Premises Liability

March 1, 2009

Liabiliity for Personal Injuries from Accidental Death of Teenager Greater If Andover Mother Was Present During Overnight Party

by Boston Lawyer

SOCIAL HOST LIABILITY – PART TWO

This is part Two of a two part blogpost, in which Boston Personal Injury Lawyer, the attorney, analyzes liability issues in the recent drowning death in Andover, Massachusetts.

It now appears that a parent was present in the Andover home where an overnight teenage party ended with the drowning death of one of the female guests. The Essex County District Attorney has convened a grand jury, which is taking testimony of persons present to determine if any crimes were committed related to the death (For Additional Information see February 19, 2009 Blog, Social Host Liability -Part One ).

BEER PONG.jpg If the evidence indeed demonstrates that these underage students were permitted to consume alcohol, or more seriously, if a parent procured or supplied the alcohol for the party, then both criminal and civil liability may attach. However, the issue of whether premises liability can attach to these facts is not as clear as it may seem, as no Massachusetts appeals court has expressly articulated a position on these particular facts.

The Massachusetts Supreme Court has long held that a social host can be found liable for injury in one particular instance. In a 1986 decision,
Mc-Guiggan v. N.E. Tel. and Tel. Co. , the Court created a common law theory of liability of a social host “to a person injured by an intoxicated guest’s negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person’s injury.”

The duty is imposed because it is believed that the social host knew or should have known that the guest was drunk and was in a position to protect an innocent third party from the harm. In Mc-Guiggan , the Court elected not to impose liability even though the 18 year old operator of the motor vehicle admitted he had consumed alcohol at a graduation party, and pleaded guilty to operating under the influence, after his passenger and friend died from injuries suffered when his head hit a concrete post as he put leaned out of the car window to vomit.

In Mc-Guiggan , based on testimony of the homeowners and others, the Court determined that the evidence was legally insufficient to demonstrate that the hosts knew or should have known that the driver was so impaired that he could not or should not be driving. And this was so even though the blood alcohol level of the driver was still above the legal limit 3 hours after the accident.

February 19, 2009

Boston Personal Injury Lawyer Analyzes Drowning Death of Wellesley Teenager: Were Absent Parents liable

by Boston Lawyer

SOCIAL HOST LIABILITY, PART ONE

This is part One of a two part blogpost, in which Boston Personal Injury Lawyer, the attorney, analyzes liability issues in the recent drowning death in Andover, Massachusetts.

In the early morning of February 16, 2009, sixteen year old Concord Academy student, Elizabeth Mun, was found by friends face-down in a shallow stream in an upscale residential neighborhood in Andover, Massachusetts. She was pronounced dead as the result of drowning later that day at Children’s Hospital in Boston.

It is believed that she had attended an overnight party at the home of a fellow Concord Academy student, whose parents apparently were not present. She had apparently left the house on her own around 5:00 a.m. and her friends became concerned when she had not returned by 6:30. The Essex District Attorney is investigating the incident, although it is presumed that alcohol may have been a factor.

Many are already drawing parallels to the death of Taylor Meyer, a King Philip Regional High School student who drowned last fall in Norfolk, Massachusetts after wandering from an underage drinking party.

If it turns out that alcohol or drugs were involved in this recent incident, the question immediately arises as to the responsibility, and by inference the premises liability, of the parents who owned the Andover home, and who appear to have left their teenage child without supervision at the home, and by implication, permitted the party to take place.

It is well known that criminal responsibility can attach when there is evidence that parents or other adults have procured alcohol for minors. In fact, last fall a 44 year old Gloucester woman was sentenced to a year in jail after pleading guilty to multiple counts of reckless endangerment and illegally supplying alcohol to minors after buying alcohol for her 13 year old daughter and her friends so that they could “party” in her home.

January 3, 2009

Holiday Bonfires Pose Severe Risk as Evidenced by New Year’s Party in New Hampshire Where Three Woman Were Critically Burned

by Boston Lawyer

A severe fire related accident occurred as the new year struck in Freedom, NH. The location was a lakeside private home owned by one of the group, all recent graduates from Holy Cross College. The group was outside celebrating and had a bonfire going on an old grill. It appears that the accident occurred when one of the revelors poured an accelerant, said to be a lantern fuel, onto a smoldering log, intending to restoke the fire. It is believed that gas fumes from the fuel ignited and set fire to the clothing worn by three woman who were huddled around the fire causing personal injuries to several woman present.

Two of the woman were Boston area residents and were critically injured with first, second and third degree burns. The third girl’s injuries were less severe, as she was apparently wrapped with a blanket more quickly following the incident. It was said that the other girls ran back to the larger group still aflame, and only then were wrapped so that the flames could be put out.

The accident brings to mind the severe danger, which fires, and in particular outdoor bonfires present, especially during holiday times, when the consumption of alcohol seems to become a factor in the judgment used by partygoers. The U.S. government has conducted studies, which show that outdoor fires spike during holiday periods, and that the period between midnight and 1:00 a.m. on New Years has a particularly high incidence rate of fires, and fire related accidents, much more so than other times of the winter and the rest of the year. Based on a 2001-2 study conducted by the U.S. Fire Administration, there were an estimated 6,400 fires during the New Year’s period, causing an average of 30 deaths and 93 injuries.

December 22, 2008

Injured Employee Entitled to Trust Fund Benefits for Income From Multiple Jobs Says Massachusetts Supreme Court

by Boston Lawyer

The Massachusetts Supreme Judicial Court has determined that the Workers’ Compensation Trust Fund must pay benefits to an employee of a tree cutting company who failed to obtained workers’ compensation insurance based on the employee’s total earnings, including wages earned from a second job with an insured employer.

The thirty-three (33) year old worker suffered a severe injury in September, 2001, when a tree limb fell onto him, severing his spinal column and leaving him a quadriplegic. and totally disabled. The tree service had violated the Workers’ Compensation Act, G.L. c. 152, s. 25A, by not carrying workers’ compensation insurance. The worker earned most of his income from a second job with another company, which was properly insured, but because the injury occurred while he was working for an uninsured employer, the trust fund was required to pay all of his benefits.

Following the accident, the worker filed for workman’s compensation benefits, seeking two thirds of his average weekly wage from both jobs because he was totally and permanently disabled. The Trust fund objected and an administrative judge thereafter issued an order awarding benefits from the date of his injury calculated by considering only his average weekly wage from the uninsured employer.

Both parties appealed, and at a de novo hearing before the same judge, but with a stipulation that the worker was permanently and totally disabled. This time the judge ruled that the trust fund must pay permanent total incapacity benefits based on the worker’s average weekly wage from both employers.

December 6, 2008

U.S. Court of Appeals Finds that Mentally ill Female Patient was “sexually abused” by Facility Employee, limiting Coverage under Exclusion in General Liability Policy

by Boston Lawyer

WEST LAKE ACADEMY v. THE TRAVELERS INDEMNITY COMPANY et al.
U.S. Court of Appeals, 1st Circuit, Nos. 07-2190, 07-2204

The U.S. Court of Appeals for the First Circuit has upheld a decision of the District Court that an general commercial insurance policy issued to a mental health care provider did not provide coverage for the sexual misconduct of one of its employees, who had sexual intercourse with a minor female patients, based on a sexual molestation exclusion in the policy.

The female minor patient had been involuntarily committed to West Lake Academy, a facility for mentally ill teenagers between 1993 and June 1995. In June 1995, a West Lake employee transported the patient alone between West Lake and a bus station on several occasions. More than once, the employee had sexual intercourse with the patient, who became pregnant and had his child.

The patient successfully sued the employee father and another West Lake employee, a supervisor, who she alleged had negligently failed to supervise the father of the child and recovered a large judgment against West Lake and the employees. National Union Fire Insurance Company provided a commercial general liability insurance policy to West Lake and their employees.

After the judgment, National Union refused to pay on the claim and in July, 2000, filed suit in the District Court in Massachusetts against its insureds, seeking a declaratory judgment limiting its exposure under the policy. The National Union policy included an exclusion, entitled “Abuse or Molestation Exclusion,” which limited coverage to $100,000 on claims based on abuse or molestation of anyone in the custody of the insureds.

December 2, 2008

SJC Says Boston Accident Victims can sue Livery Service for Permitting Intoxicated Customer to Operate Vehicle After an Evening of Partying

by Boston Lawyer

COMMERCE INSURANCE COMPANY vs. ULTIMATE LIVERY SERVICE, INC.
SJC-10149, November 26, 2008.

The Massachusetts Supreme Judicial Court has ruled that Boston Accident Victims of a two car collision could sue a livery service whose driver permitted an intoxicated customer to exit its van after a long night of partying and drinking, and to operate his vehicle to return home. He never made it, causing an accident with another vehicle, in which one occupant was killed and several seriously injured as the result of the crash.

The Court reversed a lower court dismissal of the action against the livery service, and also reversed a declaratory judgment, which had entered, permitting the insurer, Commerce Insurance Company to avoid coverage and its obligation to defend the action.

In August, 2001, a group of men had hired the services of Ultimate Livery Service, Inc. to attend a bachelor’s party. The group planned to consume alcohol and wanted someone else to drive, so they wouldn’t have to worry about getting home. It was arranged that the group would be picked up and dropped off at a bar in South Boston.

A member of the group, William Powers, drove his girl friend’s vehicle to the bar on the evening of the party. He drank at the bar until Ultimate’s driver and van arrived around 8 P.M. They left the bar, went to a liquor store to buy beer and then proceeded to a strip club in Rhode Island, where they continued drinking until closing around 1 A.M. They then returned to the Boston bar, continuing to drink beer in the van on the ride back.

The group arrived at the bar at about 2:00 A.M. It was closed, as was a nearby subway station. About ten minutes later, the driver departed with two member of the group, who intended to go to another party. The other passengers had left the van. The Ultimate driver did nothing to determine whether the passengers were capable of getting home on their own.

Powers, along with two others, drove off in his vehicle, and shortly thereafter, collided with another car, killing one passenger and seriously injuring most of the other occupants of both cars. Powers was transported to a nearby hospital, where a toxicology screen showed his blood alcohol level to be three times the legal limit.

November 28, 2008

Massachusetts SJC Rules that Workman’s Comp Statute Precludes Parents’ Suit against Employer for Child’s Death Even Though Employer Paid No Benefits

by Boston Lawyer

SAAB vs. MASSACHUSETTS CVS PHARMACY, LLC
SJC-10193, November 13, 2008

The Massachusetts Supreme Judicial Court has affirmed a judgment of dismissal of a claim by the parents of a deceased CVS employee, who died from injuries suffered when he was stabbed with a knife while trying to apprehend a shoplifter. The Court concluded that the determination whether an employee’s injury is compensable under the Workmans’ Compensation Act, G.L. c. 152, § 24, and whether the exclusivity provision applied, did not turn on whether a claimant was entitled to or actually receives compensation under the act. Because the employee’s work-related injuries were compensable, his parents were barred from maintaining any action against his employer.

The employee was working at a CVS store on Longwood Avenue in Boston in February, 2004. Employees, including the deceased, attempted to apprehend a suspected shoplifter, who responded violently, stabbing the employee in the neck with a knife. He died at the scene shortly thereafter. At the time of death, the employee was an eighteen year old high school student, lived at his mother’s home, had no dependents and was financially dependent on his parents.