Law Update
Massachusetts Car and Truck Drivers: Slow Down and Move Over to Prevent Accidents–It’s the Law!
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.
Massachusetts Court: Youth Soccer Association Not Liable for Player Injury
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).
Landmark U.S. Supreme Court Case Marks Victory for Massachusetts Consumers; Affirms Accountability for Drug Companies
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
Massachusetts Court Affirms $3.4M Verdict in Negligence Case Against Liquor Store–Drunk Driver Caused Wrongful Death
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).
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Massachusetts Changes Laws to Increase Bicycle Safety, Reduce Bicycle Accidents
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.
Information
What the New Bicycle Law Means for You: A Practicle Guide. MassBike
Massachusetts Claimant Permitted to Bring Second Suit Against Insurer Alleging G.L. c. 93A Insurance Bad Faith
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: 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
Massachusetts Appeals Court Affirms Duty of General Contractor for Construction Site Safety
In Massachusetts, a general contractor which retains responsibilities for oversight of safety on the job site may be liable for injuries caused by the negligence of a subcontractor, according to a recent decision of the Massachusetts Appeals Court. The court affirmed this long-standing principle, affording protection to workers who suffer construction site accidents.
When a general contractor subcontracts work at a large construction project, frequently more than one level of subcontracts is required. For example, in this particular case a general contractor hired a subcontractor to perform demolition work in a building. The subcontractor hired another subcontractor to remove asbestos. The question before the court was whether the general contractor had responsibility when a worker removing the asbestos (an employee of the “sub-subcontractor”) was injured after falling from a scaffold at a Boston construction site. More specifically, could a general contractor be held liable under the theory of negligent supervision of job site safety?
The good news for all construction workers is that the answer to that question is not affected by how many layers of contracts stand between the worker and the general contractor. As long as a general contractor retains the right to control a subcontractor’s work — a right that includes maintenance of safety measures — then the general contractor is also bound by a legal duty to supervise the subcontractor’s employees and ensure their safety.
For example, in a contract between a general contractor and a subcontractor, it is common that a general contractor is obligated to:
- Perform periodic safety inspections
- Provide a safety manager at the construction site
- Record the daily responsibilities of the general contractor’s superintendent, whose duties will involve enforcement of safety procedures
The bottom line: If a laborer, employed by a subcontractor, is injured on a jobsite, the general contractor may also be liable for those injuries.
The case discussed above is Kostrzewa v. Suffolk Construction Co., Inc. and can be accessed online here.
Every accident case is unique, and the lawyers at Breakstone, White & Gluck, P.C., are experienced in working with top experts and getting the best compensation for victims injured in scaffold accidents, and other types of construction accidents. If you have been injured in a construction accident and wish to speak to a lawyer, please contact us online or at 617-723-7676 (or toll-free at 1-800-379-1244).
Massachusetts Courts Protect the Rights of Passengers Injured in Hit-and-Run Accidents With a Broad Interpretation of Uninsured Motorist Insurance Policies
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.
Massachusetts Court Says Limo Service May Be Liable For Drunk Driving Accident Caused by Passenger
The Massachusetts courts have continued to expand the liability of individuals and companies which contribute to drunk driving accidents. On November 26, 2008, the Massachusetts Supreme Judicial court ruled that limousine driver have a responsibility to prevent their passengers from drinking and driving, and to prevent drunk driving accidents.
In the accident leading to the case, one man was killed and several others were injured in a car accident caused by the drunk driver. The driver, along with several other men, had been drinking at a bachelor party on the night of the crash. The men, expecting to become intoxicated during the party, had hired a limousine service to provide safe transportation. The limo driver picked the men up at a bar in South Boston, where they had been drinking, and drove them to a strip club in Rhode Island, stopping along the way to purchase even more alcohol. The limo driver allowed the men to drink in the limo on the return trip. The limo driver knew the passengers were drunk.
At 2:10 A.M., the limo driver dropped at least one man off at his car near the South Boston bar. The bar was closed. The MBTA was closed. It was plainly foreseeable that the drunk limo passenger would attempt to drive home.
The victims of the drunk driving crash sued the limo service for wrongful death and personal injuries, arguing that its driver knew, or should have known, that his passenger was drunk, was going to drive home, and would likely injure or kill someone. The trial court threw the case out, saying the limo driver had no responsibility. But the Massachusetts Supreme Judicial Court found that the limo driver had the duty or responsibility to use reasonable care to avoid discharging its passenger “who they knew, or should have know, was intoxicated” and likely to drink and drive.
The SJC stated, “[a] private carrier, engaged in the business of transporting persons consuming alcohol, is in a primary position to use care to avoid leaving an intoxicated passenger at a location where it is likely the passenger will drive.” The case will now go to trial.
This case is important because it defines responsibility on private carriers, such as limo drivers, to make sure passengers who have been drinking do not drive home drunk after they are dropped off. Private carriers are required to exercise “reasonable care” to ensure that its passengers are not going to drive home drunk at the end of the night.
In addition to limo drivers and private carries, bars and restaurants also have a legal duty to prevent people from drinking and driving. Bars are prohibited from serving customers who are visibly intoxicated. If a bar serves someone who is visibly intoxicated, and that person drives home and causes a car crash, the bar is legally responsible for injuries caused by the drunk driver. This is known as “dram shop” liability.
Massachusetts Judges Moving Towards Expanded Voir Dire
Good news for trial advocates and their clients: Massachusetts courts are continuing to expand voir dire of prospective jurors. But Massachusetts state courts still lag behind courts in other states when it comes to screening citizens for possible selection on juries in our civil and criminal trials. The vast majority of states outside of the commonwealth permit a process whereby the judge and the attorneys inquire of potential jurors regarding their attitudes and beliefs on issues involved in the case. This process, called voir dire, is an important tool for identifying individuals who may have strong feelings or biases which would prevent them from fairly deciding the issues in the case.
Until recently, most judges in the Massachusetts state courts would simply ask a series of vague and basic questions to the entire prospective jury panel, which, in essence, asks the individuals to evaluate whether or not they can be fair and follow the court’s instructions. The system had one advantage: it was fairly quick. But the basic statutory questions are notorious for failing to eliminate potentially biased jurors.
States such as Rhode Island and New York permit extensive questioning by attorneys in the case directly with the prospective jurors. Voir dire in those states allows the attorneys on both sides to ensure that jurors with potential bias are not seated in the case.
In the last five years, the majority of judges in Massachusetts have begun a modified approach called “individual voir dire.” These judges bring each prospective juror to the side bar where the judge questions them about their beliefs and attitudes related to the issues in the case. Some of these judges allow attorneys to ask questions in follow up. Others allow attorneys to conduct the entire voir dire process. Most judges have found that this process is as efficient and expeditious as the old standard questions approach. In those cases where the process takes a little longer, there is the benefit of having a better jury for the case.
Under the new approach, judges are asking open-ended questions designed to encourage prospective jurors to express their feelings and beliefs. The basic premise of voir dire is that not every citizen is right for every case. For example, the parent of three young girls might not be an appropriate juror for a criminal case involving sexual assault on a minor. Similarly, an individual who feels there are too many frivolous lawsuits, might not be appropriate for a significant personal injury trial.
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