litigation - Marcotte Law Firm

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.

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.

September Victories for Marcotte Law Firm

Marcotte Law Firm LLC — Fri, 09 Oct 2020 17:59:35 GMT

September saw a couple of significant victories as Marcotte Law Firm is settling into its new locale. Sean Kelly secured a not guilty verdict for a client charged with drunk driving after slamming into the rear of a car whose driver had stopped on a New Hampshire country road to turn left. The investigating officers determined that the client had failed field sobriety tests, and they admitted to consuming alcohol an hour earlier. The municipality did not use breathalyzers but opted for blood tests administered at a local hospital. The suspect declined, as they later would explain due to fear of COVID. Unlike Massachusetts, refusal to take the test can serve as evidence against the accused. The client testified that the accident occurred because they had gotten lost and was checking GPS. When they looked up, the vehicle ahead had stopped. The collision, however, was substantial. Attorney Kelly not only questioned the officer’s conclusions on the field sobriety tests (first having mastered all the training and grading methodology taught to the police), but also argued that any deficiencies in her performance were equally explained by the severity of the collision. The prosecution could not show beyond a reasonable doubt that whatever symptoms might have been attributed to alcohol could as easily have been due to the collision. Ironically, our client might have been guilty of distracted driving, but was never charged with it. Happily, they have been extra cautious since. Michael Najjar prevailed at the Appeals Court which reversed a Superior Court judgment in favor of Santander Bank. Our client was the beneficiary of a realty trust which owned her marital home. Her then husband established the trust, initially served as Trustee, then resigned while substituting his sister as Trustee. He thereafter signed a $400,000.00 mortgage to Santander, whose title abstracter missed the recorded resignation at the Registry of Deeds. He later had his sister resign and he resumed the trusteeship. All of this went on without his wife’s knowledge, that is, until she learned of the mortgage during divorce proceedings. She brought an action to determine that the mortgage was invalid, because her then husband did not have the authority to mortgage the property when he took the loan from Santander. The bank argued that because he resumed the trusteeship, he re-acquired title thereby retroactively validating the mortgage. The Superior Court concurred. Attorney Najjar then became involved in the case, and contended that the Superior Court wrongly concluded the original Trustee had the right under the trust terms to reacquire trustee status. The Trial Court had reasoned the trust language gave the original trustee, who had himself created the trust, the ability to serve as trustee if he so desired even though he had at one point resigned. The ex-wife’s position was that her ex-husband had to follow the steps in the trust that governed successor trusteeship and that, contrary to the Superior Court judge’s reasoning, those terms were unambiguous. The Appeals Court agreed thereby negating the mortgage and dismantling Santander’s foreclosure. The case is significantly more complex than can be explained in this summary, and there’s more to come, but finally, the ex-wife is operating from a position of some strength. Ironically, Mr. Najjar has been involved in many appellate cases that have dealt with personal injury and insurance coverage, but his firm’s first appellate victory in a team-up with Albert Marcotte, and its most recent one over three decades later, both involved bank issues which are not the mainstay of our office’s practice areas. With a combination of common sense and legal acumen, our firm’s attorneys tend to find their way. What’s unusual about these cases? They both were argued through Zoom. At Marcotte Law Firm our attorneys pursue every avenue to achieve good results preferably without the stresses to our clients that are part and parcel of full-blown litigation. If we have to go to the wall, however, obviously we do so.