MASSACHUSETTS LAW OF NEGLIGENCE
A. What is “The Law” of Negligence”?
The legal concept of negligence forms the basis for most types of personal injury claims in the Commonwealth of Massachusetts.
The law of negligence is a complex, ever-changing code of conduct that our society expects individuals and business entities to conform their behavior to. That standard is one of reasonableness. We expect safe and reasonable behavior in our interactions with other people and businesses. Unreasonable behavior that causes injury is not tolerated in our society and can subject one to civil liability for the injuries and damages caused by that behavior. There are very few bright lines that clearly divide what is reasonable from what is not. Each case is highly fact dependent on the particular circumstances involved. The law of negligence in Massachusetts has evolved over centuries into its present state and – as a reflection of our society’s changing expectations of public conduct – the law continues to evolve.
There are two general sources for the law of negligence: “common law” and “statutory law”. The common law is judge-made law that comes from the Massachusetts appellate courts, which now include the Appeals Court and the Supreme Judicial Court. These are the courts that review lower court rulings and sometimes write decisions that have binding or precedential effects on future similar cases. Our modern day common law principles originated from Great Britain and crossed the Atlantic with the first English settlers of the Massachusetts Bay Colony. Beginning with the first judicial session in the Western hemisphere, the Supreme Judicial Court’s predecessor court heard cases and recorded its decisions as far back as 1693. Since then, our appellate courts have recognized and adapted the English common law through their own written decisions and precedents as applied to life in the New World and, through the centuries, to our modern post-industrial age.
The common law of negligence, as developed over time, establishes a general code of conduct for individuals and business entities in Massachusetts. The common law of negligence is in fact nothing more than the aggregate of all judicial decisions pertaining to negligence. Those decisions are organized and published by official court reporters in case books. A good portion of law school is dedicated to analyzing the more noteworthy of the thousands and thousands of reported appellate court decisions.
Statutory law is what we more traditionally think of as “the law” because these are the rules and regulations debated, drafted and enacted by our Legislature in the form of statutes. Through the years, the Legislature has also saw fit to alter, supplement and clarify the common law of negligence. By statute, the Legislature has also authorized various governmental agencies such as the Office of the Attorney General and the Department of Public Health to enact administrative safety regulations that also help define the law of negligence.
So when we refer to “the law” in this context, we are really talking about standards of conduct established by our judges in the form of common law precedents and those enacted by our democratically elected representatives in the form of statutory and administrative rules.
B. What is “Negligence”?
Negligence is defined as the failure to exercise that degree of care that an ordinary, reasonable, cautious, prudent person or corporation would have exercised under all the facts and circumstances then existing. Negligence is an unreasonable mistake. It can occur even though the mistake was an honest one, a unintentional one, or one made with good intentions in mind.
The touchstone of negligence is “reasonableness”. This is an objective standard based on what the larger community, not the individual at issue, considers to have been reasonable based on all of the circumstances. When a person or corporation acts unreasonably in ways that adversely affects the outside world, they set the stage for a finding of negligence in a court of law. It can be as simple as a driver failing to look over her shoulder when backing out of a parking spot in a busy lot. And it can be as complex as a pharmaceutical company failing to perform the appropriate type of double blind test on a potentially hazardous arthritis drug before putting it on the market. If a person or a business entity fails to act reasonably given all of the circumstances, then a finding of negligence can be warranted in a court of law.
Under Massachusetts law, negligence consists of four elements:
The “plaintiff” is the name for the claimant asserting the legal cause of action, here for negligence. The plaintiff has the burden of proving each of these four elements by a preponderance of the evidence in order to make his case. This standard of proof is discussed below. The “defendant” is the person or corporate entity being sued. For the most part, the defendant does not have the burden to prove anything. Thus it is the plaintiff’s obligation to establish evidence of these four elements in order to prove a negligence case.
C. Burden of Proof: Preponderance of the Evidence.
The burden of proof in a civil action is a “preponderance of the evidence.”
To establish something by a “preponderance of the evidence” means to prove to the jury’s satisfaction that something is more likely so than not so. To find some fact by a preponderance of the evidence is to be at least 51% convinced that it is true. Imagine evenly balanced scales of proof, one side represents the belief that the plaintiff is right and the other side represents the defendant. If the scales are tipped toward the defendant, or if they are exactly even on any issue to be decided, then that issue has not been proven by a preponderance. For a preponderance to exist, the plaintiff’s scale must tip ever so slightly in his favor in order to satisfy the burden of proof.
The preponderance standard in a civil case is to be contrasted with the much more demanding burden of proof in a criminal case – beyond a reasonable doubt. Plaintiffs in civil cases do not have to prove anything beyond a reasonable doubt.
D. Element #1: Duty
1. Who owes a duty?
There can be negligence only when the defendant owes the plaintiff a legal duty to use reasonable care, and of course the answer to this question depends on the particular circumstances involved. It is impossible to list every scenario where a legal duty would exist. Our world is too complex and the potential interactions between people and corporate entities are too numerous. The key to the existence of a legal duty is “reasonable foreseeability”. If it is reasonably foreseeable that some type action or omission (like driving a car or performing surgery) would cause some type of knowable harm (like a collision or a surgical complication), then the courts will find that there exists a legal duty to take care. Where it is minutely possible that some attenuated harm might arise as a result of some seemingly innocuous action (like releasing a helium balloon at a county fair that ends up tangling up in an airplane propeller causing a crash), there probably will not be a legal duty to use reasonable care (when letting go of a helium balloon outdoors).
Through the evolution of common law principles over the centuries and the more recent promulgation of statutes and safety regulations, there are some well-settled legal duties that no one seriously disputes anymore. In these situations, one person will be held by a court to affirmatively owe another person a duty to act reasonably. For example, the law imposes such duties on motor vehicle operators, marine vessel operators, public transportation carriers, consumer product manufacturers and sellers, utility suppliers, construction contractors and subcontractors, land owners and operators, pharmaceutical drug manufacturers, medical device manufacturers, doctors, nurses and medical care providers, alcohol servers and bars, day care operators, nursing home operators and dog owners.
So, for example, in Massachusetts a nursing home operator will be held to owe its elderly residents a duty to act reasonably to protect them from harm, whether the harm is from other patients, staff, broken equipment or tainted food or medicine. Similarly, a liquid propane gas company owes its customers a duty to act reasonably when connecting the lines during a delivery and to avoid creating a hazardous leak. An obstetrician owes an expecting mother a duty to conform to the medical standard of care in performing a delivery. A residential landowner owes a duty to lawful visitors to maintain the property in a reasonably safe condition. And so on and so forth.
Massachusetts courts, however, do limit the scope of the legal duty of care in several substantial respects. Bear in mind, these are legal not moral standards of care.
In Massachusetts, landowners and occupiers (such as commercial tenants) owe a duty of reasonable care to people entering the property. This is not very controversial. For example, an ice cream store operator owes a duty to its customers to clean up spilled ice cream melting on the floor so as to avoid a slip injury. Such a customer is deemed a lawful entrant because they are business invitees. However, no such duty is owed to a trespasser. So if a trespasser broke into the store after hours and slipped on a puddle of melted ice cream, he could not prevail on a claim for negligence because he was not a lawful entrant. In Massachusetts, trespassers are only owed a much lesser duty of care against harm caused by willful, wanton or reckless behavior such as the setting of a spring action gun trap or other type of harmful device like a bear trap that is intentionally placed to harm a trespasser.
Legally, we do not owe each other a general duty to warn against or prevent a perilous situation that we did not create. For instance, a surfer does not owe a legal duty to warn others of a submerged water hazard he knows about even if the surfer suspects that someone is likely to collide with it. Though some sort of moral code may apply, there would be no legal duty to warn and thus no basis for a claim for negligence for failing to warn others of the hazard. By a similar token, a pedestrian who sees an open manhole cover on the street owes no duty to an oncoming bicyclist to warn of that hazard (though the contractor or public utility that removed the manhole cover would).
Moreover, once a perilous situation arises and someone is in immediate jeopardy, there is no general legal duty to rescue the other person, again, so long as one does not play a role in causing the peril. This rule obviously applies to members of the public, not to people who contract through their jobs to perform rescues like a police officer, a fire fighter, a life guard or an EMT. Though it sounds awful, a random pedestrian minding her own business owes no legal duty to aid a blind person stuck on a traffic island in the middle of a busy city street and calling out for help. Likewise, a swimmer does not owe a legal duty to save another person who is drowning. There is an aspect to the legal duty regarding rescue that has been the subject of much moral debate. But the common law rule stands: there is no general legal duty to rescue another person in peril. So here is the bottom line. Without a legal duty, there can be no legal responsibility for negligence that causes harm to another.
In the same vein, we do not generally owe a duty to protect each other from third-party assailants. A backyard barbecue host does not owe his guests any legal duty to protect them from the unforeseeable acts of a madman on the loose in the neighborhood who jumps the fence and attacks a guest. However, some types of defendants have a “special relationship” with their patrons such that they are expected to use reasonable care to protect against and prevent foreseeable types of harm including accidental, intentional, criminal or negligent acts of third persons. Massachusetts courts have imposed such a common law duty on a college to protect its students, upon a bus company to protect its passengers and upon a hotel to protect its guests.
2. Agency: duty of employers.
An employer is vicariously responsible for the negligence of its employee while the employee is acting within the scope of his employment. In determining whether the conduct was within the scope of employment, relevant factors include whether it was the type of conduct that the employee was hired to perform, whether the conduct occurred substantially within the authorized time and space limits of the job, and whether the conduct was motivated, at least in part, by a purpose to serve the employer.
Employers owe a duty of care to the public for the injurious actions of an employee where the employee was acting “within the scope of employment” at the time. In such a situation, the employer will be deemed vicariously liable for the negligent conduct of the employee. For an employee’s conduct to be considered within the scope of his or her employment, the conduct must be of the kind the employee was hired to perform, it must substantially occur within the time and place of the employment and it must be motivated by at least a partial intention to further the interests of the employer. The classic example of this is the barroom bouncer who uses excessive force to eject a patron and ends up causing serious injury. In that situation, the employer (i.e., the operator of the nightclub) would be found by a Massachusetts court to owe a duty of care to the injured patron for the potentially wrongful actions of the employee bouncer, thus paving the way for a claim for negligence against the bar.
Employers also owe a duty to the public to exercise reasonable care in the hiring, supervision and retention of their employees when those employees come into contact with the public in the course of the operation of the business. In determining the scope of this duty, courts will examine the nature of the employment, past criminal record if any of the employee and the employer’s knowledge of prior incidents. As such, a private limousine company would owe a duty to the public to make sure that its livery drivers are properly licensed and that they have clean driving records. Such a company’s failure to screen its drivers would give rise to a claim for negligence directly against it where an employee causes an accident while intoxicated, after having several prior reprimands for alcohol related offenses. Of course, there would also be a potential claim against the employee as an individual for such conduct.
3. What is owed?
If there is a legal duty of care owed, what does is require? The duty owed is one of “reasonable care”, or more precisely – the degree of care that a reasonably prudent person in a similar situation would take to be careful of and to refrain from acts or omissions that unreasonably expose others to a risk of harm. Negligence is the deviation from that standard. The legal duty owed is to exercise ordinary prudence, good judgment and care commensurate with the risk involved.
This general standard of reasonableness is intentionally vague so that it can cover the millions of possible scenarios that can arise in our complex, crowded world. Here are some concrete examples. A grocery store operator owes a duty to detect and clean spills in the aisles within a brief period of time that the general public would expect of such a business based on its size, mode of operation and number of employees. There is no rulebook that says that a grocer has five minutes to detect and clean a spill. The standard is whatever would be “reasonable” given the circumstances. And so a jury would consider the length of time the spill was present and the nature of the business (i.e., a big-box store with 100 employees or a mom-and-pop store with one) to determine what duty was owed. A motorist owes other drivers a duty not to follow too closely. The scope of that duty will be determined by examining the type of roadway, the speed limit and perhaps the traffic and weather conditions. A nursing home owes its residents a duty to reasonable steps to protect them from other residents with known propensities for violent outbursts. And the list goes on and on and on.
There are many laws and regulations that set minimum standards by which individuals and businesses must conform their conduct. These can be used in negligence cases to help define the duty that is owed. For example, the federal government has issued interstate trucking regulations that limit the number of hours a trucker can drive without taking a break for sleep. These regulations can be used to establish the minimum duty that trucking companies owe to the public to ensure that their long-haulers are alert when driving on the nation’s highways.
Many industries and professional organizations have also enacted their own specific guidelines as minimum standards for conducting their operations. In negligence claims, these industry standards can be used to establish the scope of defendant’s duty of care in a particular case. For instance, in the field of emergency medicine, there are agreed upon standards of care that require the use of a CT scan rather than a simple x-ray for imaging a suspected spine fracture.
Yet another source of legal duties can be found when a particular business adopts its own internal practices and procedures to define the standards of care it owes to its customers. Like in the case of a plumbing company that make it a required practice to test the temperature setting on a newly installed hot water heater in order to protect against scalding injuries.
E. Element #2: Breach.
The breach of a legal duty is the act or omission that causes the harm. The breach is some deviation from a standard of reasonable care, from a legal regulation, and industry standard or a specific practice and procedure. The breach of a legal duty is what we call negligence.
Using the above examples, a breach occurs when the interstate trucker drives too many hours without rest and creates a hazard on the road. A breach occurs when an emergency room doctor relies solely on an x-ray to rule out of spine fracture. And a breach would occur when the plumber does not test the temperature setting of a hot water heater it was hired to install.
There is, of course, always the more general avenue to prove a breach by arguing that reasonable care was not followed. This can be done in a simple negligence case against a landowner who removes a fence post without filling in the hole when most reasonable landowners would have done so to prevent an accident. It can also be done in a complex case against a pharmaceutical company that fails to run a series of double blind tests on a new pain medication when most reasonable drug manufacturers would have done so. Depending on the level of scientific or technical complexity of a given case, the trial attorney can employ a liability expert to render an opinion that some act or failure to act was negligent.
Reasonable care varies with the circumstances. The amount of care that the prudent person would exercise varies with the circumstances, the care increasing with the likelihood and severity of the harm threatened.
Evidence regarding the general practice or custom of a trade or profession is admissible as evidence of negligence (though not conclusive on the issue) bearing on the question of what is ordinary or reasonable care.
Evidence of a statutory, regulatory, and ordinance violation is also admissible on the issue of reasonable care. But again, such a violation is only some evidence of a defendant’s negligence. It cannot be taken as conclusive of a defendant’s negligence.
1. Simple common law negligence.
In the case of the fencepost hole mentioned above, the breach of a duty (that is, negligence) is proved by simply arguing the basic common law principles. A residential landowner owes a legal duty to take reasonable steps to protect others from foreseeable danger. The trial attorney will argue that the landowner who failed to fill in the fence post holes was negligent because he knew or should have known of the holes and it is reasonable to expect that someone might step into one and get hurt. There are no statutes or public safety regulations pertaining to fence post holes that can help a jury determine the scope of this legal duty and whether it was breached. There is no industry standard for landowners who remove fence posts on their property. There is probably no evidence of a routine practice and procedure adhered to by that landowner. And an expert witness is not necessary (or permitted) to tell a jury something that makes common sense to a lay person: when you remove a fence post you should fill in the holes with dirt. A jury will hear the evidence and the argument and determine for itself whether the landowner was negligent given all of the circumstances.
2. Violation of safety statute.
In Massachusetts, the violation of a safety statute, regulation or local ordinance by a defendant that contributes to cause an injury or death is considered evidence of negligence, but it does not automatically constitute negligence as a matter of law. A jury will consider the violation among all of the other circumstances. For instance, if a general contractor fails to comply with the state building code by not providing fall protection equipment to a bricklayer working on scaffolding, and the bricklayer falls to his death, the contractor’s failure to comply with the state building code can be presented to a jury as evidence of negligence. There are literally thousands upon thousands of governmental safety regulations that relate to everything from riding a bicycle on a public roadway to security in a mental health facility to the delivery of electricity to the citizens of Boston. Depending on the nature of a given case, chances are that there is some regulation out there in play that will help define the scope of a defendant’s duty and whether it was breached.
3. Violation of industry standard.
A defendant’s deviation from an industry standard may also be deemed evidence of negligence. The field of emergency medicine generally recognizes that in certain situations a more powerful CT scan is needed instead of an x-ray when looking for suspected spine fractures. This permits the entire spinal cord can be visualized in much greater detail and increases the chances of identifying a spine fracture. That industry standard can be used to show that a doctor’s failure to follow the standard was negligent, and that the failure to do a CT scan resulted in an undiagnosed spine fracture.
4. Violation of internal standard, custom or usage.
Similarly, a deviation from an individual’s or a business’s customary practices and procedures may be deemed to be evidence of negligence.
5. Expert witnesses.
Expert witnesses can be used to help establish negligence. An expert witness is one who through specialized education, training and experience has acquired a heightened skill that makes him better qualified than a layperson to form an opinion on the subject in question. The subject of expert testimony can only be an area of knowledge beyond the general knowledge of the public. Usually lay witnesses are not permitted to offer their opinions as to whether or not a defendant conformed to or deviated from some standard of care. However, if qualified and permitted by the court, an expert witness can do just that. There are expert witnesses for virtually every type of litigated matter imaginable. The most common experts in personal injury cases are in the fields of accident reconstruction, medicine and surgery, product safety design, electrical engineering, fire cause and origin, chemistry and materials analysis and toxicology. Typically, the expert will review the relevant evidence and render an opinion as to what the standard of care was and whether in their view the defendant violated it and was therefore negligent.
Massachusetts courts vigilantly guard against unreliable, baseless or speculative expert opinions that are not based on some valid, generally accepted scientific or technical methodology. Trial judges will not hesitate to exclude such opinions from ever reaching the jury.
6. Res ipsa loquitur.
The doctrine of “res ipsa loquitur” can also be used to establish negligence. Latin for “the thing speaks for itself,” the doctrine creates a rebuttable presumption that the defendant was negligent where a plaintiff can prove that (a) the instrumentality causing injury was in the defendant’s exclusive control, and (b) the accident was one that ordinarily does not happen in the absence of negligence. Res ipsa loquitur permits the jury to draw an inference of negligence in the absence of a specific cause of the accident when the accident is the kind that does not ordinarily happen unless a defendant was negligent in some respect. The plaintiff must also eliminate all other responsible causes, including the plaintiff’s own conduct.
The classic example taught in law school is where a beer barrel inexplicably falls out of the window of a brewery and strikes a pedestrian walking below. No one knew how or why the barrel escaped. But because the barrel was in the brewery’s exclusive control and there is no explanation other than negligence for the loss of control of the barrel and the creation of a very dangerous situation, the doctrine could be used to prove that the brewery was negligent.
7. Post-accident repairs.
The general rule in Massachusetts is that post-accident repairs to property may not be considered as evidence of negligence. This would apply to a premises liability claim where a hotel guest trips on the edge of loose carpeting on a stairway and falls down a flight of steps. The hotel’s remedial action to repair or replace or remove the loose carpeting is to be encouraged for public safety. For this reason, Massachusetts law forbids using subsequent remedial measures to try to prove a defendant’s consciousness of fault, … and thus its negligence.
Evidence of post-accident remedies can, however, be admissible for other reasons. These would include: (1) to show the feasibility of making a safety improvement where the defendant argues that it lacked the means of preventing the incident; or, (2) to prove that the defendant controlled the premises if the defendant tries to suggest that it was not responsible for the property on which the accident occurred.
8. Prior similar accidents.
The occurrence of prior similar incidents are admissible as evidence of negligence if there is substantial similarity with the circumstances of this instant case. The judge must also make sure that there is little danger of unfairness or confusion to the jury by the presentation at trial of such collateral issues.
F. Element #3: Causation.
Negligent conduct alone is not enough to prevail on a legal action unless the negligent act causes some harm. A plaintiff must establish a causal link between the negligent conduct and the injury. Many times, this link is so obvious that it is not even contested – like where an MBTA bus strikes a pedestrian in a crosswalk and causes a femur fracture. Sometimes, however, the link is more tenuous and can be challenged by the defendant who will typically argue that someone or something else caused the injury complained of.
1. Proximate or legal cause.
To establish causation of an injury, a plaintiff must show that the negligent act was “a substantial contributing factor” in bringing it about and without which the harm would not have occurred. In other words, if the harm would have occurred anyway, the defendant is not liable.
A plaintiff need only show that there was greater likelihood that the harm complained of was due to causes for which the defendant was responsible than from any other cause. The plaintiff need not exclude every possible cause for his injuries. The plaintiff must only show that it is more likely than not that the actions, or the failure to act, by the defendant were a substantial, contributing cause to the accident and to the injuries that later occurred.
It does not matter whether other concurrent causes contributed to the plaintiff’s injuries so long as the defendant’s conduct was a substantial contributing factor.
To establish proximate causation, the plaintiff must show that the harm was reasonably foreseeable to a person in the defendant’s position at the time of the defendant’s negligence. The plaintiff does not have to establish that the defendant foresaw, or should have foreseen, the exact manner in which the harm occurred; but he simply must show that this harm was a natural and probable consequence of the defendant’s negligence. The plaintiff is not required to show the exact cause of his injuries.
2. Superseding/intervening cause.
In some instances, the causal relationship between the defendant’s negligence and the plaintiff’s injury may be broken by the intervention of a superceding cause, such as some unforeseeable negligence or fault of another. In those instances, the chain of causation is deemed broken and there can be no liability even though the defendant may have acted negligently.
Only unusual, extraordinary negligence of a third party will excuse an original tortfeasor’s liability. In addition, the intervening cause must have been unforeseeable to the defendant at the time of its negligent act in order to relieve the defendant of liability.
Even if the defendant could not have foreseen the precise manner in which the injury occurred, where the negligent conduct of the defendant creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the defendant of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the defendant’s conduct.
G. Element #4: Damages.
Damages are monetarily compensable elements of a tort victim’s injuries and losses. The American system of civil justice recognizes that monetary compensation for personal injury is the fairest and most practical method for reimbursing those harmed by the wrongdoing of others. Monetary damages are awarded by a judge or jury (depending on the type of trial) if and only if there has first been a finding of liability.
The overarching question for any damages calculation in a personal injury claim is always: what is the “fair and reasonable” monetary measure of this person’s losses? To answer that, the jury or judge in their wisdom must determine what “fair and reasonable” monetary award would compensate the plaintiff for the losses, both tangible and intangible. The goal is to try and place the injured person in the same position they would have been in had the injury not occurred. Trial lawyers in Massachusetts are not permitted to suggest or propose the amount to be awarded. The fact finder must use its common sense in arriving at an amount based on the evidence presented at trial.
Personal injury damages can be divided into two general categories: special damages and general damages.
Special damages are quantifiable financial losses. These can include medical expenses, lost earnings and miscellaneous out-of-pocket expenses for prescription drugs, medical equipment or even the cost of a funeral and burial service in a wrongful death claim.
General damages are non-economic harms including physical trauma and bodily injury, psychological harm, pain and suffering, disability, scarring and disfigurement, emotional distress and loss of enjoyment of life.
1. Bodily injury.
Bodily injuries include lacerations, contusions and bone fractures along with more complex injuries to internal organs, traumatic brain injuries, concussions, spine and neck disc injuries, damage to the central nervous system, reflex symptom dystrophy (RSD), fibromyalgia and musculoskeletal pain syndromes.
Bodily injury is usually proved with a plaintiff’s medical records, eyewitness testimony and if needed expert medical testimony from treating and consulting medical professionals. This evidence is used to demonstrate the nature and severity of the injury along with its permanent or long term effects on the person’s ability to function normally.
Under Massachusetts law, a claim for bodily injury arising out of a motor vehicle accident must involve bills for medical treatment in excess of $2,000 in order to make a claim. Anything less is deemed a de minimis injury, that is too minor of an injury to warrant compensation.
2. Scarring and disfigurement.
A plaintiff is entitled to recover damages for scarring and disfigurement caused by the defendant’s negligence. Scarring and disfigurement is usually presented through photographs of the injury at various points in the healing process along with (if allowed by the judge) an actual showing to the jury at trial. There may also be medical testimony as to the permanence of the condition and whether future surgery will be needed or effective.
3. Conscious pain and suffering.
Past and reasonably expected future pain and suffering is also compensable. The evaluation of pain and suffering and of the other aspects of the personal injuries requires a determination of how badly the plaintiff was hurt, the nature, extent, severity, permanency and effect of the injuries. The sum of money must be an amount that fairly and reasonably compensates the injured person. The jury may consider the age, health, habits and condition of the injured party before his injury as compared with his condition as a result of the injury.
Potential sources of evidence regarding pain and suffering include the plaintiff’s own testimony as to the nature and extent of the pain, medical records and if applicable medical evidence to prove any probable future pain and suffering.
Life expectancy tables published by the United States Census Bureau can be used to demonstrate the likely length of time for future pain and suffering assuming there is evidence that the injury will be permanent.
4. Psychiatric and psychological injury.
In some traumatic injury cases, the plaintiff will sustain a specific psychological injury that is treated and diagnosed by a mental health professional. These can include neuropsychological deficits such as amnesia, loss of memory, traumatic brain injury, loss of smell and photophobia. Psychiatric damages include post-traumatic stress disorder, depression or anxiety related to the event. When supported by the proper type of medical documentation, these injuries are also compensable in a personal injury claim.
5. Exacerbation of pre-existing condition.
If an injury aggravates or triggers a pre-existing condition of the plaintiff, then the plaintiff will be entitled to recover for the difference between what the plaintiff’s condition would have been absent the accident and what the plaintiff’s condition is or was or will be because of the accident. The law recognizes that different people’s bodies and minds can have different reactions to the same physical harm or trauma based on their age, physical condition and medical history. If a defendant’s negligence causes an aggravation of a pre-existing medical condition or triggers a dormant medical condition in a particular plaintiff, then the plaintiff is entitled to recover to the extent that their unique condition or disease has been aggravated, increased, augmented or activated.
For instance, if a motorist with pre-existing but asymptomatic spinal disc bulge at C6-7 is rear-ended on the highway and the trauma triggers nerve pain symptoms, the plaintiff will be entitled to recover for the aggravation of this prior condition. And it is not necessary that the prior condition is asymptomatic to recover. Take a person with mild depression who suffers facial scarring and disfigurement from a chemical burn and is later diagnosed with severe depression. Assuming liability, that unfortunate person would be entitled to damages for the exacerbation of her prior depression.
Hence the legal aphorism that “you take your plaintiff as you find them.” This is also referred to with the somewhat out-dated label “the egg-shell” plaintiff rule. A defendant whose negligence causes a greater than normal injury to a particularly brittle or frail plaintiff is likewise liable for all of the harmful results. Thus if an elderly woman with osteoporosis is knocked to the ground in a low impact collision with a taxi cab and her hip shatters, the taxi cab is responsible for all of her resulting damages even though the average person would have probably been unharmed by the impact. The same principle would apply where a cardiac patient slips and falls on ice at the defendant’s gas station and suffers a heart attack from the stress of the trauma. The defendant would be liable for causing the heart attack, so long as the medical evidence can causally relate the two events.
An aggravation of a pre-existing condition can be proved with the plaintiff’s prior medical records, lay testimony from the plaintiff or family and medical expert testimony preferably by a treating or examining physician.
6. Loss of earning capacity.
When an employable person is disabled from work or from pursuing work because of a personal injury, that person has sustained a loss of earning capacity. When the loss is significant, usually representing more than a couple of weeks, the plaintiff will be able to seek compensation for that loss.
Loss of earning capacity is not limited to the amount of the plaintiff’s loss of wages or income at the time of his or her injury. It is also the reduction or loss in one’s ability to earn a living. Lost wages are only one aspect of the evidence of such loss. When calculating the value of the plaintiff’s loss of reasonably expected net income, the fact finder will consider what type of person the plaintiff is, the talents the plaintiff has, the contributions the plaintiff has made and whether the plaintiff’s income could reasonably have been expected to increase or decrease as time passed.
This evidence is usually presented through the plaintiff’s past tax returns, employment and earnings records and the testimony of an economist who will crunch the numbers and give a total estimate of past and future lost earnings.
7. Loss of enjoyment of life.
The quality of an individual’s life is often measured in a court of law by her engagement in community affairs, her personal interests and hobbies and participation in family, recreational, sporting and social activities. The diminution of these quality of life issues are compensable. This type of loss is established by the plaintiff’s own testimony regarding the things that he or she loved to do before the accident – but can now no longer do because of the accident.
8. Loss of consortium.
In Massachusetts, one spouse may recover consortium damages that arise out of injuries suffered upon the other spouse. These are described politely as the loss of marital services, society and conjugal affections. The spouse may be compensated for the loss of companionship and affection and loss of sexual enjoyment he or she may have had and may continue to experience as a result of the injuries to the spouse.
Children and parents can also experience loss of consortium. Dependent children have the right to recover for the loss of services, society, companionship and care of their parent. The injured parent need not be the principal wage earner in order for the child to recover for loss of parental society. It is sufficient if the child is living in the injured parent’s household and is dependent on the parent for management of the child’s needs and for emotional guidance and support. The same holds true for a dependent (elderly) parent who suffers a loss of consortium due to an injury to his (adult) child.
In deciding this issue, the jury may consider as evidence of damage evidence showing disruption and change in the family life, including the injured family member’s reduced ability to participate with the family in church activities and community service work, social and recreational activities and family services and care, such as shopping errands and household projects.
9. Medical expenses.
A plaintiff may recover reasonable medical and hospital expenses incurred in treating injuries caused by the defendant’s negligence. It is not necessary for the plaintiff to have actually paid the expenses out of pocket. It is sufficient that they were incurred on the plaintiffs behalf, even if they were ultimately paid by an auto insurer, a health insurer, a worker’s compensation insurer or some publicly funded health care payor like Medicare or MassHealth. The plaintiff is still entitled to recover all incurred medical expenses because they may need to be repaid from the plaintiff’s recovery. This issue of repaying medical expenses after a monetary award is discussed in the section below on medical liens.
Medical expenses are proved by submitting the medical bills at trial.
10. Punitive damages.
Generally in Massachusetts, punitive damages are recoverable in more extreme cases involving gross negligence. Gross negligence occurs when the defendant acts with reckless disregard. That is, in the face of a known risk the defendant persists in conduct involving a high degree of probability that substantial harm would result to another. In order to support a finding of gross negligence, the conduct of the defendant must be characterized by a high degree of culpability and indifference to a legal duty. Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence.
There is no specific limit to punitive damages. They are designed to affirmatively punish the wrongdoer for willfully ignoring a known danger to someone to who a legal duty is owed. A lifeguard who wears headphones and shirks his duty to keep an eye on the water would probably be deemed grossly negligent for failing to respond to a drowning swimmer.
Actions for wrongful death also permit for the recovery of punitive damages.
H. Damages-Related issues.
1. Settlements with other defendants.
In cases with more than one defendant, also called a tortfeasor, a plaintiff may reach a pre-trial settlement with one defendant and proceed to trial against another. In such situations, the prior settlement is not admissible in evidence. But if there is a verdict, after the trial the judge will order a “set-off” and reduce the verdict by the amount of the settlement. This is done to prevent a double-recovery for the same injury, which Massachusetts law regards as unjust.
2. Duty to mitigate damages.
An injured plaintiff owes a duty to take reasonable steps to mitigate his damages by attempting to repair the injury, lessen the damages or at least not make them worse. Usually the duty to mitigate is satisfied by seeking appropriate medical treatment and cooperating in any prescribed treatment regimens such as physical, occupational or vocational therapy. A plaintiff who fails to make reasonable efforts to mitigate his loss, with the result that the injury is greater than it would otherwise have been, cannot recover for the amount of the available and unnecessary increase in damage.
3. Collateral source payments.
Collateral source payments are benefits received by an injured plaintiff from public or private health insurers, disability insurers, life insurers or worker’s compensations insurers. Ordinarily, the payment of collateral source benefits is inadmissible at trial because jurors may erroneously assume that the plaintiff’s claims have been partially satisfied. In reality, the plaintiff will likely have to repay some of the collateral source benefits from any recovery. The concern is that the intricacies of insurance benefits and the way they are paid and reimbursed could confuse a jury.
4. Recovery of costs of suit.
If a personal injury case goes all the way to trial and verdict, the prevailing party is entitled to an award of costs incurred prior to and during trial. These include the costs of filing suit, serving subpoenas, taking depositions and securing the appearance of witnesses at trial attendance. A reasonable award of costs is up to the trial judge’s discretion.
In practice it is not often that a victorious defendant actually attempts to recover these costs from a defeated plaintiff. Usually the effort that it would take to recover on a judgment for costs against a plaintiff unable or unwilling to pay is not worth it. And there is usually no interest by an insurance company to rub salt in the wounds of a seriously injured plaintiff.
5. Pre-judgment and post-judgment interest.
The prevailing plaintiff in a personal injury case is entitled to an award of pre-judgment interest on the amount of the verdict. Interest is added to the verdict in an amount of 12% per annum from the date of the filing of the complaint to the date of entry of judgment. The interest is not compounded. It is a “simple” interest calculation made by the clerk of the court after a verdict. Here is an example. If a negligence complaint is filed on January 1, 2014 and results in a verdict of $100,000 on January 1, 2016, then there will be two years of pre-judgment interest, or 24%, on the verdict, which would be $24,000 in interest. This would result in a total final judgment of $124,000. The prospect of having to pay substantial pre-judgment interest on a verdict encourages defendants and their insurers to try and settle cases with strong liability.
Post-judgment interest accrues on a judgment after the clerk enters it in the court. Post-judgment interest also accrues as simple interest at 12% per annum on any unpaid amounts of the judgment. So if the defendant in the above example did not pay the judgment for one year following the entry of judgment, it would be responsible to pay an additional $14,880 (12% of $124,000) on top of the total judgment. The imposition of post-judgment interest deters defendants and their insurers from unduly withholding judgment monies from plaintiffs.
6. Recovery of attorneys’ fees.
The prevailing party in a personal injury case is not entitled to recover attorneys’ fees. The only real exception would be where such recovery is specifically authorized under a statute like the consumer protection statute in G.L. chapter 93A. In those limited situations, the courts will carefully review attorneys’ fees petitions to make sure that they are reasonable.
7. Tax implications.
Monetary awards for personal injury are generally not considered taxable income by the Internal Revenue Service. Section 104(a)(2) of the Internal Revenue Code exempts monetary damages received on account of personal physical injuries or physical sickness. However, damages received in lieu of lost wages or salary generally may be deemed taxable income. Punitive damage awards are also probably considered taxable income.
Since most trial attorneys, the author included, are not tax experts and do not give tax advice, it is important to always consult with a tax attorney to determine what if any tax implications may arise out of a personal injury settlement or verdict.
8. PIP off-set in motor vehicle cases.
Personal injury protection (PIP) coverage is part of almost every motor vehicle insurance policy in Massachusetts. PIP benefits cover the payment of medical bills and lost income resulting from a motor vehicle accident, irrespective of fault. Most PIP provides for the payment of up to $8,000 in medical bills or lost wages.
If a plaintiff received PIP benefits from the insurer of the negligent party, and a verdict or settlement is obtained, then the amount of PIP payments will be deducted from the total recovery. This PIP off-set is designed to avoid a double-recovery by the plaintiff.
9. Medical liens.
A personal injury plaintiff may be required to allocate a certain portion of the monetary recovery to reimburse third-party payors who have provided medical benefits to the plaintiff. These third-party payors often assert liens for repayment of these monies from the proceeds of a personal injury case. There is a complex system of regulations, statutes and contractual provisions that govern the rights of lien holders.
(a) Medical providers like hospitals and HMOs can assert statutory liens for repayment of medical services provided as a result of a bodily injury. Such liens apply only to unpaid charges rendered prior to a settlement or judgment. The lien is not effective unless proper notice is made prior to the time of judgment or settlement. Typically, these liens can be negotiated with the lien holder as part of the larger settlement. Lien holders are motivated to compromise their liens in order to help facilitate settlement in the personal injury claim because of the uncertainty of trial. Lien holders know that a defense verdict means they recoup nothing. So they follow the maxim: a bird in the hand is worth two in the bush.
(b) The federal government enjoys an automatic right of subrogation against personal injury recoveries for the payment of Medicare benefits on behalf of an injured plaintiff. The processing and resolution of Medicare liens is layered in time-consuming bureaucracy and red-tape that often frustrates all parties involved. Unfortunately, it can take months after the resolution of a personal injury claim to close a Medicare lien. On the upside, the amount to be repaid to Medicare is reduced by a proportionate share of the attorneys’ fees and costs to be paid out of the plaintiff’s recovery.
(c) The Commonwealth of Massachusetts also enjoys an automatic right of subrogation against personal injury recoveries for the payment of any MassHealth benefits on behalf of an injured plaintiff. The processing and resolution of MassHealth liens works generally the same as with Medicare liens but the state system is surprisingly more efficient.
10. Workers compensation liens.
When an employee suffers a work-place personal injury he will often file a worker’s compensation claim for benefits that pay the medical bills and reimburse the employee for a percentage of lost wages from time missed from work. If the injury was caused by some third-party (not the employer), like another contractor on a job site or from a defective product used on the site, the employee can bring a personal injury claim against that third-party for damages. If the third-party claim results in a recovery, the worker’s compensation paying insurer will be entitled to reimbursement of a proportionate share of the monies it paid out. The remaining excess amount collected by the employee is treated as an offset against future compensation payments for ongoing medical treatment or disability arising from the same accident.
The settlement of a worker’s compensation lien in a third-party action requires court approval to make sure that the allocation is fair to all interested parties. Since loss of consortium claims are not subject to a worker’s compensation lien, disputes can arise when the plaintiff-employee tries to allocate a significant portion of the third-party settlement to his spouse.
I. Defenses to Negligence.
Since the plaintiff has the burden of proving four elements to make out a case for negligence – duty, breach, causation and damages – the defense will inevitably challenge one or more of these elements and trying to convince the judge or jury to reject the claim based on the plaintiff failure of proof. For example, in a medical malpractice claim the defendant physician will argue that she was not negligent, or that nothing she did caused the complained of injury.
Defendants can also assert various types of affirmative defenses to liability.
1. Comparative negligence.
The most common defense to negligence is comparative negligence. The defendant attempts to prove that the plaintiff is more at fault for causing his or her own injuries. If the jury finds that the plaintiff was more than 50% at fault, the defendant prevails. However, if the jury finds that the plaintiff was 50% or less at fault, then the award if any will be diminished in proportion to that percentage. So, if the jury finds the plaintiff 25% at fault and returns a verdict for $100,000, the verdict will be reduced to $75,000.
To prove comparative negligence, the defendant has the burden to prove by a preponderance of the evidence that the plaintiff was not in the exercise of due care at the time of the alleged accident. The defendant is entitled to rely to a certain extent on the expectation that a person will take reasonable care for his own safety. There must be that exercise of reasonable care and caution on the part of the plaintiff that the jury would naturally expect from a reasonably prudent person under the same or similar circumstances.
2. Statutes of Limitation.
A plaintiff must file a complaint for negligence within three years from the date that he knew or should have known that he was injured as a result of some wrongful conduct. The plaintiff’s failure to timely file the complaint is a complete defense in a negligence action, meaning the case will be dismissed.
In most personal injury cases, the limitations period will begin to accrue on the date of the incident because the causal connection will be obvious to a reasonable person. This would be the case in a motor vehicle accident or product defect case where the plaintiff is able to appreciate right away that he was injured due to someone’s fault. However, the “discovery rule” can toll the limitations period when the manifestation of the injury is somehow delayed or where it is initially unclear what caused the injury. This can occur in a medical malpractice case where an oncologist fails to diagnose lung cancer in a series of chest films and the disease is not detected for months or years later, after the disease progresses untreated. In that type of case, the limitations period would run from the date of discovery of the cancer, as opposed to the original date of the negligence of the oncologist.
In some premises liability cases, a defendant may attempt to prove that the plaintiff was a trespasser to whom the defendant owes a lesser duty of care than a lawful entrant onto the property. An owner or person in control of property does not owe a trespasser a duty of reasonable care. Rather, he or she owes a trespasser no more than the duty to refrain from willful, wanton or reckless disregard for the trespasser’s safety. In determining the status of a visitor, it is important to consider precisely where the accident occurred. If the visitor was lawfully on the premises but the accident occurred in an area that was off-limits or otherwise private, then the visitor may be regarded as a trespasser for purposes of liability.
There are three exceptions to the trespasser defense. First, if an owner or person in control of property gives permission to a trespasser to remain on his or her premises once the trespasser is discovered, then the trespasser is considered a lawful visitor to whom a duty of reasonable care is then owed.
Second, an owner or person in control of property owes a duty of reasonable care to prevent further injury to a “known trespasser helplessly trapped,” including the duty to take reasonable affirmative action. Thus, if a trespasser fell into a pit or well, the property owner might owe him a duty to call for help if the owner knows of the trespasser’s perilous situation. Or if a trespasser became trapped on a roof, the property owner might owe him or her a duty to unlock the roof door or to summon help.
Child trespassers represent the third group of unlawful visitors to whom a property owner may owe a duty of reasonable care. In Massachusetts, there is a child trespasser statute that specifically addresses this. A person who maintains an artificial condition on his or her land – like a trampoline or a rope swing – may be held liable to a child who suffers injury while trespassing on such land if the following five conditions are met:
(a) The landowner knows, or has reason to know, that children are likely to trespass on his or her land;
(b) The landowner knows, or has reason to know, that the artificial condition on his or her land poses an unreasonable risk of death or serious bodily injury to children;
(c) The child trespasser does not appreciate the unreasonable risk of harm posed by the artificial condition;
(d) The utility to the landowner of maintaining the artificial condition and burden of eliminating the danger are slight in comparison with the risk of harm to children; and
(e) The landowner fails to exercise reasonable care to eliminate the danger or to otherwise protect trespassing children from the artificial condition.
The defense of comparative negligence can still be raised to a claim made under the child trespasser statute. The standard of care of the trespassing child, however, will be judged by the standard of behavior reasonably expected from a child of like age, intelligence and experience, not that of an adult.
4. Open and obvious danger.
If a risk is such that it would be obvious to persons of average intelligence, then an owner or person in control of the property owes a lawful visitor no duty to warn of such risks. This rule has been held to excuse property owners from liability for failing to warn of appreciable, patently hazardous conditions. Here are some examples of open of obvious dangers in which Massachusetts courts have found require no duty to warn: the danger of getting hit by another car while at a filling station, the danger of an open stairway in an unlit hallway at 1:00 a.m., the danger of ice forming at a car wash in zero-degree weather, the danger of carrying oversized planks in an elevator car, the danger of attempting a back flip on a hardwood floor, the danger of diving headfirst into the shallow end of a swimming pool.
5. Recreational use statute.
Under Massachusetts law, an owner or lessee in control of land who permits the public to use such land for recreational purposes without charging a fee cannot be held liable to a lawful visitor who suffers injury while recreating on the land absent proof of willful, wanton or reckless conduct. In effect, property owners owe the same duty of care to recreators as they do to trespassers. This statute covers indoor and outdoor parks, playgrounds and ball fields. A request by the property owner for voluntary contributions to access the grounds does not constitute charging a fee.
6. Woodgatherers statute.
Under this quaint old statute, a property owner or lessee in control of land cannot be liable for negligence where he permits the public to use his land to gather firewood without charging a fee. Under the rule, the owner or lessee cannot be held liable to a lawful gatherer unless that defendant acted with some kind of willful, wanton or reckless conduct. This would probably include the setting of traps or other hidden types of dangers without alerting any visitors of the hazard.
7. Defect on leased portion of commercial property.
It is well-settled that a residential landlord can be held liable for a defect of which he or she had notice and a reasonable opportunity to repair, even though the defect is on that portion of the premises leased to a tenant. But a commercial landlord may not necessarily be held liable for a defect on that portion of premises leased to another, even though he or she has notice of the defect and had a reasonable opportunity to repair it.
J. What To Do.
Whenever someone has been seriously injured or killed as a result of some negligent act or omission, there are a few things that must be done immediately to protect the person’s legal rights. Evidence must be preserved, witnesses identified, photographs taken and the right kind of legal counsel must be consulted. Whether a legal claim is ever asserted or a lawsuit filed is a question for down the road. For now, preliminary steps must first be taken in order to make an informed decision about one’s legal options.
1. Consult with a qualified plaintiff’s trial lawyer.
Seemingly simple negligence claims can turn out to be quite complex and riddled with pitfalls. Large insurance companies have deeply vested economic interests in defending their insureds from liability. They hire only the most experienced defense firms that fight tooth and nail to avoid responsibility. Negligence cases should only be entrusted to skilled trial attorneys who exclusively represent plaintiffs and who have a successful track record with those kinds of claims. These are not cases for novices learning the ropes. And this is not the arena for a jack-of-all-trades lawyer like a general practitioner. You should only confer with an attorney who regularly handles high stakes negligence cases.
For those unfortunate enough to suffer a life-altering injury, their misfortune can be compounded by selecting the wrong attorney. The major mistake people make is to contact the first personal injury law office they come across, whether it’s on television or on a billboard or the one with the big sign on the main street in town. Those types of law firms generally handle a high volume of small cases that get “processed” by non-legal staff with little attention by the attorney. Though these attorneys may advertise themselves as expert trial lawyers, chances are they are not. In reality, they will simply refer your case to other attorneys in exchange for a referral fee. Avoid this mistake and cut out the middle man by doing some research and finding the right king of legal counsel the first time around. This will make all the difference for your case.
2. Preserve any evidence.
In any type of negligence case, evidence of the incident, its cause and/or the injurious results must be identified and preserved.
3. Identify witnesses.
It is also important to document the names and contact information for any witnesses. The witness list is not limited to those who actually saw or heard the accident occur. It also includes anyone learned about the accident’s details after-the-fact such as family members, co-workers, emergency medical technicians, nurses or doctors.