Massachusetts Injury Lawyer Blog

The Massachusetts Supreme Judicial Court has ruled that non-patient claims for personal injury resulting from medical malpractice must first be presented to the Massachusetts medical malpractice tribunal.  The tribunal's job is to review medical malpractice personal injury claims and decide whether there was actual medical malpractice involved or if the injury was merely an unfortunate medical result.

The decision concerned a hospital worker who was killed when a heavily medicated woman lost control of her car and drove it into an entrance to the Brockton Hospital where the victim worked.  The victim's wife sued the doctors for her husband's wrongful death, alleging they had failed to warn the woman that it was dangerous to drive while on her medications.

Ordinarily, medical negligence cases may only be brought by a patient against his or her medical provider. However, third parties may bring claims against a provider if the provider failed to warn the patient of the effects of medication, and the patient then injured the third party. The exception is a narrow one.

The case clarifies pre-trial procedures in such third party cases, as it was unclear whether or not an injured non-patient was required to bring their medical malpractice claim before the tribunal.  However, with today's Massachusetts Supreme Judicial Court ruling, it is now clear that any person looking to bring a claim for personal injury resulting from medical malpractice must first present their claim to the medical malpractice tribunal, whether or not they were the patient.

The case was Vasa v. Compass Medical, P.C., SJC-10457, March 2, 2010.

Continue reading "Massachusetts Court Requires Medical Malpractice Tribunal in Third Party Claims" »

New Trial Ordered for Tenant Who Suffered Broken Hip

Have you been injured when you slipped and fell on ice? This case may be important to you.

The Massachusetts Appeals Court has granted a new trial to a plaintiff injured after falling on ice after the Superior Court justice misapplied the legal rule governing open and obvious dangers in a premises liability. The Court limited the application of the open and obvious rule in snow and ice cases.

At the trial, the judge allowed instructions on the defense of an "open and obvious" danger, and failed to instruct the jury on comparative negligence. The verdict was for the landowner which had failed to treat a large area of frozen slush with deep footprints in it.

The case made it clear: The open and obvious defense does not apply to snow and ice cases. Snow and ice do present obvious dangers to pedestrians, but often there is no safer route for a pedestrian to take. The proper questions for a jury is whether the landowner was reasonable in his or her effort to reduce the danger from an unnatural accumulation of snow or ice, and whether the plaintiff was comparatively negligent.

The case is good news for pedestrians, whose rights to recover for injuries in snow and ice cases are made stronger by the case.

For a more complete discussion of this case, please read the article on our website, Massachusetts Appeals Court Clarifies Law on Responsibility of Landowner to Remove Snow and Ice.

The case was Soederberg v. Concord Greene Condominium Association, Appeals CourtNo. 09-P-380, February 25, 2010.

If you have been injured after slipping and falling on ice: Please contact our office if you need legal representation for personal injuries caused by slipping and falling on ice. We have over 80 years of experience on these types of cases.

The Federal Government is taking a firm stand against the dangers caused by texting drivers. U.S. Transportation Secretary Ray LaHood announced Tuesday that, effective immediately, commercial bus and truck drivers are prohibited from texting while driving. Texting truck and bus drivers face civil or criminal penalties of up to $2,750. 

The goal of the new law is to reduce truck accidents and motor vehicle accidents caused by distracted driving.  According to the Federal Motor Carrier Safety Administration, drivers take their eyes off the road for an average of 4.6 seconds out of every six seconds while texting.  This means drivers who text are more than 20 times more likely to get in an accident than nondistracted drivers.

This is not the first move that the government has made to reduce the dangers of texting drivers.  Nineteen states have passed laws banning texting while driving.  President Obama has also signed an executive order requiring federal employees not to text while driving government-owned vehicles or with government-owned equipment. 

The attention on texting comes after several high profile accidents caused by texting motor vehicle operators.  In September 2008, a California commuter train engineer missed a stop signal while trading text messages with a friend, leading to a train accident resulting in the wrongful death of 25 people.  In May 2009, 62 people suffered personal injury after a Massachusetts Bay Transportation Authority trolley driver collided with another trolley while texting.

For more information about the dangers of distracted driving, see the Transportation Department's website www.distraction.gov.

Continue reading "New Law Against Texting Intended to Reduce Distracted Driving and Truck Accidents--Rule Should Improve Safety for Massachusetts Drivers" »

The Massachusetts Appeals Court has allowed the claim of a child who was bitten by a dog to proceed to trial against the landlords, even though the landlords did not own the dog.  The ruling reverses a lower court ruling in favor of the landlord.

The plaintiff was ten years old when he was attacked by a pit bull named Tiny. Tiny belonged to another tenant in the same 4-family building. Tiny had been found in the woods and adopted by the family. Tiny had demonstrated some aggressive behavior prior to the date of the incident.  The plaintiff's family maintained that they had lodged multiple complaints with the landlords about not just the presence of the dog, but also its aggressive behavior. The landlords were also informed that Tiny was allowed to roam unrestrained, a violation of the Waltham leash law. The landlords claimed they had no knowledge that the dog might be dangerous.

The landlords had a no-dog policy for the premises, but failed to enforce that policy with regard to Tiny.  In fact, the plaintiff's family had previously given up its dogs because of the landlords' policy.

On the date of the incident, Tiny was sitting on a porch, unrestrained, then ran across the yard, jumped a fence, and bit the plaintiff who was playing in the neighbor's yard. The ten-year old had mulitiple dog bite injuries to his leg.

The Superior Court judge ruled that the landlords were not negligent, and that the fears of the pit bull were "subjective."  The Appeals Court disagreed.

In Massachusetts, a third party such as a landlord, is not liable under the Massachusetts strict liability statute governing dogs. While a dogs owner or keeper is strictly liable for injuries caused by their dog, a third party can be liable only if he or she is negligent. A landlord does not insure that the property will be safe, and has a duty to use reasonable care for the premises.  Thus, in this case, the plaintiff is required to prove that the landlord knew or should have known of the dangers of the dog.  The landlords could not be held liable just on the fact that the dog was of a dangerous breed, but could be held liable if they had knowledge of its dangerous behavior.

The Appeals Court also noted that negligence cases are ordinarily best left to a jury's consideration, since the cases often turn on disputed facts. Given the disputed facts in this case, namely whether the landlord had received reports of the dog's dangerous behavior, the case was sent back to the Superior Court for trial.

The name of the case is Nutt v. Florio, Appeals Court No. 08-P-81 (October 19, 2009).  

Continue reading "Massachusetts Appeals Court Allows Dog Bite Case Against Landlord to Proceed" »

On August 29, 2003, several people suffered personal injuries and one person was killed when an improperly secured gate arm at the Gillette Stadium in Foxboro swung into a bus traveling on an access road. The stadium, which is the home of the New England Patriots, is on property managed by Foxboro Realty Associates, LLC, with security provided by Apollo Security, Inc,. parking operations managed by Standard Parking Systems.

According to the evidence, the accident occurred when the gate arm was not properly secured by its three pound pin, and a gust of wind blew it from the open position. The evidence demonstrated that Foxboro Realty Associates had promulgated a policy on securing the gate, but had failed to put the policy in writing. It was the job of Apollo to unlock the gate and the job of Standard to open and secure the gates at the appropriate times.

After a trial lasting several weeks, the plaintiff (who was the wife of the deceased passenger from the van) was awarded $4,400,000 for her husband's conscious pain and suffering and wrongful death arising from the negligence of the defendants.

There were two issues on appeal: The instructions the trial judge gave the jury about discussing the evidence; and the issue of control, and whether Foxboro had sufficient control over the parking operations to be found negligent for the actions of its indpendent contractor.

The Massachusetts Supreme Judicial Court ruled that the judge's instructions to the jury that they could discuss the evidence in the case during the trial (which is most unusual in Massachusetts) were improper, because such discussions can only be allowed in civil cases when all parties agree. One party had objected. However, the court found that the error was harmless, because the evidence of the defendant's negligence was very strong.

The Court also ruled that the trial judge had given proper instructions to the jury on control. Under Massachusetts law, an employer is not liable for the acts of an independent contractor unless the employer "retained some level of control over the manner inwhich the work was performed."  The judge had instructed the jury that the employer could be found liable if it failed to exercise its control with reasonable care. The judge's instructions were found to be consistent with Massachusetts law, and the judge was not required to give the instructions requested by one of the defendants. 

The case is Kelly v. Roxboro Realty Associates, LLC, 454 Mass. 306 (2009).

Continue reading "Massachusetts Court Upholds Verdict in Premises Liability Case; Discusses Innovative Jury Techniques and Question of "Control"" »

The Massachusetts Supreme Judicial Court ruled today that a hospital does not owe a third party a duty of care for injuries arising as a result of hospital treatment of a patient. Accordingly, a police officer who suffered personal injuries in a car accident responding to a pedestrian accident scene, cannot recover against the hospital after its patient was killed in the pedestrian accident.

The case was brought by Leavitt, a police officer for the town of Whitman, MA. He received an emergency call to respond to the scene of an accident where a pedestrian had been struck and killed by a car. On his way to the accident, Leavitt's cruiser was struck, and he was seriously and permanently injured.

It was determined that the pedestrian had been treated earlier that day at the Brockton Hospital, where he had undergone a colonoscopy. As part of the procedure, he had received narcotic medication. He was allowed to leave the hospital without an escort, which was against hospital policy and, plaintiff alleged, good and accepted medical practice.

The court found that the hospital owed no duty of the plaintiff. Specifically, the court ruled that the theories of general negligence, of a special relationship, and of a voluntary assumption of a duty of care were all without merit. The duty of care in a special relationship is extremely limited in Massachusetts, and there is, the court concluded, simply no duty to control a patient who might be impaired by medication.

Going further, the court also concluded that the incident was outside the foreseeable risk of harm associated with the colonoscopy procedure. The court also rejected the application of the rescue doctrine, deciding that the risk would not reasonably be anticipated to arise from the rescue.

Importantly, the court did not disturb its earlier ruling in the case of Coombes v. Florio, 450 Mass. 543 (2006). In that case, the court held that a doctor may be liable for injuries caused to a third person if it is determined that the physician negligently failed to warn the patient of the effects of treatment. The court distinguished Coombes because no failure to warn was alleged in the case against the Brockton Hospital.

The name of the case is Leavitt v. Brockton Hospital, Inc., SJC-10296 (2009). 

The Massachusetts Appeals Court recently reviewed a case in which the defendant homeowner, Johnson, hired a contractor to remove several trees from her land. The contractor subsequently hired a subcontractor/crane operator, West, to help with the project. The crane was damaged during the work, and the crane operator sued the homeowner. The jury found in his favor. His case was before the Appeals Court to determine whether the homeowner was liable for his damages.

Johnson had several conversations with the general contractor about the exact location of her septic system, which was important for him to know in order to safely remove the trees. The contractor apparently conveyed information about the septic system to his subcontractor, the crane operator. The day the crane arrived, Johnson noticed that it was set up in the location of the septic system. Though she was a surprised, she did not interfere with his work.

Soon after, the crane's outrigger pierced the septic system and the crane tipped over, causing damage to the crane and to the house. The crane operator sued Johnson, cliaming that she had a duty to warn him about the septic system.

The Appeals Court determined there was no duty. Even though Johnson may have been suspicious of the crane's placement, she did not have a further duty to give warnings. She retained no control over the work in general, and crane operator's work in particular. Her only duty to the general contractor was to give accurate information about the septic system, which she did. It was the responsibility of the original contractor to oversee the actions of the crane operator.

Accordingly, the crane operator's case was dismissed. The case is West v. Johnson, Mass. App. Ct. No. 08-P-130 (2009). 

As a homeowner, how can I protect myself from these types of lawsuits?

An important consideration in determining liability is control: the less control you have over a situation, the less likely it is that you will be liable for damages. One of the many benefits of hiring a general contractor to help with a residential construction project is the shift of liability from you to the contractor. If a contractor agrees to oversee all aspects of subcontractor performance, the homeowner will likely have no direct contractual agreements with the subcontractors and, therefore, retain no control over their work.

Before hiring a contractor, be proactive. Ensure that they are registered with the state, and are carrying adequate insurance. Review the details of your contract, don't be afraid to ask questions, and ask for proof of his/her registration and insurance certificates. Browse the additional links below for more tips on how to choose a contractor. 

Additional links:

• Homeowners FAQ's - The Massachusetts Executive Office of Public Safety and Security
• Choosing a Professional Contractor - The Eastern Massachusetts Chapter of the National Association of the Remodeling Industry

 

Continue reading "Massachusetts Homeowner Found to be Not Liable for Subcontractor's Damages" »

Massachusetts drivers now have another law to obey: Drivers need to slow down and move over when approaching stationary police, emergency response, and construction vehicles that have their lights flashing. The penalty: $100, and your insurance rates will probably also go up.

This well intentioned bill was enacted to prevent injuries caused by car accidents. First responders to accident scenes and work crews have suffered serious injuries as the result of negligent drivers who fail to slow and move over, and the legislation is designed to make their work safer.

But can you legislate this kind of safety? The bill itself is quite vague. A driver is required to change lanes "if practicable." A driver is required to reduce his or her speed to a "reasonable and safe speed for road conditions." How will that be judged?  And will emergency vehicles leave the scene to chase down violators of this new law?

Saving lives and preventing injuries are, of course, important goals. But real safety comes from a broader awareness of our duty to ensure the safety of emergency and construction personnel, and that awareness begins with proper driving training. It also begins with simple common sense and courtesy.

 

 

 

Continue reading "Massachusetts Car and Truck Drivers: Slow Down and Move Over to Prevent Accidents--It's the Law!" »

When your kids take to the field for a game of soccer, you expect the field and the equipment to be safe, and if not, then you should expect to be able to bring claims on behalf of your injured child. But in Massachusetts, personal injury caused by a falling soccer goal on a field maintained by a youth soccer association does not result in any liability at all.

The facts are straightforward: The plaintiff was 12 years old, playing in a program run by Sudbury Youth Soccer Association, Inc. on a field owned by the association. The goal posts were not properly anchored, and there was no warning that the posts could tip over. The goal did tip over, causing serious injury to the plaintiff. Claims were brought on his behalf.

The soccer association denied liability, claiming the immunity that is provided by Massachusetts General Laws c. 231, Sec. 85V. That statute protects nonprofit sports programs from liability caused by neglience in the conduct of the programs. Liability is limited under the statute to injuries arising from the failure to maintian the real estate. The soccer goals were found by the court to not be part of the real estate owned by the association.

The statute governing the case is just one of many protections in place for volunteer, non-profit associations, and others. Some may argue that programs would be limited if liability were not lmited. The unfortunate victims are often innocent children who have suffered serious injuries.  

The case is Welch v. Sudbury Youth Soccer Association, Inc., 453 Mass. 352 (2009).

The U.S. Supreme Court's decision in Wyeth v. Levine on March 4, 2009, represents a resounding triumph for all Americans who take prescription drugs. In short, the Court found by a 6-3 margin that the federal regulations of the Food and Drug Administration (FDA) do not prevent a consumer from bringing a state court product liability claim against a pharmaceutical company that negligently manufactures, distributes or labels a prescription drug. The case preserves the rights of Massachusetts consumers to obtain compensation for personal injuries resulting from defective drug products.

Details of the Case

Diane Levine brought suit against Wyeth Pharmaceuticals after being forced to amputate her right forearm nearly nine years ago. A professional musician, Deborah had suffered from persistent migraine headaches and visited a local clinic for treatment. She was prescribed Phenergan, an antihistamine used to treat nausea. A physician assistant administered the drug by "IV-push," which caused the drug to come into contact with arterial blood. As a result, she developed gangrene, leaving her no choice but to amputate half of her right arm.

Levine sued Wyeth Pharmaceuticals, claiming that Wyeth failed to adequately warn medical professionals and consumers of the risks of IV administration. At trial, evidence indicated that since the approval of the drug in 1955, more than 20 other patients had suffered from similar amputations. A Vermont jury concluded that Phenergan was a defective product, and awarded Levine $6.7 million to compensate for her devastating injury.

Wyeth appealed the verdict, and argued that because the drug's label had been approved by the FDA - a federal agency - a consumer such as Deborah could not sue the company in state court. The Supreme Court rejected Wyeth's argument, and ruled that a drug manufacturer ultimately "bears responsibility for the content of its label at all times." The FDA's purpose is to regulate, not to compensate consumers for injuries caused by drugs. "State law remedies further consumer protection," Justice Stevens wrote, "by motivating manufacturers to produce safe and effective drugs and to give adequate warnings."

What does this mean for Massachusetts consumers?

The Wyeth decision will make it much harder for drug manufacturers to hide behind a shield of compliance with federal regulations. FDA approval will not provide immunity for a drug company with a defective product. If you are injured by a negligently produced prescription drug, your right to bring a product liability action in state court against the drug company is preserved, and drug companies cannot hide behind a wall of federal preemption.

Another important effect of the decision is that pharmaceutical companies will likely pay closer attention to their labels and instructions, therefore improving consumer protection and safety in the prescription drug marketplace.

More Information

To read the entire decision, click here: Wyeth v. Levine

Continue reading "Landmark U.S. Supreme Court Case Marks Victory for Massachusetts Consumers; Affirms Accountability for Drug Companies" »

On January 7, 2003, 16-year-old Trista Zinck was struck and killed by an underage drunk driver, William White, as she walked with her boyfriend, Neil Bornstein, along Ferry Road in Newburyport. Bornstein survived, but was seriously injured. Before the accident, White had been drinking at his friend Brendan Kneram's house, whose parents were away. Earlier that day, White, Kneram and their two friends pooled some money, and Kneram used his fake New Jersey driver's license to purchase a 30-pack of beer at The Gateway Country Store in Seabrook, NH.

Since the accident occurred in Massachusetts, Zinck and Bornstein's families brought actions for negligence in the Massachusetts Superior Court against both the driver and Gateway Country Store, alleging that the store negligently sold beer to an underage buyer, a transaction that was the proximate cause of the accident that killed Zinck and injured Bornstein. In 2004, an Essex County jury decided that the liquor store was partially responsible for the wrongful death and injuries, and awarded the families nearly $9 million in damages, which the defendants promptly appealed.

On appeal, Gateway admitted that it sold the beer to the underage Brendan Kneram, but argued that because it was William White who became intoxicated and caused the accident, the store should not be held liable. In Massachusetts, to be liable for negligent conduct, the plaintiffs had to prove two primary elements:

• First, they had to prove that the defendants owed a duty of care, and that they breached that duty. Businesses that sell alcohol owe a duty of care to the public, by law. In this case, the jury found that Gateway breached this duty by selling alcohol to someone whom the store clerk reasonably should have known was under 21.
• Second, the plaintiffs had to prove that there was a causal link between the breach (the sale of the alcohol) and the harm (the car accident). Gateway argued that its liability ended once Kneram served the beer to his friends, but the jury did not agree.

In its opinion, the Massachusetts Appeals Court reiterated the test of causation, which the trial judge had instructed the jury to apply: If an intervening act (Kneram giving the beer to his friends) was foreseeable by the defendant, then the original negligent act (the sale of the beer) remains a proximate cause of the harm (the car accident).

Another important part of this test is that the plaintiff does not need to prove that the defendant could have foreseen the exact harm that occurred, but only the injuries that could have occurred in "substantially the manner" in which they did. In this case, plaintiffs had to show the jury that the liquor store clerk could have reasonably foreseen that selling 30 cans of beer to an underage man with an out-of-state license, on a snowy, January evening, with a car full of other underage teenagers waiting in the parking lot, is an action that could potentially cause a fatal drunk driving accident.

Here are two more general, important points to keep in mind about causation and the role of the jury in these types of cases:

This is a civil case, not a criminal case, so the burden of proof is much lower than "beyond a reasonable doubt." A jury only needs to find "more likely than not" that the defendant was negligent. The two elements of negligence (breach and causation) are questions of fact for the jury to sort out after evaluating the defendants' and plaintiffs' versions of the events.

It should be noted that under Massachusetts law, the driver and the liquor store were found jointly liable, meaning both are responsible for the full amount of the damages. The plaintiffs will be able to recover the balance of the damages from the liquor store since the insurance on the driver will be inadequate to cover the damages.

The name of the case above is Zinck vs. Gateway Country Store, Inc., 72 Mass. App. Ct. 571 (2009).

Continue reading "Massachusetts Court Affirms $3.4M Verdict in Negligence Case Against Liquor Store--Drunk Driver Caused Wrongful Death" »

Good news for Massachusetts bicycle riders! Legislative changes have finally come which help protect bicyclists, and which place greater requirements on drivers of cars and trucks to prevent injuries to bicycle riders.

Bicycle riders are at risk when riding on the road for a number of reasons. First, motorists are often not looking for bicycles when driving; they are looking for larger vehicles, such as other cars or trucks, and they often simply fail to see bicycles (and the same is true, or course, for motorcycles). The risk is magnfied because cyclists are largely unprotected from serious injury if there is a crash.

The new law targets the most common types of accidents, and places new, explicit requirements on drivers to prevent these accidents. These are some of the most common accidents:

• Drivers try to pass a bicycle when there is not enough room
• Drivers cut back into the lane where the bicycle is operating, cutting off the cyclist
• Drivers overtake cyclists, then turn right, right in front of them, cutting them off
• Drivers fail to recognize that bicycles are traveling to the right of traffic--which is perfectly legal--and turn left in front of them, failing to yield the right of way
• Drivers fail to recognize the cyclists passing them on the right, and move to the right or turn to the right without checking blind spots or mirrors
• Drivers and passengers fail to recognize approaching bicycle riders, and open their doors directly in the path of the bicyclist

The new laws, which are part of Chapter 525 of the Acts of 2008 (click for full text of enacted statute), prohibit all of these acts, and create fines for drivers who fail to follow the law.

Hopefully the new legislation will help reduce the incidence of serious injury and wrongful death caused by collisions between bicycles and motor vehicles.

For more information on the legislative changes, please see our article, Good News for Bicyclists in Massachusetts: Important Changes in Massachusetts Statutes Favor Cyclists--Drivers Must Use Greater Care. 

More Information

What the New Bicycle Law Means for You:  A Practicle Guide.  MassBike 

Continue reading "Massachusetts Changes Laws to Increase Bicycle Safety, Reduce Bicycle Accidents" »

In a case decided late last year, the First Circuit Court of Appeals determined that a Massachusetts company would be permitted to bring a second lawsuit against its insurance company seeking damages for unfair and deceptive practices, a violation of G.L. c. 93A, Sec. 11. In the case, Andrew Robinson International, Inc. v. Hartford Fire Insurance Company, 547 F.3d 48 (2008), the court determined that the earlier declaratory judgment action in a state court action was not a bar to the second action, which sought monetary damages against the insurance company.

The first case between the parties was a delcaratory judgment action. The plaintiff sought a determination that the insurance company was required to pay for the damages suffered when the business premises were contaminated with lead-laden dust from a remodeling project in a neighboring office. The insurance company argued the claim was barred by a pollution exclusion clause. The state court disagreed, and entered judgment for the plaintiffs. The insurer paid.

The second action sought damages for unfair and deceptive acts in violation of c. 93A, frequently referred to as a bad faith insurance claim. Hartford removed the case to Federal court (diversity jurisdiction) and then moved to dismiss the case, arguing it was improper to allow the plaintiffs to bring a second suit. Hartford argued that the claim was barred under principles of res judicata, and that plaintiffs could not split their claims.

The Appeals Court found no Massachusetts case directly on point, so did its best to determine what Massachusetts would likely do. It found that the action was not barred, carving out a special exception for declaratory judgments. Ordinarily, however, when claims arise from the same transaction and occurrence, a plaintiff is wise to bring all claims in a single action; the exception saved the day for these plaintiffs.

Read More on this case: First Circuit Court of Appeals Allows c. 93A Case to Proceed Against Insurance Company; Previous State Suit Did Not Bar Claim 

This week, the Massachusetts Appeals Court continued its trend of expanding insurance coverage for victims injured in hit-and-run car accidents when it granted a trial to an 18-year-old woman who suffered injuries in a car accident as a passenger in a taxi cab.

In this case, the plaintiff suffered neck injuries when the taxi cab in which she was riding rear-ended another car. Although the drivers spoke to each other to assess the damage to their vehicles, neither driver called the police or exchanged information. The plaintiff, who did not think she was hurt, took down no information. In addition a police report was never filed.

After unsuccessfully trying to track down the identity of the cab driver after the accident, the plaintiff's attorney filed a claim for uninsured motorist benefits under her mother's insurance policy to cover the cost of her injuries. The policy provided coverage for accidents involving "uninsured or hit-and-run autos."

The trial court dismissed the case on summary judgment, ruling that the insurance company was not liable. However, the Massachusetts Appeals Court said, "Not so fast," and explored the question of whether or not the taxi cab in which the plaintiff was riding could be considered a hit-and-run vehicle.

In short, the answer is yes: the taxi cab could be considered a hit-and-run vehicle. The courts have broadly interpreted the phrase "hit-and-run" in order to protect victims like this passenger. In previous cases, the Supreme Judicial Court has found that uninsured motorist claims were viable in other, similar scenarios:

• A driver is forced off the road and into a guardrail by an oncoming vehicle, despite the fact the two cars never made contact with each other; and

• A passenger in a car that is rear-ended realizes that he is injured, hours after the two uninjured drivers had gone their separate ways after concluding that there was no property damage or injuries.

In summary, the court held, "a passenger in an at-fault vehicle who is injured in an accident and who, unaware of her injuries... leaves the vehicle without obtaining identifying information about the vehicle is entitled to recover under the hit-and-run provisions of the policy."

Importantly, however, the court noted that if a passenger realizes immediately after a car accident that he/she has been injured, the passenger is under an obligation to obtain identifying information from the driver(s), as long as his/her injuries are not so grave as to prevent an exchange of information.

The court also rejected the insurance company's claim that it was prejudiced by late notice. The court said this was a factual determination to be made at trial.

The name of this case is Pilgrim Insurance Co. v. Molard. Other key cases in this area of insurance law include Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171 (1981) and Commerce Ins. Co. v. Mendonca, 57 Mass.App.Ct. 522 (2003), which each address the bulleted scenarios above.

Uninsured motorist insurance is statutorily required in the state of Massachusetts in order to provide financial protection to those injured by other negligent drivers.

Important Consumer Tips 

• If you are in a car accident and are wondering what to do, it is usually best to err on the side of caution, and obtain identifying information from the other drivers. For more tips about what to do if you are in an accident, visit the Mass. Registry of Motor Vehicles' Driver's Manual page.
• Always notify your insurance company promptly if you are in an accident, even if you are a passenger is somebody else's car.
• Make sure you have enough car insurance to protect yourself if you are injured. You should have enough uninsured and underinsured coverage on your cars to protect yourself from injuries caused by other drivers. Please see our car accident insurance information for Massachusetts drivers.
  

If you were injured as a passenger in a car accident, or are the victim of a hit-and-run accident, call the Massachusetts injury attorneys at Breakstone, White & Gluck at 800-379-1244 for a free consultation.