Articles Posted in Personal Injury

brown horse runningAlmost all of us have signed a release or waiver at some point in our lives, whether it be for an amusement park, field trip, recreational activity, or sporting endeavor. Many people do not read the language contained in these agreements and have little understanding regarding the rights they may be signing away. These agreements are legally binding and could have devastating consequences if the signer becomes injured. This also arises in the context of a wrongful death proceeding. Many waivers exempt the offeror from liability for the death of a person who signs the agreement. In some situations, courts will deem a release invalid if certain conditions are satisfied, such as unconscionable terms or incapacitation of the party who signs the agreement. In most cases, however, the courts will honor the terms of the release.

In Markovitz v. Cassenti, the plaintiff alleged that she suffered injuries when she fell from a horse during a horse riding lesson that took place on the defendant’s property. The plaintiff’s husband also sued the defendant, asserting a cause of action for loss of consortium. During the litigation, the defendant filed a motion for summary judgment, stating that the woman signed a release at the time that she applied for riding lessons. The lower court granted the motion for the defendant.

On appeal to the Commonwealth of Massachusetts Appeals Court, the court concluded that the trial court was correct in concluding that the language of the release precluded the plaintiff from seeking damages from the defendant in a civil proceeding. The plaintiff had argued that the defendant was negligent in failing to determine whether the plaintiff had sufficient skill and ability to handle a horse on her own. The appellate court rejected this argument, noting that Massachusetts courts will frequently honor the language of a release that immunizes the defendant from future liability arising from negligence. This principle also includes any negligent acts that arise in the future from sports or other recreational activities.

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bar-316626_960_720In the recent case of Pena v. Pena, a Massachusetts trial court considered the liability of a property owner for injuries that a visitor sustains due to the acts of a third party. The case provides an important example to litigants about the importance of following procedural rules and retaining an experienced trial lawyer.

The facts of the case are as follows. The defendant operated a bar in the town of Roxbury, Massachusetts. The plaintiffs, two men, were patronizing the bar one evening when they were both stabbed by another bar patron. In their complaint, the plaintiffs alleged that the bar owner’s negligence was the direct cause of their injuries. The defendants failed to timely respond to the complaint, and the trial court entered a default judgment against them. During the hearing, the court heard testimony about the incident and the nature and extent of the plaintiffs’ injuries. The trial court entered a judgment in favor of one of the plaintiffs totaling $70,000 and in the amount of $500 for the other plaintiff.

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pothole in groundIn the recent case of Peters v. Shaw’s Supermarkets, Inc., the plaintiff was a deliveryman who alleged that he suffered severe injuries when he tripped on a pothole and fell while making a delivery at the defendant’s grocery store location. In his complaint, the plaintiff alleged a cause of action for negligence, asserting a premises liability theory. According to Massachusetts law, property owners have a duty to keep their property in good repair and to fix any known dangerous conditions in a reasonable manner. If the landowner is not able to repair the condition, he or she must take steps to warn guests about the potential danger.

At the close of trial on the matter, the jury returned a verdict in favor of the defendant. The plaintiff appealed, contending that the trial court erred when it provided five specific jury instructions before the jury began its deliberations.

On appeal to the Commonwealth of Massachusetts Appeals Court, the court first noted that during the trial court’s instruction regarding the property owner’s duty to the deliveryman and regarding whether the condition on which he allegedly tripped was open and obvious, the trial court erred. The instruction provided that “a person in control of the premises is not required to supply a place of maximum safety, but only one which would be safe to a person who exercises such care as the circumstances would reasonably indicate.” According to the court, the instruction conflated the jury’s requirement to consider the landowner’s duty to the deliveryman with its consideration of whether the plaintiff acted in a contributorily negligent manner.

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clocks-1098080_960_720One of the most critical aspects of any personal injury claim is the statute of limitations. Massachusetts law imposes certain timelines dictating when a plaintiff must file his or her lawsuit against the defendant. If the plaintiff fails to initiate the action within the statute of limitations period, the plaintiff will be completely barred from obtaining any compensation from the plaintiff. The statute of limitations differs depending on the type of action, and there are a number of rules and exceptions that apply to calculating when the statute of limitations on your action will run.

A recent case highlights just how important it is to consider the statute of limitations in your action and to act promptly after realizing that you may be entitled to compensation. In Abrahamson v. Estate of LeBold, the plaintiff filed a lawsuit against an estate claiming that the defendant was liable based on multiple theories, including contract, tort, and according to certain consumer protection statutes. The lower court dismissed the action, finding that the plaintiff had failed to file the lawsuit within the statute of limitations period provided in Massachusetts Uniform Probate Code Section 3-803(a). Under this provision, the action should have been filed within one year of the date that the decedent passed away.

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1305995664_515414e540_bThe law of negligence provides compensation for injured parties who suffer harm as the result of another person’s negligence. This doctrine extends not only to average laypersons but also to government employees. Over time, the law of negligence as applied to government actors has developed, leading to a different standard that applies in cases in which public officials or agents act carelessly. One of the primary differences between a negligence lawsuit against an individual versus against the government is that the injured party must provide the government with notice of the intent to file a lawsuit before initiating the action. There are also limits on the amount of damages that an injured layperson can recover from the government for a tortious act.

A Massachusetts appellate court recently considered a tort claim filed against the government. In Landry v. Massachusetts Port Authority, the plaintiff filed a claim seeking damages from a port authority in Massachusetts as well as the city in which the port authority operated. The plaintiff, who worked as a delivery driver for a commercial laundry service, alleged that he was injured at the Worcester Regional Airport when a motorized sliding gate malfunctioned and pinned him to a metal bar. The man was at the airport for the purpose of delivering a clean set of uniforms for the airport employees.

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empty court roomA Massachusetts appellate court recently upheld a trial court’s order granting two daughters millions of dollars in damages as compensation for enduring years of sexual abuse from their father. According to the complaint, the defendants suffered repeated incidents of sexual abuse. During trial on the matter, both plaintiffs provided thorough testimony describing the nature, scope, and extent of the sexual abuse. They also testified regarding the physical and mental harm that they suffered and continued to suffer as a result of the assaults. One of the expert witnesses for the plaintiffs testified regarding the emotional injuries specifically, stating that as a result of the repeated sexual abuse, both daughters experienced anxiety, depression, suicidal thoughts, and issues engaging in sexual relationships.

The defendant father refrained from testifying, instead relying on his counsel’s cross-examination of the witnesses for the plaintiffs and the witnesses themselves. At the close of evidence, the jury deliberated and returned a verdict awarding each of the plaintiffs $1.5 million for the assaults and an additional $3.5 million for their respective claims for intentional infliction of emotional distress (IIED).

According to the seminal case of Agis v. Howard, to recover damages on a claim for IIED, the plaintiff must show four factors:

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child in hospitalIn Parr v. Rosenthal, the plaintiff filed suit against his physician after a radio frequency ablation (RFA) procedure on the plaintiff’s minor son’s leg. According to the plaintiff’s complaint, the procedure resulted in severe burning of the child’s leg, ultimately requiring amputation of the limb.

After a trial on the matter, the jury concluded that the plaintiff failed to file his action on behalf of his son within Massachusetts’ three-year statute of limitations for medical malpractice claims. As a result, the jury did not discuss whether or not the defendant doctor had treated the son negligently. The plaintiff appealed. According to the plaintiff, the trial court failed to instruct the jury regarding the “continuing treatment doctrine.”

According to the plaintiff, the trial court failed to instruct the jury regarding the “continuing treatment doctrine.” In reviewing this contention, the Massachusetts Supreme Judicial Court first noted that this doctrine had not before been recognized in Massachusetts. The appellate court took the occasion to expressly recognize the doctrine and applied it to the plaintiff’s claim. This doctrine states that in a medical malpractice case, the statute of limitations does not start to run while the plaintiff and his or her doctor continue their relationship, and the doctor continues to render medical treatment to the plaintiff for the same condition or a related condition.

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man and limoParty buses and large limousines are becoming an increasingly popular transportation choice for large cohorts of individuals celebrating birthdays, weddings, or other festivities. Recently, a woman was hit and killed by a party bus in the East Boston area. According to reports, the victim was a female who fell out of the bus along with another passenger while the bus was driving down the McClellan Highway. Passengers on the bus stated that the driver did not immediately notice what had happened, but he stopped a short while later.

The party bus is owned and operated by a company called Entourage Livery, Inc. The company released a statement following the accident, which says in relevant part:  “Our driver was questioned by Boston Police briefly before he was released and sent home. We have been in business for 19 years, and will continue to cooperate during the investigation of this tragedy.” Although the company does not provide any beverages or food items to passengers, they are allowed to bring their own alcohol and other provisions.

This is not the first time the party bus company has been involved in a passenger accident. In 2012, Entourage Livery was deemed liable for an accident that occurred in March 2010. In that case, the operator of the bus was deemed negligent for discharging passengers on his limousine across the street from their ultimate destination during a heavy torrential downpour. One woman was hit by a car and seriously injured as she attempted to cross the street. The group had selected and paid for a “VIP package” from the company, which included a “door-to-door” pick up and drop off feature. As a result, none of the passengers brought appropriate rain gear with them because they did not expect to be out in the elements as a result of the door-to-door feature. The plaintiff in this case was the last passenger to attempt to cross the street in the massive storm when she was struck by a vehicle traveling down Dorchester Avenue.

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outdoor swan boatWith the warm summer months underway, many Massachusetts residents are flocking to the coastline and waterways to enjoy some of the state’s most popular recreational activities. Whether it is canoeing, swimming, boating, or something else, it is critical that people use caution at all times when engaging in their favorite new or old hobby.

According to a recent news report, a 14-year-old boy recently lost his life while kayaking in the New England region. According to the report, the teenage boy was traveling in a two-person kayak when the vessel flipped over in the water. Another person was in the kayak at the time of the accident, a friend of the teenage boy. The victim was not wearing a life jacket at the time the vessel capsized, but his friend was wearing one. The authorities who discovered the victim’s body believe that the fact that the other boy was wearing a life jacket was instrumental in his survival and that the unfortunate victim may have survived had he been wearing a life jacket.

A strong current near the bridge where the drowning took place may have had something to do with the vessel capsizing. The report also indicated that this was the victim’s first time using a kayak and that the boy had not been taught how to swim. The family lived in an area that is a common hotspot for boating, swimming, and fishing activities. The boys had gone to the river to relax and enjoy some time at the water.

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12429334035_91cb638105_bMassachusetts is one of many states that have enacted a statute allowing accident victims to hold businesses liable for over-serving a patron who leaves the establishment and causes an accident. These statutes are frequently referred to as dram shop acts and provide a basis for recovery for personal injury as well as wrongful death.

One of the most hotly disputed issues in a lawsuit involving a dram shop statute cause of action is whether the patron at the bar was obviously intoxicated at the time the business served the person who caused the accident more alcohol. To proceed in this type of lawsuit, the plaintiff must submit an affidavit providing sufficient facts to raise a legitimate question regarding the establishment’s liability. If the plaintiff cannot raise sufficient facts, the restaurant will be entitled to summary judgment, and the dram shop claim against it will be dismissed.

In the recent case of Bayless v. TTS Trio Corp., the plaintiff was the personal representative of the estate of a person who was killed in an auto accident after driving home from a restaurant. The decedent was proven to be a regular patron at the establishment. Evidence offered by the plaintiff showed that the patron had become intoxicated at the establishment on multiple occasions and that he frequently became loud and boisterous. On the night of the accident, the decedent left the establishment, lost control of the vehicle he was driving, and died in the ensuing accident.

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