INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

Articles Posted in Premises Liability

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Summer is here, which means it’s time to fire up the grill and relax with friends and family by the fire pit. While barbecues and bonfires are a big part of summer, it’s important to be cautious and well aware of the dangers that the use of propane and other flammable materials present.  Accidents can be avoided, in part, by taking the following precautions:

Grill Safety

According to The National Fire Protection Association (NFPA), every year emergency rooms treat approximately 17,000 people who suffer from grill-related accidents.  The NFPA also reports that 10 deaths and 8,800 house fires are also caused by improper use of grills in the United States.  Charcoal and propane/gas are the two predominant types of grills in the U.S. and both pose their own safety risks.  When using a propane or natural gas grill, the most common threat is a gas leak that is allowed to ignite.  Before you even think about turning on your grill, check your tank, hoses and all connection points to be sure the hoses are in excellent condition and there is tight point of contact between the gas and the tank.  Signs of a leak include the smell of propane and the hissing noise of gas escaping.  If you encounter either of these problems, do not light your grill or any other flammable near the area until a professional checks it out.

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During the early morning hours of Thanksgiving, a 29 year-old MBTA employee named Jephthe Chery was shot and killed outside of Who’s On First, a well-known bar located on Yawkey Way right across from Fenway Park. Mr. Chery, who was an innocent bystander, was one of four men shot that morning after a private party at the bar turned violent. Following the shootings, the Boston Police Department cited Who’s On First for creating “an unsafe environment”, although full details of what happened inside the bar that night have not been released. This incident follows a September 2015 attack in which two woman were shot while leaving the same bar. In addition to these two shootings, the Boston Police have alluded to an ongoing problem with violence and assaults at the bar.  As more details of the tragic circumstances leading to Mr. Chery’s death emerge, light hopefully will be shed on what employees of the bar knew regarding the events that led to the shootings.

This blog has already addressed the common sense rationale for holding taverns and bars liable for patrons who are over served, drive drunk and then injure or kill people. A bar or tavern such as Who’s On First, however, can also be held liable for assaults, crimes and other reasonably foreseeable violent acts committed by patrons outside the property, whether or not the acts are directly linked to the service of alcohol. The Massachusetts Supreme Judicial Court addressed this issue in Christopher v. Father’s Huddle Café, Inc., a case that was briefed and argued by SUGARMAN principles Marianne LeBlanc and Benjamin Zimmermann. The case resulted from the death of a young man who was killed during a fight that had started in a Boston tavern before moving out onto the street.  Employees of the bar were aware of escalating tensions between two groups of people in the bar and knew that one group followed the other group outside in order to initiate a fight, but the employees took no steps to intervene or call the police. Tragically, a young man was struck by a car while trying to flee from his assailants during the ensuing altercation. Attorney LeBlanc tried the case to conclusion and obtained a $28,000,000.00 jury verdict for the young man’s family, including a finding of gross negligence and an award of punitive damages against the bar owner. On appeal, the Supreme Judicial Court upheld the verdict that Attorney LeBlanc obtained against the bar. In doing so, it ruled that “the duty to protect patrons extends to all reasonably foreseeable harm including, in some circumstances, harm that occurs at a distance from the premises.” This principle has been applied to other cases involving violence and assaults that occur outside of taverns and bars.

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Halloween is a favorite holiday for the young and young-at-heart, whether it be trick-or-treating or dressing up for a Halloween party. Regardless of your age, following the safety tips put out by the Centers for Disease Control and Prevention and the Consumer Product Safety Commission will help to keep you and your family safer this fall season.

Halloween Costumes: Choose a flame retardant fabric. When shopping for a costume, look for the label “Flame Resistant.” This label indicates that the items will resist burning and should extinguish quickly once it is removed from the ignition source.

Halloween Makeup: Always test Halloween make-up in small area first, especially on children. Remove it before bedtime to prevent possible skin and eye irritation.

Trick-or-Treating Pedestrian Safety: Purchase costumes that are light and bright enough to be clearly visible to motorists. You can also use reflective tape and carry flashlights to be seen more easily. Halloween is the perfect opportunity to teach children to practice using the crosswalk, obeying traffic signals, and looking both ways before crossing the street.

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On May 15, 2015, the Massachusetts Appeals Court announced a decision clarifying an important aspect of premises liability law in the Commonwealth and serves as a victory for plaintiffs in cases involving falls at commercial establishments.

In 2007, the Commonwealth’s highest court adopted the “mode of operation” approach to premises liability cases, making it easier for plaintiffs to prove a storeowner’s negligence. See Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007). In Sheehan, the plaintiff was injured after slipping and falling on grape that fell from a self-service display and to the ground. The plaintiff brought suit against the supermarket based on negligence and Court adopted the “mode of operation” approach. This approach is a variation to the traditional premises liability approach as it does not require a business owner to have constructive or actual notice of the dangerous condition on their premises (i.e., the grape on the ground) to be found negligent. Instead, the plaintiff only need establish that the dangerous condition was related to the owner’s self-service mode of operation. The SJC explained that the rationale of the “mode of operation” approach is such that the owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to his customers, and since a self-service operation involves the reasonable probability that these risks will occur, these risks are foreseeable.

Today, the Massachusetts Appeals Court clarified Sheehan in the case of Bowers v. P. Wile’s, Inc., No. 14-P-313 (Mass. App. Ct. 2015). In Bowers, the plaintiff fell after stepping on a “river stone” that had been on a store’s sidewalk. The “river stone” had been kicked by customer traffic to the sidewalk from a gravel area maintained by the store. At the time the plaintiff was injured, the store displayed merchandise on and around the gravel area, and customers were allowed to help themselves to products from this area. The Appeals Court, reversing the trial court, held that the item causing the injury did not have to be an item offered for sale by the store for the “mode of operation” doctrine to apply. The Court reasoned that it should not matter whether the item that causes the injury was an item that was offered for sale or from any other foreseeable hazard occurring as a result of the store’s use of a self-service mode of operation. The plaintiff in Bowers was successfully represented by SUGARMAN attorneys, Robert W. Casby and David P. McCormack. See Appeals Court decision.

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The day after Thanksgiving, known as “Black Friday”, is perhaps the most iconic and celebrated shopping day of the year. According to the National Retail Federation’s 2014 Holiday Survival Kit REV, 2013 saw more than 141 million shoppers during the Thanksgiving holiday weekend (Thursday through Sunday), with the average shopper spending about $407. Black Friday alone saw more than 92 million online and in-store shoppers – that’s roughly one out-of-every three Americans. In total, consumers spent approximately $57.4 billion during last year’s holiday weekend.

This year, the pandemonium that is Black Friday will ensue on November 28, and with it an all-too-familiar scene of shoppers attempting to stay warm as they wait in line for hours, just for a chance to grab a bargain. There’s an ongoing quip about the absurdity of the day that goes something along the lines of: “Black Friday: the day you’re twice as likely to end up in hospital.” Unfortunately, there’s some truth that can be found in that quip.

From 2006 through 2013, the mayhem of Black Friday has left in its wake 90 individuals having sustained injuries and 7 deaths, per BlackFridayDeathCount.com. Accordingly, crowd management and safety is a legitimate cause-for-concern among shoppers and retailers, alike. In 2009, OSHA issued “Crowd Management Safety Guidelines for Retailers” after the tragic 2008 incident where a Wal-Mart employee in Long Island, New York, was trampled to death after Black Friday shoppers stampeded the store as it initially opened.

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Anyone who has walked or driven around Boston knows that the streets and sidewalks of the city are not exactly pristine. Cities and towns in Massachusetts are often old, historic towns which endure New England’s rough winters and wet springs. Old trees grow underneath the streets and sidewalks causing them to tilt; frost heaves and potholes abound.

As a result, injuries to drivers and pedestrians from defective streets and sidewalks are fairly common. And when they happen, people rightly ask: Can I bring a claim against my City or Town for personal injuries?

From a legal perspective, the answer to this question is: Not Really. In Massachusetts, lawsuits for defective sidewalks and streets are governed by statute – Massachusetts General Laws, Chapter 84, Section 15, which is titled “Personal injuries or property damage from defective ways.” Under this statute, the most any person can recover for injuries caused by roadway or sidewalk defects is $5,000. Further, under Section 18 of the same Chapter, the city or town must be put on notice within 30 days of the accident or the injured person may be unable to recover at all. But what about claims against the City or Town for failing to clear ice and snow resulting in injuries? These claims are barred by Chapter 84, Section 17, which shields cities or towns from liability from snow and ice on public ways.

The bottom line is that Massachusetts law rather strongly protects Cities and Towns from lawsuits arising out of defective streets and sidewalks. One could debate whether this should be the case, as it could obviously have the effect of cities and towns putting the condition and safety of its public ways on the back-burner. But whatever the merits of these statutes, they remain the law.
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Massachusetts has long recognized a “breach of warranty of habitability.” It applies to premises rented or leased for habitation such as an apartment or house. Simply, a landlord is liable to a tenant or tenant’s guest injured by a violation of the State Building or Sanitary Code in the apartment or house. The warranty also extends to steps, railings, porches and walks used to enter or exit the apartment or house. A habitability claim is unlike a negligence claim because the injured tenant’s or guest’s own negligence in causing injury does not reduce the amount of damages awarded for the injuries.

Separate from this common law warranty of habitability, our state legislature passed a statute in 1972 providing that a building owner is “strictly” liable for injuries caused by a building code violation in “… a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building.” Massachusetts General Laws Chapter 143, Section 51. This liability, as with the warranty of habitability, is not reduced by any negligence of the injured party.

Against this backdrop, the Supreme Judicial Court (SJC) decided Sheehan vs. Weaver in December, 2013. Sheehan, on returning from an evening’s drinking, climbed an exterior stairway to his apartment. When he leaned against the railing, it collapsed and he fell to the pavement below suffering serious injuries. At trial of Sheehan’s claim against his landlord, there was evidence of numerous building code violations causing the collapse. The jury found that these violations caused Sheehan’s injuries and also found that the landlord was 60% negligent and Sheehan 40% negligent.

Sheehan’s apartment was located in a mixed use building with three apartments with a chiropractor’s office on the ground floor. The apartments did not share entryways with the chiropractor’s office. The SJC decided that Section 51 did not apply to Sheehan’s claims because “… the structure at issue does not qualify as a ‘building’ under §51.” Since the jury had found Sheehan 40% at fault, this decision meant that his damages were reduced by this percentage.
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A recent Massachusetts Appeals Court case illustrates the need to act promptly when you have been injured as a result of a defect in a public road or way. In Filepp v. Boston Gas Company, Inc., the Appeals Court upheld the lower court’s dismissal of an injured man’s case due to a failure to timely put Boston Gas on notice of the defects created by Boston Gas while performing work on a street. Mr. Filepp was riding his bicycle on Harvard Street in Brookline and sustained serious injuries when his bike hit a two inch wide rut in the pavement created when Boston Gas was laying gas lines under the street. A Massachusetts statute, G.L., c. 84, Sections 15 & 18, requires that notice of the defect must be sent to the governmental entities or “person by law obliged to repair” a way within 30 days of an injury. Mr. Filepp’s attorneys sent notice to the Town of Brookline within 30 days, but the town notified him two months later that Boston Gas was responsible to repair the rut in the pavement. His attorneys thereafter sent notice of the defect to Boston Gas, but it was several months beyond the statutory 30 days’ notice period. When Mr. Filepp filed a lawsuit against Boston Gas, the company moved to dismiss on the grounds that notice was not given in a timely manner and a Superior Court judge agreed.

Interestingly, the same statute that appears so strict on notice requirements for defects in a public way allows for late notice if the defect involves snow or ice. A defense of late notice only applies if the defendant can prove that he was prejudiced by the late notice. The lesson to be learned, however, is that an injury caused by defects requires immediate action or you could lose your right to be compensated for that injury. It also underscores the disadvantage that plaintiffs can have in these cases as there may be no way for a plaintiff or his or her attorneys to be aware that a third party may be responsible for a defect on a public road.

SUGARMAN attorneys have an extensive history of representing clients who have been injured by defective public roads or ways. If you or a loved one has been injured as a result of a defect in a public road or way and wish to speak to one of our attorneys regarding liability, please fill out a Contact Form, call us at (617) 542-1000 or e-mail info@sugarman.com.

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The New Year began on a tragic note in Boston, as a woman was killed crossing the Meridian Street drawbridge to East Boston. The exact causes of the incident remain under investigation, but questions have naturally been raised about whether the incident could have been prevented.

Initial reports indicate that the bridge was operated by the City of Boston’s Department of Public Works. From a legal perspective, this raises a frequently misunderstood legal issue in Massachusetts. What happens when a city or town in Massachusetts contributes to an accident? Can they be held liable? Can’t the City be sued? The answer may surprise some.

Under Massachusetts law, public employees, including employees of cities and towns, are immune from lawsuits, even if they are negligent. Thus, unlike a typical accident, where both an employee and his employer can be sued and held liable, in Massachusetts a case against the employee can not even be brought. The only claim that remains is one against the public entity such as the city or town.

In a claim against a city or town in Massachusetts, however, damages are limited to $100,000 no matter how terrible the harm. No punitive damages are available. This is not true in some states, where public entities can be held liable just as a private citizen.

Public entities like cities and towns are also protected by a short statute of limitations. Further, claims against public entities in Massachusetts must be “presented” to the public employer in a very detailed way before they can go forward. All of these legal requirements can be found in the Massachusetts Tort Claims Act, General Laws Chapter 258.

Despite the legal protection of public employers under the Act, it is important to bear in mind that the Massachusetts Tort Claims Act only applies to public employers and employees. Often, private contractors are involved in many aspects of public functions–from design to construction to operation to repair of things like bridges, tunnels, and buildings. These private contractors will be liable for any negligence that causes harm.

The Massachusetts Tort Claims Act makes it essential for anyone seeking recourse for injury or death involving a public entity to take steps to ensure that all potential responsible parties are identified and held accountable. This is best done by experienced attorneys working alongside other investigators but on behalf of the person harmed.
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According to the Boston Redevelopment Authority, there were over 150,000 students in Boston in 2010. Three years later, that number is likely higher. All of those students need places to live, and the City of Boston does its best to make sure the apartment units rented by students are safe for occupants and their guests. As part of that effort, and as you may have read, the City initiated a Rental Inspection Program pursuant to City of Boston Code Ordinance CBC 9-1.3. With a small number of exceptions, that Ordinance requires most rental units – not just those leased to students – be registered annually with the Inspectional Services Department, with inspections performed on a five-year cycle. The inspections, set to begin in January of 2014, are aimed at ensuring compliance with inspection guidelines like the State Sanitary Code, which establishes standards of fitness for human habitation. Under the Ordinance, all rental units are to be registered with the City, and all registered units are to be inspected within five years (with “Problem Properties” that have had frequent police responses or past inspection violations being reviewed first). The City plans to perform inspections of roughly 20% of the registered apartments every year on a five-year cycle.

Many property owners have resisted this initiative, citing the burden of a $25 registration fee per unit, while questioning the effectiveness of the effort. Initial reports of registrations as of the August 31, 2013 deadline seem to be low, even in the face of hefty fines for failure to register. Residents can search through a list of registered apartments here to see if their unit has been inspected by the City.
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