Concord, MA asked in Wrongful Death for Massachusetts

Q: Are punitive damages recoverable in wrongful death actions?

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3 Lawyer Answers

A: Due to Massachusetts Wrongful Death Act, M.G.L. c. 229, an exception to the common law, punitive damages are available if a person or corporation's gross negligence or willful or wanton conduct causes a death.

James A.  Swartz
James A. Swartz
  • Boston, MA
  • Licensed in Massachusetts

A: Punitive damages are recoverable only in certain circumstances, as specified by the wrongful death statute. Thus, when there is evidence that a death was caused by malicious, willful, wanton or reckless conduct, or by "gross" negligence, there may be such a recovery. The standard of proof for such conduct, which is more egregious than ordinary negligence, is more difficult to meet.

Peter N. Munsing
Peter N. Munsing
  • Wyomissing, PA
  • Licensed in Massachusetts

A: Yes, but you have to show that there was an awareness that the conduct would expose others to the real and significant risk of severe injury or death. Example: you are cleaning a gun, forgot to check that there was no shell in the breach, gun goes off and someone in the next room is killed. It was sloppy but not knowing conduct.

Contrast that where to check if there is a bullet the person instead of opening the action, sighting down the barrel, the person points the gun in the general direction of another person, pulls the trigger, "gee, I thought it was unloaded" will neither be a defense to manslaughter nor to punitives.

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