Negligence
Massachusetts Court: Youth Soccer Association Not Liable for Player Injury
When your kids take to the field for a game of soccer, you expect the field and the equipment to be safe, and if not, then you should expect to be able to bring claims on behalf of your injured child. But in Massachusetts, personal injury caused by a falling soccer goal on a field maintained by a youth soccer association does not result in any liability at all.
The facts are straightforward: The plaintiff was 12 years old, playing in a program run by Sudbury Youth Soccer Association, Inc. on a field owned by the association. The goal posts were not properly anchored, and there was no warning that the posts could tip over. The goal did tip over, causing serious injury to the plaintiff. Claims were brought on his behalf.
The soccer association denied liability, claiming the immunity that is provided by Massachusetts General Laws c. 231, Sec. 85V. That statute protects nonprofit sports programs from liability caused by neglience in the conduct of the programs. Liability is limited under the statute to injuries arising from the failure to maintian the real estate. The soccer goals were found by the court to not be part of the real estate owned by the association.
The statute governing the case is just one of many protections in place for volunteer, non-profit associations, and others. Some may argue that programs would be limited if liability were not lmited. The unfortunate victims are often innocent children who have suffered serious injuries.
The case is Welch v. Sudbury Youth Soccer Association, Inc., 453 Mass. 352 (2009).
Massachusetts Court Affirms $3.4M Verdict in Negligence Case Against Liquor Store–Drunk Driver Caused Wrongful Death
On January 7, 2003, 16-year-old Trista Zinck was struck and killed by an underage drunk driver, William White, as she walked with her boyfriend, Neil Bornstein, along Ferry Road in Newburyport. Bornstein survived, but was seriously injured. Before the accident, White had been drinking at his friend Brendan Kneram’s house, whose parents were away. Earlier that day, White, Kneram and their two friends pooled some money, and Kneram used his fake New Jersey driver’s license to purchase a 30-pack of beer at The Gateway Country Store in Seabrook, NH.
Since the accident occurred in Massachusetts, Zinck and Bornstein’s families brought actions for negligence in the Massachusetts Superior Court against both the driver and Gateway Country Store, alleging that the store negligently sold beer to an underage buyer, a transaction that was the proximate cause of the accident that killed Zinck and injured Bornstein. In 2004, an Essex County jury decided that the liquor store was partially responsible for the wrongful death and injuries, and awarded the families nearly $9 million in damages, which the defendants promptly appealed.
On appeal, Gateway admitted that it sold the beer to the underage Brendan Kneram, but argued that because it was William White who became intoxicated and caused the accident, the store should not be held liable. In Massachusetts, to be liable for negligent conduct, the plaintiffs had to prove two primary elements:
- First, they had to prove that the defendants owed a duty of care, and that they breached that duty. Businesses that sell alcohol owe a duty of care to the public, by law. In this case, the jury found that Gateway breached this duty by selling alcohol to someone whom the store clerk reasonably should have known was under 21.
- Second, the plaintiffs had to prove that there was a causal link between the breach (the sale of the alcohol) and the harm (the car accident). Gateway argued that its liability ended once Kneram served the beer to his friends, but the jury did not agree.
In its opinion, the Massachusetts Appeals Court reiterated the test of causation, which the trial judge had instructed the jury to apply: If an intervening act (Kneram giving the beer to his friends) was foreseeable by the defendant, then the original negligent act (the sale of the beer) remains a proximate cause of the harm (the car accident).
Another important part of this test is that the plaintiff does not need to prove that the defendant could have foreseen the exact harm that occurred, but only the injuries that could have occurred in “substantially the manner” in which they did. In this case, plaintiffs had to show the jury that the liquor store clerk could have reasonably foreseen that selling 30 cans of beer to an underage man with an out-of-state license, on a snowy, January evening, with a car full of other underage teenagers waiting in the parking lot, is an action that could potentially cause a fatal drunk driving accident.
Here are two more general, important points to keep in mind about causation and the role of the jury in these types of cases:
This is a civil case, not a criminal case, so the burden of proof is much lower than “beyond a reasonable doubt.” A jury only needs to find “more likely than not” that the defendant was negligent. The two elements of negligence (breach and causation) are questions of fact for the jury to sort out after evaluating the defendants’ and plaintiffs’ versions of the events.
It should be noted that under Massachusetts law, the driver and the liquor store were found jointly liable, meaning both are responsible for the full amount of the damages. The plaintiffs will be able to recover the balance of the damages from the liquor store since the insurance on the driver will be inadequate to cover the damages.
The name of the case above is Zinck vs. Gateway Country Store, Inc., 72 Mass. App. Ct. 571 (2009).
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Death of 82-Year-Old Woman in MBTA Escalator Accident in Boston Investigated
An 82-year-old woman has died following an escalator accident at the MBTA State Street Station in Boston. According to initial reports, the woman fell on the escalator and her clothing became entangled in the machinery.
The accident is being investigated by the MBTA, the Massachusetts Department of Public Safety, which is in charge of escalator inspections, and the Suffolk County District Attorney’s office.
According to news reports, the woman, who was traveling to an eye appointment on the MBTA, was riding the escalator up from the platform. She was near the top of the escalator when she apparently fell, and her clothing became tangled in the escalator machinery. News reports also indicate that she suffered a heart attack, but it is not clear whether that heart attack was before or as a result of the accident.
MBTA escalators have been the cause of accidents and wrongful death in the past. An East Boston man died on an MBTA escalator when his sweatshirt hood got caught in an escalator in Cambridge. A three-year-old boy suffered severe leg injuries on the old Aquarium Blue Line stop’s escalator in Boston. Several people were injured in a Back Bay escalator accident when the escalator suddenly stopped, hurling the passengers down the stairs. The Aquarium T escalator, and the escalators at Back Bay have frequent scenes of accidents.
Escalator inspections are conducted by the state each year, and the escalator involved was reportedly also inspected each week and maintained on a monthly basis. The record of this escalator has not yet been made public.
Common Causes of Escalator Accidents
Escalators are large powerful machines, and riders take for granted that they are designed and maintained for safe operation. Some types of escalator accidents are common, however.
- Missing teeth in the comb plates cause entrapment of shoes with severe foot injuries
- Contact with the side of the escalator can cause injuries to feet and legs when body parts get caught. These injuries are most common in children
- Sudden stops caused by machinery failure can pitch riders down the the metal stairs
- Sudden speeding-up or slowing-down can also cause people to fall on escalators
- Entanglement of clothing in gaps in the machinery can involve shoe laces, clothing, backpacks, and even shoes themselves. For example, there has been an increase in accidents reported in children wearing Croc rubber sandals.
Thousands of people are treated each year for escalator injuries and deaths, many of which result of the negligent maintenance of escalators, or the defective design of the machinery itself.
Additional Resources
Crocs Can Pose Danger on Escalators, ABC News
Massachusetts Ice Storms Leave Residents Slipping and Sliding
The winter of 2009 has already beaten the law of averages when it comes to total snowfall. But this year has distinguished itself even more as the winter of ice storms. Those storms have left thousands without power, some for weeks on end. And all of that ice has led to spikes in admissions to emergency rooms around Massachusetts for broken ankles, fractured wrists, hip fractures, and back injuries.
So many people wonder, who can be held responsible if you slip and fall on a patch of ice or snow? Believe it or not, in Massachusetts personal injury cases caused by slips and falls on ice or snow are very difficult cases, and often do not lead to liability.
For one thing, the common law in Massachusetts precludes premises liability for accidents which occur as the result of natural accumulations of ice or snow. This means that if your neighbor fails to shovel or the office downtown leaves some ice after an ice storm, then the landowner is probably not liable. The same is usually true even if the landowner has moved only some of the snow or ice which had naturally accumulated.
The situation changes when snow is moved into piles. Piles which obstruct your passage on sidewalks, walkways, or driveways can be found to be unnatural accumulations. Another uncommon unnatural accumulation is the discharge of water from drain pipes or gutters onto walkways. Other alterations to property which cause water to form ice in channels or puddles may also lead to liability.
Massachusetts also has strict notice requirements after an accident caused by snow or ice. The landowner must be notified within thirty days, or the landowner may have a legal defense of prejudice due to lack of notice.
Massachusetts Appeals Court Affirms Duty of General Contractor for Construction Site Safety
In Massachusetts, a general contractor which retains responsibilities for oversight of safety on the job site may be liable for injuries caused by the negligence of a subcontractor, according to a recent decision of the Massachusetts Appeals Court. The court affirmed this long-standing principle, affording protection to workers who suffer construction site accidents.
When a general contractor subcontracts work at a large construction project, frequently more than one level of subcontracts is required. For example, in this particular case a general contractor hired a subcontractor to perform demolition work in a building. The subcontractor hired another subcontractor to remove asbestos. The question before the court was whether the general contractor had responsibility when a worker removing the asbestos (an employee of the “sub-subcontractor”) was injured after falling from a scaffold at a Boston construction site. More specifically, could a general contractor be held liable under the theory of negligent supervision of job site safety?
The good news for all construction workers is that the answer to that question is not affected by how many layers of contracts stand between the worker and the general contractor. As long as a general contractor retains the right to control a subcontractor’s work — a right that includes maintenance of safety measures — then the general contractor is also bound by a legal duty to supervise the subcontractor’s employees and ensure their safety.
For example, in a contract between a general contractor and a subcontractor, it is common that a general contractor is obligated to:
- Perform periodic safety inspections
- Provide a safety manager at the construction site
- Record the daily responsibilities of the general contractor’s superintendent, whose duties will involve enforcement of safety procedures
The bottom line: If a laborer, employed by a subcontractor, is injured on a jobsite, the general contractor may also be liable for those injuries.
The case discussed above is Kostrzewa v. Suffolk Construction Co., Inc. and can be accessed online here.
Every accident case is unique, and the lawyers at Breakstone, White & Gluck, P.C., are experienced in working with top experts and getting the best compensation for victims injured in scaffold accidents, and other types of construction accidents. If you have been injured in a construction accident and wish to speak to a lawyer, please contact us online or at 617-723-7676 (or toll-free at 1-800-379-1244).
Massachusetts Courts Protect the Rights of Passengers Injured in Hit-and-Run Accidents With a Broad Interpretation of Uninsured Motorist Insurance Policies
This week, the Massachusetts Appeals Court continued its trend of expanding insurance coverage for victims injured in hit-and-run car accidents when it granted a trial to an 18-year-old woman who suffered injuries in a car accident as a passenger in a taxi cab.
In this case, the plaintiff suffered neck injuries when the taxi cab in which she was riding rear-ended another car. Although the drivers spoke to each other to assess the damage to their vehicles, neither driver called the police or exchanged information. The plaintiff, who did not think she was hurt, took down no information. In addition a police report was never filed.
After unsuccessfully trying to track down the identity of the cab driver after the accident, the plaintiff’s attorney filed a claim for uninsured motorist benefits under her mother’s insurance policy to cover the cost of her injuries. The policy provided coverage for accidents involving “uninsured or hit-and-run autos.”
The trial court dismissed the case on summary judgment, ruling that the insurance company was not liable. However, the Massachusetts Appeals Court said, “Not so fast,” and explored the question of whether or not the taxi cab in which the plaintiff was riding could be considered a hit-and-run vehicle.
In short, the answer is yes: the taxi cab could be considered a hit-and-run vehicle. The courts have broadly interpreted the phrase “hit-and-run” in order to protect victims like this passenger. In previous cases, the Supreme Judicial Court has found that uninsured motorist claims were viable in other, similar scenarios:
- A driver is forced off the road and into a guardrail by an oncoming vehicle, despite the fact the two cars never made contact with each other; and
- A passenger in a car that is rear-ended realizes that he is injured, hours after the two uninjured drivers had gone their separate ways after concluding that there was no property damage or injuries.
In summary, the court held, “a passenger in an at-fault vehicle who is injured in an accident and who, unaware of her injuries… leaves the vehicle without obtaining identifying information about the vehicle is entitled to recover under the hit-and-run provisions of the policy.”
Importantly, however, the court noted that if a passenger realizes immediately after a car accident that he/she has been injured, the passenger is under an obligation to obtain identifying information from the driver(s), as long as his/her injuries are not so grave as to prevent an exchange of information.
The court also rejected the insurance company’s claim that it was prejudiced by late notice. The court said this was a factual determination to be made at trial.
The name of this case is Pilgrim Insurance Co. v. Molard. Other key cases in this area of insurance law include Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171 (1981) and Commerce Ins. Co. v. Mendonca, 57 Mass.App.Ct. 522 (2003), which each address the bulleted scenarios above.
Uninsured motorist insurance is statutorily required in the state of Massachusetts in order to provide financial protection to those injured by other negligent drivers.
Important Consumer Tips
- If you are in a car accident and are wondering what to do, it is usually best to err on the side of caution, and obtain identifying information from the other drivers. For more tips about what to do if you are in an accident, visit the Mass. Registry of Motor Vehicles’ Driver’s Manual page.
- Always notify your insurance company promptly if you are in an accident, even if you are a passenger is somebody else’s car.
- Make sure you have enough car insurance to protect yourself if you are injured. You should have enough uninsured and underinsured coverage on your cars to protect yourself from injuries caused by other drivers. Please see our car accident insurance information for Massachusetts drivers.
If you were injured as a passenger in a car accident, or are the victim of a hit-and-run accident, call the Massachusetts injury attorneys at Breakstone, White & Gluck at 800-379-1244 for a free consultation.
Massachusetts Court Says Limo Service May Be Liable For Drunk Driving Accident Caused by Passenger
The Massachusetts courts have continued to expand the liability of individuals and companies which contribute to drunk driving accidents. On November 26, 2008, the Massachusetts Supreme Judicial court ruled that limousine driver have a responsibility to prevent their passengers from drinking and driving, and to prevent drunk driving accidents.
In the accident leading to the case, one man was killed and several others were injured in a car accident caused by the drunk driver. The driver, along with several other men, had been drinking at a bachelor party on the night of the crash. The men, expecting to become intoxicated during the party, had hired a limousine service to provide safe transportation. The limo driver picked the men up at a bar in South Boston, where they had been drinking, and drove them to a strip club in Rhode Island, stopping along the way to purchase even more alcohol. The limo driver allowed the men to drink in the limo on the return trip. The limo driver knew the passengers were drunk.
At 2:10 A.M., the limo driver dropped at least one man off at his car near the South Boston bar. The bar was closed. The MBTA was closed. It was plainly foreseeable that the drunk limo passenger would attempt to drive home.
The victims of the drunk driving crash sued the limo service for wrongful death and personal injuries, arguing that its driver knew, or should have known, that his passenger was drunk, was going to drive home, and would likely injure or kill someone. The trial court threw the case out, saying the limo driver had no responsibility. But the Massachusetts Supreme Judicial Court found that the limo driver had the duty or responsibility to use reasonable care to avoid discharging its passenger “who they knew, or should have know, was intoxicated” and likely to drink and drive.
The SJC stated, “[a] private carrier, engaged in the business of transporting persons consuming alcohol, is in a primary position to use care to avoid leaving an intoxicated passenger at a location where it is likely the passenger will drive.” The case will now go to trial.
This case is important because it defines responsibility on private carriers, such as limo drivers, to make sure passengers who have been drinking do not drive home drunk after they are dropped off. Private carriers are required to exercise “reasonable care” to ensure that its passengers are not going to drive home drunk at the end of the night.
In addition to limo drivers and private carries, bars and restaurants also have a legal duty to prevent people from drinking and driving. Bars are prohibited from serving customers who are visibly intoxicated. If a bar serves someone who is visibly intoxicated, and that person drives home and causes a car crash, the bar is legally responsible for injuries caused by the drunk driver. This is known as “dram shop” liability.
Boston Jury Finds MBTA Liable in $3.98 Million Verdict for Injured Pedestrian
A Suffolk Superior Court jury today awarded $3.98 million to a South End woman who was run over by an MBTA bus on September 13, 2005. The verdict, with interest, will result in a judgment over $5.4 million for Rita Traybman, who lost her right leg when it was crushed by the bus. She was run over while crossing the street in a crosswalk.
The verdict is believed to be one of the largest ever in Massachusetts for an injury of this kind.
Ms. Traybman’s lawyer, Boston attorney Marc L. Breakstone, who has handled several bus accident and train accident cases against the MBTA, said, “This verdict will help Ms. Traybman cope with the terrible injuries she sustained. She will be able to obtain appropriate housing and medical care for her life-long disability.” Mr. Breakstone is a member of the personal injury law firm Breakstone, White & Gluck, PC, in Boston, MA.
The incident occurred when Ms. Traybman was struck from behind in the crosswalk at the corner of Washington Street and East Newton Street in Boston. The 58-year-old woman was crossing the street with the “Walk” signal when she was struck.
Mr. Breakstone explained, “Ms. Traybman suffered the loss of her right leg and she continues to suffer daily from extreme pain known as phantom limb pain. Her disabilities make her dependent on others for much of her basic care.”
Plaintiff presented evidence at trial that the bus driver failed to check for pedestrians in the crosswalk, and that he made an improper turn in violation of MBTA guidelines. The jury found that the bus driver was 100% at fault for the injuries sustained by the plaintiff.
Plaintiff also presented evidence that she would need continuing care to make her apartment more wheelchair accessible, and to provide for the care she needs around the clock. Ms. Traybman suffers not only from the phantom limb pain, but from pain in her shoulders and elbows which further impair her mobility.
Prior to trial the MBTA made no offer of settlement, despite the fact that its driver admitted the accident was his fault; despite the fact that the MBTA police and internal investigations also confirmed the accident was the driver’s fault; and despite the severe injuries sustained by the plaintiff. Instead, the MBTA forced the case to trial.
Ms. Traybman immigrated to the United States from Ukraine and lived independently prior to the accident.
Mr. Breakstone had previously thanked the Suffolk County jury, which heard nine days of testimony and deliberated for two days.
Listen to the WBZ 1030 podcast interview with Marc Breakstone.
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The law firm of Breakstone, White & Gluck, PC, specializes in the representation of injured persons, including pedestrians who have suffered personal injuries.
Distracted Car and Truck Drivers Frequent Cause of Injuries
After the September fatal Metrolink
train crash in Los Angeles, California, which was clearly linked to text messaging by
the engineer, a new focus is being brought on the many distractions which are
causing increasing numbers of car and truck accidents.
Driver distractions have always
included adjustments 
to
the radio and temperature controls, other occupants in
the car or truck, eating, roadside distractions, and for some, putting on
make-up and reading the morning paper. The proliferation of new devices, such as
GPS units, DVD players, iPods, cell phones, mobile e-mail, and text messaging,
have only compounded the likelihood of an accident being caused by a
distraction.
iPods mounted for the vehicle’s
sound system are very likely to distract a driver. Recent studies have shown
that almost every driver with an iPod took his or her eyes off the road for two
seconds or more. Two seconds is the “magic number” because the probability of an
accident goes up by factor of three after that time. (These tests were run on a
simulator.)
The results of the study were even
more dramatic for young drivers, ages 16-18, who were much more likely to keep
their eyes off the road for a distraction, such an iPod or changing a CD.
The Metrolink train crash, which
killed 25 people and injured 140 others, starkly illustrated the potential
dangers of text messaging. The engineer failed to stop at a red track signal,
and then struck a freight train head-on.
So far, Washington, Alaska, the
District of Columbia, Louisiana, Minnesota, New Jersey and California have
banned text messaging while driving. Massachusetts is considering a similar ban,
but no action was taken in the 2008 legislative session. A similar bill is
expected to be brought to the legislature in 2008.
Investigation of driver
distraction is a standard part of the investigation of
car accident and truck
accident cases. Evidence of driver distraction, which can be from cell
phones, entertainment equipment, GPS units, or other distractions, is important
evidence in cases of
personal injuries or wrongful death.
At the personal injury law firm of
Breakstone, White & Gluck, P.C., we are aggressive in the investigation of
facts, such as driver distractions, which may have caused the accident. We have
experience retrieving relevant cell phone records and other accident data which
can help prove liability in our clients’ cases.
Resources:
“Study
points to hazards of driver iPods,” Boston Globe.
“NTSB
team sorting out what happened in Metrolink crash,” Los Angeles Times.
“Schwarzenegger:
Hasta La Vista To Texting While Driving,” Information Week.
“State
leads ban on texting while driving,” Seattle Post Intelligencer
Bicycle Accidents on Rise Around Nation
Rising gas prices have led to an increased in bicycle use around the country. Unfortunately, that trend has led
to an increase in bicycle accidents as well.
Statistics are not available for the current year, but bicycle traffic is up dramatically in Massachusetts
metropolitan areas. In other areas, there is an increase as well. For example, in one California city, bicycle traffic was up 14% but accidents increased by 40%. Fatal accidents in Chicago and New Jersey were also noted to be
significantly increased this year.
The most recent crash statistics from the National Highway Transportation Safety Authority (NHSTA), through 2005, indicate that the highest rates of injury are in the 10-19 year old range, but the highest rate of fatalities is in males 35-54. Death rates were approaching historical highs in 2005. The most common causes of bicycle accidents are left-turning vehicles which fail to yield the right of way, and vehicles which overtake a cyclist, and then turn in front of the cyclist.
In a city like Boston, where bicycle transportation has historically received little attention from transportation officials, Mayor Menino has promised to make Boston more bicycle-friendly. This means the city will be adding more bike lanes to major streets. But Boston has a long ways to go, if the ratings from Bicycling Magazine are any indication. Boston has been rated the worst city for bicycling for three years. Mayor Menino’s promise is to move Boston to the “Best” column for cyclists.