Rule 12 motions to dismiss are challenging. The expense is not warranted in most cases, but used wisely a Rule 12 motion can eliminate risk and exposure quickly and decisively. McCusker v. Kennefick was a wrongful death action arising from the tragic death of a 3 year old guest who wandered away from a holiday gathering at the defendants’ home and drowned on neighboring property. Melick & Porter’s team of Bill Keville, Mike Byrne and Chris George filed a motion to dismiss in lieu of an answer. The Superior Court allowed the motion, and the plaintiff appealed. The Appeals Court recently affirmed the judgment. The court agreed with M&P that plaintiff could not prevail because defendants did not owe the minor guest a duty of care, either as social hosts or because they had entered into a custodial or other special relationship with the child that might support the imposition of such a duty. Duty is a question of law, and the absence of a duty supports a viable motion to dismiss.
Melick & Porter’s early assessment and aggressive pursuit of a motion to dismiss saved the defendants from the emotional and financial costs of protracted litigation. Congratulations Bill, Mike and Chris.
