Articles Posted in Premises Liability

After a Massachusetts restaurant's food poisoning outbreak, friends eat a meal which has been safely prepared.

A food poisoning outbreak has closed a Massachusetts restaurant in the middle of the summer season, raising concerns for diners.

A North Reading restaurant has been closed indefinitely after 39 diners filed complaints related to a salmonella outbreak. The source may be the antipasto salad, but the local board of health is still investigating.

The North Reading Board of Health shutdown Kitty’s Restaurant on Main Street on July 3. The board investigated the food poisoning, which may have initially occurred on June 23. After a thorough cleaning, the restaurant was allowed to re-open – though not for long. The restaurant has been closed again following a new report, this time from a June 25th visit.

swimming poolYour swimming pool is your backyard oasis, a fun and refreshing place to beat the heat. To keep children and others safe this summer, we urge Massachusetts property owners to secure and properly maintain pools at all times. Take these steps now to help prevent injuries and drownings:

Secure your pool. In Massachusetts, pool owners are required to have fencing which stands at least 48 inches tall. Openings in the fence must be less than 4 inches in diameter. All doors to pool areas must have self-latching and self-closing devices. Homes with doors which open into the pool area must use pool alarms.

Walk around your pool fence now to look for areas which have been damaged. Make repairs right away.

escalatorCommuting is a major stress in the Boston area. Having to ride the MBTA should ease the burden. But it often just adds anxiety, especially for commuters at the Route 128/University Station in Westwood.

Two news stories have put the spotlight back on the long-running equipment and system problems at the Westwood station, including out-of-service elevators and escalators. Offering both MBTA and Amtrak train service, the Westwood station serves half a million commuters each year. When systems are running on time, you can take the MBTA into Boston in less than a half hour. The MBTA also offers service to Providence or Amtrak provides travel beyond Rhode Island.

With over 2,500 spaces, the Westwood station is also one of the rare MBTA stops where you can still find a parking space. The problem is walking through the station.

Black dog bites at a woman in Massachusetts

Massachusetts lawmakers are considering a bill to prevent insurance companies from discriminating against homeowners who own certain dog breeds.

Massachusetts lawmakers are considering a bill to prevent insurance companies from discriminating against homeowners based on their dog’s breed.

Rep. Jack M. Lewis (D-Framingham) is the sponsor of H.554, which would ensure dog owners can buy insurance to provide compensation to anyone injured by their pet.

College student and moving box

Many college students heading to Boston will be living in off-campus housing. The attorneys of Breakstone, White & Gluck share safety tips and resources.

College students are just days away from starting the Fall semester. In Boston and Cambridge, we urge students to make time for an extra lesson on safe housing. Make sure you understand your rights as a tenant and your landlord’s responsibility to maintain a safe property.

Boston and Cambridge have more than 40 colleges and universities. Because of a shortage in dorm space, many students end up in off-campus housing. Unfortunately, some find themselves dealing with unresponsive landlords who want to collect rent, without doing the work to maintain a property. If you are in this situation, it is important to remember that if a landlord is charging you rent, you have the right to a safe and sanitary apartment.

When a landlord is unresponsive and negligent, it can lead to many problems. It can result in sanitary issues, such as mold, rodents or a bug infestations. It can also lead to broken equipment (for instance, a broken smoke alarm, which needs to be addressed right away).

Porch collapses and fires are two of the most common and serious types of premises liability accidents. As a result of landlord negligence, over the past 10 years, five college students have died in off-campus fires in Massachusetts, according to the state’s website.

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Attorney David W. White is interviewed by NBC Boston on the Dorchester building fire

Attorney David W. White is interviewed by NBC Boston on the next steps ahead for buyers after the Dorchester building fire tragedy.

(June 29, 2017) Attorney David W. White was interviewed by NBC Boston on the potential legal options ahead for buyers of condos destroyed by a massive blaze in Dorchester. The fire went up on Wednesday, just a day before a fire inspection was reportedly scheduled.

The six-story Treadmark building had 83 units, including 32 for home ownership and 51 for affordable rentals. It was located in the Ashmont section of Boston’s Dorchester neighborhood.

Man flying a droneMore than a million drones were sold this holiday season. If one happened to land in your pile of presents, remember that taking to your neighborhood skies comes with responsibilities. We offer a few reminders about insurance and protecting yourself from financial liability if there is injury or property damage. As a drone operator, you want to make sure that you will be able to pay for damages or personal injury that was caused by your negligence.

Homeowners and Renters Insurance. Start by reviewing your homeowners and renters insurance policies. Then speak to your insurance agent to learn if drone-related accidents are covered.

According to the Insurance Information Institute, drones are most likely covered under these policies. The liability portion of your homeowners insurance may cover you in lawsuits for bodily injury or property damage. Your policy may also provide no-fault medical coverage if someone is accidentally injured by your drone. But there are limits; medical bills for you and family members may not be covered by no-fault medical coverage.

Another reason to have insurance for your drone: If your drone causes bodily injury or property damage, and a claim is brought against you, proper insurance will not only cover the damages; the insurance company will also provide a lawyer to defend the claim against you.

Check with your insurance agent. The insurance industry is actively discussing this topic. Already, some insurers may exclude drone-related accidents from homeowners insurance policies. Others may choose to do so in the future.

Car Insurance. Your auto insurance policy may cover property damage resulting from crash landings or related accidents. Ask your auto insurance agent.

Commercial Users. If you operate a drone for business (even for a part-time business), you should ask your agent if you are covered. This would not typically be covered under your homeowners insurance policy.

Safety Reminders. Never use your drone recklessly and always follow current safety regulations. Drone owners are required to register drones with the FAA and fly at or below 400 feet. Failure to do so could result in a fine. To learn more, watch this safety video from the FAA.

Theft. Consider theft insurance if it make sense. Some drones are small and can be easily stolen. But remember many homeowners have to pay a deductible if they file a claim. If you own an inexpensive drone it will likely be less than your deductible. Maybe it was time to upgrade to the fancier drone anyway.

Memberships. If you do not have adequate coverage, consider your options. You may be able to buy more insurance coverage from your carrier or research other insurance carriers. You may also qualify for coverage if you belong to a membership organization or club. The New York Times reported the Academy of Model Aeronautics offers group liability coverage as part of its $75 per year membership. This may pay for damages after your homeowners insurance policy is exhausted.

Time to Get Started
If you are a drone owner, we hope you take the time to check with your insurance agent so you understand your potential liability. Drone crashes can happen on your property or a neighbor’s property and you want to be prepared.

Here are two resources:

“Getting a Drone as a Gift? Check Your Insurance,” New York Times.

“Going Drone for the Holidays? Make Insurance Part of Your Pre-Flight Check,” Insurance Information Institute.

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Attorney Marc L. Breakstone was quoted in a front-page Massachusetts Lawyers Weekly article about common law liability for injuries caused by sidewalk defects. The current common-law standard dates back centuries and prohibits many plaintiffs from recovering compensation for injuries. But a recent Appeals Court ruling may have finally set the stage for change.

Attorney Breakstone welcomes the idea. “I think that the common law is a living body of principles that has to evolve as social conditions and the realities of life evolve,” he said.

20161128_sidewalkdefectEarlier this month, the Appeals Court ruled in the case of Halbach, et al. v. Normandy Real Estate Partners, et al., concurring that a Superior Court judge had correctly granted summary judgment to the defendant, 100 & 200 Clarendon LLC, which operated, leased and maintained the John Hancock Tower and a neighboring garage in Boston.

reza-breakstone-web.jpgBy Reza Breakstone

In an important victory for an injured mother, the Appeals Court permitted a plaintiff’s negligence claim to survive a motion for summary judgment, overturning a Superior Court judge’s holding that the recreational use statute barred recovery.

Background
On January 14, 2016, the Appeals Court in Amaral v. Seekonk Grand Prix Corp., No. 13-P-1848, slip op. (Mass. App. Ct. Jan. 14, 2016) overturned the decision of a Superior Court judge which immunized a business from liability for personal injuries under the recreational use statute, M.G.L. c. 21, § 17C(a): “Public use of land for recreational, conservation, scientific educational and other purposes; landowner’s liability limited; exception.”

The question on appeal arose when summary judgment was granted to the defendant, Seekonk Grand Prix Corp., a go-cart, mini-golf, bumper car, and arcade business, which was sued by a mother who was injured on their premises.

The defendant argued to the Superior Court judge that the mother was watching her two sons drive go-carts, which constituted a recreational activity, when she was injured on the premises. Specifically, a little girl drove through a fence and struck the plaintiff causing a number of injuries including a pulmonary embolism that resulted from a blood clot in her leg. The defendant noted that the mother did not pay a fee to be on the premises to watch her children drive go-carts and was thus barred from recovery under the recreational use statute.

The Superior Court judge, citing case law indicating that the statute provided immunity from liability when a landowner did not impose a charge or fee for an injured plaintiff’s recreational use of the land, agreed, and granted the defendant summary judgment. See Seich v. Canton, 462 Mass. 84, 85-86 (1997) (holding municipality’s fee to defray expenses for participation in a basketball league did not constitute fee for public use of town land; thus, parent who was injured in a slip and fall while attending daughter’s basketball game was barred from action against town); Whooley v. Commonwealth, 57 Mass. App. Ct. 909, 910 (1997) (barring plaintiff from recovery for slip and fall at hockey rink under recreational use statute because she had free use of the rink for the recreational purpose of spectating her grandson’s hockey game and she failed to show evidence that grandson’s hockey team in fact paid for its use of the rink).


Recreational Use Statute

The Massachusetts recreational use statute provides that those who make their land available to the public for “recreational . . . purposes without imposing a charge or fee therefor, . . . shall not be liable for personal injuries. . . sustained by such members of the public . . . in the absence of wilful, wanton, or reckless conduct by [the landowner].” M.G.L. c. 21, § 17C(a).

On the other hand, § 17C(b) states that “[t]he liability of any person who imposes a charge or fee for the use of his land by the public for the purposes described in subsection (a) shall not be limited by any provision of this section. For the purposes of this section, ‘person’ . . . shall include, without limitation, . . . [a] corporation, company or other business organization . . . .”

No Definitive Definition of Recreational Use
The Appeals Court in Amaral noted that the term “recreation” was not defined by statute, nor had it ever been defined by the Supreme Judicial Court. Dicta in Catanzarite v. Springfield, 32 Mass. App. Ct. 967, 967 (1992) construed the term “recreation” to include “passive pursuits, such as watching baseball,” but the Supreme Judicial Court “prefaced this remark by stating that it had ‘never defined the term.'” At least one other Appeals Court case cited the dicta in Catanzarite but “in a manner that leaves in some doubt its own views of the principle.” Nantasket Beachfront Condos. LLC v. Hull Redev. Authy., 87 Mass. App. Ct. 455, 465 n.13 (2015).

Appeals Court Decision: Mother’s Use Was Neither Recreational Nor Free
On appeal, the Appeals Court noted that the plaintiff’s presence on the property was not for a recreational purpose: she was a parent who accompanied minor children, purchased tickets for their use of go-carts, and remained to supervise them. In essence, the plaintiff was using the facility for the recreation of her children, and she paid for that use by purchasing tickets.

The court reasoned that application of the recreational use statute’s immunity provision would undermine the very purpose of the statute: “to encourage landowners to permit broad public free use of land for recreational purposes by limiting their obligations to lawful visitors under the common law.” Furthermore, the court noted that the mother purchased the tickets for use of the go-carts, tickets which she could have conceivably used herself.

Because the plaintiff was charged a fee for her particular use of the land, her use was not free. Nor was her activity–monitoring her minor children while they drove go-carts–recreational in nature. Therefore, summary judgment was not appropriate. The judgment of the Superior Court was vacated and the case remanded for further proceedings consistent with the Appeals Court’s decision.

Conclusion
Individuals should be mindful that their use of land designed for public recreational use, free of charge, comes with the caveat that the landowner may not be responsible for any personal injury absent wanton, willful, or reckless conduct. Always proceed with caution when engaging in pickup sports games, or recreational activities that could lead to personal injuries. If you or someone you know has been injured, do not hesitate to contact the attorneys at Breakstone, White & Gluck, PC of Boston for a free consultation.

About Reza Breakstone
Reza Breakstone joined Breakstone, White & Gluck as an associate in 2015.  Reza has earned a reputation as a tough and tenacious litigator helping both individuals who have been personally injured and burgeoning companies who have had insurance and contract disputes. After law school, Reza joined the Boston office of Mintz Levin, where his practice encompassed complex business litigation, federal antitrust defense, and securities litigation.

While at Mintz Levin, Reza received a fellowship to serve as an Assistant District Attorney with the Suffolk County District Attorney’s Office, working out of the West Roxbury Division of the Boston Municipal Court. In this year-long fellowship position, he prosecuted a wide range of criminal offenses and gained valuable in-court and trial experience having tried seventeen cases before a judge or jury, and securing convictions in a majority of his trials before a jury. Read his bio.

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Chipotle_Restaurant.jpgThe Chipotle Mexican Grill in Cleveland Circle in Brighton remains closed after a norovirus outbreak, which has reportedly sickened more than 120 Boston College students.

Most of us eat at restaurants and trust they are safe. But there are hidden risks for food-borne illnesses and food poisoning, such as unsafe handling of food, not keeping the premises clean, and allowing sick employees to work. While some illnesses pass in a day or two, others are more serious and results in visits to the ER, hospitalization and even death.

If you suspect food poisoning, it is important to visit a doctor and depending on the length and severity of your symptoms, consult an attorney about your legal rights.

The Chipotle Boston Case

Chipotle restaurants in the northwest and Maryland have recently been linked to 52 cases of E. Coli food poisoning. But the City of Boston’s initial testing showed the presence of norovirus at the Chipotle in Brighton.

The Brighton restaurant closed Monday after Boston College reported 30 students, including members of the men’s basketball team, became sick after eating there. A college spokesman has since raised the number to more than 120 students. City inspectors have cited Chipotle with three violations, including allowing a sick employee to work a few days prior to the outbreak and cooking chicken and steak below the required temperature of 140 degrees.

Norovirus causes acute gastroenteritis, the inflammation of the stomach or intestines or both. Symptoms include stomach pain and cramping, diarrhea, vomiting and headaches. E. Coli can have similar symptoms, but norovirus is a viral infection and cannot be treated with antibiotics. Doctors often encourage those who are infected to drink plenty of fluids as they recover to prevent dehydration. Norovirus is not typically fatal.

Boston College has tested its students for both E. Coli and norovirus, but test results have not been released publicly.

What to Know About Food Poisoning, Medical Care and Your Legal Rights

Food poisoning is more common than many realize. Each year, 48 million (or 1 in 6) Americans suffer some form of food poisoning, according to the Centers for Disease Control and Prevention (CDC). While some cases make the news, many do not, even though 128,000 people are hospitalized and 3,000 die each year from foodborne illness.

How Common is Norovirus?
Each year, 19 to 21 million people in the U.S. suffer norovirus, according to the CDC. Doctors treat nearly 2 million people as outpatients and another 400,000 people have to seek care from hospital emergency rooms.

How Long Will Norovirus Symptoms Last?
Symptoms often appear after one or two days and individuals may be sick for two to four days.

Where is Norovirus a Risk?
You can contract norovirus by contact with an infected person, touching infected surfaces or when an infected person handles food. It is airborne and can stick to surfaces. Because of this, norovirus can spread quickly in places where large numbers of people gather and pass through, such as restaurants, schools and daycare centers.

Last spring, more than 200 people contracted norovirus on two Royal Caribbean cruise ships.

Can I Sue for Food Poisoning and Norovirus?
As with any injury caused by someone else’s negligence, you may be able to file a lawsuit if you suffered food poisoning. But you should consult an experienced personal injury attorney to advise you on the law and your specific circumstances.
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