Husband v. Dubose

• Decision Date: 20 December 1988
• Docket Number: No. 88-P-213,88-P-213
• Citation: 531 N.E.2d 600,26 Mass.App.Ct. 667
• Parties: Ezalla HUSBAND v. Bernice DUBOSE.
• Court: Appeals Court of Massachusetts

Page 600

531 N.E.2d 600

26 Mass.App.Ct. 667

Ezalla HUSBAND v. Bernice DUBOSE.

No. 88-P-213.

Appeals Court of Massachusetts Hampden.

Argued Nov. 16, 1988.

Decided Dec. 20, 1988.

Michael A. Ugolini, Springfield, for plaintiff.

Neil C. Darragh, Springfield, for defendant.

Before GREANEY, C.J., and KASS and FINE, JJ.

GREANEY, Chief Justice.

The plaintiff seeks to recover damages based upon the defendant's alleged negligence in connection with an assault and battery by means of a deadly weapon committed upon the plaintiff, a guest in the defendant's home, by another guest. At the conclusion of the plaintiff's evidence before a jury in the Superior Court, a judge of that court allowed the defendant's motion for a directed verdict. We affirm the judgment for the defendant.

The evidence in the plaintiff's case may be summarized as follows. Late in the afternoon of May 25, 1985, the plaintiff, age forty-five and the mother of four, drove to visit the defendant, age fifty, at the defendant's home. The plaintiff was accompanied by Eleanor Pedraza, age twenty-three. The three women knew each other. Pedraza seemed to the plaintiff to be either "drunk or high". While at the defendant's home, the women socialized for about an hour. They then decided to go over to another friend's house. As the three were about to leave, Pedraza suddenly announced that she could "whup [the plaintiff's] ass." This comment was apparently over the repayment of $20 the plaintiff owed Pedraza.

The defendant, attempting to intercede, told Pedraza not to start anything in her house. Pedraza responded by telling the defendant to "[g]et out of [her] face" and by pushing the defendant to the floor. Pedraza then pushed the plaintiff. After being pushed, the plaintiff struck Pedraza with the telephone receiver. With Pedraza bleeding from the blow, and the plaintiff clutching the now cordless receiver, the scuffle intensified. Specifically, as the plaintiff testified, while "it really wasn't fist-fighting," she and Pedraza "wrestl[ed]" and tussl[ed]" for about thirty minutes trying to "flip" each other onto the floor. The plaintiff asked the defendant "to try to stop [Pedraza]." The defendant said: "I have talked to you all, you all won't listen to me, you all fight it out."

Eventually, the plaintiff got on top of Pedraza and "pinned her". Pedraza promised the plaintiff that she would stop fighting. After being let up by the plaintiff, Pedraza headed toward the kitchen, emerging a short time later brandishing a butcher's knife. She stated to the two women that "[she was] going to kill you all, mother fuckers." Upon hearing this, and seeing Pedraza with the knife, the defendant, who to the plaintiff "seem[ed]" and "appeared scared," told the plaintiff to run out of the house. Acting on her own advice, the defendant then ran outside. Instead of leaving the house, the plaintiff backed up slowly, attempting to "calm [Pedraza] down with the knife," and to "talk her out of it." She eventually backed up to the living room door and got herself outside the screen door leading to that room. As the plaintiff held the door shut with her arm, in an attempt to keep Pedraza from coming out, Pedraza started slicing through the screen door, eventually cutting the plaintiff in the arm, chest, and face. The plaintiff subsequently let go of the door and ran to a neighbor's house. The neighbor immediately made a telephone call to the police, who arrived about eleven minutes later. Before running to the neighbor's house, the plaintiff was momentarily in the defendant's front yard, where she heard Pedraza still yelling "I'm going to kill you mother fucker," and the defendant "still hollering, [r]un."

In ascertaining whether the defendant's motion for a directed verdict was properly allowed, we inquire whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff. If any such combination of circumstances could be found it is ... immaterial how many other combinations could have been found which would have led to conclusions adverse to the plaintiff." Campbell v. Thornton, 368 Mass. 528, 535, 333 N.E.2d 442 (1975), quoting from Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302, 52 N.E.2d 411 (1943). Like the judge, we concentrate on the scope of the defendant's duty to the plaintiff.

The defendant was a social host to the plaintiff and Pedraza, both of whom had dropped by the defendant's home for what appears to have been an unexpected visit. Informal social contacts of the sort involved here would not give rise to a special or established relationship in the same sense as described in cases such as Mullins v. Pine Manor College, 389 Mass. 47, 56, 449 N.E.2d 331 (1983). See also Dhimos v. Cormier, 400 Mass. 504, 506-507, 509 N.E.2d 1199 (1987). Although the contacts between a social host and an invited guest have been described as creating, in some circumstances, a "special relationship," Polak v. Whitney, 21 Mass.App.Ct. 349, 352, 487 N.E.2d 213 (1985), the "obligations [a host] assume[§ are] those which, considering customs and accepted social norms, one would reasonably expect [the host] to fulfill, no more and no less." Ibid., and cases cited. These customs and norms involve, to some extent, the foreseeability of the harm and a defendant's ability to prevent it. As a general rule, "[t]here is no duty owed when the risk which results in the plaintiff's injury is not one which could be reasonably anticipated by the defendant." Glick v. Prince Italian Foods of Saugus, Inc., 25 Mass.App.Ct. 901, 902, 514 N.E.2d 100 (1987), and cases cited. See Schmid v. National Bank of Greece, S.A., 622 F.Supp. 704, 712 (D.Mass.1985), aff'd, 802 F.2d 439 (1st Cir.1986); Restatement (Second) of Torts § 314A, comment e (1964) (a defendant is "not required to take precautions against a sudden attack from a third person which he has no reason to anticipate....")

Unlike common carriers, see Sharpe v. Peter Pan Bus Lines, Inc., 401 Mass. 788, 519 N.E.2d 1341 (1988), bars and other businesses, see Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 171 N.E.2d 287 (1961), colleges, see Mullins v. Pine Manor College, supra, or even hospitals, see Copithorne v. Framingham Union Hosp., 401 Mass. 860, 520 N.E.2d 139 (1988), which have been held to be required to foresee that their patrons, students, or patients could suffer criminal attacks by third persons, social hosts ordinarily would not be expected to anticipate that a guest in their home or apartment might be violently attacked with a deadly weapon by another guest. Further, neither "the nature of the situation," nor " 'existing values and customs,' " see Mullins v. Pine Manor College, 389 Mass. at 51, 449 N.E.2d 331, dictate that social hosts have a duty to protect their visitors or to make their property safe from such criminal acts. Hosts normally do not voluntarily assume such obligations and visitors ordinarily do not rely or depend upon their hosts for such protections. In the absence of a situation showing that a danger should have been anticipated, or customs which clearly impose a duty of protection or a preferred form of response, hosts should not be charged, at the risk of liability, to furnish security at social gatherings or to call the police every time a guest becomes unruly. It is in this context that the sufficiency of the plaintiff's evidence must be assessed.

When the plaintiff and Pedraza started arguing, the defendant warned Pedraza against starting anything in her home. The plaintiff herself escalated the initial disagreement beyond the pushing stage by hitting Pedraza with the telephone receiver, and then she voluntarily engaged Pedraza in a lengthy wrestling match. That match ended with Pedraza subdued, the plaintiff unhurt and in control, and the appearance that the two women were ready to behave themselves. Pedraza's subsequent appearance with the knife was sudden and unexpected. Her stated intention to kill was forcefully directed at both the defendant and the plaintiff. The defendant, now in danger herself and...