The Volokh Conspiracy - 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.

	[Eugene Volokh, August 3, 2009 at 5:18pm] Trackbacks 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.