Foul-ball injuries persist at baseball games

Pixabay CC0 1.0 via Get Archive

The American Museum of Tort Law (AMTL) hosted a Zoom panel Thursday on the problem of foul balls injuring baseball fans.

(UPDATE: Video posted, Feb. 27.)

American tort law students usually are acquainted with the so-called "baseball rule." The "rule" represents the legal supposition that fans who attend baseball games understand and accept the risk that a foul ball might fly into the stands and cause injury. More accurately stated in contemporary terms in American tort law, the "rule" is that a professional baseball enterprise does not have a duty to avert injuries that are part of the game of baseball.

You can tell from my quote marks that I don't like the characterization of "the baseball rule" as a rule, because it's not. The "rule" is oft stated as such in popular culture and too often in law. But it does not represent a consistent "rule" of decision in tort cases. Plaintiff lawyers have circumnavigated it many times, justifiably so. And if the "rule" were a rule, it would be a bad one. Horrific injuries happen too often, such as shattered eye sockets and blinding. Two children were critically injured in the minor leagues in the past season.

You can see the problems even on the face of the "rule." Not everyone who goes to a baseball game knows that there is a danger of being hit by a foul ball, especially the risk of substantial bodily harm in a line drive with a 100-mph exit velocity. Baseball clubs put up some nets specifically to protect fans from these injuries in some places, such as behind home plate, but the nets fall far short of full coverage. Fans sitting in unprotected seats might not see the difference. Certainly fans might not know the scope of potential injury. Finally, the assumption-of-risk doctrine that animates the "baseball rule" was crafted to preclude lawsuits by sport participants. The doctrine has been extended tentatively and sometimes dubiously to fans.

As in many tort cases, the functioning of the tort system in foul-ball cases is being disrupted by arbitration clauses in baseball ticket terms and conditions, and by non-disclosure agreements in settlements. Secrecy impedes tort's norm-setting and deterrence functions. If fans don't understand the danger and frequency of foul ball injuries, they're unlikely to find out from reported cases.

Hosted by Melissa Bird for the AMTL, the panel comprised Ken Reed, Jordan Skopp, and Greg Wilkowski. Reed is Sports Policy Director for League of Fans, a Ralph Nader project that covers the foul-ball problem. Skopp, a New York realtor, is the activist-founder of the grassroots Foul Ball Safety Now!, which hosts a trove of information. Wilkowski is a Chicago lawyer presently representing plaintiffs in a class action against the Peoria Chiefs (e.g., Journal Star).

Injured contractor finds no award in ruling spanning worker comp, premises liability, conflict of law

Roof collapsed by snow (illustrative; not this case).
Richard Allaway via Flickr CC BY 2.0

A worker hired to remedy a dangerous property condition could not rely on the known danger to recover against the landowner, the Massachusetts Appeals Court held in mid-September.

On that distinctive fact pattern, the court's thorough opinion gave textbook treatment to issues in worker compensation, conflict of law, and premises liability.

The defendant Massachusetts landowner hired a Rhode Island home improvement company to raze a garage collapsed by snow. Hired in turn by the company, the plaintiff found the garage in its dilapidated state and expressed reservations about safety. As the plaintiff inspected the structure, it further collapsed and pinned him, inflicting bilateral fractures to both legs.

The plaintiff ultimately recovered $19,000 from R.I. worker comp. For further recovery, he sued the company, the company principal, and the landowner. The Appeals Court affirmed dismissal for all defendants.

Worker compensation scope: Worker comp covers employees, not independent contractors. R.I. worker comp initially rejected plaintiff's claim on the grounds that he was an independent contractor rather than an employee. Later evidence indicated that the plaintiff might have signed a document acknowledging status as an independent contractor. Nevertheless, the plaintiff sued over the question. The worker comp system settled for $19,000.

The exclusion of independent contractors from worker comp renders a significant gap in the American social safety net. Highly regulated industries might require that independent contractors self-insure. But a legion of workers, especially in the gig economy, works in a gray area with no contingency for catastrophic loss. The situation is worsened by industry's increased reliance on, and sometimes exploitation of, independent contractors, facilitated in part by the post-pandemic upswing in remote work.

America's runaway healthcare costs and lack of universal medical insurance compound the independent contractor's woes when injury does occur. I imagine that $19,000 did not come close to covering the plaintiff's bills for such serious injury. Plaintiff's attorney fees must be accounted for as well. The plaintiff here might have acknowledged contractor status and aimed for a better settlement against an insurer, if available, for the company or homeowner. That would have been a gamble. The top takeaway for contractors or their attorneys is that self-insurance is a necessary cost of doing business.

Worker compensation bar: One who recovers in worker comp surrenders tort claims against the employer and its agents. The fundamental premise of worker comp is that it supersedes, so bars, tort claims. The plaintiff tried to augment the worker comp recovery by suing the company principal and the landowner. The plaintiff also sued the company itself upon a theory that did not pan out on the facts, that misrepresentation of the condition of the property vitiated the worker comp bar.

The plaintiff's claim necessarily failed against the company principal. The worker comp bar naturally extends to the agents of the employer, besides the company. Employers usually—though not necessarily; caution by an employee entering into the contract of employment always is advisable—indemnify their employees for negligence in the scope of employment. Plaintiffs outside the workplace usually are more interested in pursuing employers than employees, because the employer has more money and an insurer. If a plaintiff could pursue an employer's agents, the worker comp bar would be undermined.

The worker comp bar also undoes the largely historical common law "fellow servant" rule, which released an employer from responsibility for an injury inflicted on one employee by another, but thereby cleared the way for an employee to sue a co-worker. Relieving workers of the harsh consequences of that rule in the age of industry was in fact a key reason the worker comp system came about in America.

Why America has a worker comp system, why it remains narrow in scope, and how it's been diminished by reforms in recent decades are all fascinating stories in their own rights. New Zealand's unusually broad accident compensation system, which substantially supersedes tort litigation over accidents, grew out of worker comp reform in the 1970s. Suffice to say here and now, in its core scope of application, worker comp is a "grand bargain" in which employers fund the system proactively in exchange for workers' surrender of tort claims. That's good for workers in theory, but raises, again, the problem that worker compensation schedules have not kept up with the skyrocketing costs of living and healthcare.

Conflict of laws: the worker comp bar is practically universal vis-à-vis employers and their agents. The plaintiff tried as well to circumnavigate the worker comp bar upon the theory that worker compensation was paid by the company's R.I. worker comp insurer, and that the R.I. worker comp bar does not necessarily preclude tort claims in Massachusetts.

The plaintiff was right that Massachusetts law applied to the case.  Upon conflict-of-law analysis to ascertain the state with predominant interest in the matter, the court agreed that an injury in Massachusetts arising from the condition of a premises in Massachusetts drew Massachusetts substantive law to the problem.

Nevertheless, the court recognized the applicability of the R.I. worker comp bar. The Restatement (Second) of Conflict of Laws opines that a worker comp bar should apply to action in any state. And both Rhode Island and Massachusetts observe both the worker comp bar and its application to companies and their agents. Thus, Massachusetts public policy bore no hostility to importation of the R.I. rule, even to prelude tort claims under Massachusetts substantive law.

Premises liability: A landowner cannot be liable to an invitee for a known dangerous condition when the invitee was invited for the very purpose of abating the dangerous condition.  The worker comp bar does not preclude claims against third parties to the employment relationship. The third party is not part of the grand bargain. Indeed, under state law, typically, an employee or a worker comp system in subrogation may allege a third party's responsibility for loss. An employee successful in litigation might owe reimbursement to the worker comp system. Correspondingly, a worker comp system might owe excess recovery to the employee. Here, then, the worker comp bar did not preclude the plaintiff's suit against the landowner in negligence.

The defendant landowner asserted that the dangerous state of the collapsed garage was "open and obvious," thus invoking a historical common law doctrine.  The fuzzy doctrine has been said to mean many things in many scenarios. In the instant case, the defendant invoked the doctrine to say that the obvious risks of the dilapidated garage should relieve the landowner of the usual responsibility owed to a commercial invitee.

Massachusetts no longer recognizes the common law framework that applies different liability rules depending whether a plaintiff's purpose is commercial (invitee) or social (licensee). The contemporary approach is to charge the jury to consider "reasonableness under the circumstances." There might not be a stark practical difference between the old and new approaches, because the common law framework was grounded in the proposition that as a matter of ordinary practice, "reasonable" people conduct themselves differently relative to invitees and social guests, respectively.

Similarly, the contemporary approach is to reject "open and obvious" as any kind of magical incantation. Rather, the openness and obviousness of the risk also is part of what a court and jury can be expected to consider in the reasonableness analysis. Here, the court ruled accordingly that "open and obvious" is not a rule per se.

However, "open and obvious" remains important as a matter of fact. And on these facts, the openness and obviousness of the risk of the collapsed garage proved dispositive—not because of a blanket rule favoring defendants, but because of the specific reason the plaintiff was invited to the property: to abate the very same risk. The court reasoned:

The [cited] authorities encompass the commonsense recognition that a landowner who has a hazardous condition on his or her property may need to invite onto the property another person or persons to remedy that condition. The law, of course, wishes to encourage behavior that remedies hazardous conditions.... And the person engaged to remedy such a hazardous condition differs markedly from an ordinary invitee. For one thing, there usually will be little question that such a person is aware of the danger, and thus there should be no need for warning. Furthermore, such a person will have held him- or herself out as capable of remedying the condition. Under those circumstances, it is reasonable for the law to reallocate the risk of harm from the property owner to the person who has sought to take on, and to alleviate, the hazard.

The case is Ward v. Schnurr, No. 22-P-372 (Mass. App. Ct. Sept. 13, 2023). Justice John Englander wrote the unanimous opinion of a panel that also comprised Justices Henry and Desmond.

'Marketplace' features book, film, Wisconsin law class on wild risks at shuttered N.J. water park

Action Park fun in 1994
(Joe Shlabotnik CC BY 2.0 via Wikimedia Commons)

Marketplace today features a torts course about accident risk and liability at a water park.

The 2020 HBO documentary Class Action Park (2020) (trailer) told the story of Action Park, a New Jersey theme park in the 1980s and 1990s.  Here is a compelling excerpt of the film's pitch:

It was known as a lawless land, ruled by drunk teenage employees and frequented by even drunker teenage guests. The rides were experimental and illogical, and seemed to ignore even the most basic notions of physics or common sense—not to mention safety.

Let’s put it this way: There was an enclosed tube waterslide that went in a complete loop—and that wasn’t even close to the most dangerous ride at the park.

Lying somewhere between Lord of the Flies and a Saw movie, Action Park is remembered as a place so insane and treacherous that, decades later, anybody who ever stepped foot in it is left wondering whether their memories could possibly be true. It became a nearly perfect breeding ground for urban legends and myths.

And then there was the park’s founder: A genius madman who was willing to break any rule to bring his vision to life, including the creation of a fake insurance company in the Cayman Islands to circumvent insurance regulations. As cunning as he was criminal, Action Park became the pure expression of his particular worldview, which valued self-responsibility above all else—including basic safety measures and physically practical rides.

There is a book, too: Action Park (2020) by Andy Mulvihill and Jake Rossen.  Andy Mulvilhill is the son of the "genius madman," Gene, who died in 2012. Andy wrote a narrative about his father in Esquire in 2020.

Attorney Bill Childs, adjunct professor at Mitchell Hamline Law School and assistant general counsel at 3M, has taught a course about Action Park, Recreation and Risk: no doubt an informative exploration of how the tort system is supposed to regulate social and economic activity and how its dysfunctions often cause it to fail. For the Marketplace story, David Brancaccio interviewed Professor Childs.

I start Torts I each fall with consideration of the relationship between the thriving market in extreme supports in New Zealand and the suspension of tort litigation in favor of the nation's administrative accident compensation system. N.Z. bungee-jump entrepreneur A.J. Hackett told Australian Broadcasting in 2012 that he closed his Las Vegas franchise because of frivolous litigation. I have doubts about the frivolity of the claims, but there's no doubt that the threat of tort litigation in the United States calls on business models to moderate risk, for better and for worse, more than they might have to in other countries. In the same vein, I am keen myself to learn more about what went wrong or right in claims arising at Action Park.

Theme parks, because they aim to entertain the public at large, not especial risk takers, do not trigger the rare preservation of implied-assumption-of-risk doctrine (IAOR) that pertains in sport, sometimes to deprive even amateur athletes of a cause of action. In U.S. jurisdictions today, IAOR is largely superseded by the adoption of comparative fault, a partial defense. But athletes knowingly engage in a suspension of the social contract, voluntarily undertaking a degree of risk that the general public ordinarily does not.  So some jurisdictions preserve IAOR for that occasion.

The inapplicability of IAOR to Action Park risk is on my mind because of a recent article in which Toronto attorney Will Keele and Windsor law student Keanin Parish revisited a 1993 case, Hall v. Hebert, in which the Supreme Court of Canada preserved IAOR in a non-sporting context. After "equally drunk" Hall and Hebert's Pontiac "muscle car" dropped 30 feet into a ditch in 1986, Hall sued Hebert for having let him drive. On those facts, the court favored volenti, a functional equivalent of IAOR, as a complete defense over comparative fault as only partial defense. In other words, Hall had it coming. Keele and Parish opined that that conclusion squares with later cases in the 21st century that preserved IAOR as a defense against injury claims arising in golf and hockey.

The extremity of risk at Action Park shows that the line is not so bright between IAOR preservation for the plaintiff who consents to risk and the abolition of IAOR for the plaintiff who engages with risk unreasonably—or, I might say, between informal sport and general-public thrill-seeking. Were Action Park's "drunker teenage guests" so clearly different from Hall? The salient distinction arises less in the plaintiff's subjective consent and more in the nature of the risk known to arise from the activity the plaintiff undertakes. A car crash is a known hazard of drunk driving, but even a drunk theme park rider does not expect the ride to be operated unsafely—usually. At some point—"memories could possibly be true"?—the distinction runs out. 

I have not had an HBO subscription for a while, but if we sign up later this month for House of the Dragon, I'll check out Class Action Park, too.

Chicago Transit Authority seeks to hire tort lawyers

The Chicago Transit Authority is looking for lawyers specifically to handle tort claims.

This job is unusually specific to tort work. Here is the position summary for "Senior Attorney," listing a salary of $95,544:

Under general supervision, performs a broad variety of legal duties in support of the Authority’s General Counsel. Works on the defense of personal injury lawsuits filed against the Authority, from minor to catastrophic injuries and subrogation and property damage defense and performs all litigation for assigned caseload.

And here is the position summary for "Associate Attorney," listing a salary of $83,372:

Under general supervision, functions as a junior level attorney responsible for litigating personal injury cases brought against the authority.  Works with senior attorneys on complex personal injury, subrogation, and property damage defense cases.

Both positions were posted July 22.

Court: Even upon liability for mere negligence, insurer may refuse to cover statutory attorney-fee award

Gerd Altmann licensed by Pixabay

An insurer is not obliged to reimburse an insured for attorney fees awarded in a quasi-tort action under Massachusetts statute, the commonwealth high court held today.

The insured was a cleaning business operating under the "Servpro" banner. In the dispute underlying the instant case, the insured cleaned up a sewage spill and was held liable to a client who suffered respiratory injury from exposure to disinfectant chemicals.

The personal-injury complainant sued under the unusually broad unfair commercial practices statute, Massachusetts chapter 93A. Chapter 93A affords prevailing parties attorney fees, as well as double or treble damages for complainants able to prove "willful or knowing" violation.

Those powerful incentives tend to cause plaintiffs to abandon common law tort claims when the 93A claim is viable. So here, the plaintiff declined to prosecute her common law negligence claim and was awarded attorney fees on a prevailing 93A theory, an implied warranty of merchantability.

Subsequently, Vermont Mutual Insurance Co. declined to pay the full sum of the award, asserting that the policy did not cover the attorney-fee award.

The Supreme Judicial Court agreed, finding the plain meaning of the insurance contract controlling. The policy covered liability for "bodily injury" and "costs," the court acknowledged. But attorney fees are not "costs 'taxed' against the insured in the suit," the court held; rather, "costs" refers to "the narrower, technical meaning of court-related or nominal costs recoverable as a matter of course to prevailing parties."

The outcome is potentially devastating to small businesses that believe themselves to be insured against negligence liability. An attorney-fee award is enough to put a small business into bankruptcy, yet personal-injury liability insurance typically excludes coverage for fees. 

That exclusion arises, I posit, upon the logic that fees typically are awarded in the states, if at all under "the American rule," only in cases of intentional or reckless wrongdoing, for which insurers also exclude liability. Chapter 93A makes fees much more readily accessible to prevailing plaintiffs and thereby burdens business with an unanticipated transaction cost, while affording multi-state insurers with a windfall.

Notwithstanding my principled objection to deviations from the American rule as an incoherent remedy to our problem of runaway transaction costs, I see no meaningful distinction between a personal injury award and an accompanying fee award when both are predicated on conduct indistinguishable from common law negligence. Vermont Mutual was let off the hook on a technicality, to my mind, and insureds should be entitled to the coverage they reasonably believe they bargained for. 

At minimum, going forward, the commonwealth insurance regulator should compel clear articulation of the risk to insureds of such a coverage limitation specially under chapter 93A. I won't hold my breath.

The case is Vermont Mutual Insurance Co. v. Poirier (Mass. July 6, 2022). Justice Scott L. Kafker wrote the unanimous opinion.

Police officer delivering lunch was off the job for immunity, injured fellow on the job for worker comp

Pixabay by Ronald Plett (license)

A personal injury claim against a police officer's automobile insurer highlights the different scope of what it means to be "on the job" for purposes of statutory immunity and worker compensation.

In a case the Massachusetts Supreme Judicial Court (SJC) decided in late October, Raynham, Mass., police officers on mandatory firearms training on public property in 2017 organized takeout for lunch for a paid break.  Returning to the training site in his personal truck with the takeout, one officer drove the gravel path "faster than [he] should have," braked, and slid into and injured another officer seated at a picnic table.

The plaintiff-officer was permitted to claim state worker compensation, because he was injured on the job.  The defendant-driver's insurer meanwhile claimed immunity under the Massachusetts Tort Claims Act, because the insured acted "within the scope of his ... employment."  The SJC denied the insurer of the defense.

The common law test for "vicarious liability, respondeat superior, and agency," the court explained, is "whether the act was in furtherance of the employer's work," and the same test informs the invocation of statutory immunity.  That analysis comprises three factors in Massachusetts law: "(1) 'whether the conduct in question is of the kind the employee is hired to perform'; (2) 'whether it occurs within authorized time and space limits'; and (3) 'whether it is motivated, at least in part, by a purpose to serve the employer.'"

Only the middle factor favored the insurer, the court opined, so the analysis on balance disfavored immunity.

Worker compensation and common law master-servant doctrine are indistinguishable as a practical matter in many cases, when an employee suffers injury doing the employer's bidding.  Doctrines in both veins rely on "scope" or "course of employment" tests.

But even when the language is the same, the tests differ, and in some cases, the difference matters.  Worker compensation tests only loosely for a causal connection between employment and injury, thus famously allowing a traveling salesman to recover when his overnight motel was destroyed by a tornado.  Vicarious liability, and thus, Massachusetts immunity, requires a closer causal nexus between the employee's specific pursuit and the injury that results.

In this analysis, the defendant-driver's lunchtime carelessness, for which he was suspended for five days, was not in furtherance of the employer's work, so qualified for neither vicarious liability nor statutory immunity. The officer injured was on a paid break, so was covered by worker compensation. The worker compensation system may recover in subrogation from the driver's private insurance.

If the driver himself had been injured, it's arguable whether he would have been covered by worker compensation, despite his "gross negligence," as the court described his driving. Under the worker compensation test, he was returning with lunch to the job site during a paid break. The causation requirement for worker comp is looser than the respondeat superior/sovereign immunity test. The anomalous result that might then pertain is that the driving officer would be liable in subrogation for a fellow-servant injury even though he was on the job for the purpose of worker compensation.

The case is Berry v. Commerce Insurance Co., No. SJC-13089 (Mass. Oct. 25, 2021).  Justice Dalila Wendlandt wrote the unanimous court opinion.

This posting was revised Apr. 1, 2024, with addition of the penultimate paragraph and revision to the preceding paragraph and headline. The original post improperly conflated the worker compensation analyses that would pertain to the injured officer and the vehicle driver.

After dog bites postman, $375k jury award fits between floor and ceiling of high-low settlement agreement

Pxhere CC0

In a dog-bites-postman case in Massachusetts, the Appeals Court in late October held that the parties' "high-low" settlement agreement was a "contract like any other" and did not bar the defendants' appeal.

The plaintiff-postman in the case was covering an unfamiliar route when he was bit in the wrist and thigh by German shepherd-golden retriever mix "Chewbacca." At trial, the jury awarded the plaintiff $375,000 in damages. The defendants asked for a new trial, arguing that the jury was tainted by improper admission of information about the plaintiff's federal worker compensation benefits, in violation of the collateral source rule.

Before the jury verdict, on the last day of trial, the parties had struck a handwritten "high-low" settlement agreement.  They set a floor recovery of $150,000, if the jury verdict were anything less, and a ceiling of $1,000,000, if the jury verdict were anything more.

The plaintiff argued that the settlement agreement precluded appeal.  But it didn't say that.  Holding that the settlement agreement was to be construed as a "contract like any other," the Appeals Court found no language convincingly demonstrating defendants' waiver of appeals.  At the same time, the court held that the evidentiary admission in violation of the collateral source rule was harmless error, affirming the denial of new trial.

Regarding the high-low agreement, the court found "little law in Massachusetts."  More than 20 years ago, two New York attorneys described the agreements as "[a]n often underutilized and misunderstood litigation technique." At NYU in 2014, a research fellow examined the agreements' potential and limits in New York, Maryland, and Virginia; see also the ABA Journal in 2005.  An Illinois attorney wrote favorably about the "misunderstood" agreements in 2019, after a medmal plaintiff-baby's verdict was halved by a high-low from $101 million.  Virginia attorneys advised on drafting the agreements in 2007.

In a harder scholarly vein, research published in The Journal of Law & Economics in 2014 reported empirical research on high-low conditions and posited optimal conditions for their appearance.  Published soon thereafter, a Michigan law student argued that high-low agreements should be disclosed to juries.

The Massachusetts case is David v. Kelly, No. 20-P-706 (Mass. App. Ct. Oct. 25, 2021). Justice Mary Thomas Sullivan wrote the opinion of the court, which Justice Kenneth V. Desmond Jr. joined.  Justice Sabita Singh dissented as to the court's conclusion that the error on the collateral source rule was harmless rather than prejudicial.

Automatic-door failures fuel injuries, tort claims, but road to recovery in litigation can be bumpy

Pixabay by djedj

An Australian woman struck by a malfunctioning airport security door was denied recovery in April after failing to prove that the malfunction caused her injury.  The outcome strikes me as questionable, and the case is instructive of tort principles anyway.

If you travel much, as I do, you probably have passed through those one-way transparent security doors that whip open and closed to allow only a person at a time to pass.  They frighten me a bit, and I never linger on the threshold.  The plaintiff in the instant case likewise denied having paused upon egress from Wagga Wagga City Airport arrivals in New South Wales, yet was struck by one of the doors.  She complained of shoulder and back injury, requiring surgery, and the court confirmed that the impact of the door at least worsened a preexisting condition.

Arrivals at Wagga Wagga Airport
(2012 photo by Bidgee CC BY-SA 3.0 AU)

The doors were in fact malfunctioning.  There are two batteries, at different heights, of photoelectric cells that sense a person in the way and prevent the doors from closing.  The lower set were out of commission.  However, tests and maintenance on the doors showed that the non-functioning cells were not essential for safety; the higher set still kept the doors open when so much as a person's leg was in the way.  The plaintiff therefore failed to show a causal connection between her injury and the malfunction, nor any alleged misfeasance by the airport defendant, such as a failure to warn.

The outcome strikes me as questionable, because there seems to be no dispute that the 44-year-old plaintiff was struck by the door, and that that's never supposed to happen.  Even if the photoelectric cell failure cannot be blamed, the case seems well suited to res ipsa loquitur, which, to the best of my knowledge, is recognized in New South Wales common law, and is not mentioned by the court.  Maybe the plaintiff failed to plead the theory.  Or maybe this is a Palsgraf-esque scenario in which the court concealed skepticism of the plaintiff's injury.  Of 100,000 arriving passengers annually, there were no other reported incidents, the court troubled to say.

Anyway, the case reminds me of one that I use sometimes in torts class to teach punitive damages with a dash of professional responsibility.  In 2015, 61-year-old James Hausman won a $21.5m verdict against the Holland America Line (HAL) after being hit by an automatic sliding door on a cruise ship, in an incident captured on camera.

There's plenty to inform a class discussion just there.  Hausman's injury did not look too bad in the video, but traumatic brain injury is tricky.  And the court awarded $16.5m in punitive damages after hearing about 16 other sliding-door injuries on HAL ships.  The plaintiff's lawyer accused HAL of trying to save on air conditioning, which HAL denied, the ABA Journal reported.

Then the case took a turn.  In 2016, the district court threw out the verdict after revelations of spoliation.  The ugly dissolution of an employment relationship between Hausman and a personal assistant led to an undiscovered personal email account and deleted messages that cast doubt on Hausman's veracity (ABA Journal, Seattle Times).  The court ordered a new trial and clarified that there was no evidence the plaintiff's attorney was complicit in wrongdoing.  The docket suggests that the case ended in settlement later that year.

The Australian case is Gray v. Wagga Wagga City Council, [2021] NSWDC 108, 07 April 2021 (Wolters Kluwer).  Simon Liddy at HWLEbsworth published commentary.  The American case is Hausman v. Holland America Line-USA, No. 2:13-cv-00937 (W.D. Wash. 2016) (Court Listener).

No recklessness, no liability, court affirms in case of head injury during softball batting practice

mohamed Hassan from Pixabay

Applying recklessness doctrine in a non-competitive context, the Massachusetts Appeals Court yesterday affirmed non-liability for a collegiate softballer and Suffolk University in the case of a player hit in the head by a bat during practice.

Tort and Sport

Personal injury in sport offers fertile ground for exploring tort law, because athletic competition represents a suspension of the social contract.  Ordinarily, everyone in an orderly society knows not to push, tackle, or punch other people.  But in a sport, that can be exactly what you're supposed to do.  So a special, carefully designed standard of conduct, "the rules of the game," supersedes the usual web of unwritten norms, conveniently yielding a laboratory for socio-legal study.

If one fails to recognize the aberrant nature of the sport context, anomalous legal results pertain.  For example, every injury resulting from a collision of players on the football field is accidental, so a potential source of negligence liability.  Alternatively, many such injuries are batteries, because the defendant bore subjective intent to cause offensive contact.  At the same time, the defenses of assumption of risk and consent raise frame-of-reference problems in application.  An athlete generally assumes a risk of injury, a defendant argues, but not necessarily injury specifically in the way that it happened, the plaintiff counters.  The usual tort doctrines just don't work well to solve conflict over sporting injury.

To overcome this problem, courts in many states, including Massachusetts, have employed the tort standard of recklessness in sport cases.  Recklessness focuses on a defendant's indifference to a risk of high probability or magnitude (tests vary).  For its culpability analysis, recklessness hybridizes subjective and objective tests for culpability, thereby balancing the prohibitive prerequisite of defendant's intent with slim proof of carelessness.  The test is not a perfect tool for sporting-injury cases, but it works much better than intent and negligence rules to help courts patrol the outer boundaries of social-normative conduct in an exceptional situation.

j4p4n from openclipart.org

In Borella v. Renfro, in December 2019, the Massachusetts Appeals Court applied the recklessness standard to a case of ice-hockey injury, relying on precedent of the Supreme Judicial Court dating to 1989.  The court explained in Borella:

In a game where the players wear sharpened steel blades on their feet and are garbed in protective gear from head to toe, the playing field is a glossy ice rink, checking not only is allowed but a fundamental aspect of the way the game is played, and the object of the game is to put a puck into a goal (or to prevent the same), the plaintiff, seventeen year old Daniel J. Borella, was cut on the wrist by one of the blades worn by the defendant, Julion Scott Lever, in what Borella acknowledges was a "freak accident" occurring moments after Lever checked Borella hard from behind into the boards and took the puck away.

.... In this case, we apply [the recklessness] standard to the game of ice hockey[,] in which physical contact between players standing on two thin metal blades atop a sheet of ice is not simply an unavoidable by-product of vigorous play, but is a fundamental part of the way the game is played. We hold that where, as here, the record is devoid of evidence from which a jury rationally could conclude that the player's conduct is extreme misconduct outside the range of the ordinary activity inherent in the sport, there is no legal liability under the recklessness standard. For that reason, we affirm summary judgment in favor of Lever.

Dissenting, Justice Peter J. Rubin would have sent arguable questions of fact to the jury.  But he did not disagree, for jury instruction, that recklessness was the correct standard.

Batting Practice

Despite the efficacy of the recklessness standard in sport cases, things get tricky at the margins, especially when injury occurs off field, or outside the narrow context of competitive conflict between players in the course of the game.  The instant case presented such a challenge, as one player was hit in the head by a teammate accidentally, while the teammate was engaged in batting practice.

Should the recklessness analysis pertain to "friendly fire" in practice, too?  Yes, the Appeals Court answered, consistently with precedent in other states.  Recklessness is the appropriate standard for athletic practice.  

In the instant case, the unfortunate accident occurred between friends on the Suffolk University softball team.  The plaintiff-player walked too close to the swinging defendant-player at just the wrong time.  Their testimonies, and that of the supervising coach, might have supported findings for or against fault-based liability in negligence, but no matter.  The defendant's conduct did not rise to the recklessness standard, and the trial court correctly awarded summary judgment to the defense.

The court framed its choice of the recklessness standard as a problem in duty.  Duty in tort law is determined "by reference to existing social values and customs and appropriate social policy," the court quoted precedent.  This point is significant for reasons related to the deeper mechanics of tort law.  Without diving into the problem here, it will suffice to say that the interrelationship of duty and fault standards sometimes matters, especially when a change in the relevant law occurs, whether through common law evolution or legislative enactment.

Co-defendant Suffolk University also won summary judgment.  The players had signed waivers of university liability in negligence, and the evidence failed to support gross negligence or recklessness in the coach's and university's supervision of the softball practice.

Superior Court Decision

In affirming, the Appeals Court opinion described the Superior Court's application of recklessness doctrine as "thoughtful."  That appraisal prompted me to seek a copy of the trial court opinion.

Regrettably, Massachusetts is a jurisdiction that thrives on secrecy in trial court records.  The Superior Court for Suffolk County, which includes the metropolis of Boston, puts dockets online, and the interface looks like the same software used by my home bar jurisdiction of Washington, D.C.  But links to document images, which D.C. has offered for a few years, are not available from the Massachusetts system.  Given the state of technology in the courts and in the country, I can attribute this omission only to willful obscurity.

Graciously, attorney Robert B. Smith (LinkedIn, Twitter), Demoura|Smith LLP, who represented Suffolk University softball head coach Jaclyn Davis, shared with me a copy of the memorandum decision in the Superior Court.  The court wrote:

[Defendant-player] Ball argues that because Brandt's injury occurred while she and Brandt were participating in an athletic event, she may only be liable for conduct that was willful, wanton, or reckless. Ball contends that she is entitled to summary judgment because Brandt has no reasonable expectation of proving her conduct was willful, wanton, or reckless. The court agrees.

"Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players' consent." Gauvin v. Clark, 404 Mass. 450, 454 (1989). "The courts are wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition." Id. Therefore, "a participant in an athletic event can be liable to another participant only when his or her actions amount to a willful, wanton, or reckless disregard for the safety of the other participant." Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000) [affirming summary judgment for defendant in golf-club-to-head case].

Brandt argues that the present case is distinguishable from those requiring a showing of willful, wanton, or reckless conduct because her injury was not caused by an opponent during a competition. However, the court declines to construe the broad language of the controlling cases in a manner that excludes Brandt's claim from their purview. Members of the same athletic team participating in a team practice are no less "participant[s] in an athletic event" than members of opposing teams during a game. [Cf.] Dugan v. Thayer Academy, [32 Mass. L. Rep. 657] (Mass. Super. Ct. 2015) (willful, wanton, or reckless standard did not apply where alleged negligence occurred before and after, but not during, athletic event [field hockey]). Accordingly, the willful, wanton, or reckless standard of care applies to Brandt's claim against Ball.

The appellate case is Brandt v. Davis, No. 19-P-1189 (Mass. App. Ct. Nov. 2, 2020).  Justice Joseph M. Ditkoff wrote the opinion for a unanimous panel that also comprised Justices Wolohojian and Maldonado.  The case below was Brandt v. Davis, No. 2017-00641-B (Mass. Super. Ct. Suffolk County Apr. 16, 2019).  Presiding in the Superior Court was Justice Mark C. Gildea, an alumnus of Suffolk Law.

Commonwealth wins two in tort: one, bad presentment; two, no duty to juvenile assaulted in contractor custody

The Commonwealth prevailed in two tort suits under the Massachusetts Tort Claims Act at the end of February.  One case, a slip-and-fall, was decided by the Massachusetts Supreme Judicial Court on the procedural ground of untimely presentment.  The other case, involving a physical assault on a juvenile with tragic consequences, was decided by the Massachusetts Appeals Court on the merits of attenuated duty and causation in civil rights liability.

Leicester Town Hall, 2006.
Photo by Pvmoutside CC BY-SA 3.0.

In the first case, "plaintiff, Katherine Drake, slipped and fell at Leicester High School while picking up her grandson during school hours. She suffered multiple injuries, including a fractured knee and wrist."  Drake mailed her presentment (notice, or demand) letter to the Town of Leicester precisely on the two-year anniversary of the accident.  The Massachusetts Tort Claims Act requires presentment within two years, and the Commonwealth moved to dismiss on grounds of untimeliness.

The Supreme Judicial Court declined to construe the statute liberally.  "Drake does not contend that her mailed letter could have arrived on that same day, nor does she contest that the office of the proper executive officer received the presentment letter ... a full two years and three days after she was injured," the court observed.  "Given our conclusion that presentment occurs upon delivery to the office of the proper executive officer," the court affirmed dismissal.

Long Island in Boston Harbor, 2008.  Photo by Doc Searles CC BY-SA 2.0.

The second case described horrific injury inflicted on a juvenile in state custody.  A "youthful offender," Williams was in Casa Isla, "a program for juvenile males located in a facility (now closed) on Long Island in Boston Harbor. Casa Isla was operated by Volunteers of America of Massachusetts, Inc. (VOA), a nonprofit entity under contract with [the Department of Youth Services (DYS)] to operate youth residential programs." (There were other problems at Casa Isla, e.g., MassLive, WBUR.)  During a flag football game, Williams was randomly attacked by a 17-year-old resident of another VOA-operated treatment program on the island, Project Rebound, who "said he wanted to get 'kicked out.'"  After the attack, Williams experienced worsening headaches and bodily pain, but initially was given only ibuprofen.  After later emergency medical intervention, Williams was diagnosed as having "suffered ... a middle cerebral artery stroke, seizures, and cerebral edema. As a result, he now has severe and permanent brain damage. Williams currently resides in a residential program and requires twenty-four hour care."

The last bridge to Long Island was demolished in 2015.
Photo by Eric Kilby CC BY-SA 2.0 (2017).

Upon suit under the Massachusetts Tort Claims Act, the courts rejected state liability upon various theories of DYS responsibility for the conduct of contractor VOA.  DYS and the Commonwealth had no direct involvement with the management of Casa Isla or Project Rebound, so had not even the predicate knowledge that might support liability on a civil rights theory.  Accordingly, the Appeals Court affirmed in rejecting theories of Eighth Amendment, supervisory, and vicarious liability.  Similarly, absent any affirmative act by state officials, the Commonwealth, conversely, remained within the protection of state sovereign immunity.

Associate Justice William J. Meade

Drake's case reinforces the importance of legal educators continuing to teach the 19th-century "mailbox rule," however much Generations Y and Z might not intuitively apprehend its logic.  Williams's case, however sorrowful the outcome, reinforces basic (no affirmative) duty doctrine in "constitutional tort."  As a policy matter, Williams's case also might raise questions about the wisdom of outsourcing juvenile custody without providing for public accountability.  Oh, and let's make a new rule: Anytime you're going to imprison people on a harbor island with a grisly history, that raises a red flag.

The cases are Drake v. Town of Leicester, No. SJC-12781 (Mass. Feb. 28, 2020) (Court Listener, Suffolk Law, Mass. Lawyers Weekly), and Baptiste v. Executive Office of Health and Human Services, No. 18-P-1353 (Mass. App. Ct. Feb. 28, 2020) (Justia).  Justice David A. Lowy wrote for a unanimous court in Drake.  Justice Meade wrote for a unanimous panel with Shin and Singh, JJ., in Baptiste.

For Veterans Day, let's push through Congress bipartisan Feres doctrine waiver for medmal claims

Veterans Day Painting.  (Details at end of story.)

The Federal Tort Claims Act (FTCA) authorizes tort actions against the U.S. federal government, waiving the government's sovereign immunity in its courts, subject to tight constraints.  The FTCA yields to the Feres doctrine, a rule of law named for the Supreme Court case that recognized it in the years following World War II.  The Feres doctrine disallows lawsuits by active-duty military for personal injury or death.  The Feres doctrine makes sense on the face of it, lest every injury in combat become a tort claim under the laws of the states. 

But the Feres doctrine's logic breaks down at the margins.  Increasingly in recent decades, healthcare has become big business and very expensive.  Military personnel have become dependent on the government for routine care.  And cases have been reported of medical malpractice at government hospitals: cases that unquestionably would yield medical malpractice claims in the comparable civilian context.  Insofar as the Feres doctrine is supported by a sort of "assumption of risk" by soldiers who go off to war, that theory feels ill fit to stateside medical mistakes in childbirth or prenatal care, or failure to diagnose terminal conditions. 

In spring 2019, the U.S. Supreme Court denied cert. in a challenge to this operation of the Feres doctrine (case at SCOTUSblog; details at and Stripes).  CBS Morning reported in August on the story of Sfc. Richard Stayskal, a Green Beret, now terminally ill, whose cancer was misdiagnosed, and on his emotional congressional testimony.

Bills (S.2451, H.R.2422) (not the first of their kind) that would authorize medmal tort claims for military personnel are stalled in House and Senate committees.  Fox46 Charlotte recently called out Sen. Lindsey Graham as an obstacle in the Senate for the bipartisan Sfc. Richard Stayskal Military Medical Accountability Act of 2019.  I hope Veterans Day might occasion placement of this fix on the short list of what Congress should be doing besides playing politics for the cameras this week.

(Image: Caroline Beattie, a senior at Manatee School for the Arts in Palmetto, Fla., painted a portrait of her Economics and Government teacher, for the school's Veterans Day program. Her teacher, Maj. Jennifer Pearson with the Air Force Reserve’s 920th Rescue Wing at Patrick Air Force Base, Fla., photographed the painting Nov. 6, 2019.  U.S. Air Force photo by Maj. Jennifer Pearson.)

Gruesome bone-in-burger case: verdict remanded for reconsideration of 'reptile,' 'golden rule' arguments

Willis Lam CC BY-SA 2.0

Reversing and remanding an order for new trial in a personal injury-product liability case over a $5 Wendy's hamburger, the Massachusetts Appeals Court today issued an opinion on jury argument fit to serve as a teaching tool in trial practice.

Plaintiff's counsel made improper "golden rule" and "reptile" arguments in closing, the Appeals Court concluded.  But the trial court did not fully and fairly assess whether prejudice resulted before rejecting the jury verdict and ordering a new trial.

In 2011, the 34-year-old plaintiff suffered a gruesome dental injury while eating a $5.64 small plain hamburger from the Wendy's fast-food restaurant in Medford, Massachusetts.  Skip this block quote (footnotes omitted) if you don't feel strong in the stomach today.  But if you're into this sort of thing, there's more in the opinion.

On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding and one of her upper left molars (tooth 14) was split in two. The injury was caused by a piece of bone in the hamburger.

The bone had split tooth 14 well below the gum line, and the dental nerve was sheared, bleeding, and exposed. The bone also caused minor damage to the opposing lower molar (tooth 19), which was easily repaired with a filling. But repairing tooth 14 was not a simple matter and required at least twenty-three trips to various dentists over the next two years.

In its 38-page opinion, the court gave a blow-by-blow of the entire trial, just two half-days, from opening to closing arguments with ample quotations.  That rendition in itself is a great teaching tool.

The salient problems arose for the plaintiff in the closing argument.  Long quotes are given in the opinion, but the trial judge summed it up.

[S]he concluded that plaintiff's counsel's closing argument (1) improperly created an "us versus them" dichotomy designed to distinguish "'us,' the average people" from "'them,' the big corporations"; (2) "improperly suggested that the jury decide the case as 'the voice of the community' to 'send a message' beyond the courtroom," and sought "to arouse in the jury a sense of duty to safeguard the community" from generalized safety concerns; (3) improperly invoked the "golden rule" by asking the jurors to place themselves in the plaintiff's shoes; (4) improperly interjected counsel's own personal opinions and beliefs; and (5) resorted to rhetorical principles "described in the book [D. Ball & D. Keenan,] Reptile: The 2009 Manual of the Plaintiff's Revolution" (book).

Oddly enough, I just this week read in the ABA Journal about how that Ball & Keenan book is vexing the defense bar.

The court recited the Massachusetts Guide of Evidence, section 1113(b)(3), listing prohibited closing arguments (and tracking multistate norms), and located plaintiff counsel's arguments within paragraphs (C) and (D):

(A) to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence;

(B) to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability;

(C) to appeal to the jurors' emotions, passions, prejudices, or sympathies;

(D) to ask the jurors to put themselves in the position of any person involved in the case;

(E) to misstate principles of law, to make any statement that shifts the burden of proof, or to ask the finder of fact to infer guilt based on the defendant's exercise of a constitutional right; and

(F) to ask the jury to disregard the court's instructions.

Nevertheless, the appeals court faulted the trial judge: "The judge acknowledged that she had given curative instructions but deemed them inadequate without explanation."  When the jury returned a verdict for $150,005.64, the lowest amount suggested by plaintiff's counsel, plus the cost of the hamburger, it came without evidence of prejudice.  The Appeals Court admonished "that a judge is not to 'act merely as a "13th juror" [to] set [the] verdict[s] aside simply because he would have reached a different result had he been the trier of facts'" (quoting precedent).

At minimum, the trial judge applied the wrong procedural standard, holding over the defense motion for mistrial from before the verdict to after, rather than requiring (or raising sua sponte) and analyzing a motion for new trial after the verdict.  Thus the Appeals Court vacated the new-trial order and remanded for proper consideration.

The case is Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., No. 18-P-1125 (Mass. App. Ct. Nov. 7, 2019).  Wolohojian, Blake, & Shin, JJ., were on the unanimous panel, the Hon. Gabrielle R. Wolohojian writing.  The trial judge was the Hon. Heidi E. Brieger, who teaches adjunct at her alma mater, Boston University Law School.  Matthew J. Fogelman appeared for the plaintiff.  In the 1990s, he was editor-in-chief of the student newspaper Argus at Wesleyan University.  Christopher A. Duggan and Pauline A. Jauquet represented defendants Wendy's and beef producer JBS Souderton, Inc.

Best friend of teen struck, killed by train may claim negligence without physical injury, appeals court rules

On a "zone of danger" theory, the Massachusetts Appeals Court last week reinstated the claim of negligent infliction of emotional distress by the teenage best friend of a girl struck and killed by an MBTA commuter train in Lawrence, Massachusetts.

Fence gap in NECN coverage, Oct. 31, 2014.  More from WCVB below.
Be warned, video surveillance captured girls' screams. 

Thirteen-year-old best friends Kiandra Calderon and Jenaira Fuentes were crossing rail tracks in between their homes and shops, where they bought Halloween costumes.  The court recounted, "For most, if not all, of the ten years during which the defendant [Royal Park, LLC] has owned the property, there have been large holes and gaps in the fence through which adults and children pass on a daily basis in order to reach nearby shopping plazas and the Lawrence High School." On Halloween 2014,Jenaira was struck and killed by an MBTA train.  "Kiandra, who was not struck by the train, tried to perform life saving measures on her friend and then remained close by as rescue personnel unsuccessfully tried to save Jenaira's life."

Kiandra sued on two counts, first, for negligence under the Massachusetts child trespasser statute, and second, for negligent infliction of emotional distress (NIED).  The court recognized that the two claims were essentially the same, because the trespasser statute provided the standard of care for the NIED, and the NIED provided the alleged injury required by the trespasser statute.  According to the pleadings, Kiandra's suffering was so severe that it manifested physically, as NIED claims typically require at minimum, requiring medical treatment for "anxiety, depression, sleeplessness, night terrors, nightmares, diminished appetite and food intake, bouts of extreme anger, behavioral problems at home and school, poor educational performance, and self-harm."

Even so, NIED claims are typically disallowed in the United States.  Negligence, or foreseeable accident, is regarded as too thin a reed on which to hold a defendant responsible for the merely emotional suffering of another, in the absence of physical injury.  Imagine if every romantic breakup resulted in an NIED lawsuit.  Whatever tort reformers or foreign observers might think, the United States isn't that lawsuit crazy.

There are exceptions, though, to the no-NIED rule.  Massachusetts is among the states that have kept the door open for the occasional compelling theory of NIED, not rejecting the notion outright.  And there are exceptions that are widely accepted.  Courts throughout the states are willing to award NIED recoveries to plaintiffs who were in the "zone of danger" themselves, even if narrowly escaping physical injury, reasoning that the physical threat was sufficient to make emotional distress claims credible and verifiable.  A smaller number of states are willing to award NIED recoveries to a narrow class of bystanders, those who contemporaneously witness physical injury inflicted on a close family member.

Kiandra's counsel tried to bring her within the bystander category by pleading the closeness of the teens' best friendship; the trial court was not moved.  However, the Appeals Court held, the trial court failed to consider Kiandra's own position in the zone of danger.  The girls were walking the tracks together, and just one was struck and killed.  Pending further development of the facts, it looks like Kiandra was in much the same jeopardy as her friend (see the WCVB video above, but be warned, the audio tough to hear).  The court sharply distinguished bystander NIED recovery from zone-of-danger recovery.  In the latter case, the plaintiff is a direct victim of the defendant's negligence, not an indirect sufferer as witness, and need not prove a close family relationship.  The court reversed and remanded for Kiandra to pursue her day in court.

The case is Calderon v. Royal Park, LLC, No. 18-P-1014 (Mass. App. Ct. Sept. 10, 2019).  Vuono, Wolohojian, and McDonough, JJ., were on the panel.

Appeals court rejects landowner liability for 'open and obvious' danger of backyard zipline

The same day the Massachusetts Supreme Judicial Court decided the Boston Globe case this week, the Court of Appeals affirmed summary judgment for the defendants against a landowner liability claim in which a six-year-old was injured on a backyard zipline.

A backyard zipline with a child safety seat. (Larry Koester CC BY 2.0.)

A handy defendant had installed the backyard zipline himself.  Six-year-old Aaron was visiting with his father to pick up Aaron's older brother from a sleepover.  The father aided Aaron in trying out the zipline, but after giving the boy some freedom, Aaron lost his grip, fell, and suffered compound fractures to his arm, requiring multiple surgeries.

Plaintiffs sued in landowner liability, alleging an unreasonably dangerous condition, as the zipline lacked a safety seat that could have prevented such an accident.  Defendants answered that the danger of the zipline, including the lack of a safety seat, was open and obvious, so negated the landowner's duty.

The court agreed that the condition was open and obvious, which somewhat negates the duty of a landowner, because it is the open-and-obvious nature of the hazard that makes it unforeseeable that the guest would fail to exercise reasonable care.  Plaintiffs argued that the condition was not open and obvious to the perception of a six-year-old.  The court held that when the child is under adult supervision, it is the perception of the adult, not that of the child, that controls.

However, the court held that an open and obvious condition does not necessarily negate a duty to abate an unreasonably dangerous condition "when the owner knows or has reason to know that visitors might nonetheless proceed to encounter the danger for a variety of reasons, including being distracted, forgetful, or even negligent, or deciding that the benefits of encountering the condition outweigh the risks."  Still, the court found the record "devoid of evidence that the zip line was unreasonably dangerous, or that the defendants facilitated an 'improper' or 'highly dangerous use' ...."

The conclusion is sound, but the reasoning highlights a problem with persistent common law doctrines that revolve around "open and obvious danger."  There is a tendency for litigants and courts to indulge "open and obvious" as a magical incantation that changes the rules of the match, such as here, to negate a duty of care.  Yet as the court observes, the doctrine does not necessarily negate the duty of care.  This approach gets legal duty analysis tied up in a web of factual intricacy that is not what policy-driven landowner duty is supposed to be about.

Harry Potter magic duel 095/365 (Louish Pixel CC BY-NC-ND 2.0)

Rather than indulging in a tennis match between duty, no duty, and duty again!, the courts should recognize that "open and obvious" is a factual circumstance, so goes to the standard of reasonable care exercised in warning about the danger or abating it.  That's where this case winds up anyway.  And just because it's a reasonableness analysis doesn't mean the court cannot, as here, dispose of the case in pretrial summary judgment when ordinary minds could not differ on the outcome.

I teach landowner negligence (page 25), or premises liability, with "open and obvious" as a matter of evidence rather than a sort-of defense, and I think that's the cleaner doctrine.  But I always have to warn students to watch out, in any given jurisdiction, that a judge might be entranced when counsel waves her wand and utters the spell, "Openanobvius!"

The case is LaForce v. Dyckman, No. 18-P-1234 (Mass. App. Ct. Sept. 9, 2019).  Sullivan, Massing, and Lemire, JJ., were on the panel.