Boston Accident Lawyer Blog

A Worcester, Massachusetts gun manufacturer has agreed to pay the families of two men, one of whom was killed and one who was wounded, to settle a Massachusetts wrongful death suit that resulted after the men were shot from a gun manufactured by Kahr Arms.

Before you wonder why a gun manufacturer would be named as a defendant in a civil suit for damages stemming from the use of a gun that it manufactured: Remember, there is always (as here) a story behind the story: You see, the man who shot the victims was an employee of Kahr Arms, who stole the gun from his employer and then used it to shoot the two victims outside a Worcester nightclub in 1999. That employee had a criminal record that his employer never checked into, and the suit alleged that Kahr should have conducted employee background checks prior to hiring the employee, who was quite dangerous. The suit also claimed that the company should have employed better employee theft-prevention methods to prevent an employee from stealing a gun for illegal use, such as installing metal detectors at the plant to prevent employees from stealing the guns they manufactured.

Guzman’s family and the man who was wounded filed a wrongful death suit against Kahr Arms, and eventually Kahr Arms agreed to pay $600,000 to settle the case before going to a jury. As a Boston/Dedham Massachusetts wrongful death lawyer, it’s easy for me to see why the defendant settled this case. Instrumental in the litigation and settlement of the case was the Brady Center to Prevent Gun Violence in Washington, D.C., named after President Ronald Regan’s Press Secretary who suffered a permanent brain injury in the assassination attempt against Reagan. The Brady Center termed the settlement the largest damages payment to date made by a gun manufacturer accused of negligence in the criminal use of a gun.

Certainly, gun fatalities are not the only reason wrongful death suits can be brought against defendants; they can be brought for a variety of legal reasons. If you or someone you care about has lost a loved one and suspects that another person's or party's negligence was to blame, contact us for a free legal consultation. We are very expereinced at litigating thee types of complex cases, and we can guide you to the best legal outcome possible under the circumstances.

This past March, a four year-old boy was killed in an escalator accident at a mall in Auburn, Massachusetts. The boy, Mark DiBona, was pulled by the handrail of the escalator into a 6 ¼ inch gap that existed alongside the escalator. The boy was pulled into the gap that abutted a Plexiglas barrier, and he fell one story to the floor below, suffering devastating head injuries. After doctors determined that the boy suffered extensive and irreversible brain damage, and essentially declared him brain dead, the boy’s parents donated his organs.

Escalator safety inspections are normally conducted by the state. Media reports following this incident caused the Patrick administration to conduct a review of not only when this particular escalator was last inspected and by whom, but also a statewide review of escalator safety inspections in general. This inquiry led to disciplinary action being taken against not only the two inspectors that were responsible for the Auburn mall escalator, but approximately two thirds of the state’s total escalator inspectors, for approving escalators with safety violations that were similar to those that caused Mark DiBona’s death.

Who is legally liable for injuries or death in such a situation? The answer is, potentially a number of different parties. And who brings the suit? When the case involves a fatality, the answer is the executor of the victim’s estate - in this case, the parents of this boy, on behalf of his estate. The potential defendants in a case like this, can be several: The designer of the escalator; the manufacturer of the escalator (if different); the company that installed the escalator; the property owner of the mall, the retailer in whose store the escalator was operating in; the Commonwealth of Massachusetts (who employed the escalator inspectors); and possibly other potential defendants. The legal reason why so many potential defendants are named is because each party may have played a role in the constellation of events that ultimately led to the injury or death that is the result of this suit.

In this case, the defendants named in the suit include the Simon Property Group, Inc., (an owner/operator of the mall where the incident occurred,) Mayflower Auburn LP and the Mall At Auburn LLC (also owner/operators of the mall,) Sears Roebuck and Co. (the retailer in the mall where the escalator was located,) Botany Bay Construction Co. Inc. (the contractor who oversaw construction and installation of the escalator,) and the Schindler Elevator Corp, which designed and manufactured the escalator.

The suit, filed in Worcester Superior Court, represents a combination of elements of traditional negligence, product liability, and Massachusetts wrongful death lawsuits. The ultimate strength of such a case will hinge on information and evidence that is obtained during an extensive discovery process, so it is difficult to predict at this extremely initial stage, exactly how this case will end up. However, in my experience as a Boston/Dedham Massachusetts personal injury lawyer, this type of tragic death case will likely settle prior to trial. I highly doubt that any of these defendants, the total number of which may narrow as discovery moves along, would want to put this case in front of a jury. The prospect of witnesses, including this boy’s parents, describing the events that caused this boy’s death in front of a jury, is not something that most defense attorneys would want to see happen. Additionally, information reportedly discovered so far indicates that the building permits issued by the Town of Auburn for Auburn explicitly called for protective barriers to be used, as part of an escalator replacement that took place previously in that mall.

Lawyers representing the liability insurance companies that insure the various defendants will defend this case. Any final, total settlement will likely be comprised of various settlements separately entered into on behalf of the various defendants involved. As awful as such lawsuits are, it's suits like this that hold negligent defendants accountable for their failures to act as required. Hopefully, the DiBona family’s goals of holding the responsible parties accountable, and hence making future events like this less likely, will be realized. That’s why our civil justice system is structured as it is, and in the vast majority of times, that system works.

The most recent example of how social media has come to bring the culture in this country down even further, is yet another tragic tale: Tyler Clementi, an 18 year-old gay student at Rutgers University, took his life earlier this week by jumping off the George Washington Bridge in New York City. The reason for his suicide: His roommate, Dharun Ravi, and Ravi’s classmate, Molly Wei, secretly videotaped sexual encounters between Clementi and another gay man, and then. according to published media reports, posted the video on YouTube. Humiliated and desperate, Clementi took his life.

The tragic sequence of events began with a Twitter post sent on Sept. 19 by Ravi: “Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay.” Later that night, according to investigators, Ravi used a video camera that he had set up in his dormitory room to live stream Clementi’s intimate encounter on the Internet. Three days later, Clementi, by all accounts a fine person and an accomplished violinist — killed himself by jumping from the George Washington Bridge into the Hudson River. A promising young life that could have brought beautiful music into the world, amidst all the ugliness this world can offer, gone. This is just the latest in a series of deaths by young American, all of which followed the online posting of vicious and hurtful material.

The Middlesex County, New Jersey District Attorney’s office have charged Clementi’s roommate, Dharun Ravi, 18, of Plainsboro, N.J., and Molly Wei, 18, of Princeton Junction, N.J., each with two counts of invasion of privacy for using “the camera to view and transmit a live image” of Mr. Clementi. In addition, Ravi was charged with two additional counts of invasion of privacy for attempting to post a similar live feed on the Internet on Sept. 21, the day before Clementi’s suicide. In New Jersey, the most serious charges carry a maximum sentence of five years.

Social media: “A great way to bring us all closer together”; “A superior technological development”; “A resource to help us understand each other.” These are just some of the descriptions I recall hearing about services such as Facebook, Twitter, YouTube and other such social media sites. It hasn’t really turned out all so rosy, has it? Instead, "social media" seems to have brought out some of the worst parts of the human being: The cruel, the harmful, the amoral and the immoral. Brought us “closer together”? You’ve got to be kidding. Prior to social media and the internet, people actually got together to talk. They’d actually get off their couches and go to see someone, face-to-face. However it may seem a distant memory, that’s how people stayed close and connected. Now, the average person would respond to a suggestion that two social friends actually meet, with a confused annoyance. (“Why would I do that when I can just Facebook or email you?”)All this, in my view, degrades us and alienates us socially, but this blog isn’t about sociology, it’s about Massachusetts personal injury law. So in Part Two of this post I'll discuss the possible civil law ramifications of events like this. In the meantime, let us hope that the criminal justice system in New Jersey, can move fast and effectively in this case.

In my previous post on this story, I discussed the horrific events surrounding the murders of the wife and two daughters of Dr. William Petit, in the 2007 Cheshire, Connecticut home invasion murders. I’ll now discuss why I believe there is a distinct possibility that the Cheshire Connecticut Police Department may possibly be exposed to a civil liability suit for negligence and wrongful death, owing to the police department’s failure to act in a reasonable or timely manner to rescue the Petit family.

To begin with, a (very) quick review of the tort of wrongful death: As I explain on my website page dealing with wrongful death, this is a rather broad legal term that is used to describe a situation where the death of a person would not have taken place under the circumstances that it did, except for some negligence that occurred on the part of another party. The circumstances surrounding a “wrongful death” can be varied: A loved one might have died as a result of medical negligence, a motor vehicle accident, a construction injury, or a defective product. A wrongful death suit is usually brought by a family member or a representative of the deceased victim’s estate. (If such a suit were brought here, the party filing the suit and seeking damages would be the representative(s) of the estate(s) of Dr. Petit’s wife and two daughters. A wrongful death suit seeks the recovery of damages for the surviving family's or the estate's benefit as a result of the victim's death.)

Were such a suit brought in this case, the plaintiff(s) would have to show that, but for the Cheshire Police Department’s failure to intervene in a timely manner to rescue Dr. Petit’s family, Mrs. Petit and Dr. Petit’s two daughters would not likely have perished. This could either be a daunting task, or a fairly easy one, and the success or failure of such a suit would likely come down to expert testimony. The plaintiff(s) would need to produce experts in the field of law enforcement and hostage situations, to show that the Cheshire Police Department’s failure to take any action other than to place themselves outside the Petit home, for almost 35 minutes, was unreasonable given the specific circumstances present.

I do not have immediate access to the formal police report regarding this matter, but, from what I have been able to uncover from published reports, the Cheshire Police Department captain commanding this response ordered his men to stand down and take no rescue measures for almost 35 minutes from the time they were first informed of this situation by the bank manager where Mrs. Petit had first pleaded for help. Police did not approach the house in any manner, other than to establish a perimeter. From what I am aware of at this writing, neither did Cheshire police officials alert the Connecticut State Police, the Cheshire Fire Department, or rescue/EMS personnel. During that entire time, Mrs. Petit and her two daughters were being savagely terrorized, sexually assaulted, strangled, doused with gasoline and murdered.

Recently, at the criminal trial of the two animals who are charged with these murders (and who, it is reported, previously offered to plead guilty if they could be spared the death penalty,) a Cheshire Police Department official explained his Department’s failure to intervene more forcefully as follows: “We had no reason to believe the family was in any immediate danger.” Frankly, given what I know of this incident to date, and the circumstances that were present on that scene, as a Massachusetts wrongful death attorney, I find this statement outrageous.

Legally, if a claim for wrongful death were brought in this case, the plaintiff would have to prove (to a likely standard of ‘clear and convincing evidence’) that Cheshire police officials acted unreasonably given the circumstances that were present. It would not have to be proven that police officials specifically knew that the Petit family was being beaten and murdered while they remained stationary outside (and I don’t infer here that police officials did know this.) All that would have to be shown, is that under these circumstances, it was unreasonable and negligent of police to:

a) Take no intervening rescue action of their own
b) Make no efforts to establish phone or loudspeaker contact with the captors inside the house
c) Fail to alert or call in the Connecticut State Police or SWAT teams
d) Fail to notify or call in the Cheshire Fire Department, EMS or ambulance personnel

To successfully prove this, would involve a “battle of the experts”: The plaintiff(s) would have to produce experts in the field of law enforcement, hostage takings and police crisis management, to persuasively testify that the actions of the Cheshire Police Department deviated from the normal and customary police response that was called for in the type of situation as was presented that horrific day in 2007. The defense, too, would produce its own experts to testify that under the circumstances presented, police officials were not unreasonable in taking – and more importantly, failing to take – the actions they did. As always in such a case, the jury would consider this opposing testimony, along with other evidence in the form of treatises and training manuals from various local, state and federal law enforcement agencies, on the subject of hostage-taking. In the end, the jury would have to weigh all the competing evidence and testimony, and answer a question that in sum, would separately ask as follows:

• “Was the Cheshire Police Department negligent in its actions surrounding this incident?
• “Were the actions of the Cheshire Police Department reasonable under these circumstances?”
• “Did the Cheshire Connecticut Police Department (and any named officials within that Department) deviate from standard or recommended hostage rescue protocol in this situation?”

My questions surrounding the Cheshire Connecticut Police Department’s actions (or inactions) in this matter isn’t a broadside against police in general. I know many fine and talented police officers and law enforcement officials, and in the vast majority of crisis situations, they are the ones who save the day. What really disturbs me about this case, is not only the response of the police commanders on that day, but the present response of the Town of Cheshire’s attorneys. Notwithstanding the adversarial nature of our court system, which as a practicing attorney I respect, there occasionally comes a time to admit when your client is wrong, offer to make any reasonable amends that you can, and sleep at night knowing that you did the morally correct thing. If I were legal counsel for the town of Cheshire, and I believed that police officials acted negligently in this case, my advice would be as follows:

“The Department and the Town has a choice: You can go into court and claim that police did nothing wrong here, and make outlandish, literally unbelievable statements such as “We didn’t believe this family was in any immediate danger." You can then squirm in shame, and look like fools when testimony comes out as to what was being done to Dr. Petit’s family while the town’s police Department waited outside, doing nothing. Or, you can avoid an ugly, tortuous lawsuit by admitting that mistakes were made here; offer sincere apologies to Dr. Petit, offer him reasonable damages under a confidentiality clause, and promise to revamp how such situations are responded to in the future. I could not witness the devastation that resulted to Dr. Petit’s family, and do anything else. Apparently, the attorney for the Town of Cheshire felt it more appropriate to instruct police officials at the criminal trial of the defendants, to offer up “We didn’t believe this family was in any immediate danger.” This attorney may well know facts that I, and the media, have not yet uncovered. Then again, maybe we sleep differently at night.

This would be a tough, and interesting, case to try. If I practiced law in Connecticut, I wouldn’t mind taking this case.

Normally, this story would be posted on my Massachusetts criminal law blog. But I feel that it deserves to be discussed here, for reasons illustrating the legal concepts of negligence and wrongful death. This is an appallingly frightening story, nightmarish in its reality, and stunning in what appears at this time to be shocking negligence on the part of a local police department in Connecticut.

On July 23 2007, at 9:17 AM, a woman walked into a Connecticut bank, and in the process of withdrawing $15,000.00 in cash, explained to a teller as calmly as she could, that her husband and two daughters were being held hostage by two men who had invaded their Cheshire, Conn., home the night before. She told the teller that the armed invaders assured her that if they did not receive this money, that her husband and daughters would be killed. Trying desperately to appear inconspicuous, the woman, Jennifer Hawke-Petit, explained to the teller that she had been driven to the bank by one of the kidnappers, that he was watching her from the car, and also told the teller that the kidnappers had told her (Mrs. Petit,) that if the police were called, the armed invaders would kill her family. The woman then collected the $15,000.00 withdrawn from the account by the teller, and left the bank.

The bank manager was alerted to what had just transpired, and immediately called the Cheshire, CT Police Department. At 9:21 AM, Cheshire Police first learned of the hostage situation. About three miles away, her husband William and daughters Michaela, 11 and Hayley, 17 were being savagely beaten and terrorized by the armed invaders. At 9:26 AM, Mrs. Petit left the bank and got into the car waiting for her. She was closely watched by bank employees, and the bank manager provided a description of the vehicle to Cheshire Police, who were also given Mrs. Petit’s home address. At that same time (9:26 AM,) police cruisers were dispatched to the Petit home, to “set up a perimeter.” At 9:27 AM, a Police Department Captain ordered his officers to not approach the home. For the next thirty minutes, not a single officer approached the Petit home, or did anything to save the Petit family. Within this very time frame, the Petit family was being traumatized, tied up, beaten with a baseball bat, and one of the daughters raped. Worse, during this entire time frame, no other authorities were alerted to this situation by the Cheshire Police Department – not the Connecticut State Police or the State Police SWAT Team, not EMS or medical rescue personnel, not the Fire Department.

At 9:54 AM, police received a call from the Petit’s next door neighbor: Dr. William Petit, beaten by his captors horrifically about the head and face with a baseball bat, had managed to break free from being tied to a post in his basement, and made his way to his neighbor, who had called police. Dr.Petit was beaten so badly and bleeding so profusely that he was unrecognizable to his neighbor. His feet were still tied: He had managed to crawl to the neighbor’s house. By now, almost 40 (forty) minutes had passed from the time the Cheshire Police were first notified by the bank manager – and nothing had been done to rescue this brutalized family. Approximately 2 (two) minutes later, the Petit home burst into flames. Only then were EMS and Fire Department rescue personnel called. By the time firefighters entered the building and found Mrs. Petit and her two daughters, all three were dead: Mrs. Petit had been sexually assaulted, then strangled to death, both daughters died of smoke inhalation; one of them had been sexually assaulted before she died. The first time the Cheshire Police made any contact with these two defendants now on trial, Steven Hayes, 47, and Joshua Komisarjevsky, 30, was when this nightmare ended: Specifically, when the two defendants jumped into the Petit family car and tried to ram their way through police cruisers. Only then it was too late: Dr. Petit’s wife and two daughters lay dead inside his home. To see a video report of this horrific story, click on Cheshire Conn. Home Invasion Murders.

In the current criminal trial of these two defendants, Cheshire Police officials testified that their actions in not trying to enter the home or rescue this family were ‘standard operating procedure.’ I don’t claim to be an expert in law enforcement hostage-situation management, but as a former Special Assistant District Attorney and a Norfolk County Massachusetts criminal defense attorney, I know a thing or two about sound police procedure. I’m also pretty familiar with something called common sense – and neither pass the smell test here. I’ll explain what the legal consequences of this inaction might be, from a civil law and liability perspective, in my next post.

Based on what I’ve learned from available sources as of this date, it appears to me that police officials in this town engaged in a shocking degree of negligence in this case

My apologies for not having posted here for awhile – I’ve been sidelined with either a minor flu or bad cold. Not a big deal; worse things can happen to people.

As the story behind today’s post makes very clear. This is the story of a very promising young student attending Harvard University, where he was embarking on a career toward medical school, and who showed all the promise that one could ask for. Tragically, that promise was cut short when the student, John Edwards of Wellesley, aged 19, committed suicide on November 29 2007. This past week, his parents filed a wrongful death suit against Harvard University, alleging that Edwards received substandard care from the University’s Health Services, which caused or contributed to his suicide.

Edwards originally sought help at the college’s health services office, because he reported that he was unable to study or concentrate for long periods of time. A nurse practitioner at the school’s infirmary prescribed Edwards "Adderall", which is a drug that is designed to treat attention deficit hyperactivity disorder (“ADHD”, as it’s sometimes referred to.) In what I as a Massachusetts medical malpractice lawyer find surprising to say the least, the nurse prescribed this drug, even though Edwards had never been diagnosed with this condition. Some time afterward, when Edwards complained of anxiety and depression, the nurse practitioner also prescribed Edwards two additional medications: Prozac and Wellbutrin, which of course are powerful antidepressants. An important element in all this, is that Edwards was already taking another medication to treat acne, Accutane, and this drug is been widely linked to generating suicidal thoughts in patients who take it.

A few weeks after Edwards was taking both Prozac and Wellbutrin, he emailed this nurse practitioner that he was experiencing increased anxiety, and asked whether his medications should be changed. The nurse practitioner reportedly replied by email that she was concerned over this report, and requested that Edwards come back in to see her. Two days later, Edwards committed suicide by suffocating himself with a plastic bag, in a bathroom at Harvard Medical School. This wrongful death suit, filed by Edwards’ father John B. Edwards II of Wellesley, alleges gross negligence by the nurse practitioner, Marianne Cannon, and also alleges gross negligence on the part of Dr. Georgia Ede, who was Cannon’s supervisor at Harvard’s University Health Services Department. The suit also names Harvard University as a defendant.

A tragic outcome, anyone would say. But why sue these two individuals and Harvard University? What, if anything, did they do wrong?

Two principal legal reasons answer that question: 1) The supervising physician in this matter was responsible for overseeing all of the nurse practitioner’s professional actions – and it appears that she may not have done so. A nurse practitioner is not a physician; is not a psychiatrist, and is not a mental health professional. While nurse practitioners are talented professionals and are authorized to write prescriptions, it does not appear (from what I am aware of) that this nurse practitioner was qualified to be medically treating a patient with two powerful antidepressant, psychoactive medications – especially without requiring that the patient undergo simultaneous psychotherapy with a psychologist or qualified mental health counselor. The supervising physician in this case should have been closely, directly involved with this patient’s care, overseeing all of this nurse practitioner’s actions in the care of this patient. 2) It is well known among the medical profession that the US Food and Drug Administration (FDA) has warned that anyone taking Accutane, Prozac, or Wellbutrin should be monitored closely for suicidal thoughts. Despite these warnings, it does not presently appear that any such steps were taken to monitor Edwards.

I’ll explain the legal implications of these two allegations, in my next post.

In a case that one can only hope will produce civil justice (vs. the criminal justice that's already been obtained,) the parents of a 16-year-old Massachusetts murder victim have filed a $1 million lawsuit against her killer and his mother.

Joshua C. Whitaker, 23, was sentenced to life in the maximum security prison in Shirley, Massachusetts, after being convicted of the grisly murder of Kelsea L. Owens, who was murdered in Hampden, Massachusetts on August 15 2006. At his trial, Whitaker’s defense lawyer admitted to jurors that Whitaker bludgeoned Owens with pruning shears, a log and a set of dumbbells. Whitaker admitted to a paramedic: "I'm a murderer." Testimony at the defendant’s murder trial established that Whitaker’s mother, Linda Whitaker, is the person who initially called police to report "a girl being assaulted and missing."

Now, a wrongful death lawsuit has been filed in Hampden Superior Court against the Whitakers. The suit alleges that Joshua Whitaker had a "long history of violent and deviant behavior," and centrally, claims that Whitaker’s mother, who he lived with, Linda Whitaker, knew or should have known about her son's violent personality, and undertaken efforts or measures to monitor or control it. The Owens' lawsuit alleges that Joshua Whitaker had previously been undergoing psychiatric treatment for violent tendencies, that his mother Linda Whitaker knew this, that she was at home at the time of the murder, and that she should have known her son had not been complying with his psychiatric treatment and medication regimen for a considerable period of time prior to the murder. In legal parlance, the suit alleges that "Linda Whitaker negligently and carelessly failed to properly monitor, supervise and observe Joshua Whitaker, who she knew ... had a history of violent and deviant behavior.” The complaint also accuses the Whitakers of "conscious pain and suffering" and infliction of emotional distress.

I’ve previously written about relatives of murder victims filing wrongful death lawsuits against persons who have been accused – but not yet convicted – of the murder of their loved one. A recent example of this in Massachusetts was the Richard Stryker case, in which the family of Dr. Linda Goudey sued another doctor, Dr. Richard Stryker, for murdering her in 1993. The family won that civil suit, and secured a $15 million judgment against Stryker. To secure payment of that jury verdict, I am sure the family attached all the assets in Stryker’s name that they possibly could – and as a physician, Stryker had the means to make payment, even if not in one lump sum. Illustrating the impact of such wrongful death jury verdicts, Stryker was later charged and convicted in 2008 of hatching an elaborate scheme to produce a “new witness” who he tried to use to obtain a new trial on that civil judgment, in the hopes of reversing the judgment and freeing himself from the prior $15 million awarded to her family. Stryker sits in a jail cell now, convicted not of Linda Goudey’s murder, but of the scheme to defraud the court in attempting to procure a new trial on the wrongful death verdict. When he’s released from prison, he’ll still have that unsatisfied (unpaid) judgment on his back, with interest accrued – and everyone involved can feel good about that.

However, the Stryker case, and its famous forbearer, the OJ Simpson wrongful death suit, both involved defendants that had considerable present financial assets, or possible future financial assets, to pay those judgments. I don’t see any such parallel here, in the civil suit against Joshua Whitaker. He’s about 21 years old, and in all likelihood, doesn’t have and never will have a dime to his name. That’s a further frustration for the family of Kelsea Owens, but it illustrates the central focus of wrongful death suits, and that is to financially punish the defendant for his, her or their acts in causing the death of the plaintiff’s loved one. Assuming an optimistic outcome for this family, and assuming they secure the $1 million judgment they seek, it’s doubtful they will ever receive any substantial money.

However, here’s a critical key: The Owens family appears to be basing its suit against the Whitakers on a negligence theory. The suit is basically saying that Linda Whitaker was negligent in not monitoring her son’s medication to control his violent and deviant behavior. Because this is a negligence claim, any homeowners’ policy that Linda Whitaker may have had at the time, may be accessible to pay any judgment awarded. If the Owens family obtains a financial judgment but there is no liability insurance policy available, they could attach her real estate and personal assets, and force the sale of those assets to satisfy part or all of the judgment. But those assets would need to be worth a considerable amount of money to cover the $1 million this suits demands. Unless they can access some type of very valuable assets in the defendant’s name or his mother’s name, or access a homeowners’ liability policy held by him or his mother, collecting on any eventual judgment is going to be a challenge.

This point illustrates the reality that almost all civil litigation that seeks compensation for personal injuries or the death of a loved one, needs to first identify some type of financial assets that can be accessed to pay any eventual judgment. Most of the time, a policy of liability insurance is involved, but other assets can be attached also. Remember, anyone can be sued for negligence, for any kind of injuries or loss that someone has sustained. If you or someone you know needs to consult with an attorney about negligence and liability issues, please call my office anytime.

Here’s a story of an interesting case involving a Massachusetts Wrongful Death claim. On December 9, 2000, the unthinkable happened to a young couple living in central Massachusetts.

Sherylann Miller, a 38 year-old married woman and the mother of a young girl, had been hired as a restaurant manager by a local KFC-Taco Bell franchise. The store site was still under construction, on Main Street in Clinton, and Ms. Miller was accepting job applications from prospective employees as the site was still being constructed on Dec. 9, 2000, the last day of her life. It was the last day of her life because a particularly pathetic excuse of a human being by the name of Quillie Merle Spray III, a 36-year-old tile setter from Oklahoma who had been hired by the restaurant’s general contractor to work in the restaurant at the time of the slaying, attacked Ms. Miller without any provocation, inflicting six fatal stab wounds to her head and neck. While this psychotic waste of space was later convicted of first-degree murder in Mrs. Miller’s death and sentenced to life in state prison without the possibility of parole, Mrs. Miller is still dead, and this psychotic murderer clearly should never been hired by the General Contractor who hired him. The victim’s husband, Thomas G. Miller was left a widow, and their daughter left without a mother. While, thankfully, criminal justice was served in the conviction of this psychotic murderer, should these victims be left without any civil remedy here?

As a Massachusetts Wrongful death attorney, I can assure you the answer is No. Enter a civil lawsuit against the responsible parties, for "Wrongful Death.” Thomas Miller did just that, filing the civil suit in 2003 as administrator of the estate of his late wife, Sherylann Miller. Named as defendants in the suit were the now-murder convict, Quillie Merle Spray; his brother, Gary Spray, who was working with him at the time of the slaying; and Boss Contractors Inc. of New Hampshire, the general contractor for the restaurant construction.

The suit, which included claims for negligent and grossly negligent wrongful death and conscious pain and suffering, accused the defendants of negligently failing to protect Mrs. Miller from her killer. Her husband alleged in the lawsuit that Quillie Merle Spray III was a substance abuser with a criminal record and a propensity for violence, and that the civil defendants who had control over this restaurant construction could have and should have known this (a principal legal test of negligence in Massachusetts.)

In what is probably a sign of the increased resistance of insurance companies to settle civil tort claims nowadays that clearly call for pre-trial settlement, the defendants and their insurers would not settle this case before trial, and the case proceeded to trial in Worcester Superior Court. At the 11th hour, a settlement was reached this past Tuesday, while the jury was in its second day of deliberations. The trial was entering its fourth week and the jury’s deliberations came to a close without a verdict after the settlement was negotiated. The financial terms of the agreement are confidential.

If you’ll take a look at my website, under the “Wrongful Death” Section of our Practice Descriptions, you’ll see that a wrongful death suit is a particular kind of “tort”: A wrongful death suit differs from other Massachusetts personal injury lawsuits such as product liability, construction site accidents, car accidents, medical malpractice and premises liability/slip and fall cases, in that the actual victim (called the “decedent”) is not bringing the suit. Rather, it is usually a family member or a representative of the deceased victim’s estate. A wrongful death suit alleges that the victim’s death would not have occurred but for the actions or inactions of the civil defendants, and this type of suit seeks the recovery of monetary damages for the surviving family's or the estate's benefit as a result of the victim's death.

Money can never replace the loss of a loved one. Once a tragedy like this strikes, the only thing the law can do is to provide a judicial remedy, assuming negligence can be established on the part of another party, for family members left behind. A wrongful death suit in Massachusetts allows a potential award of damages for the economic and non-economic harm done to the victim’s family. While expert testimony can usually estimate the loss of present and future income potential that a deceased victim of wrongful death would have earned for his or her family, as well as for medical expenses related to the victim’s death, “non-economic” damages compensate the victim’s family for the loss of companionship, love and affection that they will suffer as a result of the victim’s death.

In order to bring a Massachusetts Wrongful Death suit, the suit must be filed prior to the expiration of the Statute of Limitations, or the suit will be forever barred in the future. Hence, if you have lost a loved one due to what you suspect may be the negligence of another, it is extremely important that you speak with a qualified wrongful death attorney as soon as possible after the event which caused the victim’s death. We are very experienced in this area of litigation, and you are encouraged to contact us for a free, no obligation consultation.

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