## Facts

- The plaintiff, as administrator of the decedent’s estate, brought a tort action seeking damages for the decedent’s conscious suffering and death.
- The defendant operated a business renting pleasure boats and canoes for use on Lake Quannapowitt in Wakefield, Massachusetts.
- The pleadings alleged the defendant rented a “frail and dangerous” canoe to the decedent and a companion while knowing they were intoxicated and “manifestly unfit” to use it.
- The amended pleading further alleged the decedent and companion were intoxicated and unable to contract or care for their safety, and that the decedent’s condition was involuntary and not his fault.
- After going onto the lake, the canoe overturned; the decedent allegedly clung to it for about one-half hour and made loud calls for help that the defendant heard and ignored.
- The decedent ultimately released his hold, drowned, and allegedly experienced conscious mental anguish and physical suffering.
- The pleadings did not allege any specific defect, disrepair, or improper maintenance of the canoe beyond the general description “frail and dangerous.”
- The defendant demurred to each count of the original and amended declarations; the Superior Court sustained the demurrers and reported the matter for appellate determination.

## Issues

1. Whether renting a canoe to allegedly intoxicated and “manifestly unfit” adults, without allegations of a specific defect, stated a claim for negligence or for willful, wanton, or reckless misconduct.
2. Whether the defendant owed a legal duty to attempt rescue or render assistance after hearing the decedent’s calls for help.
3. Whether the pleaded facts stated a cognizable tort that could support statutory recovery for conscious suffering and wrongful death.

## Decision

- The Supreme Judicial Court of Massachusetts affirmed the orders sustaining the demurrers.
- The court held the pleadings stated no breach of legal duty in renting the canoe as alleged.
- The court held the alleged failure to respond to the decedent’s outcries did not establish a breach of a legal duty owed on these facts.
- Because no underlying actionable tort was pleaded, the declarations failed to state a cause of action for conscious suffering or death.

## Legal Principles

- A defendant is not liable in tort absent a legally recognized duty and breach; characterizing conduct as willful, wanton, or reckless does not supply duty where none exists.
- A general allegation that an instrumentality is “frail and dangerous,” without pleading a concrete defect or unsafe condition of the particular item, is insufficient to ground liability based on supplying a defective chattel.
- Renting an ordinary recreational instrumentality to an intoxicated adult, without allegations establishing helplessness or another special basis for duty, does not by itself create an actionable duty to refuse the rental.
- Absent a special relationship, undertaking, or other recognized basis for an affirmative obligation, a person generally has no tort duty to rescue or assist another in peril, even if the peril is known.
- Statutory actions for conscious suffering and wrongful death require an underlying actionable tort; without duty and breach, those statutory remedies do not apply.

## Conclusion

The court concluded that, on the facts alleged, the defendant neither breached a duty by renting the canoe nor incurred liability for failing to render aid after hearing the decedent’s calls; accordingly, the pleadings disclosed no cause of action and the demurrers were properly sustained.


Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301 (Mass. 1928)