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O’Shaughnessy v. Wharf Holdings, LLC

Superior Court of Massachusetts, Dukes

October 19, 2018

Donald O’SHAUGHNESSY
v.
WHARF HOLDINGS, LLC, et al.

          DECISION AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 32.0)

          Brian A. Davis, Associate Justice of the Superior Court

          This is an action in which plaintiff Donald O’Shaughnessy ("Mr. O’Shaughnessy" 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. O’Shaughnessy sustained in a fall down the stairs leading to his apartment on September 12, 2014. Mr. O’Shaughnessy’s accident allegedly resulted from his severe intoxication, which, in turn, allegedly was caused by defendants Wharf Holdings, LLC ("Wharf Holdings") and Coogan Family, Inc.’s ("Coogan" or, collectively with Wharf Holdings, "Defendants") conduct in continuing to serve alcohol to Mr. O’Shaughnessy 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 Wharf’s proprietor. It is undisputed that two of Mr. O’Shaughnessy’s sons, Thomas and Donald, Jr., were minors (i.e., less than 18 years of age) at the time of Mr. O’Shaughnessy’s accident. It also is undisputed that Mr. O’Shaughnessy’s other son, John, was not a minor at the time of Mr. O’Shaughnessy’s accident. Irrespective of their ages, each of Mr. O’Shaughnessy’s sons claims to have been emotionally and financially dependent upon Mr. O’Shaughnessy immediately preceding his accident.

         Defendants 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. O’Shaughnessy’s injuries as a matter of law. Defendants also have moved for summary judgment on Plaintiff’s claims against Coogan on behalf of John and Thomas on the ground that neither son possesses a legally cognizable claim for loss of consortium.[1] More specifically, Defendants assert that John is not entitled to recover for loss of his father’s consortium because John was not a minor at the time of Mr. O’Shaughnessy’s accident. See Ferriter v. Daniel O’Connell’s 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 father’s consortium because Thomas was not a minor at the time this action was filed.

         Plaintiff does not oppose Defendants’ motion for summary judgment with respect to Wharf Holdings. Plaintiff does oppose Defendants’ 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.

         The Court conducted a hearing on Defendants’ 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, Defendants’ motion is ALLOWED as to Plaintiff’s claims against Wharf Holdings and his claim against Coogan on behalf of John, and DENIED as to Plaintiff’s claim against Coogan on behalf of Thomas. The reasons for the Court’s decision were stated on the record at the hearing and are summarized, briefly, below.

          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 ...").

         In this case, Plaintiff does not dispute that entry of summary judgment in favor of Wharf Holdings is appropriate. The battleground is Plaintiff’s loss of consortium claims against Coogan on behalf of John and Thomas.

         As 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 parent’s 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. O’Shaughnessy’s 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. O’Shaughnessy that would support a viable claim for loss of his father’s 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).
Plaintiff’s claim against Coogan on behalf of Thomas stands on a different footing. Thomas was a minor when Mr. O’Shaughnessy 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 SJC’s decision in Ferriter to be so restrictive. Indeed, doing so would be illogical because it would undercut the Court’s express motivation in deciding Ferriter, that being the desire to help protect a child’s "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 Thomas’ loss of his father’s consortium, at least for the period of time during which Thomas was a minor.

          SO ORDERED.

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