Luoni v. Berube

• Decision Date: 01 May 2000
• Citation: 431 Mass. 729,729 NE 2d 1108
• Parties: DOMINIC LUONI v. THOMAS BERUBE & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

431 Mass. 729

729 NE 2d 1108

DOMINIC LUONI v. THOMAS BERUBE & another.¹

Supreme Judicial Court of Massachusetts, Essex.

May 1, 2000.

June 15, 2000.

Present: (Sitting at Worcester): MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Eric P. Finamore for the plaintiff.

Kevin Hensley for the defendants.

GREANEY, J.

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 summary judgment purposes, in the light most favorable to the plaintiff. See Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). On July 4, 1996, the defendants held a party at their home. The party lasted from noon until approximately 10 P.M., and was attended by an estimated thirty to fifty people, some of whom the defendants did not know. The plaintiff was one of the guests. The party included a cookout and a volleyball game. Shortly after dark, a few unidentified persons began to set off a fireworks display in the defendants' backyard. The display lasted approximately twenty minutes. Both defendants were aware of the fireworks display, although they testified in their depositions, and the plaintiff has offered no evidence to the contrary, that they did not provide the fireworks or know the identity of the persons setting them off. Neither defendant attempted to stop the fireworks display.²

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."³ (The exact nature of an M-80 is not defined in the record.) At the instant the firework went off, he felt something hit him in the left eye. The plaintiff's injury, which all assume was caused by a fragment of debris, left him with a permanent defect in his vision in that eye.

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, and by a decision of the Appeals Court, Flanagan v. Baker, 35 Mass. App. Ct. 444 (1993), involving the use of firecrackers in a social host context, concluded that the defendants owed no duty to protect the plaintiff from the negligent use of fireworks because they did not provide or control the fireworks. The plaintiff maintains that the defendants, as landowners, owed him a duty to take actions reasonably necessary to prevent an unreasonable risk of harm, including the duty to exercise control over (1) a dangerous condition on their premises; and (2) the dangerous acts committed by third persons on their premises. Because, in the plaintiff's view, a jury could conclude that the defendants were negligent in failing to control or prevent the use of the fireworks, the grant of summary judgment in the defendants' favor was error. We disagree.

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. See Mullins v. Pine Manor College, 389 Mass. 47, 51-52 (1983). We have decided that such special relationships exist in several situations, based either on responsibilities imposed by statute or common law (or both). A special relationship, when derived from common law, is predicated on a plaintiff's reasonable expectations and reliance that a defendant will anticipate harmful acts of third persons and take appropriate measures to protect the plaintiff from harm. See Irwin v. Ware, 392 Mass. 745, 756 (1984). See, e.g., Fund v. Hotel Lenox of Boston, Inc., 418 Mass. 191, 192 (1994) (hotel and guests); Mullins v. Pine Manor College, supra at 56 (college and students); Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 641 (1961) (tavern owner and patrons). (For a collection of cases from other jurisdictions recognizing special relationships, see Irwin v. Ware, supra at 760-762.) We have never found such a special relationship between a homeowner and a social guest, which, absent other factors, would obligate the homeowner to protect guests on his premises from hazardous conduct on the part of other guests. See Cremins v. Clancy, supra at 294; Ulwick v. DeChristopher, 411 Mass. 401, 406-407 (1991); Wallace v. Wilson, 411 Mass. 8, 11-12 (1991). Decisions provided by the plaintiff to support his claim of such an expansive duty are based on exceptions, which prove the general rule. See, e.g., O'Brien v. Christensen, 422 Mass. 281, 288 (1996) (residential landlord); Flood v. Southland Corp., 416 Mass. 62, 72 (1993) (store owner). Indeed, we find it curious that the plaintiff cites two decisions from other jurisdictions that directly refute his position. See Wise v. Superior Court, 222 Cal. App. 3d 1008, 1012-1013 (1990) (no duty of homeowner to prevent husband from shooting victims on premises, even though he was "human time bomb"); Ventura v. Picicci, 227 Ill. App. 3d 865, 869-870 (1992) (no duty of homeowner to prevent adult son from shooting plaintiff on premises, even though she furnished money to buy gun). The plaintiff's insistence that a special relationship exists in this case reflects a basic misunderstanding of common-law negligence. See O'Flynn v. Powers, 38 Mass. App. Ct. 936, 937 (1995).

The principles expressed in the Restatement (Second) of Torts § 318 (1965), set forth below, also do not help the plaintiff.⁴ These principles address activities by a third person involving the use of a defendant's land itself, or the use of chattels possessed by a defendant, which are provided to the third person. See Andrade v. Baptiste, 411 Mass. 560, 563 (1992). The principles have no application to this case, where unidentified guests, without the defendants' permission, brought fireworks to the defendants' party. See id. Further, § 318 presupposes a landowner's ability to control or prevent the conduct of third persons, an ability which, as we shall next discuss, the defendants did not have over their guests. Id. Section 318 of the Restatement (Second) of Torts, does not impose a legal obligation on the defendants to test that ability.

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....