Articles Posted in Wrongful Death

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carAt some point prior to 2007 Flansburgh Associates, Inc. contracted with the city of Lawrence to provide architectural services and to oversee the construction project of a new high school.  These services also included a traffic study and walkways from the school to the street.  In October of 2007, Dario Rodriquez was walking near Lawrence High School as he made his way to a local fast food restaurant that necessitated his crossing route 114.  As he was making his way across the street, a car approached and struck Dario.  Dario tragically died to the injuries he sustained in this pedestrian crash.  The motor vehicle was driven by James Gianni who was subsequently convicted of negligent operation of a motor vehicle so as to endanger in criminal court.

The estate of the minor, through a duly appointment administrator of the estate, brought a lawsuit against two of the drivers involved in the crash, Flansburgh Associates, and the consulting company that conducted the traffic study alleging claims of negligence, wrongful death and negligent infliction of emotional distress.  The estate additionally sought to include the city of Lawrence and the Commonwealth of Massachusetts as defendants.  The court concluded that the city and the state did not have an established duty of care owed to the decedent and therefore were not the proximate cause of the minor’s injury.  As such, they were not added to the underlying suit.

Flansburgh Associates and the consulting company filed a motion for summary judgment claiming that because the Commonwealth and the city were found to have no liability, there cannot be liability for the two entities who had a contract with the State.  The lower court agreed and found that Flansburgh did not owe a duty of care to the Plaintiff, did not breach a duty of care, and was not the proximate cause of the minor’s death.  The Plaintiff appealed. Continue reading →

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do not enterOn October 5, 2012, after being admitted to Holy Family Hospital for a knee operation, a woman passed away.  Her son, Brian Evans, claimed that his mother suffered from sleep apnea and that it was not properly managed by the doctors and hospital staff.  As a result, he alleged that the carelessness of the parties ultimately caused or contributed to his mother’s tragic and untimely death.  Mr. Evans brought suit against the Defendant hospital, Steward Health Care System, and various health care practitioners who allegedly rendered care and treatment to his mother.  The Plaintiff represented himself in the matter and chose not to seek legal representation in pursuit of his claims.  Mr. Evans predicated his suit on personal injuries resulting in his mother’s death, wrongful death, intentional infliction of emotional distress, loss of consortium and loss of love.  In turn, the Defendants filed a motion to dismiss claiming that the Plaintiff, Brian Evans, does not have standing to sue.

The concept of standing is deeply rooted within the requirements of all judicial matters.  Essentially, the principles of standing seek to determine whether or not a person (the potential plaintiff) is the type of person whom the law intends to protect against the type of harm he or she complains of.  The three basic requirements of standing are that the person bringing the suit must show that he or she has suffered an injury in fact, that is causally related to the Defendant’s conduct, and that a favorable decision in favor of the claimant will be able to redress the plaintiff’s injuries.  While the Plaintiff in the above mentioned scenario has suffered a tragic loss, the Defendants argued that the Plaintiff was not the appropriate person to bring the lawsuit- because legally- he was not the “type” of person the wrongful death statute sought to protect.

As the court articulated, the Wrongful Death Statute in Massachusetts allows an action to be brought by the decedent’s executor or administrator (also referred to as a Personal Representative) on behalf of the designated beneficiaries.  However, “there is no independent cause of action that may be brought by individual persons suing in their own right.”  Gaudette v. Webb, 284 N.E.2d 222, 226 (Mass. 1972).  While Mr. Evans may be the statutory beneficiary, he could not sue the Defendants because he was not the Personal Representative of the estate.  Mr. Evans chose to sue the Defendants in his individual capacity and not on behalf of the Estate of his mother.  As such, Mr. Evans’ claims predicated on Wrongful Death were dismissed as he had no standing as an individual. Continue reading →

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footRichard Angelo was a member of a triathlon organization, USA Triathlon since 2011.  As part of his membership, he electronically signed and agreed to a waiver and release of liability.  Additionally, he purported to have assumed any risk of his involvement with the organization and agreed to indemnify and hold harmless the organization from any claims associated with any potential injury.  On February 17, 2012, Richard registered for a National Age Group Championship with the defendant organization that was to be held that summer. While participating in the triathlon, Richard tragically died during the swimming portion of the event.  Richard’s wife was named the Personal Representative of his estate and subsequently brought a claim for wrongful death against the defendant organization.  Additionally, she alleged conscious pain and suffering, gross negligence, and negligent infliction of emotional distress in Essex Superior Court.

The defendant organization counterclaimed for indemnity against any liability and legal costs associated with the pursuit of the claim pursuant to the indemnity agreements that Richard signed prior to his involvement with the organization.  The organization asked for the court to award a motion for summary judgment in it’s favor due to the fact that there was no genuine dispute as to any material fact.  Put differently, a court may award summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case.

The defendant argued that because the decedent (Richard) signed a release and indemnity agreement for all claims that were to arise from his participation in the National Age Group Championship, no liability can attach to the organization.  The Plaintiff, in response, argued that the release would not pertain to her claims for wrongful death or for negligent infliction of emotional distress. The Court held that contracts of indemnity can survive a person’s death and be considered an obligation of a decedent’s estate.  However, as the Court further articulated, a claim for wrongful death is brought by a personal representative on behalf of the designated categories of beneficiaries.  Any and all money that is acquired in pursuit of the claim is not a general asset of the estate but designated for distribution to the statutory beneficiaries.  The Court, relying on previous case law on the matter, detailed that wrongful death is not a claim of the decedent, but rather, the beneficiaries of the estate. Continue reading →

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psychAs we have discussed in an earlier post, a medical professional owes no duty to a third person arising from any claimed special relationship between the medical professional and a patient.  However, when the health care professional is a mental health professional, the situation is entirely different.  This particular issue was raised when a lawsuit was filed against mental health professionals claiming that they owed a duty to warn a potential victim of their patient.

Jason Potter had a longstanding history of mental health issues and was hospitalized at various times in 1997-1998.  At one particular hospitalization it was noted by professionals that he was disorganized, confused and depressed.  Mr. Potter was admitted to the hospital as a safety precaution.  It should be noted that this was a voluntary admission- meaning he had the capacity to check himself out.  During his stay doctors indicated that Mr. Potter was paranoid and experiencing racing thoughts.  Mr. Potter checked himself out after a two day stay at the hospital, against his doctors advice who recommended a longer stay.  Mr. Potter’s medical records indicated that he was impulsive and a noncompliance risk but not a danger to himself.

A licensed clinical social worker, Jean Semexant, performed an evaluation of Mr. Potter a day after his release.  Mr. Potter attended this meeting with his mother.  Semexant knew that Mr. Potter resided with his mother and stepfather, and that the stepfather had recently been released from jail for violating an abuse prevention order.  Medical records indicate that Mr. Potter denied having any suicidal thoughts or homicidal ideations.  Semexant did not intend to hospitalize Mr. Potter as a result.  Following this evaluation, Mr. Potter returned to his home where he brutally stabbed his mother and stepfather to death.  He was tried for two counts of murder and was found guilty by reason of insanity. Continue reading →

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xrayIn a traditional case of negligence, the fact that the Defendant did a bad act is not necessarily enough for the Plaintiff to recover sums of money.  Our judicial system is grounded on the fact that we want to compensate victims, not punish wrongdoers.  As such, if a Plaintiff suffers a harm by a Defendant but has no lasting injury or damages to show for it- it will be very difficult for that Plaintiff to recover any compensation.  In addition to showing a duty that was owed to the Plaintiff, which was breached by the Defendant, the Plaintiff also has the burden of showing and proving that this breach caused him or her to sustain damages.

The evaluation of pain and suffering and of the other aspects of damages requires a determination of how badly the plaintiff was hurt—the nature, extent, severity, permanency, and effect of the injuries.  While any sort of physical pain or injury may have been small, this is not a bar to recovery.  Courts in Massachusetts have articulated that even if a bodily injury may have been very small, if it caused mental suffering to the plaintiff, that suffering was a part of the injury for which he/she was entitled to damages.

Showcasing damages may come in a variety of flavors.  For instance, if the injury causes or contributes to cause the development of a pre-existing disease, the person liable for the injury is also liable for the resulting aggravation.  A court may also look to the loss of earning capacity sustained by the Plaintiff.  When deciding such an amount the factfinder (be it judge or jury) may take into consideration what type of person the plaintiff is, the talents he or she has, the contributions plaintiff has made to society, etc.   Another category of damages is loss of enjoyment of life.  This is measured by his or her status in community affairs, personal interests and hobbies, contribution to society, etc. A plaintiff may recover reasonable medical and hospital expenses incurred in treating the injuries caused by a defendant’s purported negligence.  It is not necessary that the plaintiff actually paid the expenses, just that they were incurred (such as through insurance). Continue reading →

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postIn August of 2008, Steven Gavin died due to a bacterial infection that was allegedly caused by the improper reinsertion of a feeding tube.  Additionally there were allegations of improper monitoring by physicians, nurses, and staff at Tewksbury State Hospital.  Two years after his death, in July of 2010, an attorney representing the estate of Steven Gavin sent a presentment letter to the chief executive officer of the hospital and the Attorney General of Massachusetts alleging that the negligence of the hospital and the staff amounted to a wrongful death.  At the time of the letter, no estate proceedings at commenced in the Probate and Family Court.

The Commonwealth of Massachusetts moved to dismiss the case claiming that the Plaintiff’s presentment letter was deficient because it was not sent by an executor/administrator/personal representative of the Estate that had been properly appointed by the court.  The lower court agreed and reasoned that the Plaintiff’s presentment was in fact deficient because at the time the letter was sent, the Plaintiff was not a “claimant” or an executor or administrator with the capacity to commence suit or settle a wrongful death claim.  Plaintiff’s claim was dismissed.

Under Massachusetts General Law Chapter 258 § 4:

A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose, and such claim shall have been finally denied by such executive officer in writing and sent by certified or registered mail, or as otherwise provided by this section.

Continue reading →

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1334532_48594781As the shades go up and windows open to begin the annual task of spring cleaning, many individuals face only the trouble of allergies and dust mites as a hindrance to this accomplishment.  This was not the case for Geraldine Moran.  As she began her annual spring cleaning routine in 2005, she used a six foot tall ladder to accomplish her mission.  As she was cleaning, Ms. Moran fell and broke several ribs.  She was immediately taken to, what was previously known as, Jordan Hospital in Plymouth, Massachusetts.  Doctors evaluated Ms. Moran and made the decision to transport her to Massachusetts General Hospital as that facility would seemingly have the appropriate staff, equipment, and facilities to help treat Ms. Moran.

Geraldine Moran subsequently presented to Massachusetts General Hospital for her injuries.  While at the hospital, the doctors evaluated Ms. Moran and determined that she cracked her ribs in an unusual manner.  One rib in particular was noted as being cracked in such a way that it’s fine tip was close to Ms. Moran’s aorta.  The aorta is the largest artery in the body which stems from the left ventricle of the heart.  This is vital to the human body as it distributes oxygenated blood to all parts of the body.  Hospital staff did not treat Ms. Moran immediately.  Instead, she was kept overnight for evaluation and was given an epidural for pain. It was also noted that the time of her stay at MGH, she had a persistent cough.  At some point at night or in the early morning hours, the cracked rib with a razor point edge punctured the balloon like aorta during a coughing fit.  Ms. Moran went into cardiac arrest in the early morning hours.  She was pronounced dead at 9:49 am.  An autopsy revealed a 1 centimeter hole in her aorta by the jagged edge of her broken rib.  She was 62 at the time of her death and left three children behind. Continue reading →

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stairsOn April 1, 2007 a Boston University student went with some friends to a bar and restaurant located in the heart of the city.  After spending some time in the establishment, the student walked down the hallway of the restaurant in order to find some quiet space in order to make a phone call.  He stood outside the kitchen and across from, what was later discovered to be, a staircase.  The staircase was not readily discernible due to the presence of hanging vinyl strips shielding its presence.  As the student proceeded with his phone call, he presumably lost his footing and tumbled down the stairs where he was unconscious until an employee of the restaurant found him lying on the floor.  After immediately being rushed to the emergency room, the student died two days later due to a basilar skull fracture and a subdural hematoma.  These injuries were received as a result of the fall.

The parents of the decedent brought a law suit in superior court in Massachusetts against the establishment claiming wrongful death and violations of Massachusetts General Laws Ch. 93A.  Ch. 93A, also referred to as the Consumer Protection statute in Massachusetts, details that:

“ Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Continue reading →

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teamwork-2-1237611-mStephanie Moulton was employed by a residential treatment counselor at North Suffolk Mental health Association, Inc. in Chelsea, Massachusetts. The organization contracted with the Commonwealth to provide various mental health services to individuals affiliated with the Department of Mental Heath and the Department of Correction. On January 20, 2011, while at the organization’s treatment facility in Revere, Ms. Moulton was brutually assaulted by one of the facility’s residents. As a result of the vicious attack she sustained, Ms. Moulton was taken to the hospital where she ultimately succumbed to death. After her passing, the Estate of Stephanie Moulton brought suit against the director of the organization, the patient-tortfeasor, two consultants that admitted the patient, the Commonwealth of Massachusetts.

The Estate brought claims against the Defendants under the Wrongful Death statute in Massachusetts. The complaint alleged that the patient-tortfeasor had a history of convictions and violent crimes as well as mental health history showcasing a violent propensity toward others. The complaint further alleged that counselors, such as Ms. Moulton, were made unaware of the history of patients such as the tortfeasor, and were therefore unequipped to deal with such patients. The complaint alleges that if the director defendants had allowed or required a proper examination of prospective clients, and provided access to information in the possession of referring agencies indicating prospective clients’ criminal histories and previous violent tendencies, the patient-tortfeasor would not have been deemed an appropriate client for admission to North Suffolk’s Revere facility. Further, had North Suffolk employees at that facility been given information about clients’ violent backgrounds, and had they been provided adequate training, staffing, and equipment for the appropriate handling of clients with violent criminal histories and violent tendencies, the Ms. Moulton would not have been left alone with patient and she accordingly would not have been killed.  Continue reading →

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old-cemetery-1239425-mThe loss of a friend, family member, or significant other can have a devastating impact on the individuals in that person’s life. While any loss is a tragic and unfortunate event, in certain situations, the death of the beloved (or in legal terminology, “the decedent”) is due to the actions or inactions of another person. As a result, the Massachusetts legislature enacted Massachusetts General Law Chapter 229– the Wrongful Death Statute. The statute was originally enacted in 1840 by the legislature, but subsequently underwent a great deal of change due to a 1973 amendment to the law. The resulting law establishes recovery for the statutory beneficiaries of the decedent by measuring the loss of the family member to the beneficiaries.

Under § 2 of the law: 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.

If a person dies due to the negligence of another, the above referenced statute is applicable. However, not just anyone can step into the shoes of the decedent to pursue a claim against a responsible person or organization. Continue reading →