From: Neil Foster <>
To: Richard Peltz-Steele <>
obligations <>
Date: 14/09/2015 02:44:30 UTC
Subject: Re: two Mass. cases of intervening criminal cause, questions of law/fact

Dear Richard;
Thanks for sharing these interesting cases. In my view the Doe case could be decided under another ground under Commonwealth (non-US common) law. As the interpreter was an employee of the hospital, it might be argued that the hospital could be held vicariously liable for the battery committed on the patient. The law of England and other Commonwealth countries allows vicarious liability for intentional torts since Bazely v Curry  and Lister v Hesley Hall and Lepore v NSW. To have a system which does not monitor the access that interpreters have to lightly clothed patients means that one could argue there was a “close connection” between the system of work and the wrong. Even on the more limited ratio of Lepore in Australia one could argue that an interpreter wandering around a hospital with an identity badge has “implied authority” to touch patients.
I have to concede that there has been one such claim in Australia in similar circumstances which failed, in NB v Sydney South West Area Health Service [2010] NSWDC 172 (6 October 2010) . In particular the judge ruled that vicarious liability would not apply to this alleged criminal act- see [118]-[124]. But with respect the comments here were wrong, and misread the ratio of Lepore. It should also be noted that (1) decisions of the District Court are not regarded as being of precedential value; (2) the judge had found that the alleged facts did not occur, so the hospital was not going to be liable whatever view he took of vicarious liability.

neil foster 
Associate Professor
Newcastle Law School
Faculty of Business and Law

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From: Richard Peltz-Steele <>
Date: Saturday, 12 September 2015 4:07 am
To: "" <>, "" <>
Subject: two Mass. cases of intervening criminal cause, questions of law/fact


Two decisions in just the last couple of days from the Massachusetts Supreme Judicial Court might be useful in teaching torts.  Both involve problems of a criminal act interrupting the chain of causation, with plaintiffs suing the earlier-in-time actor, not the criminal actor, upon a negligence theory: negligent supervision by an employer in one case, and landowner negligence in the other case. 

Each case in itself is unremarkable.  But compared, they make for a teachable moment.  The plaintiff in the employer case won remand, the court regarding foreseeability of the intervening criminal act as a question of fact improperly resolved before trial by the court below.  The plaintiff in the landowner case lost on pretrial summary judgment, because the court saw no factual dispute in the landlord's inability to foresee the criminal act.  Thus the cases nicely play the line on when the court without a jury may resolve a question of fact in attenuated causation (or duty) as dispositive of the case.

In Doe v. Boston Medical Center Corp., decided Wednesday, the plaintiff alleged negligent supervision of a hospital language interpreter who sexually assaulted her.  The Court concluded: "The hospital's policy regarding [disallowing] interpreters being alone with patients makes it clear that such harm was foreseeable. Thus, the question whether the hospital met its duty of reasonable care still remains a genuine issue of material fact for the jury to decide."

In Belizaire v. Furr, decided today, the plaintiff-decedent's estate alleged that the landowner failed to make safe the property where the decedent was shot and killed at a party.  The Court explained, "There is no evidence that the defendant knew about or was in any way associated with the [unknown] assailant or the underlying dispute between the assailant and the victim, a guest."

Especially noteworthy in the latter case, the Court recognized the interchangeability of duty and causation around the foreseeability question, quoting precedent: "In this context, the 'word "foreseeable" has been used to define both the limits of a duty of care and the limits of proximate cause.' [Citation omitted.] As the court further explained, 'As a practical matter, in deciding the foreseeability question, it seems not important whether one defines a duty as limited to guarding against reasonably foreseeable risks of harm or whether one defines the necessary causal connection between a breach of duty and some harm as one in which the harm was a reasonably foreseeable consequence of the breach of the duty.'"

The opinions are fairly short and have extremely compelling facts with high stakes, so they make for excellent reading assignments.  For your reference,
I will park a copy of the Doe decision here
and a copy of the Belizaire decision here.

A Patriot Day salute,

Richard J. Peltz-Steele
Professor, UMass Law School
333 Faunce Corner Road
North Dartmouth, Mass. 02747 USA
+1 508-985-1102