On Friday, October 4, 2019, the Supreme Judicial Court heard arguments in two cases of significant import to tort law in Massachusetts.  In the first case, GGNSC Admin. Servs., LLC v. Schrader, SJC-12707, a nursing home resident signed an arbitration clause prior to her death limiting her heirs’ wrongful death claims to only arbitration.  The heirs claimed the arbitration clause was unenforceable and that they were not bound by the agreement.  In the second case, Golbranson v. Doherty, SJC-12714, a scuba diver signed a release of liability and a covenant not to sue prior to a fatal diving accident.  His heirs also claimed they were not limited by the release and waiver.

The main issue for the SJC to decide is who does the wrongful death claim belong to: the heirs or the decedent?  An amicus brief submitted by the Massachusetts Defense Lawyers Association (“MassDLA”), penned by MMM&K’s Jennifer Creedon, argued that the wrongful death claim in Massachusetts is solely the claim of the decedent and the decedent can limit or extinguish the claim in his or her lifetime.

Depending on how the SJC rules after oral arguments the world of arbitration clauses and releases could look much different.  If the SJC finds the wrongful death claim to be a claim of the heirs, then the economical avenue of arbitration may not be a viable option and leisure activity companies will have to grapple with heightened liability.  Also, arbitration clauses, which are used in a variety of contexts, are potentially not going to be enforceable against heirs.

Interestingly, the SJC has not definitively decided whether the wrongful death claim is the claim of the decedent or whether it is of the heirs.  The SJC solicited amicus briefs to help answer this question.  In addition to the MassDLA brief, the Professional Liability Foundation, AARP and Massachusetts Advocates for Nursing Home Reform all submitted briefs, indicating the complexity of the issue and the varying interests involved.

The brief filed by the MassDLA highlights the Massachusetts Legislature’s long-standing emphasis on the penal nature of the statute.  The earliest versions of the wrongful death statute emphasize damages to be given in reference to the degree of culpability of the defendant.   In wanting to punish the wrongdoer, rather than compensate heirs, the legislative intent behind the wrongful death statute can be discerned as retribution for the defendant’s acts and impact on the decedent.  Wrongful death recovery was ultimately recognized to be a common law right in Gaudette v. Webb, 362 Mass. 60 (1972), but the essences of the legislature’s intent and the fundamental penal tenets of the statute were acknowledged by the SJC in Gaudette.

The juxtaposition of these two cases, in the nursing home and leisure activity context, makes clear that any change of law is better left for the legislative arena that can interpret policy-based nuance where specific industries and practice can be granted exceptions.  Both general releases of liability and arbitration clauses are favored in both Massachusetts courts and the legislature.  A disruption to the general favorability of releases or arbitration clauses will impact diverse industries.

MMM&K thanks Law Clerk Jacqueline Price for her excellent work on this brief.