Court holds no duty/no cause in rape case against state

Sovereign immunity and affirmative duty were at issue in a state tort claims act case of tragic facts decided 3-2 upon rehearing in the Massachusetts Appeals Court on April 12.  Pedagogically, the case well illustrates the famous interchangeability of duty and causation, my favorite articulation of which appeared in then-Circuit Judge Scalia’s footnote 4 in Romero v. NRA, 749 F.2d 77, ¶ 10 (D.C. Cir. 1984).  On the nuts and bolts, the case well reiterates and demonstrates the strict application of the no-affirmative-duty rule under the state tort claims act, even in a famously progressive jurisdiction.

Plaintiff Jane J. alleged rape by a male patient while they both occupied the recreational TV room of a locked unit of the Tewksbury State Hospital.  The court engaged solely with the question whether failure to segregate male and female patients in the rec room legally caused the rape under the state tort claims act.  Holding no cause, the court, per Justice Diana Maldonado, affirmed summary judgment for the Commonwealth.

Here illustrated in 1907, the Tewksbury State Hospital is on the National Register of Historic Places.

The classic American case of (no) affirmative state duty for law students studying due process in constitutional law is DeShaney v. Winnebago County, 489 U.S. 189 (1989).  The U.S. Supreme Court rejected liability for state failure to intervene and prevent fatal child abuse.  The case essentially restated the peculiarly American “no duty” doctrine of common law for the context of “constitutional tort.”  Thus the rule of no affirmative duty manifests across the contexts of common law, due process, and sovereign immunity.  The doctrine of federal law is replicated in the states, though may be varied by statutory interpretation when claims are controlled by state waivers of sovereign immunity in tort cases.  In this Massachusetts case, statutory interpretation of the state claims act molded the question into one of causation—though the DeShaney question nonetheless constitutes the heart of the inquiry.

Arguments focused on state claims act Mass. Gen. L. ch. 258, § 10(j).  In relevant part (a list of exceptions omitted here), the section maintains sovereign immunity against “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”  Thus the problem of affirmative duty is phrased in terms of “original[] cause[],” and the appeals court set out to determine whether non-segregation could be said to have been an “original cause” of the rape.

In the court’s interpretation, original cause is “strict,” requiring “‘an affirmative act [not a failure to act] … that creates the “condition or situation” that results in harm’” (quoting precedent; court’s added text; my italics).  The court recounted a series of cases rejecting recovery under § 10(j), including one case that held state lifeguards having negligently abandoned their posts was not the original cause of a drowning.  That result pertained even though the argument for an intact causal chain was stronger for lack of an intentional and criminal intervening actor.  Jane J.’s claim could not survive such strict examination.

Justice Gregory Massing, joined by Justice Peter Rubin, filed a vigorous dissent predicated on special relationship duty arising from involuntary commitment, or alternatively, on the merits, arguing in the latter vein that the “hospital ‘materially contributed to creating,’ and did not merely fail to prevent, the condition that resulted in the plaintiff’s being attacked in the common room.”

The case is Jane J. v. Commonwealth, No. 15-P-340 (Mass. App. Ct. Apr. 12, 2017) (Justia).

Book Review: The Experimental Society by Marshall S. Shapo

Catching up on reading since the close of the spring semester, I just finished Professor Marshall Shapo’s The Experimental Society (Transaction Publishers (now Routledge) 2016) (385 pp.) (publisher, Amazon, SSRN abstract, author interview) (385 pp.).  I highly recommend the book, which is fit for general audiences, besides lawyers and law students.

The experiment of the book’s title refers loosely to the American mix of free market and tort litigation, which works out the rules for what is allowed and not allowed in our society.  The dynamic is most plain in product liability.  A manufacturer brings to market a new and useful product, such as asbestos.  Later it’s learned that the product poses a grave risk to human health.  In extracting accountability for physical injury, the tort system regulates the continued use of asbestos.

What this system ill accounts for is its human toll.  The tort system is a balancing act.  Extreme regulation (vetting?) of everything new—a drug, a car, or a method of cleaning floors—would make research and development prohibitively expense and smother innovation.  Injury and death would result from drugs never developed, or safety innovations never deployed.  At the other extreme, diminished accountability would sanction the prioritization of profit over life.

Civil conflict resolution—our litigation system—threads, marks, and forever revises the boundary between right and wrong.  But our dependence on that system presupposes optimal, if not ideal, efficiency.  In reality, our tort system is rife with inefficiencies.

The starkest of those inefficiencies might be time.  I just takes too long to reach a conclusion in U.S. litigation—months, years, and sometimes decades.  While the wheels of justice grind, injured persons are not made whole, and new victims are claimed.  Another inefficiency is “transaction costs,” that is, the cost of dispute resolution, which is compounded by time.  Our drive for just and precise outcomes means that lawyers, experts, and litigation soak up a disproportionate amount of resources—if a matter can be litigated at all—re-victimizing the injured plaintiff and penalizing a defendant that might or might not have done anything wrong.

But inefficiencies get worse still, as the tort system tends to perpetuate socio-economic inequalities and irrational discriminations.  A poor community, less able to accomplish political organization or campaign contribution, cannot finance tort litigation to combat the impact of industrial pollution as effectively as a wealthy community can.  Even after wrongdoing is established in tort litigation, awards turns on loss, meaning that the working poor and the unemployed have less to recover than the injured doctor or lawyer.  These socio-economic effects exaggerate systemic prejudices of race and gender.  Moreover, bias can be perpetuated in fact-finding through judge and jury in a case.  And bias finds its way even into law itself, such as in liability standards that favor the alienation of real property—and therefore those who can afford it.

The Experimental Society examines the real social impact of our litigation system as hall monitor.  Shapo engages briefly with the familiar territory of product liability for asbestos and cigarettes.  But with that historical foothold, the book ranges widely to examine contemporary risks, such as bisphenol A (BPA) and vaping.  Shapo moreover expands his inquiry well beyond straightforward product liability.  He engages at length with environmental contamination, examining fracking, oil spills, and nuclear accidents.  He considers threats to the food supply, such as mad cow disease with its mysterious pathology.  Shapo also thinks expansively about experiment, embracing in his analysis both the deliberate experimentation of human clinical trials and the inadvertent yet ultimate experiment of climate change.

This encyclopedia of troubling experiments under way in our world delineates one axis of Shapo’s inquiry.  Meanwhile he draws a second axis, which traces the anatomy of risk and rules.  About the first half of the book explicates case studies to the end of broadly defining risk and experimentation.  The latter half of the book dives deep into dispute resolution, considering how this broad range of experimentation in our society has generated various standards, rules, and remediation systems in workplace safety, consumer protection, and mass tort litigation.  Shapo’s end-game, reached in the final chapters, considers the interplay of our experimental society with cultural and moral factors—for example, our values with respect to personal responsibility, risk-utility economics, and technological determinism.

As the back cover of The Experimental Society reminds us, Marshall Shapo—the Frederic P. Vose Professor at Northwestern University Law School, and, disclosure: my lead co-author on the casebook Tort and Injury Law, and a treasured mentor—has been writing about injury law for half a century.

Yet however much the product of an elder statesman in tort law, The Experimental Society is boldly contemporary.  The book is a one-stop shop for anyone who wants to tour the leading edge of risk, health, and law.  The relevant science and technology, business and economics, and law and policy all are laid out in plain language to engage any reader interested in the human condition.

The Experimental Society disappointed me in one respect only: it offers no answer.  The reader should be warned that the book ends with only the urgent question it raises, where the balance should be struck in our tolerance of risk.  This is not The Secret, with the promise to invigorate your fortunes; nor Hidden Figures with its revelatory moral tale; nor the latest blueprint to fix our democracy.  The Experimental Society isn’t selling answers.

Though I was disappointed not to find at the book’s end that Shapo’s wealth of experience could map out The Better Way, that expectation was foolhardy on my part.  However skilled a researcher and writer, Shapo is after all a teacher.  He recounts in the book a Socratic game he played with his eight-year-old granddaughter to demonstrate for her, of all things, Ken Feinberg’s predicament in compensating economic loss after the BP oil spill.  In good American fashion, the girl favored compensation precisely and fully for everyone who suffered injury.  Shapo didn’t tell her that that, ultimately, would be impossible; he showed her.

And that’s what The Experimental Society does: it shows us a problem that is inherent in the human social condition.  It turns the problem over, so we can see it from every angle.  Risk, it turns out, is not antagonistic to life; risk is an indispensable condition of life.  Risk yields reward, and reward makes life worth living.  How do we manage that risk to maximize reward, and what costs are we willing to tolerate in its pursuit?  Shapo knows that that’s an ancient problem—older than Deuteronomy 19:5.  So in The Experimental Society, he does the best a teacher can: to restate an eternal question for a new age.

Don't take transparency for granted; FOIAs are always under fire

The 91st General Assembly of the state of Arkansas is winding down; the deadline to file new bills passed two days ago.  Unexceptionally among the states, this flurry of furious lawmaking always entails a range of assaults on the state freedom of information act (FOIA).  In fact, this spring season after the bill deadline is especially hazardous for transparency advocates, because pending bills and so-called "shell" bills, filed but devoid of content, can be quickly amended and rushed through committee with monstrous consequences.  The Arkansas Project, which favors transparency in state government, has written about the FOIA activity in this session, lately here and here.

It happens that this year also has seen the publication of the sixth edition of the treatise, The Arkansas Freedom of Information Act (U. Ark. Press), on which I am privileged to be co-author with Professor Robert Steinbuch and lead author John Watkins, professor emeritus.  Steinbuch has been especially vocal in the media on FOIA, making the case for transparency and holding legislative feet to the fire of public accountability, lest legislators undermine the law.  He penned in jest a cartoon, which he's given me permission to publish here:

Last year the federal FOIA turned 50, and the Swedish Press Freedom Act, oft regarded as the first FOIA in the world, turned 250.  This year, alongside its contemporaries in many states, the Arkansas FOIA turns 50.  Amid all the changes of our technological and populist age--no matter whoever is wiretapping whom--let's hope that Steinbuch's cartoon is only a lampoon at legislators' expense, and not a portent for government transparency and accountability at any level.

Lawyers, read carefully: 'Presentment' held defective under state tort claims act

Flickr photo by bradlee9119 per Creative Commons license

A cautionary tale from the Massachusetts Appeals Court yesterday, per Justice Peter Sacks, reminds lawyers to read statutes carefully.


Plaintiff was among five persons (perhaps family, based on the names of four) injured in a Massachusetts Bay Transportation Authority (MBTA) bus accident.  Her lawyer filed a claim with the "MBTA Claims Department," the transmittal asking that the claim be referred to the appropriate authority.  The MBTA made settlement offers to the five, and only Plaintiff turned down the offer and opted to pursue litigation instead.

The Massachusetts Tort Claims Act requires presentment of a claim to the "executive officer" of the defendant state entity.  The trial court let the difference slide under a statutory exception allowing for correction of defective presentment upon the executive officer's actual knowledge of the claim.

The appeals court reversed, ruling that the exception must be construed narrowly.  Neither the attorney's request to forward nor logical inference was sufficient.  The court awarded the MBTA summary judgment.

The court acknowledged that the ruling is "a harsh result," especially considering that it probably mattered not at all to the MBTA claims process whether its executive received notice.

The case is Coren-Hall v. MBTA, No. 16-P-300 (Mass. App. Ct. Feb. 23, 2017), here at Mass.gov, here at Mass. Lawyers Weekly, and here at Justia.

[UPDATE, Dec. 17, 2018: In a December 2018 negligence case against the MBTA under the state tort claims act, the Supreme Judicial Court affirmed "that the MBTA had waived the affirmative defense of inadequate presentment by failing to plead it with the required specificity and particularity." The case is Theisz v. MBTA, No. SJC-12559 (Mass. Dec. 12, 2018).]

Anti-SLAPP helps free speech vanquish another foe! But is that always how it works?

The Massachusetts Supreme Judicial Court (SJC) has rejected a defamation claim connected with the Deepwater Horizon oil spill on anti-SLAPP grounds.  The case is Cardno ChemRisk v. Foytlin, No. SJC-12082 (Feb. 14, 2017).

Environmentalists Cherri Foytlin and Karen Savage authored an op-ed for a Huffington Post blog in which they accused scientific consulting firm Cardno ChemRisk, LLC, of “a long, and on at least one occasion fraudulent, history of defending big polluters using questionable ethics to help their clients avoid legal responsibility for their actions.”  With respect to “fraud[],” the writers had alleged that ChemRisk accepted payment “to discredit research” that would have been probative of liability in the pollution case that became the basis of the movie, Erin Brockovich. 

“Anti-SLAPP” motions, allowed in 28 states and D.C. according to the Digital Media Law Project, are pretrial, usually dispositive motions that allow defendants to have the court take an early look at the merits of a tort lawsuit, with an eye to dismissal.  A “SLAPP” is a “strategic lawsuit against public participation” and refers to a lawsuit, often but not necessarily defamation, that is brought more for the purpose of miring an opponent in the burdensome transaction of litigation than for the purpose of redressing wrongful injury.

A darling of the media defense bar, anti-SLAPP is heralded as a contemporary savior of the right to petition and protest.  Some—me included—are a good deal more skeptical, finding that anti-SLAPP is often just one more hammer in the well-heeled, corporate-defense-bar toolbox to pulverize a plaintiff who might have a legitimate grievance but needs discovery to prove it—and furthermore a disincentive to media defendants to mediate disputes or make reasonable settlement offers.  In fact, media defendant victorious on anti-SLAPP motions often are entitled to have their attorney fees paid by the plaintiff, a remarkable departure from “the American rule” norm in U.S. litigation.

The terms of anti-SLAPP statutes vary considerably with state law.  The Massachusetts anti-SLAPP law requires that the defendant have been exercising its “right to petition,” an allusion to the First Amendment.  But the scope of petitioning activity contemplated by the statute is much more permissive than the First Amendment doctrine.  The statute embraces “any statement reasonably likely to enlist public participation in an effort to effect” governmental “review of an issue.”

As the court described the Foytlin blog post, it was “part of the defendants’ ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and it closes with an implicit call for its readers to take action.”  In particular, ChemRisk complained on appeal that the bloggers were not advocating on their own behalf.  The SJC, per Justice Lenk, found the statute not so constrained.

This might have been the just outcome in this litigation.  I don’t pretend to know better.  The court wrote an excellent explication of the Massachusetts anti-SLAPP statute and how it works procedurally, as well as its policy purpose.  The court characterized the legislature’s purpose as “primarily to protect ‘citizens of modest means’ who speak out against larger, more powerful entities.”  According to a footnote, “Foytlin is a mother of six supporting herself with modest monthly stipends; she lives in Louisiana less than fifty miles from the affected portion of the Gulf Coast shore.”  I suppose ChemRisk is a brutal, evil company, like Spiga Biotech in Syfy TV’s Incorporated.  The opinion doesn’t say. 

I have no warm and fuzzy feelings for ChemRisk, nor for BP and its partners in oil drilling.  But before we sing another round of hymns in knee-jerk praise of anti-SLAPP legislation, let’s at least acknowledge that the statute nowhere turns on the relative social power of the parties, or on their wealth, or on their parental or corporate status.

Media Goliaths already have a thousand and one ways to win a defamation lawsuit, even upon publication of falsity and refusal to update, investigate, or correct.  Sometimes plaintiffs are just Davids whose lives have been up-ended by malicious allegations calculated to advance an agenda regardless of the collateral damage.  I know what I’m talking about.  Cutting off a plaintiff at the knees and chilling the right to petition of truly aggrieved individuals is hardly an effective response to the very real problem of litigation transaction costs.  Let’s not be too quick to congratulate ourselves on another win for free speech.