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Participating in any sport entails the risk of being injured.  In 2006, for example, more than 1.4 million sports injuries occurred in just five team sports (basketball, football, baseball, softball, and soccer).[1]  More than 250 high school athletes died participating in sports between 1982 and 2002.[2]  More than half of all sports injuries occur at practice.[3]  To a large extent, injuries are a normal, foreseeable and unavoidable part of athletic competition and each athlete accepts the normal risks of his or her sport. 

Sometimes, however, an injury results from unusual risks that the athlete cannot be regarded as having accepted.  While a football player can foresee the possibility of injury from being tackled, he neither expects, nor consents to another player intentionally injuring him.  Likewise, while golf naturally entails a risk of being hit by a flying ball, a golfer is entitled to expect the course to be laid out to minimize that risk and need not anticipate the course owner’s negligent failure to erect screens where balls hit by golfers playing one hole are likely to rain down on golfers playing a different hole. 

For such unusual injuries, which arise not from the natural risks of the game but from the negligent or intentional conduct of other participants, coaches or facility owners, the injured athlete may have a legal claim for damages.  On the other hand, when determining whether an injured athlete has a valid claim, a court will also take into account society’s countervailing interest in encouraging athletes and coaches to play hard, without fear of being sued.  It is a delicate balance.

Injuries caused by other athletes.

The Massachusetts courts recognize that, although we want to encourage vigorous competition, “some of the restraints of civilization must accompany every athlete on to the playing field….  Reasonable controls should exist to protect the players and the game.”  Like many other states, Massachusetts law allows an athlete injured by another player to recover damages only upon a showing that the other player’s conduct was more than merely a rule violation, and more than ordinary negligence (a lack of reasonable care under the circumstances).  Instead, the defendant player must have acted with reckless disregard for safety (or intent to injure).  Conduct is reckless where the actor knowingly disregards an unreasonable risk that his conduct is very likely to result in harm to another person.  While a person may be negligent due to his or her failure to appreciate a risk of harm, reckless conduct requires that the risk be known but disregarded.  Thus, the courts set the bar quite high when an athlete attempts to sue another player.

Notably, the recklessness standard applies to all levels of competition, from a child’s game of kickball to a professional sporting event.  It also applies not just to contact sports, where a player impliedly consents to an increased risk of injury, but also to non-contact sports like golf.  It even applies where the participants are engaged in a consensual recreational activity that lacks defined rules or customs.  

However, the recklessness rule does not govern cases where the injury, though occurring in the general context of a sporting event, does not arise from the sport itself.  For example, one court has held that where two golfers were traveling between holes in a golf cart, and the negligence of one caused the other to fall out of the cart, the injured golfer’s lawsuit against the golf cart driver was governed by the less demanding ordinary negligence standard, not recklessness, because driving a golf cart is not an essential part of the sport of golf.   

Suits against coaches or the schools that employ them.

Injured athletes may attempt to sue their own coach for negligent training, supervision or choice of protective equipment, among other things.  The athlete might also assert a claim against the school that employs the coach or against an opposing team’s coach for allowing the other team’s players to play too aggressively.  

If the coach is employed by a public school or public college, then the Massachusetts Tort Claims Act (“MTCA”) renders the coach a, public employee, immune from suit.  The school or college, however, as the public employer, can be sued, subject to damage limits set forth in the MTCA and perhaps also the limitation on damages against a charitable institution.  Suits against private schools and colleges, and the coaches they employ, are not subject to those limitations.  However, a Massachusetts statute protects from suit any coach, manager, umpire or referee who as a volunteer (without pay) works in a sports program serving children 18 or younger.  A Little League baseball coach is a good example. Such a volunteer coach can only be sued for intentional or grossly negligent misconduct, not for simple negligent failure to exercise reasonable care.

A claim against the coach of an opposing team is difficult to maintain.  To hold such a coach liable for injury inflicted by one of his players, the plaintiff athlete must show that the coach had some reason (such as a prior incident) to expect his player to engage in violence, or that the coach instructed or encouraged the player to do so.  A coach will not be held liable based simply on his aggressive coaching demeanor during the game unless the plaintiff is able to show that the coach’s conduct was reckless.  Nor will a coach be held liable based only on a failure to remove from the game a player who was breaking the rules and later injures the plaintiff athlete.  It is the referee’s responsibility to police the game.

Many, in fact the majority of, sports related injuries occur during practices rather than games.  The Massachusetts courts have shown a willingness to allow claims by injured athletes against their own coaches or the schools/colleges that employ them.  In one case, the Appeals Court affirmed a trial court jury verdict awarding damages to an MIT pole vaulter who, after being injured in a bad landing from a practice vault, sued the university, the pole vaulting coach and the overall track and field coach, alleging that they had not provided a properly designed cushioned landing pit, had not properly trained, instructed or supervised his practice, and had not provided him with the proper equipment.  The Court upheld the verdict noting that the accident was reasonably foreseeable to the defendant coaches.

In another case, a University of Massachusetts cheerleader sued her coach and the university after she was injured in a fall during cheerleading practice, claiming that the coach was negligent in failing to properly assess her and her team’s preparedness for the difficult stunt, and in failing to adequately instruct them about the stunt and about proper spotting technique.  Although the Court held that the coach was immune as a public employee under the MTCA, the cCurt denied the university’s motion for summary judgment on the claims against it, allowing those claims to proceed to trial.  The Court rejected the university’s assertion that its liability should be governed by the recklessness standard applicable to an athlete’s claims against other players.  It noted that the rationale for that heightened standard (not chilling competition with the fear of liability) did not apply to the cheerleader’s suit because the injuries had occurred during practice rather than competition and that even if there had been a competition, the supervision which the coaches should have provided would not have interfered with that competition.

Athlete claims against the owners of sporting facilities.

In addition to other players and coaches, an injured athlete may recover damages from the owner of the sporting facility if some defect in the facility caused or contributed to the accident.  Because the owner’s conduct is not part of the game itself, the injured athlete need only prove simple negligence, not recklessness, to prevail.  In a case where an injured golfer claimed the course owner should have erected a screen to protect golfers in an area particularly likely to expose them to flying balls, the Court explained that “A participant in a game or sport who is familiar with the game or sport assumes the risk of the hazards normally involved….But unreasonable risks are not assumed by the mere fact of participation.  One may rely to some extent on the obligation of the owner to keep his premises in a reasonably safe condition for those using it.”  A similar rule has been applied to the owner of a roller rink.  In addition, a Massachusetts Superior Court held that claims by a triathlon participant against the race director, alleging that the director had negligently laid out the bicycling course, warranted a trail.  The Court also indicated that the plaintiff athlete could sue the national body that sanctioned triathlons for ordinary negligence, and did not need to prove reckless conduct, but held that the sectioning body had not, in fact, been negligent.

Clearly, a person’s status as an athlete participating in competition or practice alters in some respects the duty of care owed to him by other persons, especially other players.  Yet an injured athlete retains the right to recover damages for that unusual breed of injuries which result not from the natural risks of the game but from the negligent or intentional conduct of other participants, coaches or facility owners.  Sound legal advice is required in order to determine whether the facts surrounding a particular injury entitle the athlete to compensation.

In a “Dear Colleague” guidance letter (“Guidance”), issued January 25, 2013, the United States Department of Education, Office of Civil Rights (“OCR”) made clear that schools at all levels must provide disabled students equal opportunity to participate in extracurricular athletics.  To meet this obligation, a school must make any reasonable modification to its athletic program which would allow the disabled student an equal opportunity to participate, unless doing so would result in a fundamental alteration of the program.

Section 504.

The Guidance was issued in response to a Government Accountability Office report which found that participation in extracurricular athletics provides important health and social benefits to persons with disabilities, but also concluded that disabled students are not being afforded an equal opportunity to participate.  The OCR is the responsible for enforcing Section 504 of the federal Rehabilitation Act of 1973, which protects the rights of disabled individuals in programs and activities that receive federal funding.  Under Section 504, a disabled person is “one who (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.”[1]

The OCR Guidance notes that a school’s obligations under Section 504 to provide equal access to athletics “supersedes any rule of any association, organization, club or league that would render a student ineligible to participate, or limit [such eligibility] … on the basis of disability.[2]   In fact, a school will violate Section 504, potentially jeopardizing its federal funding, if it assists such an association that discriminates.[3]

Schools may not act on stereotypes.

The Guidance says that a school may not restrict access to its athletic programs based on generalizations about what students with a type of disability are capable of but must, instead, determine on an individual basis whether each disabled student is able to meet the requirements for participation in the extracurricular athletic activity.  For example, a basketball coach would violate Section 504 if, after selecting a disabled student as a member of the team, the coach decides never to play the student in a game based on the assumption that persons with that disability cannot play successfully under the pressures and time constraints of a game.  The Guidance indicates that the coach should have given the disabled student an equal opportunity to play in the games.  Of course, such an opportunity does not entitle the student to play in games if the student, in fact, is not qualified to do so.  It merely requires that the decision not to play the student be based on “the same criteria the coach uses for all other players,” not on stereotypes.

Reasonable accommodation.

In order to offer disabled students equal opportunity to participate in its athletic programs, a school must “mak[e] reasonable modifications and provid[e] those aids and services that are necessary to ensure an equal opportunity to participate, unless the school district can show that doing so would be a fundamental alteration to its program.”  What constitutes a “reasonable modification” and what is a “fundamental alteration” are critical issues.

According to the Guidance, “[i]n considering whether a reasonable modification is legally required, the school district must first engage in an individualized inquiry to determine whether the modification is necessary. If the modification is necessary, the school district must allow it unless doing so would result in a fundamental alteration of the nature of the extracurricular athletic activity.” There are two ways in which a modification may fundamentally alter the athletic activity.  First, “[a] modification might constitute a fundamental alteration if it alters such an essential aspect of the activity or game that it would be unacceptable even if it affected all competitors equally (such as adding an extra base in baseball).”  Second, “a change that has only a peripheral impact on the activity or game itself might nevertheless give a particular player with a disability an unfair advantage over others and, for that reason, fundamentally alter the character of the competition.”  The burden is on the school district to show any such fundamental alteration.

Thus, the Guidance says that a school track program must accommodate a deaf student by using a visual cue to signal the start of races rather than the usual starting gun, because doing so does not alter the nature of the competition, nor does it give the disabled student an advantage over other participants.

In another example, the Guidance considers whether a school must accommodate a one handed swimmer by waiving the rule requiring that swimmers finish the race by touching the pool wall with two hands.  Such a modification is necessary if the disabled swimmer is to participate, so the decisive issue is whether such a waiver would fundamentally alter the swimming program.  The Guidance states that while OCR would not regard waiving the two hand rule as changing an essential aspect of the swim race, the school must evaluate whether such a waiver would give the disabled swimmer an unfair advantage.  If so, the school is not required to make the requested modification, but must still consider whether other modifications might permit the disabled swimmer to participate.

Separate or different athletic opportunities.

The Guidance further states that, where it is not possible to modify an existing athletic program to permit disabled students to participate, the school should offer additional athletic opportunities to them by creating programs that are separate or different from those offered to non-disabled students.  When there are too few disabled students at a school to field a team, the Guidance suggests that a schools unite to create district-wide teams, mix male and female students, or create teams that mix disabled students with students without disabilities.

The Guidance is clearly an important step forward for disabled athletes.  It also presents major challenges for educators.  It remains to be seen how the OCR interprets and enforces the right of disabled students to equal opportunity athletic participation.

Who is responsible when a construction worker is injured due to unsafe working conditions? Often the injured worker is an employee of a subcontractor. Is the owner of the site liable? What about the general contractor, other subcontractors, or the subcontractor which employs the injured worker? The answer will often depend on the amount of control over the site and the work retained by the various parties.

Consider a hypothetical in which a painter, Bob, is injured when the scaffolding on which he is standing collapses because it was improperly erected. Bob is employed by High Wire Painting, Inc., a contractor. High Wire is employed by the site owner, a bank. At the time of the accident, Bob was not wearing a safety harness as required by state regulations.

The bank, through its manager, Johnson, acts as its own general contractor, employing various contractors for specific parts of the job. High Wire reports to Johnson, but there is no written contract between High Wire and the bank.

Johnson, on behalf of the bank, visits the construction site almost every day. While on site, Johnson has the opportunity to examine the scaffolding and to observe the manner in which High Wire and its employees, including Bob, are doing their work. He can observe that Bob is not wearing fall protection on the day of the accident or on any prior day.

The bank, through Johnson, exercises some control over the manner in which High Wire and Bob do their work, giving specific directions as to how particular areas are to be painted. In addition, High Wire and Bob are told that all questions about the work should be directed to Johnson.

Based upon these facts, Bob has a reasonable likelihood of proving that although the bank hired an independent contractor, High Wire, to perform the painting work, the bank retained sufficient control over the work, including safety issues, to have a responsibility to protect the safety of persons on the worksite.

The general rule is that, as stated by the Supreme Judicial Court in Corsetti v. The Stone Company,

if the employer [of an independent contractor] retains no control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise and he, rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it’.[1]

However,

if the employer retains the right to control the work in any of its aspects, including the right to initiate and maintain safety measures and programs, he must exercise that control with reasonable care for the safety of others, and he is liable for damages caused by his failure to do so….

… “The rule … is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know that the subcontractors’ work is being so done, and has the opportunity to prevent it by exercising the power of control which he has retained in himself.” Id., comment b.[2]

“Whether an employer has sufficient control over part of the work of an independent contractor to render him liable … is a question of fact for the jury.”[3]

The amount of control retained need not be significant to trigger liability on the part of one who employs a contractor. As noted by the Corsetti Court, the amount of control need not be such as would establish a master/servant (employment) relationship, rendering the employer vicariously liable for negligent conduct of the employee within the scope of the employee’s employment. Further, the control “need not descend to the last detail of method or operation for the imposition of liability to result….”[4]

On the other hand,

it is not enough, that [the employer] had merely a general right to order the work stopped or resumed, to inspect its progress, or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such retention of a right of supervision that the contractor is not entirely free to do the work his way.[5]

In addition, before liability can be imposed on the employer of an independent contractor it must be shown that the employer knew or should have known of the dangers posed by the contractor’s performance and that the employer had the opportunity to use its retained control to remedy the danger.[6]

The cases concerning retained control are highly fact-specific and often focus heavily on the provisions of a contract between the owner and the general contractor, the general contractor and subcontractors, or both, especially those provisions allocating responsibility for construction site safety.

In our hypothetical there is no contract. However, the facts tend to support the conclusion that the bank retained at least some control over the work, including safety issues, that the bank, though Johnson, knew or should have known that High Wire’s employees, including Bob, were working on scaffolding without required fall protection, and that the bank could have exercised its retained control to require that the work be continued in compliance with fall protection requirements.

As set forth above, Johnson, on behalf of the bank, visited the construction site almost every day. He, therefore, had the opportunity to examine the scaffolding, to observe the manner in which High Wire and its employees were doing their work and to see that they were not wearing fall protection on the day of the accident or on any prior day. Johnson also exercised some control over the manner in which High Wire and its employees did their work. For example, he gave them detailed directions about which items to paint.

Most importantly, High Wire and its employees, including Bob, understood that with regard to construction issues of any type, they were to follow the decisions and direction of Johnson/the bank.[7]

Thus, the amount of control retained by the bank arguably exceeded a mere right to inspect and to order the work stopped due to safety violations, which the courts have held to be insufficient to render an owner liable. The bank controlled, at least to some degree, the details of the work and the manner in which it was being done. A court would likely find that sufficient to impose liability on the bank under a theory of retained control. Bob should consider pursuing a claim against the bank.

If you have been injured in a construction accident, you should contact an attorney who can analyze the facts surrounding your injury, identify those parties who may be responsible and take steps to protect your rights.

_____________________________________

[1] Corsetti v. The Stone Company, 396 Mass. 1, 10 (1985).

[2] Id. at 10-11. (Footnote references omitted).

[3] Corsetti, 396 Mass. at 11.

[4] Paradoa v. CAN Ins. Co., 41 Mass. App. Ct. 651, 654 (1996); Cabreira v. Verizon New England, Inc., 2007 WL 1829382, *4 (6/14/07).

[5] Restatement (second) of Torts, §414 com. “c”; Foley v. Rust Intern., 901 F.2d 183, 184 (1st cir. 1990); Lopez v. Equity Office Management, LLC, 597 F. Supp.2d 189, 193 (D. Mass. 2009); Kelliher v. Brandeis University, 2008 WL 1932096, *2 (Mass. Super. 4/24/08); Bayliss v. Hannan Construction Corp., 2007 WL 738925, *2 (Mass. Super. 2/14/07); Cabreira v. Verizon New England, Inc., 2007 WL 1829382, *4.

[6] Corsetti, 396 Mass. at 10-11; Lopez v. Equity Office Management, LLC, 597 F. Supp.2d 189, 193 (D. Mass. 2009).

[7] See Callender, 2007 WL 2705529 (holding that where plaintiff’s employer viewed defendant company’s president as someone from whom it would accept direction, there was at least an issue of fact to be decided by the jury as to whether defendant company was a general contractor and had duties based on retained control under Corsetti).

An amendment to the Massachusetts Rules of Professional Conduct, effective January 1, 2013, makes mandatory the use of a written fee agreement in situations where it had merely been recommended before.

The pre-2013 version of Rule 1.5, concerning fees, states,

The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (Emphasis added).

As amended, Rule 1.5(b) (1) removes the “preferably in writing” clause, stating instead, “the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing before or within a reasonable time after commencing the representation.”  As under the pre-2013 version, a written agreement is not required where “the lawyer will charge a regularly represented client on the same basis or rate.”  In addition, the new Rule 1.5(b) (2) adds an exception for “a single-session legal consultation or where the lawyer reasonably expects the total fee to be charged to the client to be less than $500.”

A recent Superior Court decision may signal an expansion of an important theory by which a slip and fall plaintiff can hold a commercial property owner liable for damages.  The Court in Mills v. American Multi-Cinema, Inc., applied the “mode of operation” theory to hold the defendant cinema owner liable to a patron who, while walking in a darkened theater, slipped on food which had accumulated on the floor and was injured.  Application of the mode of operation theory to a non-supermarket defendant offers slip and fall plaintiffs an important new weapon.

The traditional premises liability rule.

Under traditional premises liability rules, where a foreign substance causes a plaintiff invitee’s slip and fall, the plaintiff can establish negligence on the part of the business owner in one of three ways: (1) by proving that the defendant caused the substance to be there (2) by proving that the defendant had actual knowledge of the existence of the foreign substance; or (3) by proving that the foreign substance was present on the defendant’s premises for such a length of time that the defendant should have known about it.  If, under (2) or (3), above, the owner knows or should know of the dangerous condition, then the plaintiff must also show that the owner should have expected that invitees would not discover the danger or protect themselves from it, and that the owner failed to exercise reasonable care to protect invitees from the danger.

The Sheehan decision.

In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007), the Supreme Judicial Court adopted the so-called “mode of operation” approach, which focuses on whether the nature of the defendant’s business gives rise to a substantial risk of injury to customers. Under this approach, where a store owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner can be held liable for injuries to a customer if the customer proves that the owner failed to take all reasonable precautions necessary to protect customers from these foreseeable dangerous conditions.

The Sheehan Court held that the defendant supermarket’s use of a self-service mode of operation (in which customers select their items from the shelves rather than being waited on by store personnel) created the foreseeable risk that products would end up on the floor, posing a danger to customers who might be distracted by the store’s attractive displays of products. The plaintiff in Sheehan had slipped on a grape which had fallen to the floor in the self-service produce section of the store.

According to the Sheehan Court, the mode of operation approach does not eliminate the requirement that the store owner knows or should know of the presence of the foreign substance on the floor prior to the accident. However, notice is presumed where the owner knows or should know that its very method of operation is likely to cause such dangers. The plaintiff is relieved of the burden of proving notice by, for example, showing how long the foreign substance has been on the floor. The plaintiff is still required to show that the accident was caused by a foreign substance or other dangerous condition and that the store failed to take reasonable measures, commensurate with the dangers of self-service, to make the store safe for patrons. The plaintiff must also show that the dangerous condition was caused by the self-service mode of operation and not by other causes (e.g. a fall caused by a newly waxed floor). 

Expanded application of the mode of operation theory.

Although the mode of operation approach could, theoretically, apply whenever a defendant’s method of doing business poses foreseeable dangers to customers, until recently, the courts have applied it only in cases where defendant businesses were self-service establishments similar to supermarkets.

In Sarkisian v. Concept Restaurants, Inc., 2012 WL 5337230 (Mass. App. Div. October 19, 2012), the Massachusetts Appellate Division referred to a possible expansion of the mode of operation doctrine in future cases.  The Sarkisian Court held the doctrine inapplicable because the establishment in question (a night club where drinks were served by a bar tender) was not self-service.  However, the Court noted that the doctrine may, in the future, be expanded to cover situations in which, despite the lack of self-service, the owner’s mode of operation creates a foreseeable risk of injury.

In Mills, the Superior Court (Cornetta, J.), applied the mode of operation theory to a movie theater, a non-self-service defendant.  The plaintiff had arrived at the theater late for the movie she intended to see.  Having obtained tickets, she entered the darkened theater while the movie was showing.   After walking about six feet into the theater, the plaintiff slipped and fell forward, striking her shoulder on a metal railing and sustaining injuries.

The Superior Court held that the unique condition in a darkened movie theater warranted application of the mode of operation doctrine instead of traditional rules:

A theater (or cinema) is a unique venue.  Of necessity, it is a dimly lit or darkened space when a performance is being shown.  Often, (as in this case) there are food and beverage concessions owned and operated by the theater offering invitees to purchase food and beverages and to take them into the darkened auditorium where the performance is playing.

Persons entering this unique venue are often unable to observe the conditions of floors, aisles, and seats which may harbor hazards to unsuspecting patrons….

It is because of this unique environment that the traditional approach to premises liability is inadequate to the task of providing reasonable safety conditions….

Thus, the Mills Court limited its application of the mode of operation doctrine to the particular circumstances of the case before it, involving a darkened commercial premises made dangerous by the owner’s provision of food and beverages to patrons.  The Court even noted that traditional premises liability rules might apply to fully illuminated areas in the theater lobby.

Nevertheless, Mills represents an expansion of the mode of operation doctrine to a non-self-service defendant. It appears to be a step toward the expansion predicted in Sarkisian. Certainly, Mills supports application of the mode of operation doctrine whenever the defendant method of doing business both creates foreseeable dangers and makes it difficult for patrons to protect themselves.

It is a nightmare scenario.  After spending years building a successful business, you receive by email the resignation of your star salesperson.  Although he claims to want to spend more time with family, you soon discover that he has, in fact, started working for a competing business.  He solicits the customers he served for your business to follow him to his new employer, and many do so.  He also takes with him confidential trade secrets, including your customer lists and the secret plans for a product your business expects to begin selling next year.  Overnight, your business may lose millions of dollars in current and future sales.

A company’s trade secrets are valuable assets which give the company a competitive advantage and may be essential to its very survival.  While secret formulas immediately come to mind, many other types of information may qualify as trade secrets, including detailed quotes for work performed, information about sources of and special rates paid for raw materials, special methods of doing business or information about the history of particular customers’ accounts, among others.  Clearly, no company wants its trade secrets to fall into the hands of a competitor.  Massachusetts law offers protection to trade secrets, but only when the company owning those secrets takes reasonable steps to safeguard them.  Has your company protected itself?

The elements of a trade secrets claim.

To succeed on a claim for misappropriation of trade secrets or confidential business information, in violation of G.L. c. 93, § 42, and common law, a plaintiff must prove that:

(1) the information in question is a trade secret, (2) [plaintiff] took reasonable steps to preserve the secrecy of that information, and (3) [defendants] used improper means, in breach of a confidential relationship, to acquire and use that trade secret.[1]

Where a defendant knowingly benefits from a trade secret that a third party has obtained from its owner via breach of a confidential relationship, the defendant is liable for misappropriation of trade secrets.[2]  Thus, where an employee leaves his or her employer, goes to work for a competing business, and uses the former employer’s trade secrets to the new employer’s advantage, the new employer is liable if it was aware of the misappropriation.  

When is information a trade secret?

The first step in proving a claim for misappropriation of trade secrets is to establish that the information taken qualified as a trade secret.  General business information and routine data of a particular company normally is not protectable as confidential.  Massachusetts courts consider six factors in determining whether information constitutes a trade secret:

(1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and to his competitors; (5) the amount of effort or money expended by the employer in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.[3]

Where the evidence as to these factors conflicts, the existence of a trade secret is a question of fact for the jury.[4] 

It is particularly important that a company take reasonable measures to protect information which it regards as a trade secret.  If the company fails to safeguard the information, it will be difficult to prove that the information is both secret and deserving of legal protection.  The reasonableness of measures taken to protect a trade secret depends on the facts of each case.[5]  Heroic measures need not be taken. A court will consider:

(1) the existence or absence of an express agreement restricting disclosure; (2) the nature and extent of security precautions taken by the possessor to prevent acquisition of the information by unauthorized third parties; (3) the circumstance under which the information was disclosed … to the extent they give rise to a reasonable inference that further disclosure, without the consent of the possessor, is prohibited; and (4) the degree to which the information has been placed in the public domain or rendered “readily ascertainable”.[6] 

Did the defendant obtain access to the trade secret through improper means in breach of a confidential relationship?

A company suing for misappropriation of trade secrets must also prove that the defendant obtained the trade secrets improperly through a breach of the defendant’s confidential relationship with, and his fiduciary duty to, the company.  An employee who ha signed a confidentiality agreement obviously acts improperly by misappropriating secret information covered by that agreement.  However, even an at-will employee who has not signed a confidentiality agreement owes his or her employer a duty not to steal the employer’s trade secrets.[7] 

Did the defendant use the misappropriated trade secrets and did the plaintiff company sustain harm as a result?

To prove a claim for misappropriation of trade secrets, the plaintiff must show that the defendant used the information and that the plaintiff was harmed as a result.  The required use and harm can be inferred based on the circumstances.  In Network Systems Architects Corp. v. Dimitruk, 2007 WL 4442349 (Mass. Super. 12/6/07), an employee had taken trade secrets, including information about customer accounts and proposals, from his employer, NSA.  After beginning work for his new employer, Accunet, the employee contacted customers he had serviced for NSA and convinced them to follow him to Accunet.  The court held that a jury could reasonably infer that the employee had made use of the trade secrets on behalf of Accunet and that such use had played some role in NSA’s loss of the customer to Accunet.  The court explained:

The evidence offered, including Lundberg’s findings, would support findings that Dimitruk sold to Bain on behalf of NSA; that shortly before his departure he communicated with Bain regarding his plans; that documents relating to Bain were on both laptop computers, and were among those deleted from the computers …, and that after Dimitruk’s departure Bain told [NSA] that it was transferring its business to Accunet.  From these facts, a factfinder could reasonably infer that Dimitruk made use of the NSA documents in his possession for purposes related to sales to Bain on behalf of Accunet, and that his use of such documents played some causative role in Accunet’s success in accomplishing those sales.  That is enough to prevent summary judgment.

2007 WL 4442349, *8.  (Emphasis added.)

What should you do?

Protecting trade secrets is primarily a matter of using common sense.  If your company wants certain sensitive information to remain secret, take steps to protect it.  A company hoping to protect its trade secrets should obtain confidentiality agreements from its employees, should expressly inform employees that the information is secret and confidential, and should ensure that access to the secret information is restricted to those employees who “need to know.”  If the information is in the form of computer files, they should be password protected.  Access to paper documents should be similarly limited, perhaps by placing them in a locked room.  

Your company’s trade secrets are valuable assets and perhaps critical to its future survival.  While Massachusetts law protects trade secrets, you must do your part by taking reasonable precautions to preserve their secrecy.

A recent order of the Administrative Justice of the Superior Court’s Business Litigation Session restricts the use of motions which dispose of some, but not all, claims or issues in a case.  Permission of the Court must now be obtained prior to filing such a motion.

In her order, which took effect September 4, 2012, Judge Judith Fabricant noted that motions for partial summary judgment, to dismiss or for judgment on the pleadings as to less than all claims, and other partial dispositive motions “consume substantial amounts of the court’s and the parties’ time and resources but often do not substantially reduce the length of the litigation or trial.”  Therefore, prior to filing such a motion, “the moving party shall confer with all other parties concerning [the motion’s] benefits and costs … its scope and effect on the balance of the litigation, and the time needed to prepare, argue and decide the motion.”

The moving party (or all parties if they have agreed) must then request a status conference with the Court.  That request may be made by a telephone call or brief letter to the session clerk.  At the conference, the Court and the parties will discuss “the proposed filing of the motion and whether its presentation to and disposition by the Court will materially and substantially advance or reduce the scope of the litigation.”  The Court will then decide whether to permit the filing of the motion and, it so, will develop a briefing schedule.

A copy of Judge Fabricant’s order can be found here.

The rules governing expert disclosures and default judgments are about to change.  Amendments to both the Massachusetts Rules of Civil Procedure and the Superior Court Rules will take effect January 1, 2013.

Expert disclosures.

A new Superior Court Rule 30B requires that the expert disclosure required by Mass. R. Civ. P. 26(b) (4) (A) (i) (“regarding any expert who is retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony and whose testimony is to be presented at trial”), be signed not only by the party but also by the expert.  The expert’s signature certifies that “the disclosure accurately states the subject matter(s) on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion to which the expert is expected to testify at trial.”

Default judgments.

Rule 55(b)(2) has been amended to provide that, at least 14 days prior to any hearing on a motion for default judgment, the moving party must give notice to all other parties, including any party against whom the judgment by default is sought, of the time and place of the hearing.  The notice must include a statement “setting forth the nature and type of all damages requested and the amount of any damages that are a sum certain ….”  The prior version of the Rule required only a seven-day notice to defendants who had appeared in the action (not to a defendant who had never appeared and who was the target of the motion for default judgment).

The “all damage” language of the new Rule 55(b)(2) requires the moving party to set forth both unliquidated damages (e.g. pain and suffering damages) and liquidated or sum certain damages.

The amendment to Rule 55(b) (2) is intended to solve a problem created by the Supreme Judicial Court’s decision in Hermanson v. Szafarowicz, 457 Mass. 39 (2010), in which the Court invalidated the first sentence of Rule 54(c), which had provided that a default judgment may not exceed the amount requested in the demand for judgment.  The Court found that this provision of Rule 54(c) conflicted with Massachusetts G.L. c. 231, §13B, which prohibits a demand in a complaint for a specific monetary amount, unless the damages are liquidated or ascertainable by calculation.  The problem created by Hermanson wasthat a defendant served with a complaint asserting claims for both liquidated and unliquidated damages, and faced with a motion for default judgment, would have no way of knowing how much the plaintiff was seeking in unliquidated damages, making it difficult for the defendant to decide whether it made financial sense to defend or to default.  Under the amended Rule, the 14-day notice will inform such a defendant of the amount of unliquidated damages the plaintiff claims.

An amendment to Rule 54(c) alters its language to comply with the Hermanson decision.  The amended Rule provides that, where damages sought in the compliant are in a sum certain, default damages may not exceed that amount.  Rule 5(a), concerning service, is also amended to require service of the 14 day notice on a defendant who is in default.

State, county and municipal governments are often sued by former employees who claim to have been fired without a hearing or other procedural safeguards.  Where the former employee has worked for long enough to attain civil servant or other tenured status, and hence a property interest in expected continued employment, such claims take on a constitutional dimension because the federal constitution prohibits the taking of life, liberty or property without due process of law.

Due process usually requires that a public employer provide such a civil servant a hearing prior to terminating his or her employment (Gilbert v. Homar, 520 U.S. 924, 929 (1997); Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985)), and the civil service laws require a pre-termination hearing.  See e.g. Massachusetts G.L. c. 35, § 51.  Therefore, if the public employer denies a civil servant the requisite pre-termination hearing, the civil servant may have a claim for damages under 42 U.S.C. §1983 (a “§1983 action”) based on a violation of his or her procedural due process constitutional rights.

However, a public employer accused of a procedural due process violation has an important defense in the so-called Parratt-Hudson Doctrine.  Under that rule, if a deprivation of property (e.g. the termination of a civil servant’s employment) “is occasioned by random and unauthorized conduct by state [or municipal] officials,” then no pre-deprivation hearing is required and due process is satisfied if “adequate post-deprivation remedies” are provided.  O’Neill v. Baker, 210 F.3d 41, 50 (1^st Cir. 2000), quoting Lowe v. Scott, 959 F.2d 323, 340 (1^st Cir. 1992).  (Emphasis added).  The United States Court of Appeals for the First Circuit applied the Parratt-Hudson Doctrine in Hadfield v. McDonough, 407 F.3d 11 (1^st Cir. 2005), cert. denied, 546 U.S. 961 (2005), in which the Sheriff of Plymouth County defeated claims that he had violated the first amendment rights of certain deputy sheriffs and an Assistant Deputy Superintendent (“ADS”) by terminating them on the basis of their political beliefs and had violated the due process rights of the ADS, who claimed to have tenured status, by failing to provide a pre-termination hearing.  Prior to trial, the lower court dismissed the claims of the ADS and he appealed only the due process issue after the jury at trial found for the Sheriff on all other counts.

Holding that there had been no procedural due process violation, the Hadfield court explained that the Parratt-Hudson Doctrine,

shields a public entity from a federal due process claim where the denial of process was caused by the random and unauthorized conduct of government officials and where the state has provided adequate post-deprivation remedies to correct the officials’ random and unauthorized acts.

407 F.3d at 19-20.  Stated another way:

Parratt and Hudson preclude §1983 claims for the “random and unauthorized” conduct of state officials because the state cannot “anticipate and control such conduct in advance.”…  In addition, … unauthorized deprivations of property by state employees do not constitute due process violations under the Fourteenth Amendment so long as meaningful post-deprivation remedies are available.

Brown v. Hot, Sexy and Safer Products, Inc., 68 F.3d 525, 535 (1st Cir. 1995).

While simple in its formulation, the Parratt-Hudson Doctrine raises numerous thorny problems in its application, among them the question what type of conduct by a public official is “random and unauthorized.”  For example, is a public official’s conduct “unauthorized” whenever it is in violation of an established, non-discretionary state procedure, or is something additional required.  Does conduct in violation of established procedures by a high ranking official (a policy maker) itself create new policy and render such conduct “authorized” by definition?  Another issue is what constitutes adequate post-deprivation remedy.  While not all federal circuits agree on every aspect of the Parratt-Hudson Doctrine, the First Circuit’s approach is relatively clear, and provides significant protection to state and municipal defendants.

General parameters of the Parratt-Hudson Doctrine.

The United States Supreme Court has recognized that while substantive due process violations occur at the time of the deprivation (because it is the deprivation itself which is unconstitutional), procedural due process violations are not complete at the time of the deprivation, but only when the state fails to provide due process (because it is the lack of appropriate process, not the deprivation, which is unconstitutional).  Zinermon v. Burch, 494 U.S. 113, 125-26 (1990).  The critical inquiry is what process the state provided and whether it was adequate.  Id.  There simply is no procedural due process violation if adequate state remedies are available.  The Parratt-Hudson Doctrine applies only to procedural, not substantive, due process violations.

In determining what process is due, a court must weigh several factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest….

Zinermon, 494 U.S. at 127, quoting Matthews v. Eldridge, 424U.S. 319, 335 (1976).

In Loudermill, the Court applied this balancing test to a claim that a school district violated its employees’ procedural due process rights when it terminated their employment without a prior hearing.  Although the terminated employees had a statutory right to appeal the termination, the statute made no provision for a pre-termination hearing.  Concluding that due process normally requires at least a minimal pre-deprivation hearing, the Supreme Court held that the terminated employees had stated a due process claim.

Like Loudermill, the Supreme Court’s decisions in Parratt v. Taylor, 451 U.S. 527 (1981), Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), Hudson v. Palmer, 468 U.S. 517 (1984), and Zinermon all apply the factors outlined in Matthews to determine what procedural protections are constitutionally required.  According to the Court in Zinermon, “Parratt is not an exception to the Matthews balancing test, but rather an application of that test to the unusual case in which one of the variables in the Matthews equation — the value of predeprivation safeguards — is negligible in preventing the kind of deprivation at issue.”  494U.S. at 128-29.

In Parratt, a state prisoner brought a §1983 action because prison employees had negligently lost materials he had ordered by mail.  While recognizing that a pre-deprivation hearing usually is required, the Court stressed the special situation in Parratt, noting that the loss was not due to “some established state procedure and the State cannot predict precisely when the loss will occur.  It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.”  451 U.S. at 541.  The Parratt Court pointed out that the deprivation in that case, “occurred as a result of the unauthorized failure of agents of the State to follow established state procedure.  There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing.”  Id. at 543.

In Hudson, the Court extended the reasoning of Parratt to intentional deprivations of property, explaining that “[t]he state can no more anticipate the random and unauthorized intentional conduct of its employees than it can similar negligent conduct.”  468U.S. at 533.

In Logan, an employee filed a claim with the Illinois Fair Employment Practices Commission but the Commission, through inadvertence, failed to commence a fact finding conference within 120 days as required by statute and thereby lost jurisdiction to hear the case.  The employee claimed that the state’s established procedure, which divested the Commission of jurisdiction to hear the claim, violated his procedural due process rights.  The Supreme Court agreed, holding that Parratt did not apply because the employee was challenging not the random and unauthorized conduct of a state official but the established state procedure itself.

The Zinermon decision.

Zinermon is consistent with Parratt, Logan and Hudson, but involved circumstances that rendered the Parratt-Hudson Doctrine inapplicable.  In Zinermon, Burch had been admitted to a psychiatric institution as a “voluntary” patient but alleged that hospital staff had failed to obtain his informed consent and therefore, wrongfully had deprived him of his liberty.  The defendants claimed that the Parratt-Hudson Doctrine applied, but the Supreme Court disagreed.  While confirming that the Parratt-Hudson Doctrine can apply to deprivations of liberty as well as property, the Court stressed the distinction made in prior cases between losses caused by random and unauthorized conduct (to which Parratt-Hudson applied) and losses resulting from established state procedure (for which a § 1983 claim could be brought).  494U.S. at 130.

Applying that distinction, the Zinermon Court concluded that the loss suffered by Burch occurred because Florida’s statutes delegated broad power to hospital staff to admit psychiatric patients (depriving them of their liberty), but failed to circumscribe that power by requiring that a member of the staff determine whether the prospective voluntary admittee was mentally fit to give informed consent to a voluntary admission:

The Florida statutes, of course, do not allow incompetent persons to be admitted as “voluntary” patients.  But the statutes do not direct any member of the facility staff to determine whether a person is competent to give consent, nor to initiate the involuntary placement procedure for every incompetent patient….

Florida chose to delegate to petitioners a broad power to admit patients to FSH, i.e., to effect what, in the absence of informed consent, is a substantial deprivation of liberty….

***

Burch is not simply attempting to blame the State for misconduct by its employees.  He seeks to hold state officials accountable for their abuse of their broadly delegated, uncircumscribed power to effect the deprivation at issue.

Id. at 135.

The Court in Zinermon distinguished Parratt and Hudson in three ways.  First, due to the special nature of mental illness, it was foreseeable that under Florida’s statutory scheme, which did not require a procedure to determine the competency of a patient before voluntary admission, a patient seeking treatment for mental illness might not be competent and might be admitted despite a lack of informed consent.  Moreover, the state could predict precisely when that deprivation of liberty would occur.  In contrast, the Court noted that while the state in Parratt and Hudson might anticipate that on occasion a prison employee negligently or intentionally would lose or destroy an inmate’s property, the state could not predict when those deprivations would occur.  Id. at 136.

Second, the Court in Zinermon concluded that, unlike in Parratt and Hudson, pre-deprivation process was possible and would have been of value in avoiding the deprivation complained of.  The Court noted that Zinermon was not a case like Hudson in which the employee was “bent upon effecting the substantive deprivation and would have done so despite any and all predeprivation safeguards.”  Id. at 137.  Had the state in Zinermon established procedures for obtaining informed consent, there was no reason to believe that the staff would not have followed those rules.

Finally, in Zinermon, the Court said that the conduct of the hospital staff in that case was not “unauthorized” within the meaning of Parratt and Hudson, for two reasons.  First, the Court noted that the hospital staff had been delegated broad discretionary authority to commit the deprivation at issue while no such discretion had been delegated to the prison employees in Parratt or Hudson.  Second, “the Zinermon Court stressed that the defendants were dealing with persons ‘unable to protect their own interests.’”  San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 480 (2012), quoting Zinermon, 494U.S. at 138.

The First Circuit’s interpretation of “random and unauthorized.”

The Zinermon decision created confusion as to what type of conduct is “random and unauthorized” for purposes of Parratt-Hudson.  One view is that an official’s conduct is “unauthorized” whenever it violates an established non-discretionary state law procedure.  The contrary view is that even conduct in violation of such an established procedure can still be “authorized” if the official in question had the power to act as he or she did, but abused that power. Under the former view, for example, the act of a county sheriff in terminating civil servant deputies without the prior hearing required by law is unauthorized precisely because it violates the non-discretionary requirement that a prior hearing be conducted.  Under the latter view, however, such conduct would be authorized because a sheriff has the general power to terminate deputies, and simply abused that power by doing so without the required hearing.

These two approaches correspond to two views of §1983 liability generally, the legalist model and the governmental model. Bogart v. Chapell, 396 F.3d 548, 563-64 (4^th Cir. 2005) (Williams, J., dissenting).  The legalist model imposes liability on the state for an official’s constitutional violation only if the state (or municipality) has endorsed that violation.  Id.  Thus, conduct is “unauthorized”, the Parratt-Hudson Doctrine applies, and there is no state liability for a procedural due process violation, if the conduct at issue violates state law or established policy and there is an adequate post-deprivation remedy.  Language in Zinermon stressing the distinction between losses caused by random and unauthorized conduct and losses resulting from established state procedure supports the legalist interpretation.

The governmental model deems conduct to be authorized, imposes liability on the state, and renders Parratt-Hudson inapplicable, whenever the violation at issue was committed by an official in the scope of his or her employment, even if the conduct violates state law.  Id.  Courts adopting this view rely on the statement in Zinermon that the deprivation was “‘unauthorized’ only in the sense that it was not an act sanctioned by state law.” 494U.S. at 137-38.

The United States Court of Appeals for the First Circuit has consistently favored the legalist approach, narrowing §1983 liability by broadly applying the Parratt-Hudson Doctrine.  According to the Court in Hadfield,

Our cases establish that a government official has committed a random and unauthorized act when he or she misapplies state law to deny an individual the process due under a correct application of state law. … In other words, conduct is “random and unauthorized” within the meaning of Parratt– Hudson when the challenged state action is a flaw in the official’s conduct rather than a flaw in the state law itself.

407 F.3d at 20.  Similarly, in Chmielinski v. Comm. of Massachusetts, 513 F.3d 309, 315 (1^st Cir. 2008), the Court of Appeals explained that,

The Parratt-Hudson doctrine exists to protect states from needlessly defending the adequacy of state law process when the alleged due process violation results from a deviation from that process.

***

Neither the statute nor the regulations set out any procedural requirements, providing only that the hearing be “informal.” Thus, the hearing that Chmielinski received cannot be characterized as a deviation from the state law; it was not random and unauthorized.

(Emphasis added).  See also Bourne v. Town of Madison, 494 F.Supp.2d 80, 88-89 (D.N.H. 2007).

An additional issue left undecided by Zinermon is whether, if conduct consistent with established policies is “authorized,” conduct by a high ranking, policy making official must necessarily be deemed authorized because that very conduct effects a change in prior policy.  The Court of Appeals for the Second Circuit has adopted this rule (Dwyer v. Regan, 777 F.2d 825 (1985)), holding that conduct which otherwise could be considered random and unauthorized, including conduct in violation of established state law, is not random and unauthorized if the actor is a “high-ranking official having final authority over the decision-making process.”  Id. at 832.

However, the other circuits which have considered the issue have rejected the rejected the high ranking official exception to Parratt-Hudson.  The First Circuit has not considered the issue directly. Notably, however, while the plaintiffs in Hadfield raised the high ranking official exception, the Court, without discussion, held that Parratt-Hudson applied.

In San Geronimo, the Fist Circuit further explored the meaning of “random and unauthorized,” distinguishing the case before it from Zinermon and applying the Parratt-Hudson Doctrine to bar the plaintiff developer’s procedural due process claim.  The developer claimed that the Puerto Rico Regulations and Permits Administration (“ARPE”) had violated its procedural due process rights by mistakenly invoking emergency powers to stay its construction project (a deprivation of property), without a pre-deprivation hearing.  The Court affirmed the dismissal of the due process claim, finding that the ARPE’s conduct was random and unauthorized.

First, the San Geronimo Court held that, in contrast to Zinermon, the ARPE had not been delegated broad and uncircumscribed discretion.  While the flaw in the statute in Zinermon was that it allowed the a mental patient to be voluntarily admitted without requiring a finding that the patient was competent to give informed consent, the emergency statute in San Geronimo expressly required the ARPE to make and support a finding that an emergency, rising to the level of an “imminent danger,” existed.  687 F.3d at 481.  The Court noted that “Zinermon is best viewed as a case where the state statutory scheme conferred so much discretion on state officials so as to authorize the state officials’ actions in deprivation of procedural rights.”  San Geronimo, 687 F.2d at 486.  The statute in San Geronimo did not grant discretion to violate the plaintiff’s due process rights.  Rather, the violation resulted from the ARPE’ mistaken application of the law.  Id.

The San Geronimo Court also rejected the plaintiff’s claim that, like Zinermon, the deprivation of due process was foreseeable.  The Court noted that in Zinermon, “it was perfectly obvious that some individuals seeking non-emergency admission at a mental health facility would not be competent to give consent to admission,” and that a deprivation was predictable because the “statute did not require a threshold determination of competency.”  687 F.3d at 487.  In contrast, there was no such “clear risk” that ARPE would mistakenly misapply the emergency stay statute.

Third, the San Geronimo Court held that, unlike in Zinermon, no additional pre-deprivation safeguards were possible.  In Zinermon “there existed a straightforward cure for the statutory failing: the state could have easily imposed a requirement that a threshold determination of competency take place.”  687 F.3d at 487-88.  In San Geronimo, however, requiring a pre-deprivation hearing would have defeated the entire purpose of the emergency stay statute, to allow for swift action to protect the public.   Id. at 488.

What constitutes an adequate post-deprivation remedy?

For the Parratt-Hudson Doctrine to apply, an adequate state law post-deprivation remedy must have been available to the plaintiff at the time of the deprivation.  However, establishing the existence of a post-deprivation remedy is not difficult.  Citing Parratt, the Court of Appeals for the First Circuit has noted that such a remedy may be statutory or provided by common law, as in the case of a tort action.  Lowe, 959 F.2d at 341.  In addition, the availability of administrative and judicial review of decisions made by state officials constitutes adequate post-deprivation process.  Hadfield, 407 F.3d at 21, citing Herwins v. City of Revere, 163 F.3d 15, 19 (1st Cir.1998).  Notably, a state post-deprivation remedy may be adequate even where it fails to provide all of the relief which would have been available through a §1983 action.  Parratt, 451U.S. at 544.

In Hadfield, the Court of Appeals held that Massachusetts provided adequate post-deprivation remedies to the deputy sheriffs who had been terminated without prior hearing because G.L. c. 35, §51, allowed the deputies to appeal their terminations to the civil service commission and, if successful, to obtain reinstatement and back pay.

While a plaintiff may assert that a state provided remedy is inadequate because it would require the plaintiff to endure long delays associated with litigation, a court is likely to reject such an argument in all but the most extreme circumstances.  Although the United States Supreme Court has recognized that “at some point, a delay in the post-termination hearing would become a constitutional violation,” Loudermill, 470 U.S. at 547, the slow pace of normal litigation is not the kind of delay which renders a post-deprivation remedy inadequate.  In fact, the Loudermill Court held that a nine month delay in providing a hearing did not work a denial of due process, while other federal courts have held that delays of two years did not violate due process. Mathews v. Eldridge, 424 U.S. 319, 342, (1976) (eleven month delay); Isaacs v. Bowen, 865 F.2d 468, 477 (2d Cir. 1989) (19 months); Ritter v. Cohen, 797 F.2d 119, 124 (3d Cir. 1986) (20 months); Givens v. United States Railroad Retirement Bd., 720 F.2d 196, 201 (D.C. Cir. 1983) (19 months); Frock v. United States Railroad Retirement Bd., 685 F.2d 1041, 1047 (7th Cir. 1982) (two years).  In Easter House v. Felder, 910 F.2d 1387 (1990), the Court of Appeals for the Seventh Circuit, noting that “almost all litigation, whether conducted in a state or federal forum, may be characterized as a lengthy and speculative process,” stated:

[W]e should not reject the application of Parratt unless the remedy which an injured party may pursue in state court can readily be characterized as inadequate to the point that it is meaningless or nonexistent and, thus, in no way can be said to provide the due process relief guaranteed by the fourteenth amendment.

Id. at 1406.

A powerful weapon for government defendants.

The Parratt-Hudson Doctrine, especially as broadly applied in the First Circuit, affords state and municipal defendants substantial protection from §1983 lawsuits based on alleged violations of procedural due process.   While still subject to suit where the deprivation of due process was consistent with established policy, or where the state delegated to officials broad and uncircumscribed discretion to effect the deprivation complained of, Parratt-Hudson shields government employers from liability based on a public official’s unforeseeable violation of facially valid procedures.

This article is an updated version of an article co-authored by Kevin F.  Moloney and Roger T. Manwaring which appeared in the Massachusetts Academy of Trial Attorneys Journal in October 2008.  Mr. Moloney and Mr. Manwaring successfully defended the Sheriff of Plymouth County before the First Circuit in the Hadfield case and successfully opposed a petition for writ of certiorari in the United States Supreme Court.