Posts by Breakstone, White & Gluck
What Massachusetts Consumers Need to Know about Health Club Contracts
If you exercise at a health club, you may not be aware that Massachusetts law protects you in many ways from unlawful club contracts. But many local health clubs – yours may be included – are regularly violating the law.
Health clubs are serving larger numbers than in the past. Over 50.2 million Americans now hold gym memberships, a 10 percent increase over the past three years, according to the International Health, Racquet & Sportsclub Association.
The industry has been known to make it challenging for members to cancel or put their memberships on hold. Sometimes, after you sign the cancellation agreement, they require you to pay until month’s end, then another full “last month.” In addition to monthly membership fees, many are also now adding new fees for “annual” memberships and equipment maintenance. Some are even charging cancellation fees up to $200. This is still legal in Massachusetts, though not at all consumer friendly.
But did you notice the fees clearly posted the last time you visited your gym? If not, your gym is violating the law. The Massachusetts Office of Consumer Affairs and Business Regulation recently inspected 15 local health clubs and found none were displaying fees or informing consumers of their right to cancel within three days, according to WBZ-TV. The office is referring the results to the state Attorney General’s office.
Health clubs cannot ask a member to sign a waiver of liability but, surprisingly, many still do. While waivers of liability, also known as releases, are generally enforceable in Massachusetts, G.L. c. 93, Sec. 80 specifically states, “No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller or any assignee or transferee of the health club services contract any claim or defense arising out of the health club services contract or the buyer’s activities at the health club.”
This means gyms have a duty to properly maintain their premises and equipment and make sure they are being used in a safe manner, according to the manufacturer’s guidelines. If they do not, and they were negligent, they may be responsible for your damages. If you have been injured in a Massachusetts gym, the court should find the liability waiver void. Over the years, our injury lawyers have successfully challenged these agreements.
Gyms also cannot ask members to sign up for terms longer than 36 months or require that members agree to financing that lasts longer than one month beyond the membership period. Members cannot be required to agree to monthly automatic withdrawals from a bank account.
If you are joining a gym, the best thing you can do is read the fine print on your member agreement before signing. Research the organization online through your local Better Business Bureau website.
Consumer remedies for health club violations are limited. No health club will be permitted by the courts to enforce an illegal contract. A consumer may bring claims under the Massachusetts Consumer Protection Act, G.L. c. 93A, but damages will usually be nominal, although attorneys’ fees would be available.
Recent Court Ruling
The possibility of class actions was virtually eliminated by the recent ruling by the Supreme Judicial Court in Tyler v. Michaels Stores, Inc., 464 Mass. 492 (2013). An invasion of a consumer’s rights may be a violation of G.L. c. 93A, but unless the consumer has suffered a separate, identifiable harm arising from the violation, there will be no remedy. This case put a disappointing crimp into collective consumer action to prevent violations of the Consumer Protection Act, leaving overworked state officials to take up the slack.
Rant On: Who’s Been Stealing Our Web Content Lately?
Have you ever checked to see who might be “borrowing” the copyrighted material on your web pages or blogs? Well it is easy to do, and some of the results may really disappoint you.
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What to Know About Potholes and Car Accidents
In Massachusetts, we are making the long-awaited transition from winter to spring.
For drivers, that means trading in the challenge of navigating snow-packed roads for dodging potholes.
While potholes often start as small pavement cracks, they can expand quickly if left unrepaired. Hitting even a small pothole can cause hundreds or thousands of dollars in damage to your car as well as serious injury if the driver loses control of the vehicle. Accidents often happen when private property owners and government entities fail to quickly repair roads or set up signage alerting drivers to roadway defects. The law requires all persons to maintain roadways, driveways and sidewalks in a reasonably safe manner. But it also allows a reasonable amount of time to discover and repair the defect.
Around Boston, some communities report hundreds of pot hole car accidents and incidents each year. The city of Boston is trying a new approach to hasten repairs by developing a smart phone app called Street Bump which allows drivers to send the city alerts about defective roadways which need to be fixed.
If Your Car is Damaged by a Roadway Defect
If your car is damaged or you are injured because of a roadway defect,
you can expect your auto insurance collision coverage will cover the damage,
but you will be subject to your deductible, which is often $500 or more. You may also be entitled to other compensation depending on where your accident happened.
It is important to consult an attorney promptly if you are injured in order to protect all of your rights. Here are a few points to keep in mind:
Private Property. Commercial property owners invite the public onto their property for business and have a responsibility to maintain their premises,
including parking lots and driveways, in a reasonably safe manner. If the damage or injury is caused by the negligence of the property owner, then the owner’s liability insurance should cover the losses. The same rule applies to a private landowner; there is a duty to maintain driveways, parking areas, and walkways in a reasonably safe manner for all lawful visitors.
Roads and Highways. Under M.G.L. c. 84, Section 15, cities and towns must properly maintain their public ways. If a community fails to do so and had reasonable notice of the defect, a person injured in an accident on a local road may seek up to $5,000. The municipality must have known about the defect or should have learned of the defect in the exercise of due care and diligence. Gregorie v. Lowell, 253 Mass. 119 (1925). Perfection in road maintenance is not required. Zacherer v. Wakefield, 291 Mass. 90 (1935).
The city or town must receive written notice of the defect within 30 days. Proper written notice is an absolute requirement. In addition, there is an iron-clad $5,000 cap on damages. Unfortunately, any negligence on the part of the driver will be a complete bar to recovery; the rule of comparative negligence does not apply.
In Summary
In summary, potholes are a way of life in Massachusetts. If you have the misfortune of suffering a loss due to a pothole on a public way, there is little likelihood of obtaining relief from any public entity.
Vaginal Mesh Case Results in $11.1 Million Award
In the first lawsuit associated with transvaginal mesh implants, a New Jersey jury has ordered Johnson & Johnson to pay $11.1 million to a South Dakota woman who suffered injuries.
Johnson & Johnson and its Ethicon division face 1,800 lawsuits in New Jersey over injuries involving surgical mesh products, which are used to treat pelvic organ prolapse and stress urinary incontinence. Last week, the plaintiff received $7.76 million in punitive damages and $3.35 million in other compensation in Atlantic City Superior Court.
The woman, who filed her lawsuit in 2008, alleged Johnson & Johnson failed to adequately warn her doctor of potential dangers from the vaginal mesh implants. It alleged the company was liable for defective design, manufacture and warnings and instructions.
In Massachusetts and other states, the law allows a consumer to bring a claim against a company which manufactures a defective product that causes them injury. A company has a responsibility to protect consumers from defective design, manufacturer error and to warn the consumer about possible harm. Companies and professionals involved in distribution and sale can also be held liable if they act negligently. There is a statute of limitation restricting how long someone can file a claim.
Surgical mesh is a Class II medical device regulated by the Food and Drug Administration (FDA). It has been used to treat pelvic organ prolapse and stress urinary incontinence (SUI) since the 1990s. In 1996, the FDA approved it as a treatment for SUI. In 2002, it was approved to treat pelvic organ prolapse.
In 2005, Johnson & Johnson introduced its Gynecare Prolift surgical implant, the product which was used by the plaintiff. It was one of several implants on the market, along with others by Johnson & Johnson and other manufacturers such as Boston Scientific and American Medical Systems. Johnson & Johnson discontinued its vaginal mesh implants in 2012 after reports of women suffering injuries and an FDA warning.
The FDA first issued a notification about surgical mesh implants in 2008 and upgraded its warning in 2011, saying research showed approximately 10 percent of women who had received transvaginal mesh surgery experienced mesh erosion within a year. Other complications included pain, infection, bleeding, organ perforation, urinary problems and neurovascular muscular problems. Many women suffered emotional problems.
Treatment of a second surgery or intensive medical care does not always alleviate the symptoms.
Related: Jury awards woman $7.76 million punitive damages for J&J mesh, Reuters.
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Attorney David White Discusses Massachusetts Dog Bite Law Following Mansfield Dog Attack
The law is “very cut and dry,” when it comes to liability for Massachusetts dog bite cases, attorney David White told Fox-TV Boston recently.
White, a partner at Breakstone, White & Gluck of Boston, spoke on the network’s morning program about Milo, the Mansfield dog which attacked and seriously injured a 6-year-old boy on Jan. 3. The boy suffered severe facial lacerations and required more than 400 stitches. Last week, the Mansfield Board of Selectmen held a hearing and voted 3-2 to euthanize the dog. The dog’s owners said they planned to appeal the vote in District Court and were allowed to take Milo home after the hearing. Then, the dog attacked again, this time over the weekend on West Street in Mansfield, and ended up being euthanized before any appeal. In the second attack, the dog bit a 16-year-old teenager, who was sent to Hasbro Children’s Hospital to be treated for injuries. See news coverage.
In the TV interview, White explained the process in Massachusetts for protecting communities from dangerous dogs. When someone is injured after a dog bite, the incident is reported to a local animal control officer, police or the Board of Selectmen. The board holds a hearing to determine if the dog is dangerous. It then votes on appropriate action, which may include muzzling the dog, restraining it, ordering it to leave town or other steps.The dog owner is allowed to appeal in the District Court.
When someone is injured by a dog in Massachusetts, they can also file a lawsuit in civil court to recover damages under M.G.L. c. 140, Sec. 155.
White said the law holds dog owners strictly liable for dog attacks, only providing a few exceptions. They include if an injured person is tormenting a dog or trespassing on another person’s property. Some states have a “one bite” or “first bite” rule, but not Massachusetts.
“The law is very cut and dry,” White told Fox. “And furthermore if there is an injury to a child under the age of 7, there is a presumption the child was not teasing or tormenting the dog.”
When someone is injured, they are not required to prove the dog has injured before or that the dog is vicious.
White advised dog owners to make sure they have coverage for dog bites and attacks on their homeowner’s insurance policies. If your insurer does not provide coverage, he says find another provider who does.
Approximately 4.5 million people are bitten by dogs each year in the United States, according to the U.S. Centers for Disease Control and Prevention.
Children are the most frequent victims, with those ages five to nine accounting for the largest numbers of injuries.
Travel Safe in Boston After Blizzard of 2013
After a snow storm that buried Massachusetts with record-setting strength, many of us are slowly making our way back to our daily routines.
Massive snow banks, narrow roads and giant icicles are now the challenge. Governor Deval Patrick has lifted the weekend’s driving ban, but the State of Emergency remained in effect this morning. Many schools cancelled classes for another day and Boston Mayor Tom Menino encouraged businesses to let their employees work from home today.
Our tips for staying safe and avoiding injuries as you travel:
Community Websites. Check your community website for information about snow plowing and closed streets, as well as power outages and school closures.
Public Transportation. Use the MBTA if you are traveling into Boston. Mayor Menino is urging the public to stay off the roads to make room for cleanup.
Store and Pharmacy. Choose merchants close to home if you are heading out to restock up on food, medications and other supplies. Travel in daylight if possible.
Pedestrians Use Caution. Stay indoors today. Over the next few weeks, limit outdoor walks until the snow melts. If you must walk, wear a neon-colored vest.
Drivers. If you do drive, beware of the tall snowbanks and avoid roads which may not be fully cleared. Remember some roads may not have enough space for two-lane traffic.
Parking. Call ahead to ask about parking, even to your employer. Parking may not be available or be limited. Looking for spaces can lead to frustration among drivers and car accidents.
Gasoline and Vehicle Supplies. Keep your gas tank full over the next few days and equip your car with supplies such as a first aid kit, snow brush, small shovel, blanket and an extra hat and pair of mittens.
Take a Minute. Driving in these conditions can be stressful and accidents can occur. If you find yourself in a dangerous situation, pull over at your earliest opportunity. Take a minute to think about your options and if necessary, call the local police or fire department on their non-emergency line and ask for their direction.
Related:
Massachusetts Emergency Management Agency App.
Massachusetts Snow Storm Safety Tips
In a few hours, a historic snowstorm is forecast to begin, blanketing Boston with 18 inches in many areas and 24 to 32 inches in some regions. Gov. Deval Patrick has urged the public to stay home, and directed non-essential state employees not to report to work. Many schools and offices have closed in response. The MBTA will close at 3:30 this afternoon and may remain shut down through the weekend.
With a few more hours, here are some tips to prepare yourself:
Have a Plan to Stay in Contact. Whether you live at home with your family or in an apartment on your own, have a plan to communicate with your relatives, landlord and others. Gather phone numbers for snow plow companies, neighbors and local police and fire departments.
Check Your Community Website. Your city or town should post emergency information for residents to follow during the storm, including plans for clearing snow, snow storm accidents and emergency notifications.
Keep in Touch Electronically. Charge your cell phone now and monitor news on TV and the Internet. Another source of information is to dial 2-1-1, the state’s telephone information call center during times of emergency. You can also sign up for electronic alerts from the state on your phone by clicking here.
Social Media. If you are on Facebook, you can follow MEMA, the Massachusetts Emergency Management Agency by visiting its page. If you use Twitter, the hashtag for storm updates is #MAStorm.
Gas Up. The lines at the pump may be long, but if you can, fill your car with gasoline. This will give you a way to charge your cell phone if your home loses power.
Food and Supplies. Make sure you have enough food and supplies to pass the weekend, including bottled water and flashlights. Also make sure you have any medications you may need.
Power Loss. We may lose power so set your appliances and gather supplies accordingly. Set your refrigerator to the coldest setting and have a cooler ready, so you can keep it shut as much as possible during the storm. Food can stay cold in a full refrigerator for up to 24 hours and in a full-packed freezer for 48 hours. Have non-perishable food on hand as well, such as granola bars.
Turn Off TVs and Other Appliances. If we lose power, unplug sensitive electronic equipment such as TVs, microwave ovens and computers. These can cause irregularities when power is restored. Leave a light on so you know power is restored.
Plan for a Heating Loss. Gather blankets and seal off unused rooms by stuffing towels in the space under the doors. At night, cover windows with extra blankets and sheets. Make sure you regularly eat.
Freezing Pipes. If pipes freeze, remove insulation, turn on all faucets and pour hot water over the pipes. With caution, you can also use a hand-held hair dryer on the pipes.
Clearing Snow. Keep up with clearing snow as much as you can in the early hours of the storm and after the storm, follow directions from state and local officials for clearing it from areas such as sidewalks.
Clear Snow from Furnace Pipe. Throughout the storm, make sure your furnace exhaust vents remains clear of snow to avoid a build-up of carbon monoxide in your home. This is essential even when you cannot clear your driveway and other areas because it could result in poisoning.
Related:
Winter Power Outage Safety Tips, Massachusetts Emergency Management Agency.
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Bus Accident Injures More Than 30 Students on Boston Overpass
State Police continue their investigation into last weekend’s bus accident on Soldiers Field Road in Allston, which injured more than 30 passengers.
The Calvary Coach bus, which was carrying approximately 40 students and chaperones from the Philadelphia area, was returning to Pennsylvania Saturday night when the crash occurred. The vehicle reportedly struck the Western Avenue bridge on the road which leads to the Mass Turnpike.
The Boston Fire Department released photos on Twitter showing firefighters standing on the bus and ladders, extricating passengers, some trapped in the vehicle for more than an hour. Several passengers were transported to local hospitals with injuries. At least one 17-year-old remained in critical condition in a Boston hospital on Monday, The Boston Globe reported.
The students were with the Philadelphia area non-profit, Destined for a Dream Foundation, which spent the day visiting Harvard University and Cambridge.
Massachusetts State Police said the bus accident occurred after the driver passed signs posted prohibiting the bus from traveling on that road, which has a 10-foot height limit, according to the Associated Press. State Police are investigating and have not determined whether to file charges or issue a citation against the 66-year-old driver, Samuel J. Jackson. CBS Philadelphia reported that the owner of the company, Ray Talmedge, said Jackson had looked down at his GPS and saw the bridge too late.
Calvary Coach apologized after the bus crash but defended the driver, reported the Boston Herald. The company’s buses have not been involved in a crash in the two years prior to the Boston accident, according to the Federal Motor Carrier Safety Administration. An unidentified driver was written up for unsafe driving.
The state Department of Conservation and Recreation, which maintains Soldiers Field Road, told the Boston Globe it installed rubber signs as a warning for truck drivers. For a period, they also used cowbells to sound an alert, but these were discontinued.
But the Western Avenue bridge never received rubber warning signs, an official with the state agency said. Agency officials told the Boston Herald they would contact GPS navigation companies to ensure the bridge’s height restrictions are recorded.
Related:
Bridge at site of crash lacked height warning, The Boston Globe.
Bus driver may have been distracted by GPS before Soldiers Field Road crash, CBS Boston.
Parents of bus crash victim pray for recovery, Boston Herald.
MassDOT: No plans to raise height of overpass after bus crash, CBS Boston.
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Toyota Settles One of First Wrongful Death Cases
A month after being assessed a record $17.4 million fine, Toyota Motor Corp. has settled one of the first wrongful death lawsuits involving sudden and unintended acceleration by its vehicles.
The Japanese automaker confirmed last week it had reached an agreement with the family of Paul Van Alfen and his son’s fiancee, Charlene Jones Lloyd, for an undisclosed amount in the November 2010 accident in which they died, USA Today reported. The automaker said it has also settled another case filed under California’s lemon law by a retired Los Angeles police officer.
Van Alfen and Lloyd were killed in 2010 when the Toyota Camry they were traveling in on Interstate 80 in Utah suddenly accelerated. Van Alfen, the driver, attempted to stop the vehicle, but ran through a stop sign and into a wall. His other passengers, his wife and his son, were injured. The Utah Highway Patrol investigated and determined the car accident was the result of a sticking gas pedal.
Other Injury Lawsuits. The settlement comes as a group of lawsuits consolidated in U.S. District Court in Santa Ana, California moves forward. Prior to the consolidation, Toyota had also reached a $10 million settlement in a case involving an auto accident which killed a California police officer and his family.
The officer and his family were killed near San Diego in 2009 when their Lexus accelerated above 120 mph, struck an SUV, rolled off an embankment and burst into flames. The car accident was blamed on a improperly sized floor mat which was trapped in the accelerator.
More Than $1 Billion Settlement. In December 2012, Toyota agreed to a settlement worth more than $1 billion to resolve hundreds of lawsuits claiming economic losses by car owners affected by its recalls. In recent years, the car manufacturer has recalled more than 14 million vehicles due to acceleration problems and brake defects.
$17.4 Million Fine. The National Highway Traffic Safety Administration issued Toyota a $17.4 million fine for safety defects in December 2012, the largest ever imposed. In 2010, the company paid a total of $48.8 in a series of three fines.
Related:
Toyota settles first wrongful death lawsuit, USA Today.
Toyota tackles acceleration lawsuits; questions remain, USA Today.
Toyota reaches $1 billion settlement in acceleration cases, USA Today.
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Safety on the Ski Slopes
For many, winter is a call to the slopes for skiing, snowboarding and sledding. These activities are great fun, from feeling the wind in your face to enjoying the outdoors to spending time with family and friends.
The fun comes with risks when skiers fail to stay alert and control their speed and equipment. Every year in the U.S., an average of 40 people die in skiing and snowboarding accidents, according to the National Ski Areas Association. Several hundred suffer serious injuries, such as paralysis, head injuries and broken bones.
Our tips for having fun but staying safe:
Wear safety equipment. Helmets are not required by law in Massachusetts and most other states, but wearing one can provide protection in some accidents. If you purchase one, make sure it is specifically designed for skiing and snowboarding and certified by the American Society of Testing and Materials (ASTM) or the Snell Memorial Foundation.
Snowboarders should consider wearing wrist guards. Both skiers and snowboarders should consider goggles for times the snow machines are running or in poor weather conditions.
Use Chair lifts Safely. Pay attention while riding and listen to the ski attendant’s instructions, even if you are a seasoned skier.
Take a Class and Ski at Your Level. Lessons from a qualified instructor will help you control your speed. Staying on trails designed for your experience level is also important to preventing skiing accidents.
Practice Etiquette. Remember skiers in front of you have the right of way. If you overtake another skier, try and announce your action and leave enough room for them to make any voluntary or involuntary movement.
Rest. Injuries are more likely to occur at the end of a ski day or the end of a several-day ski trip. Take a few hours or a day off for rest.
Avoid Distractions. Do not listen to music on headphones while skiing or use your cell phone. You could injure yourself but also others by not being able to respond to conditions.
If You Are Injured. Ask the ski facility in advance how they respond to injuries and what they want you to do if you are injured on the slopes.
Related:
Click here to read about a case in which Breakstone, White & Gluck represented a student who suffered a traumatic brain injury in a ski accident. Attorney Ronald Gluck settled the case for $800,000.
National Safety Week, Jan. 19-27, National Ski Areas Association.
Safety Facts & Tips, National Ski Areas Association.
Bill H.638: An Act relative to ski area operations, Massachusetts Legislature.
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