Boston cyclist riding in snow

In Boston, drivers can take extra caution when traveling near a cyclist during winter.

Gone are the days when drivers only had to watch for cyclists during the warm weather in Massachusetts. Cyclists have become a fixture on our roads year-round in Boston, including in January and as the pandemic continues.

As a driver, we urge you to slow down this winter and look for cyclists. Also give cyclists extra room so they can respond to a traffic situation without wiping out or being struck in a bicycle accident.

While most cyclists try to avoid stormy weather, there are times when cyclists still find themselves riding in slippery or snowy situations.  Also remember that days after a snow fall, snow plows can make another pass at roads and parking lots, which can interfere with a cyclist’s path as well as pedestrians, cars and delivery trucks.

If you fail to check for cyclists, you could cause a cyclist a life-threatening injury and be held financial liable by the victim. Do all you can to avoid causing a cycling accident. Take a few minutes to ask a cyclist about the challenges they face on the road, continuously check for cyclists while you drive and always assume there will be cyclists on the road.

This blog shares safety reminders to help Massachusetts drivers travel safely near cyclists this winter.

Massachusetts Bicycle Laws. In Massachusetts, cyclists have rights and responsibilities. One of the first rights concerns where cyclists can ride. Under M.G.L. c. 85, § 11B, cyclists are allowed to ride in a bike lane, on the side of the road or in the main traffic lane. Up to two cyclists can ride abreast in the main traffic lane. Cyclists should travel in the same direction as traffic.

When you see a cyclist, remember they can switch lanes or turn at any time. They may not always be able to safely use hand signals. Likewise, if you find yourself behind a bicycle and they are blocking traffic, you should practice patience or take another route.

Common Bicycle Injuries. Cyclists are vulnerable on the roads, traveling between motorized cars, trucks and other vehicles. A cyclist can be injured when a driver makes an error at an intersection or cuts the cyclist off when turning.

When a truck turns at an intersection, the driver has a responsibility to check for a cyclist before turning right. Truck drivers who neglect this step can cause a fatal crash injuring a cyclist. This is often called a “right hook” crash.

Another type of bicycle crash is called a “left hook” accident. This type of collision happens when a vehicle travels straight or turns left at an intersection, cutting off or colliding with a cyclist at an intersection. The cyclist is usually traveling in another direction.

By simply remembering to check for cyclists at intersections, truck drivers and motorists can make a big difference in preventing an accident or fatality. As you wait for a red light, try to look several times for cyclists: front, right, left and back. Many drivers neglect to fully check their blindspots, which is where cyclists are likely to be.

Darkness and Storms. The majority of fatal bike crashes in 2018 occurred between 6 p.m. and 9 p.m., according to the National Highway Traffic Safety Administration (NHTSA). Darkness falls earlier during the winter and there are also snow and rain conditions. Be patient if you see a cyclist pedaling in snow conditions.

As a driver, another step you can take is to look for well-lit roads. You can also look for the light. As a driver, if you see a flicker of color ahead, this is likely a cyclist or pedestrian.

Under Massachusetts law, cyclists are required to use bike lights when riding from thirty minutes after sunset until thirty minutes before. Bike reflectors are also required. Cyclists must have reflectors wrapped around both pedals or around their ankles. The bike lights should be visible from distances of 500 to 600 feet.

See the Cyclist From A Distance. In addition to checking for cyclists at intersections, always look ahead for cyclists. Scan the side of the roads. Cyclists should be traveling on the same side of the road as you in the same direction, but they may not always do so, especially if they are displaced by snow conditions. By taking time to look ahead, you give yourself more time to respond.

Read more tips on cycling safety in our article, “Facts About Massachusetts Bicycle Laws.”

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Breakstone, White & Gluck has extensive experience representing cyclists who have been injured in bicycle accidents by negligent drivers in Boston, Cambridge and across Massachusetts. Our attorneys are skilled at investigation and negotiation with insurance companies to help our clients obtain the compensation they need for their recovery.

If you have been injured, learn your legal rights. Call Breakstone, White & Gluck at 800-379-1244 or 617-723-7676 for a free legal consultation. You can also use our online contact form.

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The New Year has begun with several reports of pedestrian accidents across Massachusetts. One pedestrian was seriously injured in Springfield. Two pedestrians were killed, one in Charlestown and one in Oxford.

On January 5th, Boston Police responded to a fatal scene at Charlestown’s City Square. A 92-year-old pedestrian died after being struck by a vehicle near the Charlestown Navy Yard and dragged for nearly a mile, according to news reports. Police later announced they had located a vehicle of interest.

A new report highlights the dangerous climb in pedestrian crashes in the U.S. Between 2009 and 2018, the number of pedestrians killed in U.S. car crashes rose by 55 percent, according to the AAA Foundation for Traffic Safety. This is a major increase, following three decades of decreases.

In Massachusetts, 725 pedestrians were killed during this period. Another 17,000 pedestrians were injured. Boston, Springfield, Worcester, New Bedford and Brockton reported the highest numbers of pedestrian injuries and fatalities in Massachusetts.

Other notes:

  • Most pedestrian injuries occurred between 3 p.m. and 7 p.m.
  • 28 percent of the pedestrian accident victims in Massachusetts were 65 or older
  • 3 out of 4 pedestrians killed on U.S. roads in 2018 were hit during darkness
  • 84 percent of pedestrian accidents over the 10 years occurred on streets with speed limits 30 mph or higher
  • There was a 70 percent increase in pedestrians killed at non-intersection locations without crosswalks

AAA is calling on cities and states to improve traffic infrastructure to provide more protection to pedestrians.

This report is a good reminder for drivers to really watch for pedestrians. This is January and darkness comes early. We are also wrestling with the COVID-19 pandemic. Many Massachusetts residents are out of routine and may be walking in new areas and at different times. As a driver, you have the ability to slow down and that can make all the difference in preventing a pedestrian accident. According to StreetsBlog, a pedestrian struck by a driver traveling at 20 mph has a 93 percent chance of surviving.

Here are a few safety reminders for drivers:

  • Obey traffic signs.
  • Slow down. Travel below the speed limit.
  • Stop for pedestrians at crosswalks.
  • At traffic signals and stop signs, look front, back, right and left before you step on the gas. You have to watch for pedestrians as well as cyclists.
  • Do not use your cell phone while driving.

Free Legal Consultation – Breakstone, White & Gluck

At Breakstone, White & Gluck, our Boston personal injury lawyers are known for our experience representing pedestrians who have been injured in motor vehicle accidents, truck collisions and bus accidents. We represent those injured by the negligence of others across Massachusetts, including in Boston, Cambridge, Somerville, Everett, Quincy and other areas. If you or a loved one has been injured, learn your legal rights.

For a free legal consultation, contact Breakstone, White & Gluck at 800-379-1244 or 617-723-7676 or use our contact form.

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Uber app on a cell phone

The Massachusetts Supreme Judicial Court has ruled Uber did not provide users with reasonable notice of its terms and conditions.

Have you ever signed up for a rideshare app and been frustrated to see the extensive terms and conditions – all on your small cell phone screen? Just what are you agreeing to?

You are not alone. Now, the Supreme Judicial Court of Massachusetts has found Uber failed to provide reasonable notice of its terms and conditions to users. A Massachusetts man and a family member filed a discrimination lawsuit against Uber in 2016, then were compelled into arbitration with the rideshare company based on the app’s terms and conditions.

But on Monday, the Supreme Judicial Court ruled there was no enforceable arbitration agreement between Uber and the plaintiffs in Christopher P. Kauders & another vs. Uber Technologies, Inc. The Supreme Judicial Court remanded the case back to Superior Court.

The Court reviewed Uber’s complicated registration process, noting app users could easily bypass the initial screens, but the process grew much more cumbersome as the consumer approached the terms and conditions and privacy policy.

The Court wrote certain terms and conditions were extensive and far reaching and, “may literally require an individual user to sign his or her life away, as Uber may not be liable if something happened to the user during one of the rides.”

Facts

In 2016, the plaintiffs filed a civil lawsuit against Uber in Suffolk Superior Court, claiming that Uber had discriminated against them in violation of M.G. L. c. 272, § 98A. This statute prohibits discrimination against anyone who is blind, deaf or has another physical handicap and is accompanied by a guide dog in Massachusetts. One of the plaintiffs was blind and claimed three Uber drivers had refused him service in 2015 and 2016.

Citing a provision in its terms and conditions, Uber moved for arbitration against the plaintiffs’ opposition. On June 4, 2018, the arbitrator issued a ruling finding that Uber was not liable for the discriminatory acts of the drivers, who are independent contractors.

Then, on June 25, 2018, a decision came in the case of Cullinane vs. Uber Techs, Inc. The United States Court of Appeals for the First Circuit ruled that Uber’s registration process did not create a contract because app users did not have reasonable notice of the terms and conditions.

Users Not Given Reasonable Notice of Terms and Conditions

In Kauders, the Massachusetts Supreme Judicial Court wrote that Uber writes terms which are extremely favorable to the company and does not give users “reasonable notice” of the terms and conditions.

The Court concluded, “Uber’s terms and conditions did not constitute a contract with the plaintiffs. The app’s registration process did not provide users with reasonable notice of the terms and conditions and did not obtain a clear manifestation of assent to the terms, both of which could have been easily achieved.”

Another problem, the Court wrote, is Uber can amend the terms and conditions whenever it wants without consent from users. The burden is on the consumer to keep checking and there is no way for the consumer to object.

In response to the decision, an Uber spokeswoman told The Boston Globe the company  had already modified its application forms in a way that should comply with the Court’s reasoning.

What if You Are Injured in a Rideshare Accident?

Rideshare companies have worked to limit their liability in many areas. However, those injured in rideshare car accidents in Massachusetts still have the right to pursue financial compensation for their injuries.  In 2016, Massachusetts passed legislation to regulate Uber, Lyft, and other transportation network companies. Under the legislation, drivers must carry an adequate level of auto insurance while working for a rideshare company.

Rideshare accidents can happen and injure passengers, but also drivers of other vehicles and their passengers, as well as pedestrians and cyclists. If you have been injured, it is important to document whether a driver was operating a rideshare vehicle for work or personal use at the time of the crash.

This may be important because rideshare drivers are required to have additional coverage when logged onto the transportation company’s digital network or while the driver is engaged in a pre-arranged ride in Massachusetts.

In the News

Watch Attorney David W. White speak to NBC Boston about complicated rideshare app agreements in 2019:

Boston Car Accident Lawyers – Breakstone, White & Gluck

Breakstone, White & Gluck specializes in the handling of personal injury cases in Massachusetts and has been consistently recognized for our results, including as Top 100 New England Super Lawyers and Top 100 Massachusetts Super Lawyers.

If you have been injured in a car accident or a rideshare accident, learn your legal rights. It is in your best interest to consult a Boston car accident attorney before signing any documentation or speaking to the driver’s insurance company.

For a free legal consultation, contact Breakstone, White & Gluck at 800-379-1244 or 617-723-7676 or use our contact form.

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Bikes Not Bombs Newsletter - Donor of the Month Breakstone, White & Gluck

Click to read page 5.

Breakstone, White & Gluck was pleased to be mentioned as a long-time supporter of Bikes Not Bombs in the organization’s December newsletter. Each year, Breakstone, White & Gluck donates bicycle helmets to support Bikes Not Bombs as part of our Project KidSafe campaign. This is one of our all-time favorite donations because Bikes Not Bombs gives the helmets we donate to children and teens who graduate from its Earn-A-Bike programs. If you are familiar with these classes, you know students work very hard learning how to build their own bike and are taught valuable cycling skills from experienced riders. It is our pleasure to send the students home with a new helmet to help them ride their new bikes safely.

We are already looking forward to making another donation in 2021!

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snow plow accidents can happen in parking lot

Drivers have a responsibility to use reasonable care and caution during snow conditions. In Massachusetts, numerous car accidents were reported across the state during last weekend’s Nor’easter. In Lowell, a woman in a wheelchair was killed by a snowplow crash.

When the snow starts to fall, get ready for winter travel conditions. While many Massachusetts residents are working remotely, most of us are still driving in some capacity and it is critical to prepare. You want to travel safely, slowly and defensively so no one is injured.

If you fail to exercise reasonable care during snow and ice conditions, you are more likely to slip, slide or crash on the road. You could cause yourself injury and need a new vehicle. But even more critical, you could cause someone else serious injury in a car accident. You could be held financially liable and have to pay a claim through your Massachusetts automobile insurance policy.

Stock your car up with emergency supplies. Include jumper cables, a snow shovel and scraper, a flashlight, extra windshield wiper fluid, antifreeze and a basic tool kit, with a screwdriver and other essentials. Also pack a warm blanket, bottled water and a snack, as well as a bright colored flag to wave should you need help. Another tip from the state of Massachusetts: have sand, road salt, a strip of carpet or kitty litter for traction should you need it.

Check your vehicle’s systems. Keep up with routine maintenance during the pandemic, even if you are not driving as often. On your own, you can inspect your tires, headlights and taillights to make sure they are working. You can also check your wiper blades and windshield washer fluid, heat and defrost.

Check weather alerts and traffic updates. Check both weather and traffic conditions before leaving home. Check weather conditions hour-by-hour so you are prepared.

Stay home. Avoid traveling during heavy snow conditions. If you must travel, use public transportation or delay your commute if possible.

Most New England residents do not re-arrange their travel plans for rain. Schools have “snow days” but not “rain days.” But be aware that any type of precipitation impacts visibility and safety on the road. One recent study looked at more than 125,000 fatal motor vehicle crashes between 2006 and 2011 and put a number on the risk for car accidents.

According to the study, published by the Bulletin of the American Meteorological Society, the risk rises based on the intensity of the precipitation. Light precipitation may increase the potential hazard by 27 percent. The risk more than doubles during heavier precipitation.

One of the researchers told the Washington Post that many drivers do not appreciate how the risk for crashes increases during even light rain.

Clear snow off your car. Plan an extra few minutes to remove snow from your vehicle’s roof, windshield and windows. You should be able to see in all directions from the driver’s seat.

In Massachusetts, police can cite drivers who neglect to clear snow because this interferes with safe travel. Drivers can receive a civil citation and have to pay a fine. However, the greater risk is that someone could be seriously injured by flyaway snow and ice or that the snow and ice could block someone’s view.

Drivers can prevent these accidents by simply doing a little more work before they drive. As a driver, you should know if you neglect to clear snow and ice and cause someone injury, you could be held financially responsible for the victim’s injuries and other damages. In Massachusetts, you could also be criminally charged with reckless or negligent operation of a motor vehicle. If you have been injured by a driver who neglected to remove snow and ice from their vehicle, you should report this fact to police investigating the car crash. You may also want to consult a Boston personal injury lawyer to learn your legal rights.

Slow down. Travel below the speed limit, even if others are traveling at the normal speed or speeding. Lowering your speed gives you more control over your vehicle. Remember, traffic is less predictable during snow storms and the road ahead may not be fully plowed. With less visibility, you may will need to watch more closely for pedestrians.

Charge cell phones. Keep your phone charged so you can use it during an emergency, but don’t use it. It is best to wait until you get home to talk, even if you are using an in-vehicle system or Bluetooth as allowed under the Massachusetts hands-free law. You can still cause a car accident if you are distracted and using a cell phone, even if you are following the law. You can still be held liable if you cause someone injury because you were not paying attention.

Travel safely near plow trucks. The state of Massachusetts advises drivers to stay at least 200 feet back when approaching a snow plow truck or other snow removal equipment. Do not attempt to pass a snow plow at any time. Drivers should be prepared for snow plows to make sudden stops at any time. Staying back gives you more time to slow down or stop, reducing the chance of a snow plow crash.

Snow plow drivers are likely to have poor visibility and you do not know how long they have been working without a break. What you can do is turn your vehicle lights on and wipe these clean from snow regularly. By taking these steps and giving snow plow drivers space, you are less likely to be involved in a collision with a snow plow or other vehicles also trying to dodge the snow plow.

Snow plows need as much room as possible in part because they must also watch for pedestrians.

Less than a week ago, there was a tragic accident in Lowell. The two pedestrians, one of whom was in a wheelchair, were struck at the corner of School and Cross streets. The 27-year-old woman in the wheelchair later died, according to NBC Boston. She was with a 39-year-old man and both were wearing safety jackets with reflectors, one witness at the scene told the news station. The accident was under investigation by the Middlesex District Attorney’s Office.

Because of the risk for plow truck accidents, we also caution drivers to avoid these vehicles in parking lots. Pedestrians have been hit, injured and killed by plow drivers in Massachusetts parking lots.

Free Legal Consultation – Boston Car Accident Attorneys

Breakstone, White & Gluck has a track record of successfully representing those injured by negligent drivers in car accidents, SUV crashes and truck collisions. We are experienced in investigating snow plow accidents which have injured pedestrians and other motorists, as well as other vehicle crashes in snow conditions.

Founded in 1992, Breakstone, White & Gluck represents clients across Massachusetts, including Boston, Cambridge, Somerville, Everett, Quincy, Milton, Lynn and Saugus.

If you have been injured in a car crash, it is in your best interest to learn your legal rights. For a free legal consultation, contact Breakstone, White & Gluck at 800-379-1244 or 617-723-7676 or use our contact form.

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Man Clearing Snow From Path With ShovelAfter our first nor’easter of the season, much of Massachusetts is now covered in a cold sheet of snow and ice. A total of 12.5 inches fell last weekend in part of Worcester County, while Middlesex County saw 2 to 7 inches of accumulation, according to MassLive.

You may have shoveled, yet the work isn’t over. In these harsh New England winters, property owners must remember their legal responsibility to use reasonable care to keep their property safe. If you neglect to remove snow and ice from your driveway, someone could be injured and you could be held financially liable.

Commit to inspecting your property daily after a snow storm. Insect your driveway, walkways, roof and gutters.  Go outside and walk from your front door to the end of your driveway and back. This is how your guests, mail carriers and package delivery professionals approach your home. This route needs to be safe.

A Property Owner’s Responsibility in Massachusetts

In Massachusetts, property owners have a duty to use reasonable care in clearing snow and ice so no one is injured. Papadopoulos v. Target Corp., 457 Mass. 368 (2010).

Papadopoulos v. Target Corp. changed more than 100 years of common law in Massachusetts and abolished the distinction between “natural” and “unnatural” snow and ice accumulations in premises liability actions. Property owners now have a duty to use the same reasonable care in treating snow and ice as they do other property hazards. It does not matter how the snow and ice accumulated. They owe a duty to all lawful visitors to use reasonable care to maintain their property in a reasonably safe condition.

How Often Should I Check My Driveway?

The best way to prevent a snow and ice injury is to treat snow regularly and promptly in the hours after a snowstorm, then also throughout the winter. This includes your driveway and walkways, as well as areas where cars, pedestrians and delivery trucks come in and out of the driveway. This activity can cause melting and refreezing for weeks after a storm.

Be aware of freezing and melting on other areas of your property as well, such as under roofs and gutters. Pay the most attention to your front step so delivery services and guests can safely access.

What if a Snow Plow Throws Snow on My Driveway?

It is still your responsibility to remove snow pushed onto your property so no one is injured. There is nothing more frustrating than shoveling your driveway, only for the plow to come back around a few minutes later. Again, the most effective response is to act quickly. Snow will be easier to shovel before it freezes to your driveway.

What If I Am Injured on Someone Else’s Property?

Use caution whenever you visit friends and family during the snow season. Try to find out if they have shoveled and salted their driveway and walkway before you visit. If you arrive and their driveway is iced over, consider visiting another time.

What if I am Injured on a Business Property?

Grocery stores and other businesses also have a responsibility to clear snow and ice and keep parking lots and other areas safe for travel after a snow storm. But there are times when snow and ice is left to accumulate or is not fully cleared. There are often several parties involved in commercial lease agreements, including a landlord, tenant and property management company. These parties may not always properly communicate or the party in charge of snow removal may be trying to save money. The party in charge may also not be experienced in hiring snow removal companies or realize the work involved.

When a business is negligent in clearing snow, slip and fall accidents can happen in parking lots. Another hazard is store floors and entrances. When snow melts, water accumulates and someone could slip and fall. A third danger is icy railings. Those in charge of the property have a responsibility to regularly inspect and remove snow and ice from railings, so a visitor doesn’t unknowingly reach for one and fall.

Since businesses can be open extended hours, property owners have a responsibility to address snow and ice accumulation promptly.

Be Aware of High Risk Areas for Mail Carriers and Package Delivery Professionals

Walk to the end of your driveway and make sure mail carriers and package delivery professionals can safely reach your front steps or mailbox.

Help the Elderly in Snow and Ice

The elderly are the most vulnerable to snow and ice injuries. If they fall, they are more likely to suffer long-term injuries. You can be proactive and prevent an injury by asking elderly friends, neighbors and family members if they need any help or anything at the grocery store. Encourage them to stay inside in the hours after a snow storm.

After a Snow and Ice Accident

If you are injured by a snow and ice accident, a doctor should evaluate you to determine if you fractured bones or suffered a concussion or other injuries.

If you were seriously injured, contact a lawyer and learn your legal rights. Contact a lawyer promptly. Under Massachusetts law, there is a limited time to notify a private property owner about injuries in cases involving snow and ice.

Free Legal Consultation – Boston Snow and Ice Accident Lawyer

With 100+ years combined experience, Breakstone, White & Gluck has been consistently recognized as a top-rated Boston personal injury law firm. Our attorneys have been recognized by Top 100 New England Super Lawyers, Top 100 Massachusetts Super Lawyers and Massachusetts Super Lawyers, in the specialties of personal injury and medical malpractice. The firm has also been recognized by U.S. News – Best Law Firms with Tier 1 rankings in personal injury and medical malpractice.

For a free legal consultation, contact Breakstone, White & Gluck at 800-379-1244 or 617-723-7676. You can also use our contact form.

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A few weeks ago, W.A.T.C.H. released its nominees for the “10 Worst Toys of 2020.” For parents and families, this list offers insights on how to avoid buying dangerous toys this holiday season. It also reveals some inappropriate advertising tactics.

When you see a toy online or in a store, you cannot just assume it is safe for your child. While there is a federal toy safety standard and the Consumer Product Safety Commission (CPSC) oversees recalls of unsafe toys, there are still many cases of dangerous and defective toys reaching families. According to W.A.T.C.H., one child is treated in a U.S. emergency room every three minutes for a toy-related injury. Between 2016 and 2018, 43 children died in toy-related incidents across the U.S. In 2018, there were an estimated 226,100 toy-related injuries.

From this year’s W.A.T.C.H. “10 Worst Toys” report:

W.A.T.C.H. 10 Worst Toys List 2020

Source: W.A.T.C.H.

Calico Critters Nursery Friends. W.A.T.C.H. calls this set a potential danger because the small animal figures are flocked with clothing that can become loose. The set also includes small parts, such as a pacifier. Children can potentially choke on either the clothes or pacifier.

The Calico Critters set is being sold by Amazon, and also online and in stores by Walmart and Kohl’s. In this case, the age recommendation is 3+ and it carries a small parts – choking hazard warning. But the toy contains small play figures meant for young children, including a pacifer; it is inherently dangerous because of the small parts, the clothing and children may attempt to mimic the dolls and suck the pacifier.

A similar Calico Critters playset was also mentioned in the U.S. PIRG, “Trouble in Toyland” report this year. The set may be to blame for two children under age 3 choking in New Mexico and Utah; the child in New Mexico died (Source: 2020 Trouble in Toyland report which cited a court filing and a local news report).

2020-12-02-rocketMissile Launcher. According to W.A.T.C.H., this toy can cause potential eye or facial injuries. The launcher is intended for children age 5 and older.  The packaging shows a child stretching the launcher out near his face, which supports the view that this toy is unsafe. This product is being sold by Home Goods.

Marvel Avengers Vibranium Power FX Claw.  Kmart, Amazon and Walmart are selling this Hasbro toy. It is marked for children age 5+. W.A.T.C.H. warns children can use the claw to swing or hit people or animals. If a child makes contact with someone else, they could be seriously injured. The manufacturer even states this right out on the warning label.

2020-12-02 batman

Read Age Appropriate Labels and Warnings

Manufacturers must have toys intended for children 12 and younger tested by a third-party to ensure they comply with the federal toy safety standard. Toys which have small parts must also have age appropriate warning labels. We encourage consumers to protect themselves by becoming experienced at reading these labels – and be critical. The W.A.T.C.H. report highlights just how inadequate and in poor taste toy warnings can be. If you purchase a toy online, read the description on the screen before you buy, then double check the box when it actually arrives.

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Boston Product Liability Attorneys – Boston Toy Safety Lawyers

With more than 100 years combined experience, Breakstone, White & Gluck specializes in representing clients injured in personal injury and product liability cases across Massachusetts. Read about our experience representing clients injured in product liability cases in Boston. For a free legal consultation, call 800-379-1244 or 617-723-7676 or use our contact form.

You can also read more of our Project KidSafe holiday toy safety series.

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Mother playing with child and toyWhen a product is recalled, you may expect it will be removed from store shelves or online marketplaces. This is not always a safe assumption. In this year’s Trouble in Toyland report, U.S. PIRG reports several toys which were recalled this year were still being sold afterward on popular websites. Last year, a Wall Street Journal investigation found Amazon was selling thousands of unsafe or banned products.

These are upsetting headlines. The Consumer Product Safety Commission (CPSC) recalls toys when they pose a safety hazard to children. Recalls are typically only called after a report or several reports of injuries or near injuries.

Once a toy is recalled, it is not safe to use. Our Boston product liability lawyers share our safety tips for steering clear of unsafe toys this holiday season:

Look Up Past Toy Recalls

Visit the CPSC website and review product recalls for 2020. According to U.S. PIRG, 10 products were recalled in the 12 months between the release of its 2019 and 2020 report.

You can visit this website after you have selected a toy and before you make a purchase. Or it may be helpful to start your holiday shopping there. Search for “toy recalls” or look through all the product recalls. Note that this website does not include automobile recalls. You can find these on the National Highway Traffic Safety Administration (NHTSA) website.

Beware of Amazon, Ebay and Marketplace Websites

Some retailers only offer their own products online. Others – such as Amazon and Ebay – are marketplaces where different vendors sell products and toys. These products may be new or they may be old.

Both the sellers and websites have a responsibility to make sure they are not selling recalled products.

In August 2019, the Wall Street Journal reported that Amazon was selling more than 4,000 items which federal agencies had declared unsafe or banned. Others had misleading labeling. At least 2,000 listings were for unsafe toys and medications.

The story showed the challenges Amazon has regulating its own marketplace. If you shop on Amazon or EBay, look for information about the seller. Is a company the seller or an individual? If you have never heard of the seller, you may not want to make a purchase.

Watch for Small Parts

When buying online, one potential danger is buying a toy which contains small parts. To protect your children, always read age recommendations and look for warning labels.

Toys which are designed for children under age 3 should be labeled if they contain small parts. Toys for children age 3 to 6 must also be labeled if they contain small parts. Read our blog on identifying small parts and toy safety warnings.

Beware of Purchasing Toys on Social Media Sites

You may have heard of Facebook Marketplace or other social media sites where you can sell used toys and products. Avoid buying used toys for children here during the holidays. We also suggest you avoid buying toys from these sites during other seasons, but especially during the holidays when many of us just wait for online sales to pop up.

There is no quality control. In most cases, the product is no longer in the packaging so you can’t read the safety warnings and age recommendations.

If you buy a used product this way, you really have no way of knowing when it was purchased. You may not have a product number or product instructions.

Children’s products, such as cribs, car seats and strollers, may carry the greatest risks. These products are frequently recalled and many model types look similar. While it is illegal to sell recalled products, it happens.

One frightening story came after Fisher Price and Kids II issued their crib recalls in early 2019. Despite this, 1 in 10 daycares was still using a Fisher Price Rock n’ Play sleeper in August 2019. In Nov. 2019, Consumer Reports reported found hundreds of the recalled sleepers available online, on sites such as Craigslist and Facebook Marketplace. In addition, Consumer Reports warned other products – including Ikea dressers recalled in 2016 were still being sold.

Free Legal Consultation – Boston Toy Safety Lawyers

With more than 100 years combined experience, Breakstone, White & Gluck of Boston specializes in the representation of clients injured by unsafe or defective toys and products. We are writing about toy safety this holiday season to help parents and families make safe shopping decisions. Read our past toy safety blogs.

For a free legal consultation, contact the Boston toy safety lawyers at Breakstone, White & Gluck at 800-379-1244 or 617-723-7676. You can also use our contact form.

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Trouble in Toyland Report 2020Families often enjoy looking through toy catalogs together this time of year. After seeing what excites your child, you may be tempted to immediately order their holiday gifts. However, before you do, we encourage parents and grandparents to check the Trouble in Toyland report.

The 35th anniversary Trouble in Toyland report was recently released. This year, U.S. PIRG warned about the dangers of:

  • Mislabeled choking hazards
  • Flocked animal figures (toys with small attached pieces)
  • Recalled toys which may still be available online
  • Noisy toys
  • In-app purchases
  • Not advisable for children

Choking Hazards

Parents are advised to look for small part warnings on toys. “Small part” is not a subjective term. It is anything that fits within the Consumer Product Safety Commission’s toy test cylinder. The test cylinder measures 2.25 inches long and 1.25 inches wide and is roughly the size of a young child’s throat. A small part may be a game piece or a marble of the right size. It may also include a toy accessory, such as doll clothing.

The most common “small parts” warning: “WARNING: CHOKING HAZARD–Small Parts. Not for children under 3 years.” Toys designed for children ages 3 through 6 must also carry warning labels indicating they are not safe for children under 3.

Parents can become familiar with the risks by reading this year’s Trouble In Toyland. Make it a priority not to purchase a product with small parts and bring them into your home. Always read toy safety and age appropriate labels. Doing so puts you on a path to protect your family.

Flocked Toys

If you purchase a toy figurine or doll that comes with accessories, such as ribbons or clothing, remember your child can put those small parts in their mouths. Calico Critters – the popular animal family figures – are now under scrutiny.

One child was killed while playing with a set containing a small pacifier in New Mexico, according to a court filing. Another child in Utah also choked on the pacifier accessory, according to the a local news website, and shared in the Trouble in Toyland report. Both children were under 3 years old.

Fortunately, there are many versions of toys. If you find a toy you like and it has small fabric parts, keep looking until you find one without removable accessories.

Online Toy Shopping

Trouble in Toyland shared a valuable insight about searching for holiday toys on Amazon. If you search for “toys for 2-year-old boys,” for instance, you may see a number of listings which do not provide a small part warning. Do not trust that searching by year means toys are screened for safety. Remember, Amazon is a marketplace of merchants, not just one company. Closely look at product descriptions before making a purchase. In addition to reading reviews, you want to confirm the details. Look at the product picture, then read the description. Double check the product packaging once it arrives by mail and open it to confirm it has the parts you expected.

Beware of recalled toys as well. Since the 2019 Trouble in Toyland, the Consumer Product Safety Commissioned issued 10 toy recalls in the U.S., according to this report. When a product is recalled, it should be immediately removed from the store shelves and online listings. Some toys were still being sold online after recalls. Researchers even found one toy – a Fisher-Price Barbie Dream Camper which was recalled in February 2019 – still on sale. The camper was an outdoor riding toy for children. The CPSC received 17 reports of campers continuing to travel after the foot pedal was released.

Not Advisable For Children

Also featured was a section called, “items not advisable for children.” These items are not really toys, but are given to children as toys. At the top of the list is high-powered magnet desk sets. We wrote about the dangers of high-powered magnet sets last holiday season.  Magnet sets may seem like fun gifts for adults, but you should never purchase one because they are so dangerous and the small parts can stick around your home forever. Children can be tempted to play with these magnets and swallow them. At this point, the magnets can attempt to connect together in a child’s stomach. The magnets touched on some serious personal injuries.

In September 2020, a 9-year-old boy took two magnets from a Neutronball building set and placed them on his lip, pretending to have a piercing. He then swallowed them and had to seek medical treatment at a hospital. In May, another 9-year-old swallowed parts from a Zen Magnets LLC set. She hid this from her parents for a week, until she began suffering intense stomach pain. She required surgery, but survived.

Beware of Digital Apps

Parents may be asked to sign up for an app related to a “smart toy” their child received as a gift. Or a child may have received a tablet or cell phone and try to sign up for apps themselves.

While there is a case to be made for limiting your child’s screen time overall, beware of giving your child access to digital apps. These can be tempting and children may like the graphics and thought of winning a prize. The Trouble in Toyland report mentioned one app called Coin Master. This is rated for ages 13 and over, though the graphics may easily capture the attention of a younger child.

We are sharing this story because Coin Master offers in-app purchases. The most expensive option is $99.99. Children may only see higher options once they get into the game.

Free Legal Consultation – Boston Toy Safety Lawyers

Breakstone, White & Gluck has over 100 years combined experience representing individuals who have been injured by the negligence or wrongdoing of others. Our firm is highly experienced in the area of product liability and injuries caused by defective products. We are writing about holiday toy safety as part of our Project KidSafe campaign, where our goal is to protect children from injuries. For the past 8 years, our attorneys have also donated 30,000 bicycle helmets to children across Massachusetts to protect against head injuries.

If you have been injured, learn your legal rights. For a free legal consultation, contact Breakstone, White & Gluck of Boston at 800-379-1244 or 617-723-7676 or use our contact form.

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Driver and an older pedestrian at a Massachusetts crosswalkIt is a fact: pedestrians age 65 and older face an increased risk for being injured by a car accident or truck crash. According to the Centers for Disease Control and Prevention (CDC), pedestrians of this age accounted for 1 in 5 pedestrian deaths in the U.S. They also suffered 1 in 10 percent of all injuries.

November, December and January are among the darkest months of the year in Massachusetts. At Breakstone, White & Gluck, our lawyers caution all pedestrians take steps to protect themselves. Start before you leave home. One of the most effective steps you can take is to wear a neon colored vest, jacket or other accessories so drivers can see you.

Safety Tips for Older Pedestrians

Arrange for a Ride. During the winter months, ask a friend or family member to give you a ride to the store and help you with other errands. If you do not have someone, call your local town or city hall to speak to their Council on Aging, which may be able to help arrange you a ride. You can go back to walking in the Spring when there is better visibility.

Use Crosswalks. In Massachusetts, pedestrians have the right of way when walking across the street in a crosswalk which has a “Walk” signal or green light.

Do Not Cross the Street Alone. Look for areas where there is a crossing guard if you can. Also look for areas where there are other pedestrians crossing. Do an honest evaluation; if you are walking much slower than other pedestrians, you should only cross when there is a crossing guard or accept a ride.

Avoid Complicated Intersections. Rather than walking through complex intersections, either accept a ride or change your route for the winter months. Also stay clear of wide intersections or roads with traffic passing in both directions.

Be Mindful of Traffic Conditions. If you walk, do so during daylight hours and when traffic is lightest. This is not just advice for crossing the street. Keep this in mind when you are walking through parking lots, where there is a high risk for pedestrian accidents at night.

Find Another Way to Walk For Exercise. Many of us – young and older – like to incorporate some walking for exercise into our daily routines of work and errands. If you miss walking, find a way to walk off the street. Due to COVID-19 restrictions, it is not safe to work out at a health club or gym. You may have to explore other options for exercise this year, such as hiking or even just walking on a lawn. Again, we encourage you to ask friends, family members and others in your community for suggestions.

Safety Reminders for Drivers

Use Reasonable Care and Travel Slowly. Massachusetts drivers have a responsibility to use reasonable care when driving. During the winter months, this means watching for pedestrians at all times, including when you get in your car and when you park. This is the time to utilize your vehicle’s back-up camera. Also watch when you exit your vehicle so you avoid dooring a pedestrian or a cyclist.

Travel Slowly. You cannot control all traffic conditions. But you can control your speed. By traveling slowly, even under the speed limit in residential neighborhoods, you have a greater ability to stop for pedestrians and avoid a pedestrian crash. This is important because older pedestrians are likely to take more time to cross the street. Many pedestrian car crashes occur because a driver misjudged the pedestrian’s speed.

Approach Familiar Places With Caution, Too. Take care even when driving near familiar places, such as a friend’s home, the pizza place down the street or a nearby grocery store. At night, there is a different traffic pace. During the pandemic, the pedestrian and vehicle traffic is changing weekly. There is a greater chance of car accidents in these conditions.

Be Aware of Eye Strain. If prescribed, drivers should wear their glasses at night. The rest of us should also be aware of the risks of eye strain and drowsiness at night. When possible, keep night driving trips short to keep your eyes strong.

Do Not Use Cell Phones. Months after the Massachusetts Hands-Free Driving Law took effect, drivers should know there is no tolerance for picking up a cell phone. The act of dialing a number and cradling a phone takes a driver’s attention off the road for at least several seconds. Drivers have caused many pedestrian crashes through cell phone use. On the same note, pedestrians should set aside cell phones while walking at night near traffic and minimize distractions.

Free Legal Consultation – Breakstone, White & Gluck

Breakstone, White & Gluck has represented pedestrians injured by negligent driving in car accidents, bus crashes and truck collisions across Massachusetts, including in Boston, Cambridge, Quincy, Somerville, Chelsea and Everett.

If you have been injured by the negligence or wrongdoing of someone else, learn your legal rights. Breakstone, White & Gluck is an accomplished Boston law firm known consistently recognized for our results for clients, including by Top 100 New England Super Lawyers, Top 100 Massachusetts Super Lawyers and Best Lawyers in America.

In Boston, we are known for our experience and expertise in representing pedestrians who have been injured in MBTA bus accidents. We won a landmark personal injury case, resulting in a $7.1 million verdict for our client, after trial and appeals to the state’s highest court. Our client had the horrific experience of being struck by a MBTA bus in a South Boston crosswalk. The driver had admitted fault, and the MBTA police investigation confirmed the finding. But the MBTA refused to even make an offer of settlement and our attorneys pursued an award at trial.

For a free legal consultation, contact Breakstone, White & Gluck at 800-379-1244 or 617-723-7676. You can also use our contact form.

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