Negligence
Massachusetts Commuter Rail Accident at Boston South Station, September 15, 2009
There has been another train accident on the commuter rail, this time at South Station in Boston. The Boston Herald reports that approximately 9AM, train 512, which originated in Worcester, failed to stop in time and collided with the end-of-track bumper at South Station, the last stop on the route. Of the approximately 100 passengers on the train, at least 18 people suffered personal injuries, many of whom were treated at local hospitals.
Although the train was allegedly traveling at a speed of 5 miles per hour at the time of the collision, many passengers were standing in preparation for getting off the train and were thrown to the floor and suffered personal injuries. Many patients were taken off the train on backboards by emergency personnel. Boston Medical Center activated its emergency plan in case a large number of injured passengers.
Transportation officials have already suggested that operator error contributed to the collision. Investigations by the MBTA and the National Transportation Safety Board are underway. Preliminary reports have ruled out signal, dispatching, or equipment problems as a cause. The Boston Herald has reported that the train’s engineer told supervisors that he misjudged the stopping distance at the South Station platform. The engineer will be tested for drugs and alcohol.
Ordinarily, trains stop dozens of yards back from the bumpers, which are the emergency devices designed to stop the train at the end of the track and to protect people in the train station. There are no recent reports of other crashes into the bumpers.
If you would like more information about what to do if you were injured in this train accident, please call us at 1-800-379-1244 or visit us at www.bwglaw.com.
For More Information
Train hits South Station bumper, 16 passengers hurt, Boston Herald, September 15, 2009
18 injured in commuter rail mishap at South Station, boston.com, September 15, 2009
Massachusetts Court Upholds Verdict in Premises Liability Case; Discusses Innovative Jury Techniques and Question of “Control”
On August 29, 2003, several people suffered personal injuries and one person was killed when an improperly secured gate arm at the Gillette Stadium in Foxboro swung into a bus traveling on an access road. The stadium, which is the home of the New England Patriots, is on property managed by Foxboro Realty Associates, LLC, with security provided by Apollo Security, Inc,. parking operations managed by Standard Parking Systems.
According to the evidence, the accident occurred when the gate arm was not properly secured by its three pound pin, and a gust of wind blew it from the open position. The evidence demonstrated that Foxboro Realty Associates had promulgated a policy on securing the gate, but had failed to put the policy in writing. It was the job of Apollo to unlock the gate and the job of Standard to open and secure the gates at the appropriate times.
After a trial lasting several weeks, the plaintiff (who was the wife of the deceased passenger from the van) was awarded $4,400,000 for her husband’s conscious pain and suffering and wrongful death arising from the negligence of the defendants.
There were two issues on appeal: The instructions the trial judge gave the jury about discussing the evidence; and the issue of control, and whether Foxboro had sufficient control over the parking operations to be found negligent for the actions of its indpendent contractor.
The Massachusetts Supreme Judicial Court ruled that the judge’s instructions to the jury that they could discuss the evidence in the case during the trial (which is most unusual in Massachusetts) were improper, because such discussions can only be allowed in civil cases when all parties agree. One party had objected. However, the court found that the error was harmless, because the evidence of the defendant’s negligence was very strong.
The Court also ruled that the trial judge had given proper instructions to the jury on control. Under Massachusetts law, an employer is not liable for the acts of an independent contractor unless the employer “retained some level of control over the manner inwhich the work was performed.” The judge had instructed the jury that the employer could be found liable if it failed to exercise its control with reasonable care. The judge’s instructions were found to be consistent with Massachusetts law, and the judge was not required to give the instructions requested by one of the defendants.
The case is Kelly v. Roxboro Realty Associates, LLC, 454 Mass. 306 (2009).
Massachusetts Elderly Drivers Involved in Motor Vehicle Accidents Ignite Debate Regarding New Licensing Requirements
A large number of motor vehicle accidents involving elderly drivers has prompted the Transportation Committee of the Massachusetts Legislature to enact a bill that would impose driving tests on people over 85 years of age. Currently, Massachusetts only mandates a vision test every ten years. However, a group of lawmakers is trying to enact tougher regulations on the elderly.
Several recent tragedies have drawn attention to safety issues related to elderly drivers. Concerns about reaction time and vision of the elderly have arisen from the wrongful death of 4-year old Diya Patel who was allegedly killed by an 86-year-old woman in Canton earlier this month. Similar stories this year alone accuse elderly drivers of crashing into a Wal-Mart, a group of cyclists at UMASS, and even a Vietnam Memorial in Plymouth. Furthermore, an 84-year-old woman remains in critical condition after an 86-year-old man allegedly hit her while she was crossing the street near downtown Melrose yesterday.
According to an article in the Lawrence Eagle Tribune, Rep. Joseph Wagner (D-Chicopee) and Sen. Brian Joyce (D-Milton) want to enact a law similar to those in nearly 30 other states which mandate road tests alongside the vision test every five years for drivers over 85. This would override the current system, where drivers take a simple vision test every ten years after their initial licensure.
Not surprisingly, the issue is a sensitive one for many who say that regulating senior driving and treating them more like adolescents is demeaning and insulting. Even some suspects, such as 85-year-old Dominick Perry who stands accused of pinning a young boy against another car in a parking lot complain that “age discrimination” is the sole reason for the revocation of his license. A story in The Boston Globe tells of a former race-car driver who took a long and difficult mock test similar to the road test which would be required of someone his age under the new law. However, the anecdotal evidence from the elderly about the tedious nature of the test doesn’t outweigh the substantial evidence which links many elderly people to acts of negligent driving.
More Information
Lawmakers Hear Call for More Legislation Regarding Elderly Drivers – Boston Globe July 1, 2009.
Legislators Discuss Proposed Elderly Driving Bill Tomorrow – Lawrence Eagle Tribune – June 29, 2009.
Tested for the Road – Hospital Test Gauges Older Drivers’ Capability. – Boston Globe July 1, 2009.
Registry Revokes License of Driver, 86, in Melrose Accident. – Boston Globe June 29, 2009.
Passenger Dies in Elderly Driving Case – Boston Herald July 1, 2009.
Driver Charges Elderly Bias – Boston Herald July 2, 2009.
Malden Man Involved in Fatal Wreck Has Recent Road Woes – Boston Herald July 2, 2009.
If you’ve been injured in a motor vehicle accident<
The attorneys at Breakstone, White and Gluck have a proven record in dealing with elderly drivers envolved in cases of wrongful death and car accidents. Recently, Ronald E. Gluck obtained a significant recovery for a 33 year old school teacher and avid sports enthusiast who was struck by an elderly woman in a parking lot. If you or anyone you know has suffered injury as the result of an elderly driver or any motor vehicle accident, please visit www.bwglaw.com or call 617-723-7676. Experience Matters.
Can Stricter Licensing Requirements for Elderly Drivers in Massachusetts Help Make Our Roads Safer?
Two recent Massachusetts car accidents have once again raised the issue of the safety of some elderly drivers. Last week a 73-year old woman lost control of her car and drove it into a crowd of people viewing “The Moving Wall,” a traveling replica of the Vietnam Veterans Memorial in Plymouth, MA, injuring eight people. The same week, a 93-year old man plowed into a Wal-Mart in Danvers, MA, causing personal injury to six people including an infant.
For years, the debate over elderly driving has been waged in Massachusetts, yet nothing concrete has been done. Generally, once a person has passed the initial road test, only a vision test is required for renewal. Yet as the body ages, this simply is not safe.
Some elderly advocates say that the media has been blowing elderly driving accidents out of proportion, while similar accidents by younger drivers go unnoticed. Research indicates that risk begins to increase around age 70, and increases significantly after age 80.
For the last two sessions one state senator, Brian Joyce of Milton, MA, has proposed a bill that would require drivers 85 or older to pass another road test before their licenses could be renewed. However, this bill is always stalled by advocates for the elderly who cry age discrimination. This year Governor Patrick has indicated his support for the bill. Representatives from the RMV say that the agency would be willing to support a study on the issue as is proposed in a bill sponsored by Sen. Stephen Buoniconti.
In some states, doctors are required by law to report to the registry when a person is unfit to drive, but not in Massachusetts. Right now there are no state laws or tests in place to protect residents from unfit elderly drivers. Sometimes a police officer or a family member will report a medically impaired driver, but so far only 8,000 cases have come under review.
We support enhanced testing of elderly drivers, just as we supported the stricter regulation of younger drivers which are now the law in Massachusetts. We have handled many cases where we have seen that the age of a driver has been a factor in the accident.
Of course if an elderly driver causes an accident, their license may be revoked or suspended. But sometimes it is too late. If you have been injured by a medically unfit driver in Massachusetts, contact the Massachusetts personal injury law firm of Breakstone, White & Gluck, P.C. for a free legal consultation.
More Information
Pressure mounts to test elder drivers, Boston Globe, June 8, 2009.
Family and Friends Concerned about an Older Driver, National Highway Traffic Safety Administration
Massachusetts Homeowner Found to be Not Liable for Subcontractor’s Damages
The Massachusetts Appeals Court recently reviewed a case in which the defendant homeowner, Johnson, hired a contractor to remove several trees from her land. The contractor subsequently hired a subcontractor/crane operator, West, to help with the project. The crane was damaged during the work, and the crane operator sued the homeowner. The jury found in his favor. His case was before the Appeals Court to determine whether the homeowner was liable for his damages.
Johnson had several conversations with the general contractor about the exact location of her septic system, which was important for him to know in order to safely remove the trees. The contractor apparently conveyed information about the septic system to his subcontractor, the crane operator. The day the crane arrived, Johnson noticed that it was set up in the location of the septic system. Though she was a surprised, she did not interfere with his work.
Soon after, the crane’s outrigger pierced the septic system and the crane tipped over, causing damage to the crane and to the house. The crane operator sued Johnson, cliaming that she had a duty to warn him about the septic system.
The Appeals Court determined there was no duty. Even though Johnson may have been suspicious of the crane’s placement, she did not have a further duty to give warnings. She retained no control over the work in general, and crane operator’s work in particular. Her only duty to the general contractor was to give accurate information about the septic system, which she did. It was the responsibility of the original contractor to oversee the actions of the crane operator.
Accordingly, the crane operator’s case was dismissed. The case is West v. Johnson, Mass. App. Ct. No. 08-P-130 (2009).
As a homeowner, how can I protect myself from these types of lawsuits?
An important consideration in determining liability is control: the less control you have over a situation, the less likely it is that you will be liable for damages. One of the many benefits of hiring a general contractor to help with a residential construction project is the shift of liability from you to the contractor. If a contractor agrees to oversee all aspects of subcontractor performance, the homeowner will likely have no direct contractual agreements with the subcontractors and, therefore, retain no control over their work.
Before hiring a contractor, be proactive. Ensure that they are registered with the state, and are carrying adequate insurance. Review the details of your contract, don’t be afraid to ask questions, and ask for proof of his/her registration and insurance certificates. Browse the additional links below for more tips on how to choose a contractor.
Additional links:
• Homeowners FAQ’s – The Massachusetts Executive Office of Public Safety and Security
• Choosing a Professional Contractor – The Eastern Massachusetts Chapter of the National Association of the Remodeling Industry
Tips from Dog Bite Prevention Week to Help Keep Massachusetts Residents Safe
While dogs have long been considered “man’s best friend,” the sad fact is that approximately 4.5 million people suffer from dog bites each year. About one in five of those bitten require medical attention for personal injury. Even seemingly friendly, mild-tempered canines can suddenly become agitated in certain situations or with certain individuals. However, there are actions you can take to decrease the odds of a serious dog bite.
Tips for Dog Owners:
- Don’t allow your dog to roam outside without a leash.
- Spay or neuter your pet.
- Never leave your dog unattended with a young child or baby.
- Don’t play rough/aggressive games with your pup. This can inadvertently teach aggressive behaviors.
- Plan social activities into your pet’s schedule–like walks in the park or dog play groups.
- If your pet does develop aggressive behavior, seek professional advice immediately from a veterinarian or trainer.
Tips for Interacting with Dogs:
- Don’t attempt to pet a dog through its fence; seemingly friendly dogs are often territorial.
- Always ask the owner before reaching to pet any canine.
- If you meet an unattended dog, do not shout or run.
- If the dog approaches you, avoid eye contact and remain motionless until the dog passes by.
- Do not approach a dog that is eating, chewing a bone, or sleeping.
- Teach your children appropriate dog interaction skills.
Massachusetts has laws that make dog owners strictly liable for injuries caused by their dogs, as long as the person who was bitten was not teasing, tormenting or abusing the dog, or not trespassing at the time of the bite. Ordinarily, these injuries are covered by insurance, although some insurance companies have begun to limit coverage for certain breeds of dog. If you are a dog owner, you should make sure injuries by your pet are covered.
MBTA Green Line Crash Caused by Texting Operator–Scores Injured in Boston Tunnel Accident
Two MBTA Green Line trolleys collided in the tunnel near Park Street Station in Boston, and the accident is being blamed on the operator of the train who was texting his girlfriend while driving. His recklessness forced the train he hit 100 feet down the tunnel, derailed both trains, and injured dozens of passengers on both trains.
The train crash occurred at about 7:18 PM, and the westbound trolley cars were full of commuters headed home and families headed to the Red Sox game. Dozens of people were taken to area hospitals, some with orthopedic injuries.
According to investigators, the first trolley, which consisted of two cars, was stopped at a red signal short of the station. The second trolley, which also had two cars, rear-ended the stopped train. The 24-year-old driver was looking at his cell phone, texting his girlfriend, and when he looked up it was too late to stop. Investigators have not yet determined the speed of the train.
MBTA drivers are forbidden to use cell phones or to text while driving. According to T General Manager Daniel Grabauskas, the driver will probably be fired (we hope so!), and he may also face criminal charges.
The MBTA will be held liable for the injuries sustained by the passenges on the trains. The T is vicariously liable for the negligence of its operators, and operator negligence seems extremely clear in this case. As a common carrier, the MBTA has a high duty of care to its passengers to prevent accidents.
Massachusetts Workers Continue to Suffer High Rate of Workplace Death, Injury and Disease
In its annual report on workplace safety, The Massachusetts Coalition for Occupational Safety and Health (MassCOSH) has detailed the high rate of death, injury, and disease which Massachusetts workers continue to suffer. Enforcement and prevention by OSHA, the Occupational Safety and Health Administration, is still seen as lacking, and an audit of OSHA nationwide demonstrated a failure to enforce job safety laws against employers which repeatedly risk injury and death to workers. OSHA is underfunded and understaffed and incapable of completing comprehensive worksite inspections.
According to the MassCOSH report, sixty-six workers lost their lives on the job in 2008. These deaths were caused by transportation accident, falls, commercial fishing, workplace violence, crushing injuries, electrocution, and toxic substances. Falls continued to be a common cause of workplace deaths, and most of these were construction accidents.
In addition to the high rate of death in the workplace, almost 90,000 workers in the private jobs sector (which excludes self-employed and public sector workers) suffered some form of work injury. While Massachusetts did not have the highest rate of workplace injury, the rate of serious injuries and illnesses, resulting in lost time from work, was higher than the national average.
Occupational disease also remains a very serious concern, and the scope of this problem is not completely known. Certain diseases, such as mesothelioa, occupational cancers, work-related asthma, and lead poisoning are tracked, but the diagnoses of these diseases is not always related to the job, even if it was caused by a workplace exposure.
The complete report released by MassCOSH, entitled Dying for Work in Massachusetts, Loss of Life and Limb in Massachusetts Workplaces, is available at the MassCOSH website. MassCOSH sponsored Worker Memorial Day at the Massachusetts State House on April 28th.
Breakstone, White & Gluck, a Massachusetts construction accident law firm, is a proud sponsor of the work of MassCOSH, which is making Massachusetts workplaces safer for all, and which is working to increase the rate and quality of workplace safety inspection and enforcement.
Massachusetts Reaches Final Settlement in Big Dig Tunnell Ceiling Collapse
Massachusetts has reached a final settlement in the Big Dig tunnel ceiling collapse case that caused the wrongful death of Boston resident Milena Del Valle and the injury of her husband.
Gannett Fleming, the company which designed the ceiling, will pay $50,000 to the city of Boston and $1.5 million for maintaining the Big Dig tunnels. Additionally, they will forfeit $150,000 in payments from the Massachusetts Turnpike Authority.
Sika Corp., which made the epoxy glue that held the ceiling in place, has agreed to pay $200,000. This money will go directly into a trust fund that has been designed to fund the upkeep of the Boston tunnel complex.
Two claims were dismissed: those against Sigma Engineering International Inc., a structural engineering company, and Conam Inc., a materials inspection company.
Both were determined to have no liability for the ceiling collapse.
After the tragic accident, resulting from the negligent design and construction of the tunnel, Massachusetts undertook a thorough examination of the tunnel system. The resulting settlements have provided funds that will assist in proper upkeep and maintenance in years ahead.
More Information
AG settles with final two firms in fatal collapse of Big Dig tunnel, Boston Globe, March 27, 2009
Massachusetts Car and Truck Drivers: Slow Down and Move Over to Prevent Accidents–It’s the Law!
Massachusetts drivers now have another law to obey: Drivers need to slow down and move over when approaching stationary police, emergency response, and construction vehicles that have their lights flashing. The penalty: $100, and your insurance rates will probably also go up.
This well intentioned bill was enacted to prevent injuries caused by car accidents. First responders to accident scenes and work crews have suffered serious injuries as the result of negligent drivers who fail to slow and move over, and the legislation is designed to make their work safer.
But can you legislate this kind of safety? The bill itself is quite vague. A driver is required to change lanes “if practicable.” A driver is required to reduce his or her speed to a “reasonable and safe speed for road conditions.” How will that be judged? And will emergency vehicles leave the scene to chase down violators of this new law?
Saving lives and preventing injuries are, of course, important goals. But real safety comes from a broader awareness of our duty to ensure the safety of emergency and construction personnel, and that awareness begins with proper driving training. It also begins with simple common sense and courtesy.