In two cases at the end of February, the Massachusetts Supreme Judicial Court made clear that a person's express disposal of a negligence claim can preclude a later wrongful death suit by family. In other words, Massachusetts wrongful death claims are derivative, not independent, of a decedent's rights.
"Wrongful death" and "survival" actions are creatures of
19th-century statute in Anglo-American law, the historic common law
having extinguished all causes of action upon death—for curious
historical reasons that I won't explicate here. Formally, "wrongful death" is an action by
surviving family for their losses, upon the occasion of the decedent's passing. "Survival" is an action by the estate on
behalf of the decedent, as if the decedent had lived. However, this distinction is often blurred in law, as the actions are brought together as "wrongful death" under Massachusetts statute, and is often blurred in fact, as a single person may stand as a family member and estate representative at the same time. However the actions are characterized in court, wrongful
death and survival have become so universally entrenched in
Anglo-American tort law, often upon sparsely worded and rarely
amended statutes, that they function in the courts very much like common
law causes of action, subject to interpretation in deep bodies of case law.
In one of the February cases, Jackalyn Schrader, acting with power of attorney for her mother,
Emma, signed a "voluntary and clearly labeled" commitment to arbitrate disputes upon admitting Emma to residence at the Golden Living Center-Heathwood, in Chestnut Hill, Mass., in February 2013. After Emma died in December 2013, Schrader brought a wrongful death claim under Massachusetts statute, in federal court, alleging that nursing home negligence caused bedsores, leading to Emma's death. Schrader sought to evade the effect of the arbitration agreement by pointing out that she had not signed it in her personal capacity, and state law vests a wrongful death claim in family.
In the second of the February cases, Margaret C. Doherty, as representative of the estate and the decedent's statutory beneficiaries, sued in wrongful death upon a 2014 diving accident that took the life of her son-in-law, 37-year-old
Gregg C. O'Brien. O'Brien "was a certified open-water scuba diver [and] drowned while participating in a promotional diving equipment event that was sponsored by [defendants] and held in Gloucester," Mass. Before participating in the event, O'Brien had signed:
a release from liability which had several subsections that were set forth in all capital letters and underlined, including "effect of agreement," "assumption of risk," "full release," "covenant not to sue," "indemnity agreement," and "arbitration." In capital letters under the subsection titled "effect of agreement," it said, "Diver gives up valuable rights, including the right to sue for injuries or death." It also told the decedent to read the agreement carefully and not to sign it "unless or until you understand." ... [T]he subsection titled "covenant not to sue" stated that the decedent agreed "not to sue ... for personal injury arising from scuba diving or its associated activities," and that the decedent's "heirs or executors may not sue."
Asserting defendants' negligence, Doherty sought to evade the effect of the release by pointing out that the statutory beneficiaries were not party to any agreement.
 |
| Associate Justice David A. Lowy |
In Schrader's case, the First Circuit certified a question to the Supreme Judicial Court to determine whether a wrongful death action in Massachusetts is independent of a decedent's action, so Schrader would be free of the arbitration agreement, or bound by the decedent's action, so Schrader would be bound by the arbitration agreement, even though she signed it only on behalf of her mother. Schrader might have understood that her theory under statute was weak, because she sought to play up the court's power to evolve wrongful death law beyond the text of statute. The court agreed that it had considerable power to evolve wrongful death as a function of common law. At the same time, though, the court insisted that its job begins with statutory interpretation. Resorting to the text of Massachusetts's first-in-the-nation, 1840 wrongful death statute, and in accordance with the weight of authority in other states, the court found the derivative nature of a wrongful death claim inescapable. Schrader must therefore seek relief under the arbitration agreement.
In Doherty's case, the Supreme Judicial Court cited its decision in
Schrader and likewise concluded, affirming, that the claims on behalf of the decedent's statutory beneficiaries were derivative and not independent of the decedent's rights. "Therefore ... the valid waivers signed by the decedent preclude the plaintiff, as [O'Brien's] 'executor or personal representative,' from bringing a lawsuit ... for the benefit of the statutory beneficiaries."
The cases are
GGNSC Admin. Servs., LLC v. Schrader, No. SJC-12714 (Mass. Feb. 27, 2020) (
Justia;
Suffolk Law), and
Doherty v. Diving Unlimited Int'l, Inc., No. SJC-12707 (Mass. Feb. 27, 2020) (
Justia). Justice David A. Lowy wrote both decisions for a unanimous court.
