Court refuses to dismiss Harvard in student-suicide suit

The Massachuetts Superior Court, per Judge Michael D. Ricciuti, denied Harvard University's motion to dismiss a negligence claim brought by the parent of a student, Luke Tang, who committed suicide on campus in 2015.  The case comes in the wake of a 2018 Massachusetts Supreme Judicial Court (SJC) decision refusing to allow the Massachusetts Institute of Technology (MIT) to be held responsible for a student's suicide.

Luke Tang lived at Harvard's Lowell House.  (Photo by Carrie Anderson
CC BY-SA 2.0)

In the 2015 case, Nguyen v. MIT, discussed here, the SJC ruled that the university-student relationship does not support a duty in tort law akin to the custodial relationship between a parent and child, or custodian and dependent.  That ruling was consistent with historic and enduring common law norms, which hold that a person's intentional suicide, in some jurisdictions a crime, interrupts the chain of duty and causation that would link the death to any earlier-in-time carelessness.

However, the SJC left open the possibility that a university could be responsible for a suicide if the decedent had been in a "special relationship" with the defendant.  "Special relationship" is a term of art in tort law, referring to the very relationships in which public policy supports a person's expectation of care from another.

In the instant case, Tang v. Harvard College, plaintiff seeks to pin liability on Harvard and its employees through that very allowance for special relationships.  As reported by the Harvard Crimson last year, Tang was known to Harvard as a suicide risk.  Tang had been transported to a hospital after a suicide attempt freshman year.  When he returned to school, he signed an agreement with Harvard that he would stay in counseling with Harvard mental health staff.  Returning to school after the summer, though, Tang failed to keep his appointments, and the complaint alleges that Harvard failed to follow up.

Special relationships in tort law can be created when a medical professional undertakes care of a patient, or when any person voluntarily takes on the responsibility of caring for another, which can be signified by action or contract.  Tang's theory of special relationship resonates in those ways, considering the counseling function of Harvard staff and the agreement that Tang signed with Harvard.

Superior Court Justice Michael D. Ricciuti found sufficient basis to distinguish Nguyen.  Justice Ricciuti wrote, "Harvard's argument to dismiss this case reduces Nguyen to a check-box, and that once a university checks one of the three boxes—a protocol, or if there is none, clinical care, or if that is refused, reaching an emergency contact—its duty ends regardless of how well or poorly the university fulfils its duty. That interpretation cannot be correct."

Justice Ricciuti is himself a 1984 graduate of Harvard Law.  A native of Quincy, Massachusetts, he was in private practice and served as federal prosecutor before being confirmed to the bench.

The case is Tang v. President and Fellows of Harvard College, No. 18-2603 (Mass. Super. Ct. Sept. 9, 2019).  Hat tip @ Massachusetts Lawyers Weekly (pay wall).  Read more at The Harvard Crimson.  For a short time, I will park a copy of Justice Ricciuti's ruling here.

A documentary film about Luke Tang, Looking for Luke, seeks to raise awareness of mental health problems affecting young people.  Here is the trailer.

Conn. adopts alternative liability in mill-fire suit against teen smokers

The Connecticut Supreme Court adopted alternative liability in a case seeking to hold three smoking teens responsible for a vacant-mill fire.  The case is Connecticut Interlocal Risk Management Agency v. Jackson, No. SC-19946 (Conn. Sept. 17, 2019).  Here are the facts from the court opinion:

At approximately 1 a.m. on June 2, 2012, the defendants, all of whom were teenagers at the time, entered an abandoned mill located in the town. Once inside, the defendants proceeded to explore the multistory structure while drinking alcohol and smoking cigarettes. Each of them smoked approximately five cigarettes, and each discarded the cigarette butts by tossing them onto the wooden floor of the mill without extinguishing them.  The defendants left the mill at approximately 1:45 a.m.  By about 2:20 a.m., the property was engulfed in flames, and the Somers Fire Department had been dispatched to the scene. The fire destroyed both the mill and the sewage line.

Law students usually encounter “alternative liability” in the classic California case, Summers v. Tice, 199 P.2d 1 (Cal. 1948).  This multiple-liability concept allows a plaintiff to charge multiple defendants with responsibility for a wrong without establishing that any one of them was in fact responsible.  In other words, the doctrine engages a fiction as preferable to letting all defendants off the hook.

Beaver Creek quail hunting (Torrey Wiley CC BY 2.0)

In Summers, plaintiff was struck in the eye by shot as his two fellow hunters fired at quail.  It could not be determined to a preponderance of the evidence, i.e., more than 50% likelihood, which of the hunters actually fired the shot that struck the plaintiff.  But because both bore equal moral culpability under the circumstances, relative to the position of the plaintiff, it makes more sense to hold them both liable then to let both prevail.  A little shy of that result, technically, the actual effect of alternative liability is to shift the plaintiff’s burden to prove a defendant’s responsibility to a burden of each defendant to prove non-responsibility.

Alternative liability, as articulated in the Second Restatement of Torts and the Court (quoted here), pertains when: (1) “all of the defendants acted negligently and harm resulted,” (2) “all possible tortfeasors have been named as defendants,” and (3) “the tortfeasors’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.”  Alternative liability is a lawyer-at-cocktail-party favorite, but few cases have facts that can measure up to this stringent test.

Alternative liability had ramifications in the later development of narrow but important product liability doctrines, in cases in which plaintiffs struggle to link a single manufacturer among many with a particular injurious product—think in terms of a dangerous pesticide containing a mix of chemical compounds, each purchased from various sellers.  Some extension of the doctrine has been controversial in the scholarship and ill received in the courts, insofar as product liability is strict, that is, not arising upon proof of any legal or moral fault by a defendant seller.  It can seem, then, that strict product liability effectively penalizes participation in the marketplace.  Add to that the fiction of alternative liability, and it can be just too much for the conscientious economic conservative.

HT @ TortsProf Blog.  Images, by Jim Michaud, from the 2012 mill fire:

EU court rules for Google, narrows French 'right to be forgotten' order to Europe

In the latest battle of the feud between Google and the French data protection authority (CNIL), the Court of Justice of the European Union ruled that the CNIL's "right to be forgotten" order should be limited to internet users in Europe.  However, the court did not rule out the possibility of a worldwide order if the facts warrant.

The court wrote:

[T]he right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality....  Furthermore, the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world. 

While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679 [GDPR], struck a balance between that right and that freedom so far as the Union is concerned ... it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union.

"Proportionality" is a core principle of EU human rights law when regulation collides with individual rights, or, as here, state power is implicated to favor one individual's rights over those of others.  The same principle also constrains supra-national authority over member states.

The case arose from a CNIL fine of Google.  The French authority had ordered Google to de-list search results to protect certain individuals' privacy under the "right to be forgotten," or "right to erasure," when those individuals were searched by name.  "De-listing" or "de-referencing" search results is the front line of right-to-erasure court challenges today, though the specter of erasure orders that reach content providers directly looms on the horizon.

Google complied with the CNIL order only for European domains, such as "google.fr" for France, and not across Google domains worldwide.  Google employs geo-blocking to prevent European users from subverting de-listing simply by searching at "google.com" (United States) or "google.com.br" (Brazil).  Determined users still can beat geo-blocking with sly technocraft, so CNIL was dissatisfied with the efficacy of Google's solution.  Undoubtedly, a dispute will arise yet in which the CNIL or another European data protection authority tests its might with a more persuasive case for global de-listing.

The case is Google, LLC v. Commission Nationale de L’informatique et des Libertés (CNIL), No. C-507/17 (E.C.J.), Sept. 24, 2019.  Several free speech and digital rights NGOs intervened on behalf of Google, including Article 19, the Internet Freedom Foundation, the Reporters Committee for Freedom of the Press, and the Wikimedia Foundation, as well as Microsoft Corp.  The case arose initially under the 1995 EU Data Protection Directive, but carries over to the new regime of the General Data Protection Regulation (GDPR).

Book review: Towles's 'Gentleman in Moscow' weaves rich tapestry of 20th-century Soviet Russia

I'm part of a book group, among other reasons, to find an excuse to read things I otherwise would not take the time to read. I love my group, but a lot of the times, the reading only confirms my good judgment about use of time in the first place. The exceptions, though, stand out, e.g., Fredrick Backman's Man Called Ove, and invariably make the whole commitment worthwhile.

Last month was such a worthwhile month.  We read Amor Towles's A Gentleman in Moscow, selection of public-service-lawyer-extraordinaire Karen Owen Talley.  Here's the beautiful and clever book trailer (Delphine Burrus, dir.).



"Beautiful and clever" only begins to describe this book.  I have not read Towles's previous and popular Rules of Civility, so I cannot compare.  Suffice to say, though, I was surprised to learn that Towles is a Boston-born investment manager writing from Manhattan, and not a full-time scholar of the Russian Revolution, or even a recently arrived time traveler from 1920s Moscow.  Shelved as "historical fiction" in some libraries, this book depicts changing Russian society over decades after the revolution, from the 1920s to 1950s, all from the curious and ultimately delightful perspective of an aristocratic political prisoner under house arrest in an upscale hotel.

Maybe Towles was playing at Russian style, or it's just his speed; the book feels slow on plot a good ways in.  Ordinarily that's a turn-off for my action-aficionado, smartphone-addled brain.  Yet somehow this book was engrossing; every day I looked forward to re-immersing my mind's eye in the fantastical world of the Metropol Hotel, as envisioned from the endearingly witty perspective of Count Alexander Ilyich Rostov.

Towles is brilliant at authoring irresistible rabbit holes for the reader.  Sometimes these seemingly discrete stories feel like pointless tangents; a fellow groupie and I had simultaneously imagined Towles as the sort of person who carries around a small memo pad to jot down vignettes of the day, from his peculiar perspective, and then litters his writing room with the pages.  Yet these seeming tangents weave themselves together later in the book into a tapestry that is so much more than the sum of their parts.  While each vignette in the book seems dispensable in its time, the whole of the novel would be painfully incomplete were it lessened by any one.  Here's a short example, just as the Count has discovered morning coffee and the reward of grinding it himself:

Even as he turned the little handle round and round, the room remained under the tenuous authority of sleep.  As yet unchallenged, somnolence continued to cast its shadow over sights and sensations, over forms and formulations, over what has been said and what must be done, lending each the insubstantiality of its domain.  But when the Count opened the small wooden drawer of the grinder, the world and all it contained were transformed by that envy of the alchemists—the aroma of freshly ground coffee.

In that instant, darkness was separated from light, the waters from the lands, and the heavens from the earth.  The trees bore fruit and the woods rustled with the movement of birds and beasts and all manner of creeping things.  While closer at hand, a patient pigeon scuffed its feet on the flashing.

. . . .

So perfect was the combination that upon finishing, the Count was tempted to crank the crank, quarter the apple, dole out the biscuits, and enjoy his breakfast all over again.

But time and tide wait for no man.

I won't go much into the meat of the tale, other than to counsel the reader to watch for time as a theme.  The seeming absence of plot is itself a grand illusion, representative of how time passes and transforms Russia outside the steady, unchanging walls of our protagonist's hotel confinement.  I didn't realize that until we started to put the pieces together as a book group, and now I wish I had paid closer attention on first read.

A TV series is in the making.  I thought that a bad idea, at first, worried that this delicate marvel would be tortured by Hollywood-like priorities until it yields something more fast and furious.  But a fellow groupie pointed out that it's all in the characters: an unhurried and dignified telling might be executed well in the right hands.  Perhaps it bodes well then that Kenneth Branagh is set to produce and star.  But don't wait for a screen adaptation; you'll be cheating yourself out of a journey best rendered by the imagination.

Conn. high court hears argument after non-dismissal of Sandy Hook parent suit against Alex Jones

As reported in my Sandy Hook update a couple of weeks ago, today was the day for Connecticut Supreme Court oral arguments over a discovery dispute in the Alex Jones case.  The Connecticut Supreme Court usually gets audio up within a day.  Check here. [UPDATE: Now posted and embedded below.]

Alex Jones (by Sean P. Anderson CC BY 2.0)

This is the defamation lawsuit against Jones and InfoWars brought by Sandy Hook parents for the broadcasters' assertions that the Sandy Hook school shooting was a hoax, perpetrated in media with the help of "crisis actors."  Megyn Kelly, making her mark after jumping ship from Fox, (in)famously interviewed Jones on this matter in 2017.  You can watch that weird-meets-weirder interview at NBC.  Kelly and NBC managed to infuriate both Jones and Sandy Hook advocates.  The latter objected to giving Jones the platform to sell his brand of crazy and included a few paragraphs on the interview under the "Campaign of Abuse" heading in the May 2018 complaint.

The case is Lafferty v. Jones, No. UWY-CV18-6046436-S.  The complaint is available from the Connecticut docket.  Besides defamation and defamation per se, plaintiffs claim false light, negligent and intentional infliction of emotional distress, deceptive trade practices under statute, and civil conspiracy on the common law claims.  After removal to and return from federal court, the Connecticut trial court allowed limited discovery over the defense's anti-SLAPP motion.  Thus we are in Hartford.

News coverage so far is lackluster.  "Lawyer Norman Pattis told the Connecticut Supreme Court on Thursday that Jones exercised his free speech rights," Dave Collins wrote for The AP (e.g., via WaPo) this afternoon.  To be fair, this appeal focuses on a discovery compliance dispute, which is tangled up in First Amendment considerations, but does not squarely present the anti-SLAPP problem.  The Hartford Courant has more detail on the merits and procedural posture.

Meanwhile...

Also as reported earlier, the Sandy Hook gun manufacturer liability suit against Remington is pending with a defense cert. petition in the U.S. Supreme Court, since the Connecticut Supreme Court allowed plaintiffs a narrow theory to circumnavigate Remington's federal statutory immunity under the Protection of Lawful Commerce in Arms Act (at The Savory Tort). That case is now Remington Arms Co. v. Soto, No. 18-A-1185.

Amici in Remington Arms piled in to the Court on September 3 and 4 and are collected on the case page at SCOTUSblog.  The NRA, 22 members of the U.S. House, the State of Texas, the National Shooting Sports Foundation, the Gun Owners of America, and Professors of Second Amendment Law filed briefs.  The latter comprise "Randy Barnett (Georgetown), Royce Barondes (Missouri), Robert Cottrol (George Washington), Nicholas Johnson (Fordham), Joyce Malcolm (George Mason), George Mocsary (Southern Illinois), Michael O’Shea (Oklahoma City), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), Eugene Volokh (UCLA), and Gregory Wallace (Campbell)," with counsel for the Firearms Policy Coalition, the Independence Institute, and the Cato Institute submitting the brief.

Oral Argument in Lafferty

Teachable torts: Court succinctly dismisses 'outing' case collateral to terrorism prosecution

Attendees dance during the Lesbian, Gay, Bisexual, and Transgender mixer
hosted by Joint Task Force Guantanamo Equal Opportunity Leaders for JTF
Troopers and Naval Station Guantanamo Bay Residents to honor LGBT
Pride Month in 2018. Photo by JTF GTMO PAO Trooper.

A short decision upon compelling facts in a civil case collateral to the criminal prosecution of Khalid Sheikh Mohammed, accused of being a September 11 architect, offers a worthwhile exercise in the study of tort law.

Semmerling, a lawyer on the defense team of Guantánamo-held Mohammed, accused the head of the defense team of outing Semmerling to Mohammed as gay.  The revelation of Semmerling's sexual orientation resulted in his removal from the team, because Mohammed would not work with a gay (or Jewish) lawyer.

Typical outing cases present some interesting problems in privacy law for several reasons.  First, they emphasize the distinction between the disclosure privacy tort and the defamation tort, because the revelation in an outing case is true.  First Amendment absolutism challenges the disclosure tort for its threat of liability upon a truthful statement, though there is little doubt that the disclosure tort would survive a direct Supreme Court challenge today.

Second, a plaintiff's homosexual (or other non-heterosexual) identity is rarely an absolute secret, disclosed to no one, but more often—and healthily—a personal datum that the plaintiff has disclosed with thought and care to different persons—parents, friends, public—at different times.  But "the secrecy paradigm" that dominates American privacy law disallows tort recovery unless intimate information remains intimately safeguarded.  (This is a critical point of difference between U.S. and European privacy law.)

Third, outing cases are complicated as a matter of social policy, for fear that a liability award might validate the view that homosexual orientation should be a source of shame, so either a truth properly kept secret (privacy tort), or a falsehood injuriously uttered (defamation tort).

This case is not typical—Semmerling's sexual orientation was only a secret to Mohammed—but its unusual facts, assuming the allegations as true for sake of argument on the motion to dismiss, left Semmerling with only less prospect of a tort remedy than usual.

Invoking the common law litigation privilege, the U.S. District Court, per Judge Robert W. Gettleman, rejected claims against the defense team leader herself. The absolute privilege ensures that an attorney has unfettered discretion in communicating with a client on matters pertaining to litigation.  The court also dismissed claims of negligence and intentional infliction of emotional distress (IIED) against the United States as defense counsel's employer.

Tim Jon Semmerling is a Chicago criminal-
defense attorney. In addition to his private
practice, he has worked pro bono for the
Center for Justice in Capital Cases at DePaul
University.

The negligence and IIED claims against the United States did survive dismissal under the Federal Tort Claims Act.  The FTCA on its terms disallows libel and slander claims against the United States, and the court opined that even a defamation claim disguised as IIED (or general negligence) would not survive that disallowance.  For the very fact that Semmerling complained about a truthful disclosure, his claim cannot be equated with libel or slander, and so was not a disguised defamation claim.

On tort law merits, though, Semmerling failed to state a claim, the court ruled.  He tried to predicate negligence on the defendant's one-time assurance to him that she would allow him to work on the case without disclosing his sexual orientation to Mohammed.  That was not basis enough, the court opined, to establish a duty of the United States to Semmerling for the purpose of proving negligence. The court did not wade in more deeply, but I expect that the duty requirement was especially elevated given Semmerling's lack of physical injury.

As to IIED, Semmerling sufficiently pleaded neither intent nor outrageousness.  Semmerling found out about the dislcosure only by way of hearsay and only some time after being fired.  So, the court reasoned, evidence was lacking that the disclosure was calculated to cause him emotional distress.  Also the disclosure was at worst "offensive," the court opined, and not "utterly intolerable in a civilized community," as Illinois law requires.

I wonder whether the facts would have supported a tortious interference claim; alas, that cause is expressly disallowed by the FTCA.

The case is Semmerling v. Bormann, No. 18-CV-6640 (N.D. Ill. Sept. 11, 2019).  HT@ ABA Journal.

[NOTE, Sept. 25, 2019: A generous colleague brought to my attention that the complaint in the case also pleaded defamation.  The claim failed on the litigation privilege as against lead counsel and was precluded by the FTCA as against the United States.  I ought to have marked the point that Semmerling was unable to claim disclosure in part because he guarded no intimately held secret.  The defamation claim was grounded in the allegation that lead counsel falsely suggested to the client a particular sexual interest in him.  That's an intriguing hypothetical when one considers the consequent analyses on the merits, including "capable of defamatory meaning."]

EU frets over Privacy Shield adequacy, and NGO insists, emperor still naked

The Commission of the European Union is reviewing the U.S.-EU Privacy Shield framework for conformity with the General Data Protection Regulation (GDPR), and NGO AccessNow is again demanding an inadequacy finding.

A lot is at stake.  For the uninitiated, European regulators have a dramatically different take on the protection of personal information than the free-wheeling free marketeers of the United States.  I've written some about the problem here and elsewhere (e.g., here and here), arguing that the American people are not so far from European privacy norms, but it's our law that lags behind the democratic will.  For my money, the definitive macro analysis of why American and European approaches to privacy have differed is James Q. Whitman's.  Anyway, the GDPR does not allow the export from Europe of information to countries that do not comport with its privacy protections, and that creates a monumental problem for the trans-Atlantic flow of not only information, but commerce.

The problem is not new and existed under the GDPR's predecessor law, the 1995 Data Protection Directive (DPD).  A number of mechanisms were devised to work around the problem, and they were approved by European regulators under the umbrella of "the Safe Harbor agreement."  But it's widely understood, at least on the European side, that Safe Harbor was something of a sham: No one with a straight face could argue that U.S. law was comparable to the DPD.  Safe Harbor in practice comprised mostly industry standards, voluntarily adopted and barely enforced by U.S. regulators.  There's also an important piece of this problem in the vein of national security, government spying, and personal information; I'm not even getting into that.

Privacy Shield is stronger than Safe Harbor, but the GDPR is a lot stronger than the DPD.  There have been remarkable advancements in privacy law in some states, notably California, in the EU direction.  And quite a number of court challenges have followed, winding their way through the process, some derived from objections in the commercial sphere, some the civil rights sphere: you've probably heard of "the right to be forgotten."  But our patchwork state laboratories hardly sum reassurance to Europe.  So in the absence of a comprehensive peace offering at the federal level, the debate over the EU's adequacy determination regarding Privacy Shield pretty much boils down to whether or not we're going to admit that the emperor is naked.

AccessNow, a global NGO and sponsor of RightsCon, has consistently called for honesty about the emperor's sorry state.  A recent memo calls on the Commission to rule Privacy Shield inadequate, and AccessNow has invited republication of a new infographic in support of its position.  I hereby oblige. It's past time we get serious about protecting personal information in the United States and stop commercial exploitation of human identity upon industry's abusive invocations of civil rights such as the freedom of speech and freedom to contract.

[UPDATE, 23 Oct. 2019, at 13:53 U.S. EDT: Privacy Shield still good, per EC report issued today.]