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Michael Bogdanow
Michael Bogdanow
Attorney • (617) 523-8300

I Should Have Known Better

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“I Should Have Known Better” isn’t the Beatles’ most popular song – it was the “B Side” to their single “A Hard Day’s Night.” And although it certainly wasn’t the idea behind the song (it’s a love song, after all), the concept of “should have known better” runs directly into the center of our legal system, particularly in the legal world of personal injury lawsuits – the concept of “foreseeability.”

Beatles Album Cover

Foreseeability is an essential issue in virtually every personal injury case. A review of two recent Massachusetts cases helps show how the lines of foreseeability are drawn. Belizaire v. Furr, 88 Mass. App. Ct. 299 (2015) involved the fatal shooting of Carl Belizaire at a party. His estate brought a lawsuit against the owner of the property, who had an informal agreement leasing the property to a family friend. The estate claimed that the landlord was negligent in connection with security at the house, and, as a result, an unknown assailant attended the party and killed Mr. Belizaire. Although landlords may be liable for harm resulting from criminal acts on their property, they are only held liable when such acts are foreseeable. In this case, there had been no prior shootings or similar violent incidents, and, therefore, the landlord could not be held liable for the shooting, as it was not “foreseeable.’

On the other hand, even without any prior, similar incidents, a hospital could be liable for a sexual assault in the case of Doe v. Boston Medical Center Corporation, 88 Mass. App. Ct. 289 (2015). An interpreter had entered the victim’s hospital room one afternoon to perform interpreting services. Later, he returned, found her door open, entered her room, and sexually assaulted her. When he was hired, the hospital had told the interpreter – who had no prior criminal convictions – that he could never be alone with a patient. As the court explained, this policy was “self-regulated … the only person to insure that [he] was never alone with a patient was himself.” A superior court judge concluded that the hospital could not be held liable to the patient, because “no rational view of the evidence permits a conclusion that [the hospital] could have foreseen” the assault. The Appeals Court reversed the judge’s decision, concluding that the question should not have been whether the “specific assault was foreseeable based on” the interpreter’s prior conduct, but rather whether any “assault on an unattended, minimally clothed patient was foreseeable when her room door was unlocked, open, and unmonitored, and unauthorized hospital employees had access to it.” The Appeals Court noted that the hospital’s policy prohibiting interpreters from being alone with patients is evidence that such harm was foreseeable to the hospital. Whether the hospital’s lack of proper safeguards to enforce that policy was negligent was an issue that would have to be decided in a jury trial, and, therefore, the judge’s dismissal of the case was reversed.

The bottom line is that foreseeability is a difficult concept, and is very much based on the unique circumstances of each case. The best lesson is this: if harm from your conduct is foreseeable, it would be wise to change your conduct and reduce the likelihood of such harm. In other words, if you “should have known better,” you may be in trouble.