Practice pointers prevent potentially painful pitfalls

Issue March 2015 By Nicholas D. Cappiello and Paul J. Klehm

Attorneys in Massachusetts are faced with strict notice requirements in a wide variety of tort actions. There are many statutory provisions to know, and failure to fulfill any critical notice provision could be fatal to a client's claims. Furthermore, there are exceptions and remedies to know should your client fail to comply with a particular notice provision. The following (non-exhaustive) survey of some of the notice requirements might serve as a handy reference when a potential client calls.

Bringing a dram shop action is not as simple as filing a case against the appropriate defendant(s) within the appropriate timeframe and then initiating discovery to determine whether a defendant knew that a patron was intoxicated and/or who was at fault for over-serving a patron. Under Massachusetts law, the plaintiff must specify, with particularity, the claims against each dram shop defendant, and the basis for those claims, in a supporting affidavit setting forth evidence that the defendant dram shop defendant knew or reasonably should have known that it was serving alcoholic beverages to an intoxicated person.1

The supporting affidavit must be either: 1) attached to the complaint at the time of filing; or 2) filed within 90 days after the filing of the complaint. The rationale behind the requirement is to weed out frivolous and non-meritorious claims at the outset in an effort to reduce liability insurance costs for establishments that serve alcohol. The practical effect for dram shop plaintiffs and their attorneys is that they need to have all their ducks in a row when they file suit, because the consequences for failing to comply with the affidavit requirement include dismissal. By statute, the dram shop defendant is entitled to file for summary judgment if the plaintiff fails to file the supporting affidavit within the prescribed timeframe.

While it is obviously advisable to comply with affidavit requirement within the 90 days required by statute, the court has the discretion to enlarge the time in which to file the affidavit.2 Therefore, failure to file the affidavit within the statutory time period may not be fatal to the case if the proper motion is filed and the court allows the motion.3 But again, this requires the attorney to be aware of the affidavit requirement and to take affirmative steps to preserve the client's rights by moving to enlarge the deadline.

M.G.L. c. 231, § 60L

In November 2012, a new statute went into effect requiring medical malpractice plaintiffs to provide the defense with six months' notice of their intent to file a claim before actually filing the claim. The notice requirements are very specific and failure to comply could result in dismissal of the claim. There also some very important exceptions to the notice letter requirement, as well as some practical considerations that are not explicitly addressed by the statute.

First, the notice letter must identify the defendant, set forth the factual basis for the claim, explicitly set forth the standard of care required of the defendant, the plaintiff's specific allegations of the defendant's deviation(s) from the standard of care, what the defendant should have done to comply with the standard of care, the causal connection between the negligence and injuries and damages. The notice letter must also list any other potential defendants who were negligent and the fact that, they too, are receiving a notice letter.

Second, after serving the letter on the defendant, the plaintiff must wait 182 days before filing. Within 56 days of giving notice to the defendant, the plaintiff must give the defendant access to all relevant medical records, including executed authorizations allowing the defense to obtain those records. The statute gives the defense up to 150 days to respond to the plaintiff's notice letter. If the defendant fails to respond to the plaintiff's notice letter and the plaintiff ultimately prevails at trial, then the plaintiff is entitled to interest dating back to the date of the notice letter rather than the date the complaint was filed. However, the additional interest is not automatic. To preserve the right to the additional interest, the plaintiff must notify the court in the complaint "or by any other means" that the defendant failed to respond to the notice letter.4

There are a number of additional considerations to the timeframes set forth in the statute. First, the plaintiff need only provide 90-day notice to a defendant if 182-day notice has already been given to another healthcare provider. In other words, the plaintiff is only required to give 90-day notice to a defendant before moving to amend an existing complaint to add a defendant. Likewise, if during the pendency of the 182-day waiting period, the plaintiff discovers the identity of another potential defendant, then the plaintiff must serve that additional defendant with a notice letter and has to wait 90 days, not 182 days, before filing against that defendant.

Another important exception to the notice letter requirement centers around the proximity to the statute of limitations or the statute of repose. A plaintiff is not required to serve a notice letter if the claim is filed within six months of the statute of limitations or within one year of the statute of repose. Therefore, a practical consideration for plaintiff's counsel is whether to serve a notice letter at all if the six month mark to the statute of limitations, or the one year mark to the statute of repose, is approaching, or whether to wait until either of those dates arrives so that suit can be filed without the need to serve the notice letter. On the other hand, there may be advantages to serving the notice letter if liability is clear because it is possible the notice letter will prompt pre-suit settlement discussions.

While the statute of limitations and statute of repose exceptions are relatively straightforward in the event of a new case that has not yet been filed, the statute does not expressly set forth the inter-connection with the doctrine of relation back and whether the notice letter is required in the event that a plaintiff seeks to amend the complaint to add a defendant to an existing lawsuit more than three years after the cause of action has accrued. While the argument certainly exists that the plaintiff is exempt because they are within six months of the statute of limitations, an argument can also be made that the statute of limitations is irrelevant given the doctrine of relation back (assuming there are no statute of repose considerations), and therefore the plaintiff is required to provide the 90-day notice set forth in the statute.

There is also no notice requirement if there was no reasonable way for the plaintiff to identify the individual defendant before filing suit. For instance, if the medical records do not identify the negligent individual or entity, and there was no reasonable way to ascertain his/her identity pre-suit, then a notice letter is not required.

Lastly, within the 182 day period, the plaintiff may file the case at any time after receiving written notice from the defense denying the claim.

The statute lays out all of the requirements in detail. This overview is not meant to include an exhaustive list of the requirements, but instead an illustration of the current procedural constraints and prerequisites to filing for medical malpractice in Massachusetts. Failure to comply with the notice requirements may be grounds for dismissal of the claim.

M.G.L. c. 84

When a new client calls with a personal injury claim caused by snow and ice conditions, or from a defect in a public way, counsel must quickly assess whether the claimant must give notice under M.G.L. c. 84 within 30 days of the date of injury in order to preserve the claim. Counsel must review the statute carefully, and, further, should look for other potential defendants, especially to the extent that certain claims against a municipality or the commonwealth may be subject to relatively small monetary limits.

Pursuant to M.G.L. c. 84, §15, an individual injured by defect on a public way may seek damages, generally limited to a maximum of $5,000, from the municipality or person by law obligated to repair the defect. The defect must be the sole cause of the injury - neither the claimant nor any third party can be a cause, in part, of the injury.5 M.G.L. c. 84 provides the only remedy against a municipality and the commonwealth for personal injuries or damages from a defect or want of repair upon a way.6

A claimant seeking to recover for bodily injury or property damage (but not for wrongful death) from defects upon a way must give notice in writing to the municipal authority or quasi-municipal authority, like the Massachusetts Bay Transportation Authority or the Boston Water & Sewer Commission, within 30 days of the date of injury. M.G.L. c. 84 §§ 15, 18.7 The 30-day limitation on notice and the three-year statute of limitations mandated by M.G.L. c. 84 §18, also apply to personal injury claims brought against the commonwealth for defects causing an injury on state highways, for which the limit of recovery is only $4,000. See M.G.L. c. 81, §18. The defendant must receive the notice within the 30 days.

Chapter 84 also deals with snow and ice claims. A claimant must give appropriate notice to a municipality or person obligated by law to maintain a way for injuries caused by snow and ice claims within 30 days.8 A municipality will not be liable for any injury on a public way caused by snow or ice if the area was "otherwise reasonably safe and convenient for travelers," which appears to mean that snow and ice, without some accompanying defect, is not enough to demonstrate the liability of a municipality.9 The failure to give notice for a snow and ice claim to a municipality is not a defense unless the defendant can show prejudice from the lack of notice.10 Since the statute allows for 30 days to give notice to the defendant, during which time weather conditions change daily (thereby changing the condition of the snow and ice), a defendant may have difficulty demonstrating prejudice.

When a claimant suffers an injury from snow and ice on private property, M.G.L. c. 84 §21, which includes a 30-day notice provision, applies. While there is some confusion regarding whether the claimant must provide timely notice to a private landowner, the prudent claimant will deliver a notice letter within 30 days, or as soon thereafter as possible.11 Under §21, the private landowner will have to show prejudice in order to assert lack of notice as a defense.

The written notice must include the claimant's name and full address, and the time, place and cause of the injury or damage. M.G.L. c. 84 §§18, 19. The notice needs to describe the location with sufficient detail so that the defendant may identify the location and conduct an investigation.12 If the injured person dies within the initial 30 days, then the notice must be given within 30 days of the appointment of the personal representative, and, if the minority or physical or mental incapacity of a person renders the giving of notice within 30 days impossible, then the time for sending the letter is tolled until the disability is ended.13

Other Personal Injury Claims

The following section discusses personal injury claims against the MBTA, which do not arise from defects in a public way or snow and ice claims. When first contacted by the client regarding a claim against the MBTA, counsel must take care to determine which statutory scheme applies to the claimant's set of facts.

From 1964 to 2009, claimants were required to commence personal injury actions against the MBTA within two years after the date of injury or death. See M.G.L. c. 161A, §38. In 2009, the legislature removed the two-year statute of limitations for claims against the MBTA and expanded the term "public employer" under M.G.L. c. 258 to include the MBTA.14 As a result, the presentment requirements of c. 258 now apply to tort claims against the MBTA (other than claims for defect in a public way and snow and ice claims), and claimants must send a proper letter within two years of the accrual of the cause of action. If the MBTA has not responded to the claim within six months, the claim is deemed to be denied.15 Once the claim is denied, the claimant may commence an action against the MBTA, keeping in mind that the claimant must file the action within three years of the accrual of the cause of action.16

A claimant who fails to make presentment within two years may be able to extend the deadline for making presentment (and the statute of limitations) under the discovery rule if the claim is inherently unknowable.17 The minority or mental incapacity of the claimant generally does not toll the time for presentment, although the statute of limitations may be tolled on that basis.18

  1. See Courtemanche v. Beijing Restaurant, Inc. , 490 F.Supp.2d 107, 110 (1st Cir. 2007) and Cimino v. Milford Keg, Inc., 385 Mass. 323, 327-28 (1982).
  2. See Croteau v. Swansea Lounge, Inc., 522 N.E.2d 967, 969-970 (1988)
  3. See Beijing Restaurant, Inc., 490 F.Supp.2d 107, 110 (1st Cir. 2007), and Cimino v. Milford Keg, Inc., 385 Mass. 323, 327-28 (1982) (although supporting affidavit not filed within 90 days, failure to file the affidavit was not fatal to the plaintiff's case).
  4. M.G.L. c. 231, § 60L (h)
  5. Carroll v. City of Lowell, 321 Mass. 98, 100 (1947).
  6. See Ram v. Town of Charlton, 409 Mass. 481, 485 (1991).
  7. See Wolf v. Boston Water & Sewer Commission, 408 Mass. 490, 492 (1990).
  8. M.G.L. c. 84 §18.
  9. See M.G.L. c. 84 §17; Intrilligator v. City of Boston, 395 Mass. 489 (1985).
  10. M.G.L. c. 84 §18.
  11. There may be no requirement to give notice of a snow and ice claim to a private landowner, see Perry v. Medeiros, 369 Mass. 836, 843 n. 5 (1976), but the wiser course is to serve the notice within the thirty days. See 37A Mass. Prac., Tort Law, §21.9 (3d ed.).
  12. See M.G.L. c. 84 §20.
  13. See M.G.L. c. 84 §19.
  14. See M.G.L. c. 161A §38; M.G.L. c. 258 §4.
  15. M.G.L. c. 258 §4.
  16. Idsee also M.G.L. c. 260 §2A.
  17. See Krasnow v. Allen, 29 Mass.App.Ct. 562, 567 (1990); Heck v. Commonwealth, 397 Mass. 336, 340 (1986).
  18. M.G.L. c. 260 §7; see George v. Town of Saugus, 394 Mass. 40, 41 (1985) (minority); Heck, 397 Mass. at 339 (mental incapacity).

Nicholas D. Cappiello is a partner at the firm of Lubin & Meyer PC. Cappiello dedicates his practice to medical malpractice and general liability litigation. He has secured several multimillion dollar settlements for injured clients in both Massachusetts and New Hampshire, and has contributed to several record-setting jury awards in both Massachusetts and New Hampshire.

Paul Klehm is a civil litigation attorney who is a member of the MBA's Civil Litigation Section Council. He is a partner in the Andover law firm of Krasnoo, Klehm & Falkner LLP, and he is the immediate past president of the Lawrence Bar Association. Klehm handles business disputes, civil rights and personal injury matters.