Articles Posted in Personal Injury

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 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.

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.

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:

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

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.

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. 

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. 

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 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. 

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