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Tort Liability:

Here's a case I ran across in preparing for my Torts class this Fall; I hadn't heard about it before, so I thought I'd note it here. The case is Touchette v. Ganal, 922 P.2d 347 (Haw. 1996), and it stems from horrific multiple murders perpetrated by Orlando Ganal. Orlando's wife had an affair with David Touchette, and after Mabel eventually left Orlando, Orlando killed his and Mabel's son, Mabel's parents, and several family members of Touchette's. (Touchette wasn't injured, and Mabel was injured but not killed.)

Touchette's remaining family members proceed to sue ... Mabel. One of their theories was that Mabel was responsible for not adequately controlling Orlando, or at least for not adequately warning people about his dangerousness. But the Hawaii Supreme Court rejected that, adhering to the general rule that people have no legal duty to try to prevent crimes by their spouses.

Yet then the Hawaii Supreme Court held that Mabel could be liable, not on the theory that she didn't do enough to control her husband, but on the theory that what she did was negligent. And what was that?

[The] complaint against Mabel in the present case alleges affirmative conduct, or alleged "misfeasance" on the part of Mabel, in that "defendant Mabel Ganal initiated and maintained a course of conduct which involved taunting and humiliating defendant Orlando T. Ganal, Sr. by flaunting her extra marital love affair with David Touchette," and that "defendant Mabel Ganal's extra marital love affair with David Touchette, and her conduct of taunting and humiliating defendant Orlando T. Ganal, Sr. with respect to that affair, caused defendant Orlando T. Ganal, Sr. to suffer severe and extreme emotional and mental distress and depression," thereby implicating the duty described by sections 302, 302A and 302B....

[T]he allegations state a claim that potentially could warrant relief under a theory based on the duty stated in sections 302, 302A and/or 302B.... [W]e vacate the circuit court's order granting Mabel's motion to dismiss and remand for further proceedings consistent with this opinion.

Section 302B (of the Second Restatement of Torts) provides, "An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal." After plaintiffs won at the Hawaii Supreme Court, and had their claim reinstated, the case settled, for an amount that is not a matter of public record.

Now I certainly don't endorse cheating on one's spouse, or "taunting and humiliating [one's spouse] ... with respect to that affair." But it seems to me that people should not have a legal obligation to organize their love lives in order to avoid "unreasonabl[y]" provoking mentally unstable spouses or lovers.

What's more, the court's rationale is hardly limited to cheating spouses, since the court expressly rejected the theory that the spousal relationship itself created liability. Rather, it's based on a broad theory that certain kinds of behavior towards people may be negligent if they "involve[] an unreasonable risk" of provoking a criminal attack. An ex-girlfriend who breaks up with an ex-boyfriend in a supposedly unreasonably "humiliating" way might well be equally liable.

After all, the risk of violent reaction by the ex-boyfriend might be as great, and as foreseeable, as the risk of violent reaction by the husband. Perhaps as a class husbands would be more upset than ex-boyfriends, because they might have built up greater expectations of lifelong commitment. But certainly some jealous ex-boyfriends might well pose a high risk of violent retaliation against their ex-girlfriends' new boyfriends' families. And certainly the ex-girlfriend might well know that the ex-boyfriend has such a tendency.

This is an example of something I've remarked on before: how tort law sometimes unduly interferes with people's liberties. People should be free to leave their lovers, and even "flaunt[]" their new relationships, without a government agency deciding whether such behavior was "unreasonabl[e]" and imposing legal liability based on such a decision. Even if this is not so as to cheating during a marriage, it should certainly be so as to leaving a spouse or a lover, and as I said the court's rationale would equally apply in such a situation — this wasn't a divorce claim or an alienation of affections (or criminal conversation) lawsuit premised specifically on a spouse's adultery, but a claim that could equally well apply with no adulterous conduct at all.

Nor is it sufficient that a jury might reject the plaintiff's claim. If the claim can go to the jury, and can't be quickly and comparatively inexpensively disposed of on a motion to dismiss, then the expense and risk of litigation pressures defendants to settle, even if a jury might eventually do the right thing after hundreds of thousands of dollars in fees are spent. The government is thus still interfering with people's liberty to deal with their love lives as they see fit, without fear of government-imposed liability for supposedly unreasonable "flaunt[ing]" of one's new relationships.

Naturally, people who are involved with people who seem likely to become murderers already feel plenty of constraint on their liberty. They may well be too scared to leave a lover or spouse, may feel the need to hide any new relationships, and may feel the need to soft-pedal matters around the lover or spouse, rather than telling the truth about how they really feel. I just think that the law shouldn't add to that constraint on liberty, even in the service of trying to prevent future murders.

frankcross (mail):
I would distinguish between finding a dubious decision and asserting all sorts of societal implications. In the thirteen years since this decision was rendered, has it spawned any litigation?
8.3.2009 5:26pm
MCM (mail):
Isn't there pretty much already a duty not avoid causing emotional distress, giving rise to NIED and IIED claims? How is this different?
8.3.2009 5:29pm
Steve:
People should be free to leave their lovers, and even "flaunt[]" their new relationships, without a government agency deciding whether such behavior was "unreasonabl[e]" and imposing legal liability based on such a decision.

I guess it's a bit of a rhetorical flourish to pretend like the jury system is equivalent to a bureaucrat sitting in a government agency somewhere making rules about liability, but I don't see how it adds much to the argument.

In our common-law system, juries - a cross-section of the population - have pretty broad power to decide who has tort liability to whom, subject only to limitations imposed by judges... who are not exactly extra-governmental actors themselves. The only reason Mrs. Palsgraf cannot recover from the Long Island Railroad is that a bunch of government employees in black robes decided her claim did not meet their criteria.

I dunno, maybe the common law is at cross-purposes with freedom. But I don't see the alternative within our system of government - either we let juries define the appropriate scope of legal duties, or we let legislatures and courts do it for them. If we're not going to recognize a valid cause of action against Mabel, and maybe we shouldn't, someone has to make that decision. Either a jury, or a governmental actor.
8.3.2009 5:30pm
MCM (mail):
Err, "a duty to not cause" or a "a duty to avoid causing".
8.3.2009 5:31pm
troll_dc2 (mail):
So Mabel becomes an insurer. Whatever happened to the concept of foreseeability?
8.3.2009 5:34pm
bobh (mail):
Steve: I also immediately thought about Palsgraf when I read this sentence. That ol' law-school training runs deep.
8.3.2009 5:35pm
Pro Natura (mail):
I'm not sure you've spent much time living with the lower classes, Professor Volokh. In my grad student days I lived next to a married couple where the wife would at least once a week loudly and publicly humiliate her husband with descriptions of what a lousy provider and lover he was. She'd suggest that she had lovers who were superior to him in every way and that he was even less of a man because he did nothing about this. This woman made sure everyone in the immediate neighborhood heard what she was saying. At some point, a minor brawl would usually ensue.

I'd argue that this level of taunting combined with an open flaunting of the lover might very well drive a husband to commit horrific crimes and that the wife has to have knowledge of this. In this case, at least, I'd argue that allowing a tort against the woman would be both reasonable and good public policy in that it might discourage some of the more egregious public disorders that malevolent shrews like her instigate.
8.3.2009 5:41pm
MCM (mail):
So Mabel becomes an insurer. Whatever happened to the concept of foreseeability?


I can't remember, but does the full extent of the damage need to be forseeable? I seem to remember that only the possibility of the same type of harm has to be forseeable. Seems forseeable that if you taunt a man into a jealous rage, then he might act violently.
8.3.2009 5:42pm
PatHMV (mail) (www):
It's one thing to break up with somebody. It's another thing to obsessively rub that person's nose in it. To do so when you know that the person is mentally unstable seems quite negligent to me.

That recognizing such a cause of action, taken to the extreme, could impose liability on actions and words which are merely emotionally harmful, is not itself a good reason to say that no such liability should exist at all.

For example, leaving aside all issues of statutory and regulatory speed limits, the common law of tort itself can find that some level of speed is unsafe for the conditions of the road, and thus any accident resulting from such negligently excessive speed is the legal fault of the speeder. Taken to extremes, this means that the common law could limit us to driving at 1 or 2 miles per hour. But in practice, the courts recognize reality and do their job to discern the negligent from the ordinary.

As I read the excerpts you quote, the court was not faulting Mabel for breaking up with him, but for taunting him about it in an extreme manner. If you want to behave like a complete ass, that's your right to do so, but I have a right in our society to collect damages, should your acting like a complete ass cause me harm, even if, in the absence of any harm to me, you would be entirely within your rights to do exactly what you did.

It's well settled that a business can be held liable for rapes or other crimes which happen partly as a result of inadequate lighting or other security measures. I don't see why this should be any different, just because Mabel was married to the criminal.

All that is premised on the idea that Mabel did something more than just leave Orlando, and that her actions rather fail the "reasonable person" test. If she acted no different than most folks do in a relatively acrimonious break-up, and Orlando was overly-sensitive to such things, I might hold that his reactions were not reasonably foreseeable, or that her freedom to enter and leave relationships overrides any other legal duty.

One should not, obviously, be held liable for leaving a spousal abuser simply because it is predictable that he will go ballistic and harm folks. Julia Roberts should not be held liable for the harm done to her Kevin Anderson by Patrick Bergin in Sleeping With the Enemy. But if Julia had left Patrick openly, then spent the next week making out with her new boyfriend in public in front of their former marital abode, and called him several times a week to tell him how much better the new guy was in bed, well, then, I think that should probably be actionable against both Julia and the new boyfriend, when the ex goes psycho.
8.3.2009 6:00pm
TRE:
I don't understand why you think people shouldn't have an obligation to not unreasonably provoke mentally unstable people when it could result in harm to others.
8.3.2009 6:13pm
SuperSkeptic (mail):
Now I certainly don't endorse cheating on one's spouse, or "taunting and humiliating [one's spouse] ... with respect to that affair."

seems like precisely the kind of behavior "public policy" would/should discourage, and if I recall correctly, that is basically the most important thing in torts arguments - besides "deep-pockets."

It does seem to fit the restatement section (as worthless as they are), but I would agree with the above commenter that this is the type of claim that actually is IIED, as opposed to the frivolous tack-on IIED claims...
8.3.2009 6:14pm
PatHMV (mail) (www):
One of the fundamental purposes, I think, of tort law is to allow society to hold people responsible for the harm that they cause without creating a rigid structure of government rules and regulations saying what one may and may not do. You can do X, since it's not prohibited by law, but if you do X and it results in harm to somebody, it's your nickel. It's cost-shifting, not punishment, as a general rule (to which, of course, there are numerous exceptions). Most of the time, the law has historically gotten it fairly right, shifting costs to those best in a position to avoid the damages. They remain free to do as they like, so long as they're willing to accept the risk that they cause damage.

Does such a rule in this case increase the odds that a woman will be even more hesitant to leave an abusive spouse? I seriously doubt it. First, women who are genuinely scared of their spouses and who are not themselves psychotic are very unlikely to "flaunt" their behavior (again, I caveat that I am assuming that Mabel really did flaunt her new relationship to Orlando, that she did something more than just fail to hide the fact that she was seeing somebody new). Second, the primary fear of such a woman is that she and her children will be killed by the husband or lover. Adding the risk of paying damages to the risk of being dead is a fairly minimal increase in the perceived risk. "Oh, man, I better not leave him; if he goes psycho and tries to kill me and by lover and my lover's family, and I'm only injured, I might get stuck with liability."
8.3.2009 6:21pm
Crunchy Frog:
Slip out the back, Jack
Make a new plan, Stan
There's no need to be coy, Roy
Just listen to me

Hop on the bus, Gus
There's no need to discuss much
Just drop off the key, Lee
And get yourself free

Paul Simon - "50 Ways To Leave Your Lover"
8.3.2009 6:39pm
Oren:

People should be free to leave their lovers, and even "flaunt[]" their new relationships, without a government agency deciding whether such behavior was "unreasonabl[e]" and imposing legal liability based on such a decision.

They are also free to judged by a jury of their peers for tortious behavior.


Nor is it sufficient that a jury might reject the plaintiff's claim. If the claim can go to the jury, and can't be quickly and comparatively inexpensively disposed of on a motion to dismiss

Wow, so the right to bring claims and have them heard by an impartial jury in the centuries old tradition of English Common Law must be subordinated to mere inconvenience and expense?!

One wonders what other fundamental legal rights you are willing to suborn for "convenience".
8.3.2009 6:41pm
Oren:

... called him several times a week to tell him how much better the new guy was in bed ...

This should probably be IIED even the absence of mental instability.
8.3.2009 6:43pm
Oren:
EV, sorry my 6:41 was over the top.

In some fundamental sense, however, I think the dispute is a legitimate one. Conservatives and liberals disagree about the relation of justice to expediency and that disagreement manifests itself in statements such as yours (the one I quoted).

To my sensibilities (and as evidence in somewhat hyperbolic form), the right to make a case in front a jury is an fundamental right (the 7A lends some support to that theory) that is effectively immune to policy-level attack.

When it comes to these fundamental rights, fiat justitia ruat caelum, I just cannot stomach comparing or weighing them against anything.
8.3.2009 6:52pm
A.:
Boo hoo, the poor man was in a jealous rage, so that makes it ok. It's not his fault--she hurt his feelings! Nonsense. People are and should be held responsible for their choices, and no words justify/provoke/indemnify violence. Not every wrong is right-able, and not every injury is compensable.

No cause of action should exist and no opportunity should be given to juries to compensate hurt feelings or punish hurtful-but-not-slanderous statements.
8.3.2009 7:00pm
Rebelyell:
Even if the court said it wasn't basing its decision on the fact that the woman was committing adultery, I think it was.

This woman had a duty not to sleep with other men while she was married to her husband. She breached this duty, and as a result several people were killed. So the issue becomes, did she know her actions would cause harm to others? If so, her breach of her duty to her husband caused the harm to others.

Once she had put these people's lives in danger, she at least had the duty to warn. She set the building on fire, as it were, and had an obligation to inform everyone else of the need to get out.
8.3.2009 7:01pm
Brian S:

I don't understand why you think people shouldn't have an obligation to not unreasonably provoke mentally unstable people when it could result in harm to others.


Well, the state can pre-emptively hospitalize anyone who it judges to be a threat to themselves and to others.

Since Orlando was not hospitalized in this manner, the state did not regard him as a threat to anyone.

To me, that should preclude any finding by a court - criminal or civil - that anyone else should have been able to reasonably foresee that he would act violently.

302(B) is monstrous. If my actions are lawful, I should be entitled to assume that the actions of everyone else will be lawful. I should incur no more liability for Orlando's actions than I would incur if I gave someone a ride to a bad neighborhood, and after they got out of my car they got mugged.


Conservatives and liberals disagree about the relation of justice to expediency and that disagreement manifests itself in statements such as yours (the one I quoted).

To my sensibilities (and as evidence in somewhat hyperbolic form), the right to make a case in front a jury is an fundamental right (the 7A lends some support to that theory) that is effectively immune to policy-level attack.


Do you really think the argument here is justice vs. expediency?

I think the problem is more that there aren't sufficient bounds on the ability of juries to assign liability, and that results in cases that are gross miscarriages of justice. In this particular instance, due to the ruling of the court an absurd claim was allowed to proceed, and the defendant was harmed merely by being forced to defend themselves against an absurd claim. If a judge somewhere ruled that a claim that a plaintiff suffered emotional distress because I didn't stop it from raining on the weekend could go forward to a jury, I would regard the imposition of costs on me to defend myself against such a frivolous and absurd claim to be an injustice in and of themselves.
8.3.2009 7:06pm
A.:

This woman had a duty not to sleep with other men while she was married to her husband. She breached this duty, and as a result several people were killed. So the issue becomes, did she know her actions would cause harm to others? If so, her breach of her duty to her husband caused the harm to others.


This is nonsense. The woman had no legal duty not to sleep with other men. None. Welcome to modernity.

Furthermore, even if she were to have such a duty, it would (presumably? unless we're talking about some cult-like setting in which all own everyone?) run to her husband, not to the victims of her husband's crimes. He might have a cause of action, but they wouldn't.
8.3.2009 7:13pm
Steve:
Since Orlando was not hospitalized in this manner, the state did not regard him as a threat to anyone. To me, that should preclude any finding by a court - criminal or civil - that anyone else should have been able to reasonably foresee that he would act violently.

This theory that nothing is foreseeable, unless the government takes steps to prevent it, seems like it's going to run into logical difficulties at some point.
8.3.2009 7:24pm
frankcross (mail):
I see the murderous rage thing as pretty unforeseeable. Usually criminal acts break the chain of proximate cause. Conceivably, the defendant had knowledge of the foreseeability of such a murderous rage, but if that were so, she probably wouldn't have taunted him so. As always, though, we're all speculating about the facts, when the court had a factual record.
8.3.2009 7:35pm
pmorem (mail):
The following in no way excuses or justifies the actions of Orlando. He could have ended his torment by withdrawing from the situation. That was his weakness. He owns his choices and actions, and for that he should pay.

It seems likely to me that Mabel was deliberately seeking to provoke emotional response from Orlando.

It further seems likely that her intent was to see that she had caused him harm.

Sometimes people can be very cruel within the breaking of a relationship. If you've never been through or around such a thing, you probably can't relate.

She saw the result of her actions, and persisted or even increased her efforts.

It appears that her intent was to destroy Orlando.

It is generally known that sometimes mentally destroyed people will 'snap' or 'go postal', with dire consequences.

Stringing it all together, due to her malicious intent, Orlando was mentally destroyed and the collateral damage of that fell upon the Touchette family.
8.3.2009 7:45pm
David M. Nieporent (www):
One of the fundamental purposes, I think, of tort law is to allow society to hold people responsible for the harm that they cause without creating a rigid structure of government rules and regulations saying what one may and may not do.
I thought the fundamental purpose of tort law was to allow a trial lawyer to hold the person with the deepest pockets responsible for the harm caused by someone else.

Such as, e.g., a woman for the harm caused by her husband.
8.3.2009 7:52pm
JohnO (mail):
For those who thyink it's a matter for the jury, what if the wife simply left her husband and filed for divorce, knowing full well that he was insane and homicidal. Could her sister's family sue her if the husband flew into a rage and killed the wife's sister?

I just have a hard time seeing how legal action in a social relationship can be the legally-responsible cause of criminal acts by someone aggrieved by your actions in the social relationship.
8.3.2009 7:55pm
Oren:

Boo hoo, the poor man was in a jealous rage, so that makes it ok. It's not his fault--she hurt his feelings! Nonsense.

Blame is not a zero-sum game -- she can be at fault without subtracting even one iota from his blameworthiness.


Do you really think the argument here is justice vs. expediency?

I think the problem is more that there aren't sufficient bounds on the ability of juries to assign liability, and that results in cases that are gross miscarriages of justice.

Sorry, the judgment of the jury is the manifestation of Justice in Common Law.


In this particular instance, due to the ruling of the court an absurd claim was allowed to proceed, and the defendant was harmed merely by being forced to defend themselves against an absurd claim.

Whatever inconvenience he suffers is trifling compared to preserving the inestimable right to bring a case before the jury.


If a judge somewhere ruled that a claim that a plaintiff suffered emotional distress because I didn't stop it from raining on the weekend could go forward to a jury, I would regard the imposition of costs on me to defend myself against such a frivolous and absurd claim to be an injustice in and of themselves.

As well you should, but that cost amount to little when stacked up against the fundamental right of the plaintiff to be heard.
8.3.2009 8:00pm
Oren:

I see the murderous rage thing as pretty unforeseeable.

Really? Calling your ex-husband to tell him how much better your new guy is bed does not strike as the sort of thing that might enrage someone?
8.3.2009 8:02pm
David Schwartz (mail):
If you and I enter into a boxing match, and my punch kills you, can your manager sue me for the loss of your income?

The IIED argument is a red herring. Nobody is suing her for inflicting mental distress. The mental distress was caused as part of a consensual relationship that either party could have walked away from.

There is no duty not to enter into boxing matches because of the costs boxing injuries might impose on innocent third parties.
8.3.2009 8:19pm
SuperSkeptic (mail):
This is nonsense. The woman had no legal duty not to sleep with other men. None. Welcome to modernity.

Interesting. Since modernity has dictated that contracts like marriage are meaningless, why not abolish them entirely instead of expanding the scope of who (thegays) may enter such meaningless, antiquated contracts?

Sounds to me like a great case for State abdication all together. Since the State insists on voiding the legal duty, why recognize the contract legally at all?

Oh yeah - state subsidizing/tax breaks...my mistake...I forgot that that was all marriage was about in modernity.
8.3.2009 8:20pm
David M. Nieporent (www):
As well you should, but that cost amount to little when stacked up against the fundamental right of the plaintiff to be heard.
There is no such "fundamental right." Your paean to "centuries" of common law notwithstanding, there is no such tradition of being able to bring any claim before a jury simply because one is audacious enough to bring it. (Consider, for example, that privity was formerly required for products liability type claims.)
8.3.2009 8:46pm
alkali (mail):
This strikes me as more of a pleading issue.

The complaint in this case talks generally about taunting without providing any specifics. One can imagine some extreme kinds of taunting and efforts at intentiomal humiliation that would give rise to liability on an intentional infliction of emotional distress kind of theory (although liability to third parties would certainly be a legal step beyond that). At the same time, if all that is at issue here is that a woman separated from her husband had a relationship with another man without keeping it a CIA-type secret, that is not the kind of activity that one would expect to give rise to liability.

Accordingly, if I were the grand poobah of Hawaii civil procedure, I would have dismissed this case for failure to satisfy Rule 8's requirements of notice pleading, but permitting plaintiff to file an amended complaint correcting the deficiency, if she can.

(Law nerds: Hawaii's rules generally follow the FRCP. I suspect but am not sure that this 1990s-era complaint would be dismissed by a federal court under modern Twombly/Iqbal pleading standards. I have no idea whether Hawaii state courts now follow Twombly/Iqbal.)
8.3.2009 8:49pm
Siskiyahoo:
Does anyone know whether the case was tried? Does anyone care?
8.3.2009 9:14pm
Eugene Volokh (www):
Siskiyahoo: As the post mentioned, the Hawaii Supreme Court vacated the grant of the motion for dismiss, and after that happened, "the case settled, for an amount that is not a matter of public record." There thus was no trial.
8.3.2009 9:27pm
David Hardy (mail) (www):
How does sec. 302 interface with sec. 318 (I think, going off memory here), providing that one is not generally liable for failure to prevent acts of a third party (including foreseeable ones, as I recollect?).
8.3.2009 9:47pm
MCM (mail):

Boo hoo, the poor man was in a jealous rage, so that makes it ok. It's not his fault--she hurt his feelings! Nonsense.


He was already convicted of multiple counts of first degree murder and sentenced to life in prison. Don't be an idiot.
8.3.2009 10:03pm
markm (mail):

Pro Natura (mail):
I'm not sure you've spent much time living with the lower classes, Professor Volokh. In my grad student days I lived next to a married couple where the wife would at least once a week loudly and publicly humiliate her husband with descriptions of what a lousy provider and lover he was.
...
In this case, at least, I'd argue that allowing a tort against the woman would be both reasonable and good public policy in that it might discourage some of the more egregious public disorders that malevolent shrews like her instigate.

Tort law doesn't do much to restrain the judgment-proof. Most middle-class couples in the middle of a messy breakup, let alone "lower class", aren't going to have enough left to even pay the lawyers in a case such as this.
8.3.2009 10:36pm
markm (mail):
If Mabel is responsible to some degree, how about her lover?
8.3.2009 10:38pm
Oren:

There is no such "fundamental right." Your paean to "centuries" of common law notwithstanding, there is no such tradition of being able to bring any claim before a jury simply because one is audacious enough to bring it.

I don't see a lot of support for repealing the 7th amendment. Anyone? Bueller?

The Framers saw the right to civil trial by jury (for matters at common law) to be worthy of inclusion in the bill of rights -- that alone should be a strong sign that it is as important as any other fundamental right.
8.3.2009 10:45pm
Bama 1L:
The woman had no legal duty not to sleep with other men. None. Welcome to modernity.

Even if she promised not to?
8.3.2009 10:49pm
PatHMV (mail) (www):
It would be helpful if those who comment on the case state clearly whether they believe the cause of action is based solely on the mere fact of adultery and the break-up of the marriage, or whether they believe the cause of action is based on significant "taunting" and other actions that go far beyond merely breaking up with him or merely sleeping around on him.

As I noted in my earlier comments, I agree that there should be no cause of action based on merely breaking up with him or sleeping around on him, but I do think that she could and should be held liable if she went far beyond that, constantly taunting him and striving to "break" him.
8.3.2009 10:51pm
SuperSkeptic (mail):
If Mabel is responsible to some degree, how about her lover?

Personally, I say yes, legally no. because:

It would be helpful if those who comment on the case state clearly whether they believe the cause of action is based solely on the mere fact of adultery and the break-up of the marriage, or whether they believe the cause of action is based on significant "taunting" and other actions that go far beyond merely breaking up with him or merely sleeping around on him.

Legally (anymore), I'm with Pat here. It's the taunting that is the hook.
8.3.2009 10:58pm
Bama 1L:
This strikes me as more of a pleading issue.

Considering this is the reversal of a dismissal on a 12(b)(6), this very much is a pleading issue.

Most middle-class couples in the middle of a messy breakup, let alone "lower class", aren't going to have enough left to even pay the lawyers in a case such as this.

In this case, though, the defendant may have been particularly attractive. Leaving aside any insurance Mabel may have carried against her own negligence, she had likely collected life insurance benefits on her parents and child. The plaintiffs were after that money.
8.3.2009 10:58pm
Steve:
IIED requires "extreme and outrageous" conduct. That element would not be satisfied if the wife simply filed for divorce, or even if she had a garden-variety affair and he found out, but it certainly seems like a jury question whether the degree of taunting alleged here rose to that level.
8.4.2009 12:50am
David Schwartz (mail):
Is a jury question whether the degree of force used in a boxing match is extreme and outrageous? Isn't it just about whether it's in accord with the rules both boxers agreed on?
8.4.2009 4:22am
NickM (mail) (www):
Oren - at the time of the Framers, a tort claim had to fall within a recognized writ.

There is another fundamental value you are forgetting: the First Amendment. Consider Hustler v. Falwell - would you have allowed relatives of the deceased to sue Hustler if Jerry Falwell had gone berserk after seeing the outhouse parody and started killing employees of Hustler? If yes, aren't you flying in the face of Supreme Court precedent that is rather broadly approved across the political spectrum? If no, what is the material difference between that hypo and this case?

Nick
8.4.2009 5:00am
MCM (mail):
If Mabel is responsible to some degree, how about her lover?


As has already been mentioned MULTIPLE TIMES, he was tried and convicted of first degree murder and sentenced accordingly. They weren't suing him here, probably because he didn't have any money or insurance.
8.4.2009 9:11am
MCM (mail):
There is another fundamental value you are forgetting: the First Amendment. Consider Hustler v. Falwell - would you have allowed relatives of the deceased to sue Hustler if Jerry Falwell had gone berserk after seeing the outhouse parody and started killing employees of Hustler? If yes, aren't you flying in the face of Supreme Court precedent that is rather broadly approved across the political spectrum? If no, what is the material difference between that hypo and this case?


Have you even read Hustler v. Falwell? You want a "material difference"? Two words: public figure.
8.4.2009 9:15am
MCM (mail):
As has already been mentioned MULTIPLE TIMES, he was tried and convicted of first degree murder and sentenced accordingly. They weren't suing him here, probably because he didn't have any money or insurance.


Oh. Lover. Not husband. Yeah... better go get that coffee...
8.4.2009 9:17am
neurodoc:
TRE: I don't understand why you think people shouldn't have an obligation to not unreasonably provoke mentally unstable people when it could result in harm to others.
Was there something to peg Orlando Ganal as clearly "mentally unstable," prone to violent eruptions, before he went on his murderous rampage? It's difficult to assess with any confidence a person's dangerousness, especially in the absence of a history of violance. So the foreseeability question might be greater in a case like this one than in those not revolving on what another party might or might no do when provoked.

I don't imagine that Mabel Ganal had substantial assets to go after, so expect that it was the insurance carrier who saw fit to settle with the plaintiffs for however much they paid under a homeowner's policy. Absent a homeowner's policy, there probably would have been no lawsuit, let alone appeal of a trial court's decision, since how often are impecunious parties sued?
8.4.2009 9:23am
pmorem (mail):
Nick,

That's a useful point for drawing distinctions. To be similar, it would require:
1- Personal knowledge of the target (Falwell)
2- Malicious intent towards the target
3- Personally directed against the target
4- Persistence after the target became irrational.
5- Connection between attacker and deceased

To make it similar would require something like Larry Flynt running a psych profile on Fallwell, and then something like setting up a big-screen TV outside Falwell's house (or inside, as Mabel reached inside Orlando's home) and displaying pornographic images involving Falwell's family.

I'm not sure it could be done to a stranger without violating some other law (like Trespassing, harassment, etc).
8.4.2009 9:27am
Oren:

There is another fundamental value you are forgetting: the First Amendment. Consider Hustler v. Falwell - would you have allowed relatives of the deceased to sue Hustler if Jerry Falwell had gone berserk after seeing the outhouse parody and started killing employees of Hustler? If yes, aren't you flying in the face of Supreme Court precedent that is rather broadly approved across the political spectrum? If no, what is the material difference between that hypo and this case?

Hustler v. Falwell turns on the fact that Falwell is a public figure.
8.4.2009 12:56pm
Seamus (mail):

So Mabel becomes an insurer. Whatever happened to the concept of foreseeability?


It's there in the language of section 302B that only makes the defendant liable if he or she "realizes or should realize that [his or her action or omission] involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal."


The woman had no legal duty not to sleep with other men. None. Welcome to modernity.



So sexual freedom trumps all other generally applicable legal principles? The problem is in how broadly section 302B is written. If you don't like it being used to restrict people's sexual freedom, then rewrite it (in some way that doesn't just add "unless the act in question is one of fornication, adultery, marital intercourse, sodomy, bestiality," etc.).
8.4.2009 1:49pm
NickM (mail) (www):
Oren, the dicta there go far beyond that.


"[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. [485 U.S. 46, 56] For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." Id., at 745-746.

See also Street v. New York, 394 U.S. 576, 592 (1969) ("It is firmly settled that . . . the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers").
Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations. We recognized in Pacifica Foundation, that speech that is "`vulgar,' `offensive,' and `shocking'" is "not entitled to absolute constitutional protection under all circumstances." 438 U.S., at 747 . In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), we held that a State could lawfully punish an individual for the use of insulting "`fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id., at 571-572. These limitations are but recognition of the observation in Dun &Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985), that this Court has "long recognized that not all speech is of equal First Amendment importance." But the sort of expression involved in this case does not seem to us to be governed by any exception to the general First Amendment principles stated above.



This would seem to suggest that among private figures, IIED liability for true statements would be limited to Chaplinsky fighting words.

Nick
8.4.2009 1:53pm
Oren:

It is firmly settled that . . . the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers
8.4.2009 4:02pm
Calderon:
Oren said:


To my sensibilities (and as evidence in somewhat hyperbolic form), the right to make a case in front a jury is an fundamental right (the 7A lends some support to that theory) that is effectively immune to policy-level attack.


I'm not sure if you're making a pure policy argument, but as a positive matter there's definitely not an absolute right to make whatever argument one wants in front of a jury and hope they rule in your favor. The purpose of a 12b6 motion is to determine if the facts alleged by the plaintiff fit under any cognizable legal theory, as determined by the judge. If they don't, the judge dismisses the claim and it never goes to the jury. Similarly, on a defendant's summary judgment motion, the judge determines whether the plaintiff has produced facts sufficient to support a claim under a cognizable legal theory. If not, the judge enters judgment against a claim and it never goes to the jury. No court considers either 12b6 or summary judgment motions to violate the 7th Amendment or any other right to a jury.

To put the point differently, it's up to the legislature and executive (for statutory law) and judges (for common or statutory law) to decide if a right of action exists for a particular set of facts. Juries don't have the power to create causes of action, and no right is violated when a litigant is not allowed to argue to a jury that it should create a new cause of action.

If you're making a pure policy argument, there's a lot of reasons as to why juries shouldn't be making up causes of actions, including lack of consistency, inability to balance competing concerns, lack of harmony with other laws, and concerns about intellectual competence generally. But this post has gone on long enough and I think most people can elaborate on these reasons.
8.4.2009 5:22pm
Steve:
Is a jury question whether the degree of force used in a boxing match is extreme and outrageous? Isn't it just about whether it's in accord with the rules both boxers agreed on?

That's a consent issue, something completely different.
8.4.2009 8:29pm
Oren:
Calderon,

Point well-taken and I mostly agree, the plaintiff does have to state a colorable claim under law. Or, if you prefer "plausible" instead of "colorable". A claim that is not obviously outside the bounds of the law.

IMO, the plaintiff in the instant case passes that hurdle by a large margin. The claim that defendant acted unreasonably and knew or should have known that her unreasonable conduct would lead to the harm of others is not merely well-supported but, taking the facts in the allegation as true, damn near proven (yes yes, I know we are not meant to take the facts in the allegation as true).
8.4.2009 10:37pm
ReaderY:
North Carolina continues to adhere to the common-law doctrine of spousal compulsion, under which a married woman accused of assisting her husband in her husband's presence to commitcertain violent crimes recognized at common law, including murder, is presumed to have acted under her husband's compulsion. Under the doctrine, the state has the burden of overcoming the presumption by introducing facts proving that the wife was not forced to act in order for a jury to able to find her guilty of the crime. The doctrine stems from days when women could not testify in court and a husband had a right to beat his wife with "a whip no thicker than his thumb," and embodies traditional presumptions both that a man who would commit a violent crime would tend to beat his wife, and that women would tend not to commit violence unless forced to.

If one suspects ones helpmate is violent man and one isn't willing to leave, one more reason to get married.
8.4.2009 11:32pm
ReaderY:
In Mazza v. Huffaker, 311 N.C. 621, 319 S.E. 2d 217 (1984), Dr. Huffaker, Mazza's psychiatrist, had an affair with Mazza's wife. Mazza, upon discovering the affair, attacked Huffaker and slashed his tires. At the trial, in addition to finding for Mazza, the jury denied Huffaker's counterclaim for battery etc. for Mazza's actions.

The North Carolina Supreme Court upheld the jury verdict, holding that the jury could find Mazza's actions legally blameless under the circumstances of the case because a person would tend to be provoked into violence by the combination of the affair and the psychiatrist-patient relationship.

The common law in traditional states tends to recognize that affairs, and learning about affairs, sometimes provoke deep and sometimes violent emotional reactions in people, including people who are normally law-abiding.

It may not be rational. Perhaps we might think they shouldn't. But they do, as an empirical, scientifically demonstable fact. We may not think it rational that Jupiter's moons should move, either: such a concept could equally defy our beliefs about how the universe ought rationally to be ordered. And yet it moves, rationally or not. As with the moons of Jupitor, so with human emotions, which are also at least partly artifacts of natural causes, seem to have a life of their own, and are not always entirely under the control of the will. People, and hence the law, sometimes have to deal with what empirically exists whether or not they think it should exist and whether or not they want it to exist.

Legally theories which always cite to abstract conceptions of rights and dutie without ever considering empirical observations about human experience are prone to getting into the same difficulties that the Inquisitors got into with Galileo. The fact of the matter is, what is is often vastly different from what ought. And sometimes we just have to deal with it.
8.5.2009 12:31am
ReaderY:
North Carolina's approach -- permitting a battery not causing serious injury, but not permitting a murder or serious assault -- represents an intermediate step recognizing that people sometimes lose control of themselves and excusing some otherwise illegal violent conduct but not the most serious kind. The rule imposing punitive damages if an affair is flaunted is a similarly intermediate postion.

It seems to me that a state can indeed impose a duty not to flaunt an affair, recognizing the sometimes violent nature of human emotions, the empirical effect that flaunting has on them, and the importance of preserving the peace. And if the spouse can sue if the duty is breached, why can't others affected by the flaunting do so?
8.5.2009 12:40am
David Schwartz (mail):
Steve: This is a consent issue. The "taunting" took part in the context of an extended consensual relationship. I simply don't see how third parties can litigate the consent issue nor can I see how you can avoid the consent issue here.
8.5.2009 12:56am
David Schwartz (mail):
And, by the way, it's a consent issue in a privileged relationship, which is the more reason third parties cannot possibly litigate it.
8.5.2009 12:58am
David M. Nieporent (www):
IMO, the plaintiff in the instant case passes that hurdle by a large margin. The claim that defendant acted unreasonably and knew or should have known that her unreasonable conduct would lead to the harm of others is not merely well-supported but, taking the facts in the allegation as true, damn near proven (yes yes, I know we are not meant to take the facts in the allegation as true).
If I see you on the side of the road being attacked by a killer rabbit, and I shrug and continue on to my yoga class without taking any action or even calling for help, that sounds pretty unreasonable; I also know that it will likely lead to harm to you. But I'm not liable in tort. In other words, your analysis misses an element of negligence: duty. Absent a "special relationship," one has no duty to aid a person who is in danger. It's not enough to say that I knew you'd likely be harmed.

Oh, and the claims in the complaint sound purely conclusory to me.
8.5.2009 3:56am
David Schwartz (mail):
DMN: Your example is good to show what's wrong, but I think mine is closer to the instant case. Can you enter into a boxing match, even though you know that boxing creates a threat of death or injury to the other participant and where that injury or death may cause harm to third parties? Why aren't you liable to them?

If it's mere cost-shifting, why not shift the cost of the harm boxing can do onto the people who chose to box? If I choose to box you, why shouldn't I reimburse your insurance company or your children for the foreseeable harm from my chosen, risky conduct? Heck, a boxing match can ever be argued to be reckless. You can easily argue the risk of harm is unreasonable.

And the answer is, it's not about cost shifting. It's about breaching a duty, as you said.

I see no way a third party can litigate this. Their may or may not have been a breach of spousal duty, and the marriage is privileged. And it strikes me as mind-bogglingly odd to permit third parties to enforce breaches of spousal duties. (This really is like an alienation of affection case.)

There simply is no duty to third parties to conduct one's marital affairs so that one's spouse doesn't pose a risk to them.
8.5.2009 5:29am
ReaderY:

And, by the way, it's a consent issue in a privileged relationship, which is the more reason third parties cannot possibly litigate it.


Who consented to classifying adultery as a priveleged relationship? And why should anyone have the right to impose such a classification on the people without any consent of the governed?
8.5.2009 9:53am
Seamus (mail):
And, by the way, it's a consent issue in a privileged relationship, which is the more reason third parties cannot possibly litigate it.

But it wasn't "third parties" who were litigating it. It was fourth parties. The first and second parties were the adulterous wife and her boyfriend, respectively. The third party was the cuckolded husband. He, you may notice, didn't sue, so nobody should be talking about his right to bring suit. Instead, he went postal and commit a series of brutal crimes against what I'm calling fourth parties. Those fourth parties (or their survivors) brought suit against the first party on the ground that she knew or should have known that her actions were going to release her mad dog of a husband loose against innocent fourth parties. It looks like the court applied the Coase Theorem and found that the wife, as the best cost avoider, should have avoided the costs of her husband's rampage by not acting in a way that she knew or should have known would set him off. (Some commenters have asked why the boyfriend wasn't sued. I suspect it's because he, not knowing the husband as well as the wife, wasn't aware, and wasn't responsible for being aware, that the wife's actions were likely to set off his rampage.)
8.5.2009 10:13am
Seamus (mail):

If I see you on the side of the road being attacked by a killer rabbit, and I shrug and continue on to my yoga class without taking any action or even calling for help, that sounds pretty unreasonable; I also know that it will likely lead to harm to you. But I'm not liable in tort.



True, but if you see a rabbit on the side of the road -- an innocent, cuddly rabbit, mind you -- and poke it with sticks, taunt it, cast aspersions on its mother, and otherwise provoke it so that it becomes a killer rabbit, bent on murder of any humans that pass by, and 15 minutes later Jimmy Carter comes along and is brutally mauled, and if the jurisdiction follows section 302B of the Restatement, then I think Jimmy would have a cause of action against you.
8.5.2009 10:18am
David Schwartz (mail):
Seamus: But if you were married to the rabbit, and the rabbit may have enjoyed being poked and provoked, it's a completely different situation. This occurred in the context of an extensive, consensual relationship. It's like a punch, but a punch in a boxing match.
8.5.2009 11:04am
Oren:

Seamus: But if you were married to the rabbit, and the rabbit may have enjoyed being poked and provoked, it's a completely different situation. This occurred in the context of an extensive, consensual relationship. It's like a punch, but a punch in a boxing match.

Marriage does not, by default anyway, constitute consent by either party to abuse by their spouse in the way that a boxers consent to being punched in the face.

Nor does the "extensive consensual" part really convince me either, since there are many cases in which spouses are abused but inexplicably chose to stay in the relationship. That does not (and ought not to) constitute consent to future beatings.
8.5.2009 2:08pm
Seamus (mail):

Seamus: But if you were married to the rabbit, and the rabbit may have enjoyed being poked and provoked, it's a completely different situation. This occurred in the context of an extensive, consensual relationship. It's like a punch, but a punch in a boxing match.



I missed the part where the husband in this case consented to being cuckolded, taunted, and humiliated.
8.5.2009 4:08pm
David Schwartz (mail):
Seamus and Oren: I would 100% agree with you if it where the husband litigating, but it's not. It's none of the third party's business whether the husband consented to or object to this conduct. That's privileged and third parties have no business litigating that issue.

If I choose to cheat on my wife, whether she allows it or disallows it is nobody else's business. She can litigate for divorce or IIED, but a third party simply can't intrude into the relationship and investigate how she feels about it.

That's what it means for marriage to be legally protected. The conduct inside the marriage stays inside the marriage unless one of the partners waives the privilege.
8.5.2009 9:39pm

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