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After sitting in a hospital emergency room (“ER”) for more than four hours, waiting to see a doctor, Fred dies of a heart attack.  No one can explain how ER personnel had failed to immediately admit Fred, a seriously overweight 55 year-old who had come to the ER complaining of headache, nausea, dizziness and chest pains.  Although it promptly took Fred’s medical insurance information, the hospital failed to follow its own procedures for screening patients who came to the ER with symptoms indicating potential heart attacks.

Fred’s survivors consider a malpractice action against the hospital, and the doctors and nurses involved.  They also consider a claim under the federal Emergency Medical Treatment and Active Labor Act, 42 U.S.C. 1395dd (“EMTALA”).

However, the hospital claims that EMTALA is available only to indigent persons and not those capable of paying for treatment, through insurance or otherwise.  As explained below, the hospital’s defense is unfounded.  Although one purpose of EMTALA is to prevent hospitals from refusing to treat patients who lack insurance or other means to pay, EMTALA has a much broader reach.

 EMTALA  Overview.

EMTALA applies to almost all hospitals and governs a hospital’s obligations to patients who go to the ER or who are in or near the hospital and either ask for emergency treatment or are obviously in need of such treatment.  The statute requires hospitals: (1) to provide an appropriate medical screening to persons who come to the ER seeking medical assistance and (2) if an emergency medical condition exists, to render the services that are necessary to stabilize the patient’s condition.  Cruz-Queipo v. Hospital Espanol Auxilio Mutuo de Puerto Rico, 417 F.3d 67, 70 (1^st Cir. 2005), quoting Correa v. Hosp. San Francisco, 69 F.3d 1184, 1190 (1st Cir.1995).  (Emphasis added).  In addition, EMTALA restricts a hospital’s ability to transfer a patient suffering from an emergency medical condition to another hospital before stabilizing the patient’s condition.

“The essence of [the screening] requirement is that there be some screening procedure, and that it be administered even-handedly…. When a hospital prescribes internal procedures for a screening examination, those internal procedures set the parameters for an appropriate screening…. A hospital thus must adhere to its own procedures in administering the screening examination.”  Cruz-Queipo, 417 F.3d at 70, quoting Correa, 69 F.3d at 1190.

Notably, EMTALA does not provide a cause of action for medical malpractice.  Correa, 69 F.3d at 1192.  See also Ramos-Cruz v. Centro Medico del Turabo, 642 F.3d 17, 18 (1st Cir. 2011); Del Carmen Guadalupe v. Negron Agosto, 299 F.3d 15, 21 (1^st Cir. 2002); Rosado-Gonzalez v. Alejandro Otero Lopez Hosp., 836 F. Supp. 2d 48, 56 (D.P.R. 2011).  The mere fact that a patient receives substandard care or that ER personnel perform the required screening negligently does not, by itself, violate EMTALA.  “[A] refusal to follow regular screening procedures in a particular instance contravenes the statute, … but faulty screening, in a particular case, as opposed to disparate screening or refusing to screen at all, does not contravene the statute.”  Correa, 69 F.3d at 1192-93.

A patient can sue a hospital for damages arising from an EMTALA violation.  42 U.S.C. §1395dd(d)(2)(A).

Does EMTALA apply only to indigent patients?

Some defendants argue that EMTALA protects only patients who are indigent, and not those capable of paying for their own care, through insurance or otherwise.  That is not correct.

It is well established that both EMTALA’s screening requirement and its stabilization requirement apply without regard to a patient’s ability to pay or the hospital’s motivation.  In Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 252-53, 119 S.Ct. 685, 686-87 (1999), the United States Supreme Court held that EMTALA §1395dd(b), requiring that a hospital stabilize the patient before discharge, applies regardless of the hospital’s motivation.  Nor is the screening requirement applicable only to the indigent or uninsured.  In Correa, the Court of Appeals for the First Circuit stated:

[The hospital] maintains that depriving a patient of an appropriate screening, in and of itself, will not support an EMTALA claim. It suggests that a hospital can be liable for transgressing the statute only if economic concerns, such as the suspicion that the patient will be unable adequately to pay her way, drive the hospital’s actions. Since Ms. Gonzalez had insurance that permitted her hospital visit if an emergency existed, its thesis continues, its handling of her case could not have been motivated by concerns about her ability to pay….

Every court of appeals that has considered this issue has concluded that a desire to shirk the burden of uncompensated care is not a necessary element of a cause of action under EMTALA. … We think that these cases are correctly decided, and that EMTALA does not impose a motive requirement…. We hold, therefore, that EMTALA, by its terms, covers all patients who come to a hospital’s emergency department, and requires that they be appropriately screened, regardless of insurance status or ability to pay. See 42 U.S.C. § 1395dd(a).

69 F.3d at 1193-94.  (Emphasis added).  Monrouzeau v. Asociacion Del Maestro, 354 F.Supp.2d 115, 118 (D.P.R. 2005); Torres Otero v. Hospital General Menonita, 115 F.Supp.2d 253, 257 (D.P.R. 2000); Fuentes Ortiz v. Mennonite General Hospital, 106 F.Supp.2d 327, 332 (D.P.R. 2000).

By failing to screen Fred as required by its own procedures, the hospital may have violated EMTALA.  Fred’s family is not barred from bringing an EMTALA claim merely because Fred was not indigent.  Any patient who has been injured by a hospital’s breach of its EMTALA obligations should consider bringing an EMTALA claim.

As she looked at the exposed brick, high ceilings and massive windows of her new loft apartment, Jen could hardly believe her good fortune.  Located on the second floor of a converted mill building, the loft was in a trendy neighborhood populated by artists (and those who thought they were artists).  Her first floor neighbor was a small Italian bistro that shut down by 10:00 p.m. each night.  The situation seemed ideal and for a while it was.

Some months later, everything changes.  First, a mechanical problem interrupts the heat to her apartment.  Jen notifies the landlord who immediately takes steps to fix the problem.  Nevertheless, the heat remains off for two cold January days.

Next, the bistro closes and is replaced by a new tenant: a bar offering live music every night until 2:00 a.m.  While Jen likes music, she prefers not to listen to it through her floor in the wee hours of the morning.  Nor does she find interesting the drunken arguments which routinely take place on the sidewalk directly below her windows.

After a week of sleepless nights, Jen complains to her landlord.  However, the landlord claims to have no control over the bar or responsibility for the noise.  The landlord also points out that, in her lease, Jen expressly waives any claim against the landlord for failure to supply utilities or for interference with her use of the premises.

Jen wants the noise to stop, but does not want to move out and lose her dream apartment.  She considers suing the landlord both for the interruption in heat and the excessive noise.  Does she have any recourse?

Although the landlord most likely is not liable for the temporary lack of heat, Jen is probably entitled to damages for the landlord’s interference with her enjoyment of the loft due to the noise created by the bar.  She will also be entitled to an injunction prohibiting the landlord and the bar from continuing to interfere with her use of the apartment.

A.     Statutory protection.

Massachusetts G.L. c. 186, §14, states, in relevant part:

Any lessor or landlord of any building … occupied for dwelling purposes … who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish water, hot water, heat … to any occupant …, who willfully or intentionally fails to furnish such water, hot water, heat … at any time when the same is necessary to the proper or customary use of such building …, or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant …, shall be punished by a fine … or by imprisonment…. Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee….

 B.     The lease provision waiving the statute’s protections is unenforceable.

Even if Jen agreed in her lease not to hold the landlord responsible for failure to supply utilities or for interference with her use of the premises, those provisions are unenforceable.  Section 14 provides:

Any waiver of this provision in any lease or other rental agreement, except … for interruptions of any specified service during the time required to perform necessary repairs to apparatus necessary for the delivery of said service or interruptions resulting from natural causes beyond the control of the lessor or landlord, shall be void and unenforceable.

Thus, Jen has not waived her claims against the landlord.

C.     The failure to provide heat.

By its terms, §14 imposes liability for failure to deliver heat only when the landlord’s conduct is willful or intentional.  “A landlord may be found to have acted willfully and/or knowingly if he fails, after notice to supply the essential service or rectify the problem with same.”[1]  In Flynn, there was a water pressure problem.  Although the tenant was deprived of adequate water service for an extended period (four weeks), the Court held that the landlord was not liable under §14 because he had made prompt and reasonable efforts to solve the problem. The Court stated:

Shortly after moving in, plaintiff began to have problems with the water pressure. He had water sporadically throughout the day for about twenty minute intervals. The rest of the time there was no water. Plaintiff notified the defendant of this problem and immediately the defendant notified a well digger who came to assess the problem. Defendant hired a well digger and dug a trench himself to help facilitate the installation of the new well. It took about three to four weeks for the new well to be completed and hooked up to the house. Plaintiff was without adequate water for about four weeks. Defendant, upon notification by the plaintiff, took reasonable steps to have the water problem corrected, and it was, in fact, corrected.

***

… Finding that the defendant’s temporary failure to supply adequate water was neither willful or intentional, the Trial Judge entered judgment for the defendant. We affirm.

Id.  (Emphasis added).  In Jen’s case, the landlord’s conduct was not willful or intentional.  The landlord took immediate steps to fix the lack of heat, and the problem was, in fact, remedied within two days.  Therefore, the landlord is not liable for the lack of heat.

D.     The Noise.

Jen will likely prevail on her claim that the excessive noise from the bar interfered with her quiet enjoyment of her apartment and constituted a constructive eviction.  Constructive eviction results from a breach of the landlord’s covenant to protect the tenant’s right to quiet enjoyment of the premises during the term of the lease.  “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy–acts or omissions which impair the character and value of the leased premises.”[2]  While a breach of the covenant often arises from a landlord’s failure to provide services (heat, etc.), a breach can also result where the landlord undertakes repairs or alterations which interfere with the tenant’s use of the premises.[3]

Whether there is a breach of the covenant of quiet enjoyment depends, of course, on proof of the extent to which the landlord’s acts or omissions have actually interfered with the tenant’s reasonable use of the premises.  The interference must be “serious” and must “substantially impair” the value of the premises.[4]  A breach of the covenant of quiet enjoyment is sufficiently serious if it impairs the value of the leased premises.[5]

In order to establish a breach of the covenant of quiet enjoyment, the tenant must show some fault on the part of the landlord, amounting to at least negligence or unreasonable conduct.[6]  Thus, the tenant must prove that the landlord knew or had reason to know of the defective condition of the premises and unreasonably acted or failed to act despite such knowledge.  In Al-Ziab, the Court said:

[T]o obtain relief under §14 for a claim of lead paint poisoning it must be demonstrated that the landlord had notice of or reason to know of the presence of lead and failed to take appropriate corrective measures.[7]

It follows that, while there is no good faith defense to a quiet enjoyment claim[8], a landlord who acts to remedy a condition which interferes with quiet enjoyment immediately after receiving notice of the condition does not breach the covenant.[9]

Two issues raised by the facts of Jen’s case are whether she must have vacated the apartment to claim a constructive eviction and whether the landlord can be held liable for interference caused not by the landlord directly, but by another of the landlord’s tenants.  Although earlier cases required a tenant to actually abandon the premises in order to claim a constructive eviction, more recent case law makes clear that the tenant can remain on the premises and seek equitable relief and damages, for a breach of the covenant of quiet enjoyment/constructive eviction.[10]

Further, a landlord is responsible for the conduct of one tenant which interferes with another tenant’s use of his premises, if the landlord has the right to control the conduct of the interfering tenant.[11]

Jen should prevail because she can prove that the excessive noise is seriously interfering with her use of the apartment and, therefore, adversely affecting the value of the premises.  The landlord is responsible for the noise because the bar is a tenant and the landlord has some control over its conduct.  In Blackett, 371 Mass. 714, 358 N.E.2d at 819-20, the Supreme Judicial Court held a landlord liable for breach of covenant of quiet enjoyment where landlord rented first floor of residential apartment building to lounge, and lounge’s loud music interfered with other tenants’ residential uses.  The Court noted that landlord could control the lounge tenant and that the interference was the natural and probable result of the landlord renting to the lounge.

E.     Jen’s remedy.

Jen wants to stay in her apartment but to stop the noise.  If she establishes a constructive eviction, the Court should enter an injunction prohibiting the bar and the landlord from interfering with her quiet enjoyment of her apartment.

In addition, she will be entitled to recover damages for the interference which has already occurred.  Where a breach of the covenant of quiet enjoyment is established, the tenant is entitled to damages for all harm suffered as a result of that breach.  The Court in Simon v. Solomon, 385 Mass. 91 (1982), holding that emotional distress damages were available in an action for breach of the covenant of quiet enjoyment, stated:

Section 14 provides that tenants may recover “actual and consequential” damages from landlords who have interfered with their quiet enjoyment of leased premises…. The combination in §14 of both actual and consequential damages, therefore, suggests that the Legislature intended to include all reasonably foreseeable losses-personal as well as economic – within the scope of statutory recovery.

Section 10.2 of the Restatement (Second) of Property (Landlord-Tenant) also makes clear that damages for interference with quiet enjoyment cover all losses which are natural and probable consequences of the landlord’s conduct, including lost use of improvements previously paid for by the tenant, any cost to the tenant of eliminating the landlord’s default, and interest.

In Darmetko v. Boston Housing Authority, 378 Mass. 758 (1979), the Massachusetts Supreme Judicial Court discussed the measure of damages for breach of the covenant of quiet enjoyment where the tenant remains in possession:

Damages for breach of the covenant of quiet enjoyment where the tenant remains in possession of the premises are measured by the difference between the value of what the lessee should have received and the value of what he did receive.[12]

In determining the value of the premises in its defective condition, a court will consider “various factors including, but not limited to, the nature, duration and seriousness of defects and whether they may endanger or impair the health safety or well being of the occupants.”[13]  A court will take into account “the conduct of both parties” in setting damages.[14]

Finally, a violation of c. 186, §14, is a consumer protection violation under c.93A, potentially subjecting the landlord to double or treble damages.

Section 14 provides tenants like Jen with a potent weapon.  Its provisions relating to provision of utilities and, more generally, to quiet enjoyment, safeguard the tenant’s reasonable expectations, ensuring that the tenant has the opportunity to use the premises without undue interference by the landlord or other tenants.

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.