Instruction 6.290, Criminal Model Jury Instructions for Use in the District Court

PERMITTED (SERIOUS) BODILY INJURY

TO AN ELDER OR DISABLED PERSON

CARETAKER WHO WANTONLY OR RECKLESSLY

PERMITS (SERIOUS) BODILY INJURY TO

AN ELDER OR DISABLED PERSON

G.L. c. 265, § 13K(d) and (e)

The defendant is charged with being a caretaker of (an elder

which under our law is a person 60 years of age or older) (a person

with a disability) when that person suffered a (serious) bodily injury

which the defendant wantonly or recklessly permitted to occur.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove the following four things beyond a

reasonable doubt.

First: That the defendant was a caretaker of [the alleged victim] ;

Second: That the [the alleged victim] suffered a (serious) bodily

injury;

Third: That the defendant wantonly or recklessly permitted the

(serious) bodily injury to occur; and

Fourth: That, on the date of the alleged offense, [the alleged victim]

was (an elder) (a person with a disability).

PERMITTED (SERIOUS) BODILY INJURY

TO AN ELDER OR DISABLED PERSON

In order to prove the first element, the Commonwealth must

prove that the defendant was a caretaker of the [the alleged victim] . A

caretaker is [continue with the caretaker definition(s) that apply to the case on trial]

Family Member. . . a family member who has provided primary

and substantial assistance for the care and protection of the [the

alleged victim] as would lead a reasonable person to believe that failure

to provide such care would adversely affect the physical health of the

person.

Contracted Caretaker. . . a person who is responsible for providing

primary and substantial assistance for the care of [the alleged victim]

because of a bargained for agreement or contract by which they

receive a monetary or personal benefit or gain as a result.

Voluntary Caretaker. . . a person who has voluntarily assumed

responsibility for providing primary and substantial assistance for the

care of [the alleged victim] such that the person’s conduct would lead

a reasonable person to believe that failure to provide such care would

adversely affect the physical health of [the alleged victim] , and at least

one of the following criteria is met: (i) the person is living in the

household of the [the alleged victim] , or present in the household on

PERMITTED (SERIOUS) BODILY INJURY

TO AN ELDER OR DISABLED PERSON

a regular basis; or (ii) the person would have reason to believe, as a

result of the actions, statements or behavior of the [the alleged victim]

, that (he) (she) is being relied upon for providing primary and

substantial assistance for physical care.

Caretaker with a fiduciary duty [A caretaker with a fiduciary duty] . . . a

person who is legally required to use the assets of [the estate of] [the

alleged victim] to provide the necessities essential for the physical health

of the [the alleged victim] . (This fiduciary duty may arise from a person’s

position as a guardian of the person or assets of an [elder] [person

with a disability]).

The definition of “caretaker with a fiduciary duty” does not include reference to a

conservator or attorney-in-fact even though listed in G.L. c. 265, § 13K(a)(ii), as the

reference to these terms is tied to Chapters 201 and 201B of the General Laws, which

have been repealed.

A person may be found to be a caretaker only if a reasonable

person would believe that (his) (her) failure to fulfill such

responsibility would adversely affect the physical health of the [the

alleged victim] .

G.L. c. 265, § 13K(a).

PERMITTED (SERIOUS) BODILY INJURY

TO AN ELDER OR DISABLED PERSON

In order to prove the second element, the Commonwealth

must prove that [the alleged victim] suffered a (serious) bodily

injury.

Bodily Injury Under the law, a bodily injury is a substantial

impairment of the physical condition. It is an injury to any body

part that considerably or significantly compromises its usual

bodily function such as, but not limited to: (a burn) (a fracture of

any bone) (a subdural hematoma) (injury to any internal organ)

(any injury which occurs as a result of repeated harm to any

bodily function or organ, including human skin).

G.L. c. 265, § 13K(a); Commonwealth v. Ryan, 93 Mass. App. Ct. 486, 489-90 (2018)

Serious Bodily Injury Under the law, a serious bodily injury is

one which results in (permanent disfigurement) (protracted loss

or impairment of a bodily function, limb or organ) (a substantial

risk of death).

Bodily Function An impairment of a bodily function

arises when a part or system of the body, other than

PERMITTED (SERIOUS) BODILY INJURY

TO AN ELDER OR DISABLED PERSON

an organ or limb, is significantly impeded in its ability

to fulfil its role.

Limb An impairment of a limb occurs when,

because of significant damage to its structure, its

capacity to perform its usual function is

compromised.

Organ An impairment of an organ occurs when

damage to the structure of the organ is significant

enough to compromise its ability to perform its

function in the victim’s body.

G.L. c. 265, § 13K(a); Commonwealth v. Scott, 464 Mass. 355, 359 (2013).

In order to prove the third element, the Commonwealth must

prove that the defendant wantonly or recklessly permitted the

(serious) bodily injury to [the alleged victim] either by proving that the

defendant wantonly or recklessly permitted the (serious) bodily injury

to [the alleged victim] or by proving that the defendant wantonly or

recklessly permitted another to commit an assault and battery that

caused (serious) bodily injury to [the alleged victim] .

PERMITTED (SERIOUS) BODILY INJURY

TO AN ELDER OR DISABLED PERSON

Wantonly or Recklessly Permitting To prove that the defendant

wantonly or recklessly permitted the (serious) bodily injury, it is not

enough for the Commonwealth to prove that the defendant acted

negligently – that is, in a manner that a reasonably careful person

would not. It must be shown that the defendant’s actions went

beyond mere negligence and amounted to wanton or reckless

conduct. The defendant acted wantonly or recklessly if (he) (she)

knew or should have known that (his) (her) (actions were) (or) (failure

to act was) very likely to result in bodily harm to [the alleged victim] but

(he) (she) ran that risk and (went ahead anyway) (failed to act

anyway).

It is not necessary for the Commonwealth to prove that the

defendant intended that [the alleged victim] be harmed or that (he)

(she) foresaw the harm that resulted. If the defendant actually

realized in advance that (his) (her) (actions were) (or) (failure to act

was) very likely to result in bodily harm to [the alleged victim] and

decided to run that risk, such conduct would be wanton or reckless.

But even if (he) (she) was not conscious of the danger that was

inherent in such (actions) (or) (failure to act), it is still wanton or

PERMITTED (SERIOUS) BODILY INJURY

TO AN ELDER OR DISABLED PERSON

reckless conduct if a reasonable person, under the circumstances

that were known to the defendant, would have recognized that such

(actions were) )(or) (failure to act was) very likely to result in bodily

harm to [the alleged victim] .

Wantonly or Recklessly Permitting Another to Commit Assault and Battery

To prove that the defendant wantonly or recklessly permitted

another to commit assault and battery on the [the alleged victim]

resulting in (serious) bodily injury, the Commonwealth must prove

that the defendant’s wanton or reckless conduct permitted someone

other than the defendant to intentionally touch [the alleged victim] in a

way that was likely to cause harm and resulted in (serious) bodily

injury. It is not enough for the Commonwealth to prove that the

defendant acted negligently – that is, in a manner that a reasonably

careful person would not. It must be shown that the defendant’s

actions went beyond mere negligence and amounted to wanton or

reckless conduct. The defendant acted wantonly or recklessly if (he)

(she) knew or should have known that (his) (her) (actions were) (or)

(failure to act was) very likely to result in bodily harm to [the alleged

PERMITTED (SERIOUS) BODILY INJURY

TO AN ELDER OR DISABLED PERSON

victim] but (he) (she) ran that risk and (went ahead anyway) (failed to

act anyway).

It is not necessary for the Commonwealth to prove that the

defendant intended that [the alleged victim] be harmed or that (he)

(she) foresaw the harm that resulted. If the defendant actually

realized in advance that (his) (her) (actions were) (or) (failure to act

was) very likely to result in bodily harm to [the alleged victim] and

decided to run that risk, such conduct would be wanton or reckless.

But even if (he) (she) was not conscious of the danger that was

inherent in such (actions) (or) (failure to act), it is still wanton or

reckless conduct if a reasonable person, under the circumstances

that were known to the defendant, would have recognized that such

(actions were) )or (failure to act was) very likely to result in bodily

harm to [the alleged victim] .

See Commonwealth v. Traylor, 472 Mass 260, 271 (2015) (noting “the statute [§ 13J]

criminalizes acts of omission in addition to acts of commission, and a defendant may be

convicted under the statute even in the absence of proof regarding precisely how the

injuries to the child occurred) (internal citation omitted).

In order to prove the fourth element, the Commonwealth must

prove that on the date of the alleged offense [the alleged victim] was (an

PERMITTED (SERIOUS) BODILY INJURY

TO AN ELDER OR DISABLED PERSON

elder which under our law is a person 60 years of age or older) (a

person with a disability).

Disability Under our law, a person with a disability is a person with

a permanent or long-term physical or mental impairment that prevents

or restricts the individual’s ability to provide for his or her own care or

protection.