Articles Posted in Wrongful Death

It is not too early to consider what the Massachusetts Supreme Judicial Court’s decision in Nguyen v. Massachusetts Institute of Technology, means for Institutions of Higher Education [IHEs], students and courts. A few initial observations about Nguyen are warranted.

First, the SJC made clear – again – that IHEs are “clearly not bystanders or strangers in regards to their students.” Nguyen, slip op. at 23 (citing Mullins v. Pine Manor College, 389 Mass. 47, 51-52 (1983)). The era of IHE “bystander” non-liability is over.

Second, breaking new ground, the Court held that IHEs and their employees have “a special relationship with a student and a corresponding duty to take reasonable measures to prevent [a student’s] suicide” in three circumstances. Nguyen at 29. They have an affirmative “duty to take reasonable measures under the circumstances to protect the student from self-harm[,]” where they have “actual knowledge” of: (1) a student’s suicide attempt that occurred while enrolled at the [IHE]; (2) a student’s suicide attempt recently before matriculation; or, (3) a student’s stated plans or intentions to commit suicide. See id. at 29-30. In such circumstances, “suicide is sufficiently foreseeable as the law has defined the term, even for [IHE] nonclinicians without medical training” to owe a duty. See id. at 32. The duty, at least for nonclinicians, is “limited to initiating the [IHE’s] suicide prevention protocol, and if the school has no such protocol, arranging for clinical care by trained medical professionals or, if such care is refused, alerting the student’s emergency contact[,]” — often a parent. Id. at 35-36.

In 2015, vehicular crashes involving at least one large truck or bus were involved in an estimated 6,263,000 nonfatal crashes and killed 3,838 people in the United States.

Anyone who has been driving for any period of time on the modern-day rifle ranges known as Massachusetts highways has driven by and seen first-hand the devastation caused by automobile collisions. The carnage can be exponentially worse when one of the involved vehicles is a bus or truck. This is due to simple physics.  Force = mass x acceleration. The more something weighs, the more force it will impart at a given speed when it strikes another object. School busses are a particular concern. They often contain our children, do not have seat belts and weigh about 30,000 pounds before passengers get in them.

Following a collision involving a commercial truck or bus, it is important that an injured person take certain steps as quickly as possible to best preserve their rights. Indeed, in an ironic twist on the pejorative term “ambulance chaser” some insurers and defense law firms have rapid response teams designed to get to truck and bus collision scenes before the vehicles are cleared from the scene. These defense insurers/firms – in their effort to limit their legal exposure — know the value of seeing the scene with their own eyes, taking photos of the scene from the perspectives that put their employers in the best possible light and quickly identifying percipient witnesses. Of course, these corporations usually have an enormous advantage over an injured party. First, they are not injured and on the way to the hospital. Second, they have other people to begin the “risk management” process. Nonetheless, the sooner an injured party gets counsel working on their behalf, the better.

We have all been there. You wait in a long line to sign a son or daughter up for an activity in which they are excited to participate. By the time you get to head of the line, you are ready to quickly sign anything – including the innocuous-sounding registration form.  Even if you don’t read it, if someone gets seriously hurt, signing such a document can be a big mistake.

Many of these forms contain pre-injury releases of liability – often buried and in small print. While treated differently in many States, in Massachusetts, such a release may well bar a subsequent case regardless of the seriousness of one’s injuries. For example, in Cormier v. Central Mass. Chapter of the Nat. Safety Council, 416 Mass. 286 (1993), the Massachusetts Supreme Judicial Court upheld such a release finding that the “allocation [of] risk by agreement is not contrary to public policy.” More to the point, the Court reasoned that placing the risk of negligently caused injury on an inexperienced consumer as a condition of that person’s voluntary choice to engage in a potentially dangerous activity ordinarily does not contravene Massachusetts public policy. In the absence of fraud, deceit or undue duress, requiring a person to sign such a release before participating in such an activity does not render the release unconscionable.  So you’re stuck, right?  Not always.

Each case must be examined on its own facts. The language of these releases varies widely. Some are broad, others narrow and all are subject to interpretation. Doubts about the interpretation of the release must be resolved in the injured person’s favor, but the law books are littered with cases that ended badly for the Plaintiff due to these releases. In addition, there is a body of law that stands for the proposition that these releases cannot protect against claims for gross negligence nor can they protect against liability arising out of the violation of a statutory or regulatory duty. See White Const. Co., Inc. v. Commonwealth, 11 Mass. App. Ct. 640, 647 (1981). Finding such statutory and regulatory duties can be difficult, but finding one can be decisive and render a claimed release void, allowing the case to proceed.

How will the possibly, perhaps inevitably, driverless future impact motor vehicle accidents? In 2015 there were over 6 million reported car crashes that resulted in over 2 million injuries.[1]  The primary cause behind most motor vehicle crashes is human error; for all the things humans do well, driving isn’t necessarily one of them.

In 2014 Tesla released the Model S, which included a tech package option that had autopilot features.[2]  Tesla’s idea was to have a system that could handle some of the responsibilities of driving to eliminate some of the deficiencies inherent in humans drivers.  Tesla, among other car manufacturers and some tech companies, believe computer operated cars could someday eliminate human errors in driving entirely.[3]

Unfortunately, in 2016 a Tesla car operating on autopilot resulted in a fatal crash for the car’s driver.[4]  The crash was an unfortunate tragedy, but the incident raised a number important legal questions:

Construction site accidents are a leading cause of serious — and often fatal — injuries to workers. In 2013, according to the Occupational Safety & Health Administration [OSHA], 4,585 workers were killed on the job. This equates to more than 12 deaths every day. Of these, 20.2%, or 1 in every 5, were in construction. Four types of incidents lead to most of these deaths: (1) falls; (2) being struck by an object; (3) electrocutions; and, (4) being caught-in/between. Not surprisingly, OSHA has issued safety regulations in an effort to address safety hazards at construction sites. Nonetheless, in FY 2014, the top 10 most frequently cited OSHA violations included those in the areas of: (1) fall protection; (2) scaffolding failures; (3) ladders; (4) electrical, wiring methods, components and equipment; (5) powered industrial trucks; and, (6) machines and machine guarding.

People suffering serious injuries in the work or construction industry often face significant hurdles. First, they need expensive medical treatment. Second, they lose earning capacity, some of them permanently. While most employers are required to have workers compensation insurance to provide for medical care and the provision of some payments for lost wages, workers compensation is not designed to make an injured person whole in connection with their harms and losses. Rather, the medical treatment it provides is often subject to being fought by the employer’s insurer and the payments for lost wages are only a percentage of what the employee would have earned if not injured. In most cases, when an injured worker gets workers compensation payments, they are barred from bringing a claim against their employer.

That does not mean, however, that an injured employee is without other remedies. While an injured worker who is covered by workers compensation cannot bring a claim against his employer or co-workers, there are often other third-parties who can be held responsible if they negligently caused harm. General contractors, sub-contractors, vendors, suppliers and others may provide viable means of third-party recovery for injured workers. These third-party cases provide the opportunity for a more complete recovery on behalf of an injured worker, or their estate if they died on the job. Thus, claims can be made for all of the lost earning capacity and for all of the medical expenses. Unlike a workers compensation claim, in a third-party case the injured party can seek recovery for pain and suffering and the loss of enjoyment of life. These types of damages are often the most important and weighty for an injured person when their life has been fundamentally and permanently changed due to an on the job injury. In addition, the spouse and children of an injured worker may have the right to recover in a third party action for damage done to their relationship with the injured family member. This type of claim, known as a loss of consortium claim, is simply not available under workers compensation law. Thus, a third-party claim offers injured workers, and their families, their best chance for a full and fair recovery for their harms and losses.

In Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165 (2013), the Massachusetts Supreme Judicial Court [SJC] clarified a number of issues about the interrelation of the wrongful death statute, G.L. c. 229, consumer protection claims under G.L. c. 93A and the survival statute, G.L. c. 228, §1.

Recently, defense interests had been arguing that claims arising out of a death were limited to wrongful death claims based on negligence theories. The SJC flatly rejected such an argument by holding that consumer protection claims under G.L. c. 93A can be brought under the survival statute by the Administrators of an Estate and that they are a distinct cause of action from common law wrongful death claims.
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