Spring v. Geriatric Authority of Holyoke

Mass. 274 Spring v. Geriatric of Authority Holyoke. Spring, executrix,1

Blanche and as vs. individually Holyoke Geriatric of & others.2 Franklin. November ^[1984] . March 14, Hennessey, Lynch, & Present: C.J., Wilkins, Liacos, Abrams, JJ. Statute, act, Fair Act. Special Practices Repeal. Massachusetts Information Practice, Civil, Tort Claims Act. Presentment of claim under Mas- Immunity. sachusetts Tort Act. Claims Governmental Consumer Protec- Act, letter, Privacy. tion Demand Pleading. Damages, Breach of con- Amendment, Judgment, tract. Summary.

Because the special establishing act Authority Holyoke Geriatric pro-

vides that the authority city to be treated as a for liability or town Act, and purposes, because the Fair Information Practices excludes cities and coverage, towns from its authority not liable on a claim based unlawfully on G. 66A for a divulging hospital JJ., patient’s personal data. concurring. [279-282] & Abrams Liacos, Holyoke The Geriatric Authority employer” purposes is a “public for G. L. the Massachusetts Tort Claims and thus failure of a claimant to with comply presentment requirements and notice 258, 4,§ ofG. L. c. her against negligent barred authority invasion of privacy negligent and infliction of emotional distress. [282-284] 1 We refer Spring, capacities, shall to Blanche in both plaintiff. as the Center; Paul, Holyoke Geriatric and Convalescent Joseph individually Walohan, and as director of the Holyoke; Geriatric Joan Webster, Talbert, Greany, Winifred Chmiel, Joyce Cathy McEvady, Beverly Axdina Brown, Beckett, Barbara Maureen individually agents, and as servants, and employees Holyoke Geriatric and Convalescent Center. defendants, originally Four named in included complaint, are not this The McDonough, individually action. counts Donna sued and servant, as an agent, employee Right of the to Life Movement or Committee, ground Citizens LaRouche were dismissed on the that the personal court lacked jurisdiction against Lyndon over her. counts LaRouche, servant, individually sued agent, employee Committee,

Right to Life were Movement or Citizens for LaRouche dis ground granted service missed on was not a perfected. defendants, remaining motion sever the trials of two Frederick Mues and Dr. Nelson Gillet. instrumentality for intentional invasion against public Claims distress, which are outside the and intentional infliction of emotional Act, barred the Massachusetts Tort Claims were scope of G. by governmental immunity. common law of principles [284-286] letter, properly A demand even if it were treated as admitted at the trial of her claim under the Consumer Protection evidence 93A, 9,§ of G. L. c. where satisfy jurisdictional prerequisite did not letter, of a charged invading the defendant with resulting allege any injury did not describe or even hospital patient, actions, and silent as to the relief requested. from the defendant’s also was [286-289] contract, judge properly pursu- After the trial of a claim for breach of a acted (e) damages jury’s

ant to Mass. R. Civ. P. 59 to set aside the award of defendant, finding damages although and enter a nominal where did, (e), period it did not file a motion under rule within the time rule, trial, provided by assigning unjus- file a motion for a new damages ground tified award of a for its motion. [289-290] operator At the trial of a claim that the of a breached its contract with hospital patient by disseminating by a his confidential medical data and permitting him, unauthorized visitors to interview and examine evidence merely during of the cost of the care patient’s hospitalization pro- his was not damages bative of the suffered as the result of the breach. [290-291] against In an operator hospital seeking damages action the owner and of a hospital’s disseminating conduct of the a employees patient’s confidential medical data permitting unauthorized visitors to inter- him, view and examine directed a verdict on a claim properly warranty based on an implied privacy. [291] Summary judgment entered in favor of one the defend- appropriately

ants in a civil action where the failed to her claims support affidavit or otherwise. [292]

Civil action commenced in the Court Superior Department on July Jr.,

The case was tried before John F. J. Sub- Murphy, there was a retrial before him limited to the issue of sequently the defendant Geriatric damages payable by Holyoke. Judicial Court for direct granted Supreme request review.

appellate (Thomas him) R. Randall with Raymond J. Donoghue Geriatric Holyoke. him)

James P. Keane J. Klein with for the plaintiff. {Alice indi- an action Blanche C.J. This is Hennessey, Spring, husband, Earle of her and as executrix under will vidually (decedent), Holyoke the Geriatric Spring incidents that and ten other defendants concerning (Authority) Geriat- the decedent was a at the Holyoke occurred while patient (Center), a owned ric and Convalescent Center hospital Authority. operated he entered old when

Earle was seventy-eight years Spring 8, 1978, remained a resident of on November the Center his death on 1980. In family until his April facility in the Probate Court seeking permission filed a petition treatments. life-sustaining kidney dialysis remove him from it was determined that dialysis court Following proceedings, 380 Mass. 629 Matter Spring, could be withheld. the termination of the court order authorizing learning Upon treatments, and nurses Webster Cathy Joyce of dialysis series of and asked him a ques- with McEvady spoke Spring die, re- tions, to which he whether he wanted including Webster, thereafter, and McEvady “No.” Shortly sponded, Talbert, Brown, aides, Ardina Beverly Maureen four medical a letter to the local Chmiel, Barbara Beckett and composed A the court order. their expressing opposition newspaper his answers asked the decedent and of the questions transcript documents to Prior to these taking also was prepared. Mues, Frederick letter to the nurses showed their newspaper, Center, Both its contents. who approved administrator front of the Holyoke on the page were then documents published 21, 1980. on January Transcript 20, 1980, the decedent the evening January During doctor, Nelson nurse, and a Donna McDonough, visited aby or with the Gillet, was affiliated neither of whom These care. medical with the decedent’s involved in any way from Mues; was sought no permission visits were approved Nurses Winifred decedent’s family guardian. or given by visits, in these during Joan Walohan were and present Greany the decedent. and Gillet questioned McDonough which their observations based affidavits two then latter prepared the ongoing a motion to intervene used to were support Spring v. Geriatric Authority Holyoke. the decedent’s the termination of

court involving proceedings treatment. dialysis 30, 1980, this action commenced

On July Her and amended complaint Court. Superior complaint (counts of the decedent’s (1) right invasion privacy alleged: on the decedent II), (2) infliction of emotional distress I and (XI XII), and IV) and and on the in her own (III right Ill, (the 70E Patients’ Stat- Rights violation of G. L. (VII), (5) breach of an ute) (V VI), (4) and breach of contract of the Con- (VIII), (6) violation warranty privacy implied Act, (IX X),.and (7) vio- sumer Protection G. 93A Information Fair Practices Act lation of G. L. c. (XIII XIV). trial, a motion for

Before filed summary judg- that the tort liability ment. concluding Upon Tort Claims of Massachusetts governed by provisions allowed summary judgment partial with to the tort claims of respect (counts of emotional distress invasion of infliction privacy I, II, III, IV, XII). XI and summary judge granted partial to the nine individual defendants as judgment (count VII), of of violations of contract allegations implied (count VIII), (counts and of G. L. c. 93A warranty evidence, X). IX and At the close of all he directed verdicts Paul, Chmiel, Talbert, Brown, the defendants and Beckett for Webster, and allowed motions the defendants Greany, and Walohan for directed verdicts with McEvady, respect (counts XIV) L. c. XIII and their violations of G. 66A alleged inflic- and the claims them for intentional or negligent against III, IV, XII). XI and The (counts emotional distress tion of Ill, 70E, VI), (counts V and plaintiff’s in accordance to a medical tribunal were referred malpractice Author- tribunal found that the with G. L. c. 60B. The not the Patients’ Statute were violations of Rights ity’s alleged has for their consideration and this finding matters appropriate trial, moved for all remaining been At plaintiff appealed. issues, counts, and G. L. c. 66A the G. L. c. 93A including This motion was allowed. to be tried by jury. Webster,

The returned verdicts for defendants jury Greany, and Walohan on the invasion of McEvady, plaintiff’s counts. With to the returned verdicts respect Authority, jury $30,000 for the and awarded her in for vio- plaintiff damages 93A, $50,000 lations of G. L. c. for breach of damages contract, $2,500,000 for violations damages exemplary of G. L. c. 66A. The allowed the motion judge Authority’s the verdict as to the G. L. c. A judgment notwithstanding claims; and, $1; reduced the contract to a nominal damages excessive, the G. L. c. 66A award ordered finding the plaintiff $100,000 to remit all but or submit to a retrial on the issue of refused to remit and the ordered damages. judge a new trial limited to the issue of against to the under G. L. damages exemplary payable c. 66A.

The sum of all the was that all counts foregoing proceedings all L. c. 66A counts G. against parties, except against had been of either verdicts of Authority, jury disposed rulings judge. At the second trial the returned a verdict jury L. in the violations G. c. 66A amount $1,000,000. The motions for not- judgment the verdict and for a new trial were denied. In withstanding clarification,” “motion for response ruled that interest would not be added to the G. L. prejudgment c. 66A award. The motion for fees and attorneys’ $191,727 costs in the amount of was allowed. from the denial of its motions for a Authority appeals

new trial and for the verdict follow- notwithstanding judgment in both the second trial as well as from ing judgments does not trials. The contends that: G. 66A (2) a cause of action under G. L. c. 66A to the Authority; apply (3) a cause of does not survive the death of the injured party; L. an action and therefore action under G. c. 66A is equity trial; (4) in the first was not before the jury properly were excessive and awarded the jury exemplary damages evidence; erred in (5) the the trial judge against weight the the second trial to the issue of damages; limiting award of fees attorneys’ improper.

Spring Geriatric order; remittitur In her challenges appeal, interest; on allowance of his judge’s ruling summary judg- ment tort on the claims against Authority; the verdicts on the G. L. c. 93A judgment notwithstanding count; $1; dismissal the reduction of contract damages of her claim for violation of an against Authority implied and the dismissal of counts defend- warranty privacy; ant for lack of We McDonough jurisdiction. granted plain- tiff’s for direct review. application appellate

We conclude that the is not to suit under Authority subject Therefore, G. L. c. 66A. for the is re- judgment on these counts. On all other issues to reach quired necessary on we affirm the of the trial appeal, rulings judge. L.G. c. 66A.

1. Applicability of it is that Although undisputed employees released, without of the decedent or his permission family, information defined as data” under G. L. c. 66A “personal (Act),3 the that contends it is not to suit under subject that statute.4 The created the Legislature Authority by special 3The statute prohibits unauthorized release of “personal data” which which, are defined in part “any concerning information an individual name, number, identifying because of mark or can description readily be individual; however, associated with a particular provided, that such infor 66A, 1, mation is not contained public § in a record.” G. L. c. as appearing 1977, 691, § in St. c. 2, 7, § 4 General Laws c. as amended through §§ St. 8, states in pertinent part: “Every holder maintaining personal data shall: — (a) identify one immediately individual responsible for the personal data system who shall insure that the requirements of this chapter for preventing followed; access (b) to or dissemination of personal data are inform each of its employees having any responsibility or function in design, develop ment, operation, or system, maintenance of the data personal or the use of therein, any personal data contained of each safeguard required by this chapter, of each rule and regulation promulgated pursuant to section three pertains to the operation of the personal system, data and of the civil remedies described in section three B of chapter two hundred and fourteen rights available to individuals whose sixty-six under A chapter allegedly are violated; (c) agency not allow other or individual not employed holder to personal have access to data unless such access is authorized by statute regulations or which are consistent purposes with the of this chapter approved by subject the data . . . .” 3B, General Laws c. as amended St. states pertinent part any holder which any provision violates of G. L. Mass. 274 280 394 of Holyoke. Authority shall have in relevant “The act which provides part: sued, .(b) and be and duties: . . To sue the following powers extent and the same conditions that but to the same only 554, 1971, (b), § as be sued.” St. c. 8 or town may city 1097, 1973, there is no c. 1. While legislative amendedbySt. 8(b), reasons for it is available to apparent history explain that, act as a whole although from reading special character, remains has a it closely semi-independent 3, 4, (c) (d) (i) (k) (1) §§ See tied to the city Holyoke. act, amended (A) of the St. (m) (n), and 10 special § 1. In transferring operation St. home to the Authority, Legis- nursing Holyoke’s municipal level of as would intended to maintain the same liability lature act. (b) §See of the to the city. special apply be sued under that the Authority may argues of that statute’s definition subject c. 66A reason G. L. created general which includes “any authority agencies either statewide to serve a having court public purpose, indeed to en- This would local jurisdiction.” language appear However, not in- G. L. c. 66A was the Authority. compass to “units of or town governments.” tended to county, city apply Commission, First Interim Legislative See Report Special Jaffe, 34; Brant, Barron, No. at House Doc. Records, Wallis, PIPA and CORI: Graceffa, Public How & Know, to and the Right Balances Privacy Massachusetts (excluded from ambit n.112 U.L. Rev. Suffolk and town govern- units of city statute were county, of proposed authorities ment). history, only According legislative are “local housing are to the Act “local subject jurisdiction” and, authorities” in its legislative report, redevelopment on the these authorities distinguished commission specifically damage as a result any who suffers any individual c. 66A “shall be liable violations, may bring an action damaged the individual such Not- damages sustained. to recover personal data] such holder [of shown, holder be such damages may for actual as withstanding any liability dollars than one hundred damages of not less exemplary shall be liable attorney’s fees and reasonable with such costs together violation for each such action.” be incurred in may Geriatric Holyoke. Spring the executive branch. First Interim basis of their regulation by definition of at 34. The of the Act’s subject supra scope Report, is consistent with its stated “to agencies purpose: provide information, and use of selection safeguards personal records, reasonable access individuals to their by pro- provide and identification of vide a of registration state-operated system added). data ...” Id. at 31. The systems personal (emphasis the intended does not to have Legislature changed scope appear of the Act in manner relevant to this case any purpose definition when in it amended the 1977 statutory “agency” and inserted the relied See language upon by plaintiff.5 Fair Amendments to the Information Prac- Commentary 6106, tices 1977 House Doc. No. at 10-11. its terms By the Act continues to to State regulated apply agencies, 1, 66A, 1977, § cities towns. G. as in St. appearing Gen., 691, 1, § c. 6. Torres v. 391 Mass. Attorney (“The statute is directed State that are ‘hold- agencies ers,’ 66A, 1”). § as defined in G. L. c. the limitation on the created

Applying Authority’s liability (b) §in of the act to the terms of by Legislature special 66A, L. § G. c. we conclude that the is no more to suit under G. L. c. 66A than is the subject city Holyoke. We do not see an irreconcilable between conflict the two stat utes contention that L. warranting G. by enacting 66A, 1,§ (b) § of the Legislature impliedly repealed act. “Such have never been fa Authority’s enabling repeals vored our law. Unless the statute is so prior repugnant stand, and inconsistent with the later enactment that both cannot then the deemed former is not to have been Commonwealth repealed.” 505, 511 (1977), Common Hayes, quoting wealth v. Even if the Bloomberg, statutes were inconsistent with to the regard Authority’s liability, § appearing General Laws c. as in St. defines “any “[ajgency” agency government, executive branch of the office, limited or executive including but not constitutional other office, division, bureau, board, commission or committee department, thereof; general serve a any authority public created court to having jurisdiction.” either statewide or local purpose, 394 Mass. 274 act, of the in this case the provisions special act, would over those of a

enabling prevail subsequently enacted law absent a of the general earlier act specific repeal or a clear and intention to strong legislative expression act. Boston Teachers Local 66 v. supersede School special Boston, 455, 472 (1976), Comm. and cases cited. We do not know what considerations led the policy Legisla- ture to exclude cities and towns from the of G. L. coverage However, c. 66A. it (b) is clear from the of 8 plain language act that the is to be treated as a special city or town for under G. L. liability purposes, including liability c. 66A. Thus c. 66A does not to the Because apply Authority. of our conclusion that G. L. c. 66A does not apply we need not and do not consider the G. L. authority, ancillary c. 66A issues raised parties’ appeals.6

2. Cross Appeal. Plaintiffs Because the failed to with the plaintiff comply presentment and notice Tort the Massachusetts Claims requirements 258, 4, 1978, 512, 15, § c. § G. L. c. as St. appearing motion for summary judg- judge granted partial ment with to the claims invasion negligent respect plaintiff’s emotional distress. He infliction of negligent barred also ruled that the intentional tort claims were plaintiff’s 258, (c), § G. L. c. which states that c. 258 does not by tort, to claim out of an intentional including apply “any arising invasion of . . . intentional mental distress . . . privacy.” [and] (1) the is She his rulings, contending appeals of c. 258 and meaning not a within the “public employer” the act’s be sued in tort without recourse to therefore may pro- by the defendant include whether The other G. L. c. 66A issues raised death; the decedent’s whether the cause of action survived 66A; exemplary under G. L. c. whether right jury has a to a trial evidence; weight damages awarded were excessive trial to the issue of limiting the trial erred in the second whether fees damages; judge’s attorneys’ pur and whether the award of exemplary 214, 3B, § appealed cross improper. suant to G. and his failure add interest to prejudgment remittitur order to judge’s damages. exemplary award of jury’s visions, because intentional tort claims are not covered c.,258, G. L. of such statutory claims is not presentment required. 258, 2,

General § Laws in St. appearing § that a is liable provides “for or public employer injury loss of or or death property caused personal injury or act or negligent wrongful omission of any public employee while within the of his or acting office scope employment.” However, G. L. c. 2. a condition precedent bringing suit under this is the chapter claim “in presentment writing executive officer of such public within employer two after the years date which the cause of action upon arose.” 258, § 4. claim if the is Only denied or the executive settle, arbitrate, officer fails to the claim within compromise months, six claimant file suit. may purpose the statute’s is presentment “to requirement stabil- preserve and effectiveness of ity government mechanism providing which will result in those payment only against gov- ernmental valid, entities which are in amounts which are reasonable and not inflated.” Vasys Dist. Metropolitan Comm’n, (1982). If is proper presentment allotted, made within the time plaintiff’s complaint to dismissal. Id. at subject 56. The need not public employer show prejudice rely failure of present- Commonwealth, ment. Weaver v.

Clearly recognizing necessity properly presenting 258, covered G. L. c. by seeks to excuse her plaintiff that her tort noncompliance by claims are not arguing governed the act. by

We have discussed the already (b) § 8 of the significance act which special that the is provides to suit subject to the same “only extent and the same conditions that a upon or town be city sued.” Cities and towns are may defined as under the public Massachusetts Tort Claims Act. employers 258, G. § L. c. l.7 The remedies under c. 258 are provided 258, 1, 537, § General Laws c. appearing in St. defines town, “public employer” any county, as: “the commonwealth and city, 394 Mass. 274 258, §

exclusive of common G. 2. It any remedy. law therefore follows that in tort actions covered by be sued if the with the Authority may only plaintiff complies § G. L. c. presentment prerequisites claims the is an body “independent — and and as such is excluded from c. 258’s politic corporate” definition of § G. L. c. 1. In making public employer. this she of the argument again ignores plain language import (b) §of act. her reliance This is special apparent Comm’n, v. Boston & Kargman Water Sewer (1984), Ct. 51 in which the Court held that the App. Appeals defendant commission was an “independent body politic” 258, § within the of G. L. c. 1. The legis- meaning enabling commission, however, lation does the water sewer creating limitation not contain the on in 8 liability express appearing (b) of the act. In this decisive the cases are special respect, readily distinguishable. alternative, even if the Au- in the plaintiff argues, 1,§ under G. L. c. and her is a

thority public employer are barred her failure to claims of therefore negligence intentional tort claims with her statutory comply presentment, dismissed because are not governed by were wrongly they act. The contends that virtue of language (c), her intentional she is entitled to pursue There recourse to c. 258. We tort claims without disagree. liable no case law in this Commonwealth holding municipalities the intentional torts of in- excluding employees. By their district, collaborative, health district or including any public educational or established regional regional health district or health board joint district or B of twenty-seven twenty-seven of section A or provisions pursuant commission, office, eleven, any department, hundred and chapter one division, bureau, institution, committee, council, board, authority agency or but public employee, exercises direction and control over thereof which any employer, the Massachusetts public contractor with such private Authority, the Mas- Authority, the Massachusetts Port Bay Transportation Authority, independent body politic other Turnpike sachusetts committee of a of a school respect public employees With corporate. town, shall be chapter for the of this public employer purposes city or city be or town.” respective deemed to said Geriatric Authority Holyoke. Spring of v. 258, of G. L. c. Legislature from the

tentional torts scope for intentional liability the matter of governmental left open law of gov- the common principles torts. Consistent with Tort the Massachusetts ernmental immunity preceded retain their Act, that Claims we conclude public employers from intentional torts. from suits arising immunity start with the basic In “we princi- interpreting immun- of the doctrine governmental that abrogation ple defense of removed the immunity the Act ity by simply Commonwealth, tort actions municipalities, certain It did not create new and other subdivisions. governmental Dinsky Framingham, liability theory municipality.” created common Prior to c. as a result “judicially immunity, law governmental public employers concept” not liable for the torts of their were generally employees. Commonwealth, 612, 615 (1973). Morash & Sons v. “The rule is that if there is tortious there is customary injury created to the rule of bemay liability. liability, exceptions The inverted rule here creates an establishes immunity, Id. at 621. In Morash we urged liability by exception.” action. At abrogation governmental immunity by legislative time, limi the same we of retaining recognized importance tations on the “based consid liability public employers at 623. In erations of Id. that regard, justice public policy.” had limited its waiver of we noted that Congress specifically the Federal to creating governmental immunity by exceptions (1982),8 an 2680(h) Tort Claims 28 U.S.C. including caused the wilful conduct exception liability “wrongs at 624. The same Id. [government] public employees.” em considerations lead us to decide today public policy Therefore remain immune from intentional tort claims. ployers was correct to dismiss 2680(h) provisions “The pertinent part: 8 Title 28 U.S.C. reads — assault, (h) arising claim out of Any . . . shall not chapter apply this arrest, abuse of prosecution, malicious battery, imprisonment, false false slander, deceit, libel, or interference with con misrepresentation, process, rights.” tract 394 Mass. 274 for intentional infliction of emotional distress and invasion of privacy. sum,

In we (1) conclude that claims plaintiff’s against for invasion of negligent privacy negligent infliction of emotional distress were dismissed because properly is a authority entitled public to notice and employer present- ment under the Act, Massachusetts Tort (2) Claims plaintiff’s against intentional invasion and intentional privacy infliction of emotional distress were dismissed because properly are public immune from employers such suits.9 we need not decide Accordingly, whether the plain- tiff’s claim for invasion of survived the privacy decedent’s death,10 or whether she has shown conduct either amounting to an invasion of or to the infliction privacy of mental Co., distress. See v. Howard Agis Johnson 144-145 (elements of cause of action for intentional infliction of distress); emotional Ferriter v. Daniel Sons, O’Connell’s (1980) (elements 517-519 of cause of action for infliction of negligent emotional distress).

3. G. L. c. 93A Claim. The allowance of the appeals motion Authority’s for judgment the verdict notwithstanding on her G. L. c. A93 claim. She that the alleges violation of the dece- dent’s constituted an unfair or privacy rights act or deceptive public employers, While like Authority, may not be held liable for intentional torts committed employees, their the employees may be Morash, personally liable for harm they have caused. See supra at 624 n.7; Glannon, Governmental Tort Liability Under the Massachusetts Tort (1981). Claims 66 Mass. L. Rev. Thus the plaintiff’s claims Webster, against Authority employees Greany, McEvady Walohan and intentional invasion of privacy jury although reached the verdicts were returned for the defendants. 10The plaintiff’s claim the Authority for invasion of privacy brought solely on behalf of the decedent in the capacity as execu Although trix. we no express opinion as to right whether a common law Commonwealth, of action for invasion of exists in this we observe majority that in a jurisdictions which recognize right such a common law action, an such action does not injured survive the death of the party. Fuller, (Ha. 1982), 408 So.2d Dist. App. Ct. and cases Loft cited. 394 Mass. 274

Spring v. Geriatric Authority Holyoke. 93A, § in G. based as defined L. 2.11 practice his on the failure to ruling allege prove existence of a demand letter the claimant and “identifying the unfair or act or reasonably describing deceptive practice relied and the suffered.” G. L. c. injury concedes that she neither in her alleged complaint of such a demand letter nor introduced such a letter sending in evidence at trial. We have often held that demand letter “[a] claimed is a listing specific deceptive practices prerequisite to suit and as a element must be and special alleged proved’ added). v. Twin (emphasis Entrialgo City Dodge, 812, Auto, Inc., 813 See v. Westwood 366 Slaney 688, (1975) letter, Mass. 704 he sent a demand (by alleging Sullivan, suit); satisfied to York v. plaintiff prerequisite 157, (1975) (“The Mass. thirty-day requirement, part relief, of a written demand for is a requirement prerequi- suit, site to to be and Linthicum v. Archam- alleged proved”); bault, (1979) 384-385 (plaintiff’s pleadings must show that a demand for relief was sent thirty days prior to Protection, See filing also Consumer Ann. complaint). Law, 157, Mass. Survey under L.G. (sample pleadings 93A, 9).§ c. that we should find her and plaintiff argues pleadings sufficient because the

proof re- Authority “acknowledge^]” of her demand letter.12She the fact ceipt that the emphasizes demand letter was marked for identification and used by Paul, counsel her direct during examination of Joseph Specifically, plaintiff alleged authority that the provisions violated homes, of the Attorney regulations relating nursing General’s 940 Code (1978), 93A, Regs. promulgated § 4.00 L. pursuant G. “(a) inserted St. which states in pertinent part: Unfair competition methods of and unfair or deceptive practices acts or in the (c) conduct of trade or hereby commerce are declared unlawful. . . . The attorney general may regulations interpreting pro make rules and 2(a) visions of subsection of this chapter.” complaint, 12 The cites the answer to her amended which as an affirmative her insufficiency purported includes defense the letter, Paul, testimony demand director of by Joseph former executive he Authority, received said letter. However, even if executive director of the former Authority. alleged we were to assume that adequately letter, are not the existence of a demand we persuaded proved letter satisfied the General that the sent statutory requirements. that a written demand for relief Laws c. provides the unfair must describe “reasonably” practice complained the letter are twofold: suffered.” The “injury purposes and settlement notifying “to encourage negotiation pros unlawful defendants of claims from allegedly arising pective (2) “to as a control on the amount conduct” and operate recover.” can ultimately damages complainant makes a reasonable at 704. If the defendant Slaney, supra of settlement which is complainant, tender rejected If to the amount of tender. recoverable are limited damages made, unreasonable or the tender is no tender of settlement suffered, recover relation to the the complainant may injury $25, whichever or nominal damages either actual damages the therefore essential that Id. It is complainant greater. demanded in a manner suffered and the relief define the injury defendant with “an opportunity that prospective provides if the the facts and the law involved to see requested to review make denied” and enables him to should be or relief granted Sullivan, tender of settlement.” York “a reasonable at 157, 162-163 704-705. (1975), Slaney, supra quoting with letter the Authority In this case the charges plaintiff’s the rights “and/or” “breach[ing] intentionally negligently Earle but does associated with the person Spring” let manner the decedent was injured allege L. suffered.” G. describe “injury alone “reasonably” Brown, ante 165-166 93A, Leardi v. Cf. need only nominal (1985) statutory damages seeking (plaintiff The letter is also right). invasion of legally show protected complaint to the relief although plaintiff’s silent as requested $30,000,000 in $10,000,000 in actual damages demands for an exorbitant demand such damages.13 Clearly punitive times the amount (3), to three provides up General Laws of the act employment that the use or damages “if the court finds of actual knowing violation.” was a willful or practice or Geriatric Authority Holyoke.

Spring v. and settlement relief is to likely negotiation hardly promote Cf. Brandt v. Olympic to as a control on damages. operate Constr., Inc., (demand Ct. App. com- letter was where owed injury sufficient compensation therefore hold of was from facts We alleged). plained apparent letter, if treat it as intro- that the demand even we plaintiff’s evidence, duced in does not the jurisdictional satisfy prerequi- 93A, § site to suit under G. L. c. reason,

For this we need not confront other arguments raised L. to the G. by opposition plaintiff’s However, c. 93A claim. we note that raised with objections of the decedent’s actual regard damages, proof applica- of G. L. c. a 93A to bility Authority, survivability action, L.G. c. 93A and the submission of the claim for determination14 additional obstacles to the jury pose case. 4. Breach Contract Claim.

Next the action in plaintiff challenges judge’s setting aside the award of contract a jury’s damages entering of nominal that the finding damages. plaintiff alleged violated of its contract with the decedent provisions dissemination of his confidential medical infor- allowing mation and unauthorized visitors to interview permitting and examine him.15The returned a verdict for the jury plaintiff, will, as executrix under the decedent’s and awarded her actual $50,000. that the had damages failed Finding evidence of suffered present any the decedent as damages contract, result of the breach of altered the verdict to Mass. R. P. (e), Civ. 59 pursuant (1974), 827 $1. and entered nominal of damages Burley, 14 See Nei v. (1983), 388 Mass. 307 in which we held that there right is no to a trial jury under G. L. c. 93A. agreement The express plaintiff the relies restricted the release of the decedent’s medical information as well as the procurement of the services of alternative medical The personnel. judge jury also instructed the that they any could take into Authority consideration violations the of the Statute, Ill, 70E, Rights Patients’ of G. L. c. or of G. L. reaching 66A as evidence in a verdict on the breach of contract count. 394,Mass. of Holyoke. Authority Co.,

In v. New Tel. & Tel. 383 Mass. 250 Page England (1981), held a the we that Court judge Superior properly $10,000 $1 reduced a award from to where the contract jury’s failed establish actual the to caused plaintiff damages defendant’s this breach of contract. that plaintiff argues case is from the because distinguishable Page judge allegedly acted sua in the verdict whereas in Page sponte changing jury’s the acted Mass. R. Civ. in to the defendant’s response (e) P. (e) motion. We with the rule 59 agree plaintiff within to move ten aggrieved days entry requires party However, to alter or amend the while judgment judgment. motion, (e) failed to file a rule it properly did move for a new trial within the same time required period, one contract award as jury’s ground citing unjustified its It is from the brief motion. clear judge’s supporting that he acted in to this motion. See Sonnenblick ruling response Nowalk, (3d 1970) Goldman v. 420 F.2d Cir. Corp. Fed. (motion to vacate R. Civ. considered judgment properly P. We the correct result motion). will not overturn 59 [e] reached thé because the committed judge simply a motion failing error its procedural caption properly. she also contends that introduced sufficient That evidence of to warrant the award. evidence damages jury’s his the cost the decedent’s care during consisted solely half Center. and a at the year According plaintiff, have found that the breach could jury properly entire of its contract rendered the contract privacy provisions Russell, (1882), Parker Citing worthless. $50,000 award the dece- she contends that the compensated value contract with the Authority. dent’s estate of his However, Parker in that case evidence because inapposite her that the defendant failed to agreement showed perform Here at issue had been violated. therefore the contract totally violated were severable from rest any provisions does contest the fact that contract. The despite the decedent continued violation provide he until the contracted with all the other services for took over four-day time his death. The breach alleged place — 18, 1980, 21,1980. The decedent January January period remained with the another fifty- approximately we five Even if were to assume that there was a total days. — breach of contract a conclusion not these final during days — warranted evidence award would still be jury’s than the cost of the contract this substantially higher during period.

We conclude that the award was not jury compensatory nature because no actual were at damages trial. There- proved fore, the altered the verdict judge to reflect correctly jury’s the nominal due as a result of the damages Author- (award $10,000 breach of contract. See ity’s Page, supra is not nominal damages).

5. “Implied Warranty Privacy.” ordered a directed verdict with respect claim plaintiff’s for breach of the dece- dent’s “implied warranty privacy, personal peace, security and solitude.” When asked the court to cite legal authority for the existence of an such implied warranty, plaintiff’s counsel stated that his . . theory “grounded . some [on] further, common sense.” good Pressed counsel that argued such an implicit warranty derives elderly patients support Statute, Ill, from the 70E, Patients Rights’ G. L. Fair Information Practices G. L. c. the Attorney (under General’s G. L. regulations 93A), the law of express contract, and “the common law doctrine of doc- nurse-patient, tor-patient All these ele- hospital-patient relationship.” ments the basis for claims that were provided presented we have jury discussed at some above. length Simply a new label on the same cause of action placing will not change the outcome reached on the other counts. See Binns, Schenker v. (where Ct. 406 (1984) App. counts were barred negligence by failure to comply with the presentment requirement contract counts same acts alleging dismissed). were negligent properly It is evident from the record did not her regard breach of claim a warranty serious one and neither implied We do we. see no error in the dismissal judge’s of this count. Mass. 274 394 292 Geriatric Spring Holyoke. v. Lack Dismissal Jurisdiction. for the dismissal of her tort the

Finally, plaintiff appeals the motion defendant McDonough. McDonough’s cited different for dismiss- affidavit several grounds supporting R. court’s lack of Mass. including jurisdiction, al the personal (b) (2), (1974), P. 12 365 Mass. 754 and the Civ. plaintiff’s claim to relief be failure state a which could upon granted, (b) (1974). R. Mass. The (6), Civ. P. 12 365 754 the filed no counter-affidavit. that Finding plaintiff com- failed to facts sufficient to McDonough show prove Commonwealth, a the as mitted tortious within injury required statute, G. L. to establish under our long-arm jurisdiction 223A, his (c), § dismissal. Because c. ordered judge took into account factual material outside rulings pleadings, i.e., affidavit, treat of dis- we shall his order defendant’s R. Civ. P. missal as under Mass. summary judgment P. (1974). (b); See Mass. R. Civ. Cousineau Laramee, (1983); n.2 v. v. 388 Mass. Mongeau Boutelle, Ct. App. plaintiff’s claims, by failure to facts sufficient to her tort show support otherwise, between affidavit or an eleven-month interim despite ' motion indicates initial McDonough’s judge’s ruling, and the was entitled to summary that the defendant judgment of dismissal was correct. order

7. Conclusion. indicate

The facts this case that employees established ain the defendant Authority engaged socially unacceptable Their affairs of the Spring family. intrusion into private surrounding to the contributed publicity actions unnecessarily However, in from seeking recovery the death Earle Spring. 66A, relied G. L. primarily Authority, Where does defendant. we have ruled not apply statutes, causes of action other governed by she relied upon not that were substantial the actions procedural steps required clear that those has made it procedural taken. Legislature i.e., are and G. G. L. steps, technical, but are conditions precedent merely important to interpret statutes. It is our only under the recovery privilege laws, not to them. rewrite these apply Spring Geriatric as follows. We set aside the

Our are summarized rulings verdict and reverse judgment against jury of G. L. c. 66A. We direct entry judgment violations counts. affirm the the defendant on these We rulings raised in cross trial to all issues appeal, entered for the Au- summary specifically partial judgment claims; (2) with tort thority judgment respect on the verdict G. L. c. 93A notwithstanding counts; and the on of altered verdict the breach contract (3) dismissal of the warranty plaintiff’s implied privacy claim; (4) of the dismissal action the defendant We therefore reverse in and affirm in McDonough. part. part

So ordered. Liacos, J., J. Abrams, with whom I (concurring, joins). concur with the in relief to the majority’s reasoning denying us, on the record before there is plaintiff. Unfortunately, no for the remedy inflicted on grievous wrong members Spring of his The decedent was an family. ailing, elderly, incompetent at a home. patient the court order nursing Following terminating treatments, the decedent’s Matter dialysis Spring, (1980), 629 two nurses the defendant employed by nurses, asked the decedent whether he wanted die. aides, with four sent a together letter and transcript “interview” with the decedent to the local This newspaper. was done with the of both the nurse and approval supervisory — Later, the Center administrator. a and nurse un- physician — with affiliated were access to the permitted decedent an to make unsolicited employees No visit. defendant had obtained the of either the permission decedent’s or The decedent’s family guardian. privacy invaded without significantly justification. became, course,

The dilemma for the from whom notes, to seek relief. As the court G. 66A is inapplicable Further, Ante at that an Authority. action assuming law, for invasion of at existed common such an action Geriatric Authority Holyoke. Spring v. E. see 18 a been available against municipality, have

might rev. (3d § 53.13a ed. McQuillin, Corporations Municipal a maintained by municipality, 1984), but not against hospital Billerica, Mass. v. Beakey § 53.86. See also see id. at acts of its for negligent not liable (1949) (municipality v. Young of infirmary); in maintenance officers employees not liable Worcester, (municipality im- act, ordinarily than culpability “greater negligent conduct,” city out of maintenance arising to negligent puted hospital). furthermore, has provided specifically

The Legislature, . shall be . . the Authority powers exercise by [its] “[t]he of essential to be the and held performance deemed amending St. governmental functions.” law, added). immunity At common 1971, c. 554 (emphasis St. aby municipality services afforded performed was typically the town immediate advantage “not for the which were Boston, Fisher its corporate capacity.” we Thus, may law nor statute neither at common of impos- a agency purposes as proprietary view this agency liability. ing sent moreover, clear, intentionally that the defendants

It is has exempted Legislature letter to the newspaper. Claims Act. Sec- Massachusetts Tort from the torts intentional 15, 1978, 512, § c. 258, St. inserted (c) of G. L. tion 10 out claim arising to “any that the act does apply provides distress mental tort, . . . intentional including an intentional of in “Where the Legislature of invasion . . . privacy.” [and] statute, we follow Federal follows a a statute enacting Federal Federal statute by construction adjudged 380 Mass. v. Cheney, Inc. Indus. Group, courts.” Packaging Ware, 745, 767-768 392 609, (1980). See Irwin 611 (1984). Federal 258, analogue its (c), § 10 finds Laws c.

General (h) (1982).1 § 2680 28 U.S.C. Claims the Federal Tort 1 (h) provisions “The part: in pertinent § 2680 reads Title 28 U.S.C. — assault, arising out of (h) Any claim apply . . . shall not chapter this arrest, abuse prosecution, malicious false battery, imprisonment, false deceit, con slander, interference with libel, misrepresentation, process, rights.” tract The Federal courts have construed that as provision immunizing from suits out intentional torts. public arising employers Muniz, 150, United States v. 163 (1963). U.S. v.Wine United States, 366 (10th Cir.1983). 705 F.2d See W.L. Prosser Keeton, & (5th 1984) (Federal W.P. Torts ed. govern ment claims). retains from tort immunity intentional specified That same outcome was intended when it Legislature 258, enacted G. L. underscored, however,

It to be ought that the plaintiff such a case retains the an right action bring against individual involved. “A . . governmental . employees logical (c)] 10§ excludes interpretation [G. [intentional from the act’s waiver but public employer immunity torts] does not affect common law remedies em- any against public Glannon, for these ployees acts.” Governmental Tort Liability under the Massachusetts Tort Claims Act of 66 Mass. L. (1981). Rev. See Alves v. 381 Mass. Hayes, (1980); Commonwealth, Morash & Sons v. indeed, (1973). n.7 And here did pursue Webster,

actions the defendants Greany, McEvady, Walohan individuals for invasion of privacy. jury returned verdicts for the four defendants took no cross from the on Thus, those appeal judgments verdicts. had even there been error in those such judgments, error “[Fjailure not before us. to take a cross a appeal precludes from party obtaining more favorable to it than the judgment entered below.” judgment Boston Co. Edison v. Boston Rede- Auth., velopment 43 n.5 The failure to take a cross as to the individual appeal defendants is particularly in view surprising these defendants’ obvious insensitivity to a to come to grieving family struggling terms with the sad fate of one of its members.

Case Details

Case Name: Spring v. Geriatric Authority of Holyoke

Court Name: Massachusetts Supreme Judicial Court

Date Published: Mar 14, 1985

Citation: 475 N.E.2d 727

Court Abbreviation: Mass.