Articles Tagged with “premises liability”

2017-heating-300During these cold and frigid days of winter, some of us are reaching for space heaters. If you can, first try to keep warm other ways: reach for blankets or an extra layer of clothing. But if you must use a space heater, use it with caution and make sure you use it properly. According to the National Fire Protection Association (NFPA), space heaters are involved in 32 percent of home heating fires and 79 percent of home heating fire deaths in this country. They are the second leading cause of home fire deaths behind smoking.

There have been several heartbreaking stories this winter. In Baltimore, six children were killed in a devastating fire last month. Officials are still investigating, but say it may have been sparked by a space heater. Just a few days ago, a 50-year-old Fall River woman tragically died after a space heater fire ignited her home.

According to the State Fire Marshal’s office, Massachusetts fire departments responded to 133 space heater fires from 2006 to 2015, resulting in 9 civilian deaths and 22 civilian injuries. Some 31 fire service members suffered injuries.

The Today Show aired a segment this morning, which shows just how quickly space heater fires can ignite. We encourage you to watch it.

Safety Tips for Properly Using a Space Heater

Three Feet Rule. Keep space heaters 3 feet away from all furniture and people. Put them in the center of the room.

Plug in to Wall. Plug space heaters directly into the electrical socket on the wall. Many extension cords cannot handle the strong level of electricity passed on from a space heater.

Beware of Automatic Switches. These switches are helpful, but are not a substitute for you turning off your heater yourself, unplugging it and putting it away.

Turn Space Heaters Off Properly. Turn off space heaters before you go to bed when no one can monitor them. Turn it off anytime you cannot supervise it.

Keep Space Heaters Away from Water. Do not use space heaters near sinks or in bathrooms.

Create a Fire Escape Plan. Family members should all know how to properly evacuate the home and be aware of all the routes.

Check Your Fire Alarm Once a Month. This is always a good idea, but extra important during the winter months.

Inventory Your Home. Because half of all home heating fires occur during December, January and February, now is a good time to walk through your home and look for hazards. Look outside, too. Make sure your home’s outside furnace vent is clear of snow. A blocked vent can put your family at risk for carbon monoxide poisoning.

Take Extra Precautions if Children Are in Your Home
Take extra precautions if you live with children. Establish a child-free (and pet-free) zone if you set up a space heater. Keep children as far away from the space heater as possible at all times. Also keep toys away. When finished, turn the space heater off and unplug it. Put it in a safe place which it out of reach of children.

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

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

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

201501016_staircase.jpgThe City of Boston has identified 580 potentially overcrowded student apartments across the city from data provided by colleges and universities, The Boston Globe recently reported. City inspectors will now investigate whether the units are violating city zoning rules, which bar more than four full-time undergraduate students from sharing the same apartment.

The city recently collected more than 25,000 student addresses from 31 colleges and universities so it can investigate potential apartment safety violations and overcrowding. If overcrowding is found, city officials plan to work with landlords and universities to move students to safer, alternate housing.

In 2013, Boston University student Binland Lee died in an apartment fire in Allston. She had been living at the Linden Street building with more than a dozen other people, a violation of city zoning rules. The Boston Globe Spotlight team later reported the property had been converted to a two-family home after a previous fire in the 1990s. This move blocked off a central staircase and restricted access. The building owner, Anna Belokourova, was later cited for running an illegal rooming house and not obtaining the permits needed to create bedrooms in the basement.

The Lee family has filed a wrongful death and premises liability lawsuit against Belokourova as well as Gateway Real Estate Group, which rented the apartment to her and six other housemates. Attorney Ronald E. Gluck of Breakstone, White & Gluck represented another woman who was seriously injured in the same fire.

In 2014, the Boston Globe Spotlight team investigated and found other instances of unsafe and crowded conditions for Boston students. It surveyed 266 students who lived off-campus in Boston and found nearly one-third were living in units with at least five undergraduate students, a violation of city zoning law.

Also from the survey:

  • 25 percent of students reported having trouble reaching their landlord to report safety concerns
  • 20 percent reported living without functioning smoke alarms
  • 33 percent reported a lack of heat in their apartments

As these safety violations happen, more students are coming to Boston and living off-campus than in the past. Colleges are facing a space crunch and neighbors have opposed many of their efforts to build new dorms. The Boston Globe estimated more than 45,000 Boston students lived in off-campus housing in 2013, a 36 percent increase from 2006.

Our attorneys have represented Boston college students and other tenants who have suffered serious injuries as a result of housing code violations and overcrowding conditions. Here are summaries from two recent cases:

Overcrowded Student Housing Fire in Allston, Massachusetts
Our attorneys represented a woman who was seriously injured in a 2013 fire in an illegal apartment in Allston, Massachusetts. More than a dozen college students were living at the home in violation of city zoning ordinances. Read about this case.

Students Injured in Escape from Quick-Spreading House Fire
Our attorneys represented one of two college students who were seriously injured a single-family home fire in Boston. One student suffered a brain injury when he jumped from a third-floor window to escape and landed on a concrete driveway. The other student broke her back and injured her ankle when she jumped off from the second floor. The case was settled at mediation. The case was reported by Massachusetts Lawyers Weekly on May 29, 2014. Subscription required.

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smokedetector_blogAs Daylight Saving Time ends Sunday, we all have a very important chore: changing the batteries in our smoke alarms and carbon monoxide (CO) detectors. The good news is we have an extra hour in the day to get that chore done.

Smoke alarms provide necessary warning for us to act in a fire. Each year, more than 2,200 people die in unintentional home fires in the United States. The greater tragedy is nearly two-thirds of these deaths occur in homes with no smoke alarms or ones which do not work.

Here are a few additional suggestions for Boston and Massachusetts residents:

  • You should have working smoke alarms on every level of your home, inside and outside sleeping areas.
  • Purchase fire extinguishers for your kitchen, basement, work areas, and garage. Check them every few months to remind yourself of where they are, and make sure they are properly charged.
  • Replace smoke alarms every 10 years and carbon monoxide detectors every five years.
  • Talk to your family, roommates and landlord about your fire evacuation plan.
  • Walk through your home and apartment and practice your fire evacuation plan. In an emergency, you and others may have to pass through unfamiliar areas.
  • If you are a Boston college student renting an apartment, make sure you and your roommates are following house rules for cooking and that no one is smoking in the living area.
  • Report any potential fire hazards to landlords promptly, including blocked access ways and electrical irregularities.

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Every year, thousands of people in the U.S. die in drownings. Many of these are young children who drown in swimming pools. Last summer alone, nearly 140 children under age 15 drowned in swimming pools and spa tubs, according to the Consumer Product Safety Commission (CPSC). 

While the risk of personal injury and wrongful death from drowning has long been known, new dangers have emerged at pools in recent years. As many homeowners have removed diving boards for safety and insurance reasons, many others are purchasing inflatable slides, sports nets and trampolines to enjoy by the pool.

Two recent Massachusetts cases touch on these risks. Last month, the Supreme Judicial Court ordered a new trial in Dos Santos v. Coleta, where the plaintiff was paralyzed in 2005 when he jumped off a trampoline and struck his head in a two-foot inflatable wading pool. The pool and trampoline were owned by his half brother, the defendant.

The SJC found the trial court judge provided improper instructions when he said the jury could stop deliberating if they concluded the danger of jumping off a trampoline and into the pool was “open and obvious.” 

The SJC ruled that the trial judge should have also instructed that a property owner is not relieved from correcting such dangers in cases where they can or should anticipate that the dangerous condition will cause harm.

“Because we conclude that a landowner has a duty to remedy an open and obvious danger, where he has created and maintained that danger with the knowledge that lawful entrants would (and did) choose to encounter it despite the obvious risk of doing so, we now reverse,” wrote Justice Cordy.

The plaintiff, Cleber Coleta Dos Santos, had been playing with his young son on the trampoline when he attempted to flip off and into the pool at his half brother’s Framingham home. He suffered permanent paralysis. His half brother and sister-in-law owned the home, but had moved out a few days prior, leaving the trampoline positioned next to the pool where it could be used in the backyard. The SJC noted that the homeowner disregarded warnings printed on the side of the pool against jumping or diving into the pool.

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The Banzai inflatable slide is another product which has caused injury and death in Massachusetts in recent years.

You should not see any Banzai slides for in-ground pools this summer. They were recalled in May 2012, after a woman’s death in Massachusetts and two reports of serious injury in other states. The inflatable slides were designed to sit on the edge of a pool so swimmers can climb to the top and slide down as water sprays. But the structure easily deflated, removing support for the user. It was also easy to knock down, even without windy conditions.

In 2006, a 29-year-old Colorado mother visiting Massachusetts fractured her neck and struck her head while using a Banzai inflatable slide. When she stepped up and started to slide, there was not enough support and her head hit the pavement near the edge of the pool. The slide had been partially deflated. The woman died the next day at a Boston hospital.

In October 2011, a jury in Salem Superior Court ordered Toys R Us to pay more than $20 million to the woman’s family, finding the Banzai slide did not comply with federal safety standards for swimming pool slides. Toys R Us had sold the product to the victim. Amazon.com – the website where the product was sold through – and manufacturer SLB Toys USA settled with the woman’s family after the trial began.

In May 2012, Walmart and Toys R Us recalled 21,000 Banzai slides for in-ground pools, asking consumers to return the product for a full refund. Banzai continues to sell inflatable slides and water castles which are stand alone.

Toys R Us recently appealed the case to the Supreme Judicial Court, arguing the the Consumer Product Safety Commission regulation cited by the woman’s family does not apply to inflatable pool slides, but only to rigid pool slides.

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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

As the cold weather makes its return to Massachusetts, many people are bringing out the portable space heaters.

Always practice caution when using space heaters. Each year, space heaters cause death, injury and substantial property damage in both Massachusetts and across the country.

In 2007, U.S. fire departments responded to 66,400 home structure fires that involved heating equipment, according to the National Fire Protection Association. These fires killed 580 people, injured another 1,850, and were responsible for $608 million in direct property damage.

In Massachusetts, there were 57 space heater fires between 2004 and 2008, according to the Office of the State Fire Marshal. One in every six space heater fires caused a fatality.

The leading cause of space heater fires is when the appliance gets too close to combustible materials, such as furniture, carpeting or bedding. Other space heaters are also defective, improperly made and should never have been sold to consumers.

If you are using a space heater this winter:

  • Keep the space heater at least three feet away from flammable items, such as rugs, curtains, blankets or clothing.
  • Use a space heater to supplement your furnace. A space heater should not be your primary source of heat. If you are worried about having your heat shut off, learn more about the state’s Utility Shutoff Protection program.
  • Do not leave a space heater in a room unattended while it is turned on or plugged in.
  • Take caution not to use a space heater when you are sleepy. Many fires happen when someone falls asleep near a space heater.
  • Do not allow small children near a space heater.
  • Do not use an extension cord with your space heater. Many space heater fires start when an extension cord ignites a carpet, rug or wood floor. If an extension cord is needed, use one that is new and rated by the Underwriters Laboratory at 16-gauge or thicker.
  • Purchase a space heater with an automatic shut off. This will stop the device from working if tipped over.
  • Inspect your space heater for cracks and broken parts. If you see a problem, replace it before using.

For more information on space heater safety, visit the National Fire Protection Association’s website. We also urge you to check regularly to see if your space heater has been recalled. You can search for your model on the recall section of the Consumer Product Safety Commission website. If you don’t find anything, try a simple Google search. Space heaters are regularly recalled, as are other devices. Manufacturers make design mistakes, or errors are made somewhere along distribution. Other times products are marketed incorrectly. Even if you register products with the company, you really have to be proactive and search for product recalls yourself to protect your family. We should not have to check; manufacturers have a responsibility to fully test products before making them available to consumers. Because this does not always happen, it’s important to check for space heater recalls on your own.

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A recent Boston Globe editorial sheds an important light on how to prevent pool drownings.

The editorial points out that many states already have strong pool safety laws. For example, Massachusetts and nine other states have laws requiring fencing around pools. Safety groups also recommend pool gates be self-closing, self-latching and equipped with an alarm. Angelo Puppolo Jr., a state representative from Springfield, has further proposed mandating motion-detecting pool alarms and other safety measures.

The Consumer Product Safety Commission calls these steps, “layers of protection” and it’s an important concept to think about incorporating into your backyard pool – regardless of whether you have children.

The Boston Globe editorial, however, points out pool safety goes beyond the “layers of protection” strategy. Here’s a startling statistic shared in the editorial: nine out of 10 children who drown are being supervised by a parent or caregiver at the time.

This means we need to rethink how we supervise children in the pool. Listening while a child plays in the pool may not be enough. Drowning children are struggling to breathe, unable to call for help. Rather than splash, children will sink to the bottom of the pool.

When with a group of adults, the Consumer Product Safety Commission recommends designating someone the “pool watcher.” But with more than one child, the more eyes the better.

Read the Boston Globe editorial, “Pool Safety: Eyes on Kids at All Times,” Aug. 4, 2010

Read another Boston Globe article, “Drownings Put Focus on Pool Safety,” Aug. 7, 2010
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The Massachusetts social host law was back in the media this weekend when a mother and son were arrested following a large underage drinking party at their Cohasset home.

Police found 30 people at the Deep Run Road gathering. The mother was charged with furnishing alcohol to minors under the social host law, keeping a disorderly house and disturbing the peace. Her 18-year-old son was charged with furnishing alcohol to minors and being a minor in possession of alcohol.

The Massachusetts social host law was passed in 2000 after the 1996 death of a Marshfield teen. The teen had been drinking at a Cohasset graduation party and left with a blood alcohol limit of .19, crashing his car.

In that case, the homeowner was at the party but acquitted of providing alcohol to a minor. This was in part because underage guests helped themselves to unsupervised alcohol and were not offered drinks.

The social host law now holds Massachusetts homeowners and their teenagers more accountable. It is against the law to serve minors alcohol and allow them to consume it on any premises you control. The penalty is a fine up to $2,000, imprisonment for a year or both.

A person charged under the law can expect to face a civil lawsuit as well. If an underage guest leaves a party and causes a motor vehicle accident involving personal injury or death, both the underage guest and the party host may be liable.

When two or more parties are found civilly liable, any one of them may be required to pay the full judgment if the other party or parties cannot afford to pay.
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The Supreme Judicial Court (SJC) of Massachusetts today changed the rules in slip and fall cases involving snow and ice.

The Massachusetts high court eliminated the distinction between natural and unnatural accumulations of snow and ice, replacing it with the standard rule of reasonable care for all property owners.

The change came in a case involving a Peabody resident who fell on ice in the parking lot of the Target department store at the Liberty Tree Mall in Danvers. The trial court determined the ice was a natural accumulation and found for Target and the landscaping company. The personal injury case was affirmed by the Appeals Court. The SJC took the matter on further appellate review and invited briefs on whether the time had come to reconsider the long-standing doctrine concerning unnatural versus natural accumulations of snow.