Alaska

 

 

Statutes of Limitations (MASSACHUSETTS)

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Personal Injury - 3 yrs. [M.G.L.A. 260 § 2A]

Wrongful Death - 3 yrs. (from date of death or from discovery by executor/administrator) [M.G.L.A. 229 § 2]

Property Damage - 3 yrs. [M.G.L.A. 260 § 2A]

Contracts (Written and Oral) (not involving Personal Injury) - 6 yrs. [M.G.L.A. 260 § 2]

Contracts (Personal Injury involved) - 3 yrs. [M.G.L.A. 260 § 2A]

Breach of Warranty (Implied or Express) (in tort-based actions) - 3 yrs. [M.G.L.A. 106 § 2-318]

Contracts of Sale (goods) and Breach of Warranty (not involving tort-based actions) - 4 yrs. (from tender of delivery) [M.G.L.A. 106 § 2-725]

Cause of Action Pursuant to Consumer Protection Act (M.G.L.A. 93A § 9) - 4 yrs. (after 30-day notice before filing suit) [M.G.L.A. 93 § 13]

 

“Discovery rule” usually applies in negligence actions and tolls the statute of limitations until Plaintiff knows (or reasonably should have known) that it has been harmed or may have been harmed by the defendant's conduct [Taygeta Corp. v. Varian Associates, Inc., 763 N.E.2d 1053 (Mass. 2002)].

 

 

 

 

 

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Statute of Repose (Products) (MASSACHUSETTS)

 

None.

 

 

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Admissibility of Expert Testimony (MASSACHUSETTS)

 

Massachusetts Supreme Court has stated:

 

We accept the basic reasoning of the Daubert opinion because it is consistent with our test of demonstrated reliability. We suspect that general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue. We accept the idea, however, that a proponent of scientific opinion evidence may demonstrate the reliability or validity of the underlying scientific theory or process by some other means, that is, without establishing general acceptance [Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994)].

 

 

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Causes of Action (MASSACHUSETTS)

 

Strict Liability – Not adopted/recognized (but see discussion below re: implied warranty).  There is no “strict liability in tort” apart from liability for breach of warranty under UCC [Swartz v. General Motors Corp., 378 N.E.2d 61 (Mass. 1978)].

 

Negligence – A manufacturer is under a duty to design a product with reasonable care and is held to the standard of an ordinary reasonably prudent designer in like circumstances. The product must be designed with reasonable care to eliminate avoidable dangers. It is incumbent on the designer to anticipate the environment in which its product will be used and to design against the reasonably foreseeable risks attending the product's use in that setting.  A defendant cannot be found to have been negligent without having been in breach of the warranty of merchantability [Fahey v. Rockwell Graphic Systems, Inc., 482 N.E.2d 519 (Mass. App. Ct. 1985)].  

 

Breach of Implied Warranty – Implied warranty of merchantability (a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind) [ALM GL ch. 106, § 2-314]: Implied warranty of fitness for particular purpose (where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose) [ALM GL ch. 106, § 2-315].  The law of implied warranty of merchantability in Massachusetts is congruent in nearly all respects with the principles of strict liability.  In deciding the issue of warranty liability, the jury must weigh competing factors much as they would in determining the fault of the defendant in a negligence case. The inquiry focuses on product characteristics rather than on the defendant’s conduct, but the nature of the decision is essentially the same.  A defendant cannot be found to have been negligent without having been in breach of the warranty of merchantability [Fahey v. Rockwell Graphic Systems, Inc., 482 N.E.2d 519 (Mass. App. Ct. 1985)].  Any language, oral or written, used by a seller or manufacturer of consumer goods and services, which attempts to exclude or modify any implied warranties or to exclude or modify the consumer’s remedies for breach of those warranties, is unenforceable. [ALM GL ch. 106, § 2-316A].  Lack of privity between Plaintiff and Defendant is no defense [ALM GL ch. 106, § 2-318].

 

Unfair or Deceptive Acts Per Chanter 93A – Business Claim: any person who engages in the conduct of any trade or commerce and who suffers any loss of money or property as a result of the use or employment by another person who engages in any trade/commerce of an unfair or deceptive act declared unlawful may bring an action for damages [ALM GL ch. 93A, § 11].  Consumer Claim: any person who has been injured by another person’s use of any method/act declared unlawful may bring an action for damages [ALM GL ch. 93A, § 9].  A breach of warranty constitutes a violation of Mass. Gen. Laws ch. 93A, § 2 [Maillet v. ATF-Davidson Co., 552 N.E.2d 95 (Mass. 1990)].  It is not a defense to a Mass. Gen. Laws ch. 93A claim that Defendant’s conduct was negligent rather than intentional; neither intent to engage in an unlawful act nor knowledge of its unlawfulness is required in order to establish liability [Id.].

 

Breach of Express Warranty – Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise [ALM GL ch. 106, § 2-313].

 

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Definition of “Defect” (MASSACHUSETTS)

 

Manufacturing Defect – If a case involves a manufacturing defect, the jury might simply compare the propensities of the product as sold with those which the product’s designer intended it to have and thereby reach a judgment as to whether the deviation from the design rendered the product unreasonably dangerous and therefore unfit for its ordinary purposes [Back v. Wickes Corp., 378 N.E.2d 964 (Mass. 1978)].

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Also, see discussion below re: design defects.  

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Liability of Sellers (MASSACHUSETTS)

 

Cases based on Negligence – A seller is not liable in an action for negligence unless it knew or had reason to know of the dangerous condition that caused the accident [Enrich v. Windmere Corp., 616 N.E.2d 1081 (Mass. 1993)].

 

Cases based on Breach of Warranty – Sellers liable because UCC involves “sale” by definition.

 

Cases based on Unfair/Deceptive Acts – Apply to anyone who committed unfair and deceptive acts, by definition.

 

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Defenses (MASSACHUSETTS)      

 

Comparative Negligence – Massachusetts follows comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [M.G.L.A. 231 § 85].  The comparative negligence statute does not apply to breach of warranty actions [Fahey v. Rockwell Graphic Systems, Inc., 482 N.E.2d 519 (Mass. App. Ct. 1985)].

 

Product Misuse – A manufacturer must anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product’s use in that setting [Back v. Wickes Corp., 378 N.E.2d 964 (Mass. 1978)].  The fact that Defendant is not liable if Plaintiff is injured as a consequence of his unforeseeable misuse of a product is most properly analyzed as an element of Plaintiff’s case, since he must prove that his injury was caused by a defect making the product unfit for its ordinary use [Correia v. Firestone Tire & Rubber Co., 446 N.E.2d 1033 (Mass. 1983)].

 

Product Alteration/Modification – The question of liability following either the removal of a safety device from a product or other alteration of a product destroying the utility of its safety features hinges on reasonably foreseeable risks and that question is almost always for the jury [Fahey v. Rockwell Graphic Systems, Inc., 482 N.E.2d 519 (Mass. App. Ct. 1985)].  Most likely, by analogy with the “misuse” defense, the fact that Defendant is not liable if Plaintiff is injured as a consequence of his unforeseeable alteration of a product is most properly analyzed as an element of the Plaintiff’s case, since he must prove that his injury was caused by a defect making the product unfit for its ordinary use.

 

Assumption of Risk – Abolished by a statute in cases based on negligence [ALM GL ch. 231, § 85] and does not apply in implied warranty cases either [Correia v. Firestone Tire & Rubber Co., 446 N.E.2d 1033 (Mass. 1983)].  NOTE: There are cases holding that the plaintiff in a warranty action may not recover if it is found that, after discovering the product’s defect and being made aware of its danger, he nevertheless proceeded unreasonably to make use of the product and was injured by it [Fahey v. Rockwell Graphic Systems, Inc., 482 N.E.2d 519 (Mass. App. Ct. 1985)], but those cases refer to situations where the plaintiff’s conduct alone is the proximate cause of his injuries (the plaintiff is denied recovery, not because of his contributory negligence or his assumption of the risk, but rather because his conduct is the proximate cause of his injuries) [Correia v. Firestone Tire & Rubber Co., 446 N.E.2d 1033 (Mass. 1983)].

 

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (MASSACHUSETTS)

 

Purely economic losses are unrecoverable in tort and strict liability actions absent personal injury or property damage [Aldrich v. ADD Inc., 770 N.E.2d 447 (Mass. 2002)]. In the absence of personal injury or physical damage to property, the negligent supplier of a defective product is not ordinarily liable in tort for simple economic loss [Berish v. Bornstein, 770 N.E.2d 961 (Mass. 2002)].

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (MASSACHUSETTS)

 

While the plaintiff need not eliminate every possible cause of the malfunction other than a defect, he must eliminate all other reasonable causes [White v. W.W. Grainger Co., 1988 U.S. Dist. LEXIS 1229 (D. Mass. 1988)]. 

 

 

 

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Design Defects (MASSACHUSETTS)                                                                                                

 

Designing a product that functions as intended, is accompanied by warnings, and whose danger is obvious will not necessarily preclude a finding of liability for negligent design. There is a case for the jury if the plaintiff can show an available design modification which would reduce the risk without undue cost or interference with the performance of the product.  In evaluating the adequacy of a product’s design, the jury must weigh: (1) the gravity of the danger posed by the challenged design; (2) the likelihood that such danger would occur; (3) the mechanical feasibility of a safer alternative design; (4) the financial cost of an improved design; and (5) the adverse consequences to the product and to the consumer that would result from an alternative design [Fahey v. Rockwell Graphic Systems, Inc., 482 N.E.2d 519 (Mass. App. Ct. 1985)].

 

Evidence as to a standard of design which has developed in an industry is appropriate for consideration of the jury [Johnson v. Boston, 490 N.E.2d 1204 (Mass. App. Ct. 1986)].  Conformity to industry standards is not dispositive (counsel may argue that industry standards can and should be more stringent); but the evidence of conformity to industry practice is not immaterial [Back v. Wickes Corp., 378 N.E.2d 964 (Mass. 1978)].

 

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Failure to Warn (MASSACHUSETTS)

 

A manufacturer has a duty to warn expected users of its product of latent dangers in its normal and intended use. The duty to warn does not attach where a danger presented is obvious, or where a plaintiff appreciates the danger substantially to the same extent as a warning would provide [Carey v. Lynn Ladder & Scaffolding Co., 691 N.E.2d 223 (Mass. 1998)].  Where a product liability verdict is based on negligent failure to warn and failure to warn under breach of warranty, it is appropriate to analyze the verdict by reference to negligence precedents [Hoffman v. Houghton Chem. Corp., 751 N.E.2d 848 (Mass. 2001)].

 

The adequacy of the warning must by comprehensible to the average user, conveying the danger to the mind of a reasonably prudent person, and its forcefulness must be commensurate with the danger involved.  If an adequate warning is supplied, there is a presumption that it will be read.  The adequacy of warnings is almost always an issue to be resolved by a jury [Wasylow v. Glock, Inc., 975 F. Supp. 370 (D. Mass. 1996)].

 

The sophisticated user defense protects a supplier from liability for failure to warn when the end user knows or reasonably should know of a product’s dangers [Hoffman v. Houghton Chem. Corp., 751 N.E.2d 848 (Mass. 2001)]

 

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Independent Cause of Action for Evidence Spoliation (MASSACHUSETTS)

 

There is no cause of action for spoliation of evidence [Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420 (Mass. 2002)].