Liability

Statutes of Limitation

1. BI, PD.

M.G.L. c. 260 §2A – 3 years for actions for personal or bodily injury

M.G.L. c. 260 §2A, 4, c. 160 § 2-318 – 3 years for actions for property damage

2. Breach of oral/written contract for cargo losses?

M.G.L. 260 §§1, 2 – Written contract: 20 years if under seal; 6 years others; Oral contract – 6 years        

M.G.L. c. 106 § 2-725(1) – 4 years for sale of goods.

State law only applies as to cargo transported intrastate. Federal law applies to cargo damaged or lost during interstate transport, 49 U.S.C. Sec. 14706, also known as the “Carmack Amendment”, pursuant to which the statute of limitations for a claim for loss or damage to cargo is 2 years from date of the receipt of the notice of denial of claim, or 4 years from date of accrual if no denial was served.

Negligent Entrustment, Hiring, Retention, Supervision

What if Course and Scope is Admitted?

Massachusetts recognizes independent and separate claims based on the theories of respondeat superior, negligent entrustment, and negligent retention/hiring/supervision. To succeed on a claim based on respondeat superior, and thus recover against an employer for an employee’s tort, the plaintiff must demonstrate the existence of an employment relationship and that the tortious conduct was within the scope of employment.        

To recover on a negligent entrustment claim, the plaintiff must prove the defendant had control of the vehicle, with liability predicated on the owner’s having entrusted a vehicle to a person who was incompetence or unfit to use it properly, who incompetence or unfitness was the cause of the injury to the plaintiff. The general rule in Massachusetts is that the owner, to be liable, must have had actual knowledge of the unfitness of the driver as contrasted with mere reason to know that the driver was unfit.

Course and Scope of Employment

In evaluating whether tortious conduct occurred within the course and scope of employment, the jury will consider whether the conduct was the type the employee was hired to perform; whether the conduct occurred within authorized space and time limits; and whether the conduct was motivated at least in part by a purpose to serve the employer.

Comparative or Contributory Negligence

Massachusetts has a modified form of comparative negligence, by statute. The negligence of the plaintiff as compared to the negligence of all defendants, and the total causal negligence must equal 100%. If the negligence of the plaintiff is 50% or less, then his recovery is reduced pro rata. If his negligence is greater than 50%, the plaintiff cannot recover.

A plaintiff could recover his entire judgment (reduced for his comparative negligence) against one defendant whose negligence was less than that of the plaintiff, if the negligence of all defendants was 50% or more. For example, if the plaintiff is 30% at fault, defendant A is 50% at fault, defendant B is 20% at fault, and the damages are $100,000, then the verdict would be reduced to $70,000, but that amount could be recovered solely against defendant B. Defendant B would then have an action for contribution against A, but could recover only $35,000, notwithstanding B’s greater degree of fault.

Sudden Emergency Defense?

Available as a defense to a negligence claim. The doctrine is applied alternatively to establish a slightly relaxed duty, or a higher burden to prove breach of duty, when a defendant is confronted with a sudden emergency. The emergency cannot be of the defendant’s making.

Contribution or Implied Indemnity from Third-Parties

The right of contribution is statutory and exists only in favor a joint tortfeasor, who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. See M.G.L. c. 231B, §1.

Common law indemnification is available only when the party seeking indemnity is liable only vicariously or derivatively, and was not personally at fault for the plaintiff’s injuries. Fireside Motors, Inc. v. Nissan Motor Corp. in USA, 395 Mass. 366, 369 (1985). A contractual right to indemnification will only be implied under Massachusetts law when there are unique special factors demonstrating that the parties intended that the would-be indemnitor bear the ultimate responsibility for the plaintiff’s safety or when there is a generally recognized special relationship between the parties.

Exclusivity of Workers Compensation

The Massachusetts Workers’ Compensation Act, G.L. c.152, s.24, provides that "[a]n employee shall be held to have waived his right of action at common law . . . in respect to an injury that is compensable under this chapter, to recover for personal injuries, if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right. . . .” In the absence of such written notice, G.L. c. 152, s.26, bars common law actions against employers where (1) the plaintiff is shown to be an employee; (2) her condition is shown to be a personal injury within the meaning of the workers’ compensation act; and (3) the injury is shown to have arisen out of and in the course of her employment.

Seat Belt and Helmet Use

Some Massachusetts courts have allowed evidence of nonuse of seat belts in limited situations but generally speaking, a failure to use a seat-belt defense is not well established as a defense with courts often not allowing evidence of non-use to be considered the jury.

Under Massachusetts law, motorcycle operators and passengers are required to wear helmets that conform with minimum standards. Evidence that a motorcycle operator was not wearing a helmet is admissible for the purpose of proving an actual violation of the statutory requirement, but not as evidence of comparative negligence in tort cases.

Spoliation

Spoliation is not a separate cause of action in Massachusetts. However, courts have discretion to craft a remedy for spoliation of evidence based on the context of the lawsuit, including the exclusion of evidence when a spoliating party knew or reasonably should have known that the item could be material to litigation. Other remedies include the finder of fact being permitted to draw adverse inferences against the spoliating party. Non-negligent and unintentional alteration or removal of items before a party knows or reasonably should have known the items were material to litigation will not invite sanctions.

Damages

Caps?

None (with an exception in wrongful death actions)

Joint & Several Liability

Yes. Under Massachusetts law, when two or more tortfeasors contribute to an injury, they are jointly and severally liable. However, a defendant who pays more than his pro rata share may seek contribution against the other responsible defendants. A defendant who discharges “the common liability” by settling also has an action for contribution against those whose liability he has discharged. A release “given in good faith” to a settling defendant is a defense against an action for contribution by any other tortfeasor. It is significant that the contribution scheme is strictly pro rata, without regard to degrees of fault.

Standard of Proof Required for Compensatory Damages

Collateral Source (Meds billed v. paid)

Evidence of collateral source payments made to the plaintiff are generally inadmissible except in rare instances to support other evidence of malingering. A Defendant is entitled to offsets for collateral source payments, made by the Court following a jury verdict.

Hedonic Damages

A Massachusetts trial court has allowed plaintiff to offer proof of hedonic damages. In re Griffith, 440 Mass. 500 (2003)

Life Care Plans

Yes, provided that the opinions set forth therein satisfy the requirements for the admissibility of expert opinions.

Wrongful Death Standing and Damages

The executor or administrator of the decedent’s estate has standing to file a wrongful death action. See M.G.L. c. 229 § 2. The representative of the estate is entitled to recover: (1) Fair monetary value of the decedent to the person entitled to receive the damages recovered, including, but not limited to, compensation for the loss of the reasonably net income, service, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the person entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent; and (3) punitive damages in an amount of not less than $5,000.00 in such case as the decedent’s death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant.

Punitive Damages

1. Recoverable? If so, standard for it?

Limited and not under common law. Punitive damages are only available in statutory-based wrongful death actions if the jury finds that the tortfeasor’s actions were malicious, wanton, willful, or reckless or grossly negligent. In consumer protection actions under M.G.L. c. 93, if the court finds that a defendant’s unfair or deceptive acts are intentional or willful, or (in the case of actions by consumers, that the refusal to grant relief on demand was made in bad faith) it may award double or treble damages.

2. Caps?

No in wrongful death matters.

3. Insurable?

Yes, for punitive damages on a finding of gross negligence, recklessness and wantonness. Not insurable for punitive damages based on intentional conduct.

Punitive damages in consumer protection actions are likely not insurable, on the likely grounds that a “policy indemnifying an insured against liability due to his own willful wrong is void as against public policy.”

Offers of Judgment

At any time prior to ten days before beginning of trial (or, if liability has been determined, ten days prior to proceedings to determine the amount of liability), a party defending against a claim may serve on the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with the proof of service, and thereupon the clerk shall enter judgment. An offer not accepted is deemed withdrawn, and evidence thereof is not admissible except in a proceeding to determine costs. The fact that an offer is made but not accepted does not preclude a subsequent offer. A plaintiff defending against a counterclaim may also make an offer of judgment.

Biomechanics

Yes, provided that the opinions set forth therein satisfy the requirements for the admissibility of expert opinions.

Must policy limits be disclosed pre-suit?

Yes, upon request. M.G.L. c. 175 § 112C requires any insurance company to reveal to an injury party making a claims against an insured the amount of the limits of liability coverage upon receiving a request in writing for that information. The reply is due within 30 days of receiving the request. An insurer that fails to comply shall be liable to pay the claimant the sum of $500 plus reasonable attorneys fees and expenses.

May claimant recover general damages if the claimant does not have own auto-insurance? So called no pay no play rules.

Yes.