Cape Cod Injury Lawyer Blog

Massachusetts Appellate Court Upholds Verdict Against Boston Police in Bicycle Collision

March 17, 2017 | by John S. Moffa

Anyone who has seen a movie involving a jury trial knows that things can get quite heated when it comes to making statements in front of the jury and making a compelling argument. There are quite a few rules that apply when it comes to what lawyers can and cannot say during the trial when the jury is present in the room. These rules are designed to keep the proceedings fair and to ensure that the jury is not unfairly biased or persuaded based on an off-hand comment by one of the lawyers.

In the recent case of Baisony v. City of Boston, the plaintiff filed a lawsuit against the City of Boston after suffering injuries when a police cruiser collided with the bicycle that he was riding. The plaintiff alleged that the police officer driving the cruiser was traveling the wrong direction down a one-way street when the collision occurred. At the close of trial, the jury awarded the injured plaintiff $22,000 in damages.

The defendant brought post-judgment motions, including a motion for judgment as a matter of law, a new trial, or a remittitur. In its motions, the defendant contended that the lower court judge erred when ruling on certain evidentiary matters during the proceedings and that the plaintiff’s counsel was insufficiently sanctioned for what the defendant characterized as misconduct during the trial.

Massachusetts Appellate Court Upholds Summary Judgment for Defense Based on Waiver in Horse Riding Injury Lawsuit

March 10, 2017 | by John S. Moffa

Almost 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.

Massachusetts Appellate Court Reverses Dismissal of Medical Malpractice Action Based on Statute of Limitations

March 3, 2017 | by John S. Moffa

In the recent case of Arsenault v. Bhattacharya, a Massachusetts appellate court considered whether the dismissal without prejudice of a medical malpractice action was appropriate. The plaintiff filed a complaint against the doctor on October 21, 2013, alleging that the doctor incompetently treated her for carpal tunnel syndrome and cervical spondylosis with radiculopathy. The doctor first began treating the woman for these conditions in January 2008.

In response to the plaintiff’s complaint, the defendant filed a motion to dismiss, claiming that the case was time-barred under the statute of limitations. According to Mass. Gen. Laws. ch. 231, section 60L, a plaintiff must provide notice to a physician of an intent to file a lawsuit against him or her. The notice must be provided six months before the lawsuit is filed. This statute also lays out a number of other requirements that apply to medical malpractice cases in Massachusetts. For example, the notice must include a description of the facts giving rise to the claim and the standard of care that the plaintiff deems applicable to the circumstances. It also allows for the six-month notice period to be shortened to 90 days when certain conditions are met.

How Olympus Duodenoscopes Pose a Threat of Superbug Infection to Massachusetts Residents

February 26, 2017 | by John S. Moffa

When we go to the doctor or have a surgical procedure performed, we expect the physicians and nurses who perform the appointment or procedure to use the appropriate care. This includes not only the performance of the procedure but also preparing for it and preventing unnecessary infections. This same standard also applies to medical device manufacturers when it comes to designing and producing devices that mitigate against unnecessary harms like contamination and infection.

Recently, medical device manufacturer Olympus initiated a recall after reports stated that 100 patients became ill with antibiotic-resistant superbugs. The patients all were treated with one of Olympus’ medical devices, called a duodenoscope, which is a camera used in surgeries. According to several reports, Olympus makes roughly 85 percent of the duodenoscopes that are available on the market today.

Massachusetts Appellate Court Upholds Verdict for Plaintiffs in Premises Liability Stabbing Case

February 11, 2017 | by John S. Moffa

In 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.

Massachusetts Appellate Court Affirms Defense Verdict, Rejecting Plaintiff’s Challenge to Jury Instructions

January 28, 2017 | by John S. Moffa

There are countless procedural aspects of a lawsuit that can have a dispositive bearing on the outcome of your case. Whether it is a motion for summary judgment on one of your claims, or the denial of a motion in limine regarding a sensitive issue prior to trial, it is critical that your attorney understands how to navigate the procedural aspects of a lawsuit. One of the most common ways that procedural issues arise is through jury instructions.

In general, jury instructions are the legal rules provided to jurors before they begin their deliberation. The rules can cover everything from which party has the burden of proof to the specific elements that a party must prove to prevail on a claim or affirmative defense. Although there are some documents that serve as model jury instructions, the parties and the court can craft a unique set of instructions for the lawsuit at hand.

A recent case illustrates the critical nature that jury instructions can play in a lawsuit. In Dahlquist v. Lydon Millwright Services, Inc., the plaintiff suffered injuries after the car she was driving was rear-ended by a truck at a stop sign. The plaintiff reported suffering a number of injuries, including harm to her hand, shoulder, head, neck, and arm. She eventually filed suit against the driver who rear-ended her vehicle and the owner of the truck.

Fatality Following Warehouse Ammonia Leak Raises Occupational Health and Safety Concerns

January 20, 2017 | by John S. Moffa

Each year, thousands of employees suffer devastating injuries while at work. Many of these accidents could be avoided if employers complied with applicable federal and Massachusetts health and safety laws. According to these regulations, employers have a duty to maintain a safe job site. This includes fixing broken equipment or fixtures, providing appropriate safety protections, and ensuring that employees obtain appropriate training based on their job assignments and duties. Beyond the regulations, an employer can be held liable for injuries to its employees that are the result of its negligence or recklessness.

The Boston Globe recently reported that an ammonia leak at a Stavis Seafood warehouse in South Boston has resulted in the death of one of the company’s employees. The four surviving employees stated that they smelled ammonia toward the final hour of their shift, engaged the emergency shut off valve, and attempted to exit the warehouse as quickly as possible. The fifth employee working that night, however, did not survive. Reports indicated that the ammonia fumes were so severe that firefighters and hazmat crew members were unable to enter the building upon arriving at the scene.

Massachusetts Appellate Court Affirms Defense Verdict in Premises Liability Trip and Fall Case

January 10, 2017 | by John S. Moffa

In 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.

Former Massachusetts State Trooper Sues Vehicle Manufacturer For Injuries Sustained Due to Faulty Gear Shift Device

January 3, 2017 | by John S. Moffa

A former Massachusetts State Trooper has filed a lawsuit against Fiat Chrysler, seeking damages he sustained after one of the manufacturer’s vehicles pinned him against a wall. The officer, John J. Malone, suffered a torn ACL, fractures to both knees, and severe bruising that required hospitalization. The complaint names over 40 specific injuries that the plaintiff endured. It also states that the 69-year-old former professional will require a total knee replacement in the future.

Filed in federal U.S. District Court, the complaint states that the manufacturer failed to provide adequate warnings regarding a defect in its gear shift design and that it concealed information about its failure to address and fix the design defect. The factual allegations allege that the ZF Shifter is dangerous because the feedback mechanism is not adequate when it comes to providing a signal that the car has been shifted into the park position. Also, the plaintiff alleges that it lacks a mechanism that puts the car in park when the driver side door is ajar, and pressure is taken off the brake pedal.

This case is similar to another lawsuit involving a defective gear shifter, which was filed by former Star Trek Beyond star Anton Yelchin. In his lawsuit, he alleged that he was injured when his vehicle rolled away from his home down the driveway and pinned him between a pillar and a fence. The plaintiff was later declared deceased as a result of the accident and the injuries he sustained from the pinning. According to the police report, the vehicle was running, and the gear stick was set in the neutral position.

Massachusetts Appellate Court Upholds Dismissal of Claim Against Estate Based on Statute of Limitations

December 28, 2016 | by John S. Moffa

One 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.