Glossary of MA Tort Distinctions
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- What are the elements in Massachusetts for Defamation for a private person?
- A private person must prove by a preponderance of the evidence that:
1. The defendant published a defamatory statement of and concerning the plaintiff
2. The statement was false in some material respect
3. The defendant was negligent in publishing the false and defamatory statement
4. The plaintiff suffered actual injury or harm as a result of the publication
Pretty Fellows Need Internet (publish, false, negligent, injury)
- What is the test for defamatory language in Massachusetts?
- Whether the writing discredits the plaintiff in the minds of any considerable and respectable class in the community.
- Can I get punitive damages for defamation in Massachusetts?
- No – by statute, punitive or exemplary damages are not recoverable in a defamation action.
- Can I sue for publication of facts placing me in a false light?
- No – MA does not recognize this tort.
- I’ve adopted a crack-baby and the adoption agency didn’t tell me anything about it. Do I have any rights against the adoption agency?
- Yes – an adoption agency has an affirmative duty to disclose to adoptive parents information about a child that would allow prospective parents to make a knowledgeable decision about whether to adopt a child. Failure to disclose this information will allow adoptive parents to bring a “wrongful adoption” action based on either intentional or negligent misrepresentation.
- Does MA require anything special for malicious prosecution actions?
- Yes – MA also requires the element of malice. Malice may sometimes be inferred from the lack of probable cause, but both malice and lack of probable cause must be proved.
- Does Massachusetts have an anti-SLAPP statute?
- Yes – A SLAPP suit (Strategic Lawsuit Against Public Participation) is, by definition, a meritless suit. The dispute need not be a public concern for the suit to be dismissed. Courts have applied the statute to such private actions as malicious prosecution, civil rights violations
- What additional elements does interference with business relations have in Massachusetts?
- 1. Interference improper in means or motive.
2. Interferer must be intermeddling 3d party, not party to contract
- Can I wiretap someone in Massachusetts? Can I record them when they call me? What if my friend calls me with a hot tip about a blue dress?
What happens if you do wiretap someone?
- It is unlawful to intercept another’s oral or wired conversation.
An aggrieved party has a civil cause of action and may recover damages.
- Can I sue for being fired in Massachusetts?
- Generally no – at will employees may be discharged for any reason. EXCEPT IF:
1. There’s an “express contract” based on promises in a personnel manual.
2. At-will employees may have an action for wrongful discharge when the employer violated clearly established public policy. (So, can have action if fired for jury duty, refusing to testify falsely, making allegations of criminal activity – not for reporting internal complaint or refusing long hours to care for child).
3. May have cause if employer breaches covenant of good faith and fair dealing by showing termination designed to deprive P of earned salary/commissions
- What is Qui Tam?
- In Massachusetts, by statute, a whistle-blower may recover, as a reward, 10-25% of the amount recovered from the wrongdoer.
- What if my insurance company fails to defend me, and I sue and force them to defend, can I recover my attorney’s fees?
- One insured under a homeowner’s policy is entitled to reasonable attorney’s fees and expenses incurred in successfully establishing the insurer’s duty to defend. This exception to the American Rule on attorney’s fees has also been extended to other kinds of liability policies when an insured establishes that the insurer violated its duty to defend. The exceptions may apply even where the insurer has not committed a breach of the insurance policy.
- Can I sue for wrongful birth? Wrongful Pregnancy? Wrongful life? What are the damages?
- You can sue for wrongful birth/pregnancy, but not wrongful life. The damages in the two former cases are offset by the value of the emotional benefits of having the child.
- How is the standard of care defined for medical professionals in Massachusetts?
- It’s measured by the standard of care and skill of the average member of the medical professional practicing his specialty at the time of the alleged negligence. The care and skill utilized by practitioners in the defendant’s community are not controlling but the resources available to the defendant are factors that may be considered.
- What’s the duty to rescuers in Massachusetts?
- Negligence that creates peril and invites rescue – the tortfeasors will be held liable not only to the primary victim, but to the rescuer as well.
- Am I liable to firefighters in Massachusetts?
- The firefighter’s rule, which prevents firefighters and police officers from recovering for injuries sustained because they were simply doing their job, in not the law in Massachusetts. These employees can recover.
- Can parking facility operators disclaim liability in Massachusetts?
- By statute, a parking facility operator cannot disclaim its duty of reasonable care. Such disclaimer is void as against public policy.
- What duty do I owe to a passerby in Massachusetts?
- 1. Reasonable care to avoid injuring people on the highways/sidewalks near land
2. Doesn't extend to public roads adjacent to land
3. Not violated by failure to remove snow/ice - unless some act changed the condition of the naturally occurring ice
4. Salt won't create a hazardous/unnatural accumulation
- What duty do I owe to a trespasser in Massachusetts?
- There is no distinction between discovered and undiscovered trespassers. No duty of care is owed any trespasser; the owner or occupier of land need only refrain from reckless behavior.
An exception exists in the case of the trespasser in a position of peril if that peril is known to the landowner. Under such circumstances, there is a duty of ordinary care to render aid or prevent injury to the trespasser.
- What duty do I owe to a child trespasser in Massachusetts with respect to “attractive nuisances”?
- By statute, a landowner must exercise reasonable care to eliminate the danger or otherwise protect child trespassers from danger. The MA comparative negligence standard applies to the child trespasser.
- What’s the duty to licensees and invitees in Massachusetts?
- There is no distinction between licensees and invitees. The ordinary standard of care is owed to all lawful visitors.
- What duty is owed in Massachusetts when the use of land is recreational?
Does it apply to government landowners?
What if there's a fee charged?
- 1. Land used for recreational (or firewood) for no fee
2. Gross negligence only
3. Applies to gov't landowners except schools who are liable for negligence on property
4. Fee for use = all liability
- Can a party contract against liability for negligence in Massachusetts?
What about cities?
- You can disclaim ordinary negligence but not gross negligence.
Courts will also enforce a release signed by a student’s parents which relieved a city of liability arising out of student’s voluntary participation in athletic program.
- What duty do landlords owe against criminal acts in Massachusetts?
- Landlords have a duty of care to guard against foreseeable criminal acts of third parties.
The duty owed by a residential landlord is higher than the duty owed by a commercial landlord.
Other kinds of “special relationships” may also give rise to a common law duty to protect against acts of third parties.
- Is violation of a statute negligence per se in Massachusetts?
- Violation of a statute is not negligence per se in Massachusetts, but only evidence of negligence.
- How is negligent infliction of emotional distress different in Massachusetts than in other states?
- It’s a broader cause of action in MA than in most states. Close relatives of the negligently injured person may recover if they witness the accident or if they come upon the scene while the injured person is still on the scene or closely upon the heels of the accident.
Proof of physical harm is required.
- If a rescuer renders emergency aid, can they be held liable for the injuries they cause in Massachusetts?
- Physicians, physician assistants, nurses, on-duty certified medical technicians, police officers and fire are exempt from all liability when they render emergency aid in good faith, as a volunteer and without fee. Persons certified in CPR and persons rendering aid to a crime victim are exempt from liability for ordinary negligence only.
- Tarasoff in Massachusetts
- Psychologists and social workers (licensed mental health professionals) have a duty to warn potential victims of threats made by their patients or to take other reasonable precautions.
- Is there an enterprise liability cause of action in Massachusetts?
- Is assumption of the risk a defense in Massachusetts?
- No – but it remains a defense in strict liability actions
- How does comparative negligence work in Massachusetts?
- MA is a partial comparative negligence jurisdiction. Comparative negligence completely bars recovery only when the plaintiff’s negligence exceeds the total negligence of all defendants. Thus, the plaintiff may be up to 50% negligent and still recover.
- Does Massachusetts have a “first-bite is free” rule for dogs?
- No – a dog-owner is liable for injuries caused by the dog unless the plaintiff was committing a trespass or other tort, or was teasing, tormenting or abusing the dog. If the plaintiff was under seven, the owner of the dog is always liable.
- Can there be a claim against a landlord for the lead paint in the building in Massachusetts?
- An owner of property where a child under 6 years old of age resides will be strictly liable for damages suffered by that child as a result of the child having dangerous exposure to lead paint or other lead-containing structural substances located at the premises, if that property owner has failed to remove or contain the lead paint as required by law.
- Does Massachusetts have strict liability for products liability?
- Not as such – it has, however, extended UCC warranties to any person whom the manufacturer, lessor, seller, or supplier might reasonably have expected to use, consumer or be affected by the goods. Therefore, MA has effectively eliminated privity requirements in all products liability cases. The UCC warrants merchantability (fit for ordinary purposes) and fitness for a particular purpose.
- What are the requirements for negligent entrustment of an automobile in Massachusetts?
- Entrustor has actual knowledge of borrower's unfitness.
- Are parents liable for the torts of their children in Massachusetts?
- Lawful parents are vicariously liable, for up to $5k, for the willful torts of an unemancipated minor child under the age of 18 but over the age of 7.
- What are the special concerns for tavernkeepers?
- Illegal to serve minors and evidence of negligence
But, liability limited unless willful, wanton, reckless
- When is a social host or employer liable to third parties?
- If you knew/should have known your guest (driver) was drunk and gave him a, or let him, drink - liable to third parties injured
- What rules does Massachusetts follow for contribution and indemnity?
- Massachusetts follows traditional contribution and indemnity rules rather than a comparative contribution system.
There is no right of contribution unless the potential contributor is directly liable to the injured person.
- Who can bring a wrongful death action in Massachusetts? What recovery is available? What about pain and suffering?
- Only the executor or administrator of the deceased may bring a wrongful death action.
Damages include the fair monetary value of the decedent to the persons entitled to receive damages recoverable and funeral and burial expenses. Punitive damages are recoverable if the defendant’s actions were malicious, willful, wanton or reckless.
Damages = MFP (Monetary, Funeral, Punitive)
While recovery by the estate is permitted for conscious pain and suffering, it is limited to recovery for the actual pain and conscious suffering experienced.
- What is the state of the alienation of affection and criminal conversation torts in Massachusetts?
- These have been abolished in MA.
- Can a child recover for the loss of a parent’s consortium in Massachusetts?
- Yes – MA permits a minor child or an adult child who is physically, emotionally, and financially dependent on parents to recover for a loss of a parent’s consortium. Where a parent dies before a child’s birth, the child may recover after birth for the loss of the parent’s consortium.
- Governmental Torts Immunity – Who is covered by the Massachusetts Torts Claims Act (MTCA)?
- It applies to all state and municipal governments but not to entities with substantial political independence such the MA Port Authority, MBTA or MA Turnpike Authority. It applies to state colleges, universities and housing authorities but not to independent contractors hired by the state.
- What acts are covered by the MTCA?
- Negligence, or wrongful acts or omissions of public employees acting within the scope of their employment, but not intentional torts are covered. The MTCA does not apply to private nuisance actions against a municipality.
- What are the limits of recovery imposed by the MTCA?
- Liability is limited to $100k per plaintiff. This limit is not per incident, so an injured party may recover up to $100k and a spouse or child may also recover up to $100k for loss of consortium.
- What are the claims procedures set forth in the MTCA?
- 1. Written claim to officer w/in 2 years after claim arose
2. Officer has 6 mo to respond
3. Failure to respond = denial of relief
4. Lawsuit must be brought w/in 3 years of accrual of cause of action
W2 O6 F 3A (Written notice w/in 2 years, Officer respond w/in 6 mo, Failure = denial, Lawsuit w/in 3 years)
- What are the immunities granted in the MTCA?
- 1. Execution of laws
2. Discretionary acts
3. Intentional torts
4. Collection of Tax or Detention of goods
5. Actions regarding permits and licenses
7. Claims against fire departments
8. Claims against police departments
9. Release of detainees
10. Conditions not caused by the public employee
11. Immunity for judicial Parties
- What liability does the MTCA allow for the execution of law?
- Liability shall not apply to any claim based on acts or omissions of a public employee exercising due care in the execution of any statute, ordinance or municipal regulation.
- What liability does the MTCA allow for discretionary acts by a public employee?
- Immunity is extended where the claim is based upon the performance or failure to perform a discretionary function. Discretionary functions are those that involve policymaking rather than implementation of policy.
- What liability does the MTCA allow for intentional torts?
- Claims for intentional torts must be brought against the employee directly.
NOTE: It might be possible to also sue based on the supervisor’s negligence in supervising the employee.
- What liability does the MTCA allow for the collection of tax or detention of goods?
- Claims arising from the assessment or collection of any tax, or the lawful detention of any goods or merchandise by any law enforcement officer are not allowed by the MTCA.
- What liability does the MTCA allow for actions regarding permits and licenses?
- The MTCA grants immunity for claims based upon actions arising from the granting or withholding of permits, licenses, or the like.
- What liability does the MTCA allow Inspections?
- No liability unless specific assurances and injury resulted from those assurances
- What liability does the MTCA allow for claims against fire departments?
- Municipalities are immune for failure to establish a fire department, or if established, for the fire department’s failure to properly control a fire.
This immunity does not apply to claims based upon the negligent operation of a motor vehicle, i.e. a fire engine.
An exception applies where the fire department made explicit and specific assurances of safety and assistance and the injury resulted in part from reliance on those assurances.
- What liability does the MTCA allow for claims against police departments?
- 1. No tort for not having a police department
2. No tort for failing to protect from crime
3. Doesn't cover motor vehicle torts
4. Can be held liable if they hold out specific assurances that are relied upon
- What liability does the MTCA allow for claims based on the release of detainees?
- Immunity is provided for claims based on the release, parole, furlough, or escape of prisoners, arrestees, or other detainees.
This immunity does not apply if gross negligence is shown.
- What liability does the MTCA allow for conditions not caused by the public employee?
- Not liable for failing to fix harmful conditions not caused by employee. 4 Exceptions
- What liability does the MTCA allow for claims against judicial parties?
- Judges, clerks, arbitrators and court-appointed experts are immune for their judicial actions.
- What claims can arise from defects in roads in Massachusetts?
- 1. Must show gov't failed to repair a defect in the road
2. Gov't had notice of defect
3. Failure to repair = primary cause of injury
4. No recovery if snow/ice = sole cause
5. Notice to gov't w/in 30 days
6. Maximum recovery = $5k unless death = $100k
Fox News Channel Is on 30 hours/5 Days 100 (Failure to repair, Notice, Cause, Ice, 30 days notice, 5k max, unless DEATH then 100k)
- What is the charitable immunity rule in Massachusetts?
- Charities are only liable to a maximum of $20k if the tort was committed in the course of any activitiy carried on to accomplish directly the charitable purpose of the organization.
- I was injured on the job, what can I do?
- Worker's comp claim ONLY if:
1. P was an employee
2. Harm is a personal injury
3. Personal injury from employment
EPI-F (Employee, Personal Injury, From employment)
- Can an employee sue a co-employee in Massachusetts?
- 1. Generally, Worker's comp bars
2. Intentional torts probably outside scope of employment, so probably okay
- What happens when you’re in a car crash in Massachusetts?
- No fault system
1. 8k in med/lost wages (not pain and suffering)
2. Recover from driver's insurance
3. Recovery not permitted if worker's comp
4. If you collect insurance you can't sue (even for pain and suffering)
5. 2 year statute of limitation to claim
8 Is Way Better than 2 (8k, Insurance, Worker's comp, Barred, 2 year SOL)
- Tell me about the Victim Compensation Fund in Massachusetts?
- The AG is charged by statute with administering G.L. Ch. 258C, dedicated to compensation and assistance to victims of violent crimes. A victim is one who suffers personal physical or psychological injury or death as a direct result of certain crimes; as a result of attempting to assist a person against whom a crime was attempted or committed; or as a result of efforts to prevent a crime or apprehending a person who committed a crime. The maximum award is $25k. In case of death of the victim, a dependant may recover.
- When might the charitable immunity not apply?
- Does not apply if the tort was committed if the action in question was primarily commercial in nature even if those activities were carried out to obtain revenue for the charity.
- What statute trumps charitable immunity?
- 93A trumps, however…$20k cap does not apply.
- What does charitable immunity say about directors of the charity?
- Immune for acts in good faith + w/in scope unless willful/wanton misconduct.
- What accomodations for ski operators does MA law make?
- 1. Ski operators
2. Who maintain the area in a reasonably safe condition
3. Are not responsible for injuries that arise out of risks inherent in skiing. (Icy spots, collision w/ objects unless improperly marked, collision w/ other skier unless one is employee)
4. 1 year statute of limitations
5. notice of the accident to the ski operator w/in 90 days after the accident occurs, unless ski operator has actual knowledge of said injury or has reasonable opportunity to learn of said injury w/in 90 days.
MA 1/90 (Maintain, Arise, 1 years, 90 days notice)
- Does the judicial immunity under the MTCA cover appraisers and accountants testifying in civil actions?
- This immunity does not apply to appraisers and accountants testifying in civil actions.
- What are the exceptions for the rule that a public employees are not liable for dangerous conditions they fail to fix?
- Suit is allowed where:
2) PE Intervenes and causes injury or leaves in worse position.
3) Negligent maintenance of public land
4) Negligent treatment by medical professional
AIM There (Assurances, Intervenese, Maintenance, Treatment)
- When can you get pain and suffering in an automobile accident?
- You can get pain and suffering if the injury:
1. Cost more than $2k
2. Was death
3. Was a loss of a body part (whole/partial)
4. Permanent disfigurement
5. Loss of sight or hearing
- Who proves falsity/truth of defamatory language in MA?
- P alleges falsity
D proves truth as affirmative defense
- If booze is consumed on your property is it presumed that you gave it to the people?
- Control of booze isn't implied simply because it's being consumed on your premises
- You've given alcohol to a 19 year old and he drinks it. Are you liable as a social host?
- 18-20 year-old who voluntarily drinks excuses your liability
- In a negligent entrustment case will negligence be imputed if you're the passenger?
- Negligence won't be imputed just because entrustor is passenger
- The car I'm accused of negligently entrusting belongs and is registered to me, what is the effect of those facts?
- Registration/ownership = rebuttable presumption of owner's responsibility
- I want to disclaim responsibility for the car in a negligent entrustment case, what do I need to know?
- Lack of responsibility is an affirmative defense.
- You can get worker's comp for personal injuries, what does that include? What doesn't that include
- Includes emotional harm
Does not include dignitary harm (defamation, invasion of privacy)
- What claims are not barred by worker's comp?
- Other statutory claims - like 151B
- What can you recover in a worker's comp claim?
Does it matter who was at fault in a worker's comp claim?
- Lost wages
Lost earning capacity
Medical expenses from job-related injuries
Regardless of fault
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