Hallett v. Town of Wrentham

• Citation: 499 N.E.2d 1189,398 Mass. 550
• Decision Date: 13 November 1986
• Docket Number: No. N-4102,N-4102
• Court: United States State Supreme Judicial Court of Massachusetts
• Parties: Karen J. HALLETT, administratrix, et al. 1 v. TOWN OF WRENTHAM.

Page 1189

499 N.E.2d 1189

398 Mass. 550

Karen J. HALLETT, administratrix, et al. ¹ v. TOWN OF WRENTHAM.

No. N-4102.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Sept. 11, 1986.

Decided Nov. 13, 1986.

Leonard F. Zandrow, Jr. (Robert L. Farrell and Richard L. Neumeier, Boston, with him), for defendant.

Anthony C. Adamopoulos, Salem, for plaintiffs.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

William Hallett was killed on February 22, 1980, when the car he was driving collided with a Town of Wrentham sanding truck driven by Robert A. Correia, a town employee. ² Karen Hallett, the deceased's widow and administratrix, filed a wrongful death action against the town, and subsequently amended her complaint to add the three children of the deceased as separate plaintiffs seeking damages for loss of their father's society. Over the defendant town's objections, ³ a judge of the Superior Court permitted the separate claims to proceed before a jury. The jury found Correia seventy per cent negligent, and Hallett thirty per cent negligent, and awarded damages of $575,000 for the loss of the decedent's reasonably expected net income, $25,000 for Karen Hallett's loss of her husband's consortium, and $50,000 for each of the three children's loss of parental society. The town moved that judgment be entered in the amount of $100,000, the maximum recovery under G.L. c. 258, § 2, and that the three children's $50,000 awards be dismissed on the ground that there is no separate recovery for the children outside the wrongful death statute, G.L. c. 229, § 2. The judge combined Karen Hallett's $25,000 consortium award with the $575,000 for loss of income, and reduced it to $100,000. The judge ordered judgment in the amount of $50,000 for each child. Both parties appealed, and this court granted direct appellate review.

The town raises three issues on appeal. First, the town argues that the judge erred in permitting separate recoveries outside the wrongful death statute for the children's loss of parental society. Second, the town contends that the judge committed reversible error when, after the town's expert on accident investigation testified, over objection by the plaintiffs, that skid marks at the accident site were caused by Hallett's car, the judge said to the jury that his opinion involved "an area in which you as lay people, I believe, have as much knowledge as he does." Finally, the town appeals the judge's refusal to give an "emergency" instruction as part of his charge on negligence.

The plaintiffs also appealed, arguing that the $100,000 cap is unconstitutional, or in the alternative that each consortium award under the wrongful death act should be subject to a separate $100,000 cap.

There was evidence that the Hallett vehicle was proceeding westbound on West Street and the town truck was proceeding eastbound on West Street when the two vehicles collided, causing Hallett's death. A principal issue for the jury was to determine which vehicle was proceeding on its wrong side of the highway.

1. The town's first contention is that the judge erred in entering separate judgments for loss of parental society for each of the victim's three children in addition to the wrongful death and loss of consortium claims brought by Karen Hallett, the wife and administratrix of the deceased. The town argues that the children's claims for parental society should have been joined with Karen Hallett's claims for loss of consortium and wrongful death for the purpose of applying the $100,000 cap on recoveries from the government under G.L. c. 258, § 2. The plaintiffs, on the other hand, argue that the deceased's children have independent claims for loss of society. Therefore, they argue, under the "per plaintiff" construction of the $100,000 cap announced in Irwin v. Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984), the children's recoveries for loss of society should each be separately considered in applying the cap.

We conclude that the $100,000 limitation imposed by G.L. c. 258, § 2, applies to all claims comprised by the wrongful death statute, G.L. c. 229, § 2. ⁴ The cap should be applied to the sum of recoveries for which the wrongful death statute provides. See Doyon v. Travelers Indem. Co. of Am., 22 Mass.App.Ct. 336, 338-339, 493 N.E.2d 887 (1986).

The plaintiffs contend that claims for loss of society stand independent of G.L. c. 229, § 2, and the plaintiffs have the option of recovery either under the statute or independently. Thus, the plaintiffs argue that each beneficiary's claim for society must be treated as a separate "plaintiff" under Irwin v. Ware, even if nominally brought in a single action by the executor or administrator of the deceased. ⁵

The origin of the wrongful death statute and its relationship to the common law were discussed at length in Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222 (1972). Prior to Gaudette, it was generally asserted "that there is no common law basis for a cause of action for death, and that such a cause of action in this Commonwealth is wholly a creature of our death statutes." Id. at 66, 284 N.E.2d 222. Consequently, it was argued that the limitations period for commencing an action under the death statute limited the rights as well as the remedy, rendering the tolling provisions of the general statute of limitations of G.L. c. 260, § 1, inapplicable to a wrongful death action under G.L. c. 229, § 2. Id. at 66-67, 284 N.E.2d 222. In rejecting that contention we stated that "the law in this Commonwealth has also evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin.... Consequently, our wrongful death statutes will no longer be regarded as 'creating the right' to recovery for wrongful death. They will be viewed rather as: (a) requiring that damages recoverable for wrongful death be based upon the degree of the defendant's culpability; (b) prescribing the range of the damages recoverable against each defendant; (c) requiring that any action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries; and (d) requiring that the action be commenced within the specified period of time, as a limitation on the remedy and not upon the right" (emphasis added). Id. at 71, 284 N.E.2d 222.

Based on the holding that the actions for wrongful death are of common law origin, the plaintiffs in this case reason that they had the option of collecting under the death statute, or of waiving recovery under it and proceeding with independent claims for loss of parental society. The plaintiffs seek support for their position in this court's recognition that the spouse and children of an injured person may be entitled to recover for loss of consortium and society. Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 516, 413 N.E.2d 690 (1980) (children may assert claim for loss of society of injured parent). Diaz v. Eli Lilly & Co., 364 Mass. 153, 167-168, 302 N.E.2d 555 (1973) (holding that either spouse may assert consortium claim arising from negligent injury to other spouse). See Feltch v. General Rental Co., 383 Mass. 603, 608, 421 N.E.2d 67 (1981) (consortium claim independent of injured spouse's claim for damages, thus recovery not reduced by injured spouse's comparative negligence). The plaintiffs have misinterpreted our holding in Gaudette. Although in that case we held that the statute did not create the right to recovery for wrongful death, we also held that the statute would be viewed as "requiring that any action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries." Id., 362 Mass. at 71, 284 N.E.2d 222. Gaudette does not stand for the proposition that the requirements of the statute may be disregarded. Instead, that case held that the right underlying a wrongful death action was of common law origin, and the death statute specifies the procedure and recovery.

Neither do Diaz and Ferriter create an independent right of recovery for lost consortium where the victim suffers death rather than injury. Prior to Diaz and Ferriter, wives and children could recover for loss of consortium under the death statute, but not under common law. Diaz, supra, 364 Mass. at 167-168, 302 N.E.2d 555. Ferriter, supra, 383 Mass. at 515-516, 421 N.E.2d 67. This court reasoned in Ferriter: "We think it entirely appropriate to protect the child's reasonable expectation of parental society when the parent suffers negligent injury rather than death." Id. The plaintiffs now seek to use Ferriter to establish a right to recovery apart from the death statute for loss of society resulting from a wrongful death. The statute, however, provides for such a recovery, and determines the procedure for bringing an action.

The wrongful death statute provides for a single action brought by the decedent's executor or administrator. The executor or administrator presents all claims by the designated beneficiaries for damages flowing from the wrongful death. See Gaudette v. Webb, supra, 362 Mass. at 72, 284 N.E.2d 222 ("administratrix ... acts merely as a representative or conduit for the children's recovery"). General Laws c. 229, § 2, provides, "Damages under this section shall be recovered in an action of tort by the executor or administrator of the deceased. An action to recover damages under this section shall be commenced within three years from the date of death ..." (emphasis added). Moreover, the statute provides for the elements of recovery, including "services, protection, care, assistance, society, companionship, comfort guidance, counsel, and advice of the decedent...." Thus there can be only one plaintiff in a wrongful death action who asserts all claims by the designated category of beneficiaries for damages resulting from wrongful death. See Minkley v. McFarland, 371 Mass....