What's New in the Law - Archives
Products Liability – Duty to Design – Following Specifications of Another
In affirming the trial judge’s instructions of law to the jury and the jury’s subsequent verdict for the defendant, the First Circuit Court of Appeals has ruled that the manufacturer of a specialized trailer was not liable under Massachusetts law to a plaintiff-employee injured at work due to a design defect in the trailer. The First Circuit reasoned that the manufacturer had not breached an implied warranty of merchantability in the circumstances because it merely followed the design specifications that were provided by the plaintiff’s employer and because any alleged defect in these specifications was not “so obviously bad that a competent contractor would realize that there was a grave chance that his product would be dangerously unsafe” under the Restatement (Second) of Torts, Section 404, comment a. Hatch v. Trail King Industries, Inc., 656 F.3d 59 (August 29, 2011).
Consumer Protection Statute – Sufficiency of Demand Letter
The Supreme Judicial Court has ruled that a defendant-cruise ship operator violated the Massachusetts consumer protection statute by failing to disclose the complete terms of its cancellation and refund policies as required by the state Attorney General’s travel service regulations. In so ruling, the court concluded that the demand letter required by G. L. c. 93A, section 9 provided adequate notice of the plaintiffs-passengers’ claims in the circumstances, even though the letter had failed to identify the specific Attorney General regulation involved. Under the statute, consumers must specifically describe the factual practices to which they object, but not the complete legal basis of their claims. Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500 (September, 2011).
Leased Vehicle - Lack of Duty of Care
A lessor of a vehicle was not responsible for a mechanical defect that first arose long after the vehicle left its possession. While the lessor had a continuing right under its agreement with the lessee-driver to inspect and maintain the vehicle in order to preserve its value and utility, the lessor was not obligated under the lease agreement to do so in the circumstances. As a result, the lessor did not owe a duty of care to the estate of a pedestrian killed as a result of the vehicle's defective condition. Kassis v. Lease and Rental Management Corp., 79 Mass. App. Ct. 784 (July, 2011).
Negligence -- Psychiatric Malpractice -- Duty to Warn
A psychiatrist and two clinical social workers were not negligent for failing either to hospitalize their mental health patient or to warn his step-father of the patient's dangerous propensities. The Appeals Court thus affirmed a summary judgment for the defendants because: 1) there did not appear to be a clear and present danger that the patient would attempt to kill or seriously harm anyone, and 2) the patient's step-father was not a reasonably identifiable victim in the circumstances. Shea v. Caritas Carney Hospital, Inc., 79 Mass. App. Ct. 530 (May, 2011).
Consumer Protection Statute - Evidence of Damages
Reversing a judgment for the defendant-insurer entered in the state District Court, the Appeals Court ruled that an automobile insurer violated the Massachusetts consumer protection statute, G. L. c. 93A, when it failed to pay an injured passenger's Personal Injury Protection (PIP) benefits on a timely basis. In so ruling, the Appeals Court held that Chapter 93A recoveries do not require proof that the plaintiff's damages are quantifiable, but merely evidence that the plaintiff suffered some loss caused by the defendant's unfair or deceptive conduct. Accordingly, the fact that the insurer ultimately paid the passenger's PIP benefits did not constitute a complete defense. Chery v. Metropolitan Property and Casualty Ins. Co., 79 Mass. App. Ct. 697 (June, 2011).
Construction Defects -- Consumer Protection Statute - Statute of Repose
The Appeals Court has ruled that a homeowner's claims against a house builder/seller based on theories of negligence and breach of contract were barred by the applicable statutes of limitations and by the 6-year statute of repose set forth in Massachusetts General Laws Chapter 260, Section 2B. Claims based on theories of misrepresentation, however, were governed by the "discovery rule" and were not barred by the statute of repose -- to the extent that they were based on statements made by the defendant in his capacity as a house seller, rather than his capacity as a house builder. Kelley v. Iantosca, 78 Mass. App. Ct. 147 (October 21, 2010).
Products Liability - Exposure to Toxic Substances - Causation Principles
In a case in which this firm helped represent the prevailing party, the Appeals Court reaffirmed that "joint and several" liability principles do not apply unless two requirements are first proven: 1) the defendants' negligent acts must operate concurrently, and 2) the plaintiffs' damages must be inseparable. In the absence of such evidence, the plaintiffs in a case involving alleged exposure to toxic substances during the construction of a high school building were not entitled to a jury instruction on joint and several liability. Hobbs v. TLT Construction Corp., 78 Mass. App. Ct. 178 (October 27, 2010)
Products Liability - "Apparent Manufacturer" Doctrine
In a case of first impression, the Massachusetts Appeals Court has ruled that non-seller trademark licensors who participate substantially in the design, manufacturer or distribution of their licensees' products may be held liable as "apparent manufacturers" of those products. The Appeals Court applied the Restatement (Third) of Torts: Products Liability section 14, comment d, and decided that the defendant-trademark holder was properly found liable in the circumstances for a defective escalator that had injured a child's hand. Lou v. Otis Elevator Co., 77 Mass. App. Ct. 571 (September 3, 2010).
Massachusetts courts will no longer recognize a distinction between natural and unnatural accumulations of snow and ice when determining premises liability in slip and fall cases. Overruling a significant line of prior decisions, the Supreme Judicial Court has ruled that a property owner has a duty to keep premises reasonably safe for lawful visitors regardless of the source of the danger. Whether snow removal is reasonable "will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal." Papadopoulos v. Target Corp., 457 Mass. 368, 384, 930 N.E.2d 142, 154 (July 26, 2010)
Tort Damages - Amount of Medical Provider's Bills
The amount of a medical provider's bill is admissible under General Laws Chapter 233, Section 79G, a Massachusetts statute governing evidence of medical and hospital services, on the question of the reasonable value of the care required to treat a plaintiff's personal injuries. Evidence of the actual amounts paid to satisfy the provider's bill, as reduced by negotiated Medicaid rates or other medical plan discounts, are not admissible, because admitting such evidence would violate the collateral source rule. The Supreme Judicial Court has ruled, however, that a defendant may introduce evidence of the range of payments that medical providers generally accept for the type of services the plaintiff has received. Law v. Griffith, 457 Mass. 349, 930 N.E.2d 126 (July 20, 2010)
Liquor Liability - Scope of Employment - Lack of Special Relationship
An employer was not liable, under vicarious liability principles or otherwise, when an intoxicated employee struck a pedestrian on his way home from a restaurant after attending a business meeting. The Supreme Judicial Court reached this conclusion because the employee was no longer under the employer's control at the time of the accident, his return trip home did not serve any interests or purpose of the employer, the employer had not controlled the supply of alcohol in the restaurant, and no special relationship existed between the employer and the injured pedestrian for which a duty of care could be reasonably imposed. Lev v. Beverly Enterprises-Massachusetts, Inc., 457 Mass. 234, 929 N.E.2d 303 (July 7, 2010)
Medical Malpractice Tribunal - Sufficiency of Expert Opinion
On June 22, 2010, the Massachusetts Appeals Court ruled that, where an expert opinion submitted to a medical malpractice tribunal had failed to take into account the fact that the defendant, an emergency room physician, had consulted with two radiologists as to whether the hazy quality of the plaintiff's x-ray required that physician to order a computerized tomography (CT) scan, the expert opinion was deficient and justified an adverse decision by the tribunal against the plaintiff. Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86 (2010).
Americans with Disabilities Act - "Direct Threat" Defense
The U. S. District Court recently allowed disability discrimination claims against a former employer to proceed under the Americans with Disabilities Act. Whether the former employee, a punch press operator who was blind in one eye, had posed a direct threat to workers' safety involved issues of fact requiring further investigation and should not be dismissed at the pleading stage of litigation. Gil v. Vortex, LLC, 2010 WL 1131642 (D. Mass.), 16 Wage & Hour Cas.2d (BNA) 171.
Damages - Emotional Distress - Abuse of Process
On May 3, 2010, the Massachusetts Supreme Judicial Court decided that a plaintiff properly recovered damages for the emotional distress that she experienced as a result of the defendants' abuse of process. In this context, plaintiffs are not required to prove that they experienced physical harm as a condition of recovery, even though they must ordinarily do so when bringing common law claims for the negligent infliction of emotional distress. Millennimum Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 925 N.E.2d 513 (2010).
Wrongful Death -- Damages -- Scope of Recovery
In April, a U. S. Magistrate Judge ruled that the Massachusetts Wrongful Death Statute prevented the twin brother and maternal grandmother of a deceased 19-year-old college student from recovering any damages for loss of consortium, care, comfort and support, even though they resided in the same house as the decedent at the time of his death. According to Magistrate Marianne Bowler, the statute permits only "next of kin" to recover damages for a decedent's wrongful death and, under the state's intestacy framework, only the student's mother fell within the class of beneficiaries entitled to a recovery for such damages. Crowl v. M. Chin Realty Trust, 2010 WL 1244767 (D. Mass. 2010).
Motor Vehicle Accident - Causation - Report by Physician Hired by Defendant
On March 31, 2010, the Massachusetts Appeals Court ruled that a medical report prepared by a physician hired by a defendant-driver was admissible to prove that the plaintiff's alleged neck injury had not been caused by the underlying motor vehicle accident. This medical report had been properly admitted into evidence, despite its hearsay characteristics, because the language of a special evidentiary statute in Massachusetts, G. L. c. 233, section 79G, permitted its use at the trial. O'Malley v. Soske, 76 Mass. App. Ct. 495, 923 N.E.2d 552 (2010).
In affirming the trial judge’s instructions of law to the jury and the jury’s subsequent verdict for the defendant, the First Circuit Court of Appeals has ruled that the manufacturer of a specialized trailer was not liable under Massachusetts law to a plaintiff-employee injured at work due to a design defect in the trailer. The First Circuit reasoned that the manufacturer had not breached an implied warranty of merchantability in the circumstances because it merely followed the design specifications that were provided by the plaintiff’s employer and because any alleged defect in these specifications was not “so obviously bad that a competent contractor would realize that there was a grave chance that his product would be dangerously unsafe” under the Restatement (Second) of Torts, Section 404, comment a. Hatch v. Trail King Industries, Inc., 656 F.3d 59 (August 29, 2011).
Consumer Protection Statute – Sufficiency of Demand Letter
The Supreme Judicial Court has ruled that a defendant-cruise ship operator violated the Massachusetts consumer protection statute by failing to disclose the complete terms of its cancellation and refund policies as required by the state Attorney General’s travel service regulations. In so ruling, the court concluded that the demand letter required by G. L. c. 93A, section 9 provided adequate notice of the plaintiffs-passengers’ claims in the circumstances, even though the letter had failed to identify the specific Attorney General regulation involved. Under the statute, consumers must specifically describe the factual practices to which they object, but not the complete legal basis of their claims. Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500 (September, 2011).
Leased Vehicle - Lack of Duty of Care
A lessor of a vehicle was not responsible for a mechanical defect that first arose long after the vehicle left its possession. While the lessor had a continuing right under its agreement with the lessee-driver to inspect and maintain the vehicle in order to preserve its value and utility, the lessor was not obligated under the lease agreement to do so in the circumstances. As a result, the lessor did not owe a duty of care to the estate of a pedestrian killed as a result of the vehicle's defective condition. Kassis v. Lease and Rental Management Corp., 79 Mass. App. Ct. 784 (July, 2011).
Negligence -- Psychiatric Malpractice -- Duty to Warn
A psychiatrist and two clinical social workers were not negligent for failing either to hospitalize their mental health patient or to warn his step-father of the patient's dangerous propensities. The Appeals Court thus affirmed a summary judgment for the defendants because: 1) there did not appear to be a clear and present danger that the patient would attempt to kill or seriously harm anyone, and 2) the patient's step-father was not a reasonably identifiable victim in the circumstances. Shea v. Caritas Carney Hospital, Inc., 79 Mass. App. Ct. 530 (May, 2011).
Consumer Protection Statute - Evidence of Damages
Reversing a judgment for the defendant-insurer entered in the state District Court, the Appeals Court ruled that an automobile insurer violated the Massachusetts consumer protection statute, G. L. c. 93A, when it failed to pay an injured passenger's Personal Injury Protection (PIP) benefits on a timely basis. In so ruling, the Appeals Court held that Chapter 93A recoveries do not require proof that the plaintiff's damages are quantifiable, but merely evidence that the plaintiff suffered some loss caused by the defendant's unfair or deceptive conduct. Accordingly, the fact that the insurer ultimately paid the passenger's PIP benefits did not constitute a complete defense. Chery v. Metropolitan Property and Casualty Ins. Co., 79 Mass. App. Ct. 697 (June, 2011).
Construction Defects -- Consumer Protection Statute - Statute of Repose
The Appeals Court has ruled that a homeowner's claims against a house builder/seller based on theories of negligence and breach of contract were barred by the applicable statutes of limitations and by the 6-year statute of repose set forth in Massachusetts General Laws Chapter 260, Section 2B. Claims based on theories of misrepresentation, however, were governed by the "discovery rule" and were not barred by the statute of repose -- to the extent that they were based on statements made by the defendant in his capacity as a house seller, rather than his capacity as a house builder. Kelley v. Iantosca, 78 Mass. App. Ct. 147 (October 21, 2010).
Products Liability - Exposure to Toxic Substances - Causation Principles
In a case in which this firm helped represent the prevailing party, the Appeals Court reaffirmed that "joint and several" liability principles do not apply unless two requirements are first proven: 1) the defendants' negligent acts must operate concurrently, and 2) the plaintiffs' damages must be inseparable. In the absence of such evidence, the plaintiffs in a case involving alleged exposure to toxic substances during the construction of a high school building were not entitled to a jury instruction on joint and several liability. Hobbs v. TLT Construction Corp., 78 Mass. App. Ct. 178 (October 27, 2010)
Products Liability - "Apparent Manufacturer" Doctrine
In a case of first impression, the Massachusetts Appeals Court has ruled that non-seller trademark licensors who participate substantially in the design, manufacturer or distribution of their licensees' products may be held liable as "apparent manufacturers" of those products. The Appeals Court applied the Restatement (Third) of Torts: Products Liability section 14, comment d, and decided that the defendant-trademark holder was properly found liable in the circumstances for a defective escalator that had injured a child's hand. Lou v. Otis Elevator Co., 77 Mass. App. Ct. 571 (September 3, 2010).
Massachusetts courts will no longer recognize a distinction between natural and unnatural accumulations of snow and ice when determining premises liability in slip and fall cases. Overruling a significant line of prior decisions, the Supreme Judicial Court has ruled that a property owner has a duty to keep premises reasonably safe for lawful visitors regardless of the source of the danger. Whether snow removal is reasonable "will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal." Papadopoulos v. Target Corp., 457 Mass. 368, 384, 930 N.E.2d 142, 154 (July 26, 2010)
Tort Damages - Amount of Medical Provider's Bills
The amount of a medical provider's bill is admissible under General Laws Chapter 233, Section 79G, a Massachusetts statute governing evidence of medical and hospital services, on the question of the reasonable value of the care required to treat a plaintiff's personal injuries. Evidence of the actual amounts paid to satisfy the provider's bill, as reduced by negotiated Medicaid rates or other medical plan discounts, are not admissible, because admitting such evidence would violate the collateral source rule. The Supreme Judicial Court has ruled, however, that a defendant may introduce evidence of the range of payments that medical providers generally accept for the type of services the plaintiff has received. Law v. Griffith, 457 Mass. 349, 930 N.E.2d 126 (July 20, 2010)
Liquor Liability - Scope of Employment - Lack of Special Relationship
An employer was not liable, under vicarious liability principles or otherwise, when an intoxicated employee struck a pedestrian on his way home from a restaurant after attending a business meeting. The Supreme Judicial Court reached this conclusion because the employee was no longer under the employer's control at the time of the accident, his return trip home did not serve any interests or purpose of the employer, the employer had not controlled the supply of alcohol in the restaurant, and no special relationship existed between the employer and the injured pedestrian for which a duty of care could be reasonably imposed. Lev v. Beverly Enterprises-Massachusetts, Inc., 457 Mass. 234, 929 N.E.2d 303 (July 7, 2010)
Medical Malpractice Tribunal - Sufficiency of Expert Opinion
On June 22, 2010, the Massachusetts Appeals Court ruled that, where an expert opinion submitted to a medical malpractice tribunal had failed to take into account the fact that the defendant, an emergency room physician, had consulted with two radiologists as to whether the hazy quality of the plaintiff's x-ray required that physician to order a computerized tomography (CT) scan, the expert opinion was deficient and justified an adverse decision by the tribunal against the plaintiff. Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86 (2010).
Americans with Disabilities Act - "Direct Threat" Defense
The U. S. District Court recently allowed disability discrimination claims against a former employer to proceed under the Americans with Disabilities Act. Whether the former employee, a punch press operator who was blind in one eye, had posed a direct threat to workers' safety involved issues of fact requiring further investigation and should not be dismissed at the pleading stage of litigation. Gil v. Vortex, LLC, 2010 WL 1131642 (D. Mass.), 16 Wage & Hour Cas.2d (BNA) 171.
Damages - Emotional Distress - Abuse of Process
On May 3, 2010, the Massachusetts Supreme Judicial Court decided that a plaintiff properly recovered damages for the emotional distress that she experienced as a result of the defendants' abuse of process. In this context, plaintiffs are not required to prove that they experienced physical harm as a condition of recovery, even though they must ordinarily do so when bringing common law claims for the negligent infliction of emotional distress. Millennimum Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 925 N.E.2d 513 (2010).
Wrongful Death -- Damages -- Scope of Recovery
In April, a U. S. Magistrate Judge ruled that the Massachusetts Wrongful Death Statute prevented the twin brother and maternal grandmother of a deceased 19-year-old college student from recovering any damages for loss of consortium, care, comfort and support, even though they resided in the same house as the decedent at the time of his death. According to Magistrate Marianne Bowler, the statute permits only "next of kin" to recover damages for a decedent's wrongful death and, under the state's intestacy framework, only the student's mother fell within the class of beneficiaries entitled to a recovery for such damages. Crowl v. M. Chin Realty Trust, 2010 WL 1244767 (D. Mass. 2010).
Motor Vehicle Accident - Causation - Report by Physician Hired by Defendant
On March 31, 2010, the Massachusetts Appeals Court ruled that a medical report prepared by a physician hired by a defendant-driver was admissible to prove that the plaintiff's alleged neck injury had not been caused by the underlying motor vehicle accident. This medical report had been properly admitted into evidence, despite its hearsay characteristics, because the language of a special evidentiary statute in Massachusetts, G. L. c. 233, section 79G, permitted its use at the trial. O'Malley v. Soske, 76 Mass. App. Ct. 495, 923 N.E.2d 552 (2010).
