Unforeseeability precludes lessor liability for saloon shooting, but court fails to mention 'scope of liability'

Jernej Furman CC BY 2.0 via Flickr

A property owner could not be held liable for the fatal shooting of a musician at a lessee nightclub, the Massachusetts Supreme Judicial Court held in August.

The court applied conventional principles of foreseeability, but made no mention of recently adopted "scope of liability" analysis.

In the tragic conclusion of a personal feud, 23-year-old musician Drake Scott was shot multiple times and killed at the City Limits Saloon in Boston in February 2016. Gregory Wright was found guilty of first-degree murder in the incident in 2019 and, at age 39, sentenced to life without possibility of parole. (E.g., CBS News.)

In subsequent civil litigation, Scott's mother sued UTP Realty, LLC, alleging negligent failure to prevent the shooting with better security or lighting. UTP had acquired the property, and with it the saloon's lease, in November 2015. The plaintiff said that past incidents of violence at the saloon should have put UTP on notice of the risk. UTP's principal denied any actual knowledge of the history.

Massachusetts does not recognize the common law invitee-licensee distinction in premises liability, rather observing a unitary standard of reasonableness—though that probably would not have mattered here. The older common law framework might have been less forgiving of UTP, as property owners owe a duty of reasonable investigation to discover risks. Still, the duty is merely one of reasonableness; it does not follow necessarily that even a diligent UTP investigation would have discovered the risk that resulted in Scott's murder.

More importantly, the court determined that Scott's murder was not reasonably foreseeable. Accordingly, UTP simply owed no duty to Scott, and by extension in wrongful death, his mother.

"The word 'foreseeable' has been used to define both the limits of a duty of care and the limits of proximate cause," the court quoted its own precedent citing legal treatises. "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 duty."

UTP's property ownership was brief and at arm's length; Wright's act was sudden and brutal. In causal terms, an intervening cause in the person of an intentional criminal actor, especially in case of a violent offense, more often than not becomes a superseding cause, absolving an earlier negligent actor, such as a property owner, of legal responsibility. Upon that rule, the conclusion here is noteworthy, but not surprising. The same goes for the court's recognition that duty and legal causation offer alternative expressions of reasonable foreseeability.

The court's reasoning surprising, however, in the context of the court's recognition, amid what appeared to be a heated disagreement, of the Third Restatement approach to duty and causation in 2021, in Doull v. Foster, which I wrote about at the time.  Acknowledging the overlap between duty and legal causation, the Third Restatement sought to relocate policy-driven analysis to a more straightforward new element, "scope of liability."

Moreover, the Third Restatement eschewed the superseding causation approach as a way of solving the problem of multiple actors. Once the scope-of-liability hurdle is overcome, the Third Restatement favored instead the recognition of a question of fact as to the apportionment of liability between multiple culpable actors, even if one was merely negligent and the other committed an intentional crime.

Neither scope of liability nor apportionment, nor the Third Restatement nor Doull, for that matter, earned a mention in the instant case: a sound conclusion, in my opinion, but evidence in support of my skepticism of Doull's eagerness to embrace reform,

On the one hand, if it ain't broke, don't fix it. On the other hand, litigators and trial judges fairly might wonder when to Doull and when not.

The case is Hill-Junious v. UTP Realty, LLC, No. SJC-13380 (Mass. Aug. 16, 2023). Justice Serge Georges, Jr., wrote the unanimous court opinion. Justice Georges had just been appointed in December 2020 and did not participate in Doull.

Mass. App. remands textbook 'keys-in-ignitions' case on foreseeability analysis

Today the Massachusetts Appeals Court published a clean and concise opinion on negligence, focusing on foreseeability as an aspect of duty.  The decision covers basic elements and points of civil procedure, so could be of use to tort profs introducing negligence this semester.  The case is R.L. Currie Corp. v. East Coast Sand & Gravel, Inc., No. 17-P-1186 (Aug. 21, 2018).

The facts are a classic keys-left-in-car-then-stolen scenario, unfortunately involving heavy equipment instead of a car.  Employee of defendant snow-plow service left a front loader running idle and unlocked in a shared company lot.  There had been previous thefts of materials, but not heavy machinery.  Keys were routinely left in unlocked vehicles, but hidden.  In the employee's four-hour absence, the loader was driven by an unknown third party and crashed into two of plaintiff's trucks.

The trial court dismissed for failure of foreseeability, deciding no duty as a matter of law and awarding summary judgment.  The court here aptly reiterated the dual role of foreseeability as an aspect of duty and of causation.  The Massachusetts Supreme Judicial Court previously declined to adopt a doctrine of no liability as a matter of law for "keys left in ignitions" cases, employing general notions of foreseeability instead.  Upon such precedents, the appellate court remanded, concluding that the trial court erred in finding intentional vandalism beyond the scope of foreseeability as a matter of law.

Incidentally, the panel author is relatively new to the court, since July 2017.  Associate Justice Dalila Wendlandt is New Orleans born (close to my heart) and was a proper engineer who built robots at MIT before going to law school, joining the IP litigation group at Ropes & Gray, and publishing in patent law.

[UPDATE, Aug. 25: Only days after this case was decided, shocking video came to light in an ambulance-keys-in-ignition story in my home state of Rhode Island that could fuel law school hypotheticals for months. Miraculously those involved sustained only minor injuries, and complicating matters, the teen perpetrator was autistic. No criminal charges are anticipated. See WJAR Providence.]