Massachusetts Injury Lawyer Blog

An appeal by a plaintiff in a Massachusetts snow and ice slip-and-fall case has led to the opportunity for trial. The Massachusetts Appeals Court vacated the original judgment and remanded the case for further proceedings after finding that the judge erred in allowing the defendant's motion for summary judgment.

The case arose from a fall that occurred outside a McDonald's restaurant in 2007. The plaintiff, Mercilia Lindor, slipped and fell on an icy sidewalk outside the restaurant, breaking her foot. While still lying on the sidewalk, Lindor witnessed another man close by slip and fall to his knees. The conditions were so bad that emergency personnel at the scene had difficulty moving the plaintiff. They had to ask McDonald's employees to salt the area.

Prior to trial, McDonald's moved for a summary judgment, arguing that the ice outside the restaurant had accumulated naturally, and that under long-standing Massachusetts common law it was not liable for an accident occurring under those conditions. The plaintiff filed no opposition, and the judge allowed the defendant's motion, issuing the order on July 22, 2010.
The resulting judgment was entered on the docket on July 28, 2010.

Two days prior to this, however, on July 26, 2010, the Massachusetts Supreme Judicial Court decided the case of Papadopoulos v. Target Corp., in which it established a new standard for determining liability in cases of injury arising from ice and snow accidents: property owners must take "reasonable care" to remove all accumulations of ice and snow. This new standard does not require any distinction between "natural" and "unnatural" accumulations.

The Court also held that the ruling was retroactive, meaning it will be applied to all open and pending claims in which a judgment had not yet been entered. Although the judge issued an order for summary judgment prior to the Papadopoulos ruling, in Massachusetts a judgment is only considered final when a clerk dockets it. Fortunately for the plaintiff, this occurred on July 28, two days after the ruling in Papadopoulos. For this reason, the "reasonable care" standard established in Papadopoulos will apply to Lindor's case.

The Court decided that there was a genuine issue of fact as to whether McDonald's took "reasonable care" in protecting lawful visitors to the property, and as a result, the judgment was vacated, enabling Ms. Lindor to pursue her claim.

The case decided was Lindor v. McDonald's Restaurants of Massachusetts, Inc., Mass. App. Ct No. 10-P-1615 (November 10, 2011).

Continue reading "Snow and Ice Accident Appeal Leads to New Trial in Massachusetts Superior Court" »

Boston's popular Hubway bike sharing program will expand into Cambridge and Somerville next spring, providing more opportunities for healthy, environmentally-friendly and fun travel.

Boston's program, which began in July 2011, is scheduled to close its 60 bike rental stations and 600 bikes this week for the winter. Bikes are expected to be available again next March, weather permitting. At the same time, Cambridge plans to open 20 stations in areas such as Harvard, Central and Inman squares. Somerville plans to open 8 stations including in Porter, Union and Davis squares.

Brookline is also working on adding two Hubway stations at Coolidge Corner and Brookline Village.

Boston's Hubway program had 3,650 annual members in its first season. The system is partly funded by a $3 million grant from the Federal Transit Administration. It is intended for short trips as an extension of public transit. Annual members who pay $85 per year and those with one-day $5 and three-day $12 memberships can take unlimited rides, but they must return bikes within 30 minutes to avoid incurring additional fees.

Among annual members, the average ride lasted 17 minutes.

As officials close up the Boston program for the winter, they report concerns over an increase in bicycle accidents never materialized. The program saw no serious bike crashes requiring ambulance response and only two bike accidents overall.

But one issue is less than half of Hubway cyclists appeared to wear bike helmets, the program reported. Nearly 75 percent of riders on other bikes wore helmets. The city of Boston has tried to boost bike helmet use by working with 30 bike shops to offer subsidized bike helmets for less than $10.

The Boston bike accident lawyers at Breakstone, White & Gluck urge cyclists to learn Massachusetts bicycle laws. Click here for our guide.

We also urge cyclists to consider purchasing bicycle accident injury protection through their automobile insurance policies. Check your uninsured and underinsured motorist coverage, which provides protection if there is a bicycle accident. This insurance is affordable and can ease the physical and financial recovery after a bicycle accident. Click to read our guide What Every Bicyclist Needs to Know About Car Insurance.

Click here to read an article in The Boston Globe about the Hubway bicycle sharing program.

Click here to learn more about Boston's Hubway sharing program.

Continue reading "Bicycle Accidents Rare in Boston Hubway Program, Officials Report" »

As the problem of alarm fatigue comes under increased scrutiny, Massachusetts General Hospital has implemented steps to improve the medical staff's response to patient alarms and avoid unnecessary deaths.

Alarm fatigue at hospitals has received much attention in the past year as it has led to several patient deaths and illnesses throughout Massachusetts. Alarm fatigue is a type of medical malpractice caused when nurses and medical staff work among numerous alarms, many false, and grow desensitized to the many sounds and fail to respond to patients.

At Mass. General Hospital, an 89-year-old man died in January 2010 as he recovered from surgery and awaited implantation of a cardiac pacemaker. State and federal investigators reported 10 nurses on duty said they failed to hear alarms beeping at the central nurses' station. The nurses also said they never saw ticker signs indicating the patient's dropping heart rate on three hallway signs.

In April, Mass. General Hospital settled a medical malpractice claim made by the patient's family for $850,000. After an internal investigation, the Boston hospital also implemented several improvements to reduce this form of medical malpractice, including disabling the off switches of 1,100 cardiac monitors, educating nurses about alarms and installing speakers so alarms are heard more clearly. The medical malpractice settlement was reported today by The Boston Globe on Nov. 28, 2011.

Another medical malpractice lawsuit is pending against Mass. General Hospital after a 47-year-old woman died in the hospital in January 2009. The state Department of Public Health found the patient's cardiac monitor was not setting off alarms.

Other hospitals experiencing problems with alarm fatigue include UMass Memorial Medical Center in Worcester. In September 2011, The Boston Globe reported the hospital had two wrongful deaths over the past four years due to failure to respond to patient alarms. In one case, nurses failed to respond to alarms for almost an hour. The hospital is now taking steps such as holding monthly drills for medical staff and arranging voluntary seminars and webinars for the hospitals 2,100 nurses.

The hospital has also started sending low-battery warnings to nurses' cell phones and pagers for life-threatening changes in patients.

Hospitals are not alone in addressing the problem. Last month, the Joint Commission, which accredits hospitals, and the U.S. Food and Drug Administration attended a summit in Washington D.C. In future months, they are expected to make recommendations for the medical community.

Continue reading "Medical Malpractice, Alarm Fatigue Get Attention" »

For a quarter century, the U.S. PIRG Education Fund (U.S. PIRG) has educated the public about toy safety for the holiday shopping season.

This year, U.S. PIRG's "Trouble In Toyland: The 26th Annual Survey of Toy Safety," warns consumers about over a dozen potentially dangerous toys, including those with dangerous levels of lead, phthalates and cadmium. Other warnings were issued for toys posing choking and strangulation hazards as well as those that create an excessively loud noise. The Boston product liability lawyers at Breakstone, White & Gluck urge you to glance at the report's findings before you do your holiday shopping:

Toys With Dangerous Lead Limits. Lead has been banned in paint, children's products and cookware in the United States since 1978, but it remains a problem in toys which are imported from other countries. Between October 2010 and November 2011, nearly 200,000 toys were recalled because of excessive lead limits, U.S. PIRG reported.

This year's U.S. PIRG review found two toys on the market with lead levels which exceed the current 300 ppm standard, one toy that exceeded the prospective 100 ppm standard and four toys that exceeded the American Academy of Pediatrics recommendation of 40 ppm. This is the limit supported by U.S. PIRG.

Phthalates in Toys. Exposure to phthalates has been linked to have adverse health effects for children in the womb, including premature delivery and reproductive defects. U.S. PIRG identified two toys with limits exceeding the amount allowed by the Consumer Product Safety Improvement Act of 2008. The two toys include the Funny Glasses, manufactured by Joking Around, and the Sleep Mask, manufactured by Claire's. Both exceed the 1000 ppm of banned phthalate standard.

Cadmium. Cadmium is a frequent additive in children's jewelry. In response to a legal action in September, retailers agreed to sell only products that have less than 300 ppm cadmium. U.S. PIRG found no cases of noncompliance, but urged the Consumer Product Safety Commission to proceed with setting limits for cadmium in children and toy jewelry.

Choking Hazard. Choking on toys with small parts is the leading cause of toy-related deaths and injuries. Between 1990 and 2010, over 200 children in the United States died from choking.

Toy makers face complex regulations for testing and labeling their products. U.S. PIRG found several violations, including toys with no warning labels indicating they included small parts. The group called on the Consumer Product Safety Commission to take actions such as enlarging the small parts test tube size.

Loud Toys. U.S. PIRG reported several toys on the market exceed the ASTM 2003 standards for sound-producing toys, including Elmo's World, Talking Cell Phone, manufactured by Fisher-Price; Victorious Stereo Headphones, manufactured by Nickelodeon; and Hotwheels, Super Stunt RAT BOMB, manufactured by Hotwheels.

Our recommendations:

• Shop wisely. If you have small children in the house, avoid toys for your older children which might represent choking hazards for your younger children.


• Avoid products which are obviously intended to generate loud noises or which may have headphones that cannot be turned down.


• Common sense says look for toys that have been on the market for more than a year because they are more likely to have been tested and proven safe.


• Buy toys that will promote physical activities to help your children stay strong and healthy.

To read the full U.S. PIRG "Trouble In Toyland: The 26th Annual Survey of Toy Safety," click here.

Continue reading "Dangerous Toy Report Details Lead, Choking Hazards" »

At Thanksgiving, the focus is on enjoying good food and family. But attention must also be paid to fire safety because Thanksgiving sees more residential fire deaths, injuries and property damage than any other day of the year.

These fires are preventable with solid planning and good communication among those who are preparing the meal and others in the home. The Massachusetts personal injury lawyers at Breakstone, White & Gluck of Boston offer these tips to keep your holiday safe:

• Never leave food cooking unattended. If you have to leave the kitchen, turn the stove off or ask someone to watch the food.


• Make sure you have properly working smoke alarms near your kitchen.


• Keep oven mitts, wooden utensils, towels and other materials away from the stovetop.


• Use a timer to remind you when to stop cooking.


• Avoid using candles, especially near young children.


• Make sure cords to electrical tools and appliances, such as electric knives, are not dangling within reach of a child.


• Make sure children stay away from liquids and soft foods such as gravy and vegetables until they cool down. If these foods are too hot, they can cause skin burns.

What To Do If You Have A Cooking Fire
Keep a small fire extinguisher handy in your kitchen, either under the sink or close by in a closet. Inspect it periodically and make sure it is properly charged. If you have a cooking fire, it is best to call 911, wait outdoors for the fire department.

If it's an oven fire, turn off the heat and keep the door closed. For small grease fires, smother the fire by sliding the lid over the pan and turning off the stove top. Leave the pan covered until it is cool. Never use water to extinguish a grease fire. You could be badly burned.

If you try to put out the fire, be sure everyone else is out of the home and you have a clear exit path.

Continue reading "Cooking a Safe Thanksgiving Dinner" »

As the holidays approach, the lawyers at Breakstone, White & Gluck, PC urge you to shop carefully to avoid dangerous toys.

Each year, companies recall thousands of toys that put children at risk for injuries such as strangulation, lacerations, falls and death. According to the Consumer Product Safety Commission, the 34 toy recalls in fiscal 2011 were a marked decrease from 172 in 2008, but toy-related deaths rose slightly last year, with 17 children suffering wrongful deaths from defective toys.

In 2010, about 181,500 children were treated in emergency rooms for toy-related injuries. Non-motorized scooters continue to cause the most injuries, while toys with small parts and unsafe cords are also involved in many recalls.

Each year, a non-profit Boston organization, World Against Toys Causing Harm Inc., (WATCH) releases a list warning parents about the hazards of certain toys. The toys present hazards for burn injuries, strangulation injuries, and other bodily injury. This year's "WATCH's Most Dangerous Toys of 2011," includes:

1) The Incredible Shrinky Dinks Maker
Potential hazard: Possible electric shock and burn injuries.

2) Sword Fighting Jack Sparrow
Potential Hazard: Possible eye and other bodily injuries.

3) 'Gigan' Godzilla Figure
Potential hazard: Possible puncture wounds.

4) Twist 'n Sort
Potential hazard: Small parts cause a choking hazard.

5) Power Rangers Samurai Mega Blade
Potential hazard: Blade can cause injuries.

6) Fold and Go Trampoline
Potential hazard: Can cause injuries to people using it, including to the head and neck.

7) Pulling Animal Duck
Potential hazard: Potential for strangulation injuries.

8) School Bus
Potential hazard: Choking hazard.

9) Z-Curve Bow
Potential hazard: Danger to eyes.

10) Stepper 'Low Rise" Stilts
Potential hazard: Head and other injuries from impact.

Click here to read more about this year's WATCH list.

Related Entries

• Avoid Dangerous and Defective Toys During the Holiday Season, Dec. 4, 2008.
• Don't Buy Your Children These Toys This Holiday, Nov. 19, 2010.

Continue reading "Defective Products: The 10 Most Dangerous Toys of 2011 " »

Thanksgiving is a special time of year when family and friends gather for tasty food and warm conversation. But before the turkey can be carved, many people have to travel. The majority of holiday travelers are driving. As they plan their trips, the National Highway Traffic Safety Administration (NHTSA) is urging travelers to buckle up through its campaign, "Buckle Up America. Every Trip. Every Time." Other government agencies are stressing good planning to help drivers avoid motor vehicle accidents.

Seat Belt Use
During the 2009 Thanksgiving holiday travel weekend, 303 passenger vehicle occupants died in motor vehicle crashes, according to the NHTSA. The majority of these deaths occurred at night, making it important to buckle up at all hours.

Plan Travel Times
The Wednesday before the holiday and Sunday following are the busiest travel days. If possible, plan to travel at other times.

Massachusetts 511 Traffic Updates
Visit the Massachusetts 511 website before you travel. It reports on traffic, car accidents and travel conditions throughout the state. Click here for more information.

Fuel Up
Make sure your gas tank is full before you start traveling.

Slow Down
Expect to have to travel below the speed limit in heavy traffic and make sure not to follow other vehicles too closely.

Stay Calm
Expect to see aggressive drivers on the road. Move away and never engage them.

Drowsy Driving
Drowsy driving causes more than 100,000 car crashes each year, resulting in 40,000 injuries and 1,550 deaths, according to the NHTSA. Rest up before making the drive.

Continue reading "Thanksgiving Driving Safety " »

A defective crankshaft pulley is driving a new Toyota recall that will affect thousands of car owners. The Nov. 8 recall of 550,000 vehicles includes 420,000 cars in the United States. Toyota has now issued recalls for more than 13 million vehicles nationwide since September 2009. More vehicles have been recalled in other countries.

Toyota recalled the vehicles due to a crankshaft pulley defect that may cause steering problems. The vehicles have V6 engines and the U.S. models include 283,200 Toyota brand cars like Camry and Highlander vehicles and 137,000 Lexus vehicles.

Toyota said no injuries have been reported. The car manufacturer said the crankshaft pulley may have an inadequate amount of adhesive agent between the outer ring and the inner ring. This can cause the crankshaft pulley to become misaligned with the inner ring, possibly causing a noise or warning signal to light. When this happens, the belt for the power steering pump can detach from the pulley, making it hard for drivers to steer.

Toyota recalled 8 million vehicles between Nov. 2009 and the first quarter of 2010, most for defective pedals. In April 2010, the United States government fined the world's largest automaker a record $16 million for its delayed response in notifying the National Highway Traffic Safety Administration regarding the defects.

Recalls have continued through 2011, including last February's recall of 2.17 million vehicles to repair mechanical defects that could cause the cars to accelerate out of control.

The Nov. 8 recall involves these defective motor vehicles: the 2004 and 2005 Camry, Highlander, Sienna and Solara; the 2004 Avalon; and the 2006 Highlander HV. The affected Lexus models are the 2004 and 2005 ES 330 and RX 330 and the 2006 RX 400h.

In January, Toyota will mail car owners a notification to make an appointment to have their vehicle inspected. Toyota will fix any vehicle in need of repair at no cost to consumers.

Continue reading "Toyota Recalls 550,000 Toyotas and Lexus Models" »

Breakstone, White & Gluck announces its lawyers have been recognized as 2011 Super Lawyers by Boston Magazine. It is the eighth consecutive year the firm's lawyers have been honored.

Attorney Marc L. Breakstone has been selected as one of the Top 100 New England Super Lawyers for 2011 and one of the Top 100 Massachusetts Super Lawyers for 2011. This is the second time Attorney Breakstone has been selected as one of the Top 100 New England Super Lawyers and the fifth time he has been selected one of the Top 100 Massachusetts Super Lawyers. In addition, Attorney Breakstone has been named a 2011 Massachusetts Super Lawyer for the seventh year in a row. Attorney Breakstone is a graduate of Northeastern University School of Law and specializes in personal injury and medical malpractice cases. Click here to read his bio.

Attorney Ronald E. Gluck has been named a 2011 Massachusetts Super Lawyer. He was selected to the list for the seventh consecutive year. He was also selected to the list of New England Super Lawyers for the fifth year in a row. Attorney Gluck specializes in catastrophic personal injury cases stemming from automobile accidents, public transportation disasters, construction accidents and medical device and pharmaceutical product liability. He is a graduate of the Case Western Reserve University School of Law. Click here to read his bio.

Attorney David W. White has been named a 2011 Massachusetts Super Lawyer. He has been selected for the list each year since 2004. He has also been selected twice to the list of Top 100 New England Super Lawyers and four times to the list of Top 100 Massachusetts Super Lawyers. Attorney White is a graduate of Northeastern University School of Law and specializes in personal injury, medical malpractice and bicycle accident cases. Click here to read his bio.

About Breakstone, White & Gluck, PC
Breakstone, White & Gluck, PC, is a Boston law firm which represents injured plaintiffs in personal injury and medical malpractice cases. The firm has established a reputation as one of the top Massachusetts personal injury law firms. Notable cases include the case against a surgeon who left a patient on the operating table to cash a check, and several multi-million dollar cases arising from medical malpractice, EMT malpractice and motor vehicle accidents.

About Super Lawyers
Super Lawyers selects attorneys using a rigorous, multiphase process that includes peer nominations and evaluations and independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. The object is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for counsel.

Continue reading "Breakstone, White & Gluck Honored as 2011 Super Lawyers" »

On Sunday, Nov. 6, we turn clocks back an hour as Daylight Saving Time ends. The change from Daylight Saving Time is an important reminder to protect our family and homes by checking and changing the batteries in our smoke alarms and carbon monoxide detectors.

Fire and carbon monoxide poisoning are great concerns as the cold weather arrives and residents make their home heating decisions. Each year, more than 150 people in the United States die from accidental non-fire related carbon monoxide (CO) poisoning. This poisoning is associated with consumer products, such as furnaces, stoves and water heaters.

Even more people die each year in fires. In 2010, 3,120 people were killed while another 17,720 suffered fire-related injuries, according to the National Fire Protection Association. Four out of five civilian fire deaths occurred in the home. These statistics make your work to prepare your home for the winter especially important.

Smoke Alarms: Massachusetts requires a smoke alarm be installed on every habitable level of a residence as well as the basement floor.

There are two types of smoke alarms, photoelectric and ionization. Effective April 5, 2010, only photoelectric smoke detectors are to be installed within 20 feet of kitchens and bathrooms with showers. These alarms are less sensitive and the goal is to reduce nuisance alarms that cause people to disable devices. Both photoelectric and ionization alarms are required in all other areas.

Carbon Monoxide Detectors: Since March 31, 2006, residences have been required to have working carbon monoxide alarms on every habitable level of the home or dwelling unit. Carbon monoxide is a colorless and odorless gas that results from incomplete burning of fuels. The first symptoms of poisoning are similar to the flu and include headache, fatigue and dizziness.

The requirements for meeting the smoke alarm and carbon monoxide detector laws can be met with separate units or with smoke alarms that have carbon monoxide detectors.

Continue reading "Change Your Smoke Alarm Batteries for Daylight Saving Time" »