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

Monday, October 18, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, June 28, 2021

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.

Monday, September 16, 2019

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

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

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



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

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

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

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

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

Friday, September 13, 2019

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

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

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

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

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

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

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

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

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

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