No Tort Law Duty Not to Provoke One’s Abuser

From Hurn v. Greenaway (Alaska Feb. 8, 2013):

Simone Greenway and her friend Carrie Randall–Evans were dancing together in a suggestive manner and teasing Jeffrey Evans, Carrie’s husband, when Jeffrey left the room, returned with a pistol, and shot everyone inside, killing Carrie. He then shot and killed himself. David Hurn, the father of Carrie’s two minor children, sued, claiming that Greenway’s participation in the dance was negligent either because it breached her duty as homeowner to control her guests or because it created a foreseeable and unreasonable risk of violence.

The court held for the defendant, “[b]ecause property owners generally have no duty to control the conduct of third parties in their homes, and because murder was not the foreseeable result of suggestive dancing,” despite the alleged signs of Jeffrey’s dangerousness:

Greenway knew that Jeffrey had threatened Carrie with physical harm in the past; Carrie was afraid that Jeffrey would kill her; Jeffrey was a jealous man; on the night of the murder Jeffrey sometimes wore a “stone cold expression” that betrayed no emotion; and prior to Greenway’s dance, he had issued a veiled threat: “What would you girls do if someone came in that door right now, after you?”

But towards the end of the opinion, the court also makes a broader point that goes beyond just whether foreseeability is present on the facts of the case (paragraph breaks added):

Hurn asks us to reduce domestic violence in this state by imposing a duty to “refrain from teasing or bullying someone known to be potentially violent.” But we refuse to give victims the duty to prevent their own abuse and then hold them liable when they fail.

The record suggests that Jeffrey was an abusive husband. And if Greenway is liable for taunting an abusive husband, it follows that victims themselves may be liable for provoking their partners if the result is harm to a third party.

Some courts have already been asked to hold a recipient of domestic abuse liable under § 302B for the crimes of her partner. The Iowa Supreme Court held that a woman was not liable for the actions of her jealous and abusive boyfriend after he assaulted another man she brought home. [Footnote: See Fiala v. Rains, 519 N.W.2d 386 (Iowa 1994); cf. Wilkins v. Siplin, 13 Cal.Rptr.2d 634 (Cal.App.1992) (holding that a wife could be liable for inviting a co-worker to a remote cabin where he was attacked by her husband) (depublished by order of the California Supreme Court).] These requests are particularly troubling where, as here, the “provocation” is an act of resistance. [Footnote: The sparring, dancing, and teasing at issue were a direct response to Jeffrey’s not-so-veiled threat to Carrie and Greenway’s physical safety: “[W]hat would you girls do if somebody came in that door right now, after you?” In response, Carrie and Greenway laughed, gave each other a high five, said “[W]e’d kick his ass,” and started sparring to demonstrate how they would repel the intruder. While they were sparring and dancing and laughing at Jeffrey, Greenway was [implicitly] expressing to Carrie: “[T]his is my domain, you don’t have to be afraid here.”]

We reject the idea that victims are responsible for the violence they endure in the home, and we will not blame them for their otherwise reasonable actions simply because those actions foreseeably result in violence.

That strikes me as quite correct. For an approach that is in many ways the opposite of this one (and that I think is incorrect), see Touchette v. Ganal (Haw. 1996).