Massachusetts Injury Lawyer Blog

If you were in Boston last week, there is a good chance you saw a few cyclists. It was Bay State Bike Week and cyclists came out strong for events and group rides.

While many cyclists were wearing helmets, a new report says not all are. According to the City of Boston Cyclist Safety Report, from 2009 to 2012, cyclists were wearing helmets in less than 50 percent of incidents responded to by Boston Emergency Medical Services (Boston EMS). 

Women wore helmets in 60 percent of incidents while men wore them in 43 percent.

Overall, the city reports 72 percent of cyclists citywide are wearing helmets.

Cyclists who wear bike helmets reduce their risk of head injury in a cycling accident by as much as 85 percent and the risk of brain injury by as much as 88 percent, according to the National Highway Traffic Safety Administration.

The city's report shows bike accidents in Boston have increased from 2010 to 2012. The Boston Police Department reports a 2 percent increase while Boston EMS reports 9 percent. Nine cyclists died in accidents, including five in 2012. Ridership has also increased over this time as the city expanded infrastructure and launched the Hubway bike share program, making hundreds of new bikes available for short-term rentals.

Boston Bikes (the office which manages the city's bike programs) reported a 16-28 percent increase in bike trips over that period. In the city's report, Mayor Thomas Menino has pledged to decrease the cyclist crash injury rate by 50 percent by 2020.

Bike Helmets in Boston
In Massachusetts, cyclists who are 16 years of age or younger must wear helmets while riding bicycles, under M.G.L. c.85 Section 11B. The helmet must be secured to the cyclist's head with straps and meet standards established by the U.S. Consumer Product Safety Commission.

But they are important for cyclists of all ages. The Boston cyclist safety report, which was produced by a number of city offices, has a long-term goal of passing a law requiring cyclists of all ages to wear helmets in Boston.

The city has tried to make discount helmets available to riders, launched a $40,000 "Wear a Helmet" advertising campaign promoting helmet usage and plans to install helmet vending machines at Hubway bike share stations. It also stresses helmet usage through its community programming.

In addition, Hubway riders agree to wear helmets as part of their rental agreement. But a study last year revealed many riders are not holding up their end of the deal. In the study, researchers at Beth Israel Deaconess Medical Center reported 80 percent of bike-share users in Boston and Washington D.C. were not wearing bike helmets. By contrast, riders who owned their own bike wore their helmets about half the time.

The study's author wrote that head injury accounts for about one third of all bicycle injuries and about three-quarters of all bicycle-related deaths.

Bike Helmet Law for Boston?
Boston was one of the first cities in the country to offer bike sharing. It would be leading the way again if it passed a law requiring cyclists of all ages to wear helmets. Massachusetts, the District of Columbia and 21 other states require cyclists under 16 to wear helmets, but there are no states which mandate use by adults, according to the Insurance Institute for Highway Safety.

There are other cities and towns with laws or ordinances requiring helmets be worn by cyclists of all ages, including Dallas, Texas and Sykesville, Maryland. There is a bill proposed in the Legislature to make Maryland the first state to require cyclists of all ages to wear helmets.

In Washington State, more than two dozen communities have laws or ordinances requiring helmets to be worn by all ages, but there is no statewide law.

Continue reading "Bike Helmets in Boston" »

This is National Bike Month, when cyclists gather for events and rides all over the country. In Massachusetts, the busiest time is during Bay State Bike Week, which began last weekend. Cyclists from Boston to Springfield to Cape Cod are being encouraged to pedal to and from work in the name of fitness and reducing traffic congestion on the roads.

But along with the fun, Bike Month is a time to ask ourselves and lawmakers if we can make the roads safer to prevent personal injury to bicyclists.

While Boston has been called a world-class cycling city in recent years, safety advocates say we can do better. This month, the League of American Bicyclists dropped the state's ranking from third to sixth in its 2013 Bicycle Friendly State Rankings, offering these and other suggestions to state officials:

Safe Passing Law. Adopt a safe passing law with a minimum distance of three feet to address bicycle safety.

Vulnerable Road User. Adopt a vulnerable road user law that increases penalties for motorists that injuries or kill bicyclists or pedestrians.

Cell Phone Ban for Drivers. Pass a cell phone ban for all drivers. Currently, Massachusetts bans all drivers from texting while driving but only bans drivers under 18 from talking on their cell phones and driving.

Bicycle Riders Manual. Create a statewide bicycle riders manual with laws, state bike routes and laws for cyclists.

MassBike, the state's leading advocacy group for cyclists, has been seeking passage of a vulnerable road users bill that increases penalties for drivers who injure or kill a bicyclist or others defined as a vulnerable road user. MassBike first filed a bill with the Massachusetts Legislature in 2011 and refiled a few months ago for the start of the new legislative session.

Under the bill, drivers found guilty of crimes such as motor vehicle homicide or hurting or killing a person while driving drunk would face double the normal fines if the victim is considered a vulnerable road user.

The bill defines vulnerable road users as "a pedestrian or a person operating a bicycle, handcycle, tricycle, skateboard, roller skates, in-line skates, wheelchair, non-motorized scooter or any non-motorized vehicle, or a person riding a horse."

Additionally, the bill would require violators to take a traffic class and perform 100 hours of community service related to road safety. There would be special penalties for drivers who harass vulnerable users with their vehicles. Meanwhile, victims would be given guidelines for filing civil lawsuits against drivers who assault or threaten them.

Another bill proposed by MassBike is the Bicycle Lane Bill, which would make it a violation for a car to park or stand in a marked bike lane. Boston and some other communities have bans, but MassBike seeks a statewide ban.

Read about other bills filed and supported by MassBike.

Continue reading "Bike Month: Time for Massachusetts to Think About Safety" »

A man who was injured by a driver who suffered a seizure due to his brain tumor could not sue the driver's neurologist for allegedly failing to warn him not to drive, or for otherwise failing to control his driving.

On December 21, 2001, the plaintiff suffered serious personal injury when he was struck by a car operated by the defendant driver. The driver had been diagnosed with a brain tumor in September 2000 after he had suffered a grand mal seizure. The tumor was malignant and inoperable.

The driver waited six months before he began driving again, as required by Massachusetts law. His treating neurologist, Frederick Hochberg, M.D. of Massachusetts General Hospital, allegedly did not attempt to prevent his patient from driving again and did not warn him not to drive. 

After he was hurt, the plaintiff sued the driver's estate (the driver had passed away). He also brought a medical negligence claim against Dr. Hochberg. The plaintiff claimed that Dr. Hochberg owed a general duty to the public who might be injured due to the nature of the underlying medical condition that he was treating. The plaintiff argued that the duty rose from the special relationship between a physician and a patient. The plaintiff argued that general negligence principles created a duty in Dr. Hochberg to warn his patient of the dangers of driving while suffering from the brain tumor. The Supreme Judicial Court rejected both arguments.

The court found that this doctor-patient relationship was not a "special relationship" which would give rise to a duty to prevent harm to a third person. Absent such a special relationship, the court said, "there is no duty to control another person's conduct to prevent that person from causing harm to a third party."

In 2007, the court had found, in Coombes v. Florio, 450 Mass 182 (2007), that a physician may have a duty to warn his or her patient about the side effects of medication being prescribed. The court ruled that this duty extended to third parties who might be injured if the warning had not been given. But the court refused to extend that ruling to include medical conditions under treatment.

The Coombes case was seen by the court as a very narrow exception to the general rule that a physician owes no duty to third parties who might be injured by a patient. The court stated that the duty sought by the plaintiff would "impose on physicians an affirmative duty ... to nonpatients to warn patient of the risks of driving due to any underlying medical condition. We conclude this is an unwarranted and ill-advised expansion of liability for several reasons."

The main concern of the court was that the physician did not do anything to increase the likelihood of harm by the patient, compared to the physician who might be liable for prescribing medication and thus creating additional risk. The court also believed that further imposition of duty would intrude on the doctor-patient relationship and might increase collateral costs. 

This case represents the second time the court has stated that it will not be expanding the duty recognized in the Coombes case.  At least that narrow exception survived.

The case is Medina v. Hochberg, SJC-11178 (May 13, 2013).

Continue reading "Massachusetts SJC: Neurologist Not Liable for Patient's Harm to Third Party; Failure to Warn Patient About Driving Does Not Create Liability" »

We all have one: a cell phone we keep close by throughout the day, to keep in touch with work and the people in our lives. Many of us now use smart phones so in addition to talking and texting, we have quick access to apps, cameras and other neat gadgets. The bottom line is we get more use from our mobile phones now than ever.

While the conveniences are nice, they are a negative when it comes to driving. Studies have long shown cell phone use of any type is a distraction which can result in drivers taking their eyes off the road and causing motor vehicle accidents. 

Most states have some restriction on use. The District of Columbia and 39 states, including Massachusetts, ban texting while driving. Ten states and the District of Columbia ban all phone use by drivers. Massachusetts bans all cell phone use for drivers under 18. 

Some say these efforts and related educational campaigns are falling short and the use of smart phones is actually increasing. The market has certainly grown dramatically. By last October, the count was over 1 billion smart phone users worldwide, according to one firm's report. By 2015, another billion users are expected to get smart phones.

Many new users are using talk-to-text technology while they drive, but a new study finds this is not actually any safer. The study by the Texas A&M Transportation Institute was released during April's National Distracted Driving Awareness Month. The study was the first to compare voice-to-text and manual texting.

The Study
The transportation institute studied 43 research participants driving a vehicle on a closed course. Drivers traveled the course without any cell phone use, then three more times performing texting exercises. On the first two laps, they used two different voice-to-text applications. On the third lap, they texted manually.

Researchers found driver response was significantly delayed when drivers used voice-to-text or sent text messages. In both cases, drivers took about twice as long to react as they did when they were not texting.

Manual texting required slightly less time than voice-to-text, but driver performance was roughly the same.

One theory for why is drivers who used voice-to-text had to look down at the phone after they spoke their message and check it before sending, taking their attention from the road.

Massachusetts Texting While Driving Law
The Massachusetts law which bans texting while driving is M.G.L. c. 90, Sec. 13B. It took effect Sept. 30, 2010.

Under the law, drivers in Massachusetts are banned from both texting and e-mailing while operating a car. They cannot read or browse the Internet. Voice-to-texting is not specifically addressed in the law.

Some police departments are seeking to enforce the law. In January, West Bridgewater police stopped 51 drivers over four hours on a Saturday afternoon. In March, another four-hour sting caught 43 drivers texting.

Texting while driving is a non-criminal offense which carries a $100 for the first offense, $250 for the second offense and $500 for the third.

Drivers who are texting and driving and cause injury or death can also be criminally charged under M.G.L. c. 90, Sec. 24(2)(a). Read about a recent case.

The fire on April 26, 2013 at 87 Linden Street in Allston, the second serious fire in less than two years on the same block, is a tragic reminder of what can happen with overcrowded, substandard student housing.

The Fire Marshall will now investigate the cause of the Allston fire. In addition, The Boston Inspectional Services Division should examine whether the unit was overcrowded in violation of the Boston Zoning Ordinance, and whether housing codes and accessibility codes were violated. Enforcement of city ordinances is, unfortunately, inconsistent, and usually after the fact. Knowing this, landlords and realty companies frequently violate these ordinances in the name of profits. The victims are often unsuspecting college students. As a result, students, who pay high rents, are subjected to increased risks from their overcrowded housing.

The law in Massachusetts governs how homes must be safely maintained in order to prevent personal injury to occupants of the property. In Boston, zoning ordinances require building owners to declare whether their properties are single-family or multi-family units. In either case, under Boston's zoning ordinances, under the definition of "family," no unit may be occupied by more than four unrelated students unless the building meets much stricter building requirements.

It is also generally illegal for a landlord to create bedrooms in basements, and it may be against code to create a bedroom in an attic. No matter how it is configured, every house or apartment must have working smoke detectors throughout the unit.

Once a unit exceeds the four unrelated-occupant threshold, it technically becomes a rooming house, which makes it subject to very strict fire-prevention regulations under M.G.L. c. 148, Sec. 26I and other regulations. For example, a rooming house must have walls and ceilings made from fire-rated materials to slow flames in the event of a fire. Smoke detectors must be in every bedroom, and must be interconnected. Even more important, every boarding house must have a working sprinkler system. Boarding houses must also meet accessibility guideline and provide multiple means of egress for upper floors, which may include fire escapes.

Real estate brokers and leasing agents share responsibility for student overcrowding and exposure to risk from substandard housing. A quick look at any leasing agent's website will reveal scores of units available for student occupancy which are intended to house more than four unrelated individuals. Leasing agents collect a single month's rent, sometimes more, for their services. Since they also take the responsibility to collect signatures on leases, they know exactly how many students will be in the unit. Leasing agents simply cannot claim ignorance of the laws regarding overcrowding.

Who May Be Liable
It is our firm's opinion that violations of the boarding house rules are evidence of negligence and may create liability for the responsible landlord. We also believe that knowing and willful violations of the boarding house rules by real estate companies or leasing agents may subject them to liability as well. Violations of these standards may also be violations of the Massachusetts Consumer Protection Act, which may subject landlords and their leasing agents to multiple damages and attorneys' fees.

Other Cases
Injuries and death from substandard housing may also lead to criminal charges against landlords. For example, in January 2012, two absentee landlords were convicted of manslaughter after a fire in an illegal apartment in Quincy led to the deaths of three tenants. The landlords were accused of wantonly violating building and fire codes.

The question of the enforceability of rooming house regulations is also pending at the Massachusetts Supreme Judicial Court. In that case, civil claims were brought against a Worcester landlord for violation of the Worcester zoning bylaw. In that city, no more than four unrelated persons can occupy a home. The city brought the violation because there were more than four students in the unit. The decision in that case is expected to be handed down in the next few weeks.

Update: The City of Boston later cited the owner of the two-family structure, Anna Belokurova, for running an illegal rooming house and not obtaining the permits needed to create bedrooms in the basement, according to The Boston Globe. Read more.

Related:
Woman killed, firefighters and occupants injured in raging Allston fire, Boston Herald.

One dead, 15 injured in Allston house fire, The Boston Globe.

Jury finds landlords guilty of involuntary manslaughter in Quincy apartment fire, The Patriot Ledger.

Continue reading "Housing Code Violations and Over-Crowding in Boston Student Housing" »

We have an app that we hope you will never need to use. But just in case you are in a car accident or a bicycle accident, we have two free applications for your smart phone.

Our two new apps provide tips and tools for protecting yourself after a bicycle accident, car accident, or other personal injury accident. When an accident happens, decisions must be made and information needs to be collected quickly. We designed our apps with a goal of helping drivers, cyclists and others prepare themselves with a few tools.

Our two apps are designed for Android smart phones and iPhones. They are available free in the Google Play apps store and in the Apple iTunes store.

The Boston Accident & Injury Lawyers App

The Boston Accident & Injury Lawyers App is for drivers and all of us who travel the roads.  

Download on Google Play.
Download on Apples iTunes.

Then, e-mail all the information you have gathered to yourself. If you are interested in a free case evaluation, you can also e-mail the report to our law firm.

After an accident, our app allows you to easily track medical and other expenses right on your cell phone.

If you have a QR reader, you can scan these codes to access our app:

The Boston MA Bicycle Accident Law App 

The Boston MA Bicycle Accident Law App is designed for cyclists. The start of cycling season is a great time to download it and add your health insurance and emergency contact information.

Download it on Google Play.
Download it on Apples iTunes.

How to Use It: It offers many of the same tools as our other app, including an accident checklist, FAQs on cycling law, and tools to gather videos, photos and audio recordings. There are forms for gathering important information about the accident scene, the identities of people involved, and witness information.

After gathering the information, you can e-mail the report to yourself. If you would like a free case evaluation, e-mail the report to our law firm.

If you have a QR reader, you can scan these codes to access our bike accident app:

Continue reading "Bicycle or Car Accidents? We Have an App for That!" »

The Consumer Product Safety Commission (CPSC) has moved a step closer to its goal of getting two dangerous magnet toys out of the hands of children.

On April 12, six retailers voluntarily recalled Buckyballs and Buckycubes. The stores included Barnes & Noble, Brookstone, some Hallmark stores, Marbles the Brain Store and Think Geek.

Maxfield & Oberton Holdings of New York City, the importer and distributor, refused to issue a recall last year, prompting the CPSC to file a lawsuit against the company in July to stop sales. The rare legal action - one of just four taken by the CPSC in the past 11 years - resulted in the company discontinuing its products in October. It stopped doing business in December. 

The product was manufactured by Ningo Prosperous Imp. Exp. Co. Ltd. of Ningbo City in China.

Buckyballs and Buckycubes vary in size and color, but they are essentially a ball or cube of small powerful magnets. They were sold in containers of 10 to 216 magnets that can become loose. The first of the two products was introduced in the U.S. in March 2009. Since then, over three million sets of magnets have been sold in U.S. retail stores and online. 

Maxfield & Oberton initially marketed Buckyballs to children, calling it "an amazing toy." It later rebranded the magnet toys as an adult desk toy and stress reliever. 

But while the magnets were being marketed to adults, the CPSC was still receiving reports that children were swallowing them. It has received 54 reports of injuries, all but one requiring medical treatment.

CPSC Complaint

The CPSC's July 25, 2012 complaint alleged that the magnet products had defective labeling and warnings, defective design, and posed a substantial product hazard. 

The CPSC began working with the company on labeling three years ago, when the magnets were labeled for use by children "Ages 13+." The agency said the magnets should have been marketed for age 14 and up.

Maxfield & Oberton changed the labeling and agreed to a voluntary recall of 175,000 magnet toys, but the CPSC said the injuries continued. In its complaint, it states, "...labeling and warning labels cannot guard against the foreseeable misuse of the product and prevent the substantial risk of injury to children."

Company officials did not agree with the CPSC's action. In October, they posted a statement on their website that read in part: "We're sad to say that Balls & Cubes have a one-way ticket to the Land-of-Awesome-Stuff-You-Should-Have-Bought-When-You-Had-the-Chance." 

Dangerous Toy

Over the past few years, the CPSC set up a Magnets Information Center on its website to educate the public about the danger of swallowing magnets.

The risk is that if a child ingests more than one of the powerful magnets, they can become attracted to each other while in the intestines, pinching tissue and damaging the intestinal walls. This can result in a wide range of symptoms, including vomiting, abdominal pain, infection and death. Surgery is often required and becomes more complicated because the magnets can stick to the metal surgical tools.

And in some cases children ingested more than one or two. CBS News reported the case of a 3-year-old Oregon girl who swallowed 37 Buckyballs. The CPSC complaint details cases of other young children who have swallowed numerous magnets.

Related:
CPSC administrative complaint
Recall information for consumers

Continue reading "Dangerous Magnet Toys Recalled by Major Retailers" »

After a long, hard winter, cyclists are finally enjoying a taste of spring weather. All across Massachusetts, bikes are being pulled out of storage, tuned up, and taken back out on the road. Boston celebrates the return of the nation's premier bike-sharing program, Hubway, which is celebrating its third season in town. The program has now expanded from Boston to Cambridge, Somerville and Brookline. And today, to celebrate opening day for the Red Sox, Hubway is having a Rolling Celebration ride through the cities.

If you are a Massachusetts bicyclist, now is a good time to review some important rules and regulations, as well as some important insurance tips: 

Roads. You can travel on the side of the road or in the middle of the lane. Up to two cyclists can ride abreast in a lane. Many communities also offer designated bike lanes and shared lanes. Turns to the left can, and should, be made from the left-most lane. 

Cars. Cars must give you the right of way; they cannot turn left in front of you unless it is safe to do so; they may not make a right turn in front of you if they have just passed you; they must pass at a reasonably safe distance, or wait until it is safe to do so. 

Sidewalks. You are allowed to ride on sidewalks outside business districts, unless prohibited by local regulations. Pedestrians. Remember to give pedestrians the right of way and warn pedestrians you are overtaking or passing them. You should have a bell or horn on your bicycle, and there is nothing wrong with a friendly "Passing on your right." 

Bike Helmets. Helmets are required for cyclists ages 16 and younger in Massachusetts, but they are also an important tool for riders of all ages. Head injuries are among the most serious injuries a cyclist can sustain in a bike accident. In 2009, 630 cyclists died in the United States and 91 percent were not wearing helmets, according to the Insurance Highway Safety Institute.

Bike Lights and Reflectors. If you ride in the dark (one-half hour after sunset or one-half hour before sunrise), make sure your bike has lights and reflectors. You must have a white light facing forward and a red light facing backward. Cyclists must have reflectors on their pedals or reflective material around their ankles. You can have as many lights as you like.

Bike Maps. Bike lanes and bike paths may offer safer travel options. Call your local town or city hall and ask if they produce a bike map so you can plan your route. These two are available online: Somerville Bicycle Map and the Boston Bicycle Map.

Bike Parking. You are allowed to park your bike in a bike rack or anywhere on a sidewalk or road, but your bike cannot obstruct pedestrians or motor vehicle traffic. See this map for Boston Bike Parking.

Bike Accidents. If you are in an accident, the most important step is to obtain medical care, even if you do not initially think you are seriously injured. If you are able, take pictures of the position of your bike and the car at the accident scene. Later, file a report with the local police department. Under the law, you must notify the police for any accident involving serious injury or over $100 or greater in property damage. 

Protect Yourself With Adequate Insurance. Believe it or not, insurance on your own car may protect you if you are in an accident. Your car insurance may provide uninsured or underinsured coverage for serious injuries. Read our article, What Every Massachusetts Bicyclist Needs to Know About Car Insurance. Your homeowner's policy may provide coverage for property damage. 

Other Massachusetts Bicycling Resources
MassBike
What to Know About Cycling in Boston
Boston Bikes
City of Cambridge Police Page on Bike Safety
Somerville Bicycle Committee

Continue reading "Boston Bike Season Begins: Tips to Protect Yourself" »

An unannounced inspection at a Massachusetts compounding pharmacy recently uncovered suspicious material on medication containers, leading the operation to order a voluntarily recall for all its 2013 products.

Pallimed Soluitions, Inc. of Woburn issued the recall after the visit from the Food and Drug Administration (FDA) and the Massachusetts Board of Registration in Pharmacy. The agencies found an unknown substance on sterile compounding products. Five affected vials were discovered and no illness has been reported. The recalled drugs include those used for erectile dysfunction treatment, testosterone replacement therapy, vitamin injections and ophthalmic preparations.

The Board of Registration has ordered the pharmacy to halt sterile compounding activities. In December, the compounding pharmacy was among three cited by the state pharmacy board during unannounced inspections. Pallimed was ordered to stop production of sildenafil citrate, which is sold as Viagra. The inspection found the medication was being prepared with improper components.

Medication involved in the recall was shipped to patients and medical offices in Massachusetts, New Hampshire, Rhode Island, Maine, Connecticut, Vermont and 15 other states. Recipients are advised to discontinue use of medications and return to Pallimed Solutions.

The FDA and Massachusetts Board of Registration in Pharmacy share regulation of compounding pharmacies in Massachusetts, which in contrast to large manufacturers, are allowed to dispense medications for individuals with prescriptions, often with conditions which cannot be met in regular pharmacies.

Both agencies are still responding to the aftermath of 2012, when the New England Compounding Center in Framingham was linked to a deadly fungal meningitis outbreak, which sickened over 650 people in 19 states and killed at least 39 others.

In January, Gov. Deval Patrick proposed new licensing requirements for compounding pharmacies, including to let the state assess fines for violating regulations, to protect whistleblowers and reorganize the state pharmacy board.

Along with federal regulations, compounding pharmacies in Massachusetts operate under 247 CMR. Under M.G.L. 94C, section 21 and 105 CMR 721.000, pharmacies and pharmacists must have a prescription for a specific patient before they dispense a medication.

Continue reading "Massachusetts Compounding Pharmacy Recalls All 2013 Products" »

The proposition is all too familiar: You or your children want to participate in an activity. It could be at school, for a sporting event, in connection with a walk-a-thon or bike-a-thon, or in some other activity where there is a risk involved. Maybe the event is really risky, such as learning to drive a race car, or learning how to rock climb. Part of the price of admission to all of these activities is your signature at the bottom of a release or waiver of liability.

The language of the typical release is usually very broad and even includes the requirement that you indemnify the organization against related claims. You will be binding not only yourself, but your family, and in the case of a wrongful death, your heirs.

Are they legal? Most of the time yes, though there are some important exceptions which will be discussed below.

The Massachusetts courts generally uphold the validity of releases and waivers that are entered into knowingly. This includes pre-accident releases as well as releases in connection with settlements. Our courts have repeatedly affirmed just how broadly Massachusetts law favors the enforcement of releases.

Simply put, a defendant ordinarily may "validly exempt itself from liability which it might subsequently incur as a result of its own negligence." Lee v. Allied Sports Assocs., 349 Mass. 544 , 550 (1965) (car racetrack accident).

In the more recent case of Sharon v. City of Newton, 437 Mass. 99 (2002), the court enforced a release signed by a father on behalf of his daughter as a condition of her participation in cheerleading in her high school. After she was injured, the family brought suit for the school's negligence. The release was raised as a defense, and the court strongly affirmed the enforceability of the release, citing a host of public policy arguments.

The requirements for a binding release include clear and conspicuous language, proper naming of the party, the signature of the party, and valid contractual "consideration." Consideration, meaning something of value that is exchanged, is satisfied by the participation in the activity.

Some particularly disturbing releases seek to include third parties who may be related to the activity named in the release. For example, your school child may wish to participate in after-school volunteer activities, and the release required to participate may include all the companies participating in the program. Now assume something horrible--the contracting company had failed to screen its employees, and a dangerous criminal was employed and caused your child harm. The negligent hiring would likely be within the scope of the release.

There are some exceptions to enforceability of releases. There are certain statutory exceptions that apply. One exception (and it is one that is frequently violated) is a release of liability to join a gym or health club. G.L. c. 93, Section 80 makes such language unenforceable and, in fact, a violation of G.L. c. 93A, the Consumer Protection Act. If you are injured in a health club due to equipment failure, a defect on the premises, or the negligence of a staff person, you will be able to bring your claim. Here is a related blog on health club waivers and releases.

Although a party may contract against liability for harm caused by its own negligence, it may not do so with respect to harm caused by its gross negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17 (1997). See also Gillespie v. Papale, 541 F. Supp. 1042, 1046 (D. Mass. 1982).

A party may not contract against liability for harm caused by violation of a statutory duty. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 19 (1997), citing Gillespie v. Papale, 541 F. Supp. 1042, 1046 (D. Mass. 1982).

A release may be avoided, in part, if it is the result of a "mutual mistake." In the exceptionally rare case of Leblanc v. Friedman, 53 Mass. App. Ct. 697 (2002), a settlement release was not a complete bar to a subsequent claim by the plaintiff. The plaintiff settled a medical malpractice case arising from an instrument left in her body, and although the release was worded broadly, the court found there was a question of fact whether it was meant to include another injury not described in the release itself.

What Should You Do?
Entering into a release is an important contractual event. You should consider whether the reward overrides the risk. Some pre-enrollment due diligence is a good idea--ask about the staff involved, inspect the premises, get some references. If you are not willing to release all of your claims, try crossing out the offending language or simply not signing the release. However, most organizations are wise enough to recognize and disallow both of those techniques.

It would be appropriate for the Massachusetts legislature to consider revising the law of pre-accident releases. Sadly, that day does not look likely to come any time soon.

Our Practice
The lawyers at the Boston, Massachusetts firm of Breakstone, White & Gluck represent clients who have suffered personal injury as a result of the negligence of others. We have had experience identifying unenforceable releases which has allowed our clients to proceed with their claims for compensation. For more information and a free consultation, contact us today at 800-379-1244 or 617-723-7676 or use our contact form.

If you exercise at a health club, you may not be aware that Massachusetts law protects you in many ways from unlawful club contracts.  But many local health clubs - yours may be included - are regularly violating the law.

Health clubs are serving larger numbers than in the past. Over 50.2 million Americans now hold gym memberships, a 10 percent increase over the past three years, according to the International Health, Racquet & Sportsclub Association.

The industry has been known to make it challenging for members to cancel or put their memberships on hold. Sometimes, after you sign the cancellation agreement, they require you to pay until month's end, then another full "last month." In addition to monthly membership fees, many are also now adding new fees for "annual" memberships and equipment maintenance. Some are even charging cancellation fees up to $200. This is still legal in Massachusetts, though not at all consumer friendly.

But did you notice the fees clearly posted the last time you visited your gym? If not, your gym is violating the law. The Massachusetts Office of Consumer Affairs and Business Regulation recently inspected 15 local health clubs and found none were displaying fees or informing consumers of their right to cancel within three days, according to WBZ-TV. The office is referring the results to the state Attorney General's office.

Health clubs cannot ask a member to sign a waiver of liability but, surprisingly, many still do. While waivers of liability, also known as releases, are generally enforceable in Massachusetts, G.L. c. 93, Sec. 80 specifically states, "No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller or any assignee or transferee of the health club services contract any claim or defense arising out of the health club services contract or the buyer's activities at the health club."

This means gyms have a duty to properly maintain their premises and equipment and make sure they are being used in a safe manner, according to the manufacturer's guidelines. If they do not, and they were negligent, they may be responsible for your damages. If you have been injured in a Massachusetts gym, the court should find the liability waiver void. Over the years, our injury lawyers have successfully challenged these agreements.

Gyms also cannot ask members to sign up for terms longer than 36 months or require that members agree to financing that lasts longer than one month beyond the membership period. Members cannot be required to agree to monthly automatic withdrawals from a bank account.

If you are joining a gym, the best thing you can do is read the fine print on your member agreement before signing. Research the organization online through your local Better Business Bureau website.

Consumer remedies for health club violations are limited. No health club will be permitted by the courts to enforce an illegal contract. A consumer may bring claims under the Massachusetts Consumer Protection Act, G.L. c. 93A, but damages will usually be  nominal, although attorneys' fees would be available.

Recent Court Ruling

The possibility of class actions was virtually eliminated by the recent ruling by the Supreme Judicial Court in Tyler v. Michaels Stores, Inc., 464 Mass. 492 (2013). An invasion of a consumer's rights may be a violation of G.L. c. 93A, but unless the consumer has suffered a separate, identifiable harm arising from the violation, there will be no remedy. This case put a disappointing crimp into collective consumer action to prevent violations of the Consumer Protection Act, leaving overworked state officials to take up the slack.

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In Massachusetts, we are making the long-awaited transition from winter to spring. For drivers, that means trading in the challenge of navigating snow-packed roads for dodging potholes.

While potholes often start as small pavement cracks, they can expand quickly if left unrepaired.  Hitting even a small pothole can cause hundreds or thousands of dollars in damage to your car as well as serious injury if the driver loses control of the vehicle. Accidents often happen when private property owners and government entities fail to quickly repair roads or set up signage alerting drivers to roadway defects.  The law requires all persons to maintain roadways, driveways and sidewalks in a reasonably safe manner. But it also allows a reasonable amount of time to discover and repair the defect.  

Around Boston, some communities report hundreds of pot hole car accidents and incidents each year. The city of Boston is trying a new approach to hasten repairs by developing a smart phone app called Street Bump which allows drivers to send the city alerts about defective roadways which need to be fixed.

 
If Your Car is Damaged by a Roadway Defect

If your car is damaged or you are injured because of a roadway defect, you can expect your auto insurance collision coverage will cover the damage, but you will be subject to your deductible, which is often $500 or more. You may also be entitled to other compensation depending on where your accident happened.

It is important to consult an attorney promptly if you are injured in order to protect all of your rights. Here are a few points to keep in mind:

Private Property.  Commercial property owners invite the public onto their property for business and have a responsibility to maintain their premises, including parking lots and driveways, in a reasonably safe manner.  If the damage or injury is caused by the negligence of the property owner, then the owner's liability insurance should cover the losses. The same rule applies to a private landowner; there is a duty to maintain driveways, parking areas, and walkways in a reasonably safe manner for all lawful visitors.

Roads and Highways. Under M.G.L. c. 84, Section 15, cities and towns must properly maintain their public ways. If a community fails to do so and had reasonable notice of the defect, a person injured in an accident on a local road may seek up to $5,000. The municipality must have known about the defect or should have learned of the defect in the exercise of due care and diligence. Gregorie v. Lowell, 253 Mass. 119 (1925). Perfection in road maintenance is not required. Zacherer v. Wakefield, 291 Mass. 90 (1935).

The city or town must receive written notice of the defect within 30 days. Proper written notice is an absolute requirement. In addition, there is an iron-clad $5,000 cap on damages. Unfortunately, any negligence on the part of the driver will be a complete bar to recovery; the rule of comparative negligence does not apply.

In Summary
In summary, potholes are a way of life in Massachusetts. If you have the misfortune of suffering a loss due to a pothole on a public way, there is little likelihood of obtaining relief from any public entity.

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In the first lawsuit associated with transvaginal mesh implants, a New Jersey jury has ordered Johnson & Johnson to pay $11.1 million to a South Dakota woman who suffered injuries.

Johnson & Johnson and its Ethicon division face 1,800 lawsuits in New Jersey over injuries involving surgical mesh products, which are used to treat pelvic organ prolapse and stress urinary incontinence. Last week, the plaintiff received $7.76 million in punitive damages and $3.35 million in other compensation in Atlantic City Superior Court.

The woman, who filed her lawsuit in 2008, alleged Johnson & Johnson failed to adequately warn her doctor of potential dangers from the vaginal mesh implants. It alleged the company was liable for defective design, manufacture and warnings and instructions.

In Massachusetts and other states, the law allows a consumer to bring a claim against a company which manufactures a defective product that causes them injury. A company has a responsibility to protect consumers from defective design, manufacturer error and to warn the consumer about possible harm. Companies and professionals involved in distribution and sale can also be held liable if they act negligently. There is a statute of limitation restricting how long someone can file a claim.

Surgical mesh is a Class II medical device regulated by the Food and Drug Administration (FDA). It has been used to treat pelvic organ prolapse and stress urinary incontinence (SUI) since the 1990s. In 1996, the FDA approved it as a treatment for SUI. In 2002, it was approved to treat pelvic organ prolapse.

In 2005, Johnson & Johnson introduced its Gynecare Prolift surgical implant, the product which was used by the plaintiff. It was one of several implants on the market, along with others by Johnson & Johnson and other manufacturers such as Boston Scientific and American Medical Systems. Johnson & Johnson discontinued its vaginal mesh implants in 2012 after reports of women suffering injuries and an FDA warning.

The FDA first issued a notification about surgical mesh implants in 2008 and upgraded its warning in 2011, saying research showed approximately 10 percent of women who had received transvaginal mesh surgery experienced mesh erosion within a year. Other complications included pain, infection, bleeding, organ perforation, urinary problems and neurovascular muscular problems. Many women suffered emotional problems.

Treatment of a second surgery or intensive medical care does not always alleviate the symptoms.

Related: Jury awards woman $7.76 million punitive damages for J&J mesh, Reuters.

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The law is "very cut and dry," when it comes to liability for Massachusetts dog bite cases, attorney David White told Fox-TV Boston recently.

White, a partner at Breakstone, White & Gluck of Boston, spoke on the network's morning program about Milo, the Mansfield dog which attacked and seriously injured a 6-year-old boy on Jan. 3. The boy suffered severe facial lacerations and required more than 400 stitches. Last week, the Mansfield Board of Selectmen held a hearing and voted 3-2 to euthanize the dog. The dog's owners said they planned to appeal the vote in District Court and were allowed to take Milo home after the hearing. Then, the dog attacked again, this time over the weekend on West Street in Mansfield, and ended up being euthanized before any appeal. In the second attack, the dog bit a 16-year-old teenager, who was sent to Hasbro Children's Hospital to be treated for injuries. See news coverage.

In the TV interview, White explained the process in Massachusetts for protecting communities from dangerous dogs. When someone is injured after a dog bite, the incident is reported to a local animal control officer, police or the Board of Selectmen. The board holds a hearing to determine if the dog is dangerous. It then votes on appropriate action, which may include muzzling the dog, restraining it, ordering it to leave town or other steps.The dog owner is allowed to appeal in the District Court.

When someone is injured by a dog in Massachusetts, they can also file a lawsuit in civil court to recover damages under M.G.L. c. 140, Sec. 155.

White said the law holds dog owners strictly liable for dog attacks, only providing a few exceptions. They include if an injured person is tormenting a dog, trespassing on another person's property or for cases involving children. Some states have a "one bite" or "first bite" rule, but not Massachusetts.

"The law is very cut and dry," White told Fox. "And furthermore if there is an injury to a child under the age of 7, there is a presumption the child was not teasing or tormenting the dog."

When someone is injured, they are not required to prove the dog has injured before or that the dog is vicious.

White advised dog owners to make sure they have coverage for dog bites and attacks on their homeowner's insurance policies. If your insurer does not provide coverage, he says find another provider who does.

Approximately 4.5 million people are bitten by dogs each year in the United States, according to the U.S. Centers for Disease Control and Prevention.

Children are the most frequent victims, with those ages five to nine accounting for the largest numbers of injuries.

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