A personal injury claim against a police officer's automobile insurer highlights the different scope of what it means to be "on the job" for purposes of statutory immunity and worker compensation.
In a case the Massachusetts Supreme Judicial Court (SJC) decided in late October, Raynham, Mass., police officers on mandatory firearms training on public property in 2017 organized takeout for lunch for a paid break. Returning to the training site in his personal truck with the takeout, one officer drove the gravel path "faster than [he] should have," braked, and slid into and injured another officer seated at a picnic table.
The plaintiff-officer was permitted to claim state worker compensation, because he was injured on the job. The defendant-driver's insurer meanwhile claimed immunity under the Massachusetts Tort Claims Act, because the insured acted "within the scope of his ... employment." The SJC denied the insurer of the defense.
The common law test for "vicarious liability, respondeat superior, and agency," the court explained, is "whether the act was in furtherance of the employer's work," and the same test informs the invocation of statutory immunity. That analysis comprises three factors in Massachusetts law: "(1) 'whether the conduct in question is of the kind the employee is hired to perform'; (2) 'whether it occurs within authorized time and space limits'; and (3) 'whether it is motivated, at least in part, by a purpose to serve the employer.'"
Only the middle factor favored the insurer, the court opined, so the analysis on balance disfavored immunity.
Worker compensation and common law master-servant doctrine are indistinguishable as a practical matter in many cases, when an employee suffers injury doing the employer's bidding. Doctrines in both veins rely on "scope" or "course of employment" tests.
But even when the language is the same, the tests differ, and in some cases, the difference matters. Worker compensation tests only loosely for a causal connection between employment and injury, thus famously allowing a traveling salesman to recover when his overnight motel was destroyed by a tornado. Vicarious liability, and thus, Massachusetts immunity, requires a closer causal nexus between the employee's specific pursuit and the injury that results.
In this analysis, the defendant-driver's lunchtime carelessness, for which he was suspended for five days, was not in furtherance of the employer's work, so qualified for neither vicarious liability nor statutory immunity. The officer injured was on a paid break, so was covered by worker compensation. The worker compensation system may recover in subrogation from the driver's private insurance.
If the driver himself had been injured, it's arguable whether he would have been covered by worker compensation, despite his "gross negligence," as the court described his driving. Under the worker compensation test, he was returning with lunch to the job site during a paid break. The causation requirement for worker comp is looser than the respondeat superior/sovereign immunity test. The anomalous result that might then pertain is that the driving officer would be liable in subrogation for a fellow-servant injury even though he was on the job for the purpose of worker compensation.
This posting was revised Apr. 1, 2024, with addition of the penultimate paragraph and revision to the preceding paragraph and headline. The original post improperly conflated the worker compensation analyses that would pertain to the injured officer and the vehicle driver.
In a dog-bites-postman case in Massachusetts, the Appeals Court in late October held that the parties' "high-low" settlement agreement was a "contract like any other" and did not bar the defendants' appeal.
The plaintiff-postman in the case was covering an unfamiliar route when he was bit in the wrist and thigh by German shepherd-golden retriever mix "Chewbacca." At trial, the jury awarded the plaintiff $375,000 in damages. The defendants asked for a new trial, arguing that the jury was tainted by improper admission of information about the plaintiff's federal worker compensation benefits, in violation of the collateral source rule.
Before the jury verdict, on the last day of trial, the parties had struck a handwritten "high-low" settlement agreement. They set a floor recovery of $150,000, if the jury verdict were anything less, and a ceiling of $1,000,000, if the jury verdict were anything more.
The plaintiff argued that the settlement agreement precluded appeal. But it didn't say that. Holding that the settlement agreement was to be construed as a "contract like any other," the Appeals Court found no language convincingly demonstrating defendants' waiver of appeals. At the same time, the court held that the evidentiary admission in violation of the collateral source rule was harmless error, affirming the denial of new trial.
Regarding the high-low agreement, the court found "little law in Massachusetts." More than 20 years ago, two New York attorneys described the agreements as "[a]n often underutilized and misunderstood litigation technique." At NYU in 2014, a research fellow examined the agreements' potential and limits in New York, Maryland, and Virginia; see also the ABA Journalin 2005. An Illinois attorney wrote favorably about the "misunderstood" agreements in 2019, after a medmal plaintiff-baby's verdict was halved by a high-low from $101 million. Virginia attorneys advised on drafting the agreements in 2007.
In a harder scholarly vein, research published in The Journal of Law & Economics in 2014 reported empirical research on high-low conditions and posited optimal conditions for their appearance. Published soon thereafter, a Michigan law student argued that high-low agreements should be disclosed to juries.
News came last week that the last 12 of 17 Christian missionaries abducted for ransom in Haiti in October either escaped or were released, reports vary, and walked miles to freedom. The circumstances of their liberation raise questions about the ongoing apparent lack of any clear U.S. policy on abductions abroad.
Less well reported than the story of the missionaries, Haitian lawyer and university professor Patrice Dérénoncourt was shot and killed on October 31 by the kidnappers who abducted him in October. Dérénoncourt taught crimonology and constitutional law in the Economic, Social and Political Sciences Department of the Université Notre-Dame d'Haiti.
Dérénoncourt and the missionaries are typical of the some 800 kidnappings in Haiti just this year. Economic desperation and political turmoil have resulted in flourishing gang violence, and kidnappers seeking ransom have targeted aid workers and the education sector, children included. Struggling to maintain rule of law, the Haitian government has not been able to get a handle on the problem. Foreign governments seem either habitually disinterested or similarly impotent.
In the Dérénoncourt case, some of the $900,000 ransom demanded had been paid. It is unclear whether any ransom was paid for the missionaries. Representatives of the families and, apparently, the U.S. government through the FBI, were involved in negotiation over kidnappers' outrageous demand for $1 million per person. Whatever reports are accurate, and whether or not a ransom was paid or the pressure simply became untenable, I find it difficult to believe that the last 12 missionaries surmounted a concerted effort by the kidnappers to keep them.
The Biden Administration was understandably tight-lipped about how it was dealing with the kidnapping crisis while it was going on. Now that the event is over, it's time for an open conversation about what U.S. policy should be, both with regard to kidnappings and to the social and economic catastrophe unfolding less than 700 miles from Miami.
In the broader picture, U.S. policy on abductions for ransom seems at best inconsistent and at worst incoherent. In late October, families of Americans still detained abroad, in China, Egypt, Russia, Saudi Arabia, and Venezuela, called on the Biden Administration to do better. "When we do meet with ... officials," the families wrote, "we feel we are being kept in the
dark about what the U.S. government intends to do to free our loved
ones."
The murder of an educator such as Dérénoncourt sets back rule of law in Haiti not by just one mind, but by a generation of students he would have taught. Persistent instability in Haiti meanwhile is contributing to a burgeoning refugee crisis in the Americas and threatens to destabilize democracy in the Caribbean. Even an isolationist American administration can ignore Haiti for only so long.
Belatedly, but aptly for the holiday, with permission of the UMass Law Immigration Clinic and the student, I am proud to share the news that Sebastian Garcia-Holguin contributed vitally to late October court holding allowing an abandoned child to remain in the United States and petition for legal residency.
The UMass Law Immigration Clinic has been overseen for two decades by my friend and colleague, Professor Irene Scharf. Professor Scharf plans to retire in the upcoming year. She surely deserves that reward, but the clinic will be the poorer for her absence. I can scarcely imagine the number of lives in which she and her students have directly effected changed for the better. Precious few of us in the business of legal education could compete with her record.
[Text of image:]
During Sebastian Garcia-Holguin's spring semester in the clinic, he spent countless hours on a dependency case for a neglected and abandoned immigrant child. He gathered information (interviewing our client) and completed affidavits and other required documents to file with the Probate and Family Court.
Based on his work, the court ruled last week in the child's favor, that she is dependent on the court and that it is in her best interest to remain in the United States.
These findings make our client eligible to file a petition for Special Immigrant Juvenile Status with the U.S. Citizenship and Immigration Service of the Department of Homeland Security that will lead to her legal residence!
This semester, the Clinic continues its work for our client, thanks to Allison Jacome, who has been working with our client to prepare for the next stage of this lengthy application process.
Kichwa representatives appear before the Inter-American Commission on Human Rights (CIDH) in 2015. (CIDH photoCC BY 2.0.)
A case inching forward in Ecuador's constitutional court pits indigenous people against extractive industries and the government over the fate of the country's vast eastern jungles.
Among the many issues on which President Joe Biden and West Virginia Senator Joe Manchin disagree is the Keystone XL Pipeline Project.
The President blocked Keystone first thing in January 2021. Environmentalists and indigenous peoples' advocates long ardently opposed the project, though as fuel prices rose in recent months, Senator Manchin was among those renewing criticism of the termination.
Meanwhile, an environmental battle implicating extraction and with arguably more precious real estate in contention is playing out in the Constitutional Court of Ecuador. In mid-November, the court heard the first in a series of oral arguments over a bid by the Kichwa indigenous people in the eastern Sarayaku region to reclaim control of the jungle and repel extractive industries working at the behest of the government.
There are many facets to the Kichwa's struggle. The government has for decades promoted drilling, mining, and logging in eastern Ecuador, denigrating environment and inflicting injury with the introduction of explosives and toxic run-offs. Emily Laber-Warren wrote a concise history for Sapiens in April. The Kichwan spiritual angle is the focus of a short but more recent piece in Ñan. Indigenous people have won cases in the Inter-American Court of Human Rights, as long ago as 2012, and in the the Ecuadorean courts, but not always to any avail with the government.
A compelling aspect of the present dispute in the Ecuadorean courts is that the issues overlap with the environmental disaster left behind at Lago Agrio by Big Oil actor Texaco, later Chevron, memorialized in the 2015 book by Paul Barrett, Law of the Jungle. The Chevron-Ecuador saga and the related prosecution, critics say persecution, of American attorney Steven Donziger continue to make headlines. I'm still waiting for the Hollywood retellings.
Lago Agrio is 217 km north of Sarayaku; that distance says something about the scope of the slowly unfolding tragedy. I've assigned Law of the Jungle yet again for my spring 2022 Comparative Law class. I keep waiting for the story to take some major turn, ideally an environmentally sound one, that renders the Barrett book intolerably outdated. Yet most of what Barrett wrote about the long jeopardy of eastern Ecuador, and the failure of rule of law within the country to respond, remains true today.
I've not been able to find a dispassionate assessment of the November hearings, but plaintiff-friendly Amazon Frontline (AF) covered the day's events. As AF observed, the hearing followed just days after the Glasgow climate change agreement was concluded.
Implicated collaterally in the case is the emerging legal theory, "rights of nature." My friend and colleague Dr. Piotr Szwedo, lead editor of Law and Development and a member of the law faculty at Jagiellonian University in Poland, visited Ecuador this year and is conducting ongoing research into the legal implications of the rights of nature.
Tomorrow, Friday, November 5, beginning at 10 a.m., the Boston University Law Review Online hosts an online symposium on the book, Rewriting Nature: The Future of Genome Editing and How to Bridge the Gap Between Law and Science.
The symposium features author Paul Enríquez, a law student of mine once upon a long time ago. Dr. Enríquez's fascinating book was featured here on The Savory Tort in July. Here is the symposium précis (which is drawn from the book jacket):
History will mark the twenty-first century as the dawn of the age of precise genetic manipulation. Breakthroughs in genome editing are poised to enable humankind to fundamentally transform life on Earth. Those familiar with genome editing understand its potential to revolutionize civilization in ways that surpass the impact of the discovery of electricity and the development of gunpowder, the atomic bomb, or the Internet. Significant questions regarding how society should promote or hinder genome editing loom large in the horizon. And it is up to humans to decide the fate of this powerful technology. Please join the Boston University Law Review Online for a virtual and thought-provoking, interdisciplinary symposium on Rewriting Nature: The Future of Genome Editing and How to Bridge the Gap Between Law and Science (... 2021) to discuss the complex legal, scientific, policy, ethical, political, economic, and social issues concerning this emerging technology.
Lanier's story in a 2020 short by Connecticut Public
This morning the Massachusetts Supreme Judicial Court heard oral arguments in the case of Lanier v. Harvard, in which Tamara Lanier seeks to recover daguerreotypes of her enslaved ancestors, father and daughter Renty and Delia Taylor, taken on a South Carolina plantation in 1850.
The case is mostly about property and procedural law, namely, replevin and laches, though counsel for Lanier described the initial possession of the images as tortious conversion. The images were taken and "used by the Harvard biologist Louis Agassiz to formulate his now-discredited ideas about racial difference, known as polygenism," the Center for Art Law explained. "Renty and Delia were photographed naked to the waist from the front, side and back without their consent or compensation."
Harvard's position depends on a narrow view of the case as a simple question of property ownership. As the saying goes, "possession is nine tenths of the law." Harvard bolsters its position with the argument that has become familiar from museums in our age in which returning artifacts to the once colonized, developing world is increasingly common, that the public will benefit from, and the horrors of slavery will be exposed by, public presentation of the daguerreotypes in a scholarly context.
The Lanier family articulates a broader theory of the case. Civil rights attorney Ben Crump compared the sought-after return of the daguerreotypes to return of the possessions of Japanese families after World War II internment and Jewish families after the Holocaust, the latter including The Woman in Gold.
The Lanier side divided its argument between two attorneys. Crump opened the second half with a powerful statement of what he described as "three historical references" to frame the case from the Lanier perspective. First, he said:
The fact that I stand before you as a free man and not a slave is a testament to someone's decision to change the course of human history. It is a testament to our legal system, a testament that was led by the courts here in Massachusetts when Chief Justice William Cushing in 1783 judicially abolished slavery in the Quock Walker case. And it is the reason why he is so often quoted even 250 years later with ... the idea of slavery as inconsistent with our conduct and our Constitution.
Second, Crump paraphrased Frederick Douglass, that
the genealogical trees of black people do not flourish as a result of slavery. In essence what he was saying is that what slavery did was destroy the African-American family connection to its ancestral lineage. But this historical case has the ability not only to recognize such lineage but [to recognize such lineage in] Ms. Linear and her family.
Third, Crump said:
This case presents a case study of Massachusetts's complicated history with slavery. On one hand it has profited mightily from the cotton trade. Its most powerful institution, Harvard University, has ties with slavery that date back centuries. In fact the textile factories that were the largest donors of the university helped to build capitalistic empires on the backs of slave empires. In fact the institution of Harvard and the institution of slavery were born in this country a mere 17 years apart. On the other hand, Massachusetts is also the home of John Adams, and it is not lost on me or Ms. Lanier that we are in the John Adams Courthouse. John Adams said slavery is the great and foul stain upon the North American Union.
Justices Kafker, Wendlandt, and Cypher actively and almost exclusively interrogated the advocates. Based on the colloquy, the smart money in the case is on Lanier. Kafker and Wendlandt tied up Harvard advocate Anton Metlitsky mostly in civil procedure. The justices seemed to be testing out how they might navigate procedural challenges to reach a ruling in Lanier's favor.
The justices did challenge Crump and co-counsel Joshua Koskoff on First Amendment issues. In an amicus brief in the case, the Massachusetts Newspaper Publishers Association warned against a ruling that would give the subjects of photos an ownership interest in the images, for fear that First Amendment-protected news coverage would be jeopardized. It's interesting to see that concern raised in this context, because the point also marks division between the United States and Europe over data privacy rights in photographs of persons in public places.
The probing revealed that counsel for Lanier would render the case large or small, depending on their needs. Taming the case back to mere property dispute, Koskoff called "First Amendment implications" in the case "a strawman." The First Amendment is not implicated in a case of conversion, he argued, any more than the Second Amendment is implicated when someone is shot and killed.
Justice Kafker challenged Koskoff on whether return of the pictures would make them inaccessible to scholars and, as Harvard contends, thus unable to educate the public in the way that Holocaust images have. Koskoff stuck to his guns, responding that it was up to Renty and Delia, and thus up to the Lanier family, whether the images would be used for public education. The ends don't justify the means, he said.
In a related vein, Justice Wendlandt questioned Crump whether the outcome would be the same if the images had been discovered "in a drawer of the Boston Globe." Crump ducked the question. "This was a scientific experiment with black people being used as lab rats," he responded potently but inappositely, a "crime against humanity" and a crime under Massachusetts law.
Wendlandt reiterated her question, and still Crump ducked it, arguing that the hypothetical was not the facts of the case. Wendlandt then restated Crump's response back to him as a "yes," that it makes no difference who claims ownership of the daguerreotypes today. Crump picked up the thread, arguing analogy to the removal of The Woman in Gold from public display in Austria.
"This court has the ability to finally free Renty and Delia from bondage," Crump concluded. "We are beseeching this court not to condemn them in death to the property of Harvard for all eternity."
The case is Lanier v. President and Fellows of Harvard College, No. SJC-13138 (argued Nov. 1, 2021). Briefs are posted on the docket. The oral argument will be posted at the Suffolk Law archive. The Harvard Crimson published a thorough piece on the case in March. A retired probation officer in Connecticut, Tamara Lanier tells her story at the website of the "Harvard Coalition to Free Renty"; there also is a documentary film by David Grubin.
[UPDATE, Nov. 3:]
The oral argument is now posted in the Suffolk archive. Also, Tamara Lanier posted a 15-minute clip of Crump's argument on her YouTube page today (below).
I add that Crump's argument, while quotable, was not as substantively important as Koskoff's. I rewatched the oral argument today. It remains clear to me that the justices, at least those who participated in the colloquy, are searching for a way to have Lanier win, but are struggling to find a legal rationale that matches the policy rationale.
In a telling exchange out of the gate, the justices pressed Koskoff for a rationale to convert his theory of tortious conversion in 1850, a premise the justices seemed willing to accept, into a property right in 2021. Koskoff responded by describing tort law as an umbrella and property law within it, reasoning that a tortfeasor is not allowed to keep the proceeds of a tort.
I find the reasoning sound, notwithstanding the doctrine of laches, but I'm not sure the semantics and metaphor were quite right. I have never understood tort law to dictate the outcome Koskoff describes; rather, I regard the proceeds of a tort as forfeit in equity. Well recognizing how easy it is to Monday morning quarterback, I wonder that Koskoff might have prepared a better argument grounded in equity rather than tort law.
Anyway, it will take some legal gymnastics for the court to reach the result that at least three justices seemed to desire.
