Wrongful Death and 93A: Two Separate Claims

Can the family of a victim of wrongful death lose their jury trial and still win?  On April 1, 2007, when Jacob Freeman sustained life ending injuries as a result of a fall at, Our House East, a restaurant in Boston, his estate filed a wrongful death case against the owners of the restaurant and the building for negligently maintaining the property.   They lost.  Then they won.

The jury came back with a verdict for the restaurant owners, and against the plaintiff.  The end?  Not in this case.  Mr. Freeman’s family had also filed a 93A consumer protection claim.  In most instances, 93A claims are not heard by the jury.  However, in most instances, after a finding for the defendant, the judge’s ruling on the 93A claim follows the jury’s finding.

Not in this case.  The case was appealed to the Supreme Judicial Court.  The Court found that since the 93A claim was based on the defendant’s violation of the state building code, the first issue was:  is a violation of the state building code unfair and deceptive conduct which would bring up 93A violations.  They found that under some circumstances, the Consumer Protection Act, 93A, was an appropriate avenue where there are building code violations.  In this case, for example, “the staircase was so obviously noncompliant that any reasonable person would have realized it presented a serious danger” to Mr. Freeman and others.  The staircase here was steep, narrow, poorly lit and had been the site of other falls and injuries.  This went on for decades.  Further, there was no permit issued for their reconstruction.

Next, the Court determined that a 93A claim could be separate and distinct from the wrongful death claim, by finding that the Court could use the survival statute, not the wrongful death statute, and award only damages that Mr. Freeman would have been entitled to, had he lived following injury from the violation of the statute.  Further, the Court made clear that the judge in the trial court was not bound by the verdict nor the specific findings of the jury in making a decision regarding liability on 93A damages.

Are Building Code Violations All 93A Violations

No.  But the SJC did make it clear that a building code violation, that was knowing, along with a commercial reason for not fixing, that is saving money, gives rise to a violation of the 93A statute.  It is unfair and deceptive to have the building code violation and not warn and keep folks of the impending danger.  In this case the violations were clearly a violation of 93A.

How are 93A Damages Calculated in Wrongful Death

The trial judge will be restricted in how to determine damages, based on the Supreme Judicial Court’s ruling.  Loss of consortium, which can be a large measure of damages in a wrongful death case, would not be allowed, because it for survivors.  Pain and suffering would be a measure of damages, but, in this case, Mr. Freeman was unconscious and then died, so the family’s damages are limited in this case.  The victims are still allowed damages, and the trial Court may award double or treble damages.  The SJC found that treble damages, which were found here by the trial judge, were appropriate considering the Court’s findings.  Further, 93A entitles the plaintiffs to their attorney fees.  Following a trial and appeal, those fees can be significant and in this case they were over two million dollars, however, the SJC said those should be reduced because of the reduction of other damages.

In cases where there are injuries but no wrongful death, the judge will not be so restricted under 93A.  An experienced personal injury lawyer would submit medical bills, future medical bills, pain and suffering, lost earning capacity and other economic damages along with pain and suffering  for the 93A damages portion of the case.

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