Cox Estate v., Inc. 

William and Ann Cox, Representatives of The Estate of M.J. Cox v. Brand 44, LLC,, Inc., and Playthings Past LLC. Civ. No. 15-CV-11903-ADB United States District Court District of Massachusetts, October 21, 2015   

Case Details

Plaintiffs William and Ann Cox filed this suit against Brand 44,, Inc. and Playthings Past (collective defendants) after the death of their son, M.J. Cox. The family of the deceased alleged that their son died due to a fall from a zipline made by Brand 44 and sold by Playthings and Amazon.

Plaintiffs filed eight separate claims against the Defendants:

  1. Negligence (Count I)
  2. Wrongful Death (Count II)
  3. Loss of Consortium (Count III)
  4. Breach of Warranties (Count IV)
  5. Punitive Damages (Count V)
  6. Pain and Suffering (Count VI)
  7. Strict Liability (Count VII)
  8. Violation of Mass. Gen. Laws Ch. 93A. (Count VIII)

Case Timeline

December 2013: Christopher Dupill and his family acquired a Slackers Zipline from Amazon and Playthings. The zipline was designed, manufactured and supplied by Brand 44.

December 26, 2013: The zipline was connected to two trees in the backyard of the Dupills’ property. On this date, M.J. sustained severe and fatal injuries when the zipline and/or one of the trees anchoring the zipline failed. M.J. remained in a medically induced coma beginning on December 26, 2013.

January 24, 2014: M.J. Cox died as a result of injuries from the zipline accident.

May 22, 2015: Plaintiffs initiated legal action against Brand 44 and, Inc.

June 1, 2015: Plaintiffs filed an Amended Complaint, alleging the following facts which the Court accepts as true for the purpose of a motion to dismiss.


Brand 44 filed a partial motion to dismiss the following:

Count III (Loss of Consortium): Brand 44 moves to dismiss Count III, Loss of Consortium, on the grounds that a plaintiff in a wrongful death case cannot maintain a separate action for loss of consortium. Brand 44 is correct that there may not be a separate action for loss of consortium resulting from a child’s death. However, Count III of the Amended Complaint will not be dismissed because a separate claim can be brought by the parents for the loss of consortium suffered as result of M.J.’s pre-death injuries. Accordingly, the Court declines to dismiss Count III, but it is limited to any loss of consortium suffered by the parents between the time of M.J.’s injury and his death.

Count IV (Breach of Warranties): In order to file a valid breach of warranties claim, the Plaintiffs must provide sufficient facts stating either implied or expressed breach of warranty. Because the zipline was used for its intended purpose, the Court declines to dismiss Count IV.

Count V (Punitive Damages): Plaintiffs can pursue punitive damages in connection with the wrongful death alleged in Count II, but punitive damages cannot stand alone as a separate count. Therefore, the court dismisses Count V.

Count VI (Pain and Suffering): In Count VI of the Amended Complaint, Plaintiffs argue that the Defendants’ negligence was the immediate cause of pain and suffering for M.J. Cox. Mass. Gen. Laws ch. 229, §6 provides that in a wrongful death action, damages may also be recovered “for conscious suffering resulting from the same injury, but any sum so recovered shall be held and disposed of by the executor or administrators as assets of the estate of the deceased.” This claim stands separately from the wrongful death claim (Count II) and is upheld by the Court.

Count VII (Strict Liability): Massachusetts law does not recognize any form of strict liability claim for a defective product. Plaintiffs did not oppose this aspect of Brand 44’s motion to dismiss; therefore, Count VII is dismissed.


Brand 44’s Motion to Dismiss is granted in part: Count V (Punitive Damages) and VII (Strict Liability), and denied in part: all other counts.

Plaintiffs are directed to file an amended complaint by October 27, 2015 to address the issues identified by the Court and omitting the dismissed counts. The Defendants are directed to respond to the amended complaint by November 17, 2015.