A California Court of appeals again addresses liability for the criminal acts of third parties.  I’ve previously discussed this fascinating issue here and here.  In this case, boys stood outside the school ground on a neighbor’s hillside and were throwing rocks at kids in an after school care program.  A rock predictably struck and injured one of the students.  His parents then sued the after school program for failing to take measures to prevent people in the neighborhood from throwing rocks over the fence.

This case addresses two significant issues.  First, the court found that the criminal acts of third persons in this context were not foreseeable as a matter of law.  As a general rule, there should be no liability for the criminal acts of third parties in the absence of collusion, malicious indifference or outright participation with the criminal actors.  Here is an example of malicious indifference leading to liability.

As a bonus, the court also provided an excellent discussion of appropriate expert testimony.

Plaintiff’s expert offered testimony typical in these cases.  In his opinion, better physical and administrative barriers could have prevented the incident.  Translation: Better fences and more supervision.  It’s true.  If we wrap each child in layers of bubble wrap inside a bullet proof vest, and place each child inside a fortress, accompanied by a personal body guard, this incident could probably have been prevented.  Anything is possible if we disregard cost-effectiveness.

This is concededly an exaggeration, but it demonstrates the fallacy.  The expert is speculating.  Speculation is not admissible.  The court recognized that an expert can legitimately criticize security measures, but an opinion that this incident would have been prevented is "speculative and conjectural ."  On that basis, the expert’s opinion was rightly disregarded.

Posted by Joseph R. McFaul on Sunday, October 23, 2005 at 00:00 Comments Closed (0)

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