By Charles F. Rourke II

A client’s post-accident admission of liability can create insurmountable obstacles even in cases where liability is weak. Whether to diffuse a distressful situation, placate an excitable party, or out of a general sense of wrongdoing, the reasoning behind a client’s admission of liability may be less important than the admission itself. What if the client expresses sympathy to the injured party? When does a party’s statement, writing, or gesture of sympathy become an admissible statement of liability? And what if the admission of liability is made contemporaneously with an expression of sympathy? The Massachusetts Appeals Court recently addressed this issue and the scope of the benevolent gesture statute, Gen. Law c. 233 s. 23D, in Nunes v. Duffy, 101 Mass. App. Ct. 460 (2022).