Articles Posted in Premises Liability

May 2, 2013 – Gregory Poole, 55, of East Bridgewater, Massachusetts, sustained serious personal injuries when he was struck by an SUV. The accident occurred on Wednesday at approximately 1:00p.m. while Poole was standing outside of the home he rents. The driver, his sister, Cynthia Gerrior, 53, of Whitman, had been parked in Poole’s driveway when she placed the vehicle in reverse, and caused it to strike Poole, and continue into the house through the front door.

According to the East Bridgewater Fire Department, Poole was airlifted by MedFlight helicopter to Tufts Medical Center in Boston with multiple internal injuries. He was listed in good condition on Thursday. Gerrior was taken from the scene in an ambulance, but was uninjured.

The house sustained extensive property damage, including a 10’x10′ hole where the front door used to be. There are broken windows, hanging insulation, and lose wires and plugs.

The East Bridgewater Police Department responded to the scene, and do not believe Gerrior will be charged with criminal negligence.

Source: Enterprise News

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December 23, 2009 – Gerard Boucher, 48 from Newburyport, Massachusetts, and Geraldo Hernandez, 37 of Haverhill, were seriously injured when the scaffolding, which they were using to renovate a home in Newburyport, collapsed beneath them Tuesday afternoon. The two men were working at the home located at 25-27 Kent Street when the accident occurred.

scaffold.gifAccording to police, the men were hanging fascia board trim along the roof on the side of the house adjacent to the home at 29 Kent Street. It appears that a faulty bracing support caused the scaffolding to tumble. A third worker, who was installing ice shields on the roof at the time of the accident, heard the crash but did not see the men fall.

When rescue workers arrived on the scene, both victims were unconscious and Boucher had visible massive head trauma. The men were treated at the scene and then brought to Anna Jacques Hospital in Newburyport. Boucher was subsequently transferred by medical helicopter to Massachusetts General Hospital, where he is listed in critical condition. Hernandez was also airlifted to Beth Israel Hospital, where he is listed in good condition.

This accident remains under investigation by the Newburyport Police Department and the U.S. Occupational Safety and Health Administration.

Source: The Gloucester Times, The Gloucester Times

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Boston Massachusetts Personal Injury Attorney, Keith L. Miller, reviews a recent Appeals Court case involving an apartment fire:

The Massachusetts Appeals Court has recently reversed the trial court’s decision to exclude a fire inspector’s expert testimony in a case where a plumber may have negligently caused a fire in an apartment.


Cambridge Fire.JPGMichael Paulo, the plumber, used a machine called the IceBreaker 350 to thaw frozen pipes in a Somerville apartment owned by Irena Anderson, before a fire broke out. The pipe-thawing machine was used underneath the sink of the third floor apartment. Before he used the machine, Paulo removed the items that were under the sink, which included some household cleaners and rags.

 Paulo told Anderson that he had to run the machine for a longer period than usual because of the severe frozenness of the pipes. As Paulo was consulting with Anderson outside of the house, the second floor resident exited the building and alerted them that a fire had broken out on the third floor.

Paulo alleges that he cleared out the contents from under the sink, used the machine for about ten minutes until the ice started to melt, discontinued use of the machine, and then cleaned up and put the items back under the sink.

It appears that the pipes were still so hot that either their direct contact with the cleaning supplies or the heat generated by the pipes caused the fire. At least that is what Lieutenant Brian Higgins of the Cambridge Fire Department concluded in his official fire inspection report.

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July 4, 2009 – Jacqueline Sorensen, age 83, crashed her car through the storefront window of a Natick, Massachusetts liquor store yesterday. The Ford Mustang convertible hit the checkout counter and struck the cashier, apparently only causing the female worker only minor personal injuries. Natick police investigated the car accident, have charged Sornesen with Operating to Endanger and have suspended her operator’s license, calling her an immediate threat.

According to Natick Police, the car crashed into Fannon’s Liquor Store on North Main Street at about 10:40 a.m. The driver was taken to the hospital, suffering from chest pain. Apparently, she had no recollection of what had happened. Her car had a handicapped placard.

The cashier, Debra Blenkhorn, 51, has worked at the store for 13 years. She was also taken to the hospital with arm and neck pain. Apparently, she had been pinned between the counter and a shelf full of liquor bottles.

Marcello Ventrella, and Aram J. Pothier, respectively of Bellingham and Blackstone, Massachusetts, have died as the result of personal injuries suffered after a night of teenage drinking. They were passengers in a motor vehicle driven by Robert Baez, who was seriously injured, but survived the accident. The accident took place on I-295 in Smithfield, Rhode Island. Both of the deceased were riding in the backseat, were not wearing seatbelts and were pronounced dead at the scene.  The fourth passenger, Christopher J. Cuomo, escaped without serious injuries.  

The young men began their night in Massachusetts, but allegedly ventured to a Providence, Rhode Island bar, where it appears they were served alcohol.  Rhode Island State Police are still investigating the details of the accident and the events preceding the accident. However, it appears that all four of the young men had been drinking and were served in the bar, as yet unidentified.

The obvious question arises as to who is ultimately responsible for this tragic accident. Baez, the young driver, of course is the primary responsible party. However, the tougher question is whether others can and should be held responsible for the condition he was in at the time of the accident. Given that all four were underage, including Baez, if it is true that he was served at a public drinking establishment, the owners of that bar may bear some responsibility for the accident.

The law with respect to the responsibility and liability of public establishments, which are licensed to serve alcohol is well established in Massachusetts and Rhode Island,  “Dram shop liability” arises when bars and liquor stores negligently serve alcohol to underage or noticeably intoxicated individuals.  This requires proof that the bar knew or should have known that the customer who drove a vehicle was intoxicated. 

A traditional dram shop case involves an innocent injured third party such as the driver of another vehicle or somewhat walking down the street.  The fact that the claimant in this instance  were passengers in the vehicle, may have also been drinking themselves, and likely knew that Baez also had been drinking. Such facts may raise issues of comparative negligence, but does not bar recovery for the families of the deceased young men who died in this accident.

  Source: Bostonchannel.com
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The above information is provided by Boston Accident and Personal Injury Lawyer, Keith L. Miller, a Boston, Massachusetts civil trial lawyer, specializing in the legal representation of individuals who believe that they have been injured as the result of the negligence of others and have been involved in all types of accidents causing personal injury. If you or a loved one has been injured in an accident where you believe someone else is at fault, contact Keith L. Miller to arrange a free consultation 24 hours a day, 7 days a week either by telephone at (617) 523-5803, or click here to send him an email. You will be contacted within 24 hours. 

 

 

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Boston Personal Injury Lawyer, Keith L. Miller, analyzes a recent Appeals Court decision pertaining to double penalties under the Worken’s Compensation Act.

The case involves a store employee who suffered serious personal injuries after falling through a trap door in the floor of a floral shop, the Massachusetts Appeals Court has reversed a decision by the Department of Industrial Accidents reviewing board that awarded an employee double compensation (under Mass. G.L. c. 152, § 28), finding that the employee’s injury was due to the serious and wilful misconduct of the employer. The Appeals Court determined that the record did not support a finding that the employer’s conduct rose to the level of a wanton and reckless disregard for safety.

trap door.jpgThe employee was working at a floral shop on Valentines day in 1991 when she fell into a trap-door floor opening, which covered a set of stairs leading down to the cellar. She fell into the hole sustaining serious personal injuries. The floor door measured approximately eight feet by three feet, and qualified as a “floor opening”, which made it subject to the state and federal regulations, and certain mandatory safeguards.

The employer was not aware of the regulations, and instead relied on its own warning system of orange safety cones and chains to warn and protect the employees. However, the system was only used sporadically, and was not in place on the day of the accident. There was also some evidence that there may have been insufficient floor space in the area of the trap door due to the placement of a table for completed work orders. There was also evidence that because it was Valentine’s day, the work pace in the store was much heavier than normal.

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This is Part Two of a two part Blogpost where Boston Personal Injury Lawyer, Keith L. Miller, reviews and analyzes a recent First Circuit U.S. Court of Appeals ruling, in which an insurer sought a declaration that there was no coverage for an personal injuries as the result of an accident involving a contract worker who severed his arm in a wool picking machine. The worker had sued the Massachusetts recycling company where he had been working for a number of months. (Click here to view Part One)

PART TWO :  THE COURT ANALYZES DISTINCTION BETWEEN “LEASED WORKER” AND “TEMPORARY WORKER” IN POLICY TO DETERMINE COVERAGE

Having reviewed the underlying facts of the case, the Court went on to analyze the express language of the insurance policy, attempting to discern whether the lower court had correctly determined that the the worker’s contract was indefinite and therefore not temporary, which was its basis for ruling that there was no coverage for the accident.

wool baling machine.jpgIn the policy a leased worker was defined as a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. A temporary worker was defined as a person who is furnished to you to substitute for a permanent “employee” on leave or to meet seasonal or short-term workload conditions.

The question then for the Court of Appeals was whether Torres was a “leased worker,” and thus excluded from coverage; or a “temporary worker,” thus obligating Scottsdale to provide a defense and coverage in Torres’s lawsuit. The district court had determined that Torres was not a temporary worker on the basis that the term “short term” worker, though not defined in the policy, suggested a brief and relatively finite period of time.

Based on deposition testimony of CTC’s president that Torres was to stay at CTC “for as long as he was needed”, and a Venturi manager’s testimony that Torres was assigned to CTC “indefinitely,” the lower court determined  that “indefinite” and “short-term” were mutually exclusive, that Torres’ stay with CTC was indefinite and that he was therefore not a “temporary worker”. Therefore his claim was not covered under the policy.

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(This Boston Accident and Injury Lawyer Blogpost is the Last in a Three Part Analysis of a Recent U.S. Appeals Court Ruling involving defamation, public officials and the news media Click here to view Part One and Click Here to view Part Two)

PART THREE : THE COURT RULES ON THE DEFAMATORY BROADCAST

As stated previously, under Maine common law, a plaintiff alleging defamation must show a false and defamatory statement published without privilege to a third party resulting in harm to the plaintiff.

HAMSTEAK.jpgIn the lower court proceeding, the defendants had contended that the various statements made on the show and attributed to Levesque either were not defamatory or, because Levesque had stipulated that he was a public official, it could not be shown that they were made with actual malice. The district court held that the statements were protected on multiple grounds. It found the “hate crime” comments substantially true and mention of the “anti-ham response plan” protected as “rhetorical hyperbole”.

However, the lower court determined that the ham sandwich and the “ham is not a toy” comments were materially false, reasonably susceptible of a defamatory meaning, and highly offensive. Yet the court believed that Levesque had failed to demonstrate that the defendants had acted with constitutional malice when they made the defamatory comments.

The Court of Appeals agreed, finding that most, but not all of the statements attributed to the Plaintiff were largely true, although laced with “imaginative expression” or “rhetorical hyperbole”, which it concluded were protected speech.

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(This is the second post of a blog, from Boston Personal Injury Lawyer, Keith L. Miller, which considers protections afforded under a Massachusetts statute intended to protect non-profit entities from liability from accidental personal injury)

PART TWO – GL C. 231, S. 85V CONSIDERED 

General Laws c. 231, § 85V limits the liability of non profit sports programs to third parties for accidents and injuries arising from the conduct of such programs. However, the limit on liability is not absolute. Specifically, liability can arise for conduct relating to the care and maintenance of real estate which the association uses in connection with a sports program or related activity (G.L. c. 231, § 85V(iii)).

goal-post2.jpgThe Plaintiff articulated two reasons why the immunity provided by the statute should not apply to his facts. First, he contended that the statute did not apply because he was neither a participant, nor a spectator at an organized game or practice at the time of the accident. The Court rejected this theory on the basis that the immunity was not controlled by the status of the individual who was injured, but rather on the question of what was the status of the organization. If the injury arose from the conduct of the sports program, the immunity applied. Here, the placement of the goal posts on the field was irrefutably a part of the conduct of its soccer program.

The Plaintiff also contended that the real estate exception in the statute imposed liability on the association. He argued that the associations were negligent in their care and maintenance of Haskell Field by permitting improperly secured goal posts to be present on the property, and that this dangerous condition caused him serious harm. The Court rejected this argument, and an analysis that followed the common law duty of landowners to invitees with regard to unnatural and dangerous conditions on the premises.

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This is the first of a two part Blogpost,which looks at a Boston area personal injury case where the insurer avoided payment for an accident involving a youth soccer player injured by a goal post.

PART ONE- THE UNDERLYING FACTS

In this recent appellate decision, a participant in a Sudbury youth soccer program who suffered a personal injury as the result of an accident in which a metal goal post flipped over onto him during a team practice cannot sue for any alleged negligence arising from the improper placement of the posts. The Massachusetts Supreme Judicial Court affirmed a Superior Court decision that a Massachusetts Statute, G.L. c. 231, s. 85V, protected the non-profit association from such suits. 

soccer posts.jpgThe Plaintiff was a twelve year old who in April, 1998, was a participant in a program run by the Sudbury Youth Soccer Association, Inc. His team practiced and played games on a field in Sudbury, Massachusetts. The association had acquired metal goal posts and nets that were used for both practices and organized matches. Welch was injured when a goal post flipped over, striking and fracturing his right leg.
 
The Plaintiff filed an action against the Sudbury association in 2006, alleging it had negligently failed to maintain the goal posts in a safe and secure condition, and to warn him of the danger that existed if the goal posts were not properly anchored to the ground. Welch further alleged that he was seriously injured as a result of the association’s careless and negligent conduct.

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