Negligence – Wrongful death – Standing

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Where (1) a restaurant employee died from fentanyl and heroin given to her by a co-worker and (2) the plaintiff, as personal representative of the decedent’s estate, has filed a complaint against defendants with managerial responsibility over the restaurant, the complaint’s wrongful death counts should not be dismissed despite the defendants’ argument that the plaintiff lacks the statutory authority to assert such claims.

“The plaintiff was appointed as the personal representative of Lillian [Anderson]’s estate under the late and limited exception of G.L.c. 190B, section3-108(4) more than four years after Lillian’s death. … The defendants … argue that the plaintiff lacks authority to bring wrongful death claims on behalf of Lillian’s estate because her authority is limited by section3-108(4): ‘the personal representative shall have no right to possess estate assets as provided in Section 3-709 beyond that necessary to confirm title thereto in the successors to the estate.’

“No authoritative case law resolves the question of whether a personal representative appointed under the late and limited exception has authority under section3-108(4) to file a wrongful death claim. …

“This question was very recently analyzed in another Superior Court decision, Tebelekian v. Brincheiro, Middlesex Cv. A. No. 1881CV02245 (June 10, 2021) (Wilkins, J.). …

“The comprehensive analysis in the Tebelekian decision is persuasive. For all the reasons articulated in that decision, this court concludes that the defendants here have not established that the plaintiff lacks standing to bring the wrongful death claims. …

“… The defendants argue that these claims are time barred because the plaintiff filed this action on December 7, 2020, more than three years after Lillian’s death. …

“The plaintiff alleges in her complaint that she did not know before January of 2018 that Seth [Lombard-Hawthorne]’s use of illegal drugs at the restaurant had been previously reported to the defendants. … The plaintiff’s allegation about her discovery of her cause of action is sufficient to survive the motion to dismiss. …

“Whether Lillian’s death arose out of and in the course of her employment, so as to qualify as a compensable injury for purposes of the exclusivity provision of the [Workers’ Compensation Act] remains a close but contested issue which requires a more developed factual record to resolve. …”

Anderson v. LeBrun, et al. (Lawyers Weekly No. 12-035-21) (14 pages) (Goodwin, J.) (Hampden Superior Court) (Docket No. 2079CV00653) (July 1, 2021).

Click here to read the full text of the opinion.