Photo of Christos I. Koutrobis

Christos Koutrobis is an associate with the Complex Litigation Practice Group in MG+M’s Boston, Massachusetts office. He focuses his litigation practice on a variety of complex disputes, ranging from construction litigation to toxic tort liability.

On July 15, 2020, the Massachusetts Appeals Court affirmed a Superior Court decision allowing the Defendants’ motion to dismiss under Rule 12(b)(6) with respect to the Plaintiff’s employment-based claims stemming from an alleged constructive discharge brought against Lowell General Hospital and the Plaintiff’s supervisors. Kelleher v. Lowell General Hospital, 96 Mass. App. Ct. 49 (2020). The Plaintiff’s complaint involved allegations of: (1) constructive discharge; (2) defamation; (3) intentional interference with advantageous business relations; (4) intentional infliction of emotional distress; and (5) breach of the implied covenant of good faith and fair dealing.

The Plaintiff claimed that she endured months of intolerable working conditions at Lowell General Hospital, which she described as “daily, unprovoked angry and humiliating outbursts” and that these conditions ultimately led to her resignation, which constituted constructive discharge. The Plaintiff identified three specific occurrences in which she was berated or humiliated by her supervisor in front of co-workers and patients. Two of the instances were connected to scheduling issues and the last outburst was in response to Plaintiff’s inability to help her supervisor with a patient because she was busy with her own work. The third incident involved Plaintiff’s supervisor allegedly shouting “you never help!” in front of patients and co-workers.

Constructive discharge does not constitute a distinct cause of action under Massachusetts law, but can be an element of a viable wrongful termination employment claim stemming from a well-defined public policy or a contractual right. The Plaintiff was an “at-will employee,” defined as an employment relationship in which either the employer or employee may terminate the employment at any time without cause, for any reason, except for a reason proscribed by statute or public policy. M.G.L. c. 151B et seq.; Fortune v. National Cash Register Co., 373 Mass. 96, 101 (1977); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472 (1992). Well-established Massachusetts law, continually affirmed by Massachusetts appellate courts, demonstrates that an at-will employee can be terminated at any time “for almost any reason or for no reason at all.”[1]

The Plaintiff’s defamation claim failed because the two statements described in the Plaintiff’s complaint, consisting of “you never help!” and “I’m done with her,” were found to be either a subjective state of mind or “rhetorical hyperbole,” that cannot be reasonably understood to be a statement of actual fact or one that implies defamatory facts. A viable defamation claim requires a plaintiff to show that: (1) a false statement was made to a third party; (2) of and concerning the plaintiff; that (3) is capable of damaging plaintiff’s reputation in the community; and (4) either caused plaintiff economic loss or is actionable without proof of economic loss.

The elements of a claim for intentional tortious interference with advantageous business relations are: (1) the plaintiff had a contract or advantageous business relationship with a third party; (2) the defendant knowingly induced the third party to break the contract or to forego the business relations; (3) the defendant’s interference was improper in
Continue Reading Massachusetts Appeals Court Affirms Dismissal of Non-Discriminatory Workplace Bullying Case

MG+M The Law Firm (“MG+M”) Boston Attorneys Jennifer Whelan, Brian Gross, and Christos Koutrobis successfully obtained summary judgment for their client in a wrongful death case brought in the Superior Court of New Hampshire, Grafton County.

Plaintiff’s decedent was struck and killed by a motor vehicle while crossing a New Hampshire highway towards a newly constructed store owned by MG+M’s client (the “Client”). Prior to the construction of the new store, there was a crosswalk at or near the location in the highway where the Plaintiff’s decedent was struck and killed. The crosswalk was removed as part of the construction project, so that a turn lane into the store could be created. The client and its contractors proposed to replace the crosswalk, but the New Hampshire Department of Transportation determined that the crosswalk should not be replaced, based on its judgment that the crosswalk location created an unreasonable risk to pedestrians. Plaintiff argued it was foreseeable that pedestrians would continue to cross the highway to access the store at the location of the old crosswalk and the client owed Plaintiff’s decedent a duty to either construct an alternative pedestrian pathway across the highway or to warn pedestrians that crossing the highway at that location was no longer authorized.

In her opposition to the Client’s summary judgment motion, Plaintiff argued it was foreseeable to the Client that pedestrians would cross the highway to access its store, thereby creating a duty on the part of the Client. In doing do so, Plaintiff sought to rely upon the New Hampshire Supreme Court’s decision in Kellner v. Lowney, 145 N.H. 195 (2000), which held that a landowner owed a duty to a person crossing a state highway under a unique set of circumstances. In rejecting Plaintiff’s argument, the judge noted that Kellner was factually distinguishable in several significant respects, including: 1) the defendant owned and operated a motel with facilities on both sides of the highway; 2) the defendant permitted religious services to be conducted on the opposite side of the highway from where the motel guests’ living quarters were located; and 3) the plaintiff’s son was struck by a motor vehicle while crossing the highway to return to his living quarters after attending religious services. As distinguished from Kellner, the Client’s premises is located on only one side of the highway and no special relationship existed between it and the Plaintiff’s decedent, unlike the special innkeeper-guest relationship that was present in Kellner. The Court agreed with MG+M’s arguments and granted the Client’s motion for summary judgment.

This practical view and application of classic reasonableness standards affirms the general rule that a landowner’s duty typically does not extend past its boundary lines. Further, the decision highlights the State’s sole authority to make design changes on its roadways. While private individuals and corporations will continue to make design changes to state roadways and intersections, those changes are subject to the approval of the New Hampshire Department of Transportation, which remains the ultimate
Continue Reading MG+M Obtains Judgment for Client in Traffic Engineering Wrongful Death Lawsuit

 MG+M Boston Attorneys Kevin Hadfield and Christos Koutrobis successfully obtained judgment on the pleadings for its client in Shepard v. AG Realty Investment, LLC, WWM-CV18-6014773-S, a personal injury case brought in the Connecticut Superior Court for the Judicial District of Putnam.

Plaintiff, a police officer, was attacked and bitten by a dog while executing a search warrant at an apartment building owned by MG+M’s client. In his complaint, Plaintiff stated that the dog was owned by a friend of the landowner’s tenant. Plaintiff claimed that the landowner should nevertheless be held liable because he was aware of, but did nothing to quell, significant alleged criminal activity on the premises. The alleged criminal activity resulted in Plaintiff’s need to be present on the property in his official capacity as well as the subsequent dog bite. Plaintiff asserted premises liability negligence claims in his complaint.

MG+M moved to strike the Plaintiff’s complaint for failure to state a claim. As grounds for its motion, MG+M argued that pursuant to the common law “firefighter’s rule,” a landowner owes no duty of care to a first responder that enters the premises within the scope of his official duties. In fact, the Connecticut Supreme Court has made clear that “under the firefighter’s rule, the landowner generally owes the firefighter or police officer injured on his property only the duty not to injure him willfully or wantonly . . . .” Levandovski v. Cone, 267 Conn. 653, 654 (2004) (internal citations and quotations omitted).

Plaintiff opposed MG+M’s motion, asserting that the claims were based on principles of “ordinary” negligence, rather than premises negligence, and were therefore excluded from the protections afforded by the firefighter’s rule. Plaintiff attempted to draw parallels between his case and Sepega v. DeLaura, 326 Conn. 788 (2017), in which the Connecticut Supreme Court permitted a case sounding in ordinary negligence to proceed against a landowner that actively barricaded himself into a house, forcing the officer to break the door down, resulting in injuries. The Superior Court rejected Plaintiff’s comparison, and held that the Sepega Defendant’s “active” negligence created an immediate hazard for the Plaintiff who had already entered the premises, which was distinguishable from the “passive” defective premises negligence allegations set forth in Plaintiff’s complaint.

In its memorandum of decision granting MG+M’s motion, the Court highlighted Plaintiff’s failure to allege that AG Realty had any knowledge of the presence of the dog that allegedly attacked the Plaintiff and also failed to assert factual allegations that would suggest willful or wanton misconduct on the part of the defendant. The Court struck plaintiff’s complaint and entered judgment on the stricken complaint in MG+M’s favor.

This common-sense application of the “firefighter’s rule” affirms the protections afforded to landowners from lawsuits by first responders, who may enter their premises at any time, from any direction, without invitation or warning, and without prior notice and opportunity to the landowner to remedy potential defects on the property. The rule prevents landowners from being held to an
Continue Reading MG+M Obtains Judgment for Landlord in Personal Injury Lawsuit Filed by Police Officer

MG+M Boston Attorneys Eric Skelly and Christos Koutrobis successfully obtained dismissals for two clients in James T. Casey, Jr. v. Apax Partners et al., 1:18-cv-11211-DJC, a case that was pending at the U.S. District Court for the District of Massachusetts. On behalf of MG+M’s foreign client, a motion to dismiss for improper service and lack of personal jurisdiction was granted by Judge Casper. MG+M navigated a voluntary dismissal for its other client through the discovery process by demonstrating, based on the evidence, that the client was not liable for the product at issue.

Plaintiff alleged in his lawsuit that he was ordered to wear an electronic monitoring bracelet as part of his pre-trial probation. In his complaint, he stated that the bracelet wrongfully indicated that he was outside of the approved geographic area, which resulted in two days of imprisonment. As such, he brought forth claims against the defendants under the Massachusetts’ consumer protection laws as well as claims for design defect and negligence.

In its decision on defendant’s motion to dismiss, the Court highlighted Plaintiff’s allegation that the defendant, a foreign entity, was liable because its unidentified affiliate assumed the rights and liabilities of the former manufacturer of the electronic monitoring bracelet. The Court noted that even if the Plaintiff established that this affiliate conducted activities in Massachusetts that would subject it to the Court’s jurisdiction, Plaintiff still would need to prove that the affiliate’s conduct could be imputed to the foreign entity by “piercing the corporate veil.” Under Massachusetts law, corporations are presumed to be separate entities. To ignore corporate separateness a party must demonstrate: 1) “active and direct participation by the representatives of one corporation, apparently exercising some form of pervasive control, in the activities of another and there is some fraudulent or injurious consequence of the intercorporate relationship;” or 2) “a confused intermingling of activity of two or more corporations engaged in a common enterprise with substantial disregard of the separate nature of the corporate entities, or serious ambiguity about the manner and capacity in which the various corporations and their respective representatives are acting.” My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 619 (1968). Plaintiff attempted to satisfy these requirements through evidence that suggested the foreign entity merely advised its unidentified affiliate during the acquisition of the electronic monitoring business. The Court, however, held that this evidence fell short of the threshold to disregard corporate separateness and “pierce the corporate veil.” Accordingly, the Court held that it did not have personal jurisdiction over the foreign entity.

This decision reinforces the long-standing principle of corporate separateness and should be beneficial to foreign defendants challenging personal jurisdiction in the future.
Continue Reading MG+M Obtains Dismissals in the U.S. District Court for the District of Massachusetts for Two Clients in Defective Electronic Monitoring Bracelet Case

Defendants DCo, LLC (formerly known as Dana Companies) and Ford Motor Company (collectively “Defendants”) recently obtained a defense verdict in an asbestos personal injury matter following a nine day trial that took place in the Western District of Washington. Plaintiffs alleged the decedent, Patrick Jack, developed mesothelioma as a result of exposure to asbestos from products manufactured or supplied by the Defendants. Plaintiff passed away at the age of 81. Specifically, Plaintiffs claim that Mr. Jack was exposed to asbestos: (1) during his childhood and teenage years through his father’s work at Union Pacific; (2) through his own work as a machinist and piping inspector during his service in the U.S. Navy from 1955 to 1962 and 1967 to 1973; and (3) through his own work as an automotive mechanic from 1955 to 2001. Plaintiffs* claimed Mr. Jack was exposed to asbestos through his father’s work clothing. Mr. Jack testified at his deposition that after finishing a day’s work, his father returned home dirty and was routinely greeted by Mr. Jack. Further, Mr. Jack testified at his deposition that he remembered being present as his grandmother shook out his father’s clothes before washing them. On occasion, Mr. Jack accompanied his father to work at Union Pacific and recalled witnessing individuals cut cement pipe and handle insulation. Through his own work, Mr. Jack alleged exposure to asbestos from work with automotive clutches and brakes manufactured by Ford, among others, and automotive gaskets manufactured by Victor (a brand associated with DCo, LLC formerly Dana Companies), among other manufacturers. In April 2017, Plaintiffs brought both common law negligence claims and statutory strict liability claims as enumerated in WASH. REV. CODE 7.72 et seq., in which they alleged defective design and failure to warn against a number of entities, in addition to the Defendants, predominantly associated with Naval vessel equipment. However, because Mr. Jack’s alleged exposure predated the 1986 Washington Tort Reform Act, which established proportionate several liability, the Defendants were subject to the pre-existing law which imposes joint and several liability.

The defendant-equipment manufacturers associated with Mr. Jack’s Naval service were no longer in the case at the time of trial. At trial, Plaintiffs relied on expert testimony of Dr. Carl Brodkin (occupational medicine); Dr. Arnold Brody (cell biology), Dr. Ronald Gordon (pathology; lung fiber burden), and Sean Fitzgerald (geology expert who tested Victor gaskets found in Mr. Jack’s garage). As stated above, because the Plaintiffs’ claims were subject to Washington’s pre-Tort Reform law, mandating joint and several liability with set-offs for prior settlements, only Dana and Ford could be included on the verdict slip. The trial began on October 1, 2018 and both Plaintiffs and Defendants were limited to 24 hours each on the record. After both sides presented their respective cases, the jury began deliberations on October 11, and returned with a verdict the next day. The jury found that neither defendant was strictly liable for allegedly manufacturing and or selling a defective product. However, the jury was not able
Continue Reading Defense Verdict in the Northwest – Jury Rejects Plaintiff’s Asbestos Related Claims in Western District of Washington