“The wheels of justice turn slowly, but grind exceedingly fine.” Litigation is often a lengthy process and the old proverb is certainly true for the inundated Massachusetts courts. In 2017 close to 7,000 cases have been filed in the Superior Courts of Essex County and Middlesex County alone. It comes as no surprise that litigation can languish for years before a case is resolved.
With the Court backlog and typical litigation delays there are more and more instances where an injured party (Plaintiff in a tort lawsuit) may pass away before the case reaches trial and is resolved at the appellate level. When a tort Plaintiff dies before the case ends, what happens to the personal injury claim? Under Massachusetts statute and common law, certain actions survive the death of the claimant. For example, Massachusetts common law allows contract actions to automatically survive the death of a claimant; however, personal injury claims do not. Personal injury actions are defined as “survival actions” under M.G.L. c. 228 §1, which provides that survival actions include:
“Actions of tort (a) for assault, battery, imprisonment or other damage to the person; (b) for consequential damages arising out of injury to the person and consisting of expenses incurred by a husband, wife, parent or guardian for medical, nursing, hospital or surgical services in connection with or on account of such injury; (c) for goods taken or carried away or converted; or (d) for damage to real or personal property…”