Posted in Blog, Personal Injury by on September 21st, 2015

Medical Malpractice-Massachusetts-Taunton-AttorneyBy: Dina M. Swanson | Partner

You or a loved one may have recently undergone surgery or visited a doctor and unfortunately, did not receive the results you expected. You may be wondering if there is a claim for medical malpractice or just an unfortunate medical result.

Medical malpractice occurs when a patient suffers damage while under the treatment of a medical professional. But what constitutes medical malpractice sufficient that there is a claim against that medical provider? Massachusetts law determines a legitimate medical malpractice claim. Medical malpractice is a form of negligence.


In order to establish a claim for medical malpractice in Massachusetts, one must establish 1) the medical provider was negligent by breaching the standard of care owed to his or her patient; 2) the negligence of the medical provider caused injury to that patient; and 3) the patient suffered damage as a result.


In Massachusetts, expert testimony from a medical provider in the same field as the provider alleged of medical malpractice, must be presented to establish the provider was negligent and the patient suffered damage as a result. Another expert is required to establish the patient suffered damages as a result.


In Massachusetts, a medical malpractice case must be filed in the appropriate court within three (3) years of the date of the injury. However, there are some exceptions to this rule. If the malpractice is not known or reasonably knowable, then the clock for filing an action does not begin until the plaintiff becomes aware of the injury or the malpractice, otherwise known as the Discovery Rule. Once the malpractice and/or injury is known or reasonably knowable, the clock begins to run and a claim must be brought within three (3) years of that time.

An exception to that rule is when medical malpractice involves a child under the age of six (6). In that scenario, suit may be commenced up to six (6) years following the medical malpractice or discovery of the medical malpractice. However, the suit must be brought by the child’s ninth (9th) birthday regardless of the date of discovery.

Although the Discovery Rule extends the time for bringing a medical malpractice action, a deadline for all claims is imposed in Massachusetts by the Statute of Repose. Pursuant to the Statute of Repose, no suit for medical malpractice may be brought more than seven (7) years after the negligent act occurred unless the case involves a foreign object left in the body following a procedure.


In Massachusetts, a plaintiff may not recover in excess of Five Hundred Thousand Dollars ($500,000.00) for pain and suffering, loss of consortium or companionship, embarrassment and any other general damages, unless a jury determines there was a “substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstance in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained.” Mass. General Laws, Chapter 231, §60H.

Furthermore under Massachusetts law, damages against a charitable organization are limited to Twenty Thousand Dollars ($20,000.00). This cap serves to limit the liability against charitable employers, however, it does not cap the damages against a responsible employee, i.e. a nurse or doctor.


A plaintiff who has been damaged by medical malpractice in the state of Massachusetts may make a claim for compensatory damages to reimburse a patient for certain expenses, such as medical costs and lost wages. A plaintiff may also seek non-economic damages for intangible damages, such as pain and suffering.

Lastly, Massachusetts permits a plaintiff to seek compensation for punitive damages which are damages intended to punish the health care provider for willful misconduct. These damages are rarely awarded in Massachusetts, but are available in cases where a patient suffers damage as a result of the willful misconduct of a medical provider.

Medical malpractice cases are extremely complex and can take years to resolve. If you feel as though you or a loved one may have a claim for medical malpractice, it is essential that you act immediately in order to protect your rights.

If you have any questions, concerns or a potential case, please contact our office at (508) 823-4567 or send an e-mail to Attorney Dina M. Swanson at

Protecting your assets, the importance of filing a homestead in Massachusetts

Posted in Blog, Real Estate by on July 13th, 2015

William Rosa | Partner

Homestead-Massachusetts-Taunton-AttorneyA homestead is an essential part of any financial planning and protection package that any individual, irrespective of their circumstances, should take advantage of. A homestead is a statutory creation which provides for extra protection for landowners beyond what the common law provides. In its simplest terms, a homestead is a device which protects the equity of a person’s residence. Equity being the difference between the recorded liens on the property and the home’s value. The Massachusetts’ statute has been amended a number of times and can be found in the Massachusetts General Laws in Chapter 188, Sections 1-10.

The primary purpose of the homestead is to insure that a person or persons principal residence is exempt from creditors using it to satisfy judgments in favor of the creditor. These liabilities of the homeowner can arise out of a variety of circumstances including accidents in which the homeowner was at fault, obligations to creditors which the homeowner failed to pay, or business liabilities if the homeowner operates a business which is not in an entity form that protects that person from creditors.

The owner or owners of the home, who occupy or intend to occupy a house as a principal residence, may file for homestead protection. The residence can be a single family home, a condominium, and, under the newest form of homesteads, a mobile or manufactured home.

The person claiming the homestead can be the sole owner, a joint tenant, or, if married, a husband and wife as tenants by the entirety, a tenant in common, holder of a life estate, or even a person whose property is in trust in which they have a beneficial interest in the trust as an owner. When more than one person owns the home, the homestead exemption may be allocated among them in a variety of manners which is really beyond the scope of this initial discussion.

It is important to note at this point that a homestead is not a substitute for insurance but is merely another device which protects a person’s assets from third-party creditors. It would never be my recommendation to not place liability insurance with the thought that the homestead would protect against all creditors.

The good news for homeowners under the most recent amendment of the homestead law is to provide protection up to $125,000 even if the homeowner doesn’t file a declaration of homestead. If you take the step of recording a declaration of homestead with the Registry of Deeds, then that $125,000 rises to $500,000; and, obviously, the protection is substantially stronger. $500,000 in equity is a substantial amount of money and, therefore, it is unlikely that other than for the most wealthy homeowner, that it will not protect the equity in their home. The Massachusetts legislature has also indicated that they may index that $500,000 so that over time it will rise in accordance with inflation.

Very often a declaration of homestead is filed when you acquire the property; however, at any time during your ownership, you are entitled to file a homestead. It can be done by filing a declaration of homestead (filled out in the proper manner and form) with the Registry of Deeds for the county in which the property is located. We at Wynn and Wynn are more than happy to assist in the preparation of the document. The filing fee charged at the Registry of Deeds is approximately $35; and, once the document has been filed, it remains in full force and effect for as long as you own the property. It is not necessary to record any type of renewal unless the ownership of the property changes.

There are certain claims that, irrespective of the filing of the homestead, are exempt from the statute and for which the homestead does not afford protection. One of the most common exemptions is a lien placed against the property by the Massachusetts Department of Transitional Assistance which relates to payments made to a homeowner. If the homeowner is hospitalized or institutionalized in a nursing home and is unable to pay for their cost of care, a lien may be placed against the property. The lien which the Commonwealth has against the residence for purposes of satisfying the monies owed, are exempt from the homestead and therefore the homestead would not protect an individual from the Commonwealth obtaining that money from the equity in the property.

In addition, there are other exemptions, including the following:

• a sale for federal, state and local taxes, assessments, claims, and liens;
• a mortgage on the home;
• an execution issued from the Probate Court to enforce its judgment that a spouse pay for the support of a spouse, former spouse or minor children;
• upon an execution issued from a court of competent jurisdiction to enforce its judgment based upon fraud, mistake, duress, undue influence or lack of capacity; and,
• a lien on the home recorded prior to the creation of the homestead.

There are a number of other rules and nuances regarding homestead which is beyond the scope of this blog.

In closing, it is important to point out several things. You can only declare a homestead on your principal residence (and there are guidelines to determine what is your principal residence). Unlike the older statute, it is not difficult to refinance your property when there is a homestead in place. You may sell the home at any time. There is an ability to terminate the homestead if your particular circumstances determine that that would be in your best interest. Circumstances can change very quickly and it is imperative that the homestead be filed before any unfortunate circumstance occurs.

I hope that you find this information helpful and I can say with complete confidence that if you own a principal residence in the Commonwealth of Massachusetts, whether or not you have substantial equity in the property, it would make complete sense to investigate the possibility of filing a homestead to take advantage of up to the $500,000 full benefit of the law.

If you have any questions or would like assistance in filing a homestead, please call the attorneys at Wynn & Wynn, P.C. at 1.800.852.5211 or request a free consultation.


Posted in Blog, Business Law by on June 29th, 2015

By: Kevin P. McRoy, esq. | Partner

Recovering-Money-In-Massachusetts-When-Someone-Files-Bankruptcy You are owed money. You have made demand. That didn’t work, so you brought a lawsuit. Maybe you have even received a judgment. Just when you think you’re finally there, you receive a telephone call, or a letter from an attorney, or a notice from the court – the party that owes you money has filed for bankruptcy. Now what? Is all hope lost? Should you just throw your hands up? What should you do? Is there anything you can do?

The Bankruptcy Code is an extremely particular area of the law. The Bankruptcy Court, a branch of the federal court system, is the authority charged with implementing the Code. It is a completely different arena than the civil and criminal courts which people most often deal with. Once somebody (or some entity) files for bankruptcy, a creditor can often automatically think that the debtor is “broke” and that any hope of collection is effectively lost. However, this is not always the case. The nature of the money owed to you, the type of assets owned by the party that filed bankruptcy, and even the type of bankruptcy filed, can affect your ability to collect. Sometimes, the bankruptcy filing, itself, can actually serve to speed up recovery in certain instances.

The Type of Claim

There are essentially three different types of claims which a creditor can hold: secured, unsecured, and priority. The holder of a secured claim is a creditor which received collateral or otherwise has some type of lien on the assets of the debtor. For example, when people buy a home, they often get a loan from a bank, giving the bank a mortgage as collateral for the repayment of the loan. That mortgage lender is the holder of a secured claim. If need be, the bank can look to the property (and sell it via foreclosure) in the event of default or breach in repayment. Other types of secured creditors include parties that have received attachments (whether on real property or otherwise), and other types of creditors, such as a contractor which is owed money and has protected itself through compliance with the Massachusetts Mechanic’s Lien Statute.

An unsecured claim is the exact opposite – there is no collateral or lien which secures the money owed by the debtor. The classic example of an unsecured creditor is a credit card company. Other examples can include parties that are owed money pursuant to contracts, personal loans from family members, etc.

The third type of claim, known as a “priority claim”, is technically an unsecured claim. However, this type of claim receives treatment (and, if possible, payment) prior to general unsecured claim holders (addressed above). The most common examples of this type of claim are claims for unpaid taxes.

The Most Common Types of Bankruptcy Filings

The type, or “chapter,” of bankruptcies which are available depend on several factors: whether the party is an individual or a corporation; the amount of debt which the person or entity owes; the type of debts owed (secured or unsecured); and, even whether the debtor has filed before and, if so, how long ago.

The Chapter 7 Bankruptcy:

The Chapter 7 bankruptcy has historically been the most common type of case. It is, by its very nature, a “liquidation” case, meaning that all non-exempt assets of the debtor are liquidated, or sold, and turned into cash. Any creditors whose claims are secured by the property sold are paid first from the proceeds. If any funds remain, or if there were no liens on the assets sold, those funds would then be used to pay expenses of the bankruptcy estate (trustee fees, commissions, trustee’s attorney’s fees, etc.), and any amounts remaining would then be distributed to priority unsecured creditors and then to unsecured creditors (or at least those who have filed proofs of claim). Many times, a Chapter 7 case is designated as a “no asset” case, meaning that it is anticipated that there will not be any monies available for distribution to unsecured creditors. Both individuals and entities (corporations, LLCs, etc.) can file Chapter 7 bankruptcy petitions.

The Chapter 13 filing:

The second type of most commonly filed bankruptcy petitions is a Chapter 13 petition. Chapter 13 bankruptcy cases are appropriate for individuals with regular income and who have secured and unsecured debts below certain levels. In this type of bankruptcy case, the Debtor will effectively file a “plan” to pay certain claims over a period of time (usually three or five years). Essentially, the excess amount of the individual’s income over expenses is paid to the Chapter 13 trustee (the party assigned with administering the case) on a monthly basis. If an individual does not have a surplus of income over expenses on a monthly basis, he or she is generally not an appropriate Chapter 13 debtor. This type of bankruptcy is not available for companies or corporations – only individuals with regular income.

A Chapter 11 case:

Oftentimes, we hear of companies which have “gone Chapter 11.” This does not mean that the company is going out of business – in fact, it is often the opposite. A Chapter 11 bankruptcy is, quite basically, a reorganization. The company continues in business while its debts are restructured. A Chapter 11 case is complex in nature, as a debtor will propose both a disclosure statement and a plan by which the Debtor proposes to pay its debts, or a portion of its debts over a period of time. The length of the plan will depend upon what payment terms are proposed and the debtor’s ability to generate income. Both businesses and individuals can file Chapter 11 cases.

How Do You Protect Yourself?

What do you do if you find out that a party that owes you money has filed for bankruptcy? Do you go it alone? Do you hire an attorney? It is your decision if you want to hire an attorney. There are particular deadlines by which certain things must be filed (i.e. proofs of claim). There are also certain opportunities that parties have to question the debtor as to assets or how they intend to proceed in the case (such as attendance at a 341 creditors meeting or otherwise taking an examination of the debtor pursuant to Bankruptcy Rule 2004). There is also a finite period of time in which a creditor can file what is called a “proof of claim” in the bankruptcy case. It is critical to note that if there is a deadline for filing a proof of claim and the proof of claim is not filed by that date, and a motion to extend the time for filing a proof of claim has not been filed or allowed, the ability to collect at all from the debtor can be, and is most often, lost.

Are There Any Benefits To the Bankruptcy Filing of a Party That Owes You Money?

Strangely enough, there can be benefits to a bankruptcy filing by a party that owes you money. Pursuant to the provisions of the Bankruptcy Code, a debtor is required to prepare, under oath, and file bankruptcy schedules and statements. These schedules and statements provide some information as to what assets and debts a debtor has, what income they have had over the preceding years, and what claims they may have as to third parties which might entitle them to payments or other assets. Other times, under certain circumstances, the trustee involved can bring claims against debtors in appropriate cases to have assets or payments returned to the debtor. All of these possibilities can lead to an increased payment to the creditor under the right circumstances.

In short, is a bankruptcy filing a death knell for collection efforts? There is no straightforward answer, other than “not necessarily.” However, under the right circumstances, the party that is owed money can actually use a bankruptcy filing as a means to bring the matter to a head and potentially increase its chances of recovery.

Navigating bankruptcy and debt recovery in Massachusetts and Rhode Island can be challenging. If you have any questions or would like assistance with these matters, please call the attorneys at Wynn & Wynn, P.C. 1.800.852.5211 or request a free consultation.

Cars Not Properly Cleaned Off After Snow Storms

Posted in Blog, Personal Injury by on February 5th, 2015

Massachusetts-Defective-Toys Winter has officially arrived here in Massachusetts and with all New England winters come perilous road conditions. Most drivers in Massachusetts have had the unfortunate experience of driving behind a vehicle that was not properly cleaned off after a storm. Oftentimes, a driver, who is either lazy or in a hurry, clears just enough snow off their windshield to see through a small hole. However, as the car warms up, the remaining snow and ice on the vehicle melts and slides off the roof into traffic. Whether the snow falls off a vehicle going 20 miles per hour on a side street or 65 miles per hour on the highway, it adds significant hazard to already dangerous driving conditions.

Failing to properly clean off a vehicle can lead to accidents causing injury, property damage and even death. These consequences can have a profound effect on both the person who suffers as a result of the accident and their loved ones. For this very reason, many states have proposed and enacted laws specifically prohibiting this type of reckless and negligent conduct. In fact, the Massachusetts Legislature has recently proposed legislation prohibiting the operation of a vehicle covered with snow and ice. Additionally, a driver who does not properly clean off a vehicle can be fined under Massachusetts’ impeded operation statute, which provides that, “No person, when operating a motor vehicle, shall permit to be on or in the vehicle or on or about his person anything which may interfere with or impede the proper operation of the vehicle or any equipment by which the vehicle is operated or controlled.” In cases where an injury or death occurs, the driver could also face civil, and even criminal, liability for his or her reckless or negligent behavior.

In the unfortunate event that you or a loved one is injured in a car accident in Massachusetts, the personal injury attorneys at Wynn & Wynn are ready and able to provide you with prompt and thorough assistance. Call our office today 1-800-852-5211, or request your free consultation.

What to do if Injured at Work in Massachusetts

Posted in Blog, Personal Injury, Workers Compensation by on October 3rd, 2014

Massachusetts Workers Compensation. Have you received an injury due to work in Massachusetts.

Have you or a loved one sustained an injury at work in Massachusetts? If you were injured at your workplace it can be a very confusing time. Workplace injuries can cause the employee to lose a time from work which in many cases can lead to severe financial difficulty.

Workers Compensation pays only a percentage of lost wages to an injured Massachusetts worker. Pain and suffering are not paid as a part of Massachusetts workers compensation claims. Hiring an experienced attorney as soon as possible following the workplace injury is essential to ensure that you are compensated fairly for the injury.

Although there is no recovery for pain and suffering under the Massachusetts workers compensation act, many times there is another party, other than the employer or fellow employees, who may be responsible for the injury. In a situation where a third party is responsible for the injury, a negligence claim may be brought against that third party. Examples of when a third party may be responsible for your Massachusetts work injury are; when an injury is caused by a defective product or the negligence of a general contractor or property owner.

Your employer and the insurance companies have attorneys working for them and looking out for their interests. This makes it important for you to know your rights and responsibilities. In order to make sure that you have the best chance possible at being paid fairly you should follow these recommendations.

1. Report the injury to your employer as soon as possible following the proper procedures that the employer has in place for reporting such claims.

2. Keep a detailed account of what happened including the names of any witnesses.

3. Get medical attention as soon as possible.

4. Consult with an experienced attorney as soon as possible to ensure that you are rightfully compensated.

If you have been injured and would like to speak to a knowledgeable attorney please contact us at 1.800.852.5211 or click here to request a consultation.


Using Social Media for your Massachusetts Business

Posted in Blog, Business Law by on August 27th, 2014

cyber-bullyingSocial media is an essential part of any Massachusetts business. The use of social Media in Massachusetts businesses has grown significantly in recent years. The PEW Internet and American Life Project published a recent report showing that 61% of American adults have used social networking websites such as Facebook as of November 2010, the same report shows only 46% had used social networking as of 2009. As the use of social networking and social media increases so must the regulations. Many Massachusetts businesses are using social media as a tool for marketing to potential customers and communicating with customers. Here are a couple of ways to protect your Massachusetts business when using social media.

Create a Social Media Company Policy

It is very important that when any Massachusetts business makes a decision to begin to use social media as a business tool that they do research and develop a social media and networking policy. A social media and networking policy should state what is and is not acceptable when using social media for business purposes. A written policy helps employees of the business to have a clear understanding of what the business considers acceptable and what the business considers unacceptable. Massachusetts businesses should implement a social media policy in order to protect itself by ensuring that its employees do not harm the company’s reputation, and to make sure that the employees are adhering to all laws and regulations that govern the business, for example the policy may prohibit the use of confidential information of customers, or prohibit the sharing of proprietary information. The social media and social networking policy may also state the penalty that an employee may face if they do not adhere to the policy. When a Massachusetts business has a policy such as this in place it limits the business’ liability in any wrongful termination lawsuits that may occur if the business terminates an employee for failure to adhere to the company’s policy.

Running Contest and Sweepstakes

Many Massachusetts businesses choose to use contests or sweepstakes as promotional tools through social media in order to promote their business or reward their customers. In Contests a winner is chosen based on some merit, for example best photo, most votes on a video, sharing social media page to so many people, etc. sweepstakes are giveaways where the winners are chosen by chance. There is a third option which is a lottery. A lottery is a prize drawing where people must pay money to buy a chance to win. The state of Massachusetts highly regulates contest, sweepstakes, and lotteries. If a Massachusetts business does not comply with state laws they face negative consequences including facing civil and criminal liability.
At Wynn & Wynn Attorneys we can help you to understand all the legal guidelines for operating your Massachusetts Business. You can contact us by calling 1.800.852.5211 or by clicking here to request a consultation.


Posted in Blog by on July 31st, 2014


By: Marissa Louro | Law Clerk

cyber-bullyingIn a world where many rely on technology to expedite personal and business communications, it is no surprise that recent decisions in Massachusetts state and federal courts are deeming email conversations contractually binding. Thus, we caution you when pressing “send” based on first glance—for various rulings consider this as a binding action in an agreement.

Last year, the U.S. District Court determined that a valid settlement of a purchase and sale agreement was accomplished through informal e-mail exchanges.[1] Even though a party tried to back out of the agreement prior to the drafting of the formal document, the Court held that the electronic settlement discussions bound the parties, which was evidenced by an e-mail stating, “Let’s finalize,” along with a response requesting the clients’ signatures. This seemingly ambiguous language was made binding based on the parties’ clear expression of mutual assent: an e-mail stating the buyer’s acceptance of the offer and the seller’s response of “Glad we were able to get it done,”  even though no signatures appeared on the pertinent documents

Similarly, an Appeals Court held that two parties intended to be bound by the terms set forth in e-mail exchanges even though an e-mail stated that “the parties did not intend to be bound until a formal settlement document had been signed.”[2] Even in the absence of the formal document, the Court found that the parties’ e-mails demonstrated their intent to memorialize and agree upon the material terms, to which they were now bound.

Sign on the dotted line

Evidently, e-mail exchanges should be viewed cautiously given the high-tech nature of the twenty-first century.

You may also wonder how signatures can be satisfied electronically. This issue was addressed when a Superior Court ruled that an electronic signature or the “from” portion of an e-mail may satisfy the law. [3] Another Superior Court judge held that the Uniform Electronic Transactions Act clearly expresses that electronic documents may satisfy laws that require written memorandums.[4] Therefore, every email may be considered a binding signature.

Explicitly state your intentions

When in doubt, include language that explicitly identifies the nature of the contract—even a method of acceptance, if applicable. For example, this past March, the Court did not recognize a contract as valid and enforceable because the seller failed to accept the offer in the buyer’s specified manner of acceptance. [5] When the buyer sought to have the Court enforce the contract, the Court found that the seller’s language and actions evidenced a rejection.

For your information

Whether electronic agreements are enforceable is a topic that is rapidly gaining popularity in the realm of business and real estate transactions. The court decisions noted above should not dissuade you from electronically negotiating deals; rather, they should make you aware that courts essentially look to what was said and the intentions of the parties.

Your takeaway:along with spell-check, you might want to review your correspondence with your attorneys at Wynn & Wynn before engaging in electronic negotiations, as it could save you time, money, and unwanted litigation. To contact us call 1.800.852.5211 or Click here to request a consultation.



[1] Hansen v. Rhode Island’s Only 24 Hour Truck & Auto Plaza, Inc., 962 F.Supp.2d 311 (D. Mass. 2013).

[2] Fecteau Benefits Group, Inc. v. Knox, 890 N.E.2d 138, 145 (Mass. App. Ct. 2008).

[3] Feldberg v. Coxall, 30 Mass.L.Rptr. 150 (Mass. Super. 2012); see also Mass. Gen. Laws ch. 110G, § 7(a) (stating that “a record or signature may not be denied legal effect or enforceability solely because it is in electronic form.”)

[4] Corporate Development Associates Inc. v. Staples Inc., No. MICV201100958F, 2013 WL 597488 (Mass. Super. 2013).

[5] Host v. Gray, 85 Mass. App. Ct. 1110 (2014).


Developments in Premises Liability

Posted in Blog, Business Law, Personal Injury by on July 31st, 2014


Building Code Violations and Strict Liability

By: James M. McCarthy, Esq.

HomeImgThe Supreme Judicial Court of Massachusetts (“SJC”) recently clarified prior disagreement between the statutory construction and caselaw interpretation of strict liability for violation of state building codes in Sheehan v. Weaver, 467 Mass. 734 (2014). The Court in Sheehan came to a twofold interpretation of strict liability for injuries suffered due to violation of state building codes.  First, the relevant statute was read to apply strict liability to injuries suffered as a result of any building code violations on the premises and not just those pertaining to fire safety. Second, the Court then narrowed the definition of a “building” to which this statute applies. The net effect of this ruling is that strict liability can now be applied to a broader range of code violations but in a more limited class of structures. This decision will have a direct impact on many commercial property owners and landlords.

After a night out drinking with a friend, the Plaintiff, William Sheehan, returned to his apartment that he rented from the Defendants, Jean and David Weaver. The Weavers owned and managed the three story structure in Beverly, Massachusetts that contained a chiropractor’s office on the first floor with three residential units on the second and third floors. Access to Mr. Sheehan’s apartment was provided by an exterior wooden staircase that led to a landing on the second floor.  This landing provided access to one second floor apartment and Mr. Sheehan’s third floor apartment.  The other second floor apartment and the chiropractor’s office were accessed by separate entrances.  While standing on the exterior second floor landing, Mr. Sheehan leaned against the railing which then broke and caused him to fall and hit the pavement below.

The issue of negligence was not taken up on appeal so the SJC focused on the interpretation and application of M.G.L. c. 143 § 51 to this case.  The statute reads, in relevant part:

The owner, lessee, mortgagee in possession or occupant, being the party in control, of a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building shall comply with the provisions of this chapter and the state building code relative thereto, and such person shall be liable to any person injured for all damages caused by a violation of any of said provisions.

M.G.L. c. 143 § 51. The Court addressed two issues with the language of the statute. First, whether § 51 applies to all state building codes or “only those concerning fire safety” as stated in McAllister v. Boston Hous. Auth., 429 Mass. 300, 304 n. 5 (1999) quoting Festa v. Piemonte, 349 Mass. 761 (1965)(“[N]one of the benefits of G.L. c. 143 [§51] is available to persons using stairways and egresses for purposes other than escape from danger from fire.”). Second, the Court discussed the definition of “building” and whether the Weaver’s three story structure should be properly considered the type of construction that the Legislature sought to regulate.

1.         All Building Code Violations Under G.L. c. 143 § 51 Impose Strict Liability on the Party in Control

The legislative history of M.G.L. c. 143 § 51, and the caselaw interpreting it, explains the disconnect between the plain language and real world application of the statute. Prior to 1972, the statute imposed strict liability only for violations of “ sections twenty-one, twenty-four to twenty-eight, inclusive, and thirty…” which pertained to various fire-safety issues. The pre-1972 Massachusetts courts, therefore, only applied strict liability in instances where persons were injured during an escape from a fire.

In 1972, the Massachusetts Legislature repealed that old version of the statute and replaced it with the current version that does not contain any restrictions to fire-related safety issues. Furthermore, the new law applies strict liability to “any” violations of the building codes. Despite the new broader language, however, Massachusetts courts continued to apply judicial precedent and maintained the fire-related restrictions on strict liability. Various reasons were given for this inconsistency in interpretation but the limitations remained as vestiges of the old law.

The SJC has now overturned judicial precedent and brought interpretation in line with the plain language of the statute. “(W)e now overrule the holding in McAllister and determine that, in accordance with the plain language of the statute, and considered in light of the prior legislation it replaced, § 51 applies to any violations of G.L. c. 143 and the State building code.” Sheehan at 741 (emphasis added). As a result, strict liability will be applied to those in control of a building for injuries suffered as a result of any building code violation. The SJC then moved on to determine if the Weavers’ structure qualifies as a “building” under the statute.

2.         The Small-Scale Residential Structure at Issue is Not a “Building” Under G.L. c. 143 § 51

According to § 51, strict liability for a building code violation will be held against a party in control of a “place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building”. In Sheehan, the landlords argued that their structure was not a “building” under the statute and, therefore, the statute should not apply strict liability for their broken railing.

The SJC relied on precedent to determine that the definition of a “building” in this provision needs a narrow interpretation in the context of the other structures listed. Prior caselaw has excluded single-family houses and two-family homes with a rented unit from the definition. The Court determined that the structures listed in § 51 are all “places in which a large number of people gather for occupational, entertainment, or other purposes.” Sheehan at 743. The Court then moved on to apply this analysis to the Sheehan’s mixed use structure that contains a chiropractor’s office on the first floor and residences on the upper two floors.

The SJC held that “in some instances, the term ‘building’ may encompass only a portion of a larger structure.” Sheehan at 744. The Court decided that the Weavers’ structure had a residential portion that was both legally and structurally distinct from the business portion on the first floor. The two areas should be treated separately for purposes of § 51. As the residential portion was not used by a large number of people to gather, and had a separate entrance only used by the residents, it was not subject to § 51. Therefore, strict liability was not applied to the code-violating railing because the residential portion of the structure was not a “building” under the statute.

This decision, at first blush, could send a shiver down the spine of landlords throughout Massachusetts. The SJC has now determined that any violation of state building codes, not just fire-related infractions, that result in injury will lead to the application of strict liability on the owner or person in control. However, the SJC coupled this expansion of the statute with a companion narrowing of structures to which it applies. Strict liability for building code violations shall only apply to structures in which people gather to work, be entertained, or socialize. Furthermore, each structure may, as practicably as possible, be divided up according to primary use and access in order to decide whether strict liability should be applied to certain portions of the structure.

Sheehan v. Weaver has expanded the use of strict liability to instances of injury resulting from any building code violations under G.L. c. 143 § 51. While residential owners and landlords need not lose sleep over this development, their counterparts in the commercial sphere should take notice. Their properties are more likely to be considered a ‘building’ under the statute and expose them to strict liability for injuries resulting from any building code violation.

If you have any questions regarding a personal injury resulting from an accident please call 1.800.852.5211 or request a free consultation by clicking here.


Termination of Employee

Posted in Blog, Business Law by on July 30th, 2014

Termination of employee

By: Anthony T. Panebianco, Esq.

     Massachusetts General Laws c. 149 §148 states that the “employee discharged from…employment shall be paid in full on the day of his discharge.” The law views this as a strict liability offense, meaning that an employer cannot raise any defense as to why the discharged employee was not paid on the date of termination. For example, a defendant employer cannot attempt to show that they mitigated the damage by paying the discharged employee’s wages after the bringing of a complaint, or even the following day. (See M.G.L. c. 149 §150.)

     However, the intent of the employer does come into play when determining what sort of penalty they will face for violating c. 149 §148. Pursuant to c. 149 § 27C, an employer who willfully violates §148 is to face a fine of no more than $25,000 and/or 1 year in prison for a first offense. A subsequent willful offense will draw a fine of up to $50,000 and/or 2 years in prison. If an employer violates §148 without willful intent, said employer will face a fine of no more than $10,000 or 6 months in prison for a first violation. A second violation without willful intent yields a $25,000 fine and/or a year in prison. The Attorney General also has the discretion to issue a written warning or civil citation in lieu of initiating criminal proceedings against the employer.

     Violations of the Massachusetts Wage Act (MWA) have been prevalent in Massachusetts courts over the past five years. While the language of the statute may seem straightforward and explicit, there are always questions of interpretation to be sorted out by courts when it comes to new legislation; including breadth of the statute and elements to be proven by the burdened party. With specific regard to the MWA, there have been disputes as to what is to be considered a “wage” under the law, and thus what exactly needs to be paid to a discharged employee right away.

     In 2009, the Supreme Judicial Court of Massachusetts (“SJC”) examined this issue in Electronic Data Systems Corp. v. Attorney General. In that case, the Attorney General issued a citation to the plaintiff corporation for failing to compensate an involuntarily terminated employee for unused vacation time. The court held that, pursuant to the MWA, the term “wages” includes holiday or vacation payments that are due to an employee under an oral or written agreement. While the MWA does not require employers to provide paid vacation for their employees, such time that is provided under an employment agreement is to be deemed wages for the purposes of the law. Massachusetts courts have also determined that commissions are to be deemed wages under the MWA. As the Appeals Court of Massachusetts held in Suominen v. Goodman Industrial Equities Management Group, LLC in 2011, the MWA “applies… to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee.”

     To state a claim under the MWA, an employee must prove (1) he was an employee under the statute; (2) the compensation he alleges he is owed is a ‘wage’ under the statute; and (3) the defendant did not pay his wage in a timely manner. Micciche v. N.R.I. Data and Business Under c.149, “Employee” is defined as “any person employed for hire by an employer in any lawful employment.”

     Once these elements are proven by a discharged employee, the violations of the MWA by the employer impose strict liability upon the employer. The employer cannot present evidence to the court that it attempted to mitigate its damages with the discharged employee. Massachusetts courts have stressed this point in its decisions in an attempt to make it clear to employers that there is no grey area in these scenarios. Most recently, the SJC held in Dixon v. City of Malden in 2013 that an employer’s failure to pay unpaid wages cannot be mitigated, even by gratuitous payments to the discharged employment. According to the SJC, “a violation of the Wage Act results in damages. It is settled law that the Wage Act ‘impose[s] strict liability on employers…Employers must ‘suffer the consequences’ of violating the statute regardless of intent.” (Emphasis added).

     In sum, all violations of Massachusetts Wage laws are subject now to mandatory treble damages regardless of whether or not an employer has acted in good faith. This is in contrast with the federal law under the Fair Labor Standards Act which provide a good faith employer a defense for their actions. Employers can no longer plead ignorance to the law in this regard. Though it may be difficult to generate an accurate final paycheck on the employee’s last day of employment, employers must make every effort to comply. Even if the payment is delayed by only a single day, there is a technical violation of the Wage Act.

     Employers need to be aware of the possible pitfalls in terminating an employee. One possible solution is to continue with the termination of the employee and advise them that the termination will be effective on a future date (when the company can more readily produce a paycheck). During said time, the employer can state that the employee, while still technically an employee, need not (or may not) report to work during that intervening period.

     You can contact Wynn & Wynn Attorneys with any questions regarding Business Law by phone 508.823.4567 or by requesting a consultation through out website.