Posted by Eugene Volokh:
Tort Liability:
http://volokh.com/archives/archive_2009_08_02-2009_08_08.shtml#1249334335
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 [1]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.
References
1. http://www.volokh.com/posts/1248793691.shtml
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