The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In an earlier post, I suggested that the lawsuit in Doe v. Mckesson should lead to a victory for Mckesson—but on a legal theory (the professional rescuer's doctrine, which sharply limits negligence claims brought by police officers) that hadn't been raised in the case, though it still might be in later phases. The opinion, though, raises an interesting and complicated question that can't always be dealt through that doctrine. Let me talk about this, in the context of a hypothetical.
Say that John Smith organizes an illegal protest in an abortion clinic's parking lot—illegal because it's a trespass (analogously to how Mckesson's protest was, according to the Fifth Circuit, plausibly pleaded to be an illegal blocking of a public street). Unsurprisingly, and thus foreseeably, some clinic employees come out to try to get the protesters to leave, and even use lawful defensive force (pushing) to eject the protesters. Unsurprisingly, and thus equally foreseeably, one of the protesters (Mary Baker) punches the employee who is pushing him. (Indeed, perhaps this has happened before at this group's protests, so it is indeed foreseeable.)
Would Smith be liable under normal tort law negligence principles for the injury to the employee? Yes, I think so. By organizing the protest, he caused a foreseeable risk that an employee will be injured. And because the protest involved trespass, it's pretty likely that this would be viewed as unreasonable conduct.
(This is not just on the so-called "negligence per se" theory, under which criminal conduct is treated as automatically negligent; that theory isn't recognized in Louisiana, and in any event might not apply here. Rather, it's because of broader unreasonableness principles: It's unreasonable to violate the law in a way that puts third parties in a position where they have to lawfully use force to defend their or others' rights against the crimes your followers are committing, and where they therefore risk injury from other foreseeable crimes.)
Nor does it matter that the injury comes from a third party (here, Baker), so long as the third party's conduct is foreseeable. As the Restatement (Second) of Torts put it,
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.
This is particularly so when "the actor acts with knowledge of peculiar conditions which create a high degree of risk of intentional misconduct," for instance (continuing from the Restatement),
The employees of the A Railroad are on strike. They or their sympathizers have torn up tracks, misplaced switches, and otherwise attempted to wreck trains. A fails to guard its switches, and runs a train, which is derailed by an unguarded switch intentionally thrown by strikers for the purpose of wrecking the train…. C, a traveler upon an adjacent highway, [is] injured by the wreck. A Company may be found to be negligent toward … C.
Note that this is not an affirmative duty to protect third parties from crimes as such: That is generally imposed only when there is a "special relationship" between the plaintiff and the defendant, for instance when the defendant is a commercial property owner and the plaintiff is a customer. I don't have a duty to protect you from being attacked on the street, even if I'm nearby and can easily save you (or at least call the police to save you).
Rather, this is a duty not to unreasonably create a risk of crime (or increase such a risk). In the Restatement example, the railroad is affirmatively running a train on a track that it knows can be easily and foreseeably sabotaged. This affirmative act, which creates "an unreasonable risk of harm to another through the conduct of … a third person which is intended to cause harm, even though such conduct is criminal," is what makes the railroad potentially liable. Or, to give an example from a famous 1918 case, which held a railroad liable when its train had struck a wagon and injured the driver, thus also leading bystanders to steal the contents of the wagon:
The negligence which caused the collision resulted immediately in such a condition of the driver of the wagon that he was no longer able to protect his employer's property; the natural and probable result of his enforced abandonment of it in the street of a large city was its disappearance; and the wrongdoer cannot escape making reparation for the loss caused by depriving the plaintiff of the protection which the presence of the driver in his right senses would have afforded.
"The act of a third person," said the Supreme Court of Massachusetts, "intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen."
The Doe v. McKesson dissent argued that a distinction between "a duty to protect against the criminal acts of a third party absent a special relationship" and a "duty not to negligently cause a third party to commit a crime that is a foreseeable consequence of negligence" "is a semantic distinction without an analytic difference." But I don't think that's right: Rather, it's the fundamental distinction—long recognized by American tort law—between an affirmative duty to protect against risks that you didn't help create or increase, which indeed doesn't exist absent a special relationship, and an affirmative duty not to help create or increase such risks, which does exist.
Likewise, in our hypo, Smith is affirmatively creating a risk, by organizing a protest under circumstances where it's very likely that the abortion clinic's employees will try to eject the protesters, and that some of the protesters will react violently. And the risk is unreasonable, because he's deliberately organizing the protest as a trespass on the clinic's property. Under the Doe v. Mckesson panel decision, this would expose Smith to liability for his own negligence in bringing about the circumstances that caused the employee's injury. I think that is correct under standard American tort law.
Of course, there is then the question whether the First Amendment should preempt this standard negligence rule when the defendant's (Smith's or Mckesson's) conduct, though unlawful, nonetheless involves organizing a political protest. I will turn to that in an upcoming post.