Articles Tagged with “law update”

By David White

In a case of first impression, the Massachusetts Supreme Judicial Court ruled today that the provisions of G.L. c. 186, § 19 apply to commercial leases, and accordingly, a commercial property owner may be liable for personal injuries on the premises after receiving notice of a defect of proper repairs are not made. The property owner may be liable even if the tenant is in possession of the entire premises, if the injury is not in a common area, and if the tenant is responsible for repairs under the lease. 

The plaintiff operated a tanning salon in a single-story building which she leased from the defendant real estate trust. In 2000, the plaintiff sent a certified letter to the trustees complaining of leaks and cracks in the ceilings around the skylights. She was injured when she was struck in the eye by falling plaster; she fell and suffered injuries.
At the close of the evidence in the trial the Superior Court judge granted the defendant’s motion for a directed verdict. The judge ruled that G.L. c. 186, § 19 only applied to residential leases; that the plaintiff had not contracted for repairs; and that there was no gross negligence in the previous gratuitous repairs of the roof. The plaintiff appealed.
The SJC reversed. The court found § 19 did apply to commercial premises, provided the landlord has received written notice of the unsafe condition.
The case is Bishop v. TES Realty Trust, SJC-10696 (March 1, 2011).
To read more about this case, please see our the article on our website: Commercial Liability Expanded by Recent Massachusetts Supreme Judicial Court Ruling. Continue reading

Preventable hospital infections are claiming some 100,000 lives a year nationwide and threatening patient safety, despite a renewed focus on cleaning up hospitals, the US Department of Health and Human Services’ Agency for Healthcare Research and Quality has found.

A recent report found in-hospital infections warrant “urgent attention,” with rates of post-operative bloodstream infections and catheter-associated urinary tract infections increasing by 8 and 4 percent respectively. Yet there is good news: the Agency found overall health care quality is slowly improving.

The Agency found hospitals have adopted basic standards for hand hygiene, disinfecting patients, sterile handling of equipment and antibiotic use. 

The Secretary of Health and Human Services, Kathleen Sebelius, anticipates a new law will improve the rates for hospital-acquired infections and prevent fatalities.  Starting in the 2015 fiscal year, hospitals with high rate of infections will face penalties.

Hospital-acquired infections are pervasive and fatal but also extremely preventable.  The Committee to Reduce Infection Death (RID) points to several areas where hospitals can improve: First, over half the time, doctors do not disinfect their hands immediately before touching a patient.  Also, many hospitals do not screen incoming patients for MRSA, one of the most pervasive in-hospital infections.  Finally, surgery patients may not be advised to shower with chlorhexidine soap daily before the operation, although the practice reduces the risk of infection.  RID hypothesizes as evidence of the preventable nature of in-hospital infections grows, so will hospital liability.

For more information on the Agency’s Annual Quality and Disparities Report, see this press release or the reports themselves.

For information about different types of hospital-acquired infections and methods to reduce infections, see this guide from the World Health Organization.

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A lawsuit over tired truck driving may eliminate an embattled rule that concerns safety advocates about the risk of truck accidents, motor vehicle accidents and wrongful deaths on the nation’s roadways.

Since 2004, advocacy groups have been battling an hours-of-service rule passed by the Bush administration that increased the maximum number of consecutive hours a trucker could work from ten to eleven and decreased the rest and recovery time from fifty hours to thirty-four. Safety advocates claim that the changes are likely to lead to more motor vehicle accidents, serious personal injuries and wrongful deaths.

Twice, advocacy groups have successfully challenged the rule in court just to have the administration reissue the same rule.  In 2004, the court vacated the hours-of-service rule on the grounds that the government did not adequately consider the effects of longer driving hours on individual truck driver welfare and public safety.  In 2007, the court vacated the rule again because the agency did not allow public notice and comment on the new crash risk analysis used as justification to reissue the same rule. 

Advocacy groups brought a third lawsuit in 2009 and will finally see an outcome. As part of a legal settlement, the Department of Transportation and the Federal Motor Carrier Safety Administration (FMCSA) have agreed to redraft the existing hours-of-service rule. In January, the agencies held several sessions around the country to gather public comment.

As they start work, safety advocates hope that the new rule will reflect the dangerous reality of tired truckers.  The deaths and personal injuries caused by drivers falling asleep in the cab can be catastrophic for truck drivers and people on the road. 

The U.S. National Transportation Safety Board points to driver fatigue as a likely factor in twenty to forty percent of truck crashes.  Safety advocates, including members of Parents Against Tired Truckers and Citizens for Reliable and Safe Highways, applaud the settlement as a step in the right direction towards safe roads.

There are typically over 1,000 Massachusetts truck accidents every year, nearly half of which involve out-of-state motor carriers. In 2006, 34 people were killed in Massachusetts trucking accidents.

For more information on the regulations, see the FMCSA website.  For an overview of what information FMSCA is considering in formulating a new rule, see this presentation. The Truck Safety Coalition has a collection of stories and press releases on the hours-of-service rule and trucker fatigue.     

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The Federal Government is taking a firm stand against the dangers caused by texting drivers. U.S. Transportation Secretary Ray LaHood announced Tuesday that, effective immediately, commercial bus and truck drivers are prohibited from texting while driving. Texting truck and bus drivers face civil or criminal penalties of up to $2,750. 

The goal of the new law is to reduce truck accidents and motor vehicle accidents caused by distracted driving.  According to the Federal Motor Carrier Safety Administration, drivers take their eyes off the road for an average of 4.6 seconds out of every six seconds while texting.  This means drivers who text are more than 20 times more likely to get in an accident than nondistracted drivers.

This is not the first move that the government has made to reduce the dangers of texting drivers.  Nineteen states have passed laws banning texting while driving.  President Obama has also signed an executive order requiring federal employees not to text while driving government-owned vehicles or with government-owned equipment. 

The attention on texting comes after several high profile accidents caused by texting motor vehicle operators.  In September 2008, a California commuter train engineer missed a stop signal while trading text messages with a friend, leading to a train accident resulting in the wrongful death of 25 people.  In May 2009, 62 people suffered personal injury after a Massachusetts Bay Transportation Authority trolley driver collided with another trolley while texting.

For more information about the dangers of distracted driving, see the Transportation Department’s website www.distraction.gov.

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The Massachusetts Appeals Court has allowed the claim of a child who was bitten by a dog to proceed to trial against the landlords, even though the landlords did not own the dog.  The ruling reverses a lower court ruling in favor of the landlord.

The plaintiff was ten years old when he was attacked by a pit bull named Tiny. Tiny belonged to another tenant in the same 4-family building. Tiny had been found in the woods and adopted by the family. Tiny had demonstrated some aggressive behavior prior to the date of the incident.  The plaintiff’s family maintained that they had lodged multiple complaints with the landlords about not just the presence of the dog, but also its aggressive behavior. The landlords were also informed that Tiny was allowed to roam unrestrained, a violation of the Waltham leash law. The landlords claimed they had no knowledge that the dog might be dangerous.

The landlords had a no-dog policy for the premises, but failed to enforce that policy with regard to Tiny.  In fact, the plaintiff’s family had previously given up its dogs because of the landlords’ policy.

On the date of the incident, Tiny was sitting on a porch, unrestrained, then ran across the yard, jumped a fence, and bit the plaintiff who was playing in the neighbor’s yard. The ten-year old had mulitiple dog bite injuries to his leg.

The Superior Court judge ruled that the landlords were not negligent, and that the fears of the pit bull were “subjective.”  The Appeals Court disagreed.

In Massachusetts, a third party such as a landlord, is not liable under the Massachusetts strict liability statute governing dogs. While a dogs owner or keeper is strictly liable for injuries caused by their dog, a third party can be liable only if he or she is negligent. A landlord does not insure that the property will be safe, and has a duty to use reasonable care for the premises.  Thus, in this case, the plaintiff is required to prove that the landlord knew or should have known of the dangers of the dog.  The landlords could not be held liable just on the fact that the dog was of a dangerous breed, but could be held liable if they had knowledge of its dangerous behavior.

The Appeals Court also noted that negligence cases are ordinarily best left to a jury’s consideration, since the cases often turn on disputed facts. Given the disputed facts in this case, namely whether the landlord had received reports of the dog’s dangerous behavior, the case was sent back to the Superior Court for trial.

The name of the case is Nutt v. Florio, Appeals Court No. 08-P-81 (October 19, 2009).  

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