Personal Injury - Marcotte Law Firm

What Happens in a No-Fault Car Accident?

Marcotte Law Firm LLC — Mon, 28 Feb 2022 19:18:18 GMT

It is an unfortunate truth that car accidents are a common occurrence in this country. When more than one vehicle is involved, establishing fault is crucial to an insurance claim, as well as any potential lawsuit. This makes sense; if it is your fault, you or your insurance company should bear the brunt of any incurred expenses by the other party. However, a minority number of states are what is known as “no-fault states,” and Massachusetts is one of them. So what does this mean? Let’s begin with what it does not mean. Being in a “no-fault” state does not mean you can run a red light, crash into someone’s car, and not be responsible. When a car accident occurs, someone is still “at fault.” Rather, the primary difference between fault and no-fault states involves car insurance requirements. No-Fault states provide certain types of insurance to people in almost ayn type of accident, no matter whose fault it was. As you are likely aware, Massachusetts requires every registered car to purchase insurance in four (4) parts.

Bodily Injury to Others: Provides limited coverage for you when other people are injured in an accident. This is very limited coverage and does not cover many types of accidents and injuries. Coverage is also limited to $20,000 per person and $40,000 per accident. You cannot purchase higher limits.
Bodily Injury Caused by an Uninsured Car: Provides coverage if you’re injured by a car that does not have insurance. This can also cover hit & run accidents.
Property Damage: Pays up to $5,000.00 of coverage for any damage you cause to someone else’s car or property. You are allowed to purchase higher limits.
Personal Injury Protection: Pays up to $8,000 for the medical expenses or lost wages of anyone injured while in your car. It will also pay for any pedestiran or bicyclist struck by your car, as well as for injuries you receive when involved in a car that does not have PIP Coverage.

There are additional supplemental coverages that are not required, but are recommended. Please refer to our prior post for a more in depth discussion. However, one optional coverage that is pertinent is for Med Pay coverage. This is similar to Personal Injury Protection coverage in that it will pay for certain medical expenses, regardless of whose fault a car accident is. Where the “no-fault” differs from the “fault” is in Personal Injury Protection insurance (item #4 above and hereinafter, “PIP”), and Med Pay coverage. No-fault states require you to purchase PIP in addition to basic liability insurance. PIP typically pays for your medical expenses and lost wages regardless of who caused the accident. This is where the “no-fault” term comes in. Even if you are at fault for the accident, PIP will cover the expenses. The goal of no-fault insurance is twofold: 1) save time and money and 2) to reduce the likelihood of a lawsuit. Insurance companies will drag their feet and paying claims and lawsuits can take time to resolve. In no-fault states, PIP pays out right away, regardless of fault. As you may have guessed, if people get paid for their expenses right away, the need for a lawsuit may be reduced. However, this does not preclude you from filing a lawsuit if the circumstances warrant it. In order to succeed in a lawsuit, you need to establish the other driver was negligent. You will also need to have at least $2,000.00 in medical bills to pursue a claim for pain and suffering. Further, as our ardent readers are aware, Massachusetts is a comparative negligence state, which means your fault in the collision will be weighed and may offset any potential payout. As always, it is a good idea to speak with an experienced attorney who can help you develop your claim and advice you on the best coursing moving forward.

If you or a loved one has been injued in a car accident and has questions about the various types of No Fault Insurance that are available, call the experienced car accident lawyers at Marcotte Law Firm for a free, no obligation consultation.

Premise Liability & Video Surveillance

Marcotte Law Firm LLC — Mon, 14 Feb 2022 19:16:20 GMT

We have previously discussed a number of issues surrounding premises liability. For example, in the context of snow and ice, classifications of individuals on your property, and doctrines like attractive nuisance. We are now going to dive into some evidentiary issues that may arise in your claim, specifically in the context of surveillance video in a commercial setting. As the technology becomes cheaper and more readily available, more and more commercial property owners are investing in video surveillance systems. This is for a multitude of reasons. First and foremost, it helps with loss prevention (stealing). But, it also is a way for property owners or renters to have an eye in the sky to be able to record certain events. This includes many injuries. This is why we always suggest you assume that whenever you are in a commercial property, you are being watched. As you can imagine, the proliferation of surveillance cameras has significantly impacted premise liability law. More cameras means more evidence in many claims. Cameras are able to see someone when they fall. They also are able to create a timeline as to a person’s movements, or even look to see what caused the hazard that the person tripped on. As surveillance video evidence becomes the norm, so too do a host of related legal issues. Specially, issues of preservations of evidence including what is known as “spoliation.” Spoliation (not spoil-ation!) is defined as “the destruction or alteration of evidence resulting from a party’s failure to preserve evidence relevant to a litigation or investigation.” While this could refer to a deliberate and intentional destruction of video evidence, spoliation most commonly occurs when a defendant fails to preserve video evidence that they had notice may relate to a possible premise injury. This is why it is in the interest of any business to have written guidelines establishing the policy for retaining potentially relevant surveillance video. Upgrades in technology have digitized most surveillance video equipment; however, some businesses may still rely on video cassettes or discs. Regardless of the technology involved, there is still a finite ability to store video indefinitely, even digitally. Most systems will have an automated deletion program that will delete or overwrite videos after a given time. In the old days, a surveillance tape would be re-used, and the old footage destroyed. Now, though cloud storage is seemingly limitless, the cost to keep unnecessary surveilance footage is not in many companys’ budget. While the law does not require you to incur additional expenses to preserve all video indefinitely, a business is required to preserve surveillance video in anticipation of litigation. In Massachusetts, the duty to preserve evidence is straightforward. The duty arises when a reasonable person knows or should know that litigation is possible and that the evidence might be relevant. Commercial premises often receive notice of an accident, e.g., an ambulance arrives at their property, so claiming lack of notice will usually be difficult to prove. In order to show spoliation under Massachusetts law, you must show either a negligent or intentional destruction of evidence. Remedies are based on the degree of misconduct of the defendant. The most common remedy for spoliation is a jury instruction from the judge allowing jurors to draw an adverse inference, i.e., you can assume the defendant is hiding something harmful to their case, from the destruction of the evidence. The need to preserve potential evidence highlights the need to work with an attorney on any potential slip and fall claim. An experienced attorney will contact the defendant business to remind them of their duty to preserve any video surveillance evidence from the time of the claim. Not only does this remind the business of their duty, it also lays the foundation for any future spoliation issues, should they arise.

If you’ve been injured on someone’s else’s property, its important that you find a personal injury lawyer as soon as possible. The sooner you find a lawyer, the sooner he or she can send out a letter that asks that they preserve all videos. This will give you a much better chance of the video not magically disappearing.

Sovereign Immunity and the Mass Tort Claims Act

Marcotte Law Firm LLC — Mon, 11 Oct 2021 18:47:04 GMT

In a previous post discussing Premises Liability, we briefly noted two (2) relevant legal doctrines – Attractive Nuisance and Sovereign Immunity. We recently discussed the Attractive Nuisance doctrine, so today will be focusing on the doctrine of Sovereign Immunity and its codification under the Massachusetts Tort Claims Act. As discussed in previous posts, if you were injured in a car accident or on the property of another, you likely have a cause of action against those persons. However, what happens when the driver of that other car is a government employee or the property you were injured on is a government building? In Massachusetts, it is much harder to file a lawsuit and win when the other party is the government. As you may have guessed, this is due to the aforementioned principle known as Sovereign Immunity. Sovereign Immunity is a very old legal premise that basically states that the sovereign, i.e., the government in this country, cannot be sued even if an individual is harmed by the acts, decisions, or inactions of the government. It dates back to English law, where people were unable to sue the king. Even in this brief explanation, you can see that this is an exceptionally broad principle that absolves the government of virtually all tortious acts. However, there are limits to Sovereign Immunity. In an effort to reduce the scope of Sovereign Immunity and provide certain plaintiffs with some recourse for their injuries, Massachusetts has passed the Tort Claims Act (hereinafter, “MTCA”). While the government is still afforded a great deal of protection – protections that exceed those afforded to a normal property or business owner – the MTCA does provide an avenue for a harmed individual to sue the government through negligence claims. Section 2 of the MTCA states that “public employees shall be liable for injury or loss of property or personal death” caused by negligence, wrongful acts, or omissions. The MTCA also lays out specific situations where a negligence lawsuit is allowed. Examples of these situations include negligently operating a government vehicle (e.g., a USPS truck or public bus); defects or hazards in public buildings; medical malpractice by healthcare providers at a state-run facility; and police brutality or negligence. The MTCA caps damages at $100,000; however, all claims for serious bodily injury against the Massachusetts Bay Transportation Authority are not subject to this limitation. There are also specific requirements in filing a lawsuit. The plaintiff must first present the claim to the employer in charge of the defendant employee. The claim must be presented within two (2) years of the date of the injury. The plaintiff cannot file the claim with the Court of Claims until the employer has accepted or rejected it. The employer must do this within six (6) months of receiving it. If the claim is rejected, the plaintiff may then file the claim with the Court of Claims. The statute of limitations for filing an MTCA claim with the Court of Claims is six (6) months. As you can see, filing a claim under the MTCA can be a complicated matter, one that could take over a year to unfold. Even if you feel you have a clear cut case, it is in your interest to consult with an experienced attorney on how to locate the employer in charge of the defendant employee and how to file with the Court of Claims if that claim is rejected by the employer.

If you’ve been injured by a government employee, it’s important to act fast. There are many limitations on these cases, and they need to be given attention right away. Call the Personal Injury lawyers at Marcotte Law Firm for a free, no obligation consultation.

Swimming Pools, Kids, and Attractive Nuisance

Marcotte Law Firm LLC — Wed, 29 Sep 2021 18:46:38 GMT

In a previous post discussing Premises Liability, we briefly noted two (2) relevant legal doctrines – Attractive Nuisance and Sovereign Immunity. We will address Sovereign Immunity and the Massachusetts Tort Claims Act in a subsequent post, but today we want to discuss the other doctrine: Attractive Nuisance. Premises Liability, property owners have a duty of reasonable care to anyone entering their property. The highest duty of care is owed to those who have express or implied permission to be on that property, known as invitees and licensees under Massachusetts law. An example of this are patrons of a restaurant or supermarket. Trespassers are owed the lowest duty, i.e., people who enter a property without permission. A trespasser cannot sue a property owner for injuries suffered on that property except under “unusually dangerous” situations. There is; however, one group of potential trespassers to whom property owners still owe the duty of reasonable care: young children. This is where the doctrine of attractive nuisance applies. Under this doctrine, property owners can still be found liable for injuries caused to a young child, even one who is trespassing. Massachusetts defines an attractive nuisance as an artificial condition on the property owner’s land that can “attract” children to trespass onto the land and lead to injury. This means that a natural pond, rock face, or other natural condition on the property is not subject to the laws of attractive nuisance. According to the law, a child who trespasses onto another’s property because of an attractive nuisance and who is injured by that attractive nuisance can be compensated for his or her injuries if:

The place where the nuisance exists is a place where the landowner knows or has reason to know that children are likely to trespass;
The nuisance is one which the landowner knows or should have reason to know involves an unreasonable risk of death or serious bodily harm to a child;
Children, because of their youth, are unlikely to realize the danger they are in by coming near the nuisance;
The burden on the landowner of eliminating or mitigating the danger is slight compared to the danger presented to children; and
The landowner fails to take reasonable measures to eliminate the danger or protect children.

If the trespassing child is injured, then the property owner may be found liable if they failed to take reasonable steps to prevent the child from entering the property. Stated another way, if there is something on a property that may be inherently attractive to a child and the child is injured by that object, a property owner may be liable because a child cannot fully understand the risks posed by that object. Swimming pools are the classic example of an artificial condition that may attract a trespassing child; however, certainly not the only one. A quick google search reveals other common examples, e.g., trampolines, tree houses, machinery, etc., cited throughout case law. Using the example of a swimming pool, putting up a fence shows – legally speaking in terms of reasonable care – that the property owner understood the risk a pool may pose to a child and took reasonable care to mitigate that risk. This is why many local municipalities require a fence around a pool. While the law is designed to protect young children, the age of that child is not cut and dry. For example, the landowner’s duties may vary as it relates to a three-year old versus a thirteen-year old. That is to say a court may find an older child would have a greater appreciation of the risks. These claims can be difficult to evaluate and it certainly makes sense to speak with an experienced attorney.

If your child was injured due to an attractive nuisance on another person’s property, call the experienced premises liability lawyers at Marcotte Law Firm for a free, no obligation consultation.

Sporting Event Injuries

Marcotte Law Firm LLC — Mon, 19 Jul 2021 14:05:25 GMT

As we get into the summer months, it is time for all of the fun activities associated with the warm weather and all the “tough” decisions. Hamburger or hot dog? Beach or pool? Red Sox or Yank…(we all know there’s no decision to make there!). One of the state’s best warm weather activities is the annual summer tradition – a trip to Fenway Park to watch the Red Sox. Few things compare with watching a game on a cool summer night at Fenway. As great as the game is, it can be very easy to get distracted. You look at your phone to respond to a text or take a photo of your family; flag the vendor for a hot dog or cold beverage; or turn to your neighbor to discuss how good the Sox lineup looks. In that instant, a batted ball or a splintered bat can come flying into the stands, causing serious personal injury. Unfortunately, this is becoming a more and more common occurrence. So what happens if you are injured at a baseball game or any other sporting event when something comes from the field of play into the stands? Can I recover damages for my injuries? This article will discuss what causes of action, if any, are available as well as the little-known and very old, “Baseball Rule.” For the purposes of this article, we will focus on baseball and use Fenway Park where examples are necessary, but these legal issues would also extend to other sports, for example, hockey. If you were injured at a game by a ball or bat, any lawsuit would be filed under a negligence claim. Under a negligence claim, you need to establish that the owners of the stadium did not take reasonable precautions to keep you safe. This is why when you attend a game at Fenway, the team has placed signs all over the park warning fans of the dangers of hit balls and bats, as well as making an announcement over the loudspeaker at the beginning of the game. Further, if you have ever taken the time to look at the back of your ticket, the fine print also discloses the risks of attending a game. This ticket actually operates a waiver of sorts – an assumption of risk – absolving the team from most liability. In 2018, Fenway extended the netting from behind home plate to down the 1st and 3rd base lines; however, declining to extend them fully to the foul poles as has been done by a few Major League teams and is commonplace in Japan. These maneuvers are all done to show that the stadium has undertaken a “reason standard of care” in keeping their patrons safe. Despite all of these warnings and precautions, injuries still occur. Foul balls can travel over 100 mph and as noted above, the nets are not everywhere. Even if you are paying full attention to the game, a ball can travel 130 feet in one second leaving almost no time to react. As if the teams did not have enough going for them, they are also accorded broad protection under the “Baseball Rule.” The Baseball Rule states that under most circumstances a team cannot be held liable for injuries caused by a batted ball or errant bat, as long as the team has offered some reasonable protections in the areas where bats and balls are most likely to cause injuries. You may be asking yourself, with the nets, tickets, and Baseball Rule, is there even any reason to file a claim? The answer is yes. If you are able to establish that the stadium did not exercise reasonable care, then there is a path to damages. The reality is that baseball players are bigger, faster, and stronger than ever before. This means they hit the ball farther and harder than their predecessors did. Further, stadiums are moving seats closer to the field. What was once considered reasonable care might no longer be so in a time when balls come into the stands faster and injuries are on the rise. If you are injured at a baseball game, you should reach out to an experienced attorney to assess your options.

What is a Premises Liability Case?

Marcotte Law Firm LLC — Mon, 12 Jul 2021 13:45:28 GMT

Many lawyers use the term “premises liability,” which is a phrase that most people don’t use. Therefore, there’s often a misconception about what the term means. In reality, it’s a way to describe the duty owed by a business or property owner. These claims are a type of a negligence lawsuit, which means the focus of a claim is usually on the duty of care owed and whether or not that duty was breached. For your reference, some common examples of these types of claims include, but are not limited to:

“slip and fall” accidents, including snow and ice
Injuries sustained in swimming pools, including drowning
Collapse of decks, balconies, or stairs,
Exposure to toxic fumes or chemicals
Other stairway accidents
Construction site accidents.

Because these claims are generally filed under a negligence cause of action, the key element will be “reasonable care,” or “did the property owner take reasonable precautions to keep visitors safe?” While the requirements for reasonable care owed vary from state-to-state, Massachusetts applies tiered categories for visitors, who are owed varying levels of reasonable care. The categories of visitors – from the highest duty owed to the lowest – are invitees, licensees, and trespassers. The highest duty of care owed is to an “invitee.” An invitee is someone who has the property owner’s express or implied permission to enter the property, e.g., a patron to a restaurant. These are people invited onto a property for the purpose of spending money or engaging in a business interaction. Invitees are owed a duty to keep the property reasonably safe. Due to the financial nature of the interaction, the duty of care is considered the highest Just below an invitee is a “licensee.” A licensee also has express or implied permission to enter the property, but does not have a business purpose for being there, e.g., a social guest. Massachusetts has blurred the distinction between duty owed to an invitee and licensee as both are owed the reasonable care duty. What this means in practice is that an invitee and licensee are owed a reasonable duty of care and have the right to file a lawsuit against negligence and carelessness. Finally, the lowest duty owed is to a “trespasser.” As you likely guessed, a trespasser is someone who does not have any permission – express or implied – to enter the property. However, there is still a minimal duty of care owed. This means that a trespasser cannot sue you for negligence; however, they may be able to if a hazard is “unusually dangerous.” For example, you cannot set a trap on your property for a trespasser. It is worth quickly noting one exception to the trespasser rule relates to children and is known as the “attractive nuisance” doctrine. This is why all swimming pools should have fences around them. There are three (3) common defenses to premises liability: comparative negligence; “open and obvious” danger; and in the cases of government properties, Sovereign Immunity. For the purposes of this post, we will only discuss the first two (2). As discussed in our previous Snow and Ice articles, “comparative negligence” assesses a percentage of fault on both the injured party and the property owner, that is, you both share the blame. A judge or jury assesses your percentage of relative fault and deducts that from any damages received. Under comparative negligence laws in Massachusetts, the plaintiff can only be compensated if their share of the blame is less than 51%. Another defense is that the danger was “open and obvious.” A danger or risk is “open and obvious” if the risk would be obvious to persons of average intelligence. If it is open and obvious, then a property owner does not have a duty to warn of such risks. For example, if you are at a gas station filing your car and are hit by another driver, the owner of the gas station is likely not liable for your injuries because the danger of being hit by another moving car is open and obvious to a person of average intelligence. If you are a legal entrant to a property and suffered an injury while on that property, you may be able to recover compensation for your injuries. In Massachusetts, and as is the case with many other torts in the state, the statute of limitations to bring a legal claim against a property owner is three (3) years from the date you knew or should have known about the injury. This may seem like a long time, but it helps to explore your options as soon as possible with an experienced premises liability attorney.

What Makes a Dog Bite Case?

Marcotte Law Firm LLC — Wed, 30 Jun 2021 13:29:45 GMT

According to the American Veterinary Medical Association, there are about 77 million dogs in the United States. That is a lot of dogs! If you were to go for a five-to-ten minute walk in your neighborhood, the chances are that you would see at least a dog and very likely come into close contact with one. The majority of the time the interactions are enjoyable – for you and the dog! However, this is not always the case. As car accidents become a likelihood due to the volume of vehicles on the road, the quantity of dogs and interactions with them can also lead to accidents. The most common of these accidents is in the form of a dog bite, which will be the focus of this article.

Under the Massachusetts Dog Bite Statute, a dog’s owner may be found civilly liable for any damages caused, to person or property, by their dog. The statute applies when a dog causes personal injury or property damage. Even though it is referred to as the Dog Bite Statute, all injuries resulting from a dog are included, not just bites. For example, the statute would apply if a person was knocked down by a large breed dog and suffered a broken wrist. Notably, the statute adds an exception: the injured person must not have been trespassing or committing another tort, or teasing or provoking the dog at the time.

Unfortunately, children are often the victims of dog bites and the statute accounts for that. The statute provides that a minor, which Massachusetts defines as any child under seven (7) years of age, is presumed to not be trespassing or teasing/tormenting the dog. This presumption is rebuttable, but the burden shifts to the defendant/dog owner to prove the child was abusing the dog before the attack.

In addition, Massachusetts is a “strict liability” state when it comes to dog bites. Under the strict liability doctrine, the dog’s owner is liable for the actions of the dog, even if they took reasonable measures to restrain or enclose the dog. For example, if a dog owner has a fenced in yard, yet the dog manages to escape and causes harm to a person, the owner is liable for that harm caused, even though they took affirmative measures to keep the dog fenced in.

In Massachusetts, dog bite victims also have the ability to file a negligence claim against the dog owner. Negligence claims for dog bites are rare because the dog bite statute is broad and covers all types of injuries. Negligence claims require you to prove a different set of facts, mainly that the owner/defendant failed to exercise reasonable care, and it is in your interest to work with an experienced attorney to decide what claim or claims works best for you. It is beyond the scope of this article, but worth noting that in some circumstances, a dog owner may also be criminally liable. If a dog owner allowed or encouraged a dog to attack another person, the owner could be found guilty of assault with a deadly weapon.

Given the sheer volume and ubiquity of dogs, it is incumbent on dog owners to properly train their dogs. As you can see, Massachusetts is a plaintiff-friendly state when it comes to dog bite law. This means it will be much harder for the defendant/dog owner to “win” a lawsuit. The vast majority of dogs who bite are neglected, malnourished, or abused. If a dog, by way of bite or another related injury, injures you, you may be able to recover compensation for your injuries. In Massachusetts, the statute of limitations to bring a legal claim against a dog owner for a dog bite is three (3) years from the date of the initial injury, or dog bite. This may seem like a long time, but it moves quickly, especially if you require a lengthy time-period to recover from your injuries. If you are injured, it makes sense to explore your options with an experienced dog bite attorney.

Wrongful Death

Marcotte Law Firm LLC — Mon, 17 May 2021 15:41:20 GMT

The death of a loved one is a truly traumatic experience, especially if that death was sudden and unexpected . The sudden loss of a loved one leaves families with emotional burdens and oftentimes financial ones. So what happens when the death of a loved one is the result of someone else’s accident? This is known in the legal world as a “wrongful death” and you may be entitled to compensation. In Massachusetts, in the event of a wrongful death, the family of a loved one “steps into their shoes” and collects compensation on behalf of the deceased. Those who have lost a loved one due to wrongful death may be eligible to receive compensation for medical costs, funeral costs, loss of income, and other expenses. Massachusetts law states that a person or company may be liable for wrongful death if that death was caused by: 1) negligence (failing to exercise reasonable care); 2) a “wanton or reckless act,” or 3) a breach of warranty. In all three cases, a wrongful death claim may be filed if the deceased person could have filed a personal injury lawsuit based on the same incident, had he or she survived. What this means, functionally, is that a wrongful death claim is similar to a standard personal injury claim. In both cases, the action or inaction of one party is the cause of the injury or death of another. Obviously, in a wrongful death case, the injured person is unable to sue the liable party. Rather, another party must bring the claim on behalf of the deceased person. What are common instances where a wrongful death occurs? Certainly not an exhaustive list, but common examples include:

Fatal Auto accidents
Work site accidents
Slip-and-fall accidents
Medical malpractice and misdiagnosis
Animal attacks, e.g. dogs
Nursing home abuse or neglect

Who Can File a Wrongful Death Claim? In order to file the wrongful death claim in court, you must be the executor or administrator of the deceased party’s estate. Any damages recovered from the claim are paid to the deceased person’s estate. What Type of Compensation is Available in a Wrongful Death Case? Because, in the context we are discussing, a wrongful death claim is a civil action (though not discussed herein, a criminal case may also be occurring simultaneously), the sole compensation is in the form of monetary damages. Pursuant to Massachusetts law, damages available compensate for:

the fair monetary value of the deceased could reasonably be expected to have earned in his or her lifetime, “including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered;”
reasonable funeral and burial expenses for the deceased party; and
punitive damages.

A quick note about punitive damages. Their intent is to punish the person responsible for the wrongful death; thus, are not related to the reasonable expected future income of the deceased. Further, they are only awarded if a court finds the death was caused by “malicious, willful, wanton or reckless conduct” or gross negligence by the defendant. Punitive damages are at least $5,000, though can be higher-to-significantly-higher depending on the facts of the case and the degree of “malicious, willful, wanton or reckless conduct” by the responsible party. Simply put, they are intended to punish the responsible party. How much time do I have to file a wrongful death lawsuit? A final thing to remember is the timeline for filing these claims. The statute of limitations, i.e., the deadline to file a lawsuit, is three (3) years of the date of death or of the date the executor first knew or should have known a wrongful death claim was available.

Nursing Home Injuries

Marcotte Law Firm LLC — Mon, 03 May 2021 15:24:04 GMT

One of life’s ironic twists is that someday we may be tasked with caring for an elderly parent, just as they spent the early parts of our lives caring for us. Unfortunately, there are often times when the care needed by an elderly parent or relative exceeds what you are reasonably able to provide. Many times, an elderly parent requires around-the-clock medical attention. Other times, even staying at home alone while you work isn’t an option for someone who needs constant attention. Often, the best place for this type of care is at a nursing home. Nursing homes can be an excellent resource at providing sustained care for medically at-need individuals. They have the time, money, and resources to provide the care that your mom, dad, or loved one needs. That’s why the cost is extraordinary, costing thousands of dollars every month, which is rarely covered by private health insurance. However, just like every other health care provider, they owe their patients a higher duty of care. Sometimes, that duty may not be met. Accidents happen, but when they happen to someone in a vulnerable sect, like a nursing home resident, those accidents can have severe results. Nursing home injuries could involve multiple causes of actions, but the most common claims are for negligence on the part of the staff at the nursing home. If a patient/resident at a nursing home suffers injuries due to negligence on the part of the staff, the staff and facility could be found liable for resulting damages, e.g., pain and suffering. In a negligence or malpractice case, the plaintiff, i.e., the injured person filing the lawsuit, would be the patient/resident him or herself or a guardian or health care proxy. As in any negligence case, a plaintiff would need to demonstrate that there was a breach of duty or the “standard of care” in order to recover damages. If the plaintiff can demonstrate that the actions or inactions of the nursing home staff breached the duty of care, then negligence is found. Issues with inaction by the staff are common in these claims and often lead to malnutrition or “bed sores” from lack of activity. Types of Nursing Home Injuries There are many causes of nursing home accidents, but common ones include: 1) Nursing Home Falls; 2) Medication Injuries; 3) Malnutrition and Dehydration; 4) Neglect; 5) Bed Sores; and 6) even Physical or Sexual Abuse (these can also be classified under another cause of action, often assault and battery). No matter what the cause of a nursing home injury, the results can be severe. Elderly residents of nursing homes are usually physically and/or mentally compromised. Nursing home residents often do not have the physical ability to actively recover from these injuries, especially serious ones such as broken bones and fractured hips. Further, they often may not realize that the deterioration of their condition is due to the actions or inactions of those taking care of them. Experienced Nursing Home Injury Lawyers If you or a loved one was injured in a nursing home, it’s important that you find a lawyer who know that when someone’s mobility is already limited, adding another injury can be catastrophic. We understand that what would have been a relatively minor injury for someone who was young and healthy can be a permanently debilitating injury for someone who is infirm and in a nursing home.

At the same time, our Nursing Home Injury Lawyers understand that this is personal for you. You trusted the nursing home to take care of your mom, dad, husband, or wife. They told you that they’d take great care of them, and that they’ll treat them like family. Then, once the doors were closed and they were going, they broke their promise.

If you or a loved one was injured or taken advantage of in a nursing home, call the Lowell Nursing Home Injury Lawyers at Marcotte Law Firm for a free, no obligation consultation.

What is a Hit and Run Accident?

Marcotte Law Firm LLC — Fri, 16 Apr 2021 15:22:36 GMT

Hit-and-Run Accidents Many of us have been involved in a car accident, whether it be a “fender-bender” or something more serious. Regardless of the severity of the accident, it is a jarring experience. Because it happens so suddenly, it takes some time to realize what actually happened. Your brain is processing not just how the accident happened, but also trying to evaluate whether you’re injured. Our mind rattles off a million questions – “Am I OK?,” “Is the other person OK?,” “How bad is this?,” “What happened?,” “Whose fault was it?” After those few seconds pass, the normal thing to do is to make sure everyone is OK. Then, the parties exchange contact and insurance information and call the police (even if no one is seriously injured, the police will file an accident report that is often needed by your insurance company). What few people expect is for the other vehicle to leave the scene. In Massachusetts, it is a crime to leave the scene of an accident if someone was injured or property was damaged over a certain amount. If you are the victim of one of these “hit-and-run accidents,” you may also be entitled to compensation. What exactly is a hit-and-run accident? A hit-and-run accident is any accident in which a vehicle hits a person, object, or another vehicle, AND the driver knowingly leaves the accident without providing contact and insurance information. Examples range from something relatively minor – like a driver hitting a parked car in a parking lot, causes damage (e.g., scratching the paint or causing a dent), and then driving off before anyone notices – to something very serious, like a driver hitting a pedestrian or bicyclist and fleeing the scene to avoid being identified. There are many reasons why a driver leaves the scene of a collision, including:

The driver panicked or made a spur-of-the-moment decision;
Intoxication/drunk driving/operating under the influence;
Unlicensed operator, i.e., if the other driver doesn’t have a license;
Outstanding warrant or stolen vehicle (i.e., he/she would be arrested if police were called to the scene).

What Should I do if the Other Driver Leaves the Scene? Most importantly, DO NOT chase after the other car. This only puts yourself and others in danger through the chase itself or eventually confronting the driver. When you realize another driver is attempting to leave the scene, there are a few things you can do. First, try to identify the vehicle in question. If you can, take a picture of the other vehicle, ideally the license plate, but a photo of other identifying information, e.g., color, make, or model, is also helpful to the police. If there are witnesses, you can also ask them to provide any information they may have. Second, call the police. Give them all the information you have, including any photos or observations of the other car. Even if you only got a partial view of the license plate, that could be helpful. Will My Insurance Cover Me? There are two types of insurance that cover these situations: Uninsured Motorist Coverage will pay the compensation for your injuries. This is required coverage, meaning everyone in Massachusetts has it, although the amount of the insurance varies depending on what you paid for. So in many situations, you won’t be any worse off because the other car fled the scene. Collision Coverage will pay for any damage to your car. This is an optional coverage, meaning you may not have it. Am I entitled to additional damages? Yes, depending on the facts of the case. For example, if the paint of your car was scratched, as a general proposition, a court will not find injuries necessitating compensation. However, if you were to suffer physical and or emotional harm due to being in a car accident, you may be able to pursue a claim against the driver. Furthermore, as leaving the scene is a crime in Massachusetts, a judge in the criminal case could order the driver to pay damages. Even if this were to happen, you can still pursue a civil lawsuit seeking additional compensation for your injuries.

If you’ve been injured in a hit and run accident, call the Car Accident Lawyers at Marcotte Law Firm for a free, no obligation consultation.

What is a Medical Malpractice?

Marcotte Law Firm LLC — Mon, 08 Mar 2021 21:16:21 GMT

It is a common phrase to say “mistakes happen,” because in all honesty, they do. No one is perfect and we all inevitably fail. However, this does not mean there are no consequences to these failures. There is no greater example of this than in the field of medicine. Patients, often at their most medically-vulnerable, rely on the opinions of their examining and treating medical professionals. But what happens when that professional makes a mistake? Are they, too, able to chalk it up to “mistakes happen” and move on? The short answer is that medical professionals owe you a higher duty of care and “mistakes” they make could very well fall under malpractice. What is Medical Malpractice? Generally speaking, medical malpractice is a type of negligence that occurs during the medical care and treatment provided by a healthcare professional, i.e., doctor, nurse, physician assistant, etc. In order to prove malpractice occurred, you need to prove the “Four Ds of Medical Malpractice:” 1) duty, 2) dereliction (failure to meet that duty), 3) damages, and 4) direct cause. In order for malpractice to be found, all four (4) elements must be proven. It’s not enough that a medical procedure had a poor result. In fact, no surgery is a sure thing. There are many known risks, and sometimes “accidents” do happen, even when a doctor or medical professional does everything correctly. Types of Medical Malpractice While any breach of medical duty that harmed you can be malpractice, there are certainly common mistakes that occur. For example, common medical errors include, but are not limited to: Diagnoses errors ― Failure to diagnose, a delay in that diagnosis, or a misdiagnosis all result in the improper treatment of an underlying condition. Medication errors ― Incorrect medication type, strength or quantity can result in overdoses and ineffective treatment. Combining medications that should not be taken at the same time. Surgical errors ― These include failure to recognize or respond to surgical complications, leaving foreign objects inside of the body following surgery, or damaging other body systems during surgery. Birth injuries ― Injuries including those caused by vacuums or forceps or failure to perform a C-section. It is important to note that any cause of action (lawsuit) is subject to state law. Each state will have different rules regarding how long after the incident in question you have to file a lawsuit, (“statute of limitations”) and caps on damages. In Massachusetts, the statute of limitations for a medical malpractice claim is three (3) years. This means an injured patient has three (3) years from the date of the inflicted harm to begin the lawsuit. One exception of note is that the three-year timer does not necessarily begin the moment the medical error happened. For example, if the medical error is the type that you were not aware of until a later date, the three-year timer begins as of that later date. However, even these delayed-onset claims are subject to a second statute of limitations, which is seven (7) years. Massachusetts is also a state that has a statutory cap, or limit, on damages or compensation you can receive from a successful lawsuit. Massachusetts limits damages to $500,000 in medical malpractice cases for what are known as “non-economic damages.” Examples of non-economic damages include mental health issues related to the medical error (e.g., anxiety, depression, lost enjoyment of life); pain and suffering; and other effects of the defendant’s medical negligence. However, there is no cap on non-economic damages if your injuries include a substantial or permanent loss or impairment of a bodily function, disfigurement, or if some other special circumstance exists which warrants a finding that use of the cap would deprive you of fair compensation for your injuries. Similarly, there is no cap on “economic damages.” Examples of economic damages include past medical expenses and ongoing medical care; lost income from your inability to work; and any diminished ability to work in the future. Medical malpractice cases are complicated legal matters that require expertise to navigate. It is in your best interest to contact an experienced attorney in order to help you.

Snow and Ice Injuries

Marcotte Law Firm LLC — Mon, 22 Feb 2021 21:05:32 GMT

In Part 1, we discussed the duty owed by property owners in terms of snow and ice removal. In this post, we will discuss what happens if you are injured after slipping on ice or snow. It is important to know what steps are available to you and what, if any, fault you may have in the matter. As noted in the previous post, it used to be much harder to recover damages from a slip and fall caused by snow and ice. A 2010 Supreme Judicial Court (“SJC”) case (Papadopoulos v. Target Corp) overturned an over-a-century-old law regarding the accumulation of snow. The duty placed on property owners was raised and it became easier to prove negligence. However, just because it became “easier,” does not mean collecting damages will be easy. There are still multiple factors at play. All slip and fall cases fall under a class of personal injury claims requiring you to prove negligence. You must establish a duty, a failure to meet that duty, injuries, and that the breach of duty caused those injuries. In a case of snow and ice-induced slip and fall case, the duty owed is by the landowner and he or she owes you “reasonable care” for a safe walking environment, that is, free of ice and snow. Further, you must suffer a significant injury, for example, sprained or broken bones or traumatic brain injury from hitting your head. Finally, you need to establish that the ice was the cause of your slip and fall. There are some additional nuances unique to ice and snow slip and falls that are important to know. Like most personal injury claims, slip and fall accidents have a three-year statute of limitations. However, for snow and ice slip and fall cases, the injured person must notify the property owner within thirty (30) days of their fall that you were injured on their property. This requirement serves two (2) functions. One is to give the property owner notice of a possible pending lawsuit. Next, it protects you from a property owner claiming they were not aware anyone was ever injured on their property. If you fail to provide this timely notice, you will be unable to file a claim. Another potential hurdle in your claim is the legal principle known as “comparative negligence.” Comparative negligence assesses a percentage of fault on both the injured party and the property owner, that is, you both share the blame. While the property owner is responsible for removing ice and snow, when walking on a slippery surface, you too have a duty to exercise reasonable care to avoid getting hurt. By way of example, assume you break your leg after slipping on ice in front of a restaurant. Lets further assume that the restaurant owners failed to “reasonably” de-ice the sidewalk. However, it was shown that you were walking and texting on your phone when you fell. While it is the restaurant owners’ “fault” for not removing the ice, the fact that you were not paying attention to where you were going can place some of the blame on you. In this instance, a court could find that while the restaurant owners’ were at fault, so too were you. Under comparative negligence, they can assign a percentage to you (you are 25% at fault) and the restaurant owners (they were 75% at fault). This means any damages you receive will be reduced by 25% (your percentage of fault). This is important to know, because under comparative negligence laws in Massachusetts, the plaintiff can only be compensated if their share of the blame is less than 51%. (A 2020 SJC case dealt, in part, with the issue of comparative negligence. You can read the full description of this case in a prior blog post here). As if this did not all seem daunting enough, oftentimes, and especially when businesses are responsible, insurance companies get involved. These cases are very fact-specific, and what constitutes “reasonable” snow and ice removal or treatment is often at issue. Therefore, insurance companies try to place blame on the accident victim for the fall. By now, it should be clear that there are a lot of moving parts when it comes to establishing your slip and fall case. It is in your best interest to work with an experienced personal injury attorney to help you navigate through this process.

Snow & Ice – Landowner Responsibilities

Marcotte Law Firm LLC — Mon, 08 Feb 2021 20:51:49 GMT

Winter in New England, a right of passage we all endure every year. No one can claim to be a real New Englander without going through a handful of winters full of blizzards, wind, and freezing temperatures. Cleaning off your car, shoveling the sidewalks and stairs, and salting or sanding the ice are all tenets of our yearly winter ritual. While many of us are used to the cold, snow, and ice, it is important to know what happens when those conditions result in an injury. In the first part of a two-part series, we will discuss what duty you owe as a property owner to others entering your property and what happens in the event someone is injured as a result of a fall on snow or ice. Under Massachusetts law, all property owners (commercial and residential) and landlords are legally responsible for snow and ice removal from their property. While each town and city has its own specific codes (and we encourage you to take a look at your city or town’s requirements), it is important to know the state law establishing this minimum. This means that any publicly-accessible areas, e.g., sidewalks or walkways, driveways, parking lots, etc., must be free of snow and “de-iced.” This is a relatively new law, coming into effect on the heels of a 2010 Massachusetts Supreme Judicial Court (“SJC”) ruling that overturned 125 years of precedent of unnatural vs. natural snow accumulation. The arcane distinction aside, the takeaway is that the SJC prioritized safety of guests and visitors. (That case was Papadopoulos v. Target Corp, which dragged snow and ice law into the 21st century. It got rid of the rule that a “natural accumulation” of snow means that a property owner wasn’t responsible for someone’s injury.). Oftentimes, property owners, usually commercial or landlords, elect to hire a 3rd party to perform the snow and ice removal. In these instances, if you are the property owner, it is important to know two (2) things. First, simply hiring a 3rd party to remove snow and ice does not necessarily absolve you of any liability. Said another way, if someone slips on ice and injures themselves, both you, the property owner, and the 3rd party may be liable for that injury. This brings us to our second thing to know. When hiring a 3rd party, it is important to have a contract that lays out the responsibilities of both parties. For example, many of these contracts call for snow plowing, salting, and sanding, only if 2 inches or more of snow are expected. However, even a coating of snow can develop into treacherous conditions. As a property owner, that’s still your responsibility.

At the same time, many of these contracts have clauses that state who will not only pay for injuries that occur, but also for the cost of the defense. Called a “tender,” we often send letters to property owners only for it to be forwarded to an insurance company for the landscaping company responsible for plowing and sanding.

Another significant SJC case was handed down in 2020 regarding what is known as the “Warranty of Habitability.” (You can read the full description of this case in a prior blog post here). In summary, the SJC found that an ice or snow-induced slip and fall injury did not invoke the warranty of habitability, but rather that of negligence. This is significant because under negligence, the injured person may bear some of the fault, thereby reducing damages owed. If someone is injured due to slipping on snow or ice on your property, they have to provide you with notice of their injury within thirty (30) days. If they fail to provide you with this notice, they will be unable to file a claim against you if you are prejudiced, which is a high hurdle to jump over. If you’ve fallen on snow or ice, it’s important to seek out an experienced lawyer as soon as possible.

The Anatomy of a Lawsuit

Marcotte Law Firm LLC — Mon, 30 Nov 2020 12:36:52 GMT

The main goal of personal injury lawsuit is to make people whole after an injury caused someone’s negligence. This compensation is usually broken down into three parts: medical expenses, lost earning capacity (lost wages), and pain & suffering. However, many people don’t realize that there’s a lot more to proving a case in front of a jury. If you suffered harm due to the action, or failure to act, by another person, group of persons, or business, you may have a personal injury lawsuit. In law books, the technical term is commonly known as a “cause of action.” A cause of action is a set of facts under which one person sues another person, business, or organization. A cause of action can arise in a variety of ways. First, it can occur due to either an act or even a failure to act. This means that some cases happen because someone didn’t do what they were supposed to do. Others arise because someone did something improperly. A cause of action can also arise on account of a breach of duty, or a violation of the law. This means that there is a law or other regulation that requires someone to act a certain way, and then that person or entity doesn’t meet those requirements. Obviously, the circumstances of the facts of your case will have an impact on your cause of action. These facts supporting your cause of action support your “claim,” where you detail what the Defendant did wrong, and the injuries you suffered. For example, compensation might include coverage of your medical bills and future medical care, lost wages and potential future lost wages due to your injury. If your case ends up going to trial or arbitration, you’ll have to prove basic elements: (1) duty of care; (2) breach of duty; (e) causation; and (4) damage or injury. This is true whether the trial is in front of a jury or simply the judge. To help illustrate these elements, let’s use the example of a slip and fall injury at a supermarket. Duty of Care This refers to the responsibility one person or business has for the safety of another person. This duty can be created by law or may also fall under a reasonable care standard. In the supermarket example, the owners have a duty to offer a safe place – free of hazards – to buy your groceries. If the store owner invites customers into its facility in the hopes of selling products, it is responsible for making sure that there are no dangerous conditions that could injure customers. Everyone agrees that it is reasonable to expect you’ll be safe and free of hazards while buying groceries. Breach of Duty After establishing a duty existed, you must show that there was a “breach” of that duty. In other words, the supermarket owners did not uphold their responsibility to keep their store free of hazards. As with duty, sometimes breach of duty is defined by law. In other cases, it is common sense and reasonable care, such as making sure there is no standing water or dangerous slick surfaces in a supermarket. Causation You must be able to show that the breach of duty was the cause of your injuries. You need to prove that whatever happened to is the cause of your condition. Going back to the supermarket, this means that you must be able to link the supermarket owners’ unsafe and slick floors as the reason you slipped, fell, and hurt your back or broke your arm. Damage or Injury This is when you get to your injuries. This is typically established by your medical treatment following the accident. The injury can be either physical (broken bones, etc.) or psychological trauma like PTSD. It’s very common for some people to have both physical and psychological injuries. If your lawyer successfully proves a cause of action, the other side is considered liable for monetary compensation for things such as medical bills, car repairs, lost wages, and pain and suffering caused by your injury. In order to receive full compensation for your injuries, you should seek the help of an experienced personal injury lawyer.

Chapter 93A – Unfair & Deceptive Trade Practices

Marcotte Law Firm LLC — Mon, 09 Nov 2020 15:13:36 GMT

Massachusetts has been called many things throughout history, but at the top of that list should be “consumer friendly.” This is true even about our laws. They try to protect consumers instead of big businesses. One example is a section of the Massachusetts’ Consumer Protection Act, specifically Section 93a, that affords broad protections to consumers from merchants engaging in “unfair and deceptive” practices. This includes sales and leases, debt collection, many contracts, foreclosure, landlord-tenant law, and even bad faith insurance claims. If you have been subject to unfair business practices, the easiest course of action would be to simply come to an agreement with the business with which you have a conflict. However, if all disputes were that simple, there would be no need for laws protecting the rights of consumers. If you are unable to resolve a complaint with a merchant, i.e., an individual or business, informally, then you may decide to take legal action. As with any law, there are certain things that need to be done. This action first takes the form of what is informally known as a “93a Demand Letter” or a “30 Day Demand Letter.” State law requires you to send the business the demand letter thirty (30) days before filing a claim in court. The letter must outline your complaint, the harm you suffered, and how you want the problem resolved. The individual or business must make a good faith response within thirty (30) days, or it could subject the business or individual to treble (triple) damages and attorney’s fees. What Constitutes an “Unfair and Deceptive” practice? Section 93a does not fully define “unfair and deceptive” practices. Similarly, state courts have been reluctant to attach a black line definition to the term, preferring instead for the determination to be made on a case-by-case basis. But, you usually know it when you see it. Examples can include a car dealership doing a bait-and-switch, a debt collector misleading you about how much you owe, or a landlord trying cutting off your water or electricity. At Marcotte Law Firm, our attorneys often see unfair and deceptive trade practices when dealing with insurance companies. This can include a simple misapplication of the law or knowingly misrepresenting the facts of a case. Other times, it can be more sinister. For example, insurance companies know that an injured person can be strapped for cash, especially if the injury keeps him/her out of work. The insurance companies use that to their advantage, offering pennies on the dollar. They tell people to take it or leave it, and if they don’t take it, the insurance company will try to drag the case on for as long as possible. Who Does 93A Protect? Section 93a protects consumers – businesses and individuals – who have been subject to unfair and deceptive practices through the process of procuring goods or services. While 93A protects both business and individuals, the standard of what is unfair and deceptive is much higher to prove for businesses than consumers. Said another way, the state makes it easier for an aggrieved individual to recover damages than a business. If you win your case, you can recover the full amount of damages, plus up to two or three times that amount if the business’s violation was “willful.” In addition to having your damages multiplied, you could also potentially have your attorney fees and costs associated with bringing the lawsuit reimbursed. This is a great tool which allows average consumers to obtain settlements that they may not have been able to obtain otherwise. If you believe you have a claim, you should contact an attorney to guide you through the next steps and potentially represent you. As previously mentioned, under 93A you can potentially recover your attorney fees if your claim is awarded in your favor. So, many times lawyers are happy to not only be able to help someone in need, but also get their full bill paid for by the shady business.

Massachusetts Safe Driving Law

Marcotte Law Firm LLC — Wed, 16 Sep 2020 15:18:56 GMT

We have all become more and more dependent on our cell phones for not only communication or entertainment, but also as an important tool for making our lives easier. Trying to get to Fenway Park from Lowell? Our phones can give us step-by-step directions, giving us the fastest route, even with traffic. We can also use our phones to reserve a parking space for when we get there. Alternatively, we can buy a train ticket on our phone and take public transportation to get there. For all the positive our phones provide, they can also distract us from what’s going on around us. When someone is looking at their phone at the dinner table, it can be very rude. But, its unlikely that someone can get hurt. Unfortunately, that’s not necessarily true if someone is distracted by their cell phones when they’re behind the wheel. According to the National Safety Council, cell phone use by drivers causes more than 1.6 million car crashes across the country each year. While many people associate these injuries with texting, there are many ways that people can get distracted by a cell phone. This includes everything from browsing Instagram to trying to make a phone call. However someone is using their phone, when it takes their attention from the road, it makes it more dangerous for everyone else. Massachusetts has been at the forefront of trying to end distracted driving. While there is never a way to eliminate cell phone use altogether, Massachusetts has tried to reduce distracted driving as much as possible. To that end, over the past decade, Massachusetts has passed a pair of laws limiting the use of cell phones while driving. First, Massachusetts passed legislation banning “texting” while driving in 2010. It banned people from sending, typing, or reading messages on any handheld device. This included texting and other types of messages as well, including emails, messaging apps, and text sent through a web page. The law also banned junior operators (drivers between the age of 16 1/2 and 18) from using handheld devices and cell phones altogether. More recently, on February 23, 2020, Massachusetts passed a hands-free law that prohibits the use of any electronic device, including mobile telephones while driving a vehicle, unless the device is used in hands-free mode. This means that a driver can’t hold a cell phone in their hand while driving. The law affects many different ways people use their phone.

If you’re making a call, even on speakerphone, you can’t be holding the phone.
The law still allows you to use your phone for navigation/directions, but the phone has to be mounted or attached to the dashboard.
Drivers aren’t allowed to look at photos or use social media in any fashion. Even if your phone is mounted to a dashboard, you can’t browse on your phone while you’re at a stop light.

As with any law, there are penalties for violating it: 1st offense – $100 fine. 2nd offense – $250 fine, plus mandatory completion of a distracted driving educational program. 3rd and subsequent offenses – $500 fine, plus insurance surcharge and mandatory completion of distracted driving educational program. Admittedly, the penalties are relatively small. Even so, the law is intended to save lives. The hope is that people will stop using their phones behind the wheel, and “accidents” that could have been prevented won’t happen. If you were involved in a car accident where the other party involved was distracted by the use of a cell phone, you may be entitled to compensation for your injuries. It is important to know the law, not only to make sure you are in compliance with it, but also so you can identify instances where you have been the victim of someone who does not follow it. At Marcotte Law Firm, our attorneys have decades of experience handling these claims. Even if you’re unsure if you have a claim, feel free to call us for a free consultation.

Warranty of Habitability for Snow & Ice Cases – New Law

Marcotte Law Firm LLC — Tue, 28 Jul 2020 18:48:02 GMT

The Commonwealth’s top court, the Supreme Judicial Court, gave landlords a bit of a break recently in Goreham v. Martins, 485 Mass. 54, (2020). The decision involves the “warranty of habitability” and the ways for tenants to recover for personal injuries sustained on their rented premises, including cases for people who slip and fall on snow and ice. By way of background, an injured person has a claim “in tort”, that is, that someone’s negligence caused the injury. There are circumstances, however, when the remedy is contract or semi-contract based. For example, there is a “warranty of merchantability” attached to products. They have to be fit for the purpose intended. A table saw that does not have a guard, for example, can be found not to have met the warranty of merchantability, and resultant injuries can be compensable under a breach of warranty theory. Similarly, the warranty of habitability assures that a rented property is fit for human occupation. If a ceiling falls on your head, you have a claim for breach of the warranty of habitability even though the landlord lacked notice of the hazard thereby making a negligence claim very difficult. In Goreham, the tenant of a three unit apartment house exited a fire escape that led to an icy driveway. He slipped and fell on the ice, severely injuring his ankle. He could have gone out the front door and thereby avoided the ice, but he commonly utilized the fire escape which more directly serviced his unit. The jury found the defendant landlord negligent, so for a moment the plaintiff/tenant was happy. Unfortunately, his joy was short lived. The jury next announced that they found the plaintiff 53% comparatively negligent, which means he was 53% responsible. If a plaintiff is more than 50% responsible, he/she does not get anything. Undeterred, his attorney argued that the landlord had breached the warranty of habitability. This is important because with these contract claims, comparative fault does not apply. So, even if the injured person was partially responsible, he is still able to recover. This has been an open question in Massachusetts. The trial judge disagreed with the tenant. He appealed. The SJC avoided the issue of comparative negligence and its ramifications on breach of warranty of habitability. It determined instead that a slip and fall on snow and ice did not implicate the warranty even if the landlord unreasonably failed to clear snow and ice from a common area. Relief is available, therefore, only under a negligence claim. This is not such a blow to plaintiffs as it may appear. In 2010, the Supreme Judicial Court eliminated a nonsensical historical distinction between “natural” and “unnatural” accumulations of ice and snow that immunized even landowners who never shoveled. That means that even if a landlord didn’t shovel for weeks after a snowstorm, an injured person could not be compensated for an injury. So negligence cases for injuries from slipping on ice became easier. The SJC in Goreham noted that, “[T]he scope of the warranty of habitability includes only the physical maintenance and repair of a dwelling unit.” As a practical matter, a tenant can see conditions outside of the apartment, (for example ruts in paved areas, potholes, ice), but not hidden conditions inside the dwelling (slow roof leaks rotting the ceiling, poor quality construction that allows railings to give way). Therefore, this case simply makes sure that comparative negligence applies to snow and ice cases, or other injuries resulting from something that happens outside the building. And this also puts off consideration of applying comparative negligence to warranty of habitability cases. It would be hoped that the decision in Goreham will result in some lowering of insurance liability costs to landlords, and ease pressure on rents, but don’t hold your breath. There is an interesting and disturbing aspect of Goreham that gets lost in the legal issue. Plaintiff dislocated his ankle, fractured his fibula, underwent multiple surgeries, and still had pain. The jury assessed damages at $25,000.00. This is low and unless Mr. Goreham had the most charitable medical providers in the history of the world, probably barely covered medical costs.

No Insurance

Marcotte Law Firm LLC — Mon, 29 Jul 2019 22:19:20 GMT

One of the worst situations that happens in our industry is when someone is injured, but the responsible party does not have insurance. Common examples include someone driving a stolen car and a dog owner not having homeowners or renters insurance.

Of course, you can still sue someone without insurance. But if that person does not have money to pay for your injuries, there is sometimes not much you can do.

However, all is not lost. In many circumstances, there are alternative ways to recover for your injuries. Whether it’s uninsured benefits, making claims with state agencies, or finding creative ways to make insurance apply, many times it is possible to get compensation for your injuries.

If you’ve been injured by someone, and you don’t think that person has insurance, it’s important to find an experienced lawyer to explore every avenue for recovery. At Marcotte Law Firm, we pride ourselves at having that experience, which allows our clients to know that every stone will be overturned for a full recovery.

Dead Defendant

Marcotte Law Firm LLC — Sat, 15 Jun 2019 22:11:44 GMT

If someone causes an injury but then dies of unrelated causes, what happens to your personal injury claim? Many people don’t want to have to file a lawsuit against someone who has passed away and add another burden to his/her loved ones.

Luckily in Massachusetts, the law allows you to pursue any available insurance without having to bring a claim directly against the person who caused your injuries. This allows you to not have to deal with the estate of the potential defendant at all, and instead focus on the insurance coverage.

The only downside to this is that you’ll be limited to recovering whatever amount of insurance the person had. So, in a case with catastrophic injuries and limited insurance, this might not be the best option.

At Marcotte Law Firm, we have experience dealing with these tricky situations. We counsel our clients to ensure that we choose the most effective path in resolving our client’s claims.

Dead Plaintiff

Marcotte Law Firm LLC — Tue, 28 May 2019 22:10:31 GMT

Attorney Michael Molloy was recently talking to an 8th grade classroom when one of the students asked an interesting question: what if someone is hurt, but then passes away from unrelated circumstances? The answer turned out to be simple.

A case is treated the same as any other asset someone leaves when they pass away. It’s transferred to the person’s estate for the benefit of his/her heirs. Just as a house, car, or bank account get transferred to beneficiaries, an accident case gets transferred in the same way.

As with anything in life, there are many complicating factors that must be considered. Most importantly, if your loved one who passed away had an injury claim, it’s important to reach out to his/her lawyer as soon as possible. The lawyer will need to discuss the process of moving the case forward, and decisions will have to be made, as almost nothing can be done until the family sets up an estate.

But, do know that just because a loved one passes away, his/her injury claim will still survive.