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The pattern emerged slowly at first but soon became crystal clear. Greener Grass Guaranteed, Inc. (“GGG”), a lawn maintenance specialist, was losing customers to Lawn King, a new company owned and operated by a former GGG employee, Sam Slick, who had left GGG just a month earlier. Numerous GGG customers, whose accounts had been serviced by Slick, cancelled their GGG lawn maintenance contracts, saying that they had been approached by Slick and wanted to continue to work with him. Interviews with customers established that Slick was using confidential GGG information, including customer service records, supplier information and price quotes, to underbid GGG. It also became clear that Slick had been soliciting GGG customers to follow him to Lawn King even while he was still employed by GGG.

While a GGG employee, Slick had access to GGG’s confidential information, including methods of doing business, information about special deals GGG had with suppliers, customer lists, and prices quoted to customers and prospective customers. GGG made this information available to employees only on a “need to know” basis, made clear to its workers that the information was confidential and safeguarded it using locked rooms and computer passwords.

When Slick started working for GGG, he had signed a contract containing a non-competition covenant, barring him from working in the lawn care industry within 50 miles of GGG’s office for a period of two years, a non-solicitation provision, prohibiting him from approaching any customers whose accounts he had serviced while employed by GGG, and a confidentiality provision, prohibiting him from misappropriating or misusing GGG’s trade secrets. GGG wants to sue Slick to obtain an injunction enforcing Slick’s obligations.

These facts suggest that GGG has viable claims: for breach of Slick’s contractual obligations not to compete with GGG, not to solicit its customers and not to disclose trade secrets; for violation of the Massachusetts trade secrets law, G.L. c.93, §42; for Slick’s breach of his fiduciary duty to GGG; and for Slick’s intentional interference with GGG’s contractual and advantageous business relationships.

In order to obtain injunctive relief, GGG “bears the burden of showing its likelihood of success on the merits; that it will suffer irreparable harm if the injunctive relief sought is not granted; and that its harm, without the injunction, outweighs any harm to [Slick and Lawn King] from … being enjoined.”[1] In this hypothetical, GGG has a good chance of establishing each of these elements.

Likelihood of success on the merits.

Proof that the non-competition covenant of Slick’s contract with GGG is valid and enforceable and that Slick’s conduct violated that covenant.

To show a likelihood of success on the merits of the breach of contract claim, GGG must show that the non-competition covenant in Slick’s contract is enforceable under Massachusetts law and that he violated that provision. Such a covenant is enforceable if it is reasonable, based on all of the circumstances.[2] “A covenant not to compete is reasonable if its purpose is to protect an employer’s legitimate business interests.”[3] Where the employer has a legitimate business interest, the non-competition covenant must be reasonably limited in time and geographic scope.

Legitimate business interests which may be protected through the use of a non-compete covenant include “goodwill, trade secrets, or other types of confidential information.”[4] Goodwill is “the employer’s positive reputation in the eyes of its customers or potential customers … [and] is generated by repeat business with existing customers or by referrals to potential customers.”[5] “Goodwill is certainly a legitimate business interest that an employer is entitled to protect generally and specifically in relation to sales personnel–individuals dealing directly with the customers of the former employer in whole or in part.”[6]

Confidential information providing a legitimate basis for enforcement of a non-compete provision is a “compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.”[7]

Notably, a former employee’s work for the employer’s competitor will harm the former employer’s goodwill and interest in protecting trade secrets and confidential information, even if the departing employee does not take with him any physical documents or lists. Nor is it necessary for an employer seeking to enforce a non-compete provision to prove that the former employee, in bad faith, intends to use or disclose trade secrets or confidential information. According to the Court in Boch Toyota, Inc./Boch Toyota Honda v. Klimoski,

A departing employee may cause harm to his former employer’s goodwill by possessing confidential or proprietary business information of the former employer. All Stainless, Inc., 364 Mass. at 779-80. Whether an employee actually takes any customer or supplier lists with him is not dispositive; the employee may still be enjoined if the appropriated confidential information is merely in his or her memory. Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972). In the court case at bar, Klimoski cannot leave behind her recently gathered special knowledge of plaintiff’s operation, and in serving her new (and previous) employer she will inevitably draw upon that knowledge. In Marcom Corp. v. Orchard, 885 F.Supp. 294, 297 (D.Mass.1995), the court noted that “the harm to [the former employer] cannot be avoided simply by the former employee’s intention not to disclose confidential information, or even by his scrupulous efforts to avoid disclosure … he does not go with a tabula rasa with respect to [the former employer’s] products, its development strategies, its marketing plans, its customers and other significant business information … what [the employee] knows about [the former employer] is bound to influence what he does for [the new employer], and to the extent it does, [the former employer] will be disadvantaged.”[8]

In Empirix, Inc. v. Ivanov, 28 Mass. L. Rptr. 511, 2011 WL 3672038 (Mass. Super. 5/17/11), the Massachusetts Superior Court enforced a non-competition covenant despite the employee’s claim that the employer could not prove that the employee would disclose confidential information to his new employer. The Court said:

Ivanov’s knowledge of the competing product will inevitably or inadvertently surface during [his] employment with NetScout [new employer] because of the timing of Empirix’s recent arrival on the mobile broadband stage. He will make decisions for his competing product based on information he holds about IPXPlorer, and even without formal disclosure, thereby benefit NetScout. Under these circumstances, a court order not to disclose will not enforce Empirix’s effort to protect itself from unfair competition.

Id. at *4.

In our hypothetical, GGG has a legitimate business interest in preventing Slick from working for Lawn King or any other competing business. Slick serviced GGG customers and is in a position to solicit GGG customers, thereby harming the goodwill which GGG itself developed.[9]

Indeed, the evidence is that Slick approached various GGG customers about shifting their business to Lawn King. In addition, while employed at GGG, Slick gained knowledge of GGG’s customer lists, methods of doing business, and other confidential information and trade secrets, which are and will be highly useful to him and Lawn King in competing with GGG. Even if Slick was acting in good faith, he could not unlearn what he knows about GGG and necessarily will use that information in his work for Lawn King.

GGG should also be able to show that the non-competition provision is reasonably limited in time and geographic scope. It bars Slick from working for a business similar to or in competition with GGG, located within 50 miles, for a period of two years. These restrictions are entirely reasonable. The Court in Stone Legal Resources Group, Inc. v. Glebus said

In determining whether the time limit is reasonable, this Court will “consider the nature of the business and the character of the employment involved, as well as the situation of the parties, the necessity of the restriction for the protection of the employer’s business and the right of the employee to work and earn a livelihood.”[10]

The restriction of two years in the present case is not unreasonable.[11] Nor is the 50 mile radius of the restriction unreasonable.[12] Even if a court were to conclude that the non-compete provision was unreasonable either in time or geographic scope, GGG could argue that the court has the authority to modify the terms of the covenant so as to make it reasonable, rather than refuse to enforce it.[13]

Lawn King is a business in direct competition with GGG and is located well within the 50 mile radius of the non-competition covenant. Given that the non-compete provision is reasonably limited, the Court should enforce it.

Proof that GGG is likely to succeed on the merits of its claim that Slick and Lawn King misappropriated GGG’s trade secrets and confidential information.

To succeed on a claim for misappropriation of trade secrets or confidential business information, in violation of G.L. c. 93, § 42, GGG would have to prove that:

(1) the information in question is a trade secret, (2) [GGG] took reasonable steps to preserve the secrecy of that information, and (3) [Slick] used improper means, in breach of a confidential relationship, to acquire and use that trade secret.[14]

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.[15]

In Network Systems Architects Corp. v. Dimitruk, 2007 WL 4442349 (Mass. Super. 12/6/07), the Court concluded that “information about the history of particular customers’ accounts, including the needs of those customers and proposals made to them” constituted trade secrets. Id. at *7. Applying the six factors above, GGG’s customer lists, its records of services provided and prices charged to customers, its supplier arrangements and its methods of doing business constitute trade secrets.[16] [17]

As discussed below, Slick and Lawn King also used improper means to acquire GGG’s confidential information, in breach of Slick’s confidential relationship with GGG. While still employed at GGG, Slick acted in furtherance of his plan to start a competing business and steal GGG’s customers. Thus, GGG can establish the elements of its trade secrets claim.

Proof that GGG is likely to succeed on the merits of its claim for breach of fiduciary duty.

An employee who occupies a position of trust and confidence owes his or her employer a fiduciary duty to protect the interests of the employer. Even employees who are not managers occupy positions of trust where they have been entrusted with confidential information. Such a fiduciary duty imposes “certain limitations on the conduct of an employee who plans to compete with his employer. He may not appropriate his employer’s trade secrets … [h]e may not solicit his employer’s customers while still working for his employer … and he may not carry away certain information, such as lists of customers.”[18]

In support of its claim that Slick breached his fiduciary duty, GGG can show that Slick was entrusted with confidential information, that he solicited GGG customers while still employed by GGG, and that he has misappropriated GGG’s confidential information and used it to benefit Lawn King.

Proof that GGG is likely to succeed on its claim that Slick and Lawn King intentionally interfered with GGG’s contractual and advantageous business relationships.

GGG may also have a viable claim against Slick and Lawn King for intentional interference with GGG’s contractual or advantageous business relationships with customers.

In an action for intentional interference with contractual relations, the plaintiff must prove that (1) he had a contract with a third party; (2) the defendant knowingly interfered with that contract; (3) the defendant’s interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions.[19]

To prove intentional interference with an advantageous business relationship,

a plaintiff must prove that (1) he had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant’s interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions.[20]

To establish a claim for tortious interference, GGG need not prove that the third party would have remained in the contract or advantageous relationship with GGG absent Slick’s interference.[21]

Both Slick and Lawn King tortuously interfered with the contractual or advantageous relationships between GGG and its customers. Slick, acting on behalf of Lawn King, knew of those relationships and interfered by soliciting those customers to shift their business from GGG to his new employer, Lawn King. He also accomplished this interference by improper means: (1) by using trade secrets and confidential information (including customer lists, customer history, pricing, billing and other information) to woo customers away from GGG and (2) by acting in his own interests and those of Lawn King while he was still employed by GGG, thereby breaching his confidential relationship with GGG

Irreparable harm.

In addition to showing a likelihood of success on its claims, GGG will have to show that it will suffer irreparable harm if Slick is allowed to continue his employment with Lawn King, GGG’s direct competitor, in violation of the non-competition covenant of his employment contract, and is allowed to continue using and disclosing GGG’s confidential information and trade secrets. Massachusetts courts recognize that an employer is irreparably harmed when an employee, in violation of restrictive covenants, damages the employer’s goodwill.[22]

In addition, the employment contract may contain a provision in which the employee, Slick, acknowledges that the employer, GGG, will be irreparably harmed if the employee uses the customer contact, goodwill, or confidential information he acquires during employment against the employer’s best interests. Savvy employers will include such a provision in their employment contracts to lay the groundwork should it later be necessary to seek injunctive relief.

In our hypothetical, GGG can argue that Slick has already caused significant damage to GGG’s goodwill by successfully soliciting numerous GGG customers to cease dealing with GGG and shift their business instead to Lawn King and Slick. Slick will continue to do so unless the Court enters the requested injunction. Slick’s use and disclosure of GGG’s confidential information and trade secrets for his own benefit and that of Lawn King, also gives Lawn King the opportunity to gain a competitive advantage over GGG, thereby causing GGG irreparable harm.

In contrast, GGG can argue that Slick and Lawn King will suffer no cognizable irreparable harm if the requested injunction is entered. Of course, Slick may claim that the loss of his employment with Lawn King is irreparable harm. However, that is not a valid consideration because the enforcement of a non-competition covenant always results in restricting the employee’s ability to work and Slick voluntarily signed his GGG employment contract containing the non-competition covenant. As the Court said in Marine Contractors, 365 Mass. at 289,

The consequences of every covenant not to compete … is that the covenantor is deprived of a possible means of earning his living, within a defined area and for a limited time. That fact alone does not make such covenants unenforceable …[the employee must] establish…extraordinary hardship.

Nor does Lawn King have any legal right to employ Slick where doing so would violate Slick’s contractual obligations to GGG and/or allow Lawn King to compete unfairly and unlawfully.

Conclusion.

A company’s customer relationships and its trade secrets are among its most important assets and deserve protection. Both are at risk when an employee who has had significant customer contact and access to confidential information leaves the company. In the absence of any contractual limitation, such an employee can start a competing business and lure away the former employer’s valued customers. A carefully drafted non-competition covenant offers an important tool to protect the business from unfair competition.

[1] Merchant Business Solutions, LLC v. Arst, 2006 WL 696582, *1 (Mass. Super. 2/14/06), citing GTE Products Corp. v. Stewart, 414 Mass. 721, 722-23 (1993); Packaging Industry Group, Inc. v. Cheney, 380 Mass. 609, 616-17 (1980).
[2] All Stainless, Inc. v. Colby, 364 Mass. 773, 778 (1974).
[3] Boch Toyota, Inc./Boch Toyota Honda v. Klimoski, 18 Mass. L. Rptr. 80, 2004 WL 1689770, * 3 (Mass. Super. 6/28/04), citing Marine Contractors Co., Inc. v. Hurley, 365 Mass. 280, 287 (1974).
[4] Id.
[5] Stone Legal Resources Group, Inc. v. Glebus, 2003 WL 914994, *3 (Mass. Super. 12/16/02), quoting Bowne of Boston, Inc. v. Levine, 7 Mass. L. Rptr. 685, 1997 WL 781444, at *3 (Mass. Super. 1997), Marine Contractors, 365 Mass. at 287-89.
[6] Robert Half International, Inc. v. Buoncontri, 15 Mass. L. Rptr. 742, 2003 WL 915181, *3 (Mass. Super. 1/28/03).
[7] Stone Legal Resources Group, Inc. v. Glebus, 2003 WL 914994, *4, quoting J.T. Healy & Son, Inc. v. James A. Murphy & Son, Inc., 357 Mass. 728, 736 (1970).
[8] Boch Toyota, 2004 WL 1689770, *3.
[9] GGG can argue that the goodwill at issue is GGG’s, not Slick’s. Slick came to GGG with no experience in the lawn care business, and developed client relationships for GGG while working at GGG. Moreover, it was part of his job to create goodwill on behalf of his employer, GGG. Therefore any resulting goodwill was GGG’s. In Bowne of Boston, 1997 WL 781444, *3, the Court granted injunctive relief, stating:

[T]his Court holds that the corporate printing business does indeed involve goodwill and that the goodwill belongs to Bowne…. Bowne has shown that it has nurtured goodwill, through the work of Levine, in the customers covered by the non-solicitation agreement. Bowne provided Levine with an unlimited expense account to entertain clients on behalf of the company. Lastly, Bowne hired Levine to use his knowledge, skill and personality to cultivate relationships with clients on behalf of Bowne. In sum, the goodwill generated with respect to clients first introduced to Levine by Bowne, and new clients retained by Levine while employed at Bowne, belongs to Bowne.

1997 WL 781444, *4. (Emphasis in original). See also Prudential Ins. Co. of America v. Tracia, 2002 WL 31862713, * 2 (Mass. Super. 11/12/02); American Stop Loss Ins. Brokerage Services, Inc. v. Prince, 2001 WL 173178, *2 (Mass. Super. 2/14/01); W.B. Mason Co., Inc. v. Staples, Inc., 2001 WL 227855, *5 (Mass. Super. 1/18/01); Darwin Partners, Inc. v. Signature Consultants, LLC, 2000 WL 33159238, *4 (Mass. Super 3/24/00); HealthDrive Corporation v. Jaret, 2000 WL 33967781, *3 (Mass. Super. 2/9/00); Modis, Inc. v. The Revolution Group, Ltd., 1999 WL 1441918, *7 (Mass. Super. 12/29/99); Browne v. Merkert Enterprises, Inc., 1998 WL 151253, *5 (Mass. Super. 3/31/98); McFarland v. Schneider, 1998 WL 136133, * (Mass. Super. 2/17/98); Fortune Personnel Consultants of Boston v. Hagopian, 1997 WL 796494, *3 (Mass. Super. 12/30/97); NECX v. Hirschman, 1995 WL 1146950, *1 (Mass. Super. 8/1/95).
[10] Stone Legal, 2003 WL 914994, *5, quoting Richmond Bros., Inc. v. Westinghouse Broadcasting Co., Inc., 357 Mass. 106, 109 (1970).
[11] All Stainless, 364 Mass. at 779 (two years held reasonable); Blackwell v. E.M. Helides, Jr., Inc., 368 Mass. 225, 229 (1975) (restrictive covenant contained in real estate salesman’s employment contract which barred salesman from engaging in real estate business for period of three years in specified cities where employer had engaged in real estate business was reasonable); Frank D. Layne Assoc. v. Lussier, 16 Mass. App. Ct. 986, 989 (1983) (two years); Middlesex Neurological Assoc., Inc. v. Cohen, 3 Mass. App. Ct. 126, 131 (1975) (two years); Stone Legal, 2003 WL 914994, *5 (Court upheld a restrictions of 18 months, noting that “[I]n such a competitive area, Glebus could apply his knowledge of the confidential information and infringe on Stone Legal’s goodwill. Furthermore, courts have held that durations longer than eighteen months are reasonable.”).
[12] Sentient Jet, 2002 WL 31957009, *5 (finding reasonable “the essentially unlimited geographical reach, given that the business involved is the chartering and flying of private jet aircraft all around the country and, indeed, the world.”); Stone Legal, 2003 WL 914994, *5 (approving 100 mile radius).
[13] Kroger v. Stop & Shop Companies, Inc., 13 Mass. App. Ct. 310, 312 (1982), citing Cheney v. Automatic Sprinkler Corp. of America, 377 Mass. 141, 147 (1979) (“Rather than declining entirely to give effect to an unreasonable non-competition clause, a court may modify its terms so as to make it reasonable; i.e. onerous terms may be cut back”).
[14] Diomed, Inc. v. Vascular Solutions, Inc., 417 F. Supp.2d 137, 143 (D. Mass. 2006). See also Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 168 (1979); Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Ltd., 2006 WL 1766434, *8 (D. Mass. 6/28/06).
[15] Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972). See also Storage Technology Corp., 2006 WL 1766434, *9; Picker Intern. Corp. v. Imaging Equipment Services, Inc., 931 F. Supp. 18, 23 (D. Mass. 1995).
[16] The information was not known outside of GGG and was known to employees of GGG only on a “need to know” basis.
[17] Further, even where information fails to qualify as a trade secret, “it may be entitled to protection as confidential business information ‘against one who improperly procures such information. The law puts its imprimatur on fair dealing, good faith and fundamental honesty. Courts condemn conduct which fails to reflect these minimum accepted moral values by penalizing such conduct whenever possible.’” Picker Intern., 931 F. Supp. at 23.
[ 8] Inner-Tite Corp. v. Brozowski, 2010 WL 3038330, *19 (Mass. Super. 4/14/10), quoting Augat, Inc. v. Aegis, Inc., 409 Mass. 165, 172-73 (1991).
[ 9] Harrison v. Netcentric Corp., 433 Mass. 465, 476-77 (2001), citing Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 397 (1996).
[20] Blackstone v. Cashman, 448 Mass. 255, 260 (2007).
[21] Unitrode Corp. v. Linear Technology Corp., 2000 WL 281688, *4 (Mass. Super. 2/17/00), citing Swanset Devel., 423 Mass. at 397.
[22] Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dewey, 2004 WL 1515502,*3 (Mass. Super. 6/30/04), citing Kroeger v. Stop & Shop Cos., Inc., 13 Mass. App. Ct. 310, 316 (1982). See also Browne, 1998 WL 151253, *6; Darwin Partners, 2000 WL 33159238, *5; Modis, 1999 WL 1441918, *9; Fortune, 1997 WL 796494, *3; Bowne of Boston, 1997 WL 781444, *5.

Cheap Guys discount store was having a bad day.  It had been snowing all day and customers had tracked slush onto the rugs at the store entrance.  Dirty, wet footprints deface the surrounding tile floors. Jane, a customer, enters the store, crosses the soaking wet rug and slips as she steps onto the wet tile.  She is seriously injured.  Elsewhere in the store, at about the same time, a scoop of ice cream, dropped by a patron,  lies melting on the floor directly in front of the in-store snack bar.  Harry, another customer, slips on the ice cream and is injured.  To make matters worse, a third customer, Joe, while shopping in the supermarket-like produce section, slips on a loose walnut and has to be removed on a stretcher.  Customers commonly drop nuts on the floor while serving themselves, but there is no evidence as to how long the nut in question had been on the floor before Joe slipped on it.

A business owner is required to use due care to keep the premises safe for customers, or at least to warn them of dangers that might arise from their use of the premises.  Can any of these injured customers successfully sue the store for damages?

 The Wet Floor

It might seem that Jane has a strong claim arising from her slip on the wet floor.  The store must have been aware that the floor was wet.  However a special rule applies where a slip is caused by temporary weather conditions.

As a general rule, a proprietor is not liable for slip and fall accidents where the transitory conditions of the premises, due to normal use in wet weather, could not have been prevented.

In order to establish negligence by the defendant proprietor, the plaintiff must show that the water on the floor was more than what inevitably results from the tramping of many feet under the conditions of weather then existing.  It follows that a plaintiff who slips in water tracked onto a store floor by other customers on a rainy day must show something more than the mere presence of the water.

Negligence can be established if the plaintiff proves that there was a defect or wear or some other condition, not inherent in the floor itself, which caused the floor to be especially slippery when wet.  For example, the Massachusetts courts have held owners liable where there was evidence that the floor had been treated with an oil which became very slippery when wet.

A plaintiff can also establish negligence by showing that there was more water on the floor or that it had remained on the floor for longer than could reasonably be expected under the circumstances.  For example, the Supreme Judicial Court held that a finding of negligence was warranted where water tracked in by patrons had collected for over an hour and a half and had created a puddle four feet long.

Absent evidence of any special defect or unusual condition of the floor, or that the quantity of water or its time on the floor was unreasonable, Jane is unlikely to succeed in her slip and fall claim against the store.

Harry’s Ice Cream Induced Fall

Where a foreign substance causes a plaintiff’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.

The ice cream on which Harry fell was certainly a foreign substance.  However it was not placed on the floor by the store’s owner or employees and there is no evidence that they had actual knowledge of its presence.  Thus, the issue is whether the ice cream was on the floor long enough so that store personnel should have known of it.

The length of time sufficient to establish negligence on the part of the defendant store owner depends on the facts of the case.  There may be direct or circumstantial evidence of how long the substance was on the floor.  In addition, consideration should be given to the opportunity for the defendant’s employees to discover the danger, taking into account their number, their physical proximity to the dangerous condition and, in general, the likelihood that they would become aware of the dangerous condition in the normal performance of their work.

While melting ice cream, by itself, is not sufficient evidence that the ice cream has been on the floor long enough for the defendant to have discovered it, the fact that the ice cream was located directly in front of the snack bar, and therefore was visible to store personnel working at the snack bar, will probably be enough to establish the store owner’s negligence.

The Errant Walnut 

Because Joe does not know for how long the walnut had been on the floor before he slipped on it, Joe is unlikely to be able to prove negligence on the part of the store in any of the three ways previously outlined in the section about Harry’s ice cream fall.

He cannot prove that the store caused the walnut to be on the floor, that the store had actual knowledge of the dangerous condition or that the walnut was present on the floor for such a length of time that the store should have known about it.

However, Joe may be able to take advantage of another special rule.  In Sheehan v. Roche Bros. Supermarkets, Inc., a 2007 decision, 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 an 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 know 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.  However, 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 to 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).  Although the mode of operations approach could, theoretically, apply whenever a defendant’s method of doing business poses foreseeable dangers to customers, the courts have thus far applied it only in cases where defendant businesses were self-service establishments.

A court would probably apply a mode of operations analysis to Joe’s claim.  Because the store was a self-service establishment and it knew or should have known that produce, including walnuts, was likely to be dropped on the floor, posing a danger to customers.  Joe need not, therefore, prove that store personnel had actual or constructive knowledge of the particular walnut on which Joe slipped.  Joe will still have to show that the store failed to take reasonable measures to protect its customers.

Did the store assign employees to periodically remove debris from the floors?  If so, how many employees and how often did they clean the produce section floor?  Were the walnuts packaged and/or displayed in a manner that decreased (or perhaps increased) the risk that one would fall on the floor?  These factual questions, and others, are relevant to determining whether the store acted negligently.

Although the three slip and fall claims discussed in this article were subject to three different legal rules, the ultimate legal standard governing all such claims remains the same.  In every case, a store owner must act reasonably under the circumstances.  What is reasonable depends on the facts of each case.  Specialized rules, such as for transient weather conditions or self-service stores, help define reasonable conduct in these limited situations.

The great majority of private sector workers are employed on an “at will” basis. Under this arrangement, either the employer or the employee can end the employment relationship for almost any reason or for no reason at all. However, recognizing that at will employment tended to put disproportionate power in the hands of the employer, courts and legislatures since the 1960s have limited the at will employment doctrine in a number of important respects. Both employers and employees should know these important exceptions to at will employment.

1. An at will employee cannot be fired for discriminatory reasons.

While an at will employee can be fired for virtually any reasons or no reason, he or she cannot be fired for improper reasons. Federal statutes prohibit discrimination on the basis of age, disability, race, color, religion, national origin, gender. Massachusetts law also prohibits these types of discrimination and, in addition, prohibits discrimination based on sexual orientation. Nor can an employer fire an at will employee in violation of various other federal statutes, including the Family and Medical Leave Act, and the Occupational Safety and Health Act.

2. An at will employee cannot be terminated if doing so violates an important state public policy.

An at will employee cannot be fired if doing so would violate public policy. The employer cannot terminate an employee: (1) in retaliation for the employee asserting a legally guaranteed right such as making a workers’ compensation claim; (2) for doing something legally required like serving on a jury; or, (3) for refusing to do something illegal, like committing perjury.

3. An implied contract may alter the employee’s at will status.

In the absence of any indication to the contrary, an employee is assumed to be hired on an at will basis. However, Massachusetts courts recognize that even in the absence of an express contract for other than at will employment, there may be an implied contract. Often, employees assert the existence of an implied contract based on the terms of an employee handbook. Under appropriate circumstances, such a handbook can be a binding implied contract, modifying the terms of employment.

However, to establish that the handbook is an implied contract, the employee must show that, “considering the context of the manual’s preparation and distribution as well as its specific provisions, an employee would be objectively reasonable in regarding the manual as a legally enforceable commitment concerning the terms and conditions of employment.” While a number of factors are relevant to this determination, a handbook is unlikely to form the basis of an implied contract if the employer reserves the right to unilaterally modify the terms of the manual.

An employer should definitely consult an attorney when drafting its employee handbook.

4. The implied covenant of good faith and fair dealing.

Under a line of cases originating with the Massachusetts Supreme Judicial Court’s 1977 decision in Fortune v. National Cash Register Co., a covenant of good faith and fair dealing is implied in every at will employment contract and is breached where the employer terminates an at will employee for the purpose of depriving the employee of a “commission earned but not yet payable.” Michelson v. Digital Financial Services, 167 F.3d 715, 726 (1st Cir. 1999), citing Fortune, 364 N.E.2d at 1257. Later cases extended Fortune, holding that the employer breaches the implied covenant of good faith and fair dealing by terminating an at will employee “without good cause and for the purpose of appropriating the employee’s commissions that were `reasonably ascertainable future compensation based on his past services.’” Michelson, 167 F.3d at 726, quoting Gram v. Liberty Mutual Ins. Co., 429 N.E.2d 21, 29 (Mass. 1981). The purpose of the implied covenant is to prevent the employer from becoming unjustly enriched.

Notably, to recover for breach of the covenant it is not necessary that the employee prove that the commissions of which he or she was deprived were actually due and payable at the time the employee was terminated. Rather, an employer may be liable for breach of the covenant even if the employee has not become absolutely entitled to receive the commissions, so long as the employee had performed the services to which the commissions in question were related.

Common sense.

For the most part, the foregoing limitations on the at will employment doctrine represent nothing more than common sense. No employer can reasonably believe that is “ok” to fire an employer for refusing to break the law, for asserting legally protected rights, or for prohibited discriminatory reasons. Nor could any employer exercising common sense think it proper to fire an employee simply to avoid paying commissions earned. Finally, the risk of implied contract claims can be avoided with proper attention to drafting of the employee handbook and other materials.

On a crisp fall morning, Donald wakes up, brushes his teeth, has morning coffee, starts his walk to work and is immediately run over by a taxi owned and operated by Quentin Smith. Smith was driving the tiny Smart Car cab down the sidewalk to avoid rush hour traffic, and had become distracted while texting.

Donald was seriously injured and Smith was obviously negligent, but Donald inexplicably fails for years to file a lawsuit for damages. At 3:00 PM, on the third anniversary of the accident, Donald finally contacts a Boston lawyer about the accident, which happened in Massachusetts. The lawyer instantly recognizes that the three year statute of limitations for negligence claims either has expired or is about to expire. Massachusetts G.L. c. 260, §2A provides: “actions of tort … shall be commenced only within three years next after the cause of action accrues.” She dashes off a Complaint, runs to the courthouse and files the action at 4:59 PM that day.

But is she too late? If the day of the accident is counted as part of the limitations period, then three years would expire the day before the anniversary date. However, if the day of the accident is not counted, then the period would expire on the third anniversary.

Massachusetts law.

Massachusetts courts do not count the day on which a cause of action accrues (usually the day of the accident in negligence actions) as part of the limitations period. In Poy v. Boutselis, 352 F.3d 479, 484 (1st Cir. 2003), the United States Court of Appeals for the First Circuit explained that, “long standing Massachusetts precedent exclude[s] the date of accrual from the calculation of the limitations period” under c.260, §2A). See also O’Malley v. Town of Egremont, 453 F.Supp.2d 240, 245 (D. Mass. 2006) (holding that complaint was timely filed under §2A when filed on the third anniversary of accrual. The Court cited Poy as “confirming that, under both federal and Massachusetts rules, the last day for filing civil rights actions is the third anniversary date of the event” (internal quotation marks omitted)); Vaughn v. American Automobile Association, Inc., 326 F.Supp.2d 195, 198 n.2 (D. Mass. 2004)(“Under Massachusetts law, the time period [under c.260, §5A] begins to run one day after the cause of action accrues, with the last day for filing suit being the anniversary date of the event” (internal quotation marks omitted)); Opinion of the Justices, 291 Mass. 572, 574 (1935)(“The computation of time from a date, event or act excludes the day from which the time begins to run”); Sweeney v. Morey & Co., 279 Mass. 495, 502-03 (1932) (“In computing time from a date, act or event, the settled rule, here applicable is to exclude the day from which the period of time runs unless contrary intention is disclosed by the statute, instrument or contract with respect to which the question arises”); Bemis v. Leonard, 118 Mass. 502, 506 (1875) (“In this Commonwealth, the general rule, as applied in a variety of circumstances, and now well established, is, that in computing time from the date, or from the day of the date, or from a certain act or event, the day of the date is to be excluded, unless a different intention is manifested by the instrument or statute under which the question arises.”).

Federal Law

The federal courts apply the same rule, not counting the day of accrual, even when the limitations period is specified in a federal statute. They incorporate the time counting provisions of Fed. R. Civ. P. 6(a), which state,

When the period is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day….

In Kollios v. United States, 512 F.2d 1316, 1316-17 (1st Cir. 1975), the United States Court of Appeals for the First Circuit held that where a cause of action accrued on July 23, 1973, a six month limitations period expired on January 23, 1974, the six month anniversary of the date of accrual. According to the United States District Court for the District of Massachusetts in Bell v. U.S., 1986 WL 13401, *1 (D. Mass. 11/20/86),

The accrual date of the plaintiff’s claim in this case was the date of the accident, February 3, 1984. In accordance with Fed.R.Civ.P. 6(a) and the so-called “modern doctrine” followed in this circuit, … the limitation on the plaintiff’s claim began to run on February 4, 1984 and ended on February 3, 1986. Thus, the plaintiff must have presented his claim on or before February 3, 1986, or his action is barred by the § 2401(b) statute of limitations.

(footnote reference omitted)).

Other federal courts apply the same rule. The court in Johnson v. Riddle, 305 F.3d 1107 (10th Cir. 2002), noted that, with only one possible exception, every circuit to have addressed the issue has held that the day of the event is excluded from the limitations period. See also Mattson v. U.S. West Communications, Inc., 967 F.2d 259, 262-63 (8th Cir. 1992) (McMillian, J. dissenting); Lawson v. Conyers Chrysler, Plymouth and Dodge Trucks, Inc., 600 F.2d 465, 465-66 (5th Cir. 1979) (applying rule to TILA statute of limitations); Krajci v. Provident Consumer Discount Co., 525 F.Supp. 145, 150 (1981), aff’d 688 F.2d 822 (3rd Cir. 1982) (applying rule to TILA statute of limitations); McMillon v. Budget Plan of Virginia, 510 F.Supp. 17, 19 (E.D. Va. 1980) (applying rule to TILA statute of limitations); Gammons v. Domestic Loans of Winston-Salem, Inc., 423 F.Supp. 819, 822 (M.D. N.C. 1976) (applying rule to TILA statute of limitations); Braggs v. JIM Skinner Ford, Inc., 396 So.2d 1055, 1060 (Ala. 1981) (holding, “in accordance with the great weight of authority … [that] the date of the TILA violation is not to be included when figuring whether the complaint was filed within one year”). As the Johnson court explained, the one circuit court to have taken a contrary position (the Eighth circuit in Matson) may have more recently abandoned that position.

Despite his procrastination, Donald’s action is not time barred.

Mr. Jones and Mr. Brown live in a neighborhood of exceedingly expensive homes. To ensure that the side lawn of his home retains its golf course like appearance, Mr. Jones installs an underground sprinkler system. His neighbor, Mr. Brown, who has less of a green thumb, likes this very much because the sprinklers throw a good deal of water onto his adjoining property, turning his yard into a lush paradise. Good spirits prevail for a number of years until Mr. Brown discovers, through a routine survey, that Mr. Jones’ sprinklers and some of their underground pipes encroach on Mr. Brown’s side of the property line. They extend about two feet into the Brown property over a distance of about 100 feet.

Recognizing an opportunity, Mr. Brown informs Mr. Jones of the problem and suggests that Mr. Jones purchase the 200 square foot strip for $200,000. Otherwise, Mr. Brown says, he will be forced to seek a court order mandating removal of the encroaching sprinklers. Mr. Jones does not respond, instead selling his property to Mr. Green, who purchases with knowledge of the sprinkler dispute. Mr. Green declines Mr. Brown’s kind offer, regarding it as little short of extortion and expressing the opinion that the encroachment is so minimal that a court would never order the sprinklers removed. Mr. Green notes that the sprinklers do not interfere with Mr. Brown’s use of his property, that their removal would be quite expensive for Mr. Green and that Mr. Jones installed them innocently, without knowledge of the encroachment. As appealing as Mr. Green’s argument might sound, he is almost certainly wrong and a court will most likely order the offending sprinklers removed.

The general rule requiring removal of encroachments.

Massachusetts courts have made clear that the general rule, to be applied in all but the most extraordinary circumstances, is that any unlawful encroachment on the property of another must be removed, even if the encroachment is small, does little harm to the landowner and its removal would be costly. In Wilkins v. Pesek, 2008 WL 80217 (Mass. Land Ct. 1/9/08), where there was an encroaching fence, the Land Court stated:

Under Massachusetts law, it is rare-exceptional, really-for a party who is maintaining an encroachment upon the land of another not to be ordered to remove the encroachment. Indeed, a landowner is usually entitled to equitable relief to compel the removal of structures encroaching on his or her land, even if the encroachment is unintentional and the cost of removing the structure is substantial compared to the injury suffered by the lot owner…. It is well settled that the law disfavors disturbing or diminishing the record title to land, and favors compelling the removal of structures encroaching upon another’s property. [The courts] have been loath not to [order removal of encroachments], even though the plaintiff may have suffered little or no damage on account of the offending building or structure, or the costs of removing the encroachment is greatly disproportionate to the benefits to the plaintiff resulting from its removal….

Id. at *8. See also Peters v. Archambault, 361 Mass. 91, 92 (1972); Cormay v. Bain, 2005 WL 715706, *3 (Mass. Land Ct. 3/30/05); Russo v. Gulla, 2002 WL 1805420, *2 (Mass. Super. 8/6/02); Pave v. Mills, 1999 WL 791952, *7 (Mass. Super. 6/30/99). Thus, in most cases, the fact that the encroachment has a minor impact on the landowner, but its removal would saddle the other party with considerable expense, is “without legal consequence” because the court will not exercise its equitable power to “violate a legal principle.” Feinzig v. Ficksman, 42 Mass. App. Ct. 113 (1997). See also Calci v. Reitano, 66 Mass. App. Ct. 245 (2006).

In Goulding v. Cook, 422 Mass. 276 (1996), the Supreme Judicial Court explained that the rule requiring removal of even small encroachments is necessary to protect private property rights.

It is commonplace today that property rights are not absolute, and that the law may condition their use and enjoyment so that the interests of the public in general or some smaller segment of the public, perhaps just immediate neighbors, are not unduly prejudiced…. But except in ‘exceptional’ cases, we draw the line at permanent physical occupation amounting to a transfer of a traditional estate in land…. [W]e are committed to maintaining [that line] because the concept of private property represents a moral and political commitment that a pervasive disposition to balance away could utterly destroy.

422 Mass. at 277-78. Citing Goulding, the Court in Pave held that,

even if the defendants can show that their encroachment was made innocently and the cost of removal would be greatly disproportionate to the injury to the plaintiffs from its continuation, our law does not sanction this type of private eminent domain…. The fundamental aspect of ownership is that the owner of a thing has the right to prevent others from taking it from him, even if the takers are willing to pay damages.

1999 WL 791952, *8.

Exceptions to the general rule.

While the general rule requiring removal of encroachments is subject to very limited equitable exceptions, those exceptions would not help Mr. Green maintain his encroachment on Mr. Brown’s property. In Goulding, the Supreme Judicial Court said:

In rare cases, referred to in our decisions as ‘exceptional’ courts of equity have refused to grant a mandatory injunction and have left the plaintiff to his remedy of damages, ‘where the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation, or where the substantial rights of the owner may be protected without recourse to an injunction, or where an injunction would be oppressive and inequitable. But these are the exceptions…. What is just and equitable in cases of this sort depends very much on the particular facts and circumstances disclosed.’

422 Mass. at 277 n. 3, quoting Peters, 361 Mass. at 93. The Goulding Court also stated:

Like most propositions in the law the one we reaffirm now has some play at the margins. Accordingly, the Appeals Court is quite right that the courts will not enjoin truly minimal encroachments, especially when the burden on a defendant would be very great. The classic example is given in Restatement (Second) of Torts § 941 comment c, supra at 583:

“The defendant has recently completed a twenty-story office building on his lot. The work was done by reputable engineers and builders, and they and the defendant all acted in good faith and with reasonable care. It is, however, found that from the tenth floor upward the wall on the plaintiff’s side bulges outward and extends over the line. The extent of the encroachment varies at different points, the maximum being four inches.”

Such accommodation recognizes the necessarily approximate nature of all legal lines and principles.

422 Mass. at 279-80.

Thus, an exception may apply when “the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation.” Goulding, 422 Mass. at 277 n. 3. Neither condition is satisfied by Mr. Green. First, although the encroachment may have been innocent when made, in the sense that Mr. Jones, who installed the pipes, did not know they encroached on the Brown property, the current owner of the encroaching sprinklers, Mr. Green, purchased his property with knowledge of the encroachment. In Latka v. Nielsen, 2009 WL 4894356 (Mass. Super. 11/23/09), the Superior Court held that a party could not take advantage of the innocent encroachment exception, stating,

Even if the defendants’ predecessor-in-title had made an innocent mistake when she installed the septic system, the defendants in this case cannot claim the benefit of this very narrow exception when they admit that they knew of the encroachment before they purchased their home, and yet went forward with the closing despite having failed to negotiate an expansion of the easement with the plaintiffs. In essence, they bought their home with advance notice that they might also be inheriting a lawsuit.

Id. at *2 n. 5.

Nor is the cost to Mr. Green of relocating his sprinklers grossly disproportionate to the injury Mr. Brown would suffer if the use of the sprinklers were to continue. The cost of relocating the sprinkler system is likely to be very small compared to the great value of Mr. Green’s property. In addition, to the extent the presence of the sprinklers prevents Mr. Brown from utilizing the 200 foot strip (e.g. planting trees or installing other landscaping), the burden on Mr. Brown of maintaining the sprinklers may be significant. Mr. Green would argue to the contrary that the burden on Mr. Brown is minimal in comparison with the size and value of Mr. Brown’s property.

The second exception to the general rule requiring removal applies when the encroachment is “truly minimal” and the “burden on [the] defendant would be very great.” Goulding, 422 Mass. at 279-80. Here, the encroachment clearly is not de minimis. Massachusetts cases establish that in order to qualify for the de minimis exception, the encroachment must be extremely small. In Feinzig, the Appeals Court gave examples of the types of encroachment which would be considered de minimis.

What is truly minimal is not subject to a litmus test, but examples are: Tramonte v. Colarusso, 256 Mass. 299, 300, 152 N.E. 90 (1926) (bulge of a building over the line by one-eighth to one-quarter of an inch); Loughlin v. Wright Machine Co., 273 Mass. 310, 315-316, 173 N.E. 534 (1930) (sewer pipes under six inch strip of land); Triulzi v. Costa, 296 Mass. 24, 28, 4 N.E.2d 617 (1936) (a few bricks imbedded in defendant’s wall projected a few inches into plaintiff’s wall); Restatement (Second) of Torts § 941 comment c, at 583-584 (1979) (bulge over the line to a maximum of four inches above tenth floor of a building).

42 Mass. App. Ct. at 117-18. The Feinzig Court held that an encroachment of up to seven feet in width which covered 195 square feet of the owner’s side yard, was not de minimis. Id. See also Calci, 66 Mass. App. Ct. 245 (encroachment of second story porch and utilities was not de minimis); Latka, 2009 WL 48943556, *3 (encroachment not de minimis where defendant’s leach pits extended beyond the boundaries of an easement by feet, not inches); Wilkins, 2008 WL 80217, *8-9 (encroachment not de minimis where “we have an encroachment, in a densely settled city neighborhood, over a valuable 127 foot long strip of residential land, which is up to one foot in depth.”); Cormay, 2005 WL 715706, *3 (encroachment of 0.2 feet for a distance of 100 feet was not de minimis, noting that defendant had not shown that removal of the fence would be a hardship, that it was installed innocently, or that removal would be an oppressive result.); Russo, 2002 WL 1805420, *3 (well, located between 6” and 14.75” from property line, was significant, not de minimis encroachment. Court noted that removal would not be a great burden on the defendant and would not imperil any structure on the property); Pave, 1999 WL 791952, *8 (encroachment of 360 square feet, by wall which extended between 7.5” and 18” into plaintiff’s property was not de minimis. Court noted that the encroachment equaled 7.5% of the net livable/sellable space).[1]

As the foregoing illustrates, a court is likely to order Mr. Green to relocate his sprinklers. His case does not present the kind of exceptional circumstances which justify a deviation from the general rule requiring removal of encroachments. The encroachment is not de minimis, its removal would not impose a disproportionate burden on Mr. Green, and removal would not jeopardize the structural stability of Mr. Green’s home. Perhaps Mr. Green should reconsider Mr. Brown’s offer.

Endnotes

[1] See Pave, 1999 WL 791952, *8, quoting Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 (1999) (encroachment held to be de minimis and allowed to remain where “two brick corner walls … encroached upon an 11,878 square foot parcel belonging to the plaintiff. The first wall, 23.77 feet long, encroached increasingly in taper from zero to 3.6 inches; the second, 8.38 feet long, consistently encroached 4.8 inches. The encroachments burdened a small open courtyard which the plaintiff uses to store trash. The plaintiff made no argument that the encroachment denied him in any way the beneficial use of his land. Further, the uncontroverted evidence at trial was that removal of these walls would render the defendant’s building unsafe.”).

A parent generally is not legally responsible for auto accidents caused by his or her child’s driving. If, however, the child has a record of repeated traffic violations, or has shown a tendency to drive recklessly or incompetently, the parent should take extra precautions to ensure that the child is not given the opportunity to injure others. Failing to do so may render the parent liable for negligent supervision or negligent entrustment.

Imagine an accident in which a 17-year-old boy, driving with his parents’ permission a car owned by, and registered to, his parents, runs a red light while speeding and hits your car, seriously injuring you. Prior to the accident, his parents knew that he had received two citations for speeding and one for failing to stop at a red light. They had warned their son on multiple occasions that he was driving too aggressively.

In addition to a claim against the driver for negligence, you may have a viable cause of action against his parents for both negligent supervision and negligent entrustment.

A. Negligent supervision.

In Cooke v. Lopez, 57 Mass. App. Ct. 703 (2003), the Court listed the elements of a negligent supervision claim:

Parents have a duty to exercise reasonable care to prevent their minor children from intentionally or negligently inflicting harm on others…. This duty arises “when the parent knows or should know of the child’s propensity for the type of harmful conduct complained of, and has an opportunity to take reasonable corrective measures.”…

To prove a claim of negligent supervision, the plaintiff must show the parent’s awareness of “a dangerous tendency”; “a propensity for reckless or vicious behavior”; or a “propensity for a particular type of harmful conduct” on the part of the child, as well as a lack of appropriate action on the part of the parent. …

The parents’ knowledge that their son had been cited not just once but three times for dangerous driving, and of other prior incidents of overly aggressive driving, may or may not be sufficient to establish their awareness of “a dangerous tendency,” “a propensity for reckless or vicious behavior,” or a “propensity for a particular type of harmful conduct” on the part of the [driver].” In numerous cases, courts have held that a parent’s awareness of one, two or even “several” prior incidents is not enough to render them liable for negligent supervision.

Success on the negligent supervision claim will probably depend on whether the jury finds that a reasonable parent, armed with the same knowledge, would have supervised the driver more closely.

B. Negligent entrustment.

In order to prove a claim for negligent entrustment,

the plaintiff must establish that (1) the defendant entrusted a vehicle to an incompetent or unfit person whose incompetence or unfitness was the cause of the plaintiff’s injuries; (2) the persons who owned and controlled the vehicle gave specific or general permission to the operator to drive the [vehicle]; and (3) the defendant had actual knowledge of the incompetence or unfitness of the operator to drive the vehicle…. Actual knowledge by the entrustor of the unfitness of the entrustee at the time permission was granted is a critical element….

Picard v. Thomas, 60 Mass. App. Ct. 362, 369 (2004). Evidence that the driver entrusted with the vehicle was known to be inexperienced is not enough. Proof that the person entrusting the vehicle knew the driver was unfit is required.

In cases where negligent entrustment has been found, the person entrusting the vehicle was aware that the driver had a long history of multiple traffic infractions/accidents. The success of your negligent entrustment claim would depend on a jury concluding that reasonable parents, aware that their son had been cited for three moving violation and tended to drive too aggressively, would not have entrusted their vehicle to him.

A Death Certificate can be an important piece of evidence in a wrongful death case. When a defendant disputes the cause of the decedent’s death, the plaintiff may attempt to introduce in evidence a Death Certificate which lists the cause of death. However, the defendant may seek to exclude the Death Certificate, or at least the portion of it that states the cause of death, based on the provisions of Massachusetts G.L. c. 46, §19.

That statute provides, in relevant part:

The record of the town clerk relative to a birth, marriage or death shall be prima facie evidence of the facts recorded, but nothing contained in the record of a death which has reference to the question of liability for causing the death shall be admissible in evidence.

(Emphasis added). The question is whether the portion of the Death Certificate listing the cause of death can be excluded by arguing that this section contains a “reference to the question of liability for causing the death.”

Massachusetts courts have considered and rejected this argument. In Wadsworth v. Boston Gas Co., 352 Mass. 86 (1967), the Supreme Judicial Court explained that:

A practical construction of the statute requires that a record which relates directly and mainly to the treatment and medical history of the patient, should be admitted, even though incidentally the facts recorded may have some bearing on the question of liability. A similar rule of construction governs the admissibility of entries in death certificates (G.L. c. 46, s 19). Where the words have reference to the injuries of the deceased, they are admissible, even though incidentally they may have some bearing on the question of liability.

Id. at 92-93 (emphasis added, internal quotation marks omitted), citing Trump v. Burdick, 322 Mass. 253 (1948). See also Comm. v. Lannon, 364 Mass. 480, 484 (1974); Blake v. Southcoast Health System, Inc., 206 F.Supp.2d 174, 179 (D. Mass. 2002) (“There can be little doubt but that the medical examiner’s opinion as to the cause of death is generally admissible”) rev’d on other grounds, 329 F.3d 43 (1st Cir. 2003); Riccio v. Horwitz, 17 Mass. L. Rptr. 329, 2004 WL 330272, * 1-2 (1/12/04).

In Riccio, the Superior Court summarized the law on this issue:

[R]egarding the admissibility of the “cause of death” entries on death certificates, the Supreme Judicial Court has held that “[w]here the words have reference to the injuries of the deceased, they are admissible, even though incidentally they may have some bearing on the question of liability.” Wadsworth v. Boston Gas Company, 352 Mass. 86, 93 (1967). The words “Probable Pulmonary Embolism” refer to a medical condition and circumstances which, when viewed in isolation, do not ascribe fault to any particular person and, when viewed in the context of this medical malpractice action where the cause of death is vigorously contested, the words are not dispositive….

The language in the death certificate does not impute fault; it merely reflects the medical opinion of the attending physician, Dr. Dienhart, that the cause of death was respiratory arrest due to, or as a consequence of, probable pulmonary embolism. Therefore, although the death certificate is probative on the issue of liability, otherwise it would not be admissible, the opinion expressed therein is admissible by statute.

2004 WL 330272, *1-2. (Footnote references omitted).

Of course, a statement in a Death Certificate ascribing fault or liability to a particular person would not be admissible. But so long as the Death Certificate simply states the cause of death without expressly dealing with fault or liability, it should be admissible in its entirety.

Updated: October 25, 2020

Legal outsourcing is a smart business strategy that can save an attorney time while simultaneously increasing profits, lowering client costs and improving the quality of service. Contrary to what many attorneys believe, outsourcing is not limited to large law firms sending simple work offshore. Smaller firms and their clients can reap substantial benefits by outsourcing complex work, including legal research, motion practice and appellate briefs, to experienced, local freelance attorneys who take assignments on a contract basis.

Small firm attorneys face growing pressure from clients to reduce costs while continuing to provide high quality representation. They also face periodic work overloads and sometimes encounter unfamiliar legal issues. Additionally, a small firm may have the opportunity to take on new business but not want the added expense and responsibilities that come with hiring, training and paying a new associate. In response to these challenges, an increasing number of small firms and solo practitioners are outsourcing projects such as legal research and writing to seasoned contract attorneys.

The benefits of outsourcing.

Outsourcing legal work offers small firm attorneys and their clients a number of potential advantages, while maintaining the small firm practice model:

• Save time and avoid work overloads. A well-written motion, pleading or brief, based on quality legal research, can make the difference between winning and losing a case. But research and writing take time that an attorney may not have. Work overloads and difficult deadlines are facts of life. By outsourcing an assignment to a contract provider of legal services, an attorney can regain control of his or her schedule while ensuring that the client receives the highest quality legal research and writing.  The outsourcing attorney gains time which can be devoted to maintaining existing client relationships or developing new ones.
• Increase revenue by taking new business. There are a number of ways in which outsourcing can help an attorney make more money. First, by outsourcing part of his or her workload, an attorney can take on additional work from new or existing clients, increasing revenues and profits, without having to hire a new associate. In addition to the costs of hiring, training and paying a new associate, a solo or small firm attorney must assume the other obligations that come with “employer” status, including managing employee benefits. By outsourcing work to a contract attorney on a project-by-project basis, the outsourcing attorney reaps additional profits while avoiding those added costs. Outsourcing is particularly useful if it is unclear whether the growth in a practice is permanent. While hiring a new associate involves many fixed costs (salary, office space, etc.), an attorney pays for outsourced legal work only when there is a need for it.
• Increase profits by charging a premium on outsourced work. A small firm can also improve its bottom line by charging its client a premium for outsourced legal work, above the amount charged by the contract attorney. The American Bar Association has opined that “a law firm that engaged a contract lawyer could add a surcharge to the cost paid by the billing lawyer provided the total charge represented a reasonable fee for the services provided to the client.” ABA Formal Opinion 08-451, quoting ABA Formal Opinion 00-420.
• Increase efficiency and save the client money. Few attorneys specialize in legal research. Most also lack the time to focus on the latest developments in legal research sources and technologies. A provider of outsourced legal services does both. Such a provider also is likely to complete a project more efficiently and more economically, reducing the outsourcing attorney’s costs and saving his or her client money (even if the attorney adds a reasonable profit).
• Gain access to greater research resources. Another advantage of outsourcing is that it allows a solo or small firm attorney access to greater resources. A provider of outsourced legal research and writing is likely to have access to a broad array of electronic and traditional research sources. Outsourcing can give the attorney the same research resources as a much larger firm that may represent the client’s litigation adversary, thereby leveling the playing field when a small firm faces off against a behemoth.
• Access the expertise required to win complex cases. Outsourcing also makes available another important resource: knowledge. A solo or small firm attorney may encounter unfamiliar legal issues. In the past, a small firm offered a case which presented such an unfamiliar issue would have had to either decline the new business or refer the client to another firm. Either option entails both the certain loss of revenues from the case in question and the potential loss of the client and all future revenues. By outsourcing, a solo or small firm practitioner can team up with an experienced, freelance attorney who has expertise in the relevant areas of law. The amount and kind of knowledge obtained will depend on the contract attorney chosen. A legal services provider may work alone or in a larger firm whose attorneys practice in diverse areas of law. Such a firm may offer a larger knowledge base. A good provider of legal research and writing will help with issues that may be outside the outsourcing attorney’s expertise and will identify additional issues raised by the facts of the case.
• Maintain client relationships. By outsourcing, the solo or small firm attorney gets needed help while retaining and protecting the relationship with his or her client. A provider of outsourced legal services works for the outsourcing attorney and does not deal directly with the attorney’s client.
• Retain control. An attorney who outsources remains responsible for overseeing the work and for the final product. He or she reviews and approves all final documents and also controls every aspect of the project, agreeing with the provider on scope of work, timetable and budget.
• Focus on more profitable and enjoyable activities. Many attorneys simply don’t like spending long hours doing complex, demanding legal research and writing documents which comply with equally complex court rules. In addition, a solo or small firm lawyer may find that after completing research, writing and other substantive legal work, there is no time left for the attorney’s other critical obligation: rainmaking. By hiring a contract legal services provider to help with legal research and writing, a solo or small firm attorney can pay increased attention to business development, work on more enjoyable projects, and perhaps even have some time left over to spend with friends and family.

How outsourcing works.

When outsourcing legal research and writing, the attorney becomes the provider’s client. No relationship is created between the provider and the attorney’s client. The provider does not become counsel of record for the attorney’s client.

Providers of outsourced legal research and writing offer a wide variety of services. They can produce anything and everything from a simple list of citations to a signature ready appellate brief. An outsourcing attorney may want a trial brief, a memorandum providing objective analysis, a jury verdict search, legal content for a website or help with an article for publication. A contract attorney can become familiar with a complex case and assist with motion practice and discovery, in consultation with the outsourcing attorney. When outsourcing, the attorney defines the precise work to be done.

While outsourcing has an obvious role to play in cases where the outsourcing attorney is paid hourly, it may also be useful in contingent cases to the extent it frees time to devote to well-paying hourly cases. In addition, outsourced legal research may be useful in determining the viability and value of a case, informing the decision whether to take a case at all and, if so, whether to do so on a contingency.

Though each provider of outsourced legal services has its own procedures, the process generally involves the following steps.

• The outsourcing attorney contacts the provider and gives the names of the parties and attorneys involved in the case as well as a general description of the project (e.g. researching a particular legal issue or preparing a motion seeking certain relief).
• The provider performs a conflicts check.
• The outsourcing attorney discusses the project in more detail with the provider, defining the scope of work, when the project needs to be completed and the budget for the project.
• After the attorney and the provider agree on the project and the budget, the attorney signs a contract and may be asked to pay a retainer. The provider then starts working on the project.
• The outsourcing attorney should be able to contact the provider throughout the project and the provider should alert the attorney to any questions or new issues raised by the research.
• The provider sends the attorney a draft of the memorandum, pleading or other work product. After receiving feedback, the provider produces final copy.

It’s that simple.

Is it ethical?

The ABA has made clear that “[t]here is nothing unethical about a lawyer outsourcing legal and nonlegal services, provided the outsourcing lawyer renders legal services to the client with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” ABA Formal Opinion 08-451. (Internal quotation marks omitted). See also ABA Formal Opinion 17-477.  The Massachusetts Rules of Professional Conduct also approve of outsourcing under appropriate circumstances. Readers should consult their state’s ethical rules and applicable ethical opinions.

Ethical issues arising from outsourcing include:

• Conflicts: The provider of outsourced legal services should check every incoming project for conflicts, applying the standards of the Massachusetts Rules of Professional Conduct and applicable ethical opinions.  See ABA Formal Opinion 08-451. 
• Confidentiality: The provider should treat all information provided by the outsourcing attorney as confidential and subject to the attorney-client privilege and work product doctrine. ABA Formal Opinion 08-451 states that, “the outsourcing lawyer should be mindful of the obligation to ‘act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.’ This requires the lawyer to recognize and minimize the risk that any outside service provider may inadvertently – or perhaps even advertently – reveal client confidential information to adverse parties or to others who are not entitled to access.”  (Footnote reference omitted).
• Oversight: According to ABA Formal Opinion 08-451, an outsourcing attorney has a duty “to ensure that tasks are delegated to individuals who are competent to perform them, and then to oversee the execution of the project adequately and appropriately.” Where the outsourcing attorney has direct oversight of the contract attorney, she must “make reasonable efforts to ensure that the [contract lawyer] conforms to the Rules of Professional Conduct.”  Id.  ABA Formal Opinion 08-451 and the comments to Massachusetts Rules of Professional Conduct, Rule 1.1, list factors relevant to the reasonableness of a decision to outsource to a particular provider.  You should consult your state’s ethical rules and applicable ethical opinions concerning outsourcing.

• Informing the outsourcing attorney’s client of the outsourcing: ABA Formal Opinion 08-451 provides that unless the outsourcing lawyer exercises a “high degree of supervision and control” over the contract attorney, the client’s consent must be obtained before any confidential client information is revealed to the contract attorney. Comment [6] to Rule 1.1 goes somewhat further, stating that the outsourcing attorney should “ordinarily obtain informed consent from the client.” Readers should consult their state’s ethical rules and applicable ethical opinions on this issue.
• Billing for outsourced work: ABA Formal Opinions 00-420 and 08-451 govern the amount which an attorney may charge a client for outsourced legal services. As noted above, in general, an attorney who outsources work may add a surcharge so long as the total fee charged to the client is reasonable. Readers should consult their state’s ethical rules and applicable ethical opinions.
• Licensing of the contract attorney: ABA Formal Opinion 08-451 states: “Ordinarily, an individual who is not admitted to practice law in a particular jurisdiction may work for a lawyer who is so admitted, provided that the lawyer remains responsible for the work being performed and that the individual is not held out as being a duly admitted lawyer.” Again, readers should consult their state’s ethical rules and applicable ethical opinions.
• Outsourcing to foreign attorneys: The ABA notes that particular care and extra diligence may be required when outsourcing to lawyers in foreign countries.

  When engaging lawyers trained in a foreign country, the outsourcing lawyer first should assess whether the system of legal education under which the lawyers were trained is comparable to that in the United States. In some nations, people can call themselves ‘lawyers’ with only a minimal level of training. Also, the professional regulatory system should be evaluated to determine whether members of the nation’s legal profession have been inculcated with core ethical principles similar to those in the United States, and whether the nation’s disciplinary enforcement system is effective in policing its lawyers.  ABA Formal Opinion 08-451.

Choosing a provider of outsourced legal research and writing.

Among the primary considerations in choosing a provider of outsourced legal services are whether the provider is competent to perform the work and the arrangement is such that the outsourcing attorney can exercise proper oversight of the project. Consider the education and experience of those who will be performing the work. Ask them how they will approach the project. Does the provider have access to the types of resources which the project requires? For research projects, access to Lexis or Westlaw on a flat rate plan is an important tool. Access to a major law library is also useful.

It is not necessary that the provider be licensed to practice in the outsourcing attorney’s state, because the attorney will be overseeing the work. However, additional due diligence may be required before outsourcing to a provider in a foreign country. Any provider should have malpractice or errors and omissions insurance.

The outsourcing attorney will also want to review samples of the provider’s writing, examining it for grammar, command of the English language, style and any obvious errors. The quality of the provider’s brochure or website is often illuminating. Writing samples also reveal the provider’s legal reasoning skills and ability to craft clear, concise and convincing legal arguments.

Is the provider familiar with the types of legal issues he or she will be required to understand and write about when completing the project? While a provider probably will not have dealt with the specific legal questions raised by a project, a lawyer outsourcing a personal injury issue, for example, should reasonably expect a provider to have some prior experience in tort law.

Finally, is the provider’s billing method acceptable, in light of the complexity of the project, the time constraints and the attorney’s budget?

Outsourcing: An opportunity to grow your practice and level the playing field.

Until recently, a solo or small firm attorney, faced with complex litigation against a well-funded adversary represented by a large law firm, was at a distinct disadvantage. Referring the case or at least obtaining co-counsel was often the only prudent option. Similarly, a solo or small firm attorney whose practice was growing had only the choice of taking on the new business and hiring one or more new associates or referring the extra business to other attorneys.

Outsourcing offers additional options. The solo attorney in a David v. Goliath litigation can now level the playing field by outsourcing labor intensive tasks, including research and writing, to an independent provider of legal services. By outsourcing, a solo practitioner can instantly increase productivity to whatever level the case demands and can acquire expertise in new legal areas. In like manner, an attorney whose practice is growing need no longer either hire new associates or forego the new business. A contract attorney can handle the new work when and as necessary. Outsourcing offers these advantages while helping the small firm attorney deliver high quality legal services more efficiently. In sum, outsourcing offers a powerful strategy to meet the challenges faced by small firms today.

To learn more about Lawyers Legal Research & Writing, click here.

On a warm summer night, a few customers cluster around a beach club’s relaxed bar, listening to a steel band and served by a bartender in a stunning white tuxedo. The idyllic scene is shattered when the bartender draws a gun and shoots one of the patrons, seriously wounding him. Questioned later, the bartender calmly explains that the patron deserved to die because he had said the drinks were too small. It turns out that the bartender had an extensive criminal record.

The injured patron sues not only the bartender, but also the bar owner, claiming that the owner negligently hired and retained the bartender, whom the owner should have known might commit violent acts against customers. Will the patron’s claim against the bar owner succeed? As usual in the law, it depends.

An employer whose employees have contact with the public has a duty to exercise care in the selection of employees. Foster v. Loft, 26 Mass. App. Ct. 289, 291 (1988). An employer who fails to use the required care may be liable for negligent hiring or negligent retention if an employee injures a customer or other third party. Id. The employer will be liable if he or she takes a risk with respect to a third person’s safety that a reasonable person would not have taken and, as a result, the third person suffers an injury which is reasonably foreseeable. Id.

Thus, a negligent hiring or retention claim raises four critical questions: (1) what facts about the employee were known to the employer or were reasonably available to the employer; (2) on the basis of facts known to the employer, was it foreseeable that harm would come to third parties such as the employer’s customers; (3) would a reasonable person have acted differently than the employer did; and (4) would those steps that a reasonable person would have taken have prevented the harm from occurring.

The liability of the bar owner in our hypothetical will depend in large part on whether the owner knew of the bartender’s criminal record. Although the injured patron might claim that the owner should have checked the bartender’s criminal record before hiring him, that is not the law of Massachusetts. With the exception of a few kinds of jobs, the general rule is that an employer has no duty to perform a criminal background check of a prospective employee, even when that employee will be dealing with the public. Thus, if the owner did not know of the bartender’s criminal record, the negligent hiring and negligent retention claims will probably fail (assuming that no other circumstances existed that would have made the owner aware of the danger).

The situation is more complex if the owner knew of the bartender’s criminal past. Whether an employer has acted negligently in hiring or retaining an employee depends on all of the surrounding circumstances. Where an employer knows a current or prospective employee has a criminal record, the employer “has a duty to investigate, within the limits of the law, any potential risk the employee may pose to third parties.” Or v. Edwards, 2001 WL 35937280 (Mass. Super. 5/23/01).

However, the fact that an employer is aware that a current or prospective employee has a criminal records does not, by itself, establish that the employer negligently hired or retained the employee. In Foster, the Court explained:

For us to hold that an employer can never hire a person with a criminal record or retain such a person as its employee at risk of being held liable for his tortuous assault flies in the face of the premise that society must make a reasonable effort to rehabilitate those who have gone astray.

While not dispositive, the fact that an employee has a criminal record is one important factor an employer must take into account. The reasonableness of the employer’s conduct depends on the nature of the criminal record and the type of job involved, among other things. In Foster, the Appeals Court affirmed a jury verdict holding the owner of a bar liable for negligently retaining a bartender despite knowledge that the bartender had a record of violent crimes. The Court pointed out that the nature of the criminal record, combined with the volatile atmosphere in which the employee would be working (one with a high potential for violent confrontations), made it unreasonable (and therefore negligent) to retain the bartender.

Notably, the fact that an employee has been released from prison on probation or parole can operate to shield the employer from liability for negligent hiring or retention if the employee harms a third party. In Coughlin v. Titus & Bean Graphics, Inc., 54 Mass. App. Ct. 633 (2002), the Court, noting that checking the employee’s criminal record would have revealed that the employee had been released on parole, stated:

Although Titus & Bean could make no predictions as to the future, it would not have been unreasonable for Titus & Bean to rely on the judgment of those professionals who had the most knowledge of Kelley’s recent behavior.

The Court continued:

A layperson, acting reasonably, need not anticipate danger from a person who has been released on probation or parole from a penal institution. The very fact of being placed on probation or parole imports a professional judgment by trained penal and medical personnel that the probationer or parolee does not represent a risk to society outside prison walls.

Id. at 640 n.10. See also Doe v. Foot Locker Corporate Services, Inc., 2008 WL 5467610, *9 (Mass. Super. 4/3/08).

In our hypothetical in which the bartender shot the complaining customer, if the owner was aware that the bartender had a criminal record, the owner’s liability may depend on the nature of the bartender’s past crimes and, perhaps, on whether he was paroled or on probation. Knowing that the bartender had a criminal record, the owner should have made some investigation to determine the nature of that record. However, the owner’s failure to investigate is immaterial if it would have been reasonable to hire the bartender even knowing the nature of his past crimes. In our hypothetical, the place of employment was a relaxed environment, in contrast to the volatile atmosphere in Foster. Thus, even if the bartender’s criminal record included violent crimes, it might not be unreasonable for the bar owner to employ him. Any other relevant circumstances known to the owner must also be taken into account. Further, if the bartender was paroled or released on probation, the owner could argue that he reasonably relied on the professional judgment, implicit in parole or probation decisions, that the bartender posed no risk to society.

In sum, an employer is only required to act reasonably. The employer is usually not required to run a criminal background check on current or prospective employees but, once aware of an employee’s criminal record, should investigate to determine the risk to third persons with whom the employee will foreseeable have contact. Even a violent criminal record is just one of the factors an employer should consider in determining whether to hire or retain an employee.