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
and a copy of the Belizaire
A Patriot Day salute,
Richard J. Peltz-Steele
Professor, UMass Law School
333 Faunce Corner Road
North Dartmouth, Mass. 02747 USA