The enactment of the so-called “Survival Statute” in Massachusetts (G.L. c. 228, § 1) has led to a steady stream of changes to the doctrine of survival in Massachusetts over the last fifty years. Simply put, the doctrine of survival is whether a claim survives the death of a party. Prior to the enactment of the Survival Statute, Massachusetts law on the issue of survival essentially came down to whether the claim sounded in contract or in tort. If it sounded in contract, it survived; if it sounded in tort, it did not.

Whether or not courts in Massachusetts ultimately find that malicious prosecution and abuse of process claims survive could have major implications for developers and property owners.

The Survival Statute, as amended, provides, in relevant part, that:

In addition to the actions which survive by the common law, the following shall survive…(2) Actions of tort (a) for assault, battery, imprisonment or other damage to the person; (b) for consequential damages arising out of injury to the person and consisting of expenses incurred by a husband, wife, parent or guardian for medical, nursing, hospital or surgical services in connection with or on account of such injury; (c) for goods taken or carried away or converted; or (d) for damage to real or personal property.

This language marked a stark change in Massachusetts policy regarding survival, as certain tortious claims now statutorily survive the death of a party. While the statute seems relatively straightforward, there has been significant litigation involving the statute over the years, specifically related to the meaning of the phrase “damage to the person.”

Early on, courts generally construed the words “damage to the person” narrowly, to include only physical injury. But, in the landmark case of Harrison v. Loyal Protective Life Ins. Co., the Court expanded the definition of “damage to the person” to include emotional distress, and thus held that intentional infliction of emotional distress claims survive. 379 Mass. 212 (1979). While Harrison only formally ruled on the issue of whether a claim of intentional infliction of emotional distress survived, this precedent greatly expanded the potential causes of action that could survive in Massachusetts.

However, for one reason or another, cases that previously held that certain claims did not survive – such as malicious prosecution and abuse of process – have not been specifically either upheld or overturned. Conly v. Conly, 121 Mass. 50 (1877); Nettleton v. Dinehart, 59 Mass. 543 (1850). Malicious prosecution and abuse of process claims are, thus, a fascinating test case for the limits of the expansion of the Survival Statute set forth in Harrison, as they previously were found not to survive, but have not been re-evaluated under the Survival Statute and Harrison jurisprudence.

As such, it is unclear whether Massachusetts courts would find that malicious prosecution and abuse of process claims would survive. On one hand, if a party claims the malicious prosecution or abuse of process resulted in emotional distress, it appears the Harrison ruling would permit such claims to survive. The United States District Court for the District of Massachusetts in Limone v. U.S. even predicted in a footnote that malicious prosecution claims would be found by the Massachusetts state courts to survive. 497 F.Supp.2d 143, 223 (2007).

On the other hand, it may be that simply claiming emotional distress damages based on a tort that otherwise does not involve “damage to the person” is not sufficient to bring it within the scope of Harrison. In another federal Massachusetts District Court case, Varrasso Const. Corp. v. Difazio, the Court opined that “it is unlikely that Massachusetts would permit the survival of an action for abuse of process.” 1989 WL 99299 (D. Mass. Aug. 15, 1989). Courts have also found that other, similar claims do not survive, such as libel and slander. Nodal v. Barrett, 79 Mass. App. Ct. 1132 (2011).

Most telling, in a recent Land Court case involving claims for both malicious prosecution and abuse of process, the Court granted the defendant’s Motion for Summary Judgment, which argued that neither such claim survived the death of one of the plaintiffs. In finding for the defendant, the Court found that “the expanded application of the statutory language used in Harrison…does not carry forward a similar application as the plaintiffs’ Malicious Prosecution and Abuse of Process claims, where, as a matter of law, the nature of these claims does not implicate harm to the person, either physical or mental.” The Court further noted that the claims in that case were more in the nature of costs and monetary damages associated with the litigation and damages related to the value of the property. Most significantly, the court noted that “[s]imply alleging emotional distress resulted from the alleged malicious prosecution and abuse of process does not transform the nature of these claims into ones of damage to the person.”

Whether or not courts in Massachusetts ultimately find that malicious prosecution and abuse of process claims survive could have major implications for developers and property owners. Many claims for abuse of process are based on real estate attachments, mechanic’s liens, and other liens placed on property as a result of construction disputes. If these claims are found not to survive, property owners who have been subject to real estate attachments would lose their claims for abuse of process in the event the opposing party died during the pendency of the claim.