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When personal injury cases are filed against a government entity, an injured person faces challenges unique to this type of defendant. Case law in Massachusetts and elsewhere grants governmental bodies immunity from civil lawsuits. The idea is that the government body should not be distracted by civil litigation defense so that it can focus on the daily needs of the community. General Laws c. 258, § 10(j) grants public employers immunity from tort actions based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the conduct of a third party. Many exceptions, however, have been also been codified by the legislature in the Commonwealth’s general laws, providing opportunities for injured parties to be granted legal and financial relief.  In a recently issued case (16-P-1308), the Appeals Court reviewed the defendant city’s argument that it was shielded from liability under sovereign immunity.

This case was filed after a teenager died from drowning in the swimming pool at the local high school. The teen had left his home at 8:00 in the morning to go to the school to turn in paperwork for the upcoming school year. The school was not open on this date. Security cameras revealed that a little after 10:00 AM, the teen was inside the school in a hallway close to the pool. The footage revealed he was in the weight room and then the girls’ locker room, which has a door that exits directly to the swimming pool. At 5:30 PM that day, a swim coach found the teen’s body at the bottom of the pool. Emergency personnel pronounced the teen to be dead at the scene.

The estate of the teen alleged he suffered a wrongful death due to the city’s negligent maintenance of school property, and the site itself was an attractive nuisance. The complaint specifically alleged that the doors and locks to the pool area were not properly secured. The city claimed sovereign immunity and sought dismissal, alleging the exception did not apply in this situation. The trial court agreed with the estate’s argument that this fell under the exception found in G.L. c. 258 § 10(j), which states that sovereign immunity does not apply when there is negligent maintenance of public property.

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Auto insurance is designed to provide benefits after an accident to help streamline payments and help the injured parties heal. During a stressful, unusual time, an insured may not be in the state of mind to ensure the company has her or his best interests in mind. To protect consumers, the Massachusetts legislature prohibited insurance companies from participating in unfair claim settlement practices, delineated in G. L. c. 176D, § 3(9)(f) and G. L. c. 93A, § 2. A recently issued Massachusetts opinion (No. 16-P-927) reviews whether or not an insurance company committed unfair claim settlement practices when it conditioned the payment of the policy limit on the release of claims against its insured.

The Appeals Court ultimately held that it did not but gave insight into what does and does not qualify as an unfair settlement. The front-seat passenger was seriously injured after the driver crashed his rental car. The driver rented the car for work a few weeks before and was covered by his employer’s primary commercial automobile insurance policy, as well as two excess insurance policies. The primary coverage was $1 million, and the excess policies provided $5 million worth of coverage each. Following the accident, the passenger filed suit against the driver and his employer, alleging negligence.

The primary insurer, providing the defense for both the driver and the company, exchanged several letters discussing the settlement of the negligence claim with the injured party. In the initial demand letter, the injured passenger claimed the driver’s negligence was reasonably clear, and the parties were liable for his damages, totaling over $1 million. The letter offered that in exchange for the $1 million insurance policy limit, he would release the insurer from further claims of any kind. The passenger did not offer to release the driver or the employer, since he intended to pursue claims for additional damages. However, the injured person noted he was willing to enter into an agreement with the driver and the driver’s employer if the insurer met his demand for the $1 million policy limit.

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If you are thinking about changes to your will or trust, it helps to have the assistance of an experienced estate planner to ensure your wishes are fulfilled when the estate is distributed. A recent Massachusetts Appeals Court decision (15-P-99) demonstrates the confusion and litigation that can occur among family members following a death and the transfer of property. In this action, three siblings filed suit against their brother and his wife after they took ownership of one of the properties previously owned by their parents. The plaintiff-siblings alleged that their parents intended the property to be shared by all four siblings.

The patriarch of the family died in 1997, leaving the property to his wife, the mother of the children who are parties to the litigation. The mother requested the siblings contribute to the maintenance of the property, but none of the plaintiffs volunteered. The plaintiffs instead suggested that a part of the property be sold to cover the expenses. The defendant-brother refused this proposal. In 1998, the mother transferred a part of the property to him for $2,000. Following this, the brother created a trust to hold the property, which listed all four children as beneficiaries. All of the siblings signed a schedule of beneficiaries as proof they knew of the trust and its purpose. Unfortunately for the plaintiffs, the mother never transferred the property to the trust, and the trust remained unfunded. The plaintiff-siblings were unaware of this failure to transfer. Since the city was notified of the trust and directed to bill the trust for property taxes, the children assumed the trust was funded. In 2002, the mother transferred the remainder of the property to the brother for $20,000, but the brother did not let the siblings know this exchange occurred. In 2005, suspicious of her brother’s intentions, one of the plaintiff-siblings wrote to the Probate and Family Court regarding the brother’s efforts to become the guardian of their mother.

At the jury trial, the plaintiffs ran into many hurdles during the entirety of the trial. The siblings claimed their brother, through fraud, deceit, or a breach of fiduciary duties, took the income from a property that was to be divided among all of them. The brother moved for a directed verdict at the close of the plaintiff’s case, arguing his siblings missed the statute of limitations. The court granted the motion, concluding the plaintiffs knew or should have known they were harmed three years before the lawsuit was filed. The court also granted the brother’s motion for a directed verdict on the contract claim, ruling that no evidence of an agreement had been admitted. The trial court allowed the claim for promissory estoppel to be submitted to the jury, since it had a six-year statute of limitations. The jury found for the plaintiffs and awarded $200,000 in damages; however, the court then granted the brother’s motion for a judgment notwithstanding the verdict because no evidence of an unambiguous promise was admitted during the trial. The siblings appealed.

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If you are seeking Social Security Disability in Massachusetts, it helps to understand the process and requirements. In any determination for Social Security Disability, a decision-maker must review and make findings based on the medical evidence presented by the applicant. The Social Security Administration (SSA) recently released a new ruling (SSR 17-2p) on the evidence that is needed by a consultant or adjudicator to find medical equivalence. This Ruling provides insights for consultants, adjudicators, attorneys, and applicants on what must be presented for a successful ruling.

An SSI claim goes through the five-step Sequential Evaluation Process. If disability is determined at any step, the process is considered complete. During the third step of the evaluation, a medical assessment is conducted that looks at whether or not the applicant’s impairment(s) lines up with the ones on the formal Listing of Impairments. Generally, the applicant must meet all of the requirements of one of the listings in order to qualify for SSI, but the decision-maker may still find an individual is disabled if her or his impairment medically equals a listed impairment.

The SSA considers an impairment to be medically equivalent if it is equal in severity and duration to the criteria of the listed impairment. Medical equivalence can be found in three ways. The first possible scenario is when an applicant has an impairment that is described but does not exhibit a specific finding in the listing, or meets all of the findings of the listing but not the severity. The second is when the impairment is not described in the listing but provides findings that are similar to one or more of the listed impairments. The findings must be equal to the medical significance of a listed impairment. The third is when an applicant has a combination of impairments, and none of them meets a listing. The SSA allows the decision-maker to compare the findings as a collective to see if it is analogous to listed impairments. Similar to the second scenario, the findings must be equal to the medical significance of a listed impairment.

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In Massachusetts, an injured party can be partially responsible for her or his own injuries and still recover damages from a negligent party. However, the responsibility for the injury cannot be greater than the defendant party or parties. If the injured person meets the threshold but contributed to the injury, the amount of damages is offset by the amount of fault assigned to the injured party. For example, if an injured person is found to be 47% negligent and awarded $100,000 in damages, the injured party can recover $53,000. If the negligent party is found to be greater than 50% negligent, she or he will receive none of the damages.The Appeals Court reviewed this issue in a recent decision, Craffey v. Embree Construction Group (16-P-791), providing insight into the types of proof offered at trial in the pursuit of damages. In this case, the injured worker, a contractor, fell from the scaffolding at a construction site. After the injury, the worker filed suit, alleging the employer was negligent due to violations of both federal and state regulations for workplace safety.

At trial, the court allowed the introduction of the federal regulations under the Occupational Safety and Health Act (OSHA) but did not allow the introduction of state regulations, since the federal regulations pre-empted the state regulations. At the end of the trial, the jury found the defendant to be 49% negligent and the injured contractor to be 51% negligent, resulting in the dismissal of the injured man’s complaint and no award of damages. The injured contractor appealed, asking for a new trial. The contractor argued the judge’s ruling prohibiting the introduction of state regulations negatively influenced the verdict.

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Injured employees may receive compensation beyond the emergency room bill and calculated wages under the Workers’ Compensation Act. They may also receive payments for prescriptions and therapies for persistent medical conditions. In Magraf’s Case (16-P-364), the appellate court reviewed an award of prescription drug coverage and reimbursement for medical appointments under G. L. c. 152, §§ 13(1) and 30 following a lump sum settlement for an injury. The insurer raised an affirmative defense that the employee had a pre-existing condition, but the Administrative Law Judge chose to order payment anyway, citing the opinions provided by the Independent Medical Examiner (IME). The Reviewing Board upheld the ALJ’s determination, and the following appeal ensued.

The existence of a pre-existing condition does not prevent compensation for a work injury. Massachusetts’ General Laws allow for the compensation of an injury as long as the work injury was a major cause of the disability. It does not have to be the predominant cause of the disability. An employer or insurer may raise a pre-existing condition as an affirmative defense to the payment of benefits, but they bear the burden of showing the pre-existing condition is not covered. When assessing the Reviewing Board’s decision, the Appeals Court looks at whether or not the decision was supported by substantial evidence, whether or not the Board made an error of law, or whether the Board issued a decision that was arbitrary and capricious.

The insurer argued that the ALJ failed to make findings regarding the nature of the injured worker’s pre-existing condition. The ALJ felt the issue of causation had been fully litigated and satisfied by the lump sum agreement. To avoid re-litigating causation, the court ruled the insurer must meet a new burden of production. The Board agreed with the judge’s assessment, determining that the judge rightfully adopted the IME’s opinion that the work injury was still a major cause of the injured worker’s disability and need for treatment.

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After a workplace injury, a worker is entitled to receive a weekly wage that’s calculated by plugging the worker’s earnings into a formula under Massachusetts G. L. c. 152, § 35D. A partially incapacitated worker may receive 60% of the difference between the average weekly wage before the injury and the weekly wage the worker is capable of earning after the injury. This is not to exceed 75% of the amount she or he would receive if deemed totally incapacitated. A recent Appeals Court case, Lavalley’s Case (16-P-46), assessed an earning capacity calculation for a worker suffering from bilateral carpal tunnel syndrome.

In this lawsuit, the administrative law judge (ALJ) initially ordered the insurer to pay $235.43 a week in partial benefits. However, the order did not include the calculation under G. L. c. 152, § 35D, and both parties appealed to the Reviewing Board. After the Reviewing Board remanded the lawsuit down to the ALJ for further findings of fact, the ALJ found that the insurer was only required to pay $121.91 from the day the injury began on June 1, 2011 to December 31, 2014. The insurer was then required to pay $97.91 from January 1, 2015 forward. The worker appealed this order to the Reviewing Board, which affirmed the ALJ’s calculation. The injured worker then appealed the Reviewing Board’s decision.

In its review, the Appeals Court first established that the decisions of the Reviewing Board are not overturned unless there was no evidence supporting the ruling, or the decision was tainted by errors of law. At the initial hearing, the ALJ made a finding that the injured worker could perform light work and granted her the maximum amount of weekly wage under the law. However, the ALJ did not attach the corresponding calculation with this finding. On remand, the judge used the same evidence that was presented at the first hearing but came to a different conclusion and ordered the lesser amount. The injured worker argued that the second order went against the first and that the ALJ was obligated to hear new evidence.

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In Massachusetts premises liability cases, the injured person must show that the owner or manager of a property failed to uphold the duty to use reasonable care to keep the premises safe. Typical scenarios are when someone slips and falls on a substance or harms themselves because of a hazardous condition. The injured person must show that the owner knew or should have known about the substance or condition, in addition to demonstrating the owner or manager had the duty to either remove the hazard or warn patrons.

In a recent decision, Simas vs. Starwood Hotels & Resorts Worldwide, Inc. (16-P-158), the Massachusetts Appeals Court looked at whether or not an amended pleading was appropriately denied in a hotel slip and fall lawsuit. The injured man fell in the shower during a stay. The injured guest initially alleged that the defendants were negligent by allowing a defective soap and shampoo dispenser to remain in the room he occupied.  More than a year after the case was filed, the defendants moved for summary judgment against the injured hotel guest. Six months after this motion was filed, the injured guest attempted to amend his complaint, switching from the argument that the defective soap dispenser leaked soap, causing him to fall, to alleging the hotel was negligent in their design, construction, and maintenance of the shower floor. The amended complaint also alleged the hotel’s shower floor did not meet the reasonable standards of slip resistance, and the hotel was negligent by failing to provide a bath mat or grab bar to prevent slipping.

The trial court denied the motion to amend, arguing that an amendment changing the theory of liability two years after filing would unduly prejudice the defendants. The injured guest pursued a defense against the summary judgment, which caused a further delay in the proceedings. The injured guest pointed to architectural drawings found in the discovery that revealed the hotel’s intent to renovate the bathrooms in order to make them compliant with the Americans with Disabilities Act (ADA). The appellate court acknowledged how that may have factored into the injured man’s decision to amend the complaint, but it pointed out that the discovery with this information was available early in the proceedings. The court did not feel that this excused the prejudicial delay. The appellate court pointed to the lack of information with the amended complaint that would have enlightened the trial court as to whether the modifications to the bathrooms specifically addressed slippery bathtub surfaces. The court cited Massachusetts case law, which permits a trial court to deny a motion to amend if there’s an unexcused delay.

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In a recent case (15-P-1563), the Massachusetts Appeals Court reviewed a wrongful death lawsuit filed by the estate of a deceased infant, alleging the health care providers negligently performed their duties and led to the death of the infant. The case went to trial, ending with a verdict for the defendants. The estate appealed, claiming errors in the evidentiary rulings made by the judge.  Upon review, the appellate court declined to overturn the decision, providing insight into what must be shown by an injured party to successfully pursue a wrongful death action.

The central question in this medical malpractice case was whether or not the providers were negligent by failing to recognize the baby’s heart monitor tracings were too slow, requiring a cesarean section. The defendants argued at trial that the tracings indicated a reassuring heart rate and that the cesarean was performed when the dilation failed to progress beyond nine centimeters. The estate pointed to the missing original, contemporaneous paper tracings, arguing that the copies in evidence did not have any handwritten notations of the defendants, so it was difficult to tell whether the doctors noted a reassuring or non-reassuring heart rate during the mother’s labor. The estate argued that the post-delivery care provider notations referred to a non-reassuring fetal heart rate as the reason for the c-section. The defendants countered that the notations could have been post-delivery assumptions, based on the near-lifeless state of the child upon delivery.

The estate entered into evidence copies of the post-delivery medical providers but did not call any of them as witnesses during trial. The defendants argued the lack of witnesses necessitated a missing witness instruction, which the trial judge denied. However, at argument, the defendants asserted that the estate did not present evidence that the post-delivery care providers actually examined the records of the heart tracings made at the time of delivery. The estate felt the judge allowed this argument in error and made it a focal point of the appeal.

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Massachusetts limits the time in which an injured party can file suit against a defendant. For most personal injury actions, the case must commence within three years after the cause of action accrues. This is known as the statute of limitations. This time begins when the date of the injury occurred or when the injured person knew or should have known that the injury occurred. Massachusetts laws also limit the time for the latter in statutes of repose, which cap the time to file a case.  The primary example of this can be found within the medical malpractice statute, G. L. c. 231, § 60D. This statute allows a minor under six years of age to file suit past the three-year period, as long as it is before the child’s ninth birthday and within seven years. For instance, a child may discover that an accident at 18 months of age caused delayed injuries. This child can still file suit past the age of 4 1/2 years old but must file suit within seven years, even though the child will not quite be nine years old.

In a recent case (16-P-299), a father and next friend fought a trial court’s ruling dismissing his medical malpractice claim against three defendants for injuries to his child at birth. The court determined the claims were time-barred by G. L. c. 231, § 60D. The child was born on October 12, 2006, and the initial action was filed on December 26, 2012. On September 17, 2013, the father sought to add three health care provider defendants to the original defendants. The new set filed a motion to dismiss, which was granted, and the father appealed.

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