Articles Posted in Legal Strategies

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The Massachusetts Appeals Court recently found for an injured woman and her husband after she was sexually violated by an interpreter employed by a hospital. In Doe vs. Boston Medical Center Corp. (13-P-1998), a woman appealed the summary judgment issued by the trial court in favor of the hospital. The trial court granted the judgment, reasoning that the harm was not foreseeable and therefore the hospital carried no duty or liability to the injured woman and her affected family.

In all negligence actions, certain elements must be met in order for a suit to proceed. The at-fault party must owe a duty to the injured person, or a responsibility to behave or maintain themselves or their premises according to established standards. If the at-fault party, or defendant, fails to do so, and an injury results, they are liable for the damages associated with that injury. In considering whether a duty is owed, certain harms must be considered “foreseeable.” For example, if a hole forms in front of an entranceway from construction or weather in front of a storefront, it is foreseeable that someone entering the store could fall into the hole and harm themselves. It is therefore the store owner’s or manager’s responsibility to keep the premises safe and fill the hole.

In Doe, the hospital had performed a background check on the interpreter, which came back with no prior criminal history. This fact weighed heavily in the trial judge’s conclusion that the interpreter’s assault was not foreseeable, and the hospital could not be held liable for his actions. The woman was inappropriately touched by the interpreter after she was checked by several doctors and staff who exited the room, leaving her alone in the hospital bed attached to medical equipment. The interpreter also left the room with the staff but stayed behind outside her door. Since the door was unlocked, the interpreter came back into the room and claimed he needed to perform a physical exam, touching her abdomen and vagina. He left but stayed outside the room again until a nurse found him and made him leave. Soon after he left, another sexual assault was reported by a different patient in a different area of the hospital, indicating that the same interpreter was involved.
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When injuries happen, the costs can quickly add up. Negotiating and litigating for the maximum amount of compensation possible is the responsibility of your Massachusetts personal injury attorney. Payments, however, can get complicated legally as parties seek money from insurance companies or partial responsibility and liability from other entities. In U.S. Liability Ins. Co. v. Benchmark Construction Services, Inc. (No. 14-1832), the court reversed the decision of the U.S. District Court in favor of the insurance company, concluding that the vague indemnity clause should be read in favor of the insured, which is the general contractor in this case.

The case stems from a home renovation accident. The homeowners hired a general contractor, who then hired an architect to design the renovation plans. This architect hired a painting company to paint one of the interior walls. An employee of the company injured herself after falling off a ladder positioned on top of scaffolding. The injured painting employee sued the general contractor for damages, alleging that they not only owed her a duty of care, but that they were negligent in their placement and maintenance of the ladder and scaffolding. The general contractor looked to their insurance company to indemnify them, but the insurance company refused, claiming that they did not have a duty to defend them in a claim involving a contractor, or non-employee, based on its exclusion clause found in the policy.

The Circuit Court pointed out that the term “contractor” was not defined under the policy, but the policy was to cover any accidents involving “bodily injury.” The District Court had previously determined that a contractor was “anyone who held a contract,” so even though she was an employee of the painting company hired by the sub-contracted designer, she fell under the exclusion. The Circuit Court felt otherwise and concluded that she was not someone who worked for the insured and could be reasonably considered to be the type of injured person the policy was designed to cover.
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Recently, the appellate court of Massachusetts reviewed an appeal from the parents of a deceased delivery driver who was murdered while working for a Domino’s franchise. In the case, Lind v. Domino’s Pizza LLC (14-P-928) the parents appealed the trial court’s decision to dismiss the claims against the pizza corporation after considering its eleventh-hour motion for summary judgment. The case discusses how far liability extends and the legal concept of agency, which often plays into personal injury and wrongful death cases.

When determining whether a person’s injury or death was due to the negligence of another, the courts look at whether a duty, created by law, was owed to the person, whether there was a breach of that duty, whether the breach caused the alleged injury or death, and whether damages were incurred. Sometimes people are injured or hurt by another person who was working for a company when the injury occurred. For example, if an employee was responsible for cleaning up spills in a grocery store but failed to do so, the employee would be the immediate person responsible for any injuries sustained by a customer who slips and falls on the spill. However, the employer is also accountable for the injuries sustained because the employee was acting on behalf of the company, or as an agent.

In Lind, the question comes up about how far this logic extends as far as liability is concerned under civil law. Popular chain restaurants are often franchises, in which an individual or group purchases the rights or ability to use the logo, menu, and recipes of an established brand but holds the majority of the day-to-day responsibilities of running the store. The murdered employee worked for a franchisee of the Domino’s Pizza brand. As part of the wrongful death action, the administrator of the estate filed a wrongful death action against several parties, including the murderer and the pizza franchisor.
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In personal injury cases, the focus is typically on the accident itself and its effects on the injured person. The actions of the person at fault, or defendant, are discussed, beginning with the question of whether he or she owed a duty to the injured party. The next question is whether the at-fault party’s actions led to the accident that caused the injuries sustained. The injured person investigates the at-fault party’s behavior, looking at his or her actions immediately preceding the accident. This investigation could extend to prior behavior like DUIs or negligent care of property to reveal a pattern of negligence. Sometimes, though, the at-fault party and his or her counsel will look at the medical history of the injured person to argue that the injuries alleged were not ones that stemmed from the accident.

In a recent unpublished Massachusetts appeals court case, Hannon vs. Calleva (14-P-1061), the at-fault party argued that the injuries claimed in that case were the result of the injured person’s decades of work as a telephone installation repair man. During the accident, the injured man was driving a large commercial van and was stopped at a red light. The at-fault driver pulled up behind him and and heard a beeping sound. When she turned around to look for the source of the sound, her car came into contact with the rear bumper of the van in front of her. The injured driver sought medical attention a few days after the accident, complaining of neck pain. Eventually, the neck pain became chronic for the injured driver. At trial, the driver discussed prior medical conditions that could have contributed to the pain, including treatment for a shoulder injury incurred at work. He also discussed his struggle to return to work and the inability to perform his duties when he was there, despite the physical therapy and trigger point injections.
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Many personal injury suits in Massachusetts are filed within the Commonwealth’s court system. Some lawsuits end up in federal court if a violation of a federal law or regulation occurs, or if one or more of the parties involved in litigation reside or conduct business in another state. The injured party would likely argue that his or her state is the most appropriate place for the litigation to unfold. Federal District Court cases from Massachusetts are heard in the First Circuit Court of Appeals, which also includes the district courts of Maine, New Hampshire, Puerto Rico, and Rhode Island. Any published decisions from the First Circuit are binding and instructive on similar matters arising from any and all districts.

A recent case arising from the District of Puerto Rico, Rosa-Rivera v. Dorado Health, Inc. (No. 13-1328) reviewed a jury award to an injured baby and his parents, after he received negligent care in the hospital by the doctors and staff. In this case, the parents, acting on their own behalf and on behalf of their son, alleged that the hospital and the obstetricians who delivered him were negligent and caused him to suffer trauma, shoulder dystocia, and ultimately paralysis of the arm. The parents took the matter to trial, and the jury found both the defendant doctors to be negligent, but only one was responsible for causing the injuries. The jury awarded the family $807,500. Dissatisfied with the verdict, the family sought a new trial but was denied by the district court. The family alleged several procedural errors during the trial to the district and circuit courts, but they were denied a new trial in both courts. The family argued that the trial judge erred in not allowing their attorney to ask a nurse at the defendant hospital leading questions. They also claimed that the judge should have used one of the proposed jury instructions offered by their attorney and that the jury gave an inconsistent verdict.
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Summer months are often the time when home repairs are done. Home owners hire general contractors for a project, and those contractors may hire subcontractors to do specific parts of the project. If one of the workers gets hurt, questions of liability instantly arise. If the worker is an employee of the subcontractor or general contractor, he or she may qualify for workers’ compensation benefits through his or her employer. The injured worker may also choose to hold the home owner or other parties involved in the work liable through a personal injury suit. Litigation and payment of costs are often taken up by the insurance companies involved, and they may dispute amongst themselves the additional issues beyond the facts surrounding the injury.

Preferred Mut. Ins. Co. v. Vermont Mut. Ins. Co. (No. 13-P-1890) discusses whether or not the insurance company that provided a homeowners’ insurance policy for the family, including the son, could withdraw from their responsibility to provide coverage in the presence of another insurance policy covering the son’s business. The discussion began after the family began to to renovate their second floor bathroom and hired a business to work on the plumbing. An employee of the plumbing contractor injured himself after he fell from the second floor, due to an unsecured railing that was unfastened by the son when he was moving a cast iron bathtub. The employee and his wife sued to hold the parents and the son personally liable for the accident and for the wife’s loss of consortium.

The company issuing the home owner policy refused to defend the son. The son’s policy issued in connection with his business as a self-employed electrician agreed to defend the son in the suit but reserved the right to withdraw, depending on whether or not his role in the renovation project was personal or professional. The injured plumber and his wife were ultimately successful at the jury trial, winning an award of over $225,000.00 for the plumber and more than $12,000.00 for the wife. The son’s business insurance company had previously filed another action naming the home owner insurance company, the son, and the parents as defendants, declaring that if their policy limits were exceeded, the other insurance company was obligated to defend and indemnify the son.
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If a Massachusetts worker is injured or falls ill while conducting a work-related activity, he or she may be able to pursue a variety of benefits, including workers’ compensation, to help pay for daily expenses and medical bills. This system, under the Commonwealth’s workers’ compensation laws, is designed to make the process easier for all parties. The employer does not have to worry about extensive personal injury suits, and the injured worker does not have to prove fault and wait a long time for payment of benefits. Other structured benefits, like unemployment benefits, may also be available to help pay for the expenses.

The main difference between workers’ compensation and unemployment assistance through the Massachusetts Department of Unemployment Assistance (DUA) is that the DUA provides benefits to workers who are not working through no fault of their own, but are able to work. Workers’ compensation is designed to provide benefits to injured workers who are unable to work, both temporarily and permanently. The difference between what types of benefits are available can hinge on a very slight variation of fact or circumstance of when the illness or injury occurred, and what action was taken to address the injury or illness.

A recent Appeals Court case, Ferreira v. Dept. of Unemployment Assistance (14-P-423), reviews a situation where an employee sought benefits under the DUA after he left the employment of a motorcycle dealership as a result of a health condition that he felt compelled the resignation. Massachusetts case law has established that “an employee who leaves work due to a reasonable belief that his work environment was causing a health problem is not disqualified from benefits.” (See, e.g., Carney Hosp. v. Director of the Div. of Employment Security, 382 Mass. 691 (1981). The set of facts in Ferreira primarily looks at the medical proof offered to determine whether or not the injured person was entitled to unemployment benefit payments.
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When you or your family member is in a Massachusetts car accident, the primary focus is and should be on emotional and physical recovery. Soon afterward, the concern over expenses and the ability to pay them moves into view. Even when insurance policies are in place and cover expenses, policy limits can fall short of covering the total cost of medical care and lost wages. Alternate routes to make up the difference must then be considered, especially when standard options like underinsured or uninsured coverage options are unavailable or also fail to cover all the expenses.

In a recent Appeals Court case, Borden v. Progressive Direct Ins. Co. (14-P-449), an injured woman had to look to the personal policy of the driver after he hit her car in a work truck. In any car accident case, the injured person first looks to see if the at-fault driver has an insurance policy that will provide funds toward the expenses. In Borden, the woman was hit by a tow truck used to transport automobiles to and from dealer lots and sales auctions. The accident-causing driver was hired to assist with work as needed by the owner of the truck, and he had used his own vehicle to arrive at the owner’s garage on the day of the accident. The at-fault driver was on his way in the company truck to pick up a car for delivery when he hit a car, injuring the passenger in the car.
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In Massachusetts, claims for personal injury must be filed within the timeline set out by the Massachusetts General Laws. Medical malpractice, personal injury, product liability, and wrongful death actions must be filed within three years of the accident or the date the injury was discovered. If claims aren’t filed within the statutory timeline, the injured person generally loses the ability to sue for damages. Other timelines guide actions that must occur within certain types of civil suits, including the requirement found in Massachusetts G.L. Ch. 93A, which directs the plaintiff to send a demand letter 30 days before filing an action for an unfair and deceptive practice.

In auto accident cases, courts, insurers, and the injured parties all must look to an insurance contract to see or determine whether or not the policy provides monetary relief for the injured person. If the insurance company determines that the injured person was not covered under the policy in question, the injured person may then choose to file a separate, related suit against the insurance company for failing to provide coverage as contracted.

In a 2008 decision, Kanamaru v. Holyoke Mut. Ins. Co. (72 Mass.App.Ct. 396), an injured bicyclist sought benefits under his roommate’s policy after he was hit by an uninsured vehicle on the road. The roommate had previously insured him under his auto policy, since he intended to share the vehicle with the injured man. After the suit was filed, the insurance company declined to cover the roommate’s injuries, arguing that the policy did not extend to the roommate for UM (uninsured motorist) coverage. In addition to his arguments that he was covered by the policy, the injured man filed suit against the insurance company for unfair and deceptive trade practices. The appellate court in that case ruled that the trial judge correctly entered a summary judgment in favor of the insurer defendant for failing to send a demand letter 30 days prior to filing suit.
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Businesses are expected to keep their premises safe for patrons. This duty under Massachusetts law requires owners and managers of property to address known harms in frequently traversed spaces like stairwells and sidewalks. Hospitals are frequently featured in personal injury discussions, either as the ultimate destination to treat injuries caused by negligence, or the site of medical malpractice. In a Massachusetts appellate case, Connaghan v. Northeast Hosp. Corp. (13-P-1419), a hospital is the location where a litigated slip and fall occurred.

The slip and fall occurred in December on a stairwell and walkway of a hospital. The injured party had walked through the walkway and later testified it was clear. He was taking his child to a pediatrician appointment and was unable to hold the lone rail on the side as he was holding his daughter with both hands. Testimony at trial showed he was not looking down or around at the ground as he stepped off the stairs. The injured man said that the walkway wasn’t clear when he came out from an appointment 30 minutes later. The injured party filed suit and took the matter to trial, but the jury found for the defendants because there was no evidence that a hospital employee or landscape worker found and reported ice prior to the injured man’s fall.
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