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Dismissal of Child’s Injury Case b/c Incompetant MA Lawyer Missed Court Nix’s 2nd Lawsuit when Adult!

In 1985 a 15 years old child, Cynthia King, was detained by Bradlees based on an allegation of shoplifting.  “On, or about, September 3, 1986, the plaintiff, through her mother, filed a complaint against the defendant, department store, alleging damages for assault and for false arrest and imprisonment. KING v. BRADLEES, INC. 1991 Mass. App. Div. 140 (1991)http://www.leagle.com/decision/199121311991MassAppDiv140_12060  It is unclear, what the exact nature of the alleged assault was and the nature and extent of the child’s alleged injuries.

The Plaintiff’s Massachusetts Personal injury attorney failed to appear for a Pretrial Conference!  As a result, the Plaintiff’s case was dismissed by the Court. Despite a motion to vacate the default, Plaintiff cause of action was dismissed. She did not appeal the dismissal.

After becoming an adult (attaining the age of 18), Ms. King pursued a second lawsuit against the Defendant (Bradlees). Ms. King lost this second lawsuit when the MA Lower Court granted a motion for Summary Judgment against the defendant. Id.

A Statute of Limitations in Massachusetts is a statute that restricts when a negligence Claim may be filed. In Motor Vehicle accident, motorcycle or other accident related cases, the SOL runs from the date of the accident until three years lapse. However, under Mass. Law there are certain instances when the Statute of Limitations is extended.

The legal term for extending the Statute of Limitations is called “tolling”. One of those instances in which the Sol is tolled is when the injured person is a minor at the time of the mishap.

Mass. General Laws c. 260, § 7, provides in part: If a person entitled thereto is a minor, or is insane or imprisoned when a right to bring an action first accrues, the action may be commenced within the time limit hereinbefore limited after the disability is removed…” Id.

Issue:  Does an attorneys failure to appear for a pretrial conference years before  on behalf of a minor which lead to a dismissal bar the plaintiff from bringing another cause of action after she becomes an adult pursuant to  the MA tolling statute:?

 “Mass. General Laws c. 260, § 7, provides in part: If a person entitled thereto is a minor, or is insane or imprisoned when a right to bring an action first accrues, the action may be commenced within the time limit hereinbefore limited after the disability is removed…” Id.

“The effect of General Laws, c. 260, § 7, is to toll the statute of limitations for minors, for mentally impaired persons or for those who are imprisoned, until after their disability is removed. The purpose of the statute is to preserve the rights of persons with specific disabilities who may be unaware or unavailable to pursue a cause of action.” Id.

Massachusetts Appellate Decision:

The Appeals Court decided that the Plaintiff is barred from bringing a second lawsuit  after she attained eighteen years of age when her first lawsuit  when she was a minor was dismissed by the Court.

The Court decided that : “Mass. General Laws c. 260, § 7, is a tolling statute. It does not give, nor was it intended to give, the plaintiff an opportunity to enter a second cause of action for the same events after she has reached her age of majority, when she has unsuccessfully pursued a cause of action for the same events during her minority”  Id.

Mass. Appellate Division’s reasoning : “The plaintiff in her first suit was not only aware of her right to commence and maintain a cause of action, but she, in fact, exercised those rights.” Id.

“The plaintiff was represented by an attorney in the first suit; she pursued discovery; the plaintiff also testified, under oath, at her deposition. The defendants filed answers to the plaintiff’s complaint in the first oath. The first case had, in fact, proceeded to the point where it had been scheduled for a pretrial conference before the Court. After the case was dismissed by the Court when the plaintiff, or her attorney, failed to appear at a pretrial conference, and after the plaintiff’s motion to vacate the aforesaid dismissal was denied by the Court, the plaintiff took no further action in her first case.” Id.

(Editors’ notes:  It seems like this was a wildly unjust result. It is not the child’s fault that her attorney did not show up for Court. It is not her fault that her mother retained an apparently incompetent Massachusetts Negligence and Tort lawyer. The Plaintiff never got her day in Court and never had her personal Injury cause of action determined on the merits. I wonder why the Plaintiff did not pursue a legal malpractice claim against her personal Injury attorney. )

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