Harvard Liability Is Low For Drowning at Pond

Harvard's liability for the drowning deaths of two children last Saturday at a University-owned pond in Jamaica Plain appears slight. unless a case can be built charging Harvard with gross negligence or willful and wanton misconduct in not dealing with known hazards of the land.

Harold Kaitz, a Boston casualty claims lawyer, said last night that Harvard may be liable if the University "had knowledge of a history of children in the neighborhood being attracted [to the pond] and was aware that the probability of attraction is increased by experience."

The fact that a drowning occurred in the same pond 18 years ago, and that several near-drowning have been reported there in the last decade, could substantiate a charge of gross negligence on the University's part, Kaitz said.

Daniel Steiner '54, general counsel to the University, last night declined comment on possible law suits against Harvard. He said Tuesday that legal action or compensation is "not something we have considered." "There isn't any question of liability here." he said.

Another Boston lawyer, Gerald A. Berlin, agreed in part with Kaitz. "I would think Harvard's standard of responsibility in this case is minimal, or totally minimal, unless there have been previous attachments with regard to the pond as a hazard." Berlin said.

Kaitz admitted that negligence on Harvard's part would be difficult to prove under Massachusetts laws, even though a Supreme Court ruling 14 months ago stripped charity organizations of immunity in negligence cases. Harvard qualified as a charity organization under old charity immunity laws.

D'fficulty in proving negligence on Harvard's part lies mainly in the fact that Massachusetts has no "doctrine of attractive nuisance."

Many states have such a doctrinewhich holds landowners liable for any "attractive" structures or potential hazards-such as tunnels, scaffolding or unfenced bodies of water-which are in fact dangerous and are easily accessible to passerby, gratuitous invitees (or uninvited guests), or even trespassers.

There are no Massachusetts statutes which function as a "doctrine of attractive nuisance" either in part or in whole. "The state is inexcusably backward in its social responsibility in this area." Kaitz said.

Since there are no such provisions in Massachusetts law, liability depends almost entirely on the degree of negligence as judged in individual cases.

Were You Invited?

For instance, a party faces a high standard of liability for the well-being of persons invited onto his property to conduct business. A less severe-legally the "ordinary" -standard of liability applies to an invited social guest.

The next degree of liability in this downward spiral applies to a gratuitous invitee, who qualifies as a guest and not a trespasser. The slightest degree of liability is that due a trespasser on private property.

Massachusetts laws governing this final instance-in which the drowning victims probably fall-establish liability only in the sense that the landowner must not display gross negligence her deal with trespassers in a wanton and willful manner.

Obligation

"First you have to determine whether Harvard, as a charity organization, can be liable for negligence, which it can be under the Supreme Court ruling," Lou's L. Jaffe. Byrne Professor of Law, said yesterday. "Then you must deal with the landowner's obligation to protect people from known dangers on private property."

Jaffe said a jury could conceivably find Harvard negligent for failing to "take policing measures at the pond site." He pointed eat that Massashusetts has been strict in requiring landowners to make their property safe.

Another consideration, Jaffe said, is that any negligence must be determined with the understanding that children, not adults, were attracted to any potential hazard on the University's land.