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.
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.
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.
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.
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.
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...
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."
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"
They are also free to judged by a jury of their peers for tortious behavior.
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".
This should probably be IIED even the absence of mental instability.
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.
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.
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.
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.
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.
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.
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.
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.
Such as, e.g., a woman for the harm caused by her husband.
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.
Blame is not a zero-sum game -- she can be at fault without subtracting even one iota from his blameworthiness.
Sorry, the judgment of the jury is the manifestation of Justice in Common Law.
Whatever inconvenience he suffers is trifling compared to preserving the inestimable right to bring a case before the jury.
As well you should, but that cost amount to little when stacked up against the fundamental right of the plaintiff to be heard.
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?
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.
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.
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.)
He was already convicted of multiple counts of first degree murder and sentenced to life in prison. Don't be an idiot.
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.
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.
Even if she promised not to?
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.
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.
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.
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
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.
Have you even read Hustler v. Falwell? You want a "material difference"? Two words: public figure.
Oh. Lover. Not husband. Yeah... better go get that coffee...
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?
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).
Hustler v. Falwell turns on the fact that Falwell is a public figure.
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."
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.).
This would seem to suggest that among private figures, IIED liability for true statements would be limited to Chaplinsky fighting words.
Nick
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.
That's a consent issue, something completely different.
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).
If one suspects ones helpmate is violent man and one isn't willing to leave, one more reason to get married.
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.
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?
Oh, and the claims in the complaint sound purely conclusory to me.
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.
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?
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.)
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.
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.
I missed the part where the husband in this case consented to being cuckolded, taunted, and humiliated.
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.
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