Massachusetts Litigation Blog

Possible Limits for Liability at Pick-Your-Own Farms

As the season gets closer to picking-your-own markets, one may be interested in the case of MacFayden v. Maki, 70 Mass. App. Ct. 618 (2007).  Although the case involved a pick-your-own Christmas tree farm, the Appeals Court evaluated Mass. Gen. Laws. ch. 128, § 2E as an affirmative defense to tort cases (slip and falls or other personal or property injury type cases) occurring on a farm.  Specifically, Chapter 128, § 2E gives limited liability protection to “pick-your-own” farms under certain conditions, namely that a compliant sign is posted for visitors to see. 

Basically, Mass. Gen. Laws. ch. 128, § 2E, provides that owners of a farm who allow individuals to enter for “agricultural harvesting” shall not be liable for injuries (unless there is wilfull, wanton or reckless conduct by the owner), if the farm posts a sign containing the warning of their limited liability in a location visible to those using the farm.  Thus, whether you are a “pick-your-own” farm in Massachusetts, a visitor to such a farm, or represent such a farm, you want to be aware of signs that are posted, or should be posted under Chapter 128, § 2E. 

Indemnification Provisions

Indemnification provisions are common in construction contracts.  Generally, the contract documents provide that the general contractor agrees to indemnify the owner for the project and then, in its subcontracts, the general contractor obtains indemnification agreements from its subcontractors.  However, in some cases, such a subcontract, which has references to a general contract’s indemnification provision as well as its own indemnification provision, cannot always be read harmoniously.   

For example, in Rush v. Norfolk Electric Company, Inc., 70 Mass. App. Ct. 373 (2007), there was an indemnification clause contained in the contract between the owner and general contractor, as well as a slightly different one in the contract between the general contractor and subcontractor.  A problem arose because the subcontract also contained an agreement that the subcontractor would be bound by the provisions contained in the contract between the owner and general contractor.  Thus, based on the two contracts, although the general contractor would have been entitled to complete indemnification from the subcontractor under the provisions of the general contract, in contrast, it had limited its right for indemnification by the additional and separate language contained in the subcontract itself.  Ultimately, the Appeals Court in Rush held that the more limited indemnification clause in the subcontract was applicable, nullifying the indemnification clause contained in the general contract. 

Therefore, the Rush decision reminds us that it is important that when preparing construction contracts, like all contracts, the contracting parties ensure proper drafting of the agreements so that all of their clauses, including clauses regarding indemnification, can be read harmoniously, or else face the consequence of losing the benefits of a possibly favorable clause due to the conflicting clause rule.

Collateral Estoppel

Collateral estoppel, or issue preclusion, essentially prevents relitigation of an issue that has been determined in an earlier action, and is a litigation tool that can be used by both plaintiffs and defendants.  Specifically, collateral estoppel provides that “when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”  Alba v. Raytheon Co., 441 Mass. 836, 841 (2004).  To prove collateral estoppel, you must prove the following: (1) there was a final judgment on the merits in a prior adjudication, (2) the party against whom one is trying to use collateral estoppel was either a party or else was in privity to a party of the prior adjudication, (3) the issues in the first and current adjudication are identical or have substantial overlap, and (4) the issue decided in the first adjudication as essential to that judgment.  One can defend against issue preclusion by arguing that it did not have an adequate opportunity to litigate the issues decided.

If one is interested in seeing an example of the breadth and use of collateral estoppel, you may want to review Supeno v. Equity Office Prop. Manag., LLC, 70 Mass. App. Ct. 470 (Oct. 11, 2007), in which the Appeals Court of Massachusetts affirmed the trial court's decision to grant defendants summary judgment based on its argument that the plaintiff was collaterally estopped from relitigating a claim that had been asserted and decided by the Department of Industrial Accidents.

Be Careful Before Reporting a Case Settled to the Court

Before a case is reported settled to the court, it is important to be sure that both the clients and the attorneys are aware of all terms that will ultimately be a part of the settlement agreement.  In Basis Technology Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29 (2008), the Appeals Court affirmed the lower court’s decision to enforce a settlement agreement that consisted of an e-mail exchange between counsel on the third day of a trial.  Specifically, in Basis Technology Corp., the parties reported the case settled to the court based on an e-mail exchange between counsel that outlined the terms of the settlement, but contemplated drafting an actual settlement agreement.  Consequently, the trial court ended the trial and issued a dismissal nisi order.  Despite the e-mail and the report of settlement, the parties were unable to agree on a written settlement agreement, and the court ultimately enforced the settlement as initially agreed in the e-mail.

In its decision, the court found that the mere fact that the parties needed to memorialize the settlement terms did not make the settlement incomplete and did not support an argument that the parties had not agreed on the essential business terms of the settlement.  Thus, the Basis Technology court stood by a decision it made twenty years earlier when it stated that “if the parties have agreed upon all material terms, it may be inferred that the purpose of a final document which the parties agree to execute is to serve as a polished memorandum of an already binding contract.”  Goren v. Royal Invs., Inc., 25 Mass. App. Ct. 137, 140 (1987). 

A large factor in the court’s enforcement of the settlement agreement is that the parties had reported the matter settled to the court.  As has been noted in several cases, enforcing settlement agreements that have been orally relayed to the court protects the integrity of the judicial process as well as the parties themselves.  It allows courts to dismiss juries, clean up their dockets and prepare for the next case. It also allows parties to rely on the results of negotiations that they have had in coming to a settlement conclusion. 

A Doctor's Duty to Warn is Extended

In Coombes v. Florio, 450 Mass. 182 (2007), a divided Massachusetts Supreme Judicial Court (“SJC”) ruled that a doctor may be liable to someone other than his patient for harm caused by a doctor’s failure to warn of the side-effects of any prescribed treatment.  This decision is important as it expands the potential liability of doctors, while opening the doors to further litigation in this area. 

In this case, David Sacca, 75 years old and with many serious medical conditions, struck and killed a pedestrian, Kevin Coombes, when he lost consciousness while driving.  Dr. R. Florio, Sacca's primary care physician, had prescribed him with various medications that had potential side effects including drowsiness, dizziness, lightheadedness, fainting, altered consciousness and sedation.  Approximately two months before the accident, the last time Sacca saw Dr. Florio, Dr. Florio did not discuss the prescriptions’ potential side effects or warn against driving.

           The SJC has ruled that as part of a doctor’s duty of reasonable care, they are required to give appropriate warnings of a prescription’s potential side-effects to their patients, particularly those that can diminish capacity or state of consciousness.  The SJC has stated that these warnings are meant to protect patients from foreseeable accidents, including automobile accidents.  In the Coombes decision, the SJC found that Dr. Florio was negligent in prescribing medication to Sacca without giving him warnings of the potential side-effects and that duty to warn extended to Coombes, as the pedestrian, because his injury was a foreseeable consequence of the negligence. 

The following are three potential “side effects” of the Coombes decision:  First, the Coombes decision may create a greater class of plaintiffs who will now add physicians to their civil actions.  Second, the decision creates some uncertainty as to which warnings, for which prescriptions, a physician must warn his or her patient.  Third, by allowing a third-party to assert claims, it is possible that the confidential communications between a patient and the physician may be breached during discovery. 

Lis Pendens and the Absolute Privilege

In Powell v. Stevens, 69 Mass. App. Ct. 87 (2007), rev. denied, 449 Mass. 1109 (2007), the Appeals Court held that “the filing of a lis pendens memorandum in connection with litigation affecting the title to real estate lie[s] within the absolute privilege afforded judicial proceedings in Massachusetts.”  So what does that mean?

Mass. Gen. Laws. ch. 184, § 15 provides that in order for a litigation that will affect the title to real property to have any effect on non-parties, a memorandum, called "lis pendens," must be filed with the appropriate registry of deeds to notify prospective buyers or interested parties that the property is part of a litigation.  Generally, the law provides an absolute privilege to all statements, oral or written, that are made during the course of judicial proceeding, preventing any action, such as one for slander, based on those statements.  See Restatement (Second) of Torts, §§ 586 and 587.  The Powell decision now makes it clear that there is a connection between the actual filing of a lis pendens and the judicial proceeding it refers to, therefore preventing a defendant from asserting a cross-claim for slander of title based on a plaintiff’s filing of a lis pendens.

This is an important decision because lis pendens serves an important public policy function in preventing further disputes that could be made by prospective buyers who had no notice of the litigation involving title to property.  Specifically, by giving “notice to prospective buyers, mortgagees, tenants, or users of real estate, it prevents further disputes and resulting claims and litigation from those parties who would have acted to purchase, to accept a security interest in, or to lease or use, the contested real estate if they had lacked notice of its prior involvement in litigation.”  Powell, 69 Mass. App. Ct. at 90.

The Common Interest Doctrine

Massachusetts has recently given its official stamp of approval to the use of joint defense agreements.  In Hanover Insurance Company v. Rapo & Jepsen Insurance Services, Inc., 449 Mass. 609 (2007), the Supreme Judicial Court officially recognized the common interest doctrine, and thus the validity of what many refer to as “joint defense agreements.”  The common interest doctrine allows for confidential attorney-client communications to be shared with other interested parties to further their collective common interests without waiving the attorney-client privilege. 

Specifically, the common interest doctrine “extends the attorney-client privilege to any privileged communication shared with another represented party’s counsel in a confidential manner for the purpose of furthering a common legal interest.”  The common interest doctrine is very broad and is not just limited to criminal or civil defendants.  Rather, the doctrine has been applied to cases involving coplaintiffs, individuals who may be part of a pending litigation, documents shared between plaintiff’s and defendant’s counsel, as well as to shared work-product.  Additionally, the common interest doctrine is not limited to litigation, but also applies to those involved in business transactions. 

There are always strategic considerations as to whether one should enter into an agreement with others based on the common interest doctrine.  Although an attorney will still need to review all of the implications of such an agreement and counsel his or her client to see if such an agreement is appropriate, now attorneys and their clients can be assured that such agreements are valid in Massachusetts.

Attorney-Client Privilege and Public Records

Massachusetts Public Records Law, Mass. Gen. Laws. ch. 66, § 10, as supported by Gen. Laws. ch. 4, § 7, provides that upon request, anyone is entitled to obtain copies of a broad array of public records.  The primary purpose of the Public Records Law is to allow the public to have extensive access to governmental records, whether they have an invested interest or are merely curious.  Recently, in Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 333 (2007), the Massachusetts Supreme Judicial Court held that the attorney-client privilege applies to documents that may otherwise need to be produced pursuant to the Public Records Law.  In making this decision, the Court reiterated that the attorney-client privilege is a fundamental privilege in both the private and public sector. 

Government officials and employees constantly seek the legal advice of counsel to ensure that their actions and inactions are in conformity with their public roles.  Now government officials can speak freely with their legal counsel, allowing them to obtain quality legal advice, which will not be subject to disclosure, unless the privilege is waived.

Judge Margot Botsford Nominated to the State’s Highest Court

Today, Governor Deval Patrick is expected to nominate Judge Margot Botsford to the Supreme Judicial Court (“SJC”), Massachusetts highest appellate court.  The SJC was created in 1692 and is the oldest appellate court in continuous existence in the Western Hemisphere.  The SJC consists of a Chief Justice (Margaret H. Marshall) and six Associate Justices.  In March, a vacancy was created by the death of Associate Justice Martha Sosman. 

Although the Governor’s Council will need to confirm this nomination, it is expected to be approved.  Judge Botsford has been sitting as a trial court judge on the Massachusetts Superior Court since Governor Michael Dukakis appointed her to the bench in 1989. In my opinion, Judge Botsford is an excellent nominee to the SJC.  To read more about Judge Botsford, click here: http://www.boston.com/news/local/articles/2007/07/26/jurist_botsford_seen_as_sjc_pick/

Duty To Preserve Evidence

A party to litigation, or to litigation that is reasonably foreseeable, has a duty to preserve evidence in its possession or control that may be relevant.  If a party destroys evidence in its custody or control it can be subject to sanctions that range from an assessment of costs and fees, to suppression of evidence, an adverse jury instruction, or even outright dismissal of the case. 

The Superior Court recently ruled on a case in which a plaintiff alleged that a malfunctioning refrigerator, which was later destroyed by a nonparty, caused a fire.  In that case, the Superior Court reiterated the general rule that, in Massachusetts, a nonparty has no duty to preserve evidence. See Quincy Mut. Ins. Co. v. W.C. Wood Co., Middlesex Superior Court, Civil Action No. 0402346 (June 6, 2007) (Gershengorn, J.).  However, an exception to this rule is when a party to the litigation imposes an obligation on the nonparty to retain the evidence.  Specifically, if a party to a litigation wants a nonparty to retain certain evidence, the party must either issue a subpoena to the nonparty requesting the evidence or enter into a contract with the nonparty to maintain the evidence.

Although the case at issue involved product liability (the refrigerator), the court’s holding arguably applies to all evidence. Thus, not only does it apply to products, but it could apply to documents such as contracts, invoices, advertisements, e-mails, or any other evidence that would be relevant to the case.

As a result, if you are a party to a litigation, or even reasonably believe you will be a party to a litigation, and you know a nonparty has evidence that you will need to prove or defend the case, you or your attorney must take affirmative actions to ensure the nonparty has a duty to preserve the evidence.