One of the golden rules that we are taught as children is to apologize when we have hurt or wronged someone. And while the words “I’m sorry” do not mitigate the actual harm done, we understand that they can go a long way in expressing regret and sympathy to the people suffering from our actions – even if those actions and the harm caused weren’t intentional.
So it makes sense that this basic rule of playground etiquette has been codified in many states, including Massachusetts, to encourage people to apologize and express sympathy when they have done something wrong without fear that those statements will be used against them down the road. See G. L. c. 233, § 23D. However, since the statute’s origin, there has been little guidance from Massachusetts Courts on exactly where the line is drawn when it comes to these so-called “benevolent gestures.”
This all changed with a recent decision from the Massachusetts Appeals Court in Nunes v. Duffy, No. 21-P-63 (Jul. 28, 2022). In a first of its kind ruling, the Court explicitly outlined the difference between expressions of sympathy and regret under the benevolent gestures statute and admissions of fault under the Massachusetts Rules of Evidence. The ruling has the potential to make those first few moments following an incident even more crucial – a time during which either or both parties are likely to have unreliable memories of the exact words that were spoken by either party.
“Benevolent Gestures” v. Admissions of Liability
G. L. c. 233, § 23D, known as the “benevolent gestures” statute, provides that “[s]tatements, writings or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action.” This statute allows someone at-fault for a particular accident to offer an apology to the person harmed without fear that the apology will be used in future litigation as the basis for assigning liability for the accident. The intent behind the statute – to openly encourage people to apologize – is twofold: (1) to provide some relief to the individual (or individuals) harmed; and (2) to allow the person making the apology some comfort by being able to express their regret without fear of their words being used against them in a subsequent judicial proceeding.
Conversely, the Massachusetts Guide to Evidence generally provides that statements made by a party opponent are admissible as an exception to the hearsay rule. See Mass. G. Evid. § 409(a). Under this rule of evidence, Massachusetts courts have frequently upheld that statements such as “This is all my fault” are admissible as evidence of the defendant’s liability for the harm caused with the SJC noting that “[a]n admission while not conclusive has definite probative value.” See Hatson v. Winship, 326 Mass. 380 (1950). However, difficulty arises when a statement made by the defendant combines both an expression of sympathy and an admission of liability, i.e. “I’m sorry, this is my fault.” Reconciling the inherent conflict between the benevolent gestures statute and the admission by party opponent exception to the hearsay rule has historically been a difficult balancing act. For example, look at Denton v. Park Hotel, Inc., 343 Mass. 524 (1962), where the plaintiff consumed a number of alcoholic beverages at the defendant’s bar, then tripped and fell in an area where dancing was permitted. The SJC held that the bar manager’s statement that he was “sorry” was inadmissible and prejudicial to the defendant. However, compare Denton with Hartson v. Winship, 326 Mass. 380 (1950), where the court held that the entire statement “I’m sorry the accident happened. It’s all my fault” was permissible. As these cases illustrate, the line between statements of sympathy and admissions of fault has always been murky.
Nunes v. Duffy
In Nunes, the defendant was attempting to make a left turn at an intersection and did not see the plaintiff’s motorcycle approaching because her view was obstructed by two work trucks parked on the side of the road. The defendant testified that after stopping, she inched out into the intersection to try to see around the trucks and was partially in the plaintiff’s lane. The plaintiff was unable to stop in time to avoid the collision and was hit by the defendant’s vehicle.
During depositions, both the plaintiff and defendant had a different memory of the interaction they had following the accident. The plaintiff testified that the Defendant approached them and said “I’m so sorry. It was all my fault.” Meanwhile, the Defendant testified that while she didn’t remember what exactly was said, she did not admit fault and instead said “I didn’t see you coming.” At trial, the defendant filed a motion in limine to have the plaintiff’s testimony regarding the alleged admission of fault excluded as an expression of sympathy. The trial judge allowed the motion precluding the plaintiff’s entire statement, but also indicated that the Defendant’s statement that she did not see the plaintiff’s motorcycle when entering the intersection would be admissible.
On appeal, the court reasoned that the Defendant’s alleged statement should have been broken down into two parts: “I’m so sorry” and “It was all my fault.” The former is an expression of sympathy and would be properly excluded under § 23D while the latter is clearly an admission of liability and is properly admissible under Massachusetts Rules of Evidence. According to the SJC, both prior case law and the legislative intent behind § 23D illustrate that there is a clear difference between these two types of statements (even if the courts had remained silent on this difference until now) and that as such, they should be treated differently. Ultimately, the court determined that the exclusion of the alleged admission of liability was prejudicial to the plaintiff and accordingly, the plaintiff was entitled to a new trial. While it remains to be seen whether this decision will affect the ultimate outcome of the underlying case, the decision by the Appeals Court has certainly given attorneys and consumers a lot to think about.
So how does the decision in Nunes impact litigation strategy? Well, to start, and regardless of whether you represent a plaintiff or a defendant, it underscores the importance of working closely with your client or clients to understand exactly what happened and the precise words that were exchanged. Because both plaintiffs and defendants are likely to suffer from selective memory and will assert a version of the relevant events and statements that will support their respective cases – as with the plaintiff and defendant in Nunes v. Duffy – credibility is almost certain to be a critical factor in determining which party’s side of the story the jury will accept. Establishing a clear and accurate narrative of the moments following the accident and making sure that narrative remains accurate and consistent throughout the litigation is paramount in establishing and maintaining your client’s credibility.
There are important lessons to be gleaned from this ruling for both parties and their counsel. The key lesson is one which most litigants and counsel should all be familiar with by now – you never have to take back anything that you do not say. However, the legislature’s intent behind § 23D still rings true: the statute allows individuals to express remorse and sympathy to the people they have harmed without fear of those statements being used against them. But anything beyond an apology appears to be fair game from an evidentiary perspective. As a practical matter, in the moments following an accident you are unlikely to be thinking clearly and may be caught up in the moment. At those times it is best to try to remain calm and refrain from making any statements regarding your role in causing the accident. Take a note from rules of the playground: Make a sincere apology, don’t say something you will later regret, and try to avoid any further harm. It’s okay to be nice, but do try to avoid being unwise.
Kaitlyn L. Stone is an attorney at Conn Kavanaugh Rosenthal Peisch & Ford LLP in Boston, MA.
She can be reached at firstname.lastname@example.org