The Outer Reaches

Did you know that it's illegal for a Massachusetts tavern to serve alcohol to an intoxicated person? That's what G.L. c. 138, § 69 says. The statute plays a supporting role in Justice Cordy's concurrence today in Commerce Ins. Co. v. Ultimate Livery Serv., Inc., SJC No. 10149.

So now you know that (whether you believe/agree with it or not is your own business).

The decision is more interesting than all that, though, because it delivers us to the way-outer penumbra of negligence liability. The Court reverses a trial judge and holds that a livery service can be liable if it drops off a drunk person, has reason to think that the drunk person is going to get in a car and drive somewhere, and said drunk person does just that and causes harm.

This is a very hard call. Any time you see a court state that its "finding of possible liability in this case is limited to the facts described above", you can bet there's some discomfort with the ramifications of the holding. And you can bet that blue-faced law students will argue this issue into the ground for years to come.

Some Tea Leaves

If you want to know why it will be more or less impossible to succeed in bringing claims against U.S. government employees for based on being tortured while in U.S. custody, read Harbury v. Hayden, D.C. Cir. No. 06-5282. The case stems from U.S. meddling in Guatemala in 1992.

Key takeaway: regardless of what the law says, regardless of what the cases say, courts are going to resolve every question in favor of letting the government off the hook. Noted, as they say, without comment.

That Sound You Heard This Morning Was The Plaintiffs’ Bar Celebrating*

The Widget:

Court: SJC
Judge: No majority opinion
Subject: Physicians’ duty to third parties
Tone: Multiple (see above)
Importance: 7.4

Get ready for a noticeable health insurance premium increase. And also crocodile tears from Republicans and the insurance industry.

In Coombes v. Florio, SJC No. 09869, The SJC announced today that third parties injured by patients suffering from side effects of medications prescribed by doctors can sue the doctors for failure to warn. There was no majority opinion, which is rare on this Court.

Chief Justice Marshall, not especially known for being all that pro-business or all that anti-plaintiff, dissented. She writes: “I respectfully disagree with the opinion of Justice Ireland (and the two Justices who join him) that would establish for the first time in this Commonwealth a physician's duty to prevent harm to nonpatients, and would do so in sweeping terms.”

This seems like an awfully big expansion of physician liability. In light of the fractured nature of the opinions and the importance of the health care industry in the Commonwealth, it would be surprising (and disappointing) if the legislature didn’t get involved with this.

*No, not because the sidewalks in Boston were extra icy. These lawyers are enterprising. Not evil.