DECISION AND ORDER REGARDING DEFENDANTSâ MOTION FOR
SUMMARY JUDGMENT (DOCKET NO. 32.0)
A. Davis, Associate Justice of the Superior Court
is an action in which plaintiff Donald OâShaughnessy
("Mr. OâShaughnessy" or "Plaintiff"),
acting as parent and next friend of his three sons, seeks
compensation for the loss of consortium that the sons
purportedly have suffered as a result of the serious injuries
that Mr. OâShaughnessy sustained in a fall down the stairs
leading to his apartment on September 12, 2014. Mr.
OâShaughnessyâs accident allegedly resulted from his severe
intoxication, which, in turn, allegedly was caused by
defendants Wharf Holdings, LLC ("Wharf Holdings")
and Coogan Family, Inc.âs ("Coogan" or,
collectively with Wharf Holdings, "Defendants")
conduct in continuing to serve alcohol to Mr. OâShaughnessy
at The Wharf Restaurant and Pub in Edgartown, Massachusetts
("The Wharf") after he was visibly intoxicated.
Wharf Holdings is the landlord of the premises that house The
Wharf, and Coogan is The Wharfâs proprietor. It is undisputed
that two of Mr. OâShaughnessyâs sons, Thomas and Donald, Jr.,
were minors (i.e., less than 18 years of age) at the time of
Mr. OâShaughnessyâs accident. It also is undisputed that Mr.
OâShaughnessyâs other son, John, was not a minor at the time
of Mr. OâShaughnessyâs accident. Irrespective of their ages,
each of Mr. OâShaughnessyâs sons claims to have been
emotionally and financially dependent upon Mr. OâShaughnessy
immediately preceding his accident.
now have moved for summary judgment on all claims against
Wharf Holdings on the ground that Wharf Holdings, as the mere
landlord of the premises that house The Wharf, is not liable
for Mr. OâShaughnessyâs injuries as a matter of law.
Defendants also have moved for summary judgment on
Plaintiffâs claims against Coogan on behalf of John and
Thomas on the ground that neither son possesses a legally
cognizable claim for loss of consortium. More specifically,
Defendants assert that John is not entitled to recover for
loss of his fatherâs consortium because John was not a minor
at the time of Mr. OâShaughnessyâs accident. See Ferriter
v. Daniel OâConnellâs Sons, Inc., 381 Mass. 507, 516
(1980) (recognizing that "children have a viable claim
for loss of parental society if they can show that they are
minors dependent on the [injured] parent ...").
Defendants further assert that Thomas is not entitled to
recover for loss of his fatherâs consortium because Thomas
was not a minor at the time this action was filed.
does not oppose Defendantsâ motion for summary judgment with
respect to Wharf Holdings. Plaintiff does oppose Defendantsâ
motion as it pertains to the claims filed on behalf of John
and Thomas, however, arguing that both sons have valid loss
of consortium claims against Coogan.
Court conducted a hearing on Defendantsâ motion for summary
judgment on October 18, 2018. Both sides appeared and argued.
Upon consideration of the written submissions of the parties
and the oral arguments of counsel, Defendantsâ motion is
ALLOWED as to Plaintiffâs claims against Wharf
Holdings and his claim against Coogan on behalf of John, and
DENIED as to Plaintiffâs claim against Coogan on
behalf of Thomas. The reasons for the Courtâs decision were
stated on the record at the hearing and are summarized,
Summary judgment is appropriate when, viewing the evidence in
the light most favorable to the nonmoving party, there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c);
Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass.
356, 358 (1997). Courts are required to read the summary
judgment record in the light most favorable to the nonmoving
party. Blare v. Husky Injection Molding Sys. Boston,
Inc., 419 Mass. 437, 438 (1995). In responding to a
motion for summary judgment, however, "the opposing
party may not rest on his pleadings, but must allege specific
facts which establish a triable issue ..." Noyes v.
Quincy Mut. Fire Ins. Co., 7 Mass.App.Ct. 723, 726
(1979). See also LaLonde v. Eissner, 405 Mass. 207,
209 (1989) (party opposing summary judgment "cannot rest
on his or her pleadings and mere assertions of disputed facts
case, Plaintiff does not dispute that entry of summary
judgment in favor of Wharf Holdings is appropriate. The
battleground is Plaintiffâs loss of consortium claims against
Coogan on behalf of John and Thomas.
previously noted, the Massachusetts Supreme Judicial Court
("SJC") recognized in 1980 that children "have
a viable claim for loss of parental society if they can show
that they are minors dependent on the [injured] parent
..." Ferriter, 381 Mass. at 516. The right of a
child to recover for loss of consortium of his or her parent
subsequently expanded by the Massachusetts Appeals Court also
to include a child "who is not a minor but who is a
handicapped person who resides in the household of his
wrongfully injured [parent] and who is dependent upon [the
parent] physically, emotionally, and financially."
Morgan v. Lalumiere, 22 Mass.App.Ct. 262, 270, rev.
denied, 398 Mass. 1103 (1986). That, however, is as far as
the right of a child to recover for loss of consortium of his
or her parent currently extends in this Commonwealth. As
recognized by this Court (per Sosman, J.) in Rodriguez v.
Cambridge Hous. Auth., 1998 WL 1184158, at *6
(Mass.Super. Apr. 17, 1998) [8 Mass.L.Rptr. 402],
[i]n a field where the appellate courts proceed "with
discerning caution," it is not for this court to change
the requirements set down by Ferriter and
Morgan. In order to support a claim for loss of a
parentâs society and companionship, the plaintiff child must
be either a minor or, if adult, have some unique circumstance
that makes the adult child intensely and unusually dependent
on his parent. The courts do not recognize loss of consortium
claims for all members of a family, but only for those where
there is that "unique and intense dependency."
Both sides agree that John was not a minor at the time of Mr.
OâShaughnessyâs accident, and that John does not suffer from
any physical or mental handicap. Thus, John does not qualify
as a viable loss of consortium claimant under either
Ferriter or Morgan. To the extent Plaintiff
claims that John had some other form of "unique and
intense dependency" on Mr. OâShaughnessy that would
support a viable claim for loss of his fatherâs consortium,
that claim must await an expansion of existing law that this
Court, cognizant of its duty to "proceed ... with
discerning caution" in this area, is unwilling to
undertake. See Ferriter, 381 Mass. at 516 (internal
quotation marks and citation omitted).
Plaintiffâs claim against Coogan on behalf of Thomas stands
on a different footing. Thomas was a minor when Mr.
OâShaughnessy was injured on September 12, 2014, and,
therefore, he began to accrue potential loss of consortium
damages on that date. Defendants offer no legal support for
the proposition that Thomas still had to be a minor when this
action was filed in order to recover his damages other than a
citation to the previously quoted holding of
Ferriter. This Court does not read the SJCâs
decision in Ferriter to be so restrictive. Indeed,
doing so would be illogical because it would undercut the
Courtâs express motivation in deciding Ferriter,
that being the desire to help protect a childâs
"interest ... in the society and affection of the
parent, at least while he remains in the household."
Id. at 517 (internal quotation marks and citation
omitted). Accordingly, this Court concludes that Plaintiff
may pursue a claim in this action against Coogan based on
Thomasâ loss of his fatherâs consortium, at least for the
period of time during which Thomas was a minor.