic two-fire scenario, the court wrote that

in the rare cases presenting the problem of multiple sufficient causes, the jury should receive additional instructions on factual causation.  Such instructions should begin with the illustration from the Restatement (Third) of the twin fires example so that the complicated concept can be more easily understood by the jury.

After the illustration, the jury should be instructed, "A defendant whose tortious act was fully capable of causing the plaintiff's harm should not escape liability merely because of the happenstance of another sufficient cause, like the second fire, operating at the same time."  The jury should then be instructed that when "there are two or more competing causes, like the twin fires, each of which is sufficient without the other to cause the harm and each of which is in operation at the time the plaintiff's harm occurs, the factual causation requirement is satisfied."

In such cases, where there are multiple, simultaneously operating, sufficient causes, the jury do not have to make a but-for causation finding.

(Footnote and citation omitted; paragraph breaks added.)  The majority also noted, likewise as counseled by the Third Restatement, that a jury may be admonished to disregard trivial causes to redress the rare problem of a false positive in but-for causation.

Justice Lowy

Cross Concurrence and Tort Retort

The concurrence disagreed sharply over the abandonment of substantial causation, and the text of the opinion hints at a heated debate.  "Today the court abandons decades of precedent in an attempt to clarify confusion that does not exist," Justice Lowy opened.  "Abandoning the substantial contributing factor instruction in circumstances where there is more than one legal cause of an injury will, in my view, inure to the detriment of plaintiffs with legitimate causes of action while not clarifying the existing law of causation."

Substantiality has long been the rule for clarity in cases of multiple potential causes, Justice Lowy explained.  It was the approach of the Second Restatement, published in 1965, and before it, the First Restatement, published in 1939, and appeared in Massachusetts case law as early as 1865.  

The test has endured because it works, Justice Lowy reasoned.  The "counterfactual framing" of the but-for test, compelling the jury to imagine a reality in which a defendant's conduct did not occur, paints only half a picture and risks misleading the jury.  In multiple-cause cases, counterfactuals "invite the jury to get caught up in speculative combinations of 'what if' and 'if only,'" Justice Lowy wrote.  "In the sorts of byzantine fact patterns that often arise in medical malpractice, toxic tort, and other tort cases with multiple causes, an instruction on but-for causation provides defendants with tools unavailable to plaintiffs," such as blaming a party not on trial (civil "Plan B").

Pixabay by b0red

The substantiality test "focus[es] jurors' attention" inversely: "it frames causation to have a juror start by considering what actually happened, and whether the defendant's actions played a part in producing the result."  The instruction "focuses the jurors ... directly on what ought to determine legal responsibility: the conduct of the parties."

The concurrence accused the majority of "abandon[ing] what has been our steady and successful practice" of instruction on substantiality.  "Why the sudden about-face?" the concurrence asked rhetorically, then answered: "Only one thing has changed: the Restatements."  In the majority's reasoning, the concurrence observed, "citations to our cases drop off.  Instead, the court replicates an abstract and academic discussion of the problems that the Restatement (Third) of Torts found with the standard" (footnotes omitted).

In footnotes, the concurrence suggested that any confusion results from the Third Restatement's cross-jurisdictional comparison, which omits Massachusetts, and observed, citing Hawaii, that other states have continued to test for substantiality in the decade since the Third Restatement appeared.

The majority responded in its footnotes.  The Third Restatement approach has not been adopted nowhere.  The Iowa Supreme Court adopted the Third Restatement in 2018, the majority noted.

Pixy (CC BY-NC-ND 4.0)

Referencing judicial confusion over multiple causes, the majority noted: "For an example of this confusion, look no further than the concurrence."  The majority disputed the concurrence's conclusion that the Third Restatement approach favors defendants.  And the majority rebutted the concurrence's assertion that the substantiality test has been working: "Beyond the concurrence's own appraisal of the situation, it is not clear what evidence, empirical or otherwise, there is that the use of the standard has been 'steady and successful.' ....  Indeed, when forced to decide what standard to use, the experienced and capable trial judge in this case observed, 'Well ... I know that the law has been somewhat confused in some people's eyes ....'"

The majority took umbrage at the concurrence's suggestion that the court would change Commonwealth law simply to pursue the lead of the Restatement.

The concurrence minimizes the numerous extensive critiques of the substantial factor test....  The concurrence also suggests that we are somehow simply following academic fashion in adopting the Restatement (Third).  This statement ignores that the substantial factor test originated with the Restatement and that the case law the concurrence cites ... has demonstrated great respect for the development of the law as reflected by the Restatement of Torts....  We turn to the Restatement not because it is fashionable to do so, but because the American Law Institute has struggled greatly with the complicated question of causation in negligence cases and is constantly trying to improve the legal standard in this area, including recognizing its own errors in this regard.

Justice Kafker is a member of the ALI.

"The Restatements are owed respect," Justice Lowy retorted.  "Our cases, however, deserve more."

But What About

I'm not a fan of change.  The worst part of all of this for me is that from here on out, I am going to have to teach Massachusetts torts students two versions of attenuated duty and causation, which already is the longest and hardest chapter of the textbook.  Am I going to get more credit-hours to cram it all in?  No.  Am I going to get paid more to prep more?  Definitely no.  And then there are the unanswerable questions.

Asbestos shingles by Mary Lotus (CC BY-SA 3.0)

The instant case arose in medical malpractice, though the majority extended the new causation rule through negligence.  Or most of it.  The court explicitly declined to apply the new rule in cases of toxic torts, at least for now.  Toxic tort cases, such as asbestos claims, are similar to multiple-sufficient-cause cases in that it is difficult, if not impossible, for a jury to trace a plaintiff's illness to one causal agent, one asbestos producer, even while it seems likely that defendants, asbestos producers, collectively are responsible.

In a very few jurisdictions, this problem has led to a controversial approach to liability based strictly on a defendant's share of the product market.  Massachusetts has not gone that far, but has loosened the causation requirement, essentially allowing substantiality to overwhelm scientific causation.  That approach becomes problematic, now, in light of the court's abandonment of substantiality.

Because the but-for test "seem[s] ill-suited" for toxic-tort cases, the majority opined in a footnote:

It is simply not clear whether the concerns we have with the substantial contributing factor test justify eliminating it in these cases.  Given the volume of these cases, their great importance, and the idiosyncrasies that make them unique with regard to factual causation, it would be unwise to apply our holding to these cases as well without first having the benefit of full briefing and argument.  Our hesitance, however, should not be taken as a continuing endorsement of the substantial factor approach in toxic tort cases given the concerns we have expressed today.

Pot, kettle, the concurrence wrote.  "For all its purported confusion, the [substantiality] standard continues to work well in toxic tort cases—except for the fact that the court also invites in a footnote overturning what it otherwise praises."

In fact, the problem is bigger than toxic torts, and bigger than a law professor's woes.  The problem of this decision's scope extends to all of tort law.

Remember, a plaintiff in civil litigation must prove causation to recover.  That's not a rule of only medical malpractice, nor a rule of only negligence.  It's a rule of all torts.  All torts require causation.  The elements of conventional negligence, duty, breach, causation, and injury, are the elements of all torts, stripped of factual context, unexcepted by special circumstances: the fundamental particle components of a compensable civil wrong.  

Photo by Phil Roeder (CC BY-NC-ND 2.0)

Thus, again in a footnote, the concurrence hinted at a parade of horribles: "[A]dopting a new approach to cause-in-fact issues in torts will encourage litigants to press for its application in other areas of the law beyond negligence, such as commercial disparagement, defamation, and false representation."  I earlier mentioned an arsonist; basic intentional torts require causation, too.  The problem of causation is so not confined to negligence that the concept of "foreseeability" is used loosely to flesh out legal causation and, simultaneously and alternatively, to locate and describe the outer bounds of the civil liability system in total.

So, tort lawyers, on your marks....

The case is Doull v. Foster, No. SJC-12921 (Feb. 26, 2020).  Justice Dalila Wendlandt and Justice Serge Georges, Jr., were sworn into the court in December 2020 and did not participate in the decision.