Sharpe v. Peter Pan Bus Lines, Inc.

Lynch, J.

(dissenting, with whom Nolan and O’Connor, JJ., join). The court today concludes that a causal connection exists between the unprovoked and inexplicable criminal act of a third person and the failure of the defendants to provide a uniformed security force inside the bus terminal where the attack occurred (emphasis mine). In order for liability to exist in these circumstances, as the court concedes, there must be a basis for a finding that the act causing the plaintiff’s injuries was within the reasonably foreseeable risks created by the defendant’s breach of duty. “The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct should have realized the likelihood that such a situation might be created thereby *795 and that a third person might avail himself of the opportunity to commit such a tort or crime.” Bellows v. Worcester Storage Co., 297 Mass. 188, 196-197 (1937), quoting from Restatement of Torts § 448 (1934). See Mullins v. Pine Manor College, 389 Mass. 47, 54-56 (1983); Magaw v. Massachusetts Bay Transp. Auth., 21 Mass. App. Ct. 129, 133-135 (1985); Restatement (Second) of Torts § 448 (1965). The import of the above authorities is that, before a defendant will be held to answer for injuries sustained as a result of a third party’s criminal acts, even when the defendant’s conduct created the opportunity for the commission of the crime, there must be a showing that the defendant was put on notice as to the potential occurrence of such injurious criminal activity. 1 That condition was not satisfied here. Neither is there any connection between the defendant’s negligence and the plaintiff’s harm.

The evidence as to notice consisted of two police reports. One involved complaints in 1977 of “winos” and derelicts sleeping in the station overnight and assaulting the employees when they were awakened between 5 and 5:30 a.m. The other involves a single individual, also a “wino,” who in 1978, was bothering people. 2 These incidents do not provide notice to the defendants that a deranged killer might enter its premises at 9:30 on a Sunday morning and, in the midst of a crowd of people, repeatedly stab a fellow passenger.

*796 The defendants were on notice that winos frequented the bus station overnight and in the early morning. The defendant responded by engaging two employees — each of whom was designated either a special or an auxiliary police officer for the city of Springfield — to watch over the terminal and deal with any vagrants there. As far as the record discloses, these employees were adequate to resolve security problems with which the defendant theretofore had been confronted. 3 In other words, once put on notice of a problem with vagrants, the defendants responded with appropriate measures. There is no indication in the record of circumstances that would have given notice to the defendants of the likely occurrence of a bizarre attack by one passenger upon another.

Moreover, the negligent act of failing to provide uniformed security personnel did not create the opportunity for the criminal act inflicted upon the plaintiff’s decedent. See Restatement (Second) of Torts § 448 (1965). The attack on Sharon occurred in broad daylight in a terminal full of people. Sharon sat with two friends, one of whom was a two-hundred-pound, six-foot tall young man. In such circumstances, the presence or absence of a uniformed security guard could have had little effect on whether the attack would or would not have occurred. One could speculate over a such a question. Perhaps a security guard would have intervened successfully in the attack, or perhaps he would have been at the other end of the waiting room. Possibly a uniformed security guard would have deterred the killer from entering the station. In all likelihood, since the killer was an ordinary traveler on his way through Massachusetts from Colorado, the presence of a security guard would have had no effect at all. The jury are entitled to draw reasonable inferences from the evidence. They are not entitled to base a verdict on conjecture. The question whether the defendants’ failure to employ a uniformed guard was the proximate cause of Sharon’s death may be resolved only through the exercise of conjecture. Therefore, it is a question not properly for the jury. See Northern Ry. v. Page, 274 U.S. 65, 72-73 (1927).

*797 The conclusion that proximate cause exists involves the application of a legal standard to a particular set of facts. If either the facts or the reasonable foreseeability of the intervening criminal act are subject to reasonable difference of opinion, the question of proximate cause must go to the jury. Restatement (Second) of Torts § 453, comment b (1965). See W. Prosser & W. Keeton, Torts § 45 (5th ed. 1984). Here, however, the essential facts concerning Werner’s act are undisputed and there can be no question that, on the evidence before them, the jury could not conclude that Werner’s inexplicable and unprovoked attack was reasonably foreseeable by the defendant.

In the case of proximate cause, “ [tjhere is a decided tendency to leave every question to the bewildered jury, under some vague instruction which provides no effective guide.” W. Prosser & W. Keeton, Torts, supra at 319. This tendency cloaks the determination in the veil of a finding of fact. See id. at 274. It thereby inappropriately allows an appellate court to evade its duty to explicate the law — and the policy reasons behind the law — of proximate cause. Recent events reveal that the passenger bus trade does not enjoy the robust health and competition of some other areas of American commerce. See 53 Antitrust & Trade Regulation Report 87 (BNA, July 16, 1987) (merger of Greyhound and Trailways bus companies after failure of Trailways). See also In re Carey Transp., Inc., 50 B.R. 203 (Bkrtcy. 1985) (bankrupt bus company). For some, the bus is the only affordable method of travel. There exists a current tendency by some to find liability in every case, even in the absence of fault or where, as here, the fault of the defendants is unconnected to the acts which caused the plaintiff’s decedent’s injuries. This trend is justified on the theory of society’s interest in diffusing the costs of a plaintiff’s injuries. But, as we should all know by now, there is no free lunch. Here, the increased cost of insuring against such unforeseeable incidents will be borne by those who can least afford it — the bus-riding public. And when these costs are added to the price of a bus ticket, the result will be that a greater segment of working class Americans can no longer afford *798 the most economical means of long distance travel and that fewer bus companies will offer service to fewer locations. In the name of egalitarianism, disenfranchisement is created. I, therefore, dissent.

In Mullins v. Pine Manor College, supra, we rejected the rule, in effect in some jurisdictions, that the plaintiff must introduce some evidence of prior criminal acts before liability may attach. However, we have never said that liability may be imposed without any showing that defendant could have foreseen the harm. In Mullins , the college’s own precautions against rapes on campus were taken as evidence that the college had notice. Id. at 55 . Furthermore, this portion of the holding in Mullins was expressly limited to “the circumstances before us.” Id.

The plaintiff also introduced the testimony of a Springfield police officer that he considered the area around the bus station to be an “active” one regarding assaults and larcenies. However, the police officer could point to no specific incident; he gave only a general recollection of what he thought of the area. He produced no records of any murder ever having occurred previously at the bus station. In any event, this evidence is not relevant in the circumstances of this case, where the killer was an apparently nonthreatening fellow traveler from out-of-State rather than an undesirable denizen of the bus station’s allegedly unsavory surroundings.

If they could not deal with a problem themselves, they called the Springfield police.