Premises Liability
Trampolines, Inflatable Slides Among Dangers At Swimming Pool
Every year, thousands of people in the U.S. die in drownings. Many of these are young children who drown in swimming pools. Last summer alone, nearly 140 children under age 15 drowned in swimming pools and spa tubs, according to the Consumer Product Safety Commission (CPSC).
While the risk of personal injury and wrongful death from drowning has long been known, new dangers have emerged at pools in recent years. As many homeowners have removed diving boards for safety and insurance reasons, many others are purchasing inflatable slides, sports nets and trampolines to enjoy by the pool.
Two recent Massachusetts cases touch on these risks. Last month, the Supreme Judicial Court ordered a new trial in Dos Santos v. Coleta, where the plaintiff was paralyzed in 2005 when he jumped off a trampoline and struck his head in a two-foot inflatable wading pool. The pool and trampoline were owned by his half brother, the defendant.
The SJC found the trial court judge provided improper instructions when he said the jury could stop deliberating if they concluded the danger of jumping off a trampoline and into the pool was “open and obvious.”
The SJC ruled that the trial judge should have also instructed that a property owner is not relieved from correcting such dangers in cases where they can or should anticipate that the dangerous condition will cause harm.
“Because we conclude that a landowner has a duty to remedy an open and obvious danger, where he has created and maintained that danger with the knowledge that lawful entrants would (and did) choose to encounter it despite the obvious risk of doing so, we now reverse,” wrote Justice Cordy.
The plaintiff, Cleber Coleta Dos Santos, had been playing with his young son on the trampoline when he attempted to flip off and into the pool at his half brother’s Framingham home. He suffered permanent paralysis. His half brother and sister-in-law owned the home, but had moved out a few days prior, leaving the trampoline positioned next to the pool where it could be used in the backyard. The SJC noted that the homeowner disregarded warnings printed on the side of the pool against jumping or diving into the pool.
The Banzai inflatable slide is another product which has caused injury and death in Massachusetts in recent years.
You should not see any Banzai slides for in-ground pools this summer. They were recalled in May 2012, after a woman’s death in Massachusetts and two reports of serious injury in other states. The inflatable slides were designed to sit on the edge of a pool so swimmers can climb to the top and slide down as water sprays. But the structure easily deflated, removing support for the user. It was also easy to knock down, even without windy conditions.
In 2006, a 29-year-old Colorado mother visiting Massachusetts fractured her neck and struck her head while using a Banzai inflatable slide. When she stepped up and started to slide, there was not enough support and her head hit the pavement near the edge of the pool. The slide had been partially deflated. The woman died the next day at a Boston hospital.
In October 2011, a jury in Salem Superior Court ordered Toys R Us to pay more than $20 million to the woman’s family, finding the Banzai slide did not comply with federal safety standards for swimming pool slides. Toys R Us had sold the product to the victim. Amazon.com – the website where the product was sold through – and manufacturer SLB Toys USA settled with the woman’s family after the trial began.
In May 2012, Walmart and Toys R Us recalled 21,000 Banzai slides for in-ground pools, asking consumers to return the product for a full refund. Banzai continues to sell inflatable slides and water castles which are stand alone.
Toys R Us recently appealed the case to the Supreme Judicial Court, arguing the the Consumer Product Safety Commission regulation cited by the woman’s family does not apply to inflatable pool slides, but only to rigid pool slides.
Housing Code Violations and Over-Crowding in Boston Student Housing
The fire on April 26, 2013 at 87 Linden Street in Allston, the second serious fire in less than two years on the same block, is a tragic reminder of what can happen with overcrowded, substandard student housing.
The Fire Marshall will now investigate the cause of the Allston fire. In addition, The Boston Inspectional Services Division should examine whether the unit was overcrowded in violation of the Boston Zoning Ordinance, and whether housing codes and accessibility codes were violated. Enforcement of city ordinances is, unfortunately, inconsistent, and usually after the fact. Knowing this, landlords and realty companies frequently violate these ordinances in the name of profits. The victims are often unsuspecting college students. As a result, students, who pay high rents, are subjected to increased risks from their overcrowded housing.
The law in Massachusetts governs how homes must be safely maintained in order to prevent personal injury to occupants of the property. In Boston, zoning ordinances require building owners to declare whether their properties are single-family or multi-family units. In either case, under Boston’s zoning ordinances, under the definition of “family,” no unit may be occupied by more than four unrelated students unless the building meets much stricter building requirements.
It is also generally illegal for a landlord to create bedrooms in basements, and it may be against code to create a bedroom in an attic. No matter how it is configured, every house or apartment must have working smoke detectors throughout the unit.
Once a unit exceeds the four unrelated-occupant threshold, it technically becomes a rooming house, which makes it subject to very strict fire-prevention regulations under M.G.L. c. 148, Sec. 26I and other regulations. For example, a rooming house must have walls and ceilings made from fire-rated materials to slow flames in the event of a fire. Smoke detectors must be in every bedroom,
and must be interconnected. Even more important, every boarding house must have a working sprinkler system. Boarding houses must also meet accessibility guideline and provide multiple means of egress for upper floors, which may include fire escapes.
Real estate brokers and leasing agents share responsibility for student overcrowding and exposure to risk from substandard housing. A quick look at any leasing agent’s website will reveal scores of units available for student occupancy which are intended to house more than four unrelated individuals. Leasing agents collect a single month’s rent, sometimes more, for their services. Since they also take the responsibility to collect signatures on leases, they know exactly how many students will be in the unit. Leasing agents simply cannot claim ignorance of the laws regarding overcrowding.
Who May Be Liable
It is our firm’s opinion that violations of the boarding house rules are evidence of negligence and may create liability for the responsible landlord.
We also believe that knowing and willful violations of the boarding house rules by real estate companies or leasing agents may subject them to liability as well. Violations of these standards may also be violations of the Massachusetts Consumer Protection Act, which may subject landlords and their leasing agents to multiple damages and attorneys’ fees.
Other Cases
Injuries and death from substandard housing may also lead to criminal charges against landlords. For example, in January 2012, two absentee landlords were convicted of manslaughter after a fire in an illegal apartment in Quincy led to the deaths of three tenants. The landlords were accused of wantonly violating building and fire codes.
The question of the enforceability of rooming house regulations is also pending at the Massachusetts Supreme Judicial Court. In that case, civil claims were brought against a Worcester landlord for violation of the Worcester zoning bylaw. In that city, no more than four unrelated persons can occupy a home. The city brought the violation because there were more than four students in the unit. The decision in that case is expected to be handed down in the next few weeks.
Update: The City of Boston later cited the owner of the two-family structure, Anna Belokurova, for running an illegal rooming house and not obtaining the permits needed to create bedrooms in the basement, according to The Boston Globe. Read more.
Related Articles:
Woman killed, firefighters and occupants injured in raging Allston fire, Boston Herald.
One dead, 15 injured in Allston house fire, The Boston Globe.
Jury finds landlords guilty of involuntary manslaughter in Quincy apartment fire, The Patriot Ledger.
About Breakstone, White & Gluck
Breakstone, White & Gluck of Boston has over 85 years combined experience represented injured clients in Massachusetts. If you or a loved one has been injured, learn your rights. For a free legal consultation, contact us at 800-379-1244 or 617-723-7676 or use our contact form.
Massachusetts Law on Waivers and Releases
The proposition is all too familiar: You or your children want to participate in an activity. It could be at school, for a sporting event, in connection with a walk-a-thon or bike-a-thon, or in some other activity where there is a risk involved. Maybe the event is really risky, such as learning to drive a race car, or learning how to rock climb. Part of the price of admission to all of these activities is your signature at the bottom of a release or waiver of liability.
The language of the typical release is usually very broad and even includes the requirement that you indemnify the organization against related claims. You will be binding not only yourself, but your family, and in the case of a wrongful death, your heirs.
Are they legal? Most of the time yes, though there are some important exceptions which will be discussed below.
The Massachusetts courts generally uphold the validity of releases and waivers that are entered into knowingly. This includes pre-accident releases as well as releases in connection with settlements. Our courts have repeatedly affirmed just how broadly Massachusetts law favors the enforcement of releases.
Simply put, a defendant ordinarily may “validly exempt itself from liability which it might subsequently incur as a result of its own negligence.” Lee v. Allied Sports Assocs., 349 Mass. 544 , 550 (1965) (car racetrack accident).
In the more recent case of Sharon v. City of Newton, 437 Mass. 99 (2002), the court enforced a release signed by a father on behalf of his daughter as a condition of her participation in cheerleading in her high school. After she was injured, the family brought suit for the school’s negligence. The release was raised as a defense, and the court strongly affirmed the enforceability of the release, citing a host of public policy arguments.
The requirements for a binding release include clear and conspicuous language, proper naming of the party, the signature of the party, and valid contractual “consideration.” Consideration, meaning something of value that is exchanged, is satisfied by the participation in the activity.
Some particularly disturbing releases seek to include third parties who may be related to the activity named in the release. For example, your school child may wish to participate in after-school volunteer activities, and the release required to participate may include all the companies participating in the program. Now assume something horrible–the contracting company had failed to screen its employees, and a dangerous criminal was employed and caused your child harm. The negligent hiring would likely be within the scope of the release.
There are some exceptions to enforceability of releases. There are certain statutory exceptions that apply. One exception (and it is one that is frequently violated) is a release of liability to join a gym or health club. G.L. c. 93, Section 80 makes such language unenforceable and, in fact, a violation of G.L. c. 93A, the Consumer Protection Act. If you are injured in a health club due to equipment failure, a defect on the premises, or the negligence of a staff person, you will be able to bring your claim. Here is a related blog on health club waivers and releases.
Although a party may contract against liability for harm caused by its own negligence, it may not do so with respect to harm caused by its gross negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17 (1997). See also Gillespie v. Papale, 541 F. Supp. 1042, 1046 (D. Mass. 1982).
A party may not contract against liability for harm caused by violation of a statutory duty. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 19 (1997), citing Gillespie v. Papale, 541 F. Supp. 1042, 1046 (D. Mass. 1982).
A release may be avoided, in part, if it is the result of a “mutual mistake.” In the exceptionally rare case of Leblanc v. Friedman, 53 Mass. App. Ct. 697 (2002), a settlement release was not a complete bar to a subsequent claim by the plaintiff. The plaintiff settled a medical malpractice case arising from an instrument left in her body, and although the release was worded broadly, the court found there was a question of fact whether it was meant to include another injury not described in the release itself.
What Should You Do?
Entering into a release is an important contractual event. You should consider whether the reward overrides the risk. Some pre-enrollment due diligence is a good idea–ask about the staff involved, inspect the premises, get some references. If you are not willing to release all of your claims, try crossing out the offending language or simply not signing the release. However, most organizations are wise enough to recognize and disallow both of those techniques.
It would be appropriate for the Massachusetts legislature to consider revising the law of pre-accident releases. Sadly, that day does not look likely to come any time soon.
Contact our Boston attorneys today
The lawyers at the Boston firm of Breakstone, White & Gluck represent clients who have suffered personal injury as a result of the negligence of others. We have had experience identifying unenforceable releases which has allowed our clients to proceed with their claims for compensation. For more information and a free consultation, contact us today at 800-379-1244 or 617-723-7676 or use our contact form.
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.
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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Cooking a Safe Thanksgiving Dinner
At Thanksgiving, the focus is on enjoying good food and family. But attention must also be paid to fire safety because Thanksgiving sees more residential fire deaths, injuries and property damage than any other day of the year.
These fires are preventable with solid planning and good communication among those who are preparing the meal and others in the home. The Massachusetts personal injury lawyers at Breakstone, White & Gluck of Boston offer these tips to keep your holiday safe:
- Never leave food cooking unattended. If you have to leave the kitchen, turn the stove off or ask someone to watch the food.
- Make sure you have properly working smoke alarms near your kitchen.
- Keep oven mitts, wooden utensils, towels and other materials away from the stovetop.
- Use a timer to remind you when to stop cooking.
- Avoid using candles, especially near young children.
- Make sure cords to electrical tools and appliances, such as electric knives, are not dangling within reach of a child.
- Make sure children stay away from liquids and soft foods such as gravy and vegetables until they cool down. If these foods are too hot, they can cause skin burns.
What To Do If You Have A Cooking Fire
Keep a small fire extinguisher handy in your kitchen, either under the sink or close by in a closet. Inspect it periodically and make sure it is properly charged. If you have a cooking fire, it is best to call 911, wait outdoors for the fire department.
If it’s an oven fire, turn off the heat and keep the door closed. For small grease fires, smother the fire by sliding the lid over the pan and turning off the stove top. Leave the pan covered until it is cool. Never use water to extinguish a grease fire. You could be badly burned.
If you try to put out the fire, be sure everyone else is out of the home and you have a clear exit path.
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Study: One Child Dies in Portable Pools Every Five Days
A surprising study published last month revealed that one child in the U.S. dies every five days in portable swimming pools during the warm weather months.
The study published in the journal Pediatrics challenges the popular idea that in-ground swimming pools pose a much larger safety risk. This study is significant because drowning has become the second leading cause of death among children age one to 14, according to the Centers for Disease Control and Prevention.
The study reports 209 deaths and 35 near-drownings of children under 12 in portable pools from 2001 through 2009. More than 90 percent of the children were under 5 and 81 percent of the swimming pool accidents occurred during the summer months.
The study’s classification of portable pools includes small wading pools less than 18 inches deep, inflatable pools and other soft-sided pools up to four feet deep. The study was conducted by National Hospital and Independent Safety Consulting in Rockville, Maryland. Researchers say the findings are comparable to in-ground pool drownings.
Researchers say owners of portable pools often fail to take the same safety precautions as those who own in-ground pools. They set pools up quickly without taking the time to install fencing, pool alarms, safety covers and lockable ladders.
The numbers also show in many cases, children are swimming in portable pools without adult supervision. Children were supervised by parents in only 43 percent of the drownings and swimming pool accidents. Parents were home 73 percent of the time.
Read more about the study published in Pediatrics. Read More
One Million Pool Drain Covers Recalled As Summer Begins
One million defective pool and spa drain covers are being recalled because they are incorrectly rated to handle the flow of water and pose a possible entrapment hazard.
No injuries have been reported. The safety drain covers are being voluntarily recalled by eight manufacturers and are not sold directly to consumers.
There are 6.2 million residential and public inground pools and inground spas in the United States and the pool drain cover recall affects fewer than 5 percent, according to the Consumer Product Safety Commission (CPSC). But the recall comes just a few weeks before schools in Massachusetts finish for the summer and it is unclear how many closures it may force among the state’s public swimming pools.
The federal Virginia Graeme Baker Pool and Spa Safety Act took effect December 19, 2008, tightening safety standards for drain covers sold to consumers and public pool operators. The recalled drain covers were installed after that, between December 19, 2008 and April 2011.
The new legislation has been credited with reducing fatal drownings and pool accidents caused by unsafe suctions. From 1999 to 2008, 12 people were killed in pool and spa entrapments and 72 suffered injuries, according to the CPSC. In 2009 and 2010, there were no deaths and 10 pool entrapment injuries reported.
The affected drain covers were sold through independent distributors to pool and spa builders and installers. The CPSC is advising consumers to contact their pool builder or pool service provider. Consumers can also visit the Drain Cover Recall web page maintained by The Association of Pool & Spa Professionals or call the association at 866-478-3521.
The manufacturers and pool service professionals will replace or retrofit the defective pool drain covers at no charge to consumers.
Consumers are advised not to use pools with the defective drain covers and not to attempt to replace the drain covers themselves.
The manufacturers involved in the pool drain cover recall are A&A Manufacturing of Phoenix, Arizona; AquaStar Pool Products Inc of San Diego; California, Color Match Pool Fittings of Surprise, Arizona; Custom Molded Products of Tyrone, Georgia; Hayward Pool Products of Elizabeth, New Jersey; Pentair Water Pool and Spa of Sanford, North Carolina; Rising Dragon USA, of E. Sweetwater, Tennessee and Waterway Plastics of Oxnard, California.
For more information on the recall, click here.
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Parents Reminded of Social Host Liability in Prom Season
It is prom and graduation season, an important time for parents to speak to their teenagers about the dangers of drinking and driving. While the priority is on our children’s safety, parents also need to understand social host liability in Massachusetts if underage drinkers consume alcohol in their home.
It is well known that anyone under 21 who drinks alcohol in Massachusetts can be charged criminally, as can anyone who furnishes alcohol to a person under 21. But many people do not know that under the state’s social host responsibility law , there are serious consequences for parents who allow teens and their friends to consume alcohol in their homes. Parents may face imprisonment and fines under the law as well as civil penalties.
“The most important reason to follow this law is the safety of our children and other travelers on the road,” said Boston personal injury attorney Marc L. Breakstone, who has experience handling Massachusetts social host liability cases. “Even if the parents are not home and not aware of the illegal consumption of alcohol in their homes, they can still be criminally and civilly liable under this law.”
Click here to read more about the Massachusetts social host responsibility law from the Boston, Massachsuetts premises liability lawyers at Breakstone, White & Gluck.
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Commercial Landlord Liability for Personal Injury Expanded In Massachusetts
By David White