What happens when people attending an event announced on a social networking site get attacked by other event attendees?
In Melton v. Boustred, the Defendant announced on MySpace he would hold a party at his place where there would be music and alcohol. Melton v. Boustred, 2010 Cal. App. LEXIS 447 (Cal. App. 6th Dist. Mar. 12, 2010).
The Plaintiffs were attacked when they arrived at the party. The attack sounded gruesome, with the Plaintiffs beaten and stabbed by unknown attackers. Melton, at *2.
The Plaintiffs sued the Defendant for negligence, premises liability, public nuisance and battery. Melton, at *2.
The Trial Court granted the Defendant’s demur twice against the Plaintiffs’ Complaint and First Amended Complaint. Melton, at *2.
The Footloose Theory of Liability
The Plaintiffs on appeal claimed the demur was improper because the Defendant owed the Defendants a legal duty “to protect them against the third-party criminal assault, because the risk of injury was foreseeable and the burdens of protecting against it were slight.” Melton, at *3.
The Plaintiffs’ theory: common sense dictated there was foreseeable danger because there was going to be music and alcohol at the public MySpace party.
The linchpin of the Court of Appeals’ analysis was whether there was a legal duty to the Plaintiffs from the Defendant.
First year Torts taught all lawyers that the elements for negligence are duty, breach, causation and damages. Melton, at *3.
Whether there is a legal duty depends on the “foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” Melton, at *7.
California Civil Code section 1714(a), states, in relevant part:
Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.
Melton, at *7.
The Rowland v. Christian (1968) 69 Cal.2d 108, case established the following balancing test on whether there can be a deviation from California Civil Code section 1714(a):
The foreseeability of harm;
The degree of certainty that the plaintiff suffered injury;
The closeness of the connection between the defendant’s conduct and the injury suffered;
The moral blame attached to the defendant’s conduct, the policy of preventing future harm;
The extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and
The availability, cost, and prevalence of insurance for the risk involved.
Melton, at *7-8.
The Rowland factors are also applied to premises liability. Melton, at *9 [citations omitted].
Duty to Protect from the Party Conduct of Others
As a general rule, there is no duty to protect others from third-party conduct. Melton, at *11, citing Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.
A party must show that a defendant committed some misfeasance, which is when a party’s actions have made “the plaintiff’s position worse and has created a foreseeable risk of harm from the third person.” Melton, at *10.
The opposite of “misfeasance” is “nonfeasance,” which is when a defendant has not aided someone through “beneficial intervention.” Melton, at *10.
A person who has failed to act might also be negligent in not aiding someone if there was a “special relationship” with a plaintiff. Melton, at *11.
Special relationships are generally common carriers (think trains & airplanes) to their passengers or mental health professionals to their patients. Melton, at *20.
As with any negligence analysis, a risk must be foreseeable. In situations when there is criminal conduct by a third party, courts require an “extraordinarily high degree” of foreseeability for a landowner to be negligent. Melton, at *11-12.
The Plaintiffs argued that the Defendant’s public and unrestricted MySpace party with music and drinking would create a foreseeable dangerous situation. Melton, at *13. The Plaintiffs claimed that the MySpace invitation was “active conduct of a property owner” that supported a finding of tort liability. Id.
No Duty, No Harm
The Court held that the Defendant owed no legal duty to the Plaintiffs, because there was no special relationship with them or misfeasance. Melton, at *13.
Defendant Did Not Create the Risk
The Court held that the Defendant did not “stimulate criminal conduct” or that violence was a “necessary component” of the MySpace party. Melton, at *18.
The Court explained from prior case-law that, “[t]o impose ordinary negligence liability on [a property owner who] has done nothing more than allow [his home] to be used for [a] party … would expand the concept of duty far beyond any current models.” Melton, at *18.
Party Goings Are Not in a “Special Relationship”
The Court of Appeals quickly held that there were not facts supporting any special relationship between the Plaintiffs and the Defendant. Melton, at *20.
The Plaintiffs forcefully argued that “common sense” that violence could have happened from a public party on MySpace was enough to establish a duty from a foreseeable harm. Melton, at *25-26.
The Court’s reply to the “common sense” argument should echo through the ages:
Common sense is not the standard for determining duty.
Melton, at *26.
Party Security: Security Guards & Don’t Invite People You Don’t Know
The Court of Appeals quickly rejected the Plaintiffs’ claim the Defendant should have hired security guards. The California Supreme Court has held that establishing a duty to hire “security guard” would be a very high burden. This likely would require some showing there were past violent acts. Melton, at *29.
The Court of Appeals rejected this argument. There was no evidence this would even have avoided any violence. Melton, at *31-32.
Plaintiffs’ argument in essence would block the Defendant from socially and professionally networking by restricting events to only those who knew him. Melton, at *32.
The Court of Appeals expressly rejected this barrier to interacting with others at events he organized as being “socially burdensome.” Id.
Bow Tie Thoughts
We will see more of these cases. As people continue to use social networking sites, connect with others and announce public events, these and other issues will be litigation again.
For example, the Iowa Supreme Court discussed complex conspiracy hearsay issues over Facebook invites to a party that ended with underage drinking and a fatal car crash. See, State v. Tonelli, 2008 WL 2152529 (Iowa, May 23, 2008).
In this case, the party was supposed to be exactly that, a party.
If there had been other evidence that there could have been violence, such as comments from attendees on the public event page threatening violence, perhaps this could have had a different outcome. Additionally, if the party invite had photos showing dangerous behavior and drinking, perhaps the Plaintiffs’ “common sense” arguments would have carried more weight. However, if the Plaintiffs knew there was a risk of injury at the party because of “common sense,” perhaps common sense dictated not attending.
As a practical matter, I wonder how the MySpace invitation was preserved and presented in court. It most likely was just a printout. However, screen shots of the MySpace evidence, or perhaps a litigation hold could have been issued to MySpace to preserve the public event.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.