Mullins v. Pine Manor College

O’Connor, J.

(dissenting). I agree with the opinion of the court except for its conclusion that the evidence warrants a finding that the defendants’ negligent acts or omissions proximately caused the plaintiff’s injury.

The court holds that the jury could have found that the assailant was an intruder, rather than a guest whose entrance into the dormitory was lawful, and that the assailant gained *65 entrance to the plaintiff’s room because of an inadequate locking system on the room door. I disagree with both propositions. The assailant, who was never identified, surprised the plaintiff early on a Sunday morning in a dormitory in which male guests were allowed to stay overnight on weekends. The court reasons that there was no evidence that any male visitors stayed overnight on the night of the rape, and that “[i]t is therefore mere conjecture to suggest that the assailant was lawfully on the premises.” Supra at 59. Sounder reasoning would be that the plaintiff has the burden of proof and that there was no evidence that male visitors did not stay overnight on the night of the rape. That male visitors were required to be registered is inconsequential. There was no evidence that no male visitors were registered or that all registered visitors had left the campus before the incident. Therefore, the plaintiff failed to show that the defendants’ negligent failure to exclude possible intruders from the plaintiff’s dormitory proximately caused her injury.

The next inquiry is whether, if the assailant was a lawful visitor, the jury could have found that he gained entrance to the plaintiff’s room due to the defendants’ negligence. I agree that the jury could have found that the system for locking the room door was inadequate due to the defendants’ negligence, but I do not agree that the jury could have found that entry into the room was gained by disengaging a lock. The plaintiff testified that when she returned to her dormitory at about 3 a.m., she entered her room and changed into pajamas. She then went to her friend’s room to talk for a few minutes, leaving her door open. The door to her friend’s room was located a few feet down the hall at a right angle with the plaintiff’s door, and was open while they talked. The court concludes that the assailant could not have entered the plaintiff’s room without passing directly in front of the plaintiff and her friend as they were talking, and that this warranted a finding that the assailant would have been detected if he had attempted to slip into the plaintiff’s room during the time she spent next door. *66 Supra at 60. The court’s reasoning is not persuasive because there is no evidence as to where in the friend’s room the plaintiff and her friend were located or whether they were facing, or could even see, the door to that room and beyond it to the corridor and the plaintiff’s door.

The court asserts that the opportunities for concealment in a single room of the type occupied by the plaintiff “are exceedingly limited,” and states in a footnote that the room did not have a bathroom and “[t]he dormitory itself is of modern construction and appears to be rather stark.” The court further states that “[t]he assailant. . . did not awaken Mullins until well over an hour after she went to sleep,” and concludes that these facts support the view that the assailant entered the room after the plaintiff had returned from her friend’s room and locked her door. Supra at 60. The facts that the room was a single room without a bathroom, and that the dormitory building was modern and stark, do not warrant an inference that the construction and furnishing of the room made it unsuitable for a hiding place. The plaintiff testified on direct examination that the assailant awakened her between 4 a.m. and 4:30 a.m. On cross-examination she testified that between 4a.m. and 4:30 a.m. was a guess on her part, and that she “didn’t exactly ask him what time it was.” The plaintiff’s testimony that she returned to the dormitory at 3 a.m., changed into pajamas, went next door for a few minutes, and guessed the assailant awakened her between 4 a.m. and 4:30 a.m. does not support the court’s assertion that the plaintiff was asleep for “well over an hour” before she was awakened. Even if such an inference were warranted, the delay was no more indicative of forced entry into the room than of the patience of the assailant. I agree that it is speculative to say that the assailant entered the room while the plaintiff was next door, but it is also speculative to say that the assailant entered after the door was locked. The burden was on the plaintiff to establish, beyond speculation, that entry occurred after the door was locked. She failed to do so.

*67 The court’s holding as to causation rests on the further premises that had the defendants employed three or four guards instead of two, and had the guards been properly supervised, and had they performed efficiently, the plaintiff and her assailant would have been discovered “during the march out of the dormitory, across the courtyard, down the bicycle path, and back and forth in front of the refectory.” Supra at 61-62. There was evidence, in addition to the evidence described in the court’s opinion, that the bicycle path was in a wooded area and that the campus consisted of about seventy-five acres on which there were about seventeen dormitories and twelve other buildings. In view of the size of the campus, the numerous buildings, the darkness of night and the opportunity for clandestine flight, it is entirely speculative that two, three, or four well supervised and efficient guards would have seen what the two guards on duty did not see. The fact that three or four guards would see more than two does not mean that if three or four guards were on duty one of them probably would have been in a position to detect the assailant and the plaintiff making their way to the refectory or walking in front of it.

The plaintiff testified that en route from the dormitory to the refectory, she and the assailant proceeded underneath the chains of a courtyard gate which was not adequately secured, and that the door to the refectory, where the rape occurred, was unlocked. Even if the rape would not have occurred but for those conditions, the jury was unwarranted in finding that those conditions proximately caused her injury. The plaintiff had the burden of proving “that the defendant^] took a risk with respect to the plaintiff’s safety that a person of ordinary prudence would not have taken, and that the plaintiff suffered a resulting injury that was within the foreseeable risk.” Cimino v. Milford Keg, Inc., 385 Mass. 323, 330 (1982). Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 454 (1969). The foreseeable risk of an inadequately secured gate is that an intruder might enter the premises for mischievous purposes. The jury could not properly have found that there was a fore *68 seeable risk that a student would be hurt as a result of being' led out through the gate by one who had entered the premises lawfully. While prudence may have dictated securing the gate to keep people out, the jury would not have been warranted in finding that prudence required securing the gate to keep people in. Similarly, the jury would not have been warranted in finding that a prudent person in the defendants’ circumstances would have locked the refectory to prevent rape. Rape was not within the foreseeable risk of failure to lock the refectory.

The plaintiff produced an expert witness who testified that there was a causal relationship between the defendants’ negligence and the rape of the plaintiff. An expert’s opinion on the issue of causation has no probative value if it rests on speculation alone. LaClair v. Silberline Mfg. Co., 379 Mass. 21, 32 (1979) (“[a] verdict may not be based on conjecture and surmise, and expert opinion does not help if it is demonstrated that it rests on speculation”). Carey v. General Motors Corp., 377 Mass. 736, 741 (1979) (“expert testimony on the issue of causation does not help when it is based on speculation alone”). Swartz v. General Motors Corp., 375 Mass. 628, 633 (1978) (same as LaClair). Currie v. Lee Equip. Corp., 362 Mass. 765, 768 (1973). Kennedy v. U-Haul Co., 360 Mass. 71, 73-74 (1971). “A mere guess or conjecture by an expert witness in the form of a conclusion from basic facts that do not tend toward that conclusion any more than toward a contrary one has no evidential value.” Kennedy v. U-Haul Co., supra. The facts adduced at trial did not tend any more toward the conclusion that the plaintiff’s rape was caused by the defendants’ negligence than to the contrary conclusion. Therefore, the expert’s opinion testimony had no probative value.

In my opinion the plaintiff failed to introduce sufficient evidence to warrant a finding that action or inaction of the defendants was the proximate cause of her injury, and the defendants were entitled to directed verdicts and judgments in their favor.