Shedding an Important Light on Pool Safety

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
Read More

Massachusetts Social Host Law Holds Property Owners Accountable for Underage Drinking

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.
Read More

Massachusetts Legal Standard for Slip and Falls on Snow Changes

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.

The court found for the plaintiff and eliminated the distinction in Papadopoulos v. Target Corporation, SJC-10529 (July 26, 2010). For additional analysis of the case, read our Lawyer Alert! The full text of the decision can be found by clicking here.

Breakstone, White & Gluck is a Boston personal injury law firm specializing in complex injury cases such as slip and falls, medical malpractice and premises liability. If you are a Massachusetts attorney, we invite you to read our legal analysis and provide us your feedback. If you are a member of the public seeking assistance with a personal injury case, we can be reached at (617) 723-7676.

Massachusetts Appeals Court Clarifies Law on Responsibility of Landowner to Remove Snow and Ice

New Trial Ordered for Tenant Who Suffered Broken Hip

Have you been injured when you slipped and fell on ice? This case may be important to you.

The Massachusetts Appeals Court has granted a new trial to a plaintiff injured after falling on ice after the Superior Court justice misapplied the legal rule governing open and obvious dangers in a premises liability. The Court limited the application of the open and obvious rule in snow and ice cases.

At the trial, the judge allowed instructions on the defense of an “open and obvious” danger, and failed to instruct the jury on comparative negligence. The verdict was for the landowner which had failed to treat a large area of frozen slush with deep footprints in it.

The case made it clear: The open and obvious defense does not apply to snow and ice cases. Snow and ice do present obvious dangers to pedestrians, but often there is no safer route for a pedestrian to take. The proper questions for a jury is whether the landowner was reasonable in his or her effort to reduce the danger from an unnatural accumulation of snow or ice, and whether the plaintiff was comparatively negligent.

The case is good news for pedestrians, whose rights to recover for injuries in snow and ice cases are made stronger by the case.

For a more complete discussion of this case, please read the article on our website, Massachusetts Appeals Court Clarifies Law on Responsibility of Landowner to Remove Snow and Ice.

The case was Soederberg v. Concord Greene Condominium Association, Appeals CourtNo. 09-P-380, February 25, 2010.

If you have been injured after slipping and falling on ice: Please contact our office if you need legal representation for personal injuries caused by slipping and falling on ice. We have over 80 years of experience on these types of cases.

Massachusetts Appeals Court Allows Dog Bite Case Against Landlord to Proceed

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).  

Read More

Massachusetts Ice Storms Leave Residents Slipping and Sliding

The winter of 2009 has already beaten the law of averages when it comes to total snowfall. But this year has distinguished itself even more as the winter of ice storms. Those storms have left thousands without power, some for weeks on end. And all of that ice has led to spikes in admissions to emergency rooms around Massachusetts for broken ankles, fractured wrists, hip fractures, and back injuries.

So many people wonder, who can be held responsible if you slip and fall on a patch of ice or snow? Believe it or not, in Massachusetts personal injury cases caused by slips and falls on ice or snow are very difficult cases, and often do not lead to liability. 

For one thing, the common law in Massachusetts precludes premises liability for accidents which occur as the result of natural accumulations of ice or snow. This means that if your neighbor fails to shovel or the office downtown leaves some ice after an ice storm, then the landowner is probably not liable. The same is usually true even if the landowner has moved only some of the snow or ice which had naturally accumulated.

The situation changes when snow is moved into piles. Piles which obstruct your passage on sidewalks, walkways, or driveways can be found to be unnatural accumulations. Another uncommon unnatural accumulation is the discharge of water from drain pipes or gutters onto walkways.  Other alterations to property which cause water to form ice in channels or puddles may also lead to liability.

Massachusetts also has strict notice requirements after an accident caused by snow or ice. The landowner must be notified within thirty days, or the landowner may have a legal defense of prejudice due to lack of notice.

Read More

Massachusetts Appeals Court Defines Victim Rights in Premises Liability Accident, Fall at Home in Sunken Living Room

The Massachusetts Appeals Court has made it clear in a premises liability case that the “open and obvious” defense does not apply to a person falling into a sunken living room. The Suffolk County case arose from an accident at a residence. The plaintiff did not notice that there was a single step from the hallway into the sunken living room. She fell and broke her hip and required surgery and rehabilitation. She claimed that she did not see the step because the floor in the hall and the floor in the living room were both the same, light-colored tile, and the light from the windows and skylight obscured the step.

It is well known that single steps with no warnings, or with no changes in color from level to level, are a common cause of premises liability accidents. Even a cautious person can easily miss a single, but dangerous, step; you just don’t expect a drop from one room to another, and you instinctively rely on visual clues to warn you of dangerous steps.

Back to the case: The defendants argued that the construction of the house, and the condition of the step down to the sunken living room, was open and obvious. They also argued that, as a matter of law, they should receive summary judgment (which means judgment as a matter of law). They were able to persuade the trial judge to grant them summary judgment. But the plaintiffs appealed, and the Appeals Court reversed the trial judge and agreed that the plaintiffs were entitled to receive a jury trial.

The Court visited some familiar principles of premises liability law. Homeowners are required to keep their premises reasonably safe, and they are required to warn of known dangers. They do not have to warn of open and obvious dangers. While the court did not explain in detail its reasoning regarding open and obvious dangers, the general principle that applies is that a homeowner can rely on a visitor exercising care for his own safety when the hazards are blatantly obvious.

Read More