Class labor action fails on appeal, but highlights persistent failure to afford living wage for U.S. workers

Boston, Mass. (from Pixabay by StockSnap, licensed)

Notwithstanding its failure, a class labor action dismissed by the Massachusetts Appeals Court highlights the persistent legal norms that keep U.S. workers under compensated.

Siew-Mey Tam worked as a property manager for Federal Management Co. (FMC) in Boston, managing Mason Place, a 127-unit, subsidized-housing community in the heart of the city.  Dissatisfied with her terms of employment, Tam became the lead plaintiff in a class action accusing FMC of violating wage-and-hour laws.  The class was certified in 2015.

Among the issues in the case was FMC's classification of Tam and others as exempt administrative employees.  A company's ability to exploit so-called "salaried" workers with responsibilities that defy the number of work hours in the week facilitates subversion of already paltry U.S. minimum wages and evasion of overtime pay.  This is another in a genus of "misclassification" problems that form our bleak landscape of employment rights and was part of the back-and-forth tug of regulatory might in the Obama and Trump administrations.

In 2016, the threshold for overtime exemption under Department of Labor regulations pursuant to the Fair Labor Standards Act (FLSA) was $455 per week, or $23,660 per year.  For comparison, the intransigent federal minimum wage is, and has been since 2009, $7.25 per hour, or up to $15,080 per year.  The Massachusetts minimum wage in 2016 was $10 per hour, or up to $20,800 per year.  Having been unable to push a federal minimum-wage hike through Congress, the Obama Administration announced a doubling of the exemption threshold, to be effective December 1, 2016, from $455 per week, to $913 per week, or $47,476 per year, with automatic upward adjustments to follow beginning in 2020.

From the Economic Policy Institute

But that increase never happened.  A Texas judge blocked the regulations in November 2016 (N.Y. Times), and the Trump Administration in 2017 junked the upgrade.  The threshold remained at $455 for three more years, until the Trump Administration promulgated a more modest increase to $684 per week, or $35,568 per year, which took effect in 2020.  While the federal minimum wage remains at $7.25, the Massachusetts minimum wage has crept upward, in 2021 to $14.00 per hour, or up to $29,120, on its way to a living wage.

In the instant case, according to the court, "[i]t was uncontested that Tam worked more than 40 hours per week but generally was not paid overtime. Instead, the dispute was whether the nature of Tam's job meant that she was an exempt administrative employee to whom overtime pay was not due."  FMC maintained that in addition to a base salary in excess of the $455 threshold, Tam's "primary duty include[d] the exercise of discretion and independent judgment with respect to matters of significance," which regulations also require for "administrative" exemption.

Most of the appellate decision in Tam v. FMC concerns a deposition in 2016, in which, it seems from the court's description, the plaintiffs' case self-destructed.  Tam's answers supported the FMC position that she exercised considerable authority over the property.  Moreover, "Tam gave other answers that raised serious concerns about how the case and a related discrimination case against [FMC] were being litigated," pointing to inconsistencies in discovery responses.

"For example," the court observed, "confronted with a factual misstatement in her interrogatory answers filed in the [related] discrimination case, Tam attempted to address the misstatement by explaining that she had signed the answers without actually reading them, because she 'trust[ed her] lawyer.'"  The deposition was especially damaging because Tam was the lead plaintiff for the class.

The Appeals Court affirmed summary judgment and an award of pretrial costs against Tam and a co-plainitff, Raymond.  A collateral action against FMC remains pending.

Included in the affirmance was the dismissal of a separate retaliation claim by Raymond.

A former property manager for FMC, Raymond alleged that she was fired for her wage-and-hour complaints, a retaliation that would violate Massachusetts law.  The courts ruled that Raymond's claim came up short because she did not sufficiently notify FMC of the legal basis of her discontent.  An employee need not necessarily invoke a specific statute, the Appeals Court held, but the court characterized Raymond's objections as closer to "abstract grumblings" (quoting precedent) than to a reasonably understandable assertion of statutory rights.  That's a cautionary tale for low-wage employees who might not understand the legal nuances of classification and take as true an employer's declaration of what the law is.

The real shame of the case is what it reveals about the deplorable state of U.S. labor rights.  According to MIT, a living wage for a Boston worker is $670 per week, or $34,819 per year.  That's well more than the exemption threshold before 2020 and just about equivalent to the threshold now.  An exempt employee can be expected to work more than 40 hours per week, so can't hold down a second job—even assuming that it would be civilized to expect that, which it's not.

So the present regime sets an expectation that a worker earning a minimum living wage will work longer than a 40-hour week.  One might expect that administrative employees working more than 40 hours per week would do a little better than a living wage.  Meanwhile, hourly workers still fall far short.  And the per annum numbers I've used here assume 2,080 working hours per year: no break.  Federal law requires no paid vacation time.

The FLSA has been around since 1938.  It's at least arguable that the proceeds of industrialization and technology should be that people don't have to work as hard to survive.  Even by the time the FLSA turns 100, will employees working full time in the shining city on a hill be able to meet basic needs?

The case is Tam v. Federal Management Co., No. 19-P-1332 (Mass. App. Ct. Jan. 6, 2021).  Justice James R. Milkey authored the opinion of a unanimous panel that also comprised Justices Blake and Henry. 

State tort claims act disallows claim of 911 negligence

Plaintiffs in a fatal stabbing could not overcome sovereign immunity in alleging negligent delay of emergency response, the Massachusetts Appeals Court held last week.

A 28-year-old man with "psychiatric issues" went on a murderous "rampage" in Taunton, Mass., killing two people and injuring five more, before being shot and killed by an off-duty law enforcement officer, as reported by WBZ Boston in 2016.  In the course of the rampage, the perpetrator broke into the home of 80-year-old Patricia A. Slavin, where he stabbed her to death and also stabbed her daughter.

The perpetrator was shot and killed at the Galleria Mall in Taunton, Mass.,
after attacking patrons and fatally stabbing a diner who challenged him.
(Photo in 2020 by James Walsh CC BY-SA 4.0.)

It was more than 20 minutes after the daughter's desperate 911 call that a fire truck arrived on the scene, and more than 30 minutes for an ambulance, according to the court's recitation of the facts.  The Slavin plaintiffs alleged that negligence by a 911 dispatcher directed first responders to the wrong address and contributed to Slavin's death and her daughter's distress.

Negligence liability in American common law requires not mere causation, but proximate causation, which can be a slippery concept.  States waiving sovereign immunity in tort claims acts can use proximity of causation as a device to narrow permissible claims.

The Massachusetts Tort Claims Act does so through its section 10(j), which precludes liability for "any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer" (my emphasis).

The legislature intended the provision for a case such as this one, the Appeals Court wrote in dismissing the claims. "It is true that a more prompt response by city personnel might have diminished the harmful consequences of the stabbings, but the lack of a prompt response was not the original cause of the harm" (footnote omitted).

A claim against the ambulance service, a private contractor, is unaffected by the dismissal.

The case is Slavin v. American Medical Response of Massachusetts, No. 19-P-1762 (Mass. App. Ct. Jan. 11, 2021).  Justice Peter Sacks authored the opinion for a unanimous panel that also comprised Justices Henry and Englander.

Court: Pseudonymous WeChat user cannot be libeled

As matter of law, statement is not 'of and concerning' plaintiff

Statements about a person on a social media platform are not defamatory as a matter of law when the person is known only by a pseudonym, the Massachusetts Appeals Court held this week.

Defendant and plaintiff exchanged spiteful messages in a WeChat group.  The group comprised 437 persons and was organized to support plaintiffs accusing Harvard University of discriminating against Asian-American applicants in admission.  The defendant referred to the existence of "pink-news" about the plaintiff.  As the court explained the term, "'pink-news' is a Chinese expression that refers to sex gossip or rumors."

The trial court awarded judgment for the defendant on the pleadings on the alternative grounds that the plaintiff had failed to show damages, or that the allegation of "pink-news" was "imaginative expression" or "rhetorical hyperbole," not a factual assertion capable of defamatory meaning.

The Appeals Court affirmed on different grounds.  Plaintiff had been known in the chat group only by a pseudonym.  She failed to allege that anyone in the group knew her identity.  So she could not prove that the statement in question was "of and concerning" the plaintiff, as the test for defamation requires.

The Appeals Court disavowed the grounds of decision in the trial court.  The court's discussion of the "pink-news" issue suggested that there might have been some factual question about the meaning of the term as to preclude judgment on the pleadings.  And in a footnote, the court wrote that written communication in WeChat probably is libel, not slander, so would entitle a plaintiff at least to nominal damages under Massachusetts law.

Probably the "pink-news" allegation later would have failed for the reason the trial court supposed, even if further factual investigation was warranted.  Courts in a number of cases have recognized the hyperbolic nature of social media posts.  In 2018, recognition of "hyperbole" cost "Stormy Daniels" Stephanie Clifford her claim against Donald Trump for his tweet accusing her of a "con job."  In 2019, Elon Musk successfully defended a tweet in which he had referred to the plaintiff as "pedo guy."

At the same time, this anything-goes approach to social media means, for better and worse, that tort law cannot be relied on as a social media regulator in our age of coarsening discourse.

The case is Li v. Zeng, No. AC 19-P-1546 (Mass. App. Ct. Nov. 3, 2020).  The opinion was authored by Justice James R. Milkey for a unanimous panel that also comprised Justice Wendlandt and Chief Justice Green.

No recklessness, no liability, court affirms in case of head injury during softball batting practice

mohamed Hassan from Pixabay

Applying recklessness doctrine in a non-competitive context, the Massachusetts Appeals Court yesterday affirmed non-liability for a collegiate softballer and Suffolk University in the case of a player hit in the head by a bat during practice.

Tort and Sport

Personal injury in sport offers fertile ground for exploring tort law, because athletic competition represents a suspension of the social contract.  Ordinarily, everyone in an orderly society knows not to push, tackle, or punch other people.  But in a sport, that can be exactly what you're supposed to do.  So a special, carefully designed standard of conduct, "the rules of the game," supersedes the usual web of unwritten norms, conveniently yielding a laboratory for socio-legal study.

If one fails to recognize the aberrant nature of the sport context, anomalous legal results pertain.  For example, every injury resulting from a collision of players on the football field is accidental, so a potential source of negligence liability.  Alternatively, many such injuries are batteries, because the defendant bore subjective intent to cause offensive contact.  At the same time, the defenses of assumption of risk and consent raise frame-of-reference problems in application.  An athlete generally assumes a risk of injury, a defendant argues, but not necessarily injury specifically in the way that it happened, the plaintiff counters.  The usual tort doctrines just don't work well to solve conflict over sporting injury.

To overcome this problem, courts in many states, including Massachusetts, have employed the tort standard of recklessness in sport cases.  Recklessness focuses on a defendant's indifference to a risk of high probability or magnitude (tests vary).  For its culpability analysis, recklessness hybridizes subjective and objective tests for culpability, thereby balancing the prohibitive prerequisite of defendant's intent with slim proof of carelessness.  The test is not a perfect tool for sporting-injury cases, but it works much better than intent and negligence rules to help courts patrol the outer boundaries of social-normative conduct in an exceptional situation.

j4p4n from openclipart.org

In Borella v. Renfro, in December 2019, the Massachusetts Appeals Court applied the recklessness standard to a case of ice-hockey injury, relying on precedent of the Supreme Judicial Court dating to 1989.  The court explained in Borella:

In a game where the players wear sharpened steel blades on their feet and are garbed in protective gear from head to toe, the playing field is a glossy ice rink, checking not only is allowed but a fundamental aspect of the way the game is played, and the object of the game is to put a puck into a goal (or to prevent the same), the plaintiff, seventeen year old Daniel J. Borella, was cut on the wrist by one of the blades worn by the defendant, Julion Scott Lever, in what Borella acknowledges was a "freak accident" occurring moments after Lever checked Borella hard from behind into the boards and took the puck away.

.... In this case, we apply [the recklessness] standard to the game of ice hockey[,] in which physical contact between players standing on two thin metal blades atop a sheet of ice is not simply an unavoidable by-product of vigorous play, but is a fundamental part of the way the game is played. We hold that where, as here, the record is devoid of evidence from which a jury rationally could conclude that the player's conduct is extreme misconduct outside the range of the ordinary activity inherent in the sport, there is no legal liability under the recklessness standard. For that reason, we affirm summary judgment in favor of Lever.

Dissenting, Justice Peter J. Rubin would have sent arguable questions of fact to the jury.  But he did not disagree, for jury instruction, that recklessness was the correct standard.

Batting Practice

Despite the efficacy of the recklessness standard in sport cases, things get tricky at the margins, especially when injury occurs off field, or outside the narrow context of competitive conflict between players in the course of the game.  The instant case presented such a challenge, as one player was hit in the head by a teammate accidentally, while the teammate was engaged in batting practice.

Should the recklessness analysis pertain to "friendly fire" in practice, too?  Yes, the Appeals Court answered, consistently with precedent in other states.  Recklessness is the appropriate standard for athletic practice.  

In the instant case, the unfortunate accident occurred between friends on the Suffolk University softball team.  The plaintiff-player walked too close to the swinging defendant-player at just the wrong time.  Their testimonies, and that of the supervising coach, might have supported findings for or against fault-based liability in negligence, but no matter.  The defendant's conduct did not rise to the recklessness standard, and the trial court correctly awarded summary judgment to the defense.

The court framed its choice of the recklessness standard as a problem in duty.  Duty in tort law is determined "by reference to existing social values and customs and appropriate social policy," the court quoted precedent.  This point is significant for reasons related to the deeper mechanics of tort law.  Without diving into the problem here, it will suffice to say that the interrelationship of duty and fault standards sometimes matters, especially when a change in the relevant law occurs, whether through common law evolution or legislative enactment.

Co-defendant Suffolk University also won summary judgment.  The players had signed waivers of university liability in negligence, and the evidence failed to support gross negligence or recklessness in the coach's and university's supervision of the softball practice.

Superior Court Decision

In affirming, the Appeals Court opinion described the Superior Court's application of recklessness doctrine as "thoughtful."  That appraisal prompted me to seek a copy of the trial court opinion.

Regrettably, Massachusetts is a jurisdiction that thrives on secrecy in trial court records.  The Superior Court for Suffolk County, which includes the metropolis of Boston, puts dockets online, and the interface looks like the same software used by my home bar jurisdiction of Washington, D.C.  But links to document images, which D.C. has offered for a few years, are not available from the Massachusetts system.  Given the state of technology in the courts and in the country, I can attribute this omission only to willful obscurity.

Graciously, attorney Robert B. Smith (LinkedIn, Twitter), Demoura|Smith LLP, who represented Suffolk University softball head coach Jaclyn Davis, shared with me a copy of the memorandum decision in the Superior Court.  The court wrote:

[Defendant-player] Ball argues that because Brandt's injury occurred while she and Brandt were participating in an athletic event, she may only be liable for conduct that was willful, wanton, or reckless. Ball contends that she is entitled to summary judgment because Brandt has no reasonable expectation of proving her conduct was willful, wanton, or reckless. The court agrees.

"Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players' consent." Gauvin v. Clark, 404 Mass. 450, 454 (1989). "The courts are wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition." Id. Therefore, "a participant in an athletic event can be liable to another participant only when his or her actions amount to a willful, wanton, or reckless disregard for the safety of the other participant." Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000) [affirming summary judgment for defendant in golf-club-to-head case].

Brandt argues that the present case is distinguishable from those requiring a showing of willful, wanton, or reckless conduct because her injury was not caused by an opponent during a competition. However, the court declines to construe the broad language of the controlling cases in a manner that excludes Brandt's claim from their purview. Members of the same athletic team participating in a team practice are no less "participant[s] in an athletic event" than members of opposing teams during a game. [Cf.] Dugan v. Thayer Academy, [32 Mass. L. Rep. 657] (Mass. Super. Ct. 2015) (willful, wanton, or reckless standard did not apply where alleged negligence occurred before and after, but not during, athletic event [field hockey]). Accordingly, the willful, wanton, or reckless standard of care applies to Brandt's claim against Ball.

The appellate case is Brandt v. Davis, No. 19-P-1189 (Mass. App. Ct. Nov. 2, 2020).  Justice Joseph M. Ditkoff wrote the opinion for a unanimous panel that also comprised Justices Wolohojian and Maldonado.  The case below was Brandt v. Davis, No. 2017-00641-B (Mass. Super. Ct. Suffolk County Apr. 16, 2019).  Presiding in the Superior Court was Justice Mark C. Gildea, an alumnus of Suffolk Law.

Plaintiff verdict upheld for IIED, hostile environment upon shocking attorney maltreatment of employee

The Massachusetts Appeals Court today upheld a verdict against a lawyer for shocking maltreatment of an employee.

mohamed_hassan (pixabay.com)

The employee, a Hispanic woman, was a clerical worker with responsibilities well into the paralegal vein.  She had worked in the attorney's office for about three years when she quit and sued for intentional infliction of emotional distress (IIED), hostile-work-environment sexual harassment, and constructive discharge.  Finding the defendant attorney liable, the jury awarded $20,000 on the IIED claim, $20,000 on the sexual harassment claim, and $150,000 in punitive damages.

Collaterally, plaintiff's husband was found liable in assault, for which defendant was awarded $1,000, and was held responsible for illegal wiretapping.

The Appeals Court affirmed plaintiff's verdict.  Application of law in the case was routine.  The court upheld the verdict as against defendant's erroneous assertions (1) that worker's compensation superseded IIED; (2) that the jury had doubled up on its calculation of damages; (3) that the jury was misinstructed on punitive damages; (4) that evidence of defendant's losses was improperly excluded; (5) that the evidence failed to support the jury's findings of causation and damages; and (6) that plaintiff evidence not produced in discovery was admitted at trial without sufficient remediation.

None of that is why I comment on the case here.  Rather, I want to republish the court's recitation of the facts, because they constitute a shocking portrait of a workplace that no person should have to endure for one day, much less three years.  Please keep in mind that the defendant here is a member of the bar.  And be warned that this text is not suitable for kids. 

Viewing the evidence with respect to the counts of the plaintiff's complaint for which the defendant was found liable, in the light most favorable to the plaintiff, the jury could have found as follows. The plaintiff was employed as a legal assistant at the law office of defendant, an attorney with a solo practice in Essex County. When she began working there in 2012, the plaintiff was the defendant's sole employee, but the defendant expanded his staff after hiring her.

The plaintiff's duties evolved over her years of working in the office, from answering the office telephones, handling the mail, and scheduling meetings, to working on interrogatories, doing legal research, and discussing client settlements. The plaintiff's desk was in the reception area of the office, across from the defendant's office. When the defendant was in the office, he worked directly with the plaintiff as her direct supervisor.

The plaintiff's complaint alleged, and the jury could have found, that over the course of several years the defendant made numerous comments and engaged in repeated behaviors that constituted tortious misconduct. This conduct occurred at the defendant's office, in the course of the plaintiff's employment. The defendant verbally attacked the plaintiff, calling her stupid and a moron. The plaintiff's coworkers testified that the defendant often belittled the plaintiff in the office, shouting uncontrollably at her and screaming in her face. When she tried to defend herself, he would yell at her to shut up and continue to scream at her. The defendant's screams could be heard even in offices on the floor above the defendant's office. When she was not present, and the defendant was angry with her, he would describe the plaintiff as a bitch, a slut, or a whore. He would also say she was crazy. There was a jar kept in the office into which the defendant would place money each time he called the plaintiff stupid.

Much of this misconduct related to the plaintiff's gender and race. The defendant told the plaintiff that men were intelligent while women were stupid; men were "superior" to women. He instructed the plaintiff to clean up after him in the office, including the mess left behind after his meals, because "that was women's work." The defendant also made comments about the plaintiff's and other female employees' appearances at work. He referred to one female employee as "Miss Dominican Republic." The defendant, at times without prior permission, photographed the plaintiff and her female coworker for the purpose of showing his friends "that I have nice girls here at the office." The plaintiff and another employee testified that the defendant would stand close behind the plaintiff while she was at her desk and look at her cleavage.  When she asked him to stop staring at her breasts, he responded that he could not help it and that she should wear other clothes to work. The plaintiff was also instructed to pick up condoms and lubricant for the defendant when she ran errands for him. The defendant would have the plaintiff go through his e-mails in the office, including pornographic advertisements; he once sent a pornographic e-mail to the plaintiff's daughter.

In explicit detail, the defendant would describe his sexual encounters to the plaintiff at the office.  The defendant described himself to the plaintiff as "always horny," asked her to comment on his girlfriend's breasts, and repeatedly described sex with his girlfriend to the plaintiff. He recounted a trip to the Dominican Republic in which he said his hotel room "came with [a] girl" and that "for $20 he got full service. Blow job and everything."  He described women in the Dominican Republic as "a bargain." He frequently bragged to the plaintiff of a trip to the Philippines in which he claimed he had sex with "cheap" young girls. When she asked him to stop, he ignored her or told her that she had to listen to this commentary because he paid her.

In speaking to the plaintiff, a Hispanic woman, the defendant made numerous racist remarks to her about African-American and Hispanic people. He would refer to his Hispanic clients as "drug dealers" and say that African-Americans were "stupid" and white people were superior. She testified that he used a number of racial slurs, referring to his Hispanic clients as "F-ing Spic[s]" and "calling [black] people n[word*]." When she asked him to stop making such comments, he disregarded her or told her to shut up and listen to him because he was her boss. The plaintiff testified that the defendant also made her sit with him and read his e-mails consisting of racist comments and "jokes" about black and Hispanic people. He often made fun of her accent and told her that her brown eyes were "dirty" compared to his "superior" blue eyes, which were "beautiful."

The plaintiff ultimately left the defendant's employ on October 22, 2015, after an incident with the defendant in the office. The defendant had been yelling at the plaintiff for failing to follow his instructions, and when she tried to explain what she had done, he repeatedly screamed at her to shut up. She informed the defendant that she was not feeling well and needed to go home, and the defendant told her, "Get the hell out of my office. Don't ever come back if you don't say sorry to me." The plaintiff left without the intention of returning, and her employment with the defendant ended.

....

After the plaintiff left the defendant's office, her husband went to the office himself to confront the defendant about his treatment of the plaintiff. After turning on his cell phone camera to record this encounter and placing the cell phone in his shirt pocket, the husband entered the office and moved toward the defendant, who was sitting at the front conference table talking on his cell phone. The husband sat down at the conference table near the defendant and told the defendant repeatedly to put his cell phone away.  The defendant and the plaintiff's husband began to argue at increasing volume about whether the defendant would put the cell phone away, and the husband told the defendant to listen to him. The defendant, feeling threatened, retreated to his office and closed the door, repeatedly telling the husband to leave. The husband opened the defendant's office door, and the defendant slammed it shut and called the police.

*All redactions in court opinion, except this one, which is mine.

These frightening facts embody the IIED rule of "utterly intolerable in a civilized society."  In our cancel culture, so replete with persons eager to be offended and to castigate their offenders with the force of law, we would be well advised to remember people who are truly and terribly victimized.  Watering down our civil rights law by giving eggshell plaintiffs ready access to administrative remedies, in disregard of the rights of respondents, is likely to result in over-corrective reforms that allow perpetrators of this despicable magnitude to escape accountability.

The case is Spagnuolo v. Holzberg, No. 19-P-778 (Mass. App. Ct. Oct. 21, 2020).  The opinion was authored by Justice Peter J. Rubin for a panel also comprising Justices Milkey and Massing.

Libel suit must follow first online post in less than three years, Mass. court rules, applying U.S. norm

The Massachusetts Appeals Court today opined that the "single publication rule" of American libel law causes the statute of limitations period for a defamation claim to start running on the day that a news outlet posts the contested content online.

In American libel law, the single publication rule means that a plaintiff may sue only upon the first publication of allegedly defamatory content.  The content may thereafter be distributed through other publications and other media, amplifying the injury to the plaintiff.  That amplification can count toward damages if the plaintiff prevails.  But there may be only one cause of action for defamation, and the clock for the statute of limitations, the time within which the plaintiff must bring suit, starts running from the time of first publication.  The rule is said to serve interests of both judicial efficiency and fairness to defendants.

A newspaper is printed in 2013 on an 18th-century press
in Colonial Williamsburg. (Maggie McCain CC BY 2.0)

There are exceptions to the single publication rule, namely when content is republished to a substantially different audience or is substantially altered and then republished.  The lines drawn by these exceptions became fuzzier in the internet age, because the internet can be characterized as a sort of ongoing "republisher," such that content is published anew with every user download.  Some plaintiffs were able to chart exception to the single publication rule by asserting alteration in the creation of online archives of dated print material, an issue that reverberates in the debate over the right to erasure, or "right to be forgotten."

The norm that emerged in the digital age in the United States is that the first posting of content online counts as the time of first publication.  In a decision today, the Massachusetts Appeals Court followed that norm.

The plaintiff, Wolsfelt, sued defendant Gloucester Daily Times for its coverage of reported incidents of domestic violence.  In each of two incidents, Wolsfelt was arrested.  After the first incident, in November 2011, the Times published online a story that, according to the Court, "largely tracked the police report."  When in February 2012 the criminal court "entered a 'general continuance' with a 'no abuse' order," the Times updated the story online to report "assault and battery charges ... continued without a finding."

After the second incident in June 2012, the Times again published online a story that "largely tracked the police report."  When in February 2013 the criminal court entered "a continuance without a finding" in that case, the Times updated the story online to report a "charge of assault and battery ... continued without a finding for 18 months."  Charges were dismissed in 2012 and 2014, respectively.

In a defamation complaint in February 2015, the plaintiff "asserted that the articles contained 'untrue, incomplete, misleading[,] and damaging assertions,' resulting in harm that included loss of reputation and potential employment."  But the complaint was not filed until more than three years after the first article, its update, and the second article.  The complaint was filed just under three years, the statute of limitations in Massachusetts, from the publication of the second update.  The plaintiff said he learned about the articles only upon applying for employment in February 2013.

The Court affirmed rejection of the complaint insofar as it was predicated on the first three publications, because the statutory limitations periods on those pieces had run.  Analyzing the second update alone, the Court ruled that it was protected by the fair report privilege, a common law affirmative defense to defamation that protects reporting on public records even if the public records themselves, and therefore reports about them, might contain defamatory falsehoods.  The court's decision is consistent with the single publication rule as applied to the internet by courts in other states.

The single publication rule at one time marked an important difference between common law defamation in the United States and defamation law elsewhere in the world, notably the United Kingdom and other common law jurisdictions.  The lack of a single publication rule in other countries exaggerated the problem of "libel tourism," the phenomenon of plaintiffs shopping for forums friendlier than the United States in which to sue for defamation.

However, adaptation of defamation to the internet, with its unprecedented capacity for republication, created far more headaches in legal systems without the single publication rule than in the United States.  Without the rule to draw the limitations period to a close, causes of action based on web publication seem potentially endless.  Accordingly, the single publication rule has gained traction as a U.S. export.  The rule was adopted in the U.K.'s major statutory overhaul of defamation in 2013.  And the rule has been a point of proposal in Australia's ongoing defamation reform.  The single publication rule became law in New South Wales in July (Lexology).

The case is Wolsfelt v. Gloucester Times, No. 19-P-936 (Mass. App. Ct. Sept. 1, 2020).  Justice Dalila Wendlandt wrote for a panel that also comprised Justices Singh and McDonough.

Conditions of criminal pretrial release shouldn't abate civil abuse prevention order, Mass. court rules

In a decision today, the Massachusetts Appeals Court reversed and remanded a trial judge's refusal to extend an abuse prevention order.

The order meant to protect a woman who had testified to physical abuse by her husband, who blamed her for the premature birth of their daughter.  According to testimony, "[a]s she tried to nurse the baby, the defendant painfully grabbed at her breast"; he shoved the woman; he threatened her and the baby; and he called the woman "'a horrible mother because [she] wasn't fat enough and wasn't eating enough.'"  The man was charged with (criminal) assault and battery.

The trial judge refused to extend the abuse prevention order because he improperly considered conditions of pretrial release and involvement of the Department of Children and Families as duplicative of the order.  The court explained:

Conditions of pretrial release are within a judge's broad discretion, and the civilian victim has no right to be heard on the matter. Furthermore, conditions of pretrial release are terminated automatically when the criminal case is disposed.

For these reasons, conditions of pretrial release, even if they encompass the same conditions as an abuse prevention order, are no substitute for an abuse prevention order. The same reasoning applies to DCF involvement. DCF has no power to incarcerate a person for engaging in abuse of a household or family member. At most, DCF can take custody of a child and refer the matter to law enforcement....

Rather than rely on these factors, a judge should simply determine whether the plaintiff has shown "a reasonable fear of imminent serious physical harm[,]" ... or whether the plaintiff has "suffered physical abuse" or "past sexual abuse" and "an order [i]s necessary to protect her from the impact of that abuse." [Citations omitted.]

The ruling thus marks the significant differences among civil, criminal, and administrative processes, each with its separate aims, even when all three are implicated in a case of domestic violence.

The case is Vera V. v. Seymour S., No. 19-P-1674 (Mass. App. Ct. Aug. 28, 2020).  Justice Joseph M. Ditkoff wrote the opinion for himself, Justice Gregory I. Massing, and Justice Sookyoung Shin.

(U.S. Air Force graphic by Staff Sgt. Michael Means.)

Appeals court reviews fundamentals of multiple liabilities in remanding business tort case

A Massachusetts Appeals Court decision Friday reaffirmed the rule against double recovery, the finality of settlement, and other fundamentals in a business case of joint tortfeasors.  The case is a good refresher for law students and lawyers on multiple liabilities in tort.


A company sued its former secretary-treasurer and a tax consultant for breaches of fiduciary duty through fraudulent concealment, resulting in financial loss in excess of about $288,000.  The company president, a husband, and the former principal, a wife, were recently divorced, and the latter’s separation on both counts was settled upon a $50,000 payment.  The couple furthermore stipulated an allocation of about $40,000 for the purchase of the wife’s company shares.

The company prevailed against the tax consultant on default judgment.  However, the court determined that the terms of the settlement, and specifically the allocated share purchase, inclusively credited the company with the $288,000 of the wife’s liability.

Under widely accepted state doctrine of joint tortfeasor liability in American law, a joint tortfeasor at judgment is credited with the plaintiff’s past settlement against a departed joint tortfeasor.  The rule encourages settlement by encouraging a well bargaining defendant to settle out, while deterring needless litigation by respecting the common law maxim that “a party can have but one satisfaction for the same injury.”

In accordance with the doctrine, then, the trial court ruled that the plaintiff had been made whole, so would collect nothing more from the tax consultant, however negligent.

That was an error on the merits, the Appeals Court ruled.  “Settlements are motivated by a wide range of factors, some non-monetary, and may involve significant payments or no payment at all,” the court wrote.

Justice Desmond

[T]here are many reasons [the husband] could have agreed on behalf of [the company] to dismiss the complaint against [the wife].  To name just one, having in-depth knowledge of [her] financial status, [he] may well have concluded that [she] would be unable to pay any judgment against her.  In any event, it was clearly erroneous to conclude that the plaintiff had been made whole based on no more than (i) the mere existence of a settlement [on] multiple legal claims and (ii) hearsay assertions that a discount had been given.

The court remanded for the trial court to reassess the actual measure of credit against liability represented by the share allocation, thus the remaining liability owed to the plaintiff by the tax-consultant defendant.

The case is Custom Kits Co. v. Tessier, No. 19-P-503 (Mass. App. Ct. May 1, 2020).  Associate Justice Kenneth V. Desmond Jr. wrote for a unanimous panel with Justices Wendlandt and McDonough.

Colorful U.S. case of baroness, Swiss bank makes waves in international jurisdiction, student note reports

Swiss banks in Geneva. Photo by torange.biz CC BY 4.0.

Spencer K. Schneider, my eminently able teaching and research assistant, has published a short case note in a research journal, the International Journal of Procedural Law, on a Massachusetts jurisdictional case with interesting facts.

The Massachusetts Appeals Court handed a win to a Swiss heiress who claims she was suckered into a bad investment in alchemy by a fellow aristocrat, a storied Swiss bank, and American entrepreneurs. The lower court erred when it dismissed defendant Swiss bank Rothschild for want of personal jurisdiction, the American appeals court ruled in June 2019.

Mr. Schneider aptly considers: "The American approach to jurisdiction over foreign corporations via personal agency feeds the possibility of inconsistency with jurisdictional law elsewhere in the world, such as under the Brussels Convention in Europe."

The note is Spencer K. Schneider, Aristocrats’ Squabble Over Fortune Squandered on American Alchemy May Expose Swiss Bank to U.S. Jurisdiction, in Michele Angelo Lupoi, Grandes Décisions/Leading Cases, 9:2 Int'l J. Proc. L. 339, 360 (2019).

The case is Von Schönau-Riedweg v. Rothschild Bank AG, 95 Mass. App. Ct. 471, 128 N.E.3d 96 (2019) (Casetext).

Commonwealth wins two in tort: one, bad presentment; two, no duty to juvenile assaulted in contractor custody

The Commonwealth prevailed in two tort suits under the Massachusetts Tort Claims Act at the end of February.  One case, a slip-and-fall, was decided by the Massachusetts Supreme Judicial Court on the procedural ground of untimely presentment.  The other case, involving a physical assault on a juvenile with tragic consequences, was decided by the Massachusetts Appeals Court on the merits of attenuated duty and causation in civil rights liability.

Leicester Town Hall, 2006.
Photo by Pvmoutside CC BY-SA 3.0.

In the first case, "plaintiff, Katherine Drake, slipped and fell at Leicester High School while picking up her grandson during school hours. She suffered multiple injuries, including a fractured knee and wrist."  Drake mailed her presentment (notice, or demand) letter to the Town of Leicester precisely on the two-year anniversary of the accident.  The Massachusetts Tort Claims Act requires presentment within two years, and the Commonwealth moved to dismiss on grounds of untimeliness.

The Supreme Judicial Court declined to construe the statute liberally.  "Drake does not contend that her mailed letter could have arrived on that same day, nor does she contest that the office of the proper executive officer received the presentment letter ... a full two years and three days after she was injured," the court observed.  "Given our conclusion that presentment occurs upon delivery to the office of the proper executive officer," the court affirmed dismissal.

Long Island in Boston Harbor, 2008.  Photo by Doc Searles CC BY-SA 2.0.

The second case described horrific injury inflicted on a juvenile in state custody.  A "youthful offender," Williams was in Casa Isla, "a program for juvenile males located in a facility (now closed) on Long Island in Boston Harbor. Casa Isla was operated by Volunteers of America of Massachusetts, Inc. (VOA), a nonprofit entity under contract with [the Department of Youth Services (DYS)] to operate youth residential programs." (There were other problems at Casa Isla, e.g., MassLive, WBUR.)  During a flag football game, Williams was randomly attacked by a 17-year-old resident of another VOA-operated treatment program on the island, Project Rebound, who "said he wanted to get 'kicked out.'"  After the attack, Williams experienced worsening headaches and bodily pain, but initially was given only ibuprofen.  After later emergency medical intervention, Williams was diagnosed as having "suffered ... a middle cerebral artery stroke, seizures, and cerebral edema. As a result, he now has severe and permanent brain damage. Williams currently resides in a residential program and requires twenty-four hour care."

The last bridge to Long Island was demolished in 2015.
Photo by Eric Kilby CC BY-SA 2.0 (2017).

Upon suit under the Massachusetts Tort Claims Act, the courts rejected state liability upon various theories of DYS responsibility for the conduct of contractor VOA.  DYS and the Commonwealth had no direct involvement with the management of Casa Isla or Project Rebound, so had not even the predicate knowledge that might support liability on a civil rights theory.  Accordingly, the Appeals Court affirmed in rejecting theories of Eighth Amendment, supervisory, and vicarious liability.  Similarly, absent any affirmative act by state officials, the Commonwealth, conversely, remained within the protection of state sovereign immunity.

Associate Justice William J. Meade

Drake's case reinforces the importance of legal educators continuing to teach the 19th-century "mailbox rule," however much Generations Y and Z might not intuitively apprehend its logic.  Williams's case, however sorrowful the outcome, reinforces basic (no affirmative) duty doctrine in "constitutional tort."  As a policy matter, Williams's case also might raise questions about the wisdom of outsourcing juvenile custody without providing for public accountability.  Oh, and let's make a new rule: Anytime you're going to imprison people on a harbor island with a grisly history, that raises a red flag.

The cases are Drake v. Town of Leicester, No. SJC-12781 (Mass. Feb. 28, 2020) (Court Listener, Suffolk Law, Mass. Lawyers Weekly), and Baptiste v. Executive Office of Health and Human Services, No. 18-P-1353 (Mass. App. Ct. Feb. 28, 2020) (Justia).  Justice David A. Lowy wrote for a unanimous court in Drake.  Justice Meade wrote for a unanimous panel with Shin and Singh, JJ., in Baptiste.

'Game changer,' $2.5m punitive affirmance elucidates 'gross negligence' in medmal

The Massachusetts Appeals Court in late February affirmed an award of $2.5m in punitive damages in a case of death from botched laparoscopic surgery for a hiatal hernia.  In affirming, the Court reiterated terms and circumstances that allow a jury to differentiate "gross negligence" from mere negligence in the medical context.

According to the court opinion, Laura Parsons died after laparoscopic surgery to repair her hiatal hernia resulted in surgical tacks penetrating her pericardium, the membrane surrounding the heart.  The jury laid blame squarely on defendants surgeon, nurse, and employer for tacks having been inserted in the diaphragm too close to heart tissue.  Parsons died of cardiac arrest two days after surgery, and an autopsy observed "puncture marks on the posterior aspect of the heart."

In addition to $2.6m in compensatory damages, the jury charged the surgeon with $2.5m in punitive damages for "gross negligence," the threshold for punitive damages in medical malpractice in Massachusetts.  The Appeals Court affirmed.  Mass. Lawyers Weekly called the decision a "game changer" in favor of punitive damages for medmal plaintiffs (Mar. 5, 2020, pay wall).

An issue on appeal was the jury instruction on "gross negligence."  More than negligence and less than recklessness, "gross negligence" is a familiar yet elusive norm in Anglo-American common law.  The Appeals Court in part faulted the surgeon's counsel for failing to state objection to the usual jury instruction on the standard, though the court seemed content with the instruction on its merits.  The court observed, "While drawing the line between ordinary negligence and gross negligence can be difficult, 'the distinction [between them] is well established and must be observed, lest all negligence be gradually absorbed into the classification of gross negligence [citations omitted]."

The court concluded, "The evidence as a whole permitted the jury to find that [Dr.] Ameri's use of the tacker in Parsons's surgery manifested many of the common indicia of gross negligence. See Rosario v. Vasconcellos ... ([Mass.] 1953), quoting Lynch ... [Mass. 1936] ("some of the more common indicia of gross negligence are set forth as 'deliberate inattention,' 'voluntary incurring of obvious risk,' 'impatience of reasonable restraint,' or 'persistence in a palpably negligent course of conduct over an appreciable period of time'").

The case is Parsons v. Ameri, No. 18-P-1373 (Mass. App. Ct. Feb. 26, 2020) (Justia).  Justice Massing wrote for a unanimous panel with Sacks and Hand, JJ.

Battery, IIED in play if medical staff ignore patient's 'stop,' court rules

Medical professionals may be liable for battery and intentional infliction of emotional distress for failing to heed a patient's withdrawal of consent, a Massachusetts Appeals Court reversal warned in February.

Brigham and Women's Hospital is a teaching hospital
of Harvard Medical School in Boston.
Photo by trepulu CC BY-NC-ND 2.0 (2010).

According to the appellate court opinion, evidence in the case supported the plaintiffs' disputed claim that terminally ill cancer patient Donna Zaleskas begged staff at Brigham and Women's Hospital to stop X-rays of her leg because of her physical discomfort, but that X-ray technicians proceeded anyway.  On behalf of Zaleskas, who succumbed to cancer, survivors are suing the hospital for battery and intentional infliction of emotional distress, upon the theory that Zaleskas withdrew consent.  The Superior Court awarded summary judgment to the defense, and the Appeals Court reversed and remanded.

Thirty-seven-year-old decedent Zaleskas was a personal injury and product liability attorney in New York and alumna of Boston College Law School.

A finer line than one might expect separates theories of negligence and battery in many medical malpractice cases.  When a medical professional touches or otherwise physically treats a patient without, or beyond the scope of, the patient's consent, the action can simultaneously satisfy the test for intentional battery—defendant intentionally effecting physical contact that is unwanted by the complainant—and negligence—defendant's failure to comport with the standard of care of a reasonable professional under the circumstances.  Consent is an affirmative defense to intentional torts, like assumption of risk is a defense to negligence, but scope of consent often presents a thorny question of controverted fact.  Of course, patients with the benefit of hindsight are ill inclined to suppose that they consented to physical contact that caused harm, so intentional tort claims are often rationally articulable alongside accident claims in medmal lawsuits.

In the interest of doctrinal clarity, courts often, and in some jurisdictions, upon some facts, must, channel cases into a distinct rubric for "medical malpractice" that sits under or alongside the negligence umbrella, regardless of whether the case might be characterized as intent or accident.  That's a modern trend.  Massachusetts is more permissive in preserving conventional claims in intentional torts in medmal when the facts fit the bill.  The difference can be important in different dimensions.  A defendant's insurer might deny coverage, under policy terms, for intentional torts.  At the same time, intentional torts may give a plaintiff access to greater, even punitive, damage awards.

The Appeals Court ruled Zaleskas's claim fit for hearing in the intentional tort framework.  The court wrote plainly, "We now hold that if a patient unambiguously withdraws consent after medical treatment has begun, and if it is medically feasible to discontinue treatment, continued treatment following such a withdrawal may give rise to a medical battery claim."  In the instant case, "a reasonable jury could find that saying stop or words to that effect, in the particular factual context at issue, was sufficient to withdraw consent."

The court ruled furthermore, to the plaintiffs' advantage, "that consent to have one's body touched or positioned for an X-ray is not a matter beyond the common knowledge or experience of a layperson and does not require expert medical testimony."

The case is Zaleskas v. Brigham & Women's Hosp., No. 18-P-1076 (Mass. App. Ct. Feb. 11, 2020) (Justia). Justice Henry wrote for a unanimous panel with Rubin and Wendlandt, JJ.

Falmouth takings case affords opportunity to plan for sea-level rise, if officials take notice, scholars write

In September, I wrote about a Massachusetts takings case pending petition for review to the U.S. Supreme Court. The Court denied review, so the Massachusetts Appeals Court decision that vacated a jury award to the takings claimant stands. My colleagues Professors Chad McGuire and Michael Goodman have written for CommonWealth Magazine about the case's potential implications for climate change in combating sea-level rise.

McGuire and Goodman described the case:

In December the U.S. Supreme Court denied a petition for review by Janice Smyth of Falmouth on the question of whether the Falmouth Conservation Commission, when denying a permit to develop her coastal property in Falmouth, exacted a de facto “taking” (often referred to as a regulatory taking, or inverse condemnation). Smyth inherited the coastal property from her parents but, by the time she took action to exercise her right to develop that land in 2012, she ran afoul of the no-development zone enacted locally to mitigate erosion and coastal land loss experienced over recent decades.

They conclude that government leaders should use the latitude afforded them by this precedent to plan for the coastline impact of climate change while "manag[ing] the consequences for coastal land values, local real estate markets, and the tax base of our coastal municipalities."  Read more.