Doe v. Walker

• Court: Court of Appeals for the First Circuit
• Decided: October 4, 1999
• Docket: 99-1095
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1095



                            JANE DOE,



                      Plaintiff, Appellant.

                            __________



                    UNITED STATES OF AMERICA,



                      Intervenor, Plaintiff,



                                v.



                         ANTOINE WALKER,



                       Defendant, Appellee.

                       ____________________



         RONALD MERCER, MICHAEL IRVIN, CHAUNCEY BILLUPS,



                           Defendants.

                            __________



               NOW LEGAL DEFENSE & EDUCATION FUND,



                        Interested Party.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Richard G. Stearns, U.S. District Judge]


Before



                      Boudin, Circuit Judge

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Stahl, Circuit Judge.


Margaret A. Burnham with whom Burnham & Hines was on brief for

appellant.

     Nicholas C. Theodorou with whom Toni G. Wolfman, David A.

Anderson and Foley, Hoag & Eliot LLP were on brief for appellee.


October 4, 1999


BOUDIN, Circuit Judge.  This appeal presents an unusual

question of Massachusetts law concerning the possible duty of a

social host to protect his guest from the criminal acts of another

guest where this can be done without risk to the host.  Because the

appeal is from a dismissal for failure to state a claim, Fed. R.

Civ. P. 12(b)(6), we set forth the facts as alleged in the

complaint, drawing reasonable inferences in favor of the non-moving

party, here the appellant "Jane Doe."  See Day v. Massachusetts Air

Nat'l Guard, 167 F.3d 678, 680 (1st Cir. 1999). 

  From the complaint, the following allegations can be

derived.  Doe first became acquainted with the appellee, Antoine

Walker, a professional basketball player, around May 1997, and

dated him sporadically thereafter.  In the course of their dating

relationship, Doe had on several occasions visited Walker's home in

Waltham, Massachusetts, where she became acquainted with Michael

Irvin, who lived in Walker's home.  Similarly, Doe met Dennis

Smith, who also lived in Walker's home.

  On the night of November 9, 1997, Doe went to a comedy 

club in Boston, Massachusetts, where she socialized with Walker,

Irvin, and Smith, as well as two of Walker's teammates--Ronald

Mercer and Chauncey Billups--whom Doe had not previously met.  As

the group prepared to leave the club, Irvin told Doe that Walker

wanted her to visit him at his home.  Walker and Smith left the

club in one car while Billups drove Doe, Irvin and Mercer in

another car.  When Billups' car arrived at Walker's home, Doe was

directed to Irvin's bedroom.  There, all three men began to subject

Doe to a series of sexual acts, including sexual intercourse,

without her consent and despite her attempted resistance.  At one

point during this assault, Walker entered Irvin's bedroom,  and

Irvin asked Walker "Don't you want some?" but Walker declined and

left.

  After Walker left Irvin's bedroom, the assault continued. 

Doe awoke the next morning.  She located Smith, who drove her home

but told her not to report the incident.  Later that day, Doe

sought medical attention at the Boston Medical Center.  The medical

examination revealed bruises about Doe's body and injuries to her

throat, cervix and rectum, and she was diagnosed as suffering from

shock.  That same day, Doe provided police with a report of the

assault.  This is the gist of the allegations in the complaint.

  On April 15, 1998, Doe filed suit in federal court,

naming Mercer, Irvin, Billups and Walker as defendants.  As

amended, Doe's complaint asserted claims against Mercer, Irvin, and

Billups under the Violence Against Women Act, 42 U.S.C.  13981, as

well as state claims of assault and battery and intentional

infliction of emotional distress.  Doe also asserted a state common

law claim of negligence against Walker, contending that he breached

a duty that he owed to her in his role of social host.  Only this

single claim against Walker is the subject of this appeal.

  On May 14, 1998, Walker moved to dismiss the claim

against him on the ground that Doe had failed to state a claim.  On

December 18, 1998, the district court granted Walker's motion to

dismiss; it reasoned that Walker had no duty under Massachusetts

law to intervene or otherwise to protect Doe from the assault by

the others.  On February 19, 1999, the district court entered a

separate, final judgment as to Walker pursuant to Fed. R. Civ. P.

54(b), permitting this immediate appeal while Doe's suit against

the other three defendants continues.

  If Walker were a passerby who ignored a stranger in

peril, this would be an easy case.  For a variety of reasons,

Anglo-American law, unlike some Continental regimes, imposes no

general duty to assist others in peril.  See 3 Harper, James &

Gray, The Law of Torts  18.6, at 718-19 (2d ed. 1986).  The

reasons for this reluctance to impose such a duty are the usual

compound of history and policy.  See id. at 719 n.10, 725 n.26. 

Massachusetts courts interpreting the common law follow this

general principle.  See generally Jean W. v. Commonwealth, 610

N.E.2d 305, 318-19 (Mass. 1993) (O'Connor, J., concurring)

  Yet in Massachusetts, as elsewhere, there is continuing

pressure to carve out special situations in which some kind of duty

to protect may be found.  Two sets of Massachusetts precedents are

invoked by Doe here:  the most helpful to her arise in cases

recognizing various common law duties of property owners toward

guests, other invitees and even trespassers; and the other,

arguably less relevant here, are cases in which a host takes

affirmative steps that causally connect to later harm done by a

guest to a third party (e.g., a social host serving liquor to an

intoxicated guest who later drives home and hits a pedestrian). 

E.g., McGuiggan v. New England Tel. & Tel. Co., 496 N.E.2d 141, 146

(Mass. 1986).

  The common law duties of a property owner toward a guest

generally include an obligation to take reasonable care to provide

a safe premises, including warnings to the guest as to dangers of

which the host knows or should know.  Polak, 487 N.E.2d at 215-16. 

In principle, nothing would prevent applying this obligation where

the host knew that another guest had a record of committing violent

acts.  Several Massachusetts cases, involving failures of a

property owner to protect his guests from the criminal acts of

others on the premises, declined to hold the hosts liable, but in

doing so, stressed that the host had no reason to know that

criminal acts were likely until it was too late to prevent them. 

Anthony H. v. John G., 612 N.E.2d 663, 666 (Mass. 1993); Husband v.

Dubose, 531 N.E.2d 600, 603 (Mass. App. Ct. 1988).

  But suppose that the social host becomes aware of a crime

in progress involving an assault by one of his guests upon another;

that the host could avert or ameliorate the danger at no risk to

himself; and that he nevertheless chooses to do nothing.  The

district court, drawing every possible inference in favor of Doe

based on the bare bones complaint, was prepared to assume that

Walker had authorized or at least endorsed the invitation to Doe

and that Walker had not only become a witness to a rape but had

known that Doe was being assaulted and that she had not consented

to the encounter.  And while the district court does not directly

mention the opportunity for Walker to halt the assault without risk

to himself, that is an inference at least as easy to draw in favor

of Doe as the other two.  (Of course, further evidence might reveal

that Walker could have done nothing to stop the assault, but

actions ranging from telling the others to stop to calling 911

present themselves as reasonable possibilities.)

  Facing this situation squarely, the district court

concluded that Walker would still have no duty to intervene.  The

district court explained:

    Rather, the law discourages such intervention

  as much as human sentiment applauds the good

  Samaritan.  The law is so for reasons of

  social policy that are intended to curb

  vigilantism and to avert the risk of untrained

  civilians causing personal injury to

  themselves or creating an even greater risk to

  the victim.



Added to the practical considerations mentioned by the district

court is the general reluctance of the law to impose affirmative

duties to aid except in narrowly defined situations based on

special relationships (e.g., parent-child, policeman-citizen) and

the benefit of bright lines in reducing litigation.

  But Massachusetts case law does not definitely rule out

liability in the hypothetical case we have posited.  The only

precedent cited to us that is closely in point is Husband v.

Dubose, 531 N.E.2d 600 (Mass. 1988), where the defendant was sued

when unexpectedly one of her two guests drew a knife, stated that

she intended to kill the other guest and eventually inflicted knife

wounds on the other guest.  Since the defendant had no reason to

expect the fight, the court easily rejected lack of a prior warning

as a ground of liability.  Id. at 603.  Needless to say, a

defendant is "not required to take precautions against a sudden

attack from a third person which he has no reason to anticipate." 

Id., at 602 (quoting Restatement (2d) of Torts  314A, cmt. e

(1964)).

  However, Husband also addressed the claim that the

defendant might have breached a duty to render aid once the knife

attack had begun.  The court held that the host, "now in danger

herself and badly frightened, could not have been expected to

disarm [the assaulter] or to remain in the house," and it said that

the defendant's warning to the plaintiff to flee "was an adequate

response to a very dangerous situation that had arisen suddenly." 

Husband, 531 N.E.2d at 603.  After noting that it was the plaintiff

who had chosen "to ignore the warning", the court concluded:

    We are . . . not prepared to say that

  prevailing values and expectations required

  the defendant to be more vigilant of security,

  to intervene directly, or to summon assistance

  at the risk of serious personal injury to

  herself or of causing greater danger to the

  plaintiff. . . . [W]e conclude, as did the

  [trial] judge, that the circumstances imposed

  no duty on the defendant.



Id. at 672 (footnote omitted).

  Assuredly, Husband would protect Walker if he had

believed that he could not intervene without risk to himself or to

Doe.  But if Walker could have intervened without risk, we think

that it is far from clear that the Husband decision forecloses

liability; technically, the case did not decide the issue because,

as the court construed the facts, there was no such opportunity for

a riskless rescue.  Indeed, the court pointed to the lack of proof

that, if the police had been summoned by the defendant, help would

have arrived in time to prevent the stabbing.

  Indignation is not a reliable trigger for imposing a duty

to act since the common law refuses to impose liability in a wide

swath of cases where morality would require action (typified by the

refusal to throw a drowning stranger a rope from the pier).  Still,

it is instructive to consider an older decision, cited to us by

neither of the parties, with egregious facts.  In Pridgen v. Boston

Housing Auth., 308 N.E.2d 467 (Mass. 1974), the Supreme Judicial

Court cast aside the usual distinction between misfeasance and

nonfeasance and upheld a jury verdict for the plaintiff where a

child trespasser had crawled into an elevator shaft of a building

owned by the defendant and the building agent, despite notice and

a plea from the boy's mother, failed to turn off power in the

elevator.

  The child was thereafter injured and the jury found the

building owner liable for the "wilful, wanton or reckless conduct"

of its agent, the standard deemed to apply in the case of a

trespasser.  In upholding the verdict, the SJC said that it did not

matter that the defendant's conduct could be described simply as a

failure to act.  Id. at 476-77.  The case is clearly

distinguishable in that it did not involve a failure to intervene

in criminal conduct by one person on the premises directed against

another and that none of the concerns about vigilantism or risk to

the owner were present.  However, decisions like Pridgen do suggest

that the SJC, like most other courts, responds as much to facts as

to abstractions, and it confirms to us that further development of

the facts in this case is well warranted before Doe's claim is

written off as hopeless.

  We would affirm without hesitating if Massachusetts case

law had squarely rejected liability in the case of the social host

who costlessly could have saved a guest from harm but failed to

act.  Plaintiffs who come to federal court and ask federal judges

to forecast a substantial change in state law will normally get a

cold reception.  Ryan v. Royal Ins. Co., 916 F.2d 731, 744 (1st

Cir. 1990).  But we think that the Massachusetts courts have not

clearly spoken one way or the other and, while they would surely

give weight to concerns about vigilantism, they might on extreme

facts (as in Pridgen) choose to treat inaction as equivalent to

action.

  The legal issue presented is one that has important

social and moral implications, and we decline to decide it without

more facts.  In areas like this one, the common law tradition is

one of deciding such matters in the concrete and not in the

abstract.  This is in part because further facts may make it

unnecessary to decide the hard case but also because the facts are

likely to contribute to a more sensitive assessment of what the law

"is" (which, absent decisive precedent, means what it "should be"). 

Our preference for a better record is well supported and, while not

mandatory, is one which we are entitled to require for reasons of

prudence.

  The same paucity of facts makes it impractical for us to

certify the issue to the Massachusetts Supreme Judicial Court.  Of

course, we could pose the question on one set of extreme assumed

facts, but suppose the SJC replied that liability on such facts

would exist:  it is at least even odds that one or more of the

extreme facts so assumed would be disproved at the summary judgment

or trial stage, and there is no assurance that anything the SJC

said about that hypothetical case would tell us how to solve the

matter on the facts actually presented.

  Accordingly, we hold that dismissal at this stage was

premature, vacate the judgment of dismissal, and remand to the

district court for further development of the facts.  We do not,

however, foreclose the possibility of summary judgment in favor of

Walker after a more complete record has been developed.  It is far

from clear whether Walker authorized, acquiesced or even knew of

Doe's presence at the house prior to the alleged assault; nor is it

clear that he knew that an assault was occurring.  Further, as

Irvin was himself living in the residence and extended the

invitation, this might mitigate any duty that Walker might

otherwise have had.

  An alternative resolution deserves some consideration by

the district court.  The claim against Walker, unlike the claims

against the other defendants, is not coupled with a federal claim

against him, nor is there any suggestion of diversity jurisdiction. 

In such a case, the statute gives the district court discretion to

decline jurisdiction over a supplemental state claim where, as

here, it raises a novel or complex issue of state law.  28 U.S.C.

 1367 (c)(1).  Cf. Houlton Citizens' Coalition v. Town of Houlton,

175 F.3d 178, 192 (1st Cir. 1999).  Occasionally, we have even

directed such a dismissal where the federal claims have disappeared

and where no economies justified having a federal court resolve the

remaining state issues.  See id.

  However, in this instance economies may exist since

discovery and possibly trial may proceed in respect to the other

defendants.  But the district court can balance this against the

benefit of having the state system resolve an unusual question of

state law with broad implications for state policy.  So far as we

can ascertain, the statute of limitations on Doe's claim would not

expire until November 2000 (see M.G.L.A. ch. 260  2A), and it is

probably subject to the Massachusetts one-year tolling statute in

any event.  See id. ch. 260,  32; Liberace v. Conway, 574 N.E.2d

1010, 1011-13 (Mass. App. Ct. 1991).

  The judgment of the district court is vacated and the

matter is remanded for further proceedings consistent with this

opinion.

  It is so ordered.