431 Mass. 729 | Mass. | 2000
We granted the plaintiff’s application for direct appellate review to decide whether, under common-law negligence principles, liability could be fastened on the defendants, social hosts, when the plaintiff, a guest at the defendants’ Fourth of July party, was injured as the result of fireworks brought to the party and set off by other guests. We agree with the decision of a judge in the Superior Court, reached on a summary judgment record, that the defendants are not liable as matter of law. Accordingly, we affirm the judgment for the defendants.
We set forth the undisputed material facts, as we must for
When the fireworks began, the plaintiff moved from the area where they were being set off to a more protected site seventy to one hundred feet away. The plaintiff saw a half dozen devices being lit, including a “Roman candle” and “bottle rockets.” Then, the plaintiff saw someone light and throw what, “[t]o [his] belief . . . was an M-80.”
The plaintiff asserts that these circumstances impose a common-law duty in negligence on the defendants. Whether the defendants could be found negligent presents a question of law, to be determined by reference to existing social values, customs, and considerations of policy. Cremins v. Clancy, 415 Mass. 289, 292 (1993), and cases cited. The judge, who guided himself by principles of social host liability concerning the use of alcohol,
The duty of a landowner under general principles of common-law negligence governing dangerous conditions on his land is established. “A landowner must act as a reasonable [person] in maintaining . . . property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Mounsey v. Ellard, 363 Mass. 693, 708 (1973), quoting Smith v. Arbaugh’s Restaurant, Inc., 469 F.2d 97, 100 (D.C. Cir. 1972), cert. denied, 412 U.S. 939 (1973). The obligation to maintain premises in a reasonably safe condition refers to preexisting physical conditions, as shown by the decisions to which the plaintiff cites. See, e.g., Lindsey v. Massios, 372 Mass. 79, 80 (1977) (hazard was poorly lit stairway); Mounsey v. Ellard, supra at 693 (hazard was accumulated ice); Robert Williams, Inc. v. Ferris, 355 Mass. 288, 289 (1969) (hazard was water pipe); Milesi v. United States, 946 F. Supp. 110, 112 (D. Mass. 1996) (hazard was hydraulic lift). There is no room in this branch of tort law for the plaintiff’s contention that the fireworks somehow constituted a physical condition on the defendants’ land for which they were responsible, because of the undisputed fact that the fireworks were brought to the party, and then lit, by third persons.
As a general rule, a landowner does not owe a duty to take affirmative steps to protect against dangerous or unlawful acts of third persons. See Anthony H. v. John G., 415 Mass. 196, 200 (1993); Dhimos v. Cormier, 400 Mass. 504, 506-507 (1987). An exception to this rule may be found where there is a special relationship between the defendant landowner and a plaintiff.
The principles expressed in the Restatement (Second) of Torts § 318 (1965), set forth below, also do not help the plaintiff.
The briefs and the judge’s memorandum discuss the possible applicability to the situation here of the decisions concerning social host liability for injuries caused by an intoxicated guest. Alcohol and fireworks have similarities and dissimilarities. Both when misused can lead to harm, but one (alcohol) is legal, the other (fireworks) is not. Unlike the circumspect drinking of liquor, fireworks, even when used with precautions, can pose a danger to the user and others. The Appeals Court in Flanagan v. Baker, supra, examined facts where a teenager invited two friends to his home, one of whom brought firecrackers, from which the three boys constructed a pipe bomb. The bomb exploded, injuring one of the guests. The Appeals Court, relying on decisions of this court involving social guests and alcohol, concluded that the teenage host was not liable because he had neither provided the firecrackers nor controlled the making of the pipe bomb. Id. at 449. We think the Flanagan case was correctly decided, not necessarily because alcohol and fireworks are comparable, but because the common bond between the decisions involving social host liability for alcohol-related injuries, and the circumstances here, is the fact that the defendants did not provide the harmful item, did not control its use, and did not create the situation that caused the danger. See Cremins v. Clancy, supra at 296 (O’Connor, J., concurring) (“no person owes to another a duty to prevent the harmful consequences of a condition or situation he or she did not cre
The plaintiff asserts that the defendants, as homeowners in “positions of authority with respect to their guests,” had the opportunity to control the behavior of their guests, and so their duty to monitor the use of fireworks, whether or not they had provided them, is an issue of fact to be resolved at trial. We disagree. The defendants did not furnish the fireworks or give permission for the display on their property.
Last, we reject the plaintiff’s suggestion that, as matter of
Judgment affirmed.
The plaintiff points to the fact that one of the defendants, Thomas Berube, stated during his deposition that he was intoxicated, having consumed fifteen beers during the course of the party. The plaintiff further points out that this defendant also admitted that his lack of attention to the fireworks was “irresponsible.” These facts are not material because, if a duty existed on the part of the defendants to safeguard their guests from injury due to the fireworks, the duty applied without regard to whether the defendants were intoxicated or sober or seriously inattentive to events.
The plaintiff stated during his deposition that it was the “loud noise” that made him believe the firework was an M-80.
Section 318 of the Restatement (Second) of Torts (1965) states:
“(a) knows or has reason to know that he has the ability to control the third person, and
“(b) knows or should know of the necessity and opportunity for exercising such control.”
We reject the plaintiff’s claim that the defendant, Sharon Berube, by watching the fireworks, gave tacit approval for their use, and so effectively had control over the situation and was as culpable as if she had actually lit the fireworks. See Ulwick v. DeChristopher, 411 Mass. 401, 405-407 (1991).
While the ban on the sale, possession, and use of fireworks, see G. L. c. 148, § 39, could be relevant to prove negligence in an action against one who lit the injurious firework, it has no relevance in this case, for the simple fact that the defendants themselves did not violate the statute. Moreover, as this decision makes clear, the defendants did not owe the plaintiff a duty to protect against the actions, lawful or not, of third parties.
Not directly involved in this case, but certainly at the periphery, is the fact that the lighting of fireworks is a blatant hazard, not unlike an “open and obvious danger.” See O’Sullivan v. Shaw, ante 201, 206-207 (2000). The par