Medical Mistakes and Medication Errors at Massachusetts and Rhode Island Hospitals

Doctor and patient in medical office
Doctor and patient in medical office

Patients should be aware of medical errors at Rhode Island and Massachusetts hospitals before they book their next procedure.

When you visit a hospital, you expect to be treated, then leave on your way to recovery. But two recent stories out of Massachusetts and Rhode Island should raise concern among patients. As medical malpractice lawyers, we hear about these stories too often, but the general public is not always informed.

When you book your next medical appointment or surgery, we urge to remember that any type of medical treatment is serious. Please take time to ask questions, even if you have to make an extra appointment with your doctor.

When you are admitted to the hospital for a day or overnight procedure, it is good practice to bring a relative or friend, someone who is familiar with your procedure and can ask nurses and doctors if something looks off-track. Have them carry a list of the medications you take daily in a notebook and show it to nurses. 

Have this person stay with you. If you are parent, stay with your child. You may have visited a hospital in the past for treatment and had a good experience, but medical mistakes and medication errors can still happen, especially in the summer. Each July, a new round of medical students head to hospitals to become interns. Meanwhile, like many of us, doctors and surgeons often take vacations. Make sure you understand who will be treating you before you arrive at the hospital. If your health allows, consider delaying your procedure a couple of months.

Rhode Island Hospital Medical Errors

On June 8, the state Department of Health announced it had entered into a consent agreement with Rhode Island Hospital, requiring the medical system to invest $1 million into patient safety initiatives following medical errors made in February and March. The hospital made errors in treating four patients.

In February, two patients underwent surgical procedures intended for someone else. In one case, a patient was mistakenly treated with a computed tomography angiography of the brain and neck. Meanwhile, another patient underwent an angiogram meant for someone else.

March brought more patient mix-ups and medical errors. On March 12, a patient underwent a spinal procedure on the wrong part of the spine. A few days later, the wrong patient received a mammogram.

Rhode Island Hospital has agreed to implement the recommendations of the Joint Commission, the national hospital accrediting body, and put new procedures in place. It also agreed to conduct faculty-wide training on patient identification and implementing procedures. An external compliance organization will provide monitoring and oversight for at least one year.

Boston Children’s Hospital Medication Errors

In Massachusetts, Boston Children’s Hospital has come under scrutiny for medication errors. A state and federal inspection report released this spring found three patients received the wrong medication last year and one died as a result.

The medication errors involved the antibiotic Zosyn and anesthetic Propofol. A nurse administered the Zosyn to a patient more than 12 hours too late. The patient developed an infection and died two days later. The two other patients were given overdoses of the Propofol. After the first overdose, hospital leaders proposed establishing new procedures for measuring doses, but no action was taken. Ten months later, another patient suffered an overdose.

In 2016, there were 47 medication errors that killed or seriously harmed patients at Massachusetts hospitals (Source: Boston Globe).

If You Have Been Injured by a Medication Error or Other Medical Mistake

Medical mistakes and medication errors are preventable. Doctors and hospitals have a responsibility to have procedures in place to prevent mistakes which could harm patients or cost them their lives.

Medication errors are common, even more so than shown by state data which only tracks the most serious errors. When someone dies unexpectedly in a hospital, it is critical to contact an experienced Boston medication malpractice lawyer who can investigate what happened and look at every step of treatment and the full medical records.

At Breakstone, White & Gluck, our lawyers specialize in handling medical malpractice claims on behalf of victims and their families. Our lawyers have been consistently recognized by Super Lawyers and U.S. News-Best Lawyers for our work in the area of medical malpractice. 

For a free legal consultation, contact us today at 800-379-1244 or 617-723-7676 or use our contact form.

Protect Yourself

If you are about to have a procedure, take advantage of the Internet. Patients now have a wealth of information available to them online. To learn more about patient safety, read this blog.

Breakstone, White & Gluck Receives Nancy King Award for Highest Percentage of Attorneys Participating

Breakstone, White & Gluck has received the Nancy King Award for its 100 percent participation in last year’s annual Walk to the Hill for Civil Legal Aid.

The Equal Justice Coalition, which organizes the annual Walk, recently presented our firm with the award. Attorneys Marc L. Breakstone, David W. White, Ronald E. Gluck and Reza Breakstone participated last year.

The Walk was held on January 28, 2016 at the State House in Boston. Hundreds of attorneys gathered in the Great Hall to hear from Chief Justice Ralph Gants of the Supreme Judicial Court and Attorney General Maura Healey. Several past presidents of the Massachusetts Bar Association participated, including Attorney David W. White, who served a term from 2007-2008.

The attorneys were then dispatched to speak to state Senators and Representatives and urge them to fund the Massachusetts Legal Assistance Corporation line in the Fiscal Year 2017 state budget.

Last year’s campaign was successful, which should provide good motivation for even more attorneys to attend again this year. Governor Charlie Baker approved $18 million in funding for civil legal aid in the final Fiscal Year 2017 Budget of the Commonwealth. This was a $1 million increase over the prior year’s funding.

With the additional funding, the Massachusetts Legal Assistance Corporation was able to help more low-income people facing homelessness, domestic violence, gain access to health care and other legal services.

To qualify for civil legal aid in Massachusetts, a family must earn no more than 125 percent of the Federal Poverty Level (or $30,375 a year for a family of four). Despite the increase, the Equal Justice Coalition reports that legal aid organizations are still forced to turn away 64 percent of those eligible because of a lack of funding.

This year, MLAC is seeking a $5 million increase for civil legal aid. To learn more about the event, visit http://equaljusticecoalition.org/.

2016 Walk to the Hill Attendance awards were recently presented to these firms:

• Nancy King Award: Breakstone, White & Gluck (highest percentage of attorneys participating)
• Highest Participation Award: WilmerHale
• Exceptional Support Awards: Foley Hoag and Ropes & Gray

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Massachusetts Law: Property Owners Have Responsibility to Keep Their Property Reasonably Safe from Snow and Ice Hazards

dw-200-webMany of us would rather skip the shovels, snowblowers and ice scrapers this winter. But when the snow falls, remember that Massachusetts property owners have a responsibility to keep their property reasonably safe. So your shovel must come out.

For over 100 years, Massachusetts property owners enjoyed a special exemption from liability for “natural accumulations” of snow and ice. An injured person previously had to demonstrate that the accumulation was unnatural, such as the frozen discharge from a gutter, or a pile of plowed snow across a sidewalk. But for the past six years, Massachusetts has followed the rule of reasonable care.

All residential and commercial property owners now have to take reasonable steps to clear the snow and ice hazards and keep their property safe for traveling.

Massachusetts started following the rule of reasonable care after the Supreme Judicial Court of Massachusetts ruled in the case of Papadopoulos v. Target Corp., 457 Mass. 368 (2010).

Attorney David W. White has written on the rule, discussed the case in the media and participated in MCLE panels on property owners’ liability in snow and ice cases.

“Property owners must understand it is no longer optional to shovel so you should get out there early and keep up with it,” White said.

Read Attorney White’s comments in The Boston Globe, Boston Business Journal and the Allston-Brighton Tab newspaper.

About Attorney David W. White
Attorney David W. White has distinguished himself for his advocacy on behalf of his clients and his leadership among Massachusetts lawyers. Attorney White is a past president of the Massachusetts Bar Association who has represented clients injured in personal injury cases for over 30 years. He has been selected as one of the Top 100 Super Lawyers in New England and Top 100 Super Lawyers in Massachusetts. Read more about Attorney David W. White.

About Breakstone, White & Gluck
The Boston personal injury lawyers at Breakstone, White & Gluck have over 100 years combined experience representing individuals who have been seriously injured in slip and fall accidents and snow and ice accidents caused by a property owner’s negligence. If you have been injured, it is important to learn your rights. For a free legal consultation, contact us at 800-379-1244 or 617-723-7676 or use our contact form.

Breakstone, White & Gluck Attorneys Named to Top 100 New England Super Lawyer List, Top 100 Massachusetts Super Lawyer List

Breakstone, White & Gluck - Boston personal injury lawyers

Congratulations to attorneys Marc L. Breakstone, David W. White and Ronald E. Gluck for being selected to the 2016 Super Lawyers lists. This is the 13th year our firm has been recognized by Super Lawyers for being among the best in New England at obtaining justice for those who have been injured by negligence in personal injury and medical malpractice cases.. Together, our three partners have over 100 years combined experience practicing law in Massachusetts. Here is how they were honored:

Attorney Marc L. Breakstone
Boston Attorney Marc BreakstoneCongratulations to Attorney Breakstone who was named a Top 100 New England Super Lawyer and a Top 100 Massachusetts Super Lawyer for 2016. Attorney Breakstone specializes in representing plaintiffs in medical malpractice and personal injury cases and has practiced in Boston for 30 years. For the 13th year, Attorney Breakstone was also recognized as as a Massachusetts Super Lawyer in the area of medical malpractice for plaintiffs (2004-2016). This is his 10th year on the Top 100 Massachusetts Super Lawyers list. He was selected as a Top 100 New England Super Lawyer for the fifth time.

Attorney David W. White
david-150-2Congratulations to Attorney David W. White, who was named a 2016 Massachusetts Super Lawyer in the area of personal injury, plaintiff representation. This is the 13th year he has been recognized for excellence among Massachusetts and New England lawyers. Attorney White has been selected to the Top 100 New England Super Lawyers list three times and to the Top 100 Massachusetts Super Lawyers list seven times.

Attorney White is a past president of the Massachusetts Bar Association and has practiced law in Boston for over 30 years. He has distinguished himself for his advocacy on behalf of his clients and his leadership among Massachusetts lawyers. Attorney White represents clients in all types of personal injury and insurance cases, including bicycle accidents, pedestrian accidents, motor vehicle accidents, product liability and dog bite cases.

Attorney Ronald E. Gluck
gluck_150Congratulations to Attorney Ronald E. Gluck, who was named a 2016 Massachusetts Super Lawyer in the area of personal injury, plaintiff representation. Attorney Gluck has been consistently recognized for excellence by Super Lawyers for 11 years. Attorney Gluck has practiced law in Boston for over 35 years and specializes in handling cases involving pedestrian accidents, bicycle accidents, motor vehicle accidents and motorcycle accidents.

About Super Lawyers
Super Lawyers is a multiphase selection process which rates attorneys in every state. The top 5 percent of attorneys are selected to Super Lawyers lists.

How the process works: Peer nominations and evaluations are combined with independent research by Super Lawyers, which is part of the Thomson Reuters company. Lawyers are evaluated on 12 indicators of peer recognition and professional achievement on an annual, state-by-state basis. The company’s objective is to create a credible, comprehensive and diverse listing of outstanding attorneys which can be used as a resource for other attorneys and consumers searching for legal counsel.

Super Lawyers listings are printed annually in Boston Magazine and are available on the Super Lawyers website. Read More

Breakstone, White & Gluck Donates 500 Bicycle Light Sets to Boston Cyclists

cyclist-1Breakstone, White & Gluck is teaming up with Boston Bikes, the City of Boston and cycling groups this week to remind cyclists to use bike lights. All over the city, cyclists are being surprised with free lights (if they need them), as part of Boston Bikes’ #BeBrilliant campaign to keep cyclists safe.

Breakstone, White & Gluck donated the 500 bicycle light sets to Boston Bikes, which is part of the City of Boston, for the third year. Boston Bikes staff and volunteer groups have been giving the lights away this week in Dorchester, Allston, Brighton, Dorchester, East Boston, Mattapan, Roxbury, South Boston and Downtown. Groups include Rozzie Bikes, Commonwheels Bicycle Collective and Bike Dorchester.

Under Massachusetts law, cyclists must use bike lights to help them stay visible to motorists. Cyclists must have a white light on the front of their bike and either a red light or a red reflector on the rear. This is an important reminder since Daylight Saving Time ended last weekend and the nights are getting darker earlier.

“As evenings get dark earlier, people who are driving, walking and bicycling need to be more aware of each other than ever,” said BTD Commissioner Gina N. Fiandaca, in an announcement posted on the city’s website. “Our top priority is ensuring the safety of people traveling on our streets, and we ask everyone to help us by slowing down and looking out for each other.

Here are a few safety tips for drivers, pedestrians and cyclists.

For Drivers

  • Follow the speed limit
  • Do not use cell phones
  • Always yield to pedestrians
  • When turning, slow down and look for bicyclists going straight
  • Make sure you do not open your car door into the path of a bicyclist or another driver
  • Do not park or stop in the bike or bus lane

For Pedestrians

  • Always use crosswalks
  • Avoid crossing the street between two parked cars
  • Wear reflective colored clothing

For Bicyclists

  • Always wear a bicycle helmet and use bike lights
  • Bike in the same direction as traffic, unless the street is marked otherwise
  • Stop at stop signs and follow all traffic signals
  • Wear reflective colored clothing
  • Use hand signals
  • Yield for pedestrians

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Breakstone, White & Gluck Donates Children’s Bicycle Helmets to Boston School and Cambridge Medical Clinic

Children wearing bicycle helmets at the Windsor Street Care Center in Cambridge, Massachusets

As part of our Project KidSafe campaign, Breakstone, White & Gluck recently made two donations to help children in Boston and Cambridge ride their bicycles safely.

Children wearing bicycle helmets at the Windsor Street Care Center in Cambridge, Massachusetts

Windsor Street Care Center
Breakstone, White & Gluck was pleased to donate 100 bicycle helmets to the Windsor Street Care Center in Cambridge. This is the second year we have partnered with the center. Doctors and staff give the helmets to children who need one, while also showing parents and older children how to properly fit the helmets themselves.

Haynes Early Education Center
Breakstone, White & Gluck was also pleased to donate 75 bicycle helmets for the Healthy Families Event at Haynes Early Education Center, which is part of the Boston public school system. The school, which is located in Roxbury, serves children in kindergarten and grade 1. The Healthy Families Event was held in late March to provide families with safety information before the Spring cycling season.

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The Importance of Bicycle Helmets
Breakstone, White & Gluck cares about the safety of cyclists. Since 2013, our law firm has donated over 10,000 bicycle helmets to children in eastern Massachusetts through our Project KidSafe campaign.

Our goal is to encourage children to wear bicycle helmets starting early. Wearing a bicycle helmet is a simple and effective way to protect a cyclist from a head injury. But the key is the helmet must be in good condition and properly fit. Parents also play a critical role, by wearing a bicycle helmet to set a good example for their children.

Massachusetts law requires any person 16 years old or younger riding a bicycle to wear a helmet. By wearing a helmet, cyclists can reduce their chance for head injury by 50 percent, according to the Insurance Institute for Highway Safety. Other studies have found bicycle helmets have an even greater impact in protecting children from falls or bicycle accidents.

About Breakstone, White & Gluck
Breakstone, White & Gluck is a Boston personal injury law firm which is committed to the safety of all bicyclists in Massachusetts. We have over 100 years combined experience representing bicyclists injured by the negligence of others. If you, or a member of your family, has been injured in a bicycle incident, please feel free to contact us for a free legal consultation at 800-379-1244 or 617-723-7676 or use our contact form. Thank you and RIDE SAFE!

Breakstone, White & Gluck Donates Bicycle Helmets to Kids in Easthampton

Breakstone, White & Gluck was pleased to donate 140 bicycle helmets to children in Easthampton yesterday, with help from many hands in the community who care about bicycle safety.

We donated the helmets through our Project KidSafe campaign at an “Event to Celebrate Bike Safety in Easthampton,” organized by the Easthampton Healthy Youth Coalition, the Easthampton Public Schools, the Easthampton Police Department and Northwest District Attorney David E. Sullivan’s office.

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Photo: School Resource Officer Alan Schadel; Northwestern District Attorney David E. Sullivan; Stephen Linsky and Ruth Ever of the Easthampton Healthy Youth Coalition; Attorney David W. White of Breakstone, White & Gluck and from the schools, Nancy Follansbee, Superintendent of Easthampton Schools; Judy Averill; Maple School Principal, Allison Rebello, Principal of Center and Pepin elementary schools; Andrea McCallum, Assistant Principal at Center Elementary School.

The children who received the helmets attend elementary school. In some cases, school administrators selected students who rode bikes and had no access to a safe helmet. But for the most part, children were sent home from school with a flyer and given the opportunity to sign up for a free bicycle helmet raffle.

Children and parents showed up together yesterday at the Easthampton Public Safety Complex. Some of the families came in on the Manhan Rail Trail, a six-mile cycling path which runs through Easthampton and stops at the building.

Attorney David White and School Resource Officer Alan Schadel fit the helmets for the kids. It was a great event because the children and parents were so interested in learning about the proper way to fit a helmet. The Easthampton Healthy Youth Coalition offered kids reflectors and other safety accessories to ride safely.

Breakstone, White & Gluck is now in our fourth year of the Project KidSafe campaign and has donated over 10,000 bicycle helmets to children in Massachusetts. Our goal is to keep children safe and prevent traumatic brain injuries from bicycle accidents. Cyclists of all ages can help protect themselves by wearing a helmet which properly fits, every time they ride. By wearing a helmet, cyclists reduce their chance for head injury by 50 percent, according to the Insurance Institute for Highway Safety.

For help fitting a bicycle helmet, watch the video on our website: www.bwglaw.com/bikes.

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Breakstone, White & Gluck donated 140 of these bicycle helmets to children in the Easthampton public schools.

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Attorney David White getting the kids excited about riding their bicycles, safely. He asked each child to promise to wear their helmet every time they ride.

easthampton-instagram-1.jpgAttorney David White and a young cyclist who received a bicycle helmet.

20160509-IMG_9035-2.jpgEasthampton School Resource Officer Alan Schadel helps a child with his new bicycle helmet.

20160509-_MG_8912.jpgChildren who needed a helmet signed these flyers to enter a raffle.

About Breakstone, White & Gluck
Breakstone, White & Gluck is a Boston personal injury law firm which is committed to the safety of all bicyclists in Massachusetts. We have over 100 years combined experience representing bicyclists injured by the negligence of others. If you, or a member of your family, has been injured in a bicycle incident, please feel free to contact us for a free legal consultation at 800-379-1244 or 617-723-7676 or use our contact form. Thank you and RIDE SAFE!

Breakstone, White & Gluck and Cambridge Police Team Up for Children’s Bike Helmet Giveaway During National Bike Safety Month

Attorney Ronald Gluck and Attorney David White of Breakstone, White & Gluck with Cambridge police officers and children who received bicycle helmets donated by the Boston personal injury law firm.

With a donation from Breakstone, White & Gluck, the Cambridge Police Department will distribute bicycle helmets to children who need one during National Bike Safety Month.

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Photo: Attorney Ronald Gluck and David White of Breakstone, White & Gluck gather with children at the Cambridgeport School, Assistant Principal Audrey M. Sturgis and Cambridge police officers Che Santos and Anthony Santiago. Breakstone, White & Gluck was pleased to donate children’s bicycle helmets to the Cambridge Police Department for National Bike Safety Month in May 2016. 

Cambridge Police has announced its first “helmet voucher” program as part of its National Bike Safety Month initiatives in May. Police officers will specifically be looking for children who are riding bicycles without a helmet throughout May and hand them a “helmet voucher,” which can be redeemed for a free bicycle helmet at the Cambridge Police Department.

Breakstone, White & Gluck donated 140 bicycle helmets to the Cambridge Police in hopes of keeping children safe and preventing traumatic brain injuries from bicycle accidents. The donation was part of our Project KidSafe campaign, which has donated more than 10,000 bicycle helmets to children since 2013.

Massachusetts law requires any person 16 years old or younger riding a bicycle to wear a helmet. By wearing a helmet, cyclists can reduce their chance for head injury by 50 percent, according to the Insurance Institute for Highway Safety.

This is a special donation and Attorney Ron Gluck and Attorney David White joined Cambridge Police at the Cambridgeport School for an unofficial kick off last week. Here are some photos:

Attorney Ron Gluck and Attorney David White join children at the Cambridgeport School along with Audrey M. Sturgis, assistant principal, and Cambridge police officers Che Santos and Anthony Santiago, to kick off the bike helmet giveaway during National Bike Safety Month.

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Attorney David White helps a child fit a bicycle helmet.

_MG_8387.jpgAttorney Ron Gluck finishes fitting a helmet.

cambridge-police-480.jpgCambridge police officers will distribute the bicycle helmets – and also show children how to properly fit them.

helmet-voucher-480.jpgCambridge Police will distribute these vouchers to children who are not wearing bicycle helmets during May.

For more information on how to properly fit a bicycle helmet, visit our Project KidSafe webpage.

About Breakstone, White & Gluck
Breakstone, White & Gluck is a Boston personal injury law firm which is committed to the safety of all bicyclists in Massachusetts. We have over 100 years combined experience representing bicyclists injured by the negligence of others. If you, or a member of your family, has been injured in a bicycle incident, please feel free to contact us for a free legal consultation at 800-379-1244 or 617-723-7676 or use our contact form. Thank you and RIDE SAFE!

Massachusetts Social Host Law: Teenagers and Even Parents Can Face Criminal Charges and Financial Losses for Underage Drinking

DW-250.jpgDuring prom and graduation season, students should be enjoying their friends and last days of high school. But this time can turn painful if you or your teenager allow underage drinking in your home.

Breakstone, White & Gluck cares about the safety of teenagers on the road and offers these tips and reminders about the Massachusetts Social Host Law, M.G.L. c. 138, § 34.

“Very few parents realize just how much is at stake when they allow underage drinking in their home,” said Attorney David W. White of Breakstone, White & Gluck. “You may have to live with the painful knowledge that you contributed to a car accident which caused serious injury or death. Plus, you may have to serve jail time and could even lose your home to a lawsuit.”

Under the Social Host Law, it is a criminal offense for parents and teenagers to provide alcohol to anyone who is underage for consumption in their home. It is also illegal to allow a minor to bring alcohol from elsewhere to drink in your home.

You can also be charged if underage guests are drinking at other places you control, such as a hotel room, a vacation house, or a rental property.

Consequences
If you are charged under the Massachusetts Social Host Law, you could face a fine up to $2,000, imprisonment for up to a year or both. You may also face a civil lawsuit. Your homeowner’s insurance policy may or may not cover the full amount.

You could also be held civilly liable if you provide your teen alcohol to drink at someone else’s home and they later injure someone while driving.

These Cases Really Do Happen
Teenagers and adults are charged criminally for violating the Social Host Law every year in Massachusetts. For example, in December 2015, a Saugus couple – two teachers – were sentenced to jail for hosting an August 2013 party at their home where teens were drinking. Police learned about the party when a 16-year-old became ill and had to be treated at a local hospital.

The two teachers – one an Everett High School teacher – were sentenced to 30 days in jail, with the balance suspended for two years. During that time, they must stay drug and alcohol free and perform 50 hours of community service.

There have been many other criminal cases in Massachusetts. There have also been civil cases.

Attorney David White provided legal commentary on one 2014 case for Fox 25 TV News. A 23-year-old man was ordered to pay $2 million to the parents of a Salem State College student who consumed alcohol at a party he hosted. She was killed in a car accident after she left, in a car driven by her boyfriend who had been also been drinking at the party. Read this coverage.

Here are a few safety tips for you and your teen:

Tell Your Teen There is Zero Tolerance for Underage Drinking. Tell your teen there is zero tolerance for violating the Social Host Law or any underage drinking. Explain what is at stake for them and your whole family.


Help Your Teenager Plan. Help your teenager develop a safe after-prom or graduation plan. Some high schools or community groups organize events as safe havens where there will be no alcohol.


Have Your Teen Commit to Safety. Ask your teen to sign a pledge not to drink or get in the car with others who have been drinking. Here is one pledge from Mothers Against Drunk Drivers (MADD). You can find others online or create your own.

Also, tell them they must always stick with the schedule when they are out with friends and call you beforehand about changes or unplanned stops.


Safety Code.Finally, have a safety code you can use with your teenager. If they call you during the evening, you can ask them if they feel safe or want to come home. That way you, as the parent, can take the blame for prohibiting any change of plans. Your teen can save face by “blaming” you and telling their friends they cannot go out this time.

About Breakstone, White & Gluck
The
Boston personal injury attorneys at Breakstone, White & Gluck have over 100 years combined experience handling serious car accidents. If you have been injured, it is important to learn your rights. For a free legal consultation, contact us at 800-379-1244 or 671-723-7676 or use our contact form.

Recreational Use Statute No Bar to Recovery for Mother Injured at Go-Cart Business

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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