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MA Appeals Court Expands Homeowners' Liability

In Judge v. Carrai, 77 Mass.App.Ct. 803 (2010), the Massachusetts Court of Appeals expanded the potential liability that homeowners may face for injuries caused by third parties. The Appeals Court held that the homeowners, who owned equipment used in an impromptu, informal softball game played by children during a social gathering at their house, owed a duty of care to a guest who was struck in the back of the head by a softball that was hit by a metal bat from approximately twenty feet away. The plaintiff was sitting on the porch with her back to the game when she was injured. 

Prior to the Judge decision, as a general principle homeowners did not owe a duty to control the conduct of a third person to prevent him from causing physical harm to another. For example, in Luoni v. Berube, 431 Mass. 729 (2000), the Massachusetts Supreme Judicial Court held that a social host owed no duty of reasonable care to protect guests from fireworks set by a third party. Massachusetts courts have held that landowners could be held liable for the foreseeable acts of third parties if they stand in a special relationship with the plaintiff. However, no Massachusetts court has treated a social host as falling among such special relationships, absent other factors. 

In order to hold the homeowners in this case liable for injuries caused by actions of a third party, the Appeals Court adopted § 318 of the Restatement (Second) of Torts, which had never been adopted by any Massachusetts court before. The Restatement provides:

If the actor permits a third person to use land or chattels in his possession otherwise than  as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor

(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.

In adopting §318 of the Restatement, the Appeals Court distinguished Judge from Luoni and the cases cited therein. The homeowners in Judge owned not only the property on which the dangerous activity occurred, but also the equipment used to conduct it. In Luoni, the homeowners did not own the fireworks that were set off by the third party. It was the ownership of the softball equipment that caused the Appeals Court to rule that the homeowners owed a duty of care to the plaintiff even though she was injured by a third party.

Based on the decision in Judge, homeowners can be held liable for the acts of third parties if the acts occurred on property they own, they are present as the acts are occurring, and the acts are done using equipment that is owned by the homeowners. Homeowners should consider this when allowing backyard games to be played. Based on Judge, a game of horseshoes poses a risk of liability if the heavy pieces are pitched awry and hit a guest. There is potential liability for a homeowner in a backyard volleyball game, where a tipped ball may go astray and hit a guest. Homeowners now have a duty to stop games such as these that pose a risk of injury to guests.

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