Introduction
Imagine this: a single father brought his twins skydiving in Cape Cod for their eighteenth birthday.1Cf. Cahalane v. Skydive Cape Cod, No. 17-P-706, 2018 Mass. App. Unpub. LEXIS 556, at *4 (July 3, 2018) (reciting facts regarding a skydiving accident that gave rise to a lawsuit); Justin L. Mack, Son Mourns Greenfield Father After Deadly Skydiving Mistake, INDYSTAR (May 19, 2014, 4:00 PM ET), https://perma.cc/9R3Q-QRHG (describing a skydiving accident that killed a father). Before they were allowed on the plane, all three of them had to sign liability waivers.2 Cf. Cahalane, 2018 Mass. App. Unpub. LEXIS at *2. After doing so, the family boarded the plane.3Cf. id. When the plane reached the appropriate altitude, the twins and the father jumped out of the plane with their
instructors.4Cf. id. at *4; Mack, supra note 1. Both twins landed safely, only to find out that their father’s parachute had malfunctioned.5Cf. Christina Zdanowicz, A Georgia Teen on Her First Skydive and a Veteran Instructor Died When Their Chutes Failed, CNN, https://perma.cc/S6J2-4FQP (last updated July 16, 2020, 8:20 PM ET) (describing a tragic accident in which a parachute failed to open, killing the sky diver and instructor). Neither he nor the instructor survived the accident.6Cf. id. The twins had planned to start college in the fall, but now they had to plan their father’s funeral instead.7Cf. Mack, supra note 1; Zdanowicz, supra note 5. Not only were they devastated by the tragic loss of their only parent, but they also could not afford to pay for college or the funeral.8See Jessica Gillespie, Wrongful Death Lawsuits in Massachusetts, NOLO, https://perma.cc/UT3M-H3GR (last visited Nov. 18, 2022) (explaining recoverable damages in a wrongful death suit and who is entitled to them); cf. Mack, supra, note 1. They looked into suing the sky diving company and the parachute manufacturer for negligence.9Cf. Cahalan, 2018 Mass. App. Unpub. LEXIS at *1. They were told they had no recourse due to the liability waiver their father had signed prior to the accident.10See Doherty v. Diving Unlimited Int’l, Inc., 484 Mass. 193, 195–96 (2020); Cahalane, 2018 Mass. App. Unpub. LEXIS at *8–10.
Not only are two eighteen-year-olds now parentless, but they also cannot support themselves financially or continue their lives as planned.11Cf. Gillespie, supra note 8; Mack, supra note 1. This is because Massachusetts decided that wrongful death claims are derivative rather than independent.12Doherty, 484 Mass. at 195–96; GGNSC Admin. Servs., LLC v. Schrader, 484 Mass. 181, 191 (2020). By signing the required liability waiver prior to the accident, the father effectively waived his children’s rights to recover for his death.13Doherty, 484 Mass. at 196. At eighteen, both of his children relied on him financially.14Cf. Gillespie, supra note 8. Not only did the twins have emotional and personal interests in their father’s life, but they had legal and financial interests as well.15Cf. Gillespie, supra note 8. However, according to the recent decision in Doherty v. Diving Unlimited International, Inc., Massachusetts does not recognize these as distinct and separate interests.16484 Mass. at 196. These particular facts are fictional, but they illustrate the tragic consequences that are likely to flow from the Massachusetts Supreme Court’s ruling in Doherty.17See id. In effect, this decision renders Mass. Gen. Laws ch. 229, § 2 useless to many potential claimants.18See id.
This article will argue that the right of recovery for statutory beneficiaries is independent of the decedent’s cause of action. This conclusion is supported by the language of the statute itself, as well as its underlying purpose. Further, jurisdictions with similar wrongful death statutes interpret wrongful death claims as independent. In the alternative, certain liability waivers, like the one at issue in Doherty, should be deemed unenforceable for public policy reasons. Lastly, the Court in Doherty erroneously concluded that the plaintiff was precluded from bringing a claim for gross negligence because she was not “executor or administrator” of the decedent’s estate.
I. Background
A. Wrongful Death Statute History and Interpretation
Massachusetts codified the country’s first wrongful death statute.19GGNSC Admin. Servs., LLC v. Schrader, 484 Mass. 181, 187 (2020). The first version of the statute, written in 1840, allowed for recovery in very specific instances:
[I]f the life of any person, being a passenger, shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, steamboat, stagecoach, or of common carriers of passengers, or by the unfitness or gross negligence or carelessness of their servants or agents, in this Commonwealth, such proprietor or proprietors, and common carriers, shall be liable to a fine, …. to be recovered by indictment, to the use of the executor or administrator of the deceased person.20Commonwealth v. Boston & Lowell R.R. Corp., 134 Mass. 211, 212 (1882).
Through many subsequent amendments, the statute has evolved into its present-day form.21MASS. GEN. LAWS ch. 229, § 2 (2022). In addition to recovery from common carriers, the modern statute permits recovery from “[a] person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted.”22Id. (emphasis added). The last portion of this provision was added in 1958.23Schrader, 484 Mass. at 187–88.This clause will be relevant, as the Court relied heavily on the legislative intent behind this amendment in its analysis in the Schrader and Doherty cases.24Id.; Doherty v. Diving Unlimited Int’l, Inc., 484 Mass. 193, 196 (2020).
Since Massachusetts enacted the wrongful death statute in 1840, the other forty-nine states have followed, each enacting their own variations of the statute.25See, e.g., Wrongful Death Settlement Distribution Laws by State,FINDLAW, https://perma.cc/7L4C-YE9F (last updated Dec. 3, 2018). Accordingly, states differ in their interpretation of these statutes. The most significant difference is whether a statute creates an independent cause of action for third parties, or if it is derivative of claims the decedent could have brought if he had survived. Some jurisdictions, such as Virginia, interpret their wrongful death statutes as independent claims.26See, e.g., Wilson v. Whittaker, 207 Va. 1032, 1038 (1967) (“Our death by wrongful act statute does not cause to survive this right of action, but it creates in the decedent’s personal representative a new right of action to compensate decedent’s statutory beneficiaries for their loss.”) (emphasis added); Stevens v. Med. Facilities of Am. XXXII (32), 98 Va. Cir. 376, 386 (2018) (“The wrongful death right of action is an independent action under §8.01-50(A).”). As such, wrongful death claims arise upon a decedent’s death to compensate a plaintiff for their loss, as opposed to being “a survival of a ‘right of action’ held by the injured person prior to death.”27Stevens, 98 Va. Cir. at 386; see also Wilson, 207 Va. at 1038. In Stevens v. Med. Facilities of Am. XXXII, a Virginia Circuit Court explained why it is proper to classify such claims as independent rather than derivative: “As an independent cause of action, [recovery is sought] for damages suffered by the decedent’s statutory beneficiaries, not for damages sustained by the decedent”2898 Va. Cir. at 386 (emphasis added). Alternatively, jurisdictions that consider these claims as derivative hold that a beneficiary can only bring claims that the decedent could have brought in his own right if he had survived (e.g., personal injury or negligence claims).
B. History of Liability Waivers in Massachusetts
Liability waivers are generally enforceable in Massachusetts.29See, e.g., Sharon v. City of Newton, 437 Mass. 99, 105 (2002) (“A party may, by agreement, allocate risk and exempt itself from liability that it might subsequently incur as a result of its own negligence.”); Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550 (1965). As early as 1888, the highest Court in Massachusetts upheld these contracts as “a valid and sufficient defense to an action against the defendant for injuries resulting from the negligence of the defendant’s servants ….”30Bates v. Old Colony R.R. Co., 147 Mass. 255, 268 (1888). However, one cannot contract to exempt one’s self from liability for gross negligence or reckless conduct.31E.g., Rafferty v. Merck & Co., 479 Mass. 141, 156 (2018) (“Implicit in both our common and statutory law, then, is a long-standing public policy that, although we may be willing in certain circumstances to excuse ordinary negligence, we will not tolerate the reckless disregard of the safety of others.”); Zavras v. Capeway Rovers Motorcycle Club, 44 Mass. App. Ct. 17, 19 (1997) (“[W]hile a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence.”).
In Lee v. Allied Sports Associates, Inc., the Massachusetts Supreme Court concluded that the release signed by the plaintiff “as [a] matter of law effectively released the defendant from liability for ordinary negligence to signatories who were within its terms.”32349 Mass. at 551 (emphasis added). The use of the term “ordinary negligence” was significant for the Appellate Court in its decision in Zavras v. Capeway Rovers Motorcycle Club.33 44 Mass. App. Ct. at 18. There, the Court distinguished the waiver of ordinary negligence from that of gross negligence.34Id. at 19. In reaching this decision, the Court consulted the Second Restatement of Contracts, which states: “A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.”35Id. at 19 (citing Restatement (Second) of Conts. § 195 (Am. L. Inst. 1981)). The Zavras decision is often cited as authority for the principle that one may not contract against liability for acts that constitute more than “ordinary negligence.”36See, e.g., Rafferty, 479 Mass. at 155; Sharon v. City of Newton, 437 Mass. 99, 110 (2002); Cahalane v. Skydive Cape Cod, No. 17-P-706, 2018 Mass. App. Unpub. LEXIS 556 at *10 (Jul. 3, 2018); Hunter v. Skate III, 1999 Mass. App. Div. 274, 276 (1999).
It is well settled in Massachusetts that liability waivers do not protect wrongdoers from “[liability] for gross negligence, recklessness, or intentional conduct,” as this would contrast with public policy.37Sharon, 437 Mass. at 110.
Compared to “ordinary” negligence, gross negligence is “substantially and appreciably higher in magnitude … [i]t is very great negligence, or the absence of slight diligence, or the want of even scant care.”38Cahalane, 2018 Mass. App. Unpub. LEXIS at *11 (citations omitted). Surely, it would be a dangerous and slippery slope to allow people to contractually exempt themselves from liability for such conduct.39See Zavras, 44 Mass. App. Ct. at 19 (cautioning against enforcement of releases of liability). Because of this, courts are careful to make sure that such contracts do not protect conduct that reaches the level of gross negligence.40 See id. Though vague definitions like the one above are available, there is no “test” for what constitutes gross negligence.41See Cahalane, 2018 Mass. App. Unpub. LEXIS at *11. Thus, the classification as such must be decided on a case-to-case basis, according to the specific facts at hand.42See id.
II. The Court’s Opinion
Doherty v. Diving Unlimited International, Inc., and its companion case, GGNSC Administrative Services, LLC v. Schrader, are the first in Massachusettsto squarely address whether beneficiaries’ claims under the wrongful death statute are independent or derivative claims.43Doherty v. Diving Unlimited Int’l, Inc., 484 Mass. 193, 196 (2020); GGNSC Admin. Servs., LLC v. Schrader, 484 Mass. 181, 182 (2020). Specifically, the Court was asked whether a statutory beneficiary’s wrongful death claim is independent from, or derivative of, personal injury claims the decedent could have brought if he had survived.44Doherty, 484 Mass. at 196; Schrader, 484 Mass. at 182. Though the cases are factually different, this central question was integral as to whether the respective plaintiffs had a right to bring their claim at all.45Doherty, 484 Mass. at 196; Schrader, 484 Mass. at 182–86. Because the Court uses the same reasoning to answer the question in both cases, it is important to explore the facts of each.46See Doherty, 484 Mass. at 196.
In Doherty, the decedent was a certified scuba diver who drowned while participating in a promotional event for diving equipment that was sponsored by Diving Unlimited International (DUI).47Id. at 194. The dive was led by John Golbranson, who supervised some of the participants.48Id. (conceding that Golbranson was acting as an agent of DUI). Prior to the dive, the decedent was required to sign two documents: a release of liability for DUI, and an equipment rental agreement.49Id. at 194–95.The former document stated: “Diver gives up valuable rights, including the right to sue for injuries or death,” and that the decedent agreed “not to sue DUI for personal injury arising from scuba diving or its associated activities.”50Id. The release also stated that the decedent’s “heirs or executors may not sue DUI for death arising from scuba diving or its associated activities.”51Id. at 195. During the dive, Golbranson signaled for the group to go back to the surface when one of the divers was running low on air.52Doherty, 484 Mass. at 195. The decedent did not follow and was separated from the rest of the group.53Id. Soon after, “the decedent resurfaced and called for help.”54Id.Subsequently, the decedent passed away from “scuba drowning after unequal weight belt distribution.”55Id.
Following this tragedy, the plaintiff brought a wrongful death suit as a personal representative under Mass. Gen. Laws ch. 229, § 2.56Id. (settling with all defendants except the dive leader, John Golbranson). Along with the wrongful death claim, the plaintiff alleged that the decedent endured conscious pain and suffering due to Golbranson’s negligence.57Id. The Superior Court granted summary judgment in favor of Golbranson based on the theory that, because Golbranson was an agent of DUI, the release from liability that the decedent signed extended to him.58Doherty, 484 Mass. at 195. Further, the Court concluded that ch. 229, § 2 “created a right to recovery that is derivative of the decedent’s own cause of action,” and the agreements “precluded any recovery on behalf of the decedent’s statutory beneficiaries, who had no rights independent of the decedent’s cause of action, which was waived.”59MASS. GEN. LAWS ch. 229, § 2; Doherty, 484 Mass. at 196.
The plaintiff appealed, arguing that “the statutory beneficiaries have an independent right to a wrongful death action that decedent could not have waived,” and therefore, “neither waiver would prevent the decedent’s statutory beneficiaries from recovering damages for wrongful death.”60Doherty, 484 Mass. at 194–95 (emphasis added). The Massachusetts Supreme Judicial Court transferred the case from the Appeals Court on its own motion.61Id. at 194. Citing its reasoning in Schrader, the Court held: “the valid waivers signed by the decedent preclude the plaintiff, as his ‘executor or personal representative,’ from bringing a lawsuit under ch. 229,§ 2, for the benefit of the statutory beneficiaries.”62Id. at 196.
Due to the significance of the Schrader rationale to the Doherty case, it is useful to understand those facts as well.63See id. at 194. In Schrader, the plaintiff (Schrader), as decedent’s personal representative, brought a wrongful death suit pursuant to ch. 229, § 2 in which she alleged GGNSC negligently caused her mother’s death.64GGNSC Admin. Serv., LLC v. Schrader, 140 N.E.3d 397, 400 (Mass. 2020). Soon after, GGNSC moved to compel arbitration, pursuant to an arbitration agreement Schrader had signed on her mother’s behalf.65Id. Schrader opposed arbitration, arguing that “the arbitration agreement could not control the wrongful death claim because the beneficiary’s claim under the wrongful death statute was independent of the decedent’s action and the decedent was the only legal party to sign the arbitration agreement.”66Id. at 401. The Federal District Court deemed the wrongful death action derivative and the arbitration agreement binding on wrongful death beneficiaries.67Id. Schrader appealed to the First Circuit, which certified the following question to the Massachusetts Supreme Court: “Is the wrongful death claim of [the decedent’s] statutory heirs derivative or independent of [the decedent’s] own cause of action?”68Id.
In deciding this question, the Court claimed to have relied on the plain meaning of the statute, along with interpretations of common-law wrongful death claims and persuasive authority from other states.69Id. at 402. The Court began its analysis by comparing the consequences of classifying the statute as derivative and independent, respectively.70Schrader, 140 N.E.3d at 401–02. If the beneficiary’s action was viewed as derivative, then wrongful death liability was simply an extension of the decedent’s personal injury claim.71Id. In other words, the beneficiaries would have a right to sue only if the decedent would have been in a position to sue if they had survived.72Id. Alternatively, if the claim was independent, the existence of a personal injury claim—or lack thereof—would have no effect on the wrongful death claim.73Id.“The situation would be as though the injured person and his beneficiary each had a separate legal interest in his life, assertable by separate action.”74Id. (citations omitted). Classified this way, the decedent could not contract away the beneficiary’s possible claims, as the action deals only with the economic effect that the decedent’s death had on others.75Id.
Next, the Court looked at the plain language of the statute itself, emphasizing the importance of the Legislature’s intent.76Schrader, 140 N.E.3d at 403. The Court found the 1958 amendment of the statute to be particularly significant in discerning that intent: “In 1958, the Legislature amended G. L. c. 229, § 2, to permit compensation only ‘under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted.’”77Id. at 404. The Court equated a wrongful death claim to a decedent’s personal injury claim, concluding no wrongful death action could exist unless the decedent could have sued for personal injury.78Id. Thus, the Court concluded the wrongful death claim derives from the underlying tort.79Id.
The Court went even further to conclude that the statute’s “under such circumstances” clause applied to everything before it in the statute, i.e., “willful, wanton, or reckless acts,” as well as negligent acts.80See MASS. GEN. LAWS ch. 229, § 2 (2022); Schrader, 140 N.E.3d at 404. The Court found more support for this legislative intent in the fact that only the executor or administrator of the deceased can bring such a claim.81Schrader, 140 N.E.3d at 404.The Court conceded that prior to the 1958 amendment, it had interpreted the statute to create “independent rights for beneficiaries,” and that the issue had not been squarely addressed.82Id. at 404–05. However, the Court concluded that the direction of case law seemed to support the classification of such claims as derivative rather than independent.83Id. at 405 (“Overall, the ‘trend in [our] law is against allowing’ claims under G. L. c. 229, § 2, to be independent of the decedent’s own cause of action.”).
Finally, the Court acknowledged that many other jurisdictions have expressly qualified their wrongful death actions as being derivative of the decedent’s own claims.84Id. at 405–06. Relying mostly on the legislative intent behind the 1958 amendments, the Court decided to join these jurisdictions and “adopt the majority rule that precludes wrongful death actions unless decedents could have brought an action for the injuries that caused their death.”85Id. at 406.
Analysis
III. The Court Erred in Its Statutory Interpretation of ch.229, § 2 as Derivative
A. The Language of ch. 229, § 2 Supports the Conclusion That Wrongful Death Claims Are Independent
The Doherty Court made two significant mistakes in interpreting the wrongful death statute. First, the Court overlooked the fact that liability waivers are not included in the explicit exceptions for when the wrongful death statute does not apply. Second, the Court made a fatal error in statutory interpretation by attributing the 1958 amendment to the entire statute instead of just to the phrases following the amendment.
1. Chapter 229, § 2 Does Not Have an Exception for Liability Waivers
Chapter 229, § 2 expressly carves out three exceptions for when the wrongful death statute does not apply.86MASS. GEN. LAWS ch. 229, § 2 (2022). First, the statute states that “the liability of an employer to a person in his employment shall not be governed by this section.”87Id. Second, the statute exempts railroad operators from liability in circumstances where a person is killed while on the railroad tracks illegally.88Id. Similarly, the third and final exemption from liability under this statute is afforded to “a person operating a street railway or electric railroad” if a person is killed while walking or being on the “street railway or electric railroad.”89Id.
When interpreting a statute, courts discern the legislative intent behind the statute by looking toward the plain language.90 Sisson v. Lhowe, 954 N.E.2d 1115, 1117–18 (Mass. 2011) (“[C]onsistent with our general practice of statutory interpretation, we look first to the language of the statute because it is ‘the principal source of insight’ into the intent of the Legislature.” (citations omitted)). This is what the Court purported to do in Schrader.91GGNSC Admin. Servs., LLC. v. Schrader, 140 N.E.3d 387, 403 (Mass. 2020) (“‘When conducting statutory interpretation, this court strives to effectuate the Legislature’s intent by looking first to the statute’s plain language’ (quotations and citations omitted).”). Based on the plain language of the statute, it is clear that there are three explicit exemptions from liability.92MASS. GEN. LAWS ch. 229, § 2 (2022). All three of the exceptions are very specific and particular.93See id. This supports the contention that the legislature intended this list to be exhaustive—not merely illustrative.94Id.; see Schrader, 140 N.E.3d at 403–04. If the legislature intended to allow other exemptions to ch. 229, § 2, such exemptions would have been included in the statute.95Ch. 229, § 2; see Schrader, 140 N.E.3d at 403–04. Thus, it is clear that the legislature did not intend to include further exemptions to ch. 229 § 2 other than those explicitly laid out therein.96See Ch. 229, § 2; Schrader, 140 N.E.3d at 403–04.
Noticeably absent from these exceptions are “liability waivers.”97See Ch. 229, § 2. The wrongful death statute does not address the issue of liability waivers.98See id. This is not because liability waivers are a recent phenomenon; quite conversely, liability waivers were legitimized by courts as early as 1888.99See Bates v. Old Colony R.R. Co., 17 N.E. 633, 640 (Mass. 1888). Following this rationale, if the legislature intended to include “liability waivers” as an exception to ch. 229 § 2, it had well over 100 years to amend the statute to reflect this.100See id. Therefore, the court erred in concluding that liability waivers constitute an exemption to a wrongful death action.101See Ch. 229, § 2; Schrader, 140 N.E.3d at 404.
2. The Court Erroneously Attributed the 1958 Amendment to All Causes of Action Listed in the Statute
The Schrader Court found the 1958 amendment to be controlling when concluding that wrongful death claims are derivative.102Schrader, 140 N.E.3d at 406; Part II, supra pp. 12–13. This amendment added that certain causes of action could only be brought if “the deceased could have recovered damages for personal injuries if his death had not resulted.”103Ch. 229, § 2. If the deceased could not have recovered damages for personal injuries had he survived, the executor or administrator of the estate cannot recover such damages either.104Id.; Schrader, 140 N.E.3d at 404.
Applying this concept to liability waivers, if the deceased had previously waived liability and his right to recovery, the estate could not recover for his death.105See Schrader, 140 N.E.3d at 404. However, the 1958 amendment explicitly added this significant phrase to just two of the five enumerated bases for liability:106Ch. 229, § 2.
A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (3) operates a common carrier of passengers and by his negligence causes the death of a passenger, or (4) operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (5) is responsible for a breach of warranty arising under Article 2 of chapter one hundred and six which results in injury to a person that causes death… 107Id. (emphasis added).
The Court concluded: “[b]y virtue of the conjunction ‘or’ placed between the different types of acts causing wrongful death, the clause also seems to modify the cause of action based on negligence.”108Schrader, 140 N.E.3d at 404. This line of reasoning would be more convincing if the legislature had only added the phrase after the “willful, wanton, or reckless” cause of action.109See Ch. 229, § 2; Schrader, 140 N.E.3d at 404. However, the phrase was also added after the cause of action for “willful, wanton, or reckless” operation of common carriers.110Ch. 229, § 2. If, as the Court concluded, the legislature intended for this phrase to apply to other statutory bases for liability, such as negligence, why would they explicitly add this modifier to only two of the bases?111See id.; Schrader, 140 N.E.3d at 404. This rationale supports the argument that the Court mistakenly determined that the 1958 Amendment modified the surrounding causes of action set out in ch. 229 § 2.112See Ch. 229, § 2; Schrader, 140 N.E.3d at 404. Thus, if the 1958 Amendment does not apply to all five of the causes of action laid out in the statute, claims can be brought under ch. 229 § 2 regardless of whether the decedent himself could have recovered.113See Ch. 229, § 2. Therefore, the Massachusetts wrongful death statute allows for claims that are separate and distinct from a decedent’s theoretical right to recovery.114Id.
B. The Court’s Interpretation of the Statute Contradicts its Underlying Purpose
The Court erroneously interpreted the statute in a way that contradicts its underlying purpose.115Schrader, 140 N.E.3d at 406. There are established principles in our law that preclude such a reading.116See VALERIE C. BRANNON, CONG. RSCH. SERV., R45153: STATUTORY INTERPRETATION: THEORIES, TOOLS, AND TRENDS 4–5 (2022), https://perma.cc/GP2W-DLHW (“[W]hen a court interprets a federal statute, it seeks ‘to give effect to the intent of Congress’ . . . [judges] ‘are not free to simply substitute their policy views for those of the legislature that enacted the statute.’”). First, “[t]he provisions of a text should be interpreted in a way that renders them compatible, not contradictory.”117Id. at 55. Reading this statute to preclude potential beneficiaries from bringing claims for wrongful death is simply incompatible with the rest of the statute.118See Ch. 229, § 2. Further, legislative history should not be relied upon if doing so would contradict the purpose of the statute.119Brannon, supra note 116, at 36–37 (“Effect should not be given to evidence from the internal legislative history if the result would be to contradict a purpose otherwise indicated.”). Allowing liability waivers to preclude potential claimants from bringing wrongful death claims plainly contradicts the underlying purpose of the statute.120 See Ch. 229, § 2. This contradiction alone illustrates the Court’s error in concluding that such claims are not wholly independent from claims which the decedent could have brought.121See Brannon, supra note 116, at 36–37 n.373, 53 n.532.
C. Mass. Gen. Laws ch. 229, § 2 Expressly Gives the Executor or Administrator of the Deceased the Right to Recovery
The statute allows for damages to be recovered “in an action of tort by the executor or administrator of the deceased.”122Ch. 229, § 2. By its own terms, ch. 229 § 2 lays out five causes of action for which an executor or administrator of an estate can recover.123 Id. Such a claim does not accrue unless a person has died.124Id. (“An action to recover damages under this section shall be commenced within three years from the date of death.”). Thus, unless there is a decedent, a claim cannot be brought under ch. 229 § 2.125Id. Because a claim for wrongful death cannot exist without a decedent, how can such a claim “derive” from claims a decedent could have brought in his own right?126See Corrected Brief of Amici Curiae AARP and AARP Foundation in Support of Defendant- Appellant and Reversal at 5, GGNSC Admin. Servs., LLC v. Schrader, (1st Cir. Nov. 14, 2018) (No. 18-1779), https://perma.cc/JK59-BTNC [hereinafter Brief of Amici Curiae]. This line of reasoning is flawed on its face.127See id.
IV. Jurisdictions with Similar Wrongful Death Statutes Interpret Them as Independent Rather than Derivative
A Virginia circuit court recently held that “[t]he wrongful death right of action is an independent action under §8.01-50(A).”128Stevens v. Med. Facilities of Am. XXXII (32), 98 Va. Cir. 376, 386 (2018); see also Wilson v. Whittaker, 207 Va. 1032, 1038 (1967); Part I(A), supra at 3. The Virginia statute is similar to Massachusetts’ in that it references actions the decedent couldhave brought: “Whenever the death of a person shall be caused by the wrongful act, neglect . . . would, if death had not ensued, have entitled the party injured to maintain an action . . . and to recover damages in respect thereof ”129VA. CODE ANN. § 8.01-50 (West 2020). Despite the clause pertaining to claims the decedent could have brought, Virginia still holds that wrongful death claims are independent.130Stevens, 98 Va. Cir. at 386; Wilson, 207 Va. at 1038.
Similar to Virginia, many other jurisdictions interpret their similarly worded statutes as creating causes of action that are separate and distinct from what the decedent could have brought.131See Brief of Amici Curiae, supra note 126, at 6. The American Association of Retired Persons outlined this in its Brief of Amici Curiae to the Schrader Court.132Brief of Amici Curiae, supra note 126, at 6–11. The Brief provides many examples of wrongful death statutes that, similar to Virginia and Massachusetts, include provisions concerning the decedent’s would-be claims.133Brief of Amici Curiae, supra note 126, at 6–11. For example, Ohio’s statute limits claims to “[w]hen the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action to recover damages if death had not ensued ”134OHIO REV. CODE ANN. § 2125.01 (West 2022); Brief of Amici Curiae, supra note 126, at 8. Still, Ohio’s case law recognizes the distinction between a survivor’s claims and wrongful death claims: “‘[A] wrongful-death claim belongs to the decedent’s beneficiaries’ and is for their ‘exclusive benefit.’”135Brief of Amici Curiae, supra note 126, at 8 (quoting Peters v. Columbus Steel Castings Co., 115 Ohio St. 3d 134, 136–37 (2007)).
These jurisdictions, along with at least nine others, recognize the purpose behind the statute, and interpret the language in a light favorable to the beneficiaries it is intended to help.136Brief of Amici Curiae, supra note 126, at 6–11. Massachusetts can, and should, do the same.137See Doherty v. Diving Unlimited Int’l, Inc., 484 Mass. 193, 196 (2020); see also GGNSC Admin. Servs., LLC. v. Schrader, 484 Mass. 181, 187–88 (2020).
V. Liability Waivers Should Be Unenforceable in Certain Circumstances
A. Liability Waivers Should Be Unenforceable as Against Public Policy
As previously mentioned, liability waivers are generally enforceable.138See, e.g., Sharon v. City of Newton, 437 Mass. 99, 102 (2002); Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 549 (1965). However, there are strong arguments to the contrary in instances where the enforcement of such waivers would be against public policy.139See Fed. Ins. Co. v. Cogswell Sprinkler Co., Inc., No. 03-CV-10920-MEL, 2005 U.S. Dist. LEXIS 45287, at *4 (Feb. 15, 2005); Spence v. Reeder, 382 Mass. 398, 413 (1981); Fed. Ins. Co. v. CBT/Childs Bertsman Tseckares, Inc., No. 2004-05022G, 2007 Mass. Super. LEXIS 153, at *8 (May 25, 2007). In a frequently-cited case, the Massachusetts Supreme Judicial Court considered whether a waiver of a pre-termination hearing prior to an eviction was enforceable.140Spence, 382 Mass. at 413. In answering this question, the Court emphasized public policy considerations: “courts have long refused to give effect to purported waivers of statutory rights where enforcement of the particular waiver would do violence to the public policy underlying the legislative enactment.”141Id. Ultimately, the Court determined that if the waiver of the statutory right to a predetermination hearing were deemed enforceable, it would effectively “destroy the very purpose of the statute.”142Id. Applying this logic to the present case, if liability waivers are enforceable against beneficiaries in wrongful death actions, ch. 229 § 2 becomes essentially useless.143See id.; see also MASS. GEN. LAWS ch. 229, § 2 (2022). The purpose of the wrongful death statute is to compensate the decedent’s next of kin and beneficiaries.144Wrongful Death Law, HG.ORG LEGAL RES. https://perma.cc/ZPT6-RHZT (last visited Nov. 18, 2022) (“The purpose of these laws is to compensate the survivors, not the deceased victim.”). If these beneficiaries are denied recovery in cases where the decedent signed a liability waiver, the statute becomes useless for many potential claimants.145See Doherty v. Diving Unlimited Int’l, Inc., 484 Mass. 193, 196 (2020); GGNSC Admin. Servs., LLC v. Schrader, 484 Mass. 181, 191 (2020). This contradicts long- standing principles of statutory interpretation mentioned above.146See Brannon, supra note 116, at 4–5.
More recently, when dealing with waiving liability for violation of a statutory duty, the Massachusetts District Court held that “public policy precludes [the defendant] from exculpating itself from liability for negligence in a task that affects public interest and safety.”14747 Fed. Ins. Co. v. Cogswell Sprinkler Co., Inc., No. 03-CV-10920-MEL, 2005 U.S. Dist. LEXIS 45287, at *4 (D. Mass. Feb. 15, 2005). Similarly, the Suffolk County Superior Court emphasized that “it is well settled that a waiver of liability will not be enforced where it is contrary to publicpolicy.”148Fed. Ins. Co. v. CBT/Childs Bertman Tseckares, Inc., No. 2004-05022G, 2007 Mass. Super. LEXIS 153, at *8 (May 25, 2007). Although both of these cases dealt with release of liability from building code violations, the same public safety premise applies here.149See Cogswell, 2005 U.S. Dist. LEXISat *4; CBT/Childs Bertman Tseckares, Inc., 2007 Mass. Super. LEXIS at *8. Just as it is important to ensure that builders comply with codes, it is equally important that those in charge of dangerous recreational activities, like scuba diving, take their responsibilities seriously as well.150See Cogswell, 2005 U.S. Dist. LEXIS at *4; Doherty, 484 Mass. at 194–95; Schrader, 484 Mass. at 191. The mere lack of a statutory obligation should not allow those involved in recreational activities to release themselves from liability for their actions.151See Cogswell, 2005 U.S. Dist. LEXIS at *4; Doherty, 484 Mass. at 194–95; CBT/Childs Bertman Tseckares, Inc., 2007 Mass. Super. LEXIS at *8.
B. Liability Waivers Do Not Apply to Gross Negligence
It is a well settled concept that one cannot waive responsibility for gross negligence.152Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 551 (1965); Zavras v. Capeway Rovers Motorcycle Club, 44 Mass. App. Ct. 17, 19 (1997); Part I(B) supra, at 4-5. See generally Law Office of James K. Meehan, Under Massachusetts Law Parties Cannot Waive the Right to Recover for Gross Negligence, MASS. INJ. LAWS. BLOG (Sept. 6, 2018), https://perma.cc/5QFL-PS2L (explaining that although waivers are enforceable for ordinary negligence, plaintiffs may still bring claims for gross negligence). Although the plaintiff in Doherty did not allege gross negligence in her original complaint, if she subsequently brought such a claim and was able to show that Golbranson’s conduct reached the level of gross negligence, the waivers would not have precluded her from recovery.153See Doherty, 484 Mass. at 194–95; Cahalane v. Skydive Cape Cod, No. 17-P-706, 2018 Mass. App. Unpub. LEXIS 556, at 10 (July 3, 2018). However, the Court in Doherty foreclosed this possibility entirely, stating that only a decedent’s executor or administrator—not the statutory beneficiaries—can bring an action for gross negligence.154484 Mass. at 197 n.5. Thus, the Court concluded that because the plaintiff was acting as personal representative, she was precluded from bringing such a claim.155Id. at 196. The Court seemed to nonchalantly address this in a footnote, possibly to deter the plaintiff from attempting a gross negligence claim.156Id
The Court’s conclusion on this point is erroneous for two reasons.157See Doherty, 484 Mass. at 196 n.5. First, gross negligence was not alleged, so it was unnecessary for the Court to address this issue at all.158Id. at 195. Second, many Massachusetts authorities view executors and personal representatives as synonymous.159E.g., Who Is an Executor (Personal Representative) of a Will and What Are Their Duties?, ECKERT BYRNE LLC (Oct. 19, 2018), https://perma.cc/F4LA-U9TB (defining executor and personal representative as synonymous).Because of this, it was both unnecessary and erroneous for the Court to conclude that a personal representative could not bring an action for gross negligence.160See id..
Conclusion
Massachusetts was the first state in the United States to codify a wrongful death statute in 1840.161Commonwealth v. Boston & Lowell R.R. Corp., 134 Mass. 211, 212 (1882). The Court’s decisions in Doherty and Schrader render that statute obsolete and inaccessible to many of the people the statute is designed to help.162See Wrongful Death Law, supra note 144. The language and legislative history support the conclusion that such claims are independent.163See supra Part III(A). Further, in its interpretation of the statute, the Court flatly contradicted the underlying policy rationale behind the statute.164See Wrongful Death Law, supra note 144. Not only do these decisions simply not comport with the purpose of the statute, but they also defy long-standing principles of statutory interpretation.165See Brannon, supra note 116, at 4–5; supra Part III(B). Thus, the Court erred in interpreting the statute as creating derivative claims as opposed to independent claims.166See Brannon, supra note 116, at 36 n.373. Alternatively, in the instant case, the liability waiver should have been deemed unenforceable as against public policy.167See Fed. Ins. Co. v. Cogswell Sprinkler Co., No. 03-CV-10920-MEL, 2005 D. Mass. LEXIS 45287, at *4 (Feb. 15, 2005); Fed. Ins. Co. v. CBT/Childs Bertman Tseckares, Inc., No. 2004- 05022G, 2007 Mass. Super. Ct. LEXIS 153, at *8 (May 25, 2007) At minimum, the plaintiff should not have been precluded from alleging gross negligence, which—if proved—would make the waiver unenforceable.168See Cahalane v. Skydive Cape Cod, No. 17-P-706, 2018 Mass. App. LEXIS 556, at *10 (Jul. 3, 2018); Zavras v. Capeway Rovers Motorcycle Club, 44 Mass. App. Ct. 17, 19 (1997).
As it stands in Massachusetts, people like the twins mentioned in the introduction have no recourse.169See Doherty v. Diving Unlimited Int’l, Inc., 484 Mass. 193, 196 (2020); GGNSC Admin. Servs., LLC v. Schrader, 484 Mass. 181, 191 (2020); see also Cahalane v. Skydive Cape Cod, 93 Mass. App. Ct. 1118 (2018). But this is exactly the type of situation that the wrongful death statute was designed to alleviate in the first place.170See Wrongful Death Law, supra note 144. For the aforementioned reasons, the Court erred in holding that wrongful death claims are derivative.171See Doherty, 484 Mass. at 196; Schrader, 484 Mass. at 191. As the originator of the wrongful death statute, and in order to maintain the statute’s viability, Massachusetts should join the minority of jurisdictions that interpret their wrongful death statutes as creating an independent cause of action for beneficiaries.172See Commonwealth v. Boston & Lowell R.R. Corp., 134 Mass. 211, 212 (1882); Brief of Amici Curiae, supra note 126, at 6–11.✕* Grace is originally from Worcester, Massachusetts and is a proud UMass Amherst alum. Grace was the Deputy Technical Editor of NEW ENG. L. REV. Vol. 56. While at New England Law, Grace worked as a law clerk and interned for a superior court judge in Middlesex and Essex Counties. She graduated from NELB in 2022 with a concentration in civil defense litigation. Grace went on to work at an insurance defense firm in Boston, where she specializes in tort and liability defense. Grace represents individuals and corporations in personal injury and premises liability matters.
