premises liability attorney - Marcotte Law Firm

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.

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.