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Hazards come in all shapes and sizes. In a Massachusetts premises liability action, the injured party must show that the owner or property manager was negligent by failing to clear a hazard. A court will only find negligence if the hazard was something of which the owner or manager knew or should have known. Those responsible for a business or an accessible-to-the-public property must use reasonable care in maintaining the premises.

The Appeals Court recently issued an opinion in a recent decision (16-P-1067), looking at whether or not the Superior Court judge erred by granting summary judgment for the defendants in a premises liability action. The plaintiff lived in a condominium complex and injured herself after tripping over a bent marker stake. The snow removal service contracted by the owner of the condominium complex used stakes to mark certain landscaped areas in order to minimize damage to the land. One of these stakes was near a walkway and was bent. The injured party noticed the stake two weeks prior to the accident but did not report the stake to the condominium trust or the owner. No other reports by residents were made to either defendant before her accident related to the bent stake. The injured resident passed the stake three times in the same day prior to the accident, noticing that it was bent but not protruding onto the walkway. The injured resident asserted that when she tripped on it later in the evening, the stake was protruding over the walkway. The injured resident filed suit against the condominium owner, the condo trust, and the company contracted for snow removal, alleging they failed to use reasonable care in maintaining the condominium property.

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Wills sometimes include a residuary clause to help cover items in the estate that were not specifically bequeathed. These remaining possessions and property are dealt with after the other gifts have been dispersed. The Massachusetts Appeals Court recently dealt with questions surrounding a residuary clause in a recent case (No. 16-P-715). The residuary clause in this lawsuit left “any monies remaining” in the estate to the testator’s live-in romantic partner. The executor of her estate and the partner both claimed that she meant for her one-half interest in a property shared with her brother to go to the partner. The brother’s estate claimed that since she did not devise her interest in this real property, the property passed through intestate succession to her now-deceased brother, her sole heir.

The central legal question hinged on whether or not “monies” included real property. The testator’s partner drafted her will by using a model provided to him. The testator executed it approximately six weeks before her death. The property in question was the testator’s childhood home. Her brother lived there with their mother until the mother’s death and then resided there the rest of his life. In her will, she chose, for unknown reasons, to exclude any mention of this property. Her will did include funeral arrangements, investments, a cash gift to a creative arts center, a yearly gift of $8,000 to her brother (who was alive at the time of her death) from a trust fund of $150,000, a gift of $150,000 to her partner, and several specific monetary gifts to charities and individuals. Property like her car, books, manuscripts, and personal possessions were also left to her partner. Real property was also mentioned in her will. Her share of the home bought with her partner was left to her partner, and a Cape Cod property owned with her brother was left to a couple who was to take possession after the life estate granted to her brother.

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Determining if an injured employee is eligible for workers’ compensation benefits is straightforward if the accident occurs at the work site. It is not as clear if the worker is injured while traveling to and from locations. Workers’ compensation benefits are awarded to those injured while performing acts for the employer in the ordinary course of business. Thus, if a position requires an employee to travel, and the employee is injured while traveling for the employer, the employee is eligible for workers’ compensation. However, a worker is barred from receiving compensation if the “going and coming” rule applies. This rule blocks injured workers from receiving compensation if an injury occurs while an employee travels to and from a lone, static place of employment.

Traveling employees are different, though, and this is illustrated in a recent Reviewing Board decision (Board No. 015466-13). In this case, the insurer appealed a decision by an administrative judge that awarded payment of §§ 13 and 30 medical benefits to a nurse seriously injured in a car accident. The injured worker was a psychiatric nurse who was assigned to work in Brattleboro, Vermont. The employee traveled from her home in Massachusetts to work five days a week on the night shift. The injured nurse was provided expenses for a hotel stay and meals for five days of the week. The nurse advised she did not put in for additional travel reimbursement from the employer, nor did she tell her employer whether she traveled home to Massachusetts on her off-days. The injured nurse did not think she was required to go home on those days, nor did she believe she was obligated to tell her employer any time she went home.

The senior market manager for the injured nurse’s company testified at the hearing. The manager stated she provides all traveling employees with a seven-day per diem each week unless she was told they were traveling back to the “permanent tax home.” The manager testified that while she did not assume the contracted medical staff traveled, she did provide additional per diem payments to employees who notified her they were going home to pick up clothes or traveling for a personal event.

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When seeking damages through a personal injury lawsuit, the goal is to become “whole,” or as you were prior to the injury. Some of the damages are to help cover the costs during this period like lost wages. Others are to help pay for the medical care received after the injury and for future medical expenses required to continue healing. An experienced personal injury attorney will seek damages from any and all entities deemed responsible for the payment of damages. Many times, this will be an insurance company that issued an auto, homeowner, or commercial policy that is designed to provide quick, accessible payments. While insurers exist to provide funds in times of emergency, insurance companies often decline to pay the benefits found in a policy. These types of challenges present additional obstacles for the injured person to overcome.

A recent Massachusetts case (No. 15-P-1706) was a case in which an insurer was ultimately required by the appellate court to provide coverage. The plaintiff was injured by a dog while she was walking her own dogs.  The injured person tried to protect her dogs during the attack, suffering a broken arm, a laceration to her face, and scrapes on her knees, elbows, and ankles. The aggressive dog had a history of biting other dogs. The owner of the dog had a homeowner’s insurance policy and attempted to file a claim to help pay for the injuries sustained by the injured person. The insurer refused to provide coverage, pointing to the application submitted by the owner that left out the prior bites. The trial court, despite protests from the dog owner and the injured woman, granted the insurance company’s motion to dismiss the claims against it seeking payment of benefits. Both the owner and the injured person appealed.

The dog owner acknowledged he owned a dog on his initial application for homeowner’s insurance. Under a section asking him to “Note breed and bite history”, he wrote, “American bull dog — no biting incidents.” The dog owner signed and verified that his answers were ‘true, complete and correct to the best of my knowledge and belief.” After the injury in this case, the insurance company investigated the claim and found that the offending dog had previously bitten two other dogs before the owner’s application was turned in. In its motion to dismiss, the insurer argued the answers were a material misrepresentation that voided the policy and its benefits.

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In Massachusetts, an injured worker can receive workers’ compensation benefits for a work-related injury that aggravated a pre-existing condition as long as the injury is a major cause of the disability. This differs from the requirements for psychiatric injuries under G. L. c. 152, § 1(7A), which place a higher burden on the injured person to show the workplace injury was the predominant contributing cause. To determine whether or not the work-related injury rises to this standard, the Administrative Judge (AJ) hears from medical experts who have either examined the worker or looked at the injured person’s records. An award of benefits hinges on whether or not there is sufficient evidence to support the claim of psychiatric disability.

In a recent case (16-P-837), the Appeals Court reviewed an appeal of a decision of the Department of Industrial Accidents (DIA) reviewing board, which reversed an AJ’s decision in favor of the injured worker.  The board determined the injured woman did not show the employment-related event was the predominant contributing cause. The injured worker appealed, arguing the decision should have been affirmed, or in the alternative, recommitted to the AJ for additional findings. The claim originated from the worker’s repeated encounters with clients through the Department of Transitional Assistance (DTA) who were verbally hostile and threatening. The woman sought psychiatric treatment in 1997 after working there for several years, but she had a stressful incident in 2013 when she was threatened by a client during an interview. The worker sought help from a supervisor but received no support. Paralyzed by anxiety, the injured worker did not return to work.

Prior to her employment, the woman suffered physical and emotional abuse from her mother. The woman did not have any family support, nor any mental health treatment during this period. During the hearing with the AJ, the independent medical examiner testified that her childhood experiences and experiences at work contributed to her diagnosed mental health disorders. The doctor affirmed that she was medically disabled and that the cause of this disability stemmed from the combined experiences. The doctor testified that after several years of traumatic incidents, the threatening client at work in 2013 was the “proverbial straw that broke the camel’s back.” In its review, the board concluded this was not enough to show the work-related incidents were the predominant cause of her disability.

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Estate planning is much more than dividing your belongings and assets after death. Estate planning can include the strategic use of property law to maximize assets for medical care. A recent appellate decision (16-P-282) discusses which type of control a grantor can maintain after executing a deed through a special power of appointment. The grantor in this action decided to protect her home from a lien provision found in the Massachusetts Medicaid program, MassHealth. To do so, she transferred property to her three daughters and son-in-law in equal shares, retaining a life estate. Following this transfer, she decided to remove one of the daughters’ share, redistributing the difference to the others.

When the grantor passed, the executrix presented the will for probate. The excluded daughter objected to the probate and sought a declaratory judgment voiding the reapportionment made through the grantor’s reserved power of appointment. The matter went to trial, at which the court found the reservation of appointment to be valid. The daughter appealed, arguing that the deed was misinterpreted.

In its analysis, the appellate court recognized the tension between two objectives in this document. Both parties agreed that the grantor intended to divest the property, keeping a life estate for herself, to minimize the impact of the MassHealth look-back regulations. They also agreed that she intended to keep the ability to alter the conveyance before her death. The deed reflected this intent. The first grants a present ownership interest, but the second allows the grantor to wipe out those interests. The daughter challenging the deed argued that even though the grantor intended to retain her interest, that reservation of power in the deed was void under the law.

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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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