Defining Duty and Foreseeability Between Landowner and Licensee

Facts of the Case

James Gallagher was a 34-year-old man who had resided with his mother in her small North Providence home all his life. He “was plagued by hallucinations, imaginary conversants and a paranoid distrust of others” and was considered by his psychologist sister to have paranoid schizophrenia. On July 3, 1994, for no apparent reason, he emerged from the basement carrying his shotgun and proceeded to shoot his next-door neighbor, Ronald Volpe, three times in the head and body while the victim was trimming his hedges. Mr. Gallagher had no known prior history of violence, and his past interactions with the victim were characterized as normal.

Sara Gallagher heard the gunshots and encountered her son coming into the house. He told her he had shot the victim, but she thought that he might “just be hallucinating again.” Troubled by the “fireworks,” she called her two daughters who, with the help of a neighbor, found the victim’s body and called the police. The police searched the house and found a shotgun, pistol, boxes of ammunition, and related gun paraphernalia.

Charged with first-degree murder by the state, Mr. Gallagher first considered an insanity defense but then pleaded nolo contendere to a reduced criminal charge of second-degree murder.

The plaintiffs subsequently brought the wrongful-death lawsuit against Mrs. Gallagher, accusing her of negligence in allowing her mentally ill son to keep guns and ammunition on her property. They also attempted to sue Mr. Gallagher, but, being incarcerated, he did not testify or otherwise participate in the trial of this civil case. The plaintiffs settled claims with the defendant’s adult daughters before the trial.

The plaintiffs claimed that the defendant knew or should have known that, by allowing her mentally ill son to possess guns and ammunition while he was residing with her at her house and exhibiting paranoid and delusional behavior, she created an unreasonable risk of bodily harm to others. The defendant claimed that although she knew her son was mentally disturbed, she did not know that he possessed any guns or ammunition or that he kept such in her house. Moreover, she argued that because her son had no history of violence, she could not have foreseen that one day he would shoot their next-door neighbor using the guns and ammunition kept in her house.

After listening to testimony and other evidence presented at trial, the jury rejected the defendant’s denial of knowledge of guns on her property as incredible and returned a verdict in favor of the victim’s family.

Despite denying the defendant’s motions for judgment as a matter of law on three occasions, the trial justice ultimately changed her mind and concluded that absent any evidence of previous violent behavior on Mr. Gallagher’s part, the defendant breached no duty that she owed her next-door neighbors when she failed to disarm her son or otherwise control his arms-bearing activity on her property. The trial justice thus granted the defendant’s motion for a new trial, overturning the verdict. She ruled that she had erred as a matter of law in letting this case go to the jury, because it was not foreseeable that the defendant’s son would use the guns and ammunition he kept on the defendant’s property in such a violent and deadly manner; therefore, a negligence finding was not possible.

The plaintiffs appealed from the order granting the defendant a new trial, citing the defendant’s breach of common-law duties that property possessors have to prevent licensees such as Mr. Gallagher from conducting themselves on a possessor’s property in a manner that would create an unreasonable risk of bodily harm to others and to maintain their property in a reasonably safe condition.

Ruling

The Rhode Island Supreme Court concluded that the trial justice erred as a matter of law in granting a new trial because she had instructed the jury on the issue of foreseeability. When a negligence verdict was returned, the trial justice usurped the jury’s fact-finding role by concluding that in the absence of prior incidents of violence, the defendant breached no duty to the victim when she let her son keep munitions in her home. The trial court’s order granting a new trial was vacated, and the matter was remanded for entry of judgment in favor of the survivors, consistent with the jury’s verdict.

Reasoning

Citing the Restatement (Second) of Torts § 318 (1965), the court concluded that the defendant, as a possessor of residential property, owed a duty to her next-door neighbor concerning dangerous activities conducted on her property by a third party. The court next turned its attention to the issue of foreseeability and concluded that the absence of any evidence of past violent behavior on Mr. Gallagher’s part did not render the shooting incident unforeseeable.

Both the trial and supreme courts used the legal principles set forth in § 318 of the Restatement entitled, “Duty of Possessor of Land or Chattels to Control Conduct of Licensee,” to determine a land possessor’s liability to visitors and to those outside the property for maintaining dangerous conditions on their land. This section reads: If the actor permits a third person to use land or chattels in his possession…he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control.

The supreme court concluded that the defendant was “present” within the meaning of the term used in § 318 because she was present in the house when her son engaged in his gun possession activity, despite the fact that at the precise moment of the shooting, the defendant was reading a newspaper in the living room of her house, unaware of the event taking place outside.

The court also held that the jury was entitled to conclude that the defendant knew or had reason to know that she had the ability to control her son with respect to this use of her property. In addition to the fact that he was living at her house “only with her permission,” the defendant also stated that if she had known about the gun, “I would have told him to get rid of it. If he didn’t, I would have.” The court noted that this is not a strict liability case, as the jury may have concluded that the defendant did not know she could control her son’s conduct, if, for example, Mr. Gallagher had dominated the defendant by threatening or physically or psychologically abusing her or otherwise compromising her ability to control his possession of guns on her property. To the contrary, in this case, the defendant testified that if she had known about the guns, she would have gotten rid of them.

In addition, despite the defendant’s professed lack of knowledge vis-à-vis her son’s possession of guns and ammunition, the court likewise found the jury was entitled to conclude that she either knew or should have known about her son’s possession of such, given, among other things, that the shotgun had been purchased nine years prior to the shooting and that after the murder, the shotgun and ammunition boxes as well as the .32-caliber gun were all found throughout the close confines of the house in easily observable or locatable places.

Furthermore, given the defendant’s knowledge of her son’s paranoia, hallucinations and delusions, the court found the jury entitled to conclude that because she failed to prohibit his gun possession on her property, she thereby created an unreasonable risk of bodily harm to the victim.

The court rejected the defendant’s argument that it was not gun storage or possession on the defendant’s property that injured the victim but rather Mr. Gallagher’s independent, criminal, and unforeseeable act of discharging a firearm to kill the victim that caused the victim’s demise, adding that “this argument overlooks and unduly minimizes the crucial role that the proximate location of the guns and ammunition stored on defendant’s property played in bringing about this victim’s murder.”

The court went on to clarify that the duty that arises in this case stems not from the defendant’s relationship as parent to adult child, but rather as the defendant’s status as a possessor of property.

In determining foreseeability, the court emphasized that courts should look to the totality of the circumstances, “applying a balancing approach that acknowledges that duty is a flexible concept that seeks to balance the degree of foreseeability of harm against the burden of the duty to be imposed” (McClung v. Delta Square Ltd. P’Ship, 937 S.W.2d 891 (Tenn. 1996). The court noted that in this case, because the defendant testified that had she known about the guns, she would have told her son to get rid of them or done so herself, “the burden of exercising control in this case by effecting removal of the guns was a relatively light and inexpensive one to implement.”

The court assumed that a mentally ill individual in possession of firearms creates an inherently dangerous situation, stating the jury was entitled to conclude that: …a reasonably prudent and informed homeowner…should not have allowed such a mentally unstable person to keep and maintain deadly weapons on her property because she should have known that, even without a violent past history, he was not the type of individual who was capable of possessing and using such dangerous instrumentalities in a reasonably safe manner. Furthermore, referencing the trial judge’s decision that the absence of prior similar incidents of violence negated foreseeability and, hence, negligence, the court stated, “We reject such a rigid adherence to a ‘prior similar incidents’ rule…. When negligence occurs, we are simply unwilling to sacrifice the first victim’s rights to life and liberty upon the altar of an inflexible prior-similar incidents rule.” The court concluded by noting that once it is shown that a duty is owed, “generally the question of foreseeability constitutes an issue of fact that is properly submitted to the jury,” hence vacating the order for a new trial and remanding for entry of judgment in favor of the plaintiffs, consistent with the jury’s verdict.

Dissent

Justice Shea begins his dissent by contesting the notion that the defendant was automatically conferred with an ability to control her son “merely by granting permission” for him to live in her home and cites two prior cases (McDonald v. Lavery, 534 N.E.2d 1190 (Mass. App. Ct. 1989) and Kaminski v. Town of Fairfield, 578 A.2d 1048 (Conn. 1990)). In McDonald, summary judgment affirmed that the defendants were not liable for the action of their 27-year-old son who, while intoxicated and living in his parents’ house, shot the victim, even though the defendants knew their son had been violent while intoxicated. In Kaminski, the defendants were not liable when their schizophrenic son attacked with an ax the police officer escorting the crisis team called to evaluate their son’s mental status. Citing Restatement (Second) of Torts § 319 (1965), the Kaminski court stated that the duty to control was usually limited to “professional custodians with special competence to control the behavior of those in their charge” and that “merely…making a home for an adult child who is a mental patient” did not constitute the capacity and duty to control.

Justice Shea also asserted that the defendant had no duty or authority to investigate her son’s mental illness, “nor was she competent to make her own assessment of that mental illness,” citing the complexity that even highly trained mental health professionals face in such a situation (Gill v. New York City Housing Auth., 519 N.Y.S.2d 364 (N.Y. App. Div. 1987). Likewise, the dissent maintains that the event was not foreseeable, as Mr. Gallagher had no prior untoward interactions with the victim, no prior violent episodes, and no prior episodes of discharging a firearm since being treated for his mental illness.

The dissent recognized the broader implications of the decision in this case that created “a new cause of action allowing tort liability for parents who fail to control the conduct of adult offspring.” The implications affect broad public policy with potential societal consequences vis-à-vis parents who shelter adult mentally ill children: “Either they must reject their troubled children whose actions they are expected to control, or else face harsh legal consequences even in the absence of any previous incidents.” Furthermore, the dissent notes that “procedural safeguards surrounding involuntary commitment further attenuates attempts by parents to control or seek community assistance to control adult [children with] mental illness,” because often (and specifically, in Rhode Island) imminent danger is required for commitment.

Discussion

The defendant’s statement that, if she had known about her son’s guns, she would have disarmed him herself if he refused to get rid of the guns was heavily relied on in the majority opinion to establish the crucial ability-to-control prong of duty and hence liability in this case. However, given the disparaging language used to describe the mentally ill in the majority opinion (including a quotation from Longfellow, “Whom the Gods would destroy, they first make mad”), one suspects that the defendant’s statement served as a convenient legal conduit to act on biases and stigma regarding the mentally ill. The majority opinion never specifically explicates the link between the son’s mental illness and dangerousness, ostensibly assuming as self-evident that mentally ill individuals create an ultrahazardous situation if they are in possession of firearms, even in the absence of any past violent behavior.

The finding in Volpe, especially considering past violent behavior, is in sharp contrast to that in McDonald, which involved an intoxicated individual with a prior history of violence. Despite multiple studies showing that substance abuse/intoxication is a stronger predictor of future violence than mental illness, it seems a different standard was applied when judging the perceived threat inherent in the defendant’s son’s mental illness in this case than when the defendant’s son suffered from intoxication in McDonald. Regardless of the legal merits present in this case, it remains disheartening to see assumptions and stigma regarding the mentally ill so clearly illustrated.