A.        What Is “Wrongful Death”?

“Wrongful death” is a legal term for a civil action to recover damages for the death of family member that was caused by some misconduct of another person or corporation.  The departed is referred to as the decedent.  The decedent’s legal interests are represented by either an executor or an administrator.  An executor is a person identified and selected by the decedent in his or her will.  An administrator is a court appointed personal representative when the will is silent on the issue or if there is no will.  Either way, the personal representative is the authorized person in charge of the decedent’s estate. 

A decedent’s “estate” is the legal continuation of a living person after death.  The term itself does not connote wealth.  Some estates have many assets (and liabilities) that must be accounted for and distributed to the heirs at law and legal beneficiaries.  Most estates have only a few assets, one of which may be a wrongful death claim in the event that the death was legally caused by some negligent, grossly negligent, or even intentional act or omission. 

The most common wrongful death claims arise out of motor vehicle accidents, defective products, medical malpractice and construction and industrial accidents.  Massachusetts wrongful death law is designed to allow a decedent’s estate to bring a legal action to recovery the monetary value of the loss of the decedent to his or her legal beneficiaries, which usually include a spouse, children or next of kin.

B.        Massachusetts Wrongful Death Statute.

The legal cause of action for wrongful death was created by statute.  As odd as it may seem, at common law there was no legal remedy for the death of a family member.  The first Massachusetts wrongful death statute was enacted in 1840 by the Legislature and has been amended many times up to its present version.

Where applicable, the Massachusetts wrongful death statute compensates the legal beneficiaries of an estate for the loss of the decedent.  This is referred to as a loss of consortium type of recovery in which the measure of damages is the loss to certain identified family members of the decedent’s care, comfort, companionship and support.  This should be distinguished from a separate type of recovery under the Massachusetts survival statute which focuses on the decedent’s own personal damages such as conscious pain and suffering or disability between the time of injury and the time of death.

The basic principles of wrongful death liability are set forth in G.L. c. 229, § 2 which states:

A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (3) operates a common carrier of passengers and by his negligence causes the death of a passenger, or (4) operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (5) is responsible for a breach of warranty arising under Article 2 of chapter one hundred and six which results in injury to a person that causes death, shall be liable in damages.

Thus, the statute allows recovery for death resulting from negligence, breach of warranty and reckless or intentional conduct.  Proof of more aggravated wrongdoing than simple negligence triggers the possibility of punitive damages against the defendant.

C.        Parties To A Wrongful Death Action.

1.         The Plaintiff(s).

The only party that can bring a wrongful death suit is the administrator or executor of the decedent’s estate.  This representative brings the action to enforce the rights of the estate and the statutory beneficiaries.  The beneficiaries may not sue in their own names for any damages resulting from wrongful death.  The representative must be formally appointed to the position by the probate court for the county in which the decedent last resided prior to the time of death.

Typically the estate representative is determined in one of two ways.  Either there was a will that named the specific person whom the decedent wanted to be appointed or there was no will (or the will was silent on the issue).  In the latter situation, the surviving family members will usually agree on someone trustworthy like a family head or an attorney.  There are rare challenges to the appointment of a representative, but when they occur the dispute is resolved in the probate court. 

There can be two or more representatives appointed as co-executors or co-administrators.

The probate appointment process can sometimes takes several months.  In some circumstances, it will be necessary to file suit before the actual appointment of the appropriate personal representative is completed.  This happens when critical evidence needs to be secured and the only means to do so is through the filing of suit.  This can also happen where the statute of limitations is about to run and the complaint needs to be filed in a timely manner.  Either way, the representative can petition the probate court for a temporary appointment for purposes of bringing the suit.

2.         The Defendant(s).

A wrongful death action may be brought against any person or corporation who causes the death of a person, whether by negligent or intentional acts or omissions or by breach of a warranty. 

3.         The Decedent.

In virtually every wrongful death case, the decedent was a living, breathing person at the time of the injury that caused the death.

In some cases, the decedent was a fetus killed by some injury or trauma to the mother.  A wrongful death action may be brought to recover for the death of a fetus that was “viable” at the time of the injury but is later miscarried or stillborn.  A fetus is considered viable in Massachusetts generally at 22 weeks of gestation, though this can vary depending on a variety of biological and genetic factors unique to each mother and fetus.  There can be no wrongful death claim where the fetus is injured before the time of viability and is miscarried or stillborn.

4.         The Beneficiary(ies).

General Laws c. 229, § 2 provides that the damages recovered shall be for the benefit of the persons entitled to receive them pursuant to G.L. c. 229, § 1.  The beneficiaries as set out in G.L. c. 229, § 1 are the spouse and children of a married decedent, or the next of kin of an unmarried decedent.  The statutory beneficiaries set out in G.L. c. 229, § 1 are exclusive, and no other relatives may share in the recovery.  Thus, where the decedent is survived by a spouse, the decedent’s parents have no right of recovery, even though they would be beneficiaries if their child were unmarried.  Under these rules, when an unmarried decedent, either child or adult, is survived by parents, the siblings are not next of kin for purposes of the wrongful death recovery. An adopted relative should be permitted to recover if he or she is a member of the appropriate class, as should what used to be called an “illegitimate” relative.

D.        Defenses To Wrongful Death Claims.

1.         Statute of limitations.

General Laws c. 229, § 2 permits the executor or administrator to bring a wrongful death action “within three years from the date of death, or within three years from the date when the deceased’s executor or administrator knew, or in the exercise of reasonable diligence, should have known of the factual basis for the cause of action.”  This last phrase – “should have known” – refers to the so-called discovery rule which can extend the time for filing a wrongful death (or most other types of personal injury claims) beyond the three year time limit.  Under the discovery rule, the three year time period does not begin to elapse until the date when it should have become reasonably apparent that the death was caused by some wrongful conduct of the defendant(s).  Usually, this occurs on or about the date of the accident or the date of death, such as in a fatal motorcycle accident collision.  In that case, the date of death roughly coincides with reasonably available information as to who caused it and who was at fault.  Sometimes though, like in some medical malpractice cases, the cause of or responsibility for a patient’s death may not become apparent for years after the death.

The three-year limitations period can also be “tolled”, that is delayed, where there are minor beneficiaries until such children reach the age of majority (which is 18 years in Massachusetts).  The limitations period is also tolled where a beneficiary is incapacitated by mental illness.  In some circumstances, fraudulent concealment of evidence by a defendant will also toll the statute of limitations in a wrongful death case. 

2.         Statute of repose.

General Laws c. 260, § 2B creates a strict six-year statute of repose for improvements to real property.  The statute of repose requires that any personal injury actions (including those for wrongful death) caused by an improvement to real property must be filed within six years from the date of the completion of the improvement.  There is no tolling of time under the statute of repose.  Nor is there a discovery rule.  The statute of repose is very strict and meant to protect construction related businesses that improve real property from open-ended periods of legal liability for their work.  The statute of repose can bar wrongful death cases even if they are brought within three years of the death or the accrual of the cause of action but after six years following the completion of the improvement.

Similarly, G.L. c. 260, § 4 sets forth a seven-year statute of repose for medical malpractice cases including those for wrongful death.  Thus a wrongful death claim would be barred if not filed within seven years of the negligent act.

3.         Comparative negligence.

The comparative negligence statute, G.L. c. 231, § 85, specifically permits this defense in wrongful death cases.  According to the statute, “any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made.”  This rule requires reduction of any wrongful death recovery by the percentage of negligence attributable to the decedent.  And if the jury determines that the decedent was more negligent than the defendant in causing the death, then the estate is barred from any recovery.

As in any other case, the defendant bears the burden of proving the decedent’s negligence and its causal relation to the injury or death.  The decedent is presumed to have exercised due care until proven otherwise.  If the decedent’s own negligence is the sole cause of his death, the beneficiaries may not recover. 

In a product liability case of wrongful death, comparative negligence of the decedent is not a defense to an action based on breach of warranty.

4.         Causation.

When there is a significant passage of time between the date of injury and the date of death, a defendant may be able to present evidence, medical or otherwise, that the death was not legally caused by the remote injury.  This issue can crop up in suicide death cases where the injured person becomes extremely depressed as a result of the injury and, tragically, takes his own life weeks, months, or even years after the initial injury.

5.         All other defenses still applicable.

All other underlying defenses are generally still available to a defendant as though the case did not involve a fatality.  So, a defendant motorist can still argue the defense of emergency, or a defendant physician can still argue that she complied with the acceptable standard of care in performing a laparoscopic surgery, whatever the case may be.

6.         Remarriage.

Some people wonder if remarriage of the surviving spouse bars him or her from recovery in a wrongful death claim.  Though the question has never been explicitly decided by a Massachusetts court, the prevalent view is that the relationship is unique and is not replaced by a new spouse.  For this reason, evidence of remarriage or some dating relationship should be inadmissible and should not bar recovery.  The question, though, becomes closer when the surviving spouse also seeks to recover for the loss of reasonably expected net income and is actually receiving more income from the new spouse.

D.        Damages Recoverable For Wrongful Death.

1.         Reasonable expected net income.

The beneficiaries of a decedent’s estate are entitled to recover the “ reasonably expected net income” that they would have received from the decedent but for the death.  Reasonably expected net income is not the total amount of lost earnings caused by the decedent’s death.  It is the amount of earnings that the decedent would have given to the particular beneficiary.  The calculation of reasonably expected net income generally starts with the decedent’s projected earnings over his expected working career and then appropriate deductions (like income taxes, living expenses, etc.) are made to arrive at the amount the beneficiary would actually have received from the decedent.

This recovery is not an asset of the decedent’s estate that is to be divided up among all of the decedent’s heirs at law and beneficiaries.  This recovery is individual to each particular beneficiary.

2.         Loss of consortium damages.

In addition to the loss of reasonably expected net income, the wrongful death statute, G.L. c. 229, § 2, enumerates various compensable aspects of the interfamilial relationship, such as care, comfort, support, advice and companionship.  Together, they are intended to compensate for the loss of the relationship between the decedent and each of the beneficiaries.

Massachusetts courts recognize that the loss may differ among various beneficiaries depending on the nature of their relationship with the decedent.  Thus, two sibling beneficiaries may not necessarily share equally in a wrongful death recovery if one of them grew apart from the decedent and rarely had any contact or connection with the decedent.  In making an award of damages, the factfinder should consider the joint life expectancy of the decedent and each beneficiary.

This recovery is also not an asset of the decedent’s estate.

3.         Conscious pain and suffering.

The survivor statute, set forth in General Laws c. 229, § 6, permits recovery for the decedent’s conscious pain and suffering between the time of the injury and the time of the death.  This recovery is an asset of the estate and is divided among the statutory beneficiaries in accordance with the terms of the decedent’s will, if one exists, or else the law of intestate succession.

The claim for conscious pain and suffering is essentially what would have been the decedent’s own claim for personal injuries had he or she lived.  Thus, the recoverable damages include all the normal elements of physical pain, emotional suffering, disfigurement, impairment, loss of bodily function, embarrassment, humiliation or other mental anguish.

The plaintiff bears the burden of proving that the decedent was conscious during the period of pain and suffering following the injury but before death.  In some cases, a lay witness’s description of the decedent’s physical condition will be sufficient to permit the jury to find conscious pain and suffering.  However, if the decedent’s post-incident condition was comatose with only involuntary types of bodily movements, medical testimony may be necessary to establish the decedent’s state of mind. 

4.         Medical expenses.

A claim for medical and hospital expenses survives the death of the injured person, and these items are generally recoverable in a wrongful death action as part of the decedent’s estate.

5.         Funeral and burial expenses.

Funeral and burial expenses are recoverable under the wrongful death statute.

6.         Punitive damages.

If the decedent’s death was caused by the malicious, willful, wanton or reckless conduct or by the gross negligence of the defendant, then punitive damages can be awarded in order to punish the wrongdoer.  This is over and above the primary purpose of the wrongful death statute which is to reimburse the beneficiaries and the estate for the loss of the decedent.  Theoretically, there is no cap or limit to the amount of a punitive award against a defendant.

In contrast to mere negligence (which is the failure exercise reasonable care in the discharge of a legal duty to another), gross negligence is a deliberate indifference to the discharge of one’s duty to another.  It is a conscious disregard for the safety of another to whom a duty of care is owed.  Gross negligence would include a pharmaceutical company’s intentional disregard of poor test results on a new drug product.  Gross negligence would be a motorist speeding through a red light talking on a cell phone.

E.         What To Do.

Whenever a family member has been killed by some wrongful conduct of another, there are a few things that must be done immediately to protect the decedent’s legal estate and the beneficiaries of the estate and heirs at law.  Evidence must be preserved, witnesses identified, photographs taken and the right kind of legal counsel must be consulted.  Whether a wrongful death claim is ever asserted is a question for down the road.  For now, preliminary steps must first be taken in order to make an informed decision about the legal options.

1.         Consult the right kind of legal counsel.

Wrongful death claims are very serious matters, especially to the beneficiaries of a loved one’s estate and/or to the decedent’s heirs.  The wrongful death of a family member can strike right at the heart of a family and their rights need to be protected and, if warranted, vindicated in a court of law.

In addition, there are many pitfalls and traps for the unwary plaintiff’s attorney who is unskilled in this specific area of practice.  Wrongful death cases should only be entrusted to skilled trial attorneys who exclusively represent plaintiffs and who have a successful track record with such claims.  These are not cases for novices learning the ropes.  And this is not the arena for even an experienced jack-of-all-trades lawyer like a general practitioner.  You should only confer with an attorney who regularly handles high stakes wrongful death cases. 

For those unfortunate enough to suffer the loss of a loved one, 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 on a busy street front.  Those types of law firms generally handle a high volume of small cases like everyday motor vehicle accidents.  Though they may advertise themselves as sophisticated high-end trial attorneys, chances are they are not.  In reality, they will simply refer your wrongful death case to another attorney 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 the evidence.

In any death case, important evidence must be identified and preserved.  If important evidence is lost, tampered with or altered in any way after an accident, there will likely be some negative consequence when it comes time to prove the case at trial.  The preservation of evidence can be accomplished by placing the physical items in a safe, secure location until legal counsel can arrange for its storage.  Numerous photographs should be taken and also passed along to counsel. 

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 like such as family members, co-workers, emergency medical technicians, nurses or doctors.  Important witnesses can also include pre-incident witnesses.



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:

(1) Duty;

(2) Breach;

(3) Damages;

(4) Causation.

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.

3.       Trespassers.

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.




There is no serious debate on the public health benefits of automated external defibrillators (AEDs).  Put simply, AEDs save lives.  The medical literature is replete with evidence.  AEDs are simple, easy to use and relatively cheap life saving devices. Industry standards have evolved to the point where AEDs should be available for deployment within a three to five minute window of time at any health club, school, public transit or transportation hub, sports facility, large commercial building, concert venue or other such large public gathering place.

With this increased availability, courts across the country have seen a rise in AED injury cases in the past several years in claims brought by or on behalf of cardiac arrest victims who either died or suffered brain damage from unnecessary delays in defibrillation.  The claims generally fall into two categories.

The first type of case is where a defendant did not have an AED on its premises at all but should have.  During sudden cardiac arrest emergencies, the victim suffers an extended delay in having a normal heartbeat restored via defibrillation because he or she must wait for a 911 dispatch to an ambulance that must physically travel to the collapse site, locate the victim and then initiate defibrillation.  On average, this takes over ten minutes.  Sadly, such a delay can be fatal or at best result in an anoxic brain injury that can have catastrophic neurological consequences.  The legal claim is that the defendant was negligent in failing to have an on-site AED that could have and should have been delivered and deployed within a three to five minute time window thereby avoiding the extended period of oxygen deprivation.

The second and increasingly more common type of case is where a defendant correctly purchased an AED for its premises but negligently failed to implement the necessary emergency action plan with a designated AED responder so as to ensure timely deployment during an actual emergency.  Such cases could include defendants who store the AED in an inaccessible location, fail to test the battery as recommended by the manufacturer, fail to designate and train an AED responder on how to use the device, fail to implement an acceptable action plan for a sudden cardiac emergency or fail to implement an emergency communication system to make sure the AED gets to the collapse site within the three to five minute window.

Less common are potential claims against an AED manufacturer that sells or distributes a defective AED that somehow malfunctions during deployment or is defective in its design, manufacture or warnings.

AED injury claims typically require the use of expert witnesses.  Often it is necessary to retain the services of a safety expert to provide a foundation as to the need for an AED and the implementation of an emergency action plan at a given facility depending on what the particular laws, regulations or industry standards require.  In addition, depending on the circumstances, it may be necessary to have a medical expert – whether in the field of emergency medicine, cardiology or paramedical services – to determine whether the cardiac arrest victim could have been cardioverted via AED had one been deployed within the three to five minute window.  The medical expert would also determine whether the victim would have survived (or avoided brain injury) had an AED been deployed within that time frame.

AED cases are very important public health cases that will hopefully raise awareness among property insurers and the operators of public use facilities as to the importance of AEDs and AED preparedness.



This fourth installment in a series of blogs on automated external defibrillators (AEDs) discusses federal and state legislation on these life-saving devices.

The United States Congress incorporated various findings concerning the ease-of-use and effectiveness of AEDs into the Cardiac Arrest Survival Act.  This bill was signed into law on November 13, 2000 by President Clinton.  

By 2005, many states had begun to mandate AEDs in various settings.  By January 2008, at least 11 states had passed laws requiring AEDs in health clubs and sporting facility settings, Massachusetts among them.

Massachusetts law requires that any statutorily defined “health club” shall have on its premises at least one AED and at least one employee designated as an AED provider.  Rhode Island law also requires AEDs in health clubs.  However, Massachusetts affords a large blanket of immunity from lawsuits to health clubs and their employees.  A so-called Good Samaritan law states: “Absent a showing of gross negligence or willful or wanton misconduct, no cause of action against a health club or its employees may arise in connection with the use or non-use of a defibrillator.”  In other words, Massachusetts health clubs cannot be sued for the negligent use or non-use of an AED.  To be subject to suit, the health club’s misconduct must rise to the more deplorable level of a conscious disregard of a known risk of injury or death resulting from its actions or inactions.  From a policy standpoint, it seems incongruent on one hand to mandate that health clubs have AEDs and then on the other hand to shield the health club from liability if it negligently discharges the mandate.  Massachusetts’ AED laws have yet to be interpreted by any courts.



I previously blogged about the history of automated external defibrillators (AEDs) and the industry standards that have developed given their high potential to save the lives of sudden cardiac arrest (SCA) victims.  This blog will focus on AEDs and the young athlete.

Much AED research has focused on the young athlete.  In 2002, the National Athletic Trainers’ Association (NATA) released a position statement recommending any organization or institution sponsoring athletic activities to develop and implement a written emergency plan for SCA including acquisition of necessary equipment and training of involved personnel in CPR and AED use.  The American Heart Association issued consensus recommendations in 2004 for a Medical Emergency Response Plan in schools, emphasizing that an AED program should be in place in every school that cannot reliably achieve call-to-shock time of less than 5 minutes using emergency medical services.  The American College of Cardiology (ACC) 36th Bethesda Conference suggested that every school providing sports activities should have access to defibrillation within 5 minutes of collapse.  In 2007, an inter-association task force strongly recommended access to AEDs with a target collapse-to-shock time of less than 3 to 5 minutes, in a consensus recommendation for emergency preparedness for SCA in high school and college athletic programs.  Based on an extensive survey of the literature and expert review, the position of the NATA (2002) specifically states that:

  • Each institution or organization that sponsors athletic activities must have a written emergency plan. The emergency plan should be comprehensive and practical, yet flexible enough to adapt to any emergency situation.
  • An emergency plan for athletics identifies the personnel involved in carrying out the emergency plan and outlines the qualifications of those executing the plan. Sports medicine professionals, officials, and coaches should be trained in automatic external defibrillation, cardiopulmonary resuscitation, first aid, and prevention of disease transmission.
  • All personnel involved with the organization and sponsorship of athletic activities share a professional responsibility to provide for the emergency care of an injured person, including the development and implementation of an emergency plan.
  • All personnel involved with the organization and sponsorship of athletic activities share a legal duty to develop, implement, and evaluate an emergency plan for all sponsored athletic activities.

As a national authority on physical education and a leader in sport and physical activity, the National Association for Sport and Physical Education (NASPE) strongly supports the position that proper emergency response to sudden cardiac arrest in K-12 physical education and athletic programs is a priority.  The standards discussed above that were in effect since at least the early 2000s, including those from the AHA and NATA, were also incorporated and validated by NATA in its more recent position statement that AEDs should be present in all schools and at all youth athletic events/activities and venues.  The bottom line is that schools and youth athletic facilities should have emergency action plans that include immediate access to and use of an AED.  All AEDs should be accessible during all regular school hours and for all sporting and extracurricular events after normal school hours.  This is consistent with the AHA’s stand on AEDs in schools published in 2004.

SCA is the leading cause of death among young athletes.  One in 25 to 50 high schools each year can expect a SCA to occur on its campus.  One-third of the SCA victims on school grounds are students or student/athletes, and two-thirds are older non-students, including school staff, teachers or spectators.  About 75 percent of all SCA cases in schools occur in relation to a sporting event or practice, making access to AEDs at these events a critical component of emergency planning.  According to NASPE, having an AED is an important proactive safety measure for protecting children, youths and adults who experience SCA in an athletic program or physical activity setting.  Early deployment of CPR and rapid defibrillation carry the potential to save the lives of children and adolescents who experience SCA.  The Official Statement Recommendations from NASPE include:

Establish a communication system to alert a predetermined school response team to the location of an emergency, and also to call 911.

Place AEDs in all schools and in places of physical activity in well-marked and appropriate areas.

Ensure that staff is familiar with where the AED is located, as well as its use and emergency procedures.

Train administrators, physical education teachers, coaches, athletic trainers, school nurses and other identified school personnel in CPR and AED use.

Ensure that administrators, physical education teachers, coaches, athletic trainers, school nurses and other identified school personnel practice and review the emergency plan for using an AED, through mock-scenario training at the start of each athletic season or at least once annually.

Although the exact incidence of sudden cardiac death in young athletes is unknown, there are approximately 100 to 200 reported SCA cases among the 15 million young competitive athletes in the United States each year.  That translates roughly to one or two young athletes per 100,000 annually.  A recent report found the incidence of SCA in children and young adults to be much higher: one in 27,000 annually.  As stated above, one in 25 to 50 high schools each year can expect a SCA to occur on its campus, one-third of which are students or student-athletes.

As with adults, SCA victims who are children or adolescents have a survival rate that declines by approximately 7 to 10% for every additional minute that passes without defibrillation.  After 12 minutes, the average time it typically takes emergency medical service paramedics to be dispatched and to arrive at an SCA scene, it is usually too late as the national survival rate from sudden cardiac arrest SCA is a dismal 5% at that point, and  may be as low as 1 to 2% according to the AHA.  Also, like adults, the single greatest factor affecting survival from SCA in young athletes is the time interval from cardiac arrest to defibrillation.  Survival rates from out-of-hospital cardiac arrests have improved since the introduction of public access AED programs which have allowed lay rescuers to deliver early defibrillation.  Not surprisingly, AEDs have become commonplace on athletic fields, in gymnasiums and as standard school emergency medical equipment, helping to save many lives across the country.  With more exposure to SCA events, schools have taken the initiative to be prepared in an emergency.  Recently, several states have created laws mandating AED placement in schools and at all athletic events.



As early as 1986, the American Heart Association (“AHA”) and the American Medical Association (“AMA”) suggested that AEDs could be used by lay responders to effectively treat victims of sudden cardiac arrest (“SCA”).  In 1992, the AHA publicized its standard for the emergency treatment of SCA known as the “Chain of Survival.”  The Chain of Survival is defined by four crucial links:

(1)   “Early Access to Care,” which activates the Emergency Medical System (EMS) by a call to 911;

(2)   “Early Cardiopulmonary Resuscitation” which can provide a few additional minutes before defibrillation;

(3)   “Early Defibrillation,” and

(4)   “Early Advanced Care.”

This standard states that: “The 1992 national conference strongly endorsed the principle of early defibrillation, which states that all personnel whose jobs require that they perform basic CPR be trained to operate and permitted to use defibrillators, particularly automated external defibrillators (AEDs).  …In cardiac arrest, the need for early defibrillation is clear and should have the highest priority.  Today with the availability of automated external defibrillators, defibrillation can be considered part of BLS (“Basic Life Support”).”

In 2000, the AHA recognized as part of its “International Guidelines 2000 Conference on Cardiopulmonary Resuscitation (CPR) and Emergency Cardiovascular Care (EEC)” that early defibrillation is an integral component of basic life support skills along with early access to emergency care and early CPR.

AEDs started to gain widespread public attention during the mid-1990s when the mainstream media, including the New York Times, Readers Digest, Better Homes & Gardens, and USA Today published stories about the ease and effectiveness of AEDs.  In 1996, various U.S. airlines began to publicly announce their intention to install AEDs on all passenger aircraft five years before the Federal Aviation Administration required them.  Subsequent case studies have documented the effective early use of AEDs by the U.S. airline industry in saving the lives of passengers who suffer cardiac arrest during a flight.

A large study conducted between 2000 and 2003 in 24 locations in the U.S. and Canada, the Public Access Defibrillation (“PAD”) Trial, found that twice as many people survive SCA in locations with lay responders trained and equipped with AEDs and CPR than if they were trained in CPR alone.  The study compared outcomes from SCA in two settings: (1) locations with emergency response plans relying on laypersons as responders trained in CPR, and (2) locations with emergency response plans relying on laypersons as responders trained in CPR and AED use and equipped with AEDs.  More than 19,000 volunteers were trained at 993 locations, which were randomly assigned to either arm of the study.  Locations included both multi-unit residential (14%) and public (86%) venues, such as recreational facilities, shopping centers, entertainment complexes, community centers and large office buildings. Training was conducted to meet competency standards of the AHA.  The study found that a victim of SCA was twice as likely to survive at an AED site as at a CPR-only site (30 survivors in 496 units with AEDs versus 15 in 497 units that did not have AEDs).  This result was statistically significant, and was largely due to improved survival in public locations.  No difference was found in the residential sites.  Ninety percent of survivors in each group had normal functional status or only mild impairment at hospital discharge.

An extensive body of scientific publications conclusively documents that while exercise is safe for most people, the incidence of experiencing an adverse cardiovascular event such as sudden cardiac arrest or a myocardial infarction is considerably higher (perhaps as much as 20 times higher) during or immediately following moderate-vigorous exertion compared to that at any other time of daily life.  The earliest of these medical scientific studies date back to the early 1970s on joggers.  However, even cases in early Greece and pre-modernized medicine have reported elevated cardiovascular risk with exercise.  In 1986, the AHA and AMA recognized in their “Standards and Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiac Care,” that exercise/sporting facility personnel were suitable candidates to administer AEDs:

In 1997, the American College of Sports Medicine published a textbook that is widely regarded as the authoritative standard for operating a safe exercise facility, entitled ACMS’s Health/Fitness Facilities Standards and Guidelines (2nd Edition).  The first standard is:

“A facility must be able to respond in a timely manner to any reasonably foreseeable emergency event that threatens the health and safety of facility users.  Toward this end, a facility must have an appropriate emergency plan that can be executed by qualified personnel in a timely manner.”

“A facility must meet three key criteria: First, a facility must have an appropriate emergency response plan; second, a facility must have qualified personnel to execute its response plan; and finally, a facility must be able to execute its emergency response plan in a timely manner.

In November 1997, the Medical Advisory Committee of the YMCA produced a document titled “The Use of Automated External Defibrillators in YMCAs, A Statement of the YMCA of the USA Medical Advisory Committee,” which recommended installing AED at all of its members’ facilities: “As an organization dedicated to the health and safety of its constituents, many of whom participate in activities requiring physical exertion, YMCAs have long required staff to be certified in CPR in the event of a cardiac emergency in a YMCA activity.  With the development of automated external defibrillators (AEDs), YMCA and other community organizations have access to a new tool, which can significantly increase the survival rate of adult cardiac arrest victims.”

The Medical Advisory Committee of the YMCA of the USA endorses the American Heart Association’s position on the use of automated external defibrillators and suggests that YMCAs may want to consider having them available in the facilities and programs.

In 1998, the AHA and ACSM issued a joint statement titled “Recommendations for Cardiovascular Screening, Staffing, and Emergency Policies at Health/Fitness Facilities”.  Among the key points of these joint scientific statements are the following:

(1)   All fitness staff should be certified in basic cardiac life support and/or cardiopulmonary resuscitation.

(2)   All health/fitness facilities must have written emergency policies and procedures that are reviewed and practiced regularly.

(3)   Emergency drills should be practiced once every 3 months.  Such drills may be needed more often in facilities with high staff turnover.

The International Health, Racquet & Sportsclub Association (“IHRSA”) is the foremost trade group for the private fitness industry and is its lobbying arm.  In 1998, IHRSA issued a document titled “Standards Facilitation Guide, Health & Safety, Legal & Ethical Standards for U.S. IHRSA clubs as of 1998.”  Pursuant to this document, IHRSA members pledge to meet 10 written standards, including “Standard 6” which says: “The club must be able to respond in a timely manner to any reasonably foreseeable emergency event that threatens the health and safety of the club users.  Toward this end, a club must have an appropriate emergency plan that can be executed by qualified personnel in a timely manner.

IHRSA recommends that compliance with Standard 6 include: “Make sure that your employees are ready and qualified to deal with emergency situations by: having a minimum of one CPR-certified person on staff at all times; having at least one employee, certified in basic first-aid, provide basic instruction to all other staff about how to deal with minor incidents and emergencies; and thoroughly training all staff in the club’s emergency plan and procedures.”  The elements of a good emergency plan include the following: …(b) a written plan, which has been reviewed by a health care practitioner, and is reviewed regularly by staff, describing in detail how each type of emergency is to be handled.  Under IHRSA’s Code of Conduct, IHRSA members also pledge to “systematically upgrade our professional knowledge and keep abreast of new developments in our field,” to “design our facilities and programs with the members’ safety in mind” and “conform to all relevant laws, regulations, and published standards.”

In 1998, researchers identified “health clubs and gyms” as being among ten (10) suitable “higher incidence locations” for an AED.  In December 1999, IHRSA published the first in a series of briefing papers, titled “Defibrillators (AEDs) in Health Clubs.”  IHRSA noted that it “did not discourage health club operators from installing” AEDs in their facilities.”  The IHRSA noted the prevalence and causes of SCA and cited the well-known estimate that for every minute of delay in achieving defibrillation the likelihood of survival diminishes about 10 percent.  The IHRSA advised its members that “…an AED is safe to use by anyone who has been trained to operate it, and using one is easier than administering CPR.”  The IHRSA acknowledged that “in the case of cardiac arrest, CPR is generally ineffective” without the administration of an AED.

A 2001 published study on the subject demonstrated that cardiovascular events in health clubs are not uncommon and that most clubs surveyed in the study were not prepared for such emergencies.  The study concluded that: “A new study of commercial health and fitness facilities reveals, unfortunately, that most clubs aren’t very aware of, and rarely adhere to, the national standards that have been established for cardiovascular screening and emergency procedures.  The study underscores both the medical and legal importance of complying with existing recommendations.”

On October 16, 2001, the IHRSA issued a press release announcing that it had entered into an agreement with Philips Medical Systems to provide AEDs at a significantly discounted rate for its health and fitness club members.  IHRSA has published stories since 2001 about SCA victims who were saved by AEDs in member health clubs in conjunction with this discount program.

In 2001, the AHA identified health and fitness clubs with aging populations as appropriate “higher risk” locations for AEDs. Assessing the ‘high risk’ activity at a location can be helpful in determining the need for an AED.  Obviously, a health/exercise facility with an aging population has a higher risk for incidence than a location with minimal physical activity.

In March 2002, the AHA and ACSM issued a Joint Position Statement titled  “Automated External Defibrillators in Health/Fitness Facilities” which included certain key points:

(1)   To encourage AEDs in all fitness centers, and to strongly encourage AEDs in large fitness facilities with membership over 2500 people and those that offer special programs for clinical populations such as for older adults or those with medical conditions.

(2)   Health/fitness facilities should be considered among the sites in which public access defibrillation programs are established.

(3)   Effective placement and use of AEDs at all health/fitness facilities is encouraged, as permitted by law, to achieve the goal of minimizing the time between recognition of cardiac arrest and successful defibrillation.

In 2006, the ACSM published its Third Edition “Health/Fitness Facility Standards and Guidelines.”  The revised standards included more stringent AED requirements:

  • Facilities must have as part of their written emergency response system a public access defibrillation (PAD) Program;
  • Facilities must have written policies for emergency response systems and procedures that must be reviewed and rehearsed regularly.  These policies must be capable of handling basic first-aid situations and emergency cardiac events; and
  • Fitness and healthcare professionals engaged in pre-activity screening, instructing, monitoring, or supervising of physical activity programs for facility members or users must have current automated external defibrillation and cardiopulmonary resuscitation (AED and CPR) certification from an organization qualified to provide such certification.

Since 1999, the AHA and the American Red Cross have incorporated AED training into their Basic Life Support CPR training programs. By around 2001, AED training had been seamlessly integrated into CPR training.  As a result, AED training was neither more complicated nor more expensive than the routine CPR training.



Automated external defibrillators (AED) are simple inexpensive life-saving devices for cardiac arrest victims.  Sudden cardiac arrest occurs when the heart fibrillates or quivers in an uncontrollable fashion.  This is caused by chaotic, abnormal electrical activity in the heart.  The person loses consciousness very quickly and unless the condition is reversed, death follows in a matter of minutes.  Heart attack, on the other hand, occurs when the blood supply to part of the heart muscle itself is severely reduced or stopped because of an obstruction in an artery. A heart attack can trigger sudden cardiac arrest, but they are not the same thing.

AEDs are portable computerized machines that can quickly determine the heart rhythm of the victim.  AEDs are programmed to recognize ventricular fibrillation or ventricular tachycardia, both of which are classified as sudden cardiac arrest and both of which are reversible with defibrillation.  In an emergency, an AED is delivered to the victim and electrode pads are applied to the chest.  The pads are attached by cords to the AED.  After the pads are applied, a “start” button is pushed.  The AED then determines whether sudden cardiac arrest is present and, if so, the AED clears the electrical “short circuit” in the arrested heart by delivering an electrical charge.  Successful defibrillation returns the heart to its normal rhythm and its function of pumping blood throughout the body.

Studies have repeatedly shown that immediate bystander CPR combined with cardiac defibrillation via AED within 3-5 minutes of collapse can substantially improve cardiac survival rates.  Overall, it has been estimated that for every minute of delay in achieving defibrillation the likelihood of survival diminishes seven to ten percent (7-10%).

The American Heart Association and National Safety Council strongly encourage businesses and public facilities to purchase AEDs and to establish programs to increase the chances of survival for people with heart-related emergencies.  With proper response training and an emergency plan, an AED can save the life of a co-worker, friend, family member or a stranger.

AEDs have been demonstrated to be safe and effective, even when used by lay people, including untrained sixth grade children, since the devices are designed not to allow a user to administer a shock until after the device has analyzed the cardiac rhythm and has determined that an electric shock is required.  In one widely cited study, researchers found that “the speed of AED use by untrained children is only modestly slower than that of professionals” and suggested that “widespread use of AEDs will require only modest training.”

The crucial role of rapid defibrillation in saving lives in the setting of sudden cardiac arrest is well established and is not seriously disputed by anyone with expertise in the administration of AEDs.  The rapid delivery of defibrillation is a major public health and safety concern as it literally saves the lives of SCA victims who would otherwise die or suffer major neurological damage.

Each year, more than 250,000 Americans die from sudden cardiac arrest.  The American Heart Association estimates that at least 20,000 lives could be saved annually by prompt use of AEDs.  Ultimately, with broad deployment of AEDs among trained responders it is estimated that as many as 50,000 deaths due to sudden cardiac arrest could be prevented each year.

Today, AEDs have become ubiquitous in urban areas, transportation hubs, sports facilities, office buildings, health clubs, schools and many other types of public places where large volumes of people pass through.  Over the past few decades, a robust body of industry standards for AEDs has emerged and many states have enacted AED legislation.