Massachusetts Injury Lawyer Blog

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.

This week, the U.S. Product Safety Commission (CPSC) and the Window Covering Safety Council (WCSC) announced the recall of millions of Roman shades and roll-up blinds due to the risk of strangulation to young children from the defective products. Massachusetts consumers are urged to take immediate measures to eliminate the risks to young children.

Since 2006, the CPSC has received reports of 5 wrongful deaths and 16 near strangulations involving Roman shades and 3 wrongful deaths since 2001 in roll-up blinds. In the case of Roman shades, children may place their necks between the exposed cord and the fabric on the back of the shade, or they may pull the cord out and wrap it around the neck. With the roll-up blinds, children may become entangled in the lifting loop on the side of the blind.

These defective products have been sold at a wide variety of retailers in Massachusetts, from Wal-Mart to Pottery Barn to ACE Hardware, to name but a few. If you have either type in your home, please contact the WCSC at its website or at (800) 506-4636 to receive a free repair kit.

The CPSC and the WCSC has also provided safety tips that apply to all window coverings, not just those involved in the recall. These include inspection of all shades and blinds in the home to make sure there are no loose or accessible cords (in fact, cordless window coverings are recommended where children live or visit), keeping cribs, beds, and furniture away from windows, and installing tension devices on looped chains or cords to keep them taut. Complete information is available at the CPSC website.

Continue reading "Strangulations Trigger Massive Recall of Blinds and Shades--Massachusetts Consumers Urged to Eliminate Hazards" »

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 Department of Public Health has released its first annual report of Serious Reportable Events at Massachusetts acute care hospitals. The report reveals that there were over 300 serious events resulting in personal injury and at least 19 deaths, including serious surgical errors, falls, and medication errors. The report reflects some aspects of the causes of medical malpractice cases in Massachusetts.

Guidelines for reporting serious events were adopted by the Massachusetts Department of Public Health and implemented in 2008. Under the guidlines, Massachusetts hospitals are required to report six general categories of events, including:

• Surgical errors
• Care management problems (medications errors, pressure ulcers)
• Product or device-related complications
• Patient protection problems (suicide protection)
• Environmental problems, including slips and falls
• Criminal events

Slip and fall injuries, particularly among the elderly, constituted the most frequent problem at hospitals, with over 230 events statewide. These accidents occurred when patients were dizzy from medication, had vision problems, were not protected from falling from their beds, or did not have needed assistance.

Surgical problems continue to occur at shocking rates. The report includes 32 instances of objects being left in surgical patients, 24 wrong site surgeries (for example, wrong leg operated on), 5 wrong procedure injuries, and 1 wrong patient injury.

There were a dozen serious medication errors and a dozen pressure sore problems reported as well.

There can be little doubt that this report reflects only a portion of the serious medical events that should be reported. We say that for a couple of reasons. First, this was the first year of reporting, and hospital administrators are still learning what needs to be reported. Some hospitals have no doubt been more transparent and vigilant in their reporting and their efforts to reduce error. (Beth Israel Hospital under Dr. Paul Levy is the leader in this respect.) It is unlikely that the bed sores have been accurately reported, given the low number (12) versus the enormous patient population.

Transparency and accident reporting are two keys to improving patient safety at hospitals. Reduction in medical malpractice from surgical errors can be achieved with more time spent among the surgical staff double-checking to ensure the correct patient, the correct procedure, and the correct site of the surgery. We have previously discussed how surgical safety checklists reduce the rate of medical malpractice, including the rate of serious injuries and wrongful death.

Continue reading "Medical Errors Reported for Massachusetts Hospitals--Causes of Serious Injuries and Deaths Identified" »

Information uncovered by news teams investigating the fatal gas explosion in Somerset, Massachusetts on February 19, 2009, indicates that damage to a gas main, perhaps from construction activity, may have been a cause of the terrible accident.

Residents in the vicinity of the explosion had reported the smell of gas, and the New England Gas Company was in the area investigating, knocking on doors in the neighborhood. However, within twenty minutes of the arrival of gas company crews, the home of 62-year old Rose Marie Rebello exploded, then erupted in flames. Ms. Rebello and her dog both died, and a firefighter and a utility worker were injured. Homes in the area suffered damage, and hundreds of residents were forced to evacuate. Six homes were rendered uninhabitable, and dozens of others were damaged.

Investigators discovered that a 200-foot long section of the gas main, which was installed over 40 years ago, was "damaged and breached," possibly by later construction activities. The damage may have been done during the installation of a sewer main and the tie-ins in the neighborhood, though that work was done in the 1970s.

The explosion in February was the third in three months. One man died in Scituate in December, and another man was seriously injured in January in Gloucester.  This is a sharp increase in the accident rate in Massachusetts compared to the previous ten years. Antoher man was killed in a gas explosion in his home in Manchester, NH, on February 24, 2009. Aging infrastructure and the need for greater maintenance are probably significant factors in gas explosions.

 

Continue reading "New Information in Fatal Gas Explosion in Somerset, Massachusetts" »

An 82-year-old woman has died following an escalator accident at the MBTA State Street Station in Boston. According to initial reports, the woman fell on the escalator and her clothing became entangled in the machinery.

The accident is being investigated by the MBTA, the Massachusetts Department of Public Safety, which is in charge of escalator inspections, and the Suffolk County District Attorney's office.

According to news reports, the woman, who was traveling to an eye appointment on the MBTA, was riding the escalator up from the platform. She was near the top of the escalator when she apparently fell, and her clothing became tangled in the escalator machinery. News reports also indicate that she suffered a heart attack, but it is not clear whether that heart attack was before or as a result of the accident.

MBTA escalators have been the cause of accidents and wrongful death in the past. An East Boston man died on an MBTA escalator when his sweatshirt hood got caught in an escalator in Cambridge. A three-year-old boy suffered severe leg injuries on the old Aquarium Blue Line stop's escalator in Boston. Several people were injured in a Back Bay escalator accident when the escalator suddenly stopped, hurling the passengers down the stairs. The Aquarium T escalator, and the escalators at Back Bay have frequent scenes of accidents.

Escalator inspections are conducted by the state each year, and the escalator involved was reportedly also inspected each week and maintained on a monthly basis. The record of this escalator has not yet been made public.

Common Causes of Escalator Accidents

Escalators are large powerful machines, and riders take for granted that they are designed and maintained for safe operation. Some types of escalator accidents are common, however.

• Missing teeth in the comb plates cause entrapment of shoes with severe foot injuries
• Contact with the side of the escalator can cause injuries to feet and legs when body parts get caught. These injuries are most common in children
• Sudden stops caused by machinery failure can pitch riders down the the metal stairs
• Sudden speeding-up or slowing-down can also cause people to fall on escalators
• Entanglement of clothing in gaps in the machinery can involve shoe laces, clothing, backpacks, and even shoes themselves. For example, there has been an increase in accidents reported in children wearing Croc rubber sandals.

Thousands of people are treated each year for escalator injuries and deaths, many of which result of the negligent maintenance of escalators, or the defective design of the machinery itself.

Additional Resources

Woman dies in MBTA escalator accident, Boston.com, February 24, 2009

Escalator Safety, Consumer Product Safety Commission

Crocs Can Pose Danger on Escalators, CBS News

 

Continue reading "Death of 82-Year-Old Woman in MBTA Escalator Accident in Boston Investigated" »

The winter of 2009 has already beaten the law of averages when it comes to total snowfall. But this year has distinguished itself even more as the winter of ice storms. Those storms have left thousands without power, some for weeks on end. And all of that ice has led to spikes in admissions to emergency rooms around Massachusetts for broken ankles, fractured wrists, hip fractures, and back injuries.

So many people wonder, who can be held responsible if you slip and fall on a patch of ice or snow? Believe it or not, in Massachusetts personal injury cases caused by slips and falls on ice or snow are very difficult cases, and often do not lead to liability. 

For one thing, the common law in Massachusetts precludes premises liability for accidents which occur as the result of natural accumulations of ice or snow. This means that if your neighbor fails to shovel or the office downtown leaves some ice after an ice storm, then the landowner is probably not liable. The same is usually true even if the landowner has moved only some of the snow or ice which had naturally accumulated.

The situation changes when snow is moved into piles. Piles which obstruct your passage on sidewalks, walkways, or driveways can be found to be unnatural accumulations. Another uncommon unnatural accumulation is the discharge of water from drain pipes or gutters onto walkways.  Other alterations to property which cause water to form ice in channels or puddles may also lead to liability.

Massachusetts also has strict notice requirements after an accident caused by snow or ice. The landowner must be notified within thirty days, or the landowner may have a legal defense of prejudice due to lack of notice.

Continue reading "Massachusetts Ice Storms Leave Residents Slipping and Sliding" »

The Massachusetts Appeals Court has made it clear in a premises liability case that the "open and obvious" defense does not apply to a person falling into a sunken living room. The Suffolk County case arose from an accident at a residence. The plaintiff did not notice that there was a single step from the hallway into the sunken living room. She fell and broke her hip and required surgery and rehabilitation. She claimed that she did not see the step because the floor in the hall and the floor in the living room were both the same, light-colored tile, and the light from the windows and skylight obscured the step.

It is well known that single steps with no warnings, or with no changes in color from level to level, are a common cause of premises liability accidents. Even a cautious person can easily miss a single, but dangerous, step; you just don't expect a drop from one room to another, and you instinctively rely on visual clues to warn you of dangerous steps.

Back to the case: The defendants argued that the construction of the house, and the condition of the step down to the sunken living room, was open and obvious. They also argued that, as a matter of law, they should receive summary judgment (which means judgment as a matter of law). They were able to persuade the trial judge to grant them summary judgment. But the plaintiffs appealed, and the Appeals Court reversed the trial judge and agreed that the plaintiffs were entitled to receive a jury trial.

The Court visited some familiar principles of premises liability law. Homeowners are required to keep their premises reasonably safe, and they are required to warn of known dangers. They do not have to warn of open and obvious dangers. While the court did not explain in detail its reasoning regarding open and obvious dangers, the general principle that applies is that a homeowner can rely on a visitor exercising care for his own safety when the hazards are blatantly obvious.

Continue reading "Massachusetts Appeals Court Defines Victim Rights in Premises Liability Accident, Fall at Home in Sunken Living Room" »