Posts Tagged ‘Massachusetts’
Pool Guests Swim with Caution
After another long winter here in Massachusetts, many of us are looking forward to some time by the pool. Whether you are a homeowner or a pool guest, take time to consider the rules of safety now so you can enjoy this time of year.
As a homeowner, you have a responsibility to keep your home reasonably safe for your family and your invited guests. If you own a pool, you have additional legal responsibilities to keep the swimming area safe. A safe swimming pool is critically important when children live at home or will be visiting. In fact, one third of all children who die between the ages of one and four are drowning victims in pools and spas, and hundreds more are critically injured.
Massachusetts regulates home swimming pools very closely. Here are some of the legal requirements and some common sense tips for the poolside.
Fencing. The law in Massachusetts requires homeowners to enclose pools with a fence at least four feet tall. It must have a self-closing lock which opens outward from the pool. Homes with a back door that opens onto a pool deck must have a pool alarm.
Diving Boards. Diving into a pool presents the risk of severe personal injury due to head and neck injuries. Diving boards are regulated for their size and height over water, and the water should be at least nine feet deep in the diving area. Shallow areas should be marked to prevent diving board injuries. Many insurance companies will request that your remove your diving board entirely as a safety precaution.
Pool Drains. Ask the pool owner where all the pool drains and suctions are and make sure your child steers clear of them. When a child is pulled into suction, they can become entrapped with a strong force, causing drowning and death. Make sure your child is not wearing any loose hair accessories or a bathing suit with loose straps that could get pulled in. Federal law changed in 2008, requiring public pools to start using drain covers to reduce suction deaths, but private homeowners may not have made the change.
Portable and Inflatable Pools. Though they are much smaller than in-ground pools, portable and inflatable pools can pose serious risks for injury, especially to toddlers.
Pool Slides. Whether it is a fixture or an inflatable, ask yourself if a slide looks like it can support you without tipping over. Ask the homeowner how long they have had the slide and if there have been any problems. In 2006, a woman died in Massachusetts after using a Banzai brand inflatable slide. The now-recalled slide collapsed under her as she slid down. She struck her head and later died.
Watch Children Closely. Give your children your complete attention while they are near the pool. Drowning claims more lives among children ages 1 to 4 than any other cause except birth defects, according to the Centers for Disease Control and Prevention. It is the second leading cause of unintentional injury-related death for children and teens ages 1 to 14. Set aside your cell phone, magazines and other distractions and watch your children. If you are in a group of adults, take turns being the “pool watcher.” Have that person step a few feet away from the conversation and concentrate solely on watching the children.
Poolside Toys. Avoid any toy or equipment that is not meant for use at the pool, including trampolines. Inspect all equipment before use.
Broken Glass. Serious accidents can happen when beer bottles and other glass are used near the pool. Broken glass at the poolside is obviously dangerous, so it makes sense to use only plastic or metal containers near the pool. Glass in the pool is even more dangerous–clear glass simply cannot be seen in the water, and will be a serious hazard to anybody using the pool. If there is broken glass in the pool, the only safe remedy is to drain the pool to sweep it out.
Distracted Driving Study: Voice Recognition Software Not Safer
Talking, e-mailing and texting in the car are not any safer with voice recognition software, a new study finds.
Infotainment systems – those digital screens in a vehicle’s dashboard – are becoming more standard in cars. They have voice recognition software which allows drivers to talk on the phone hands-free or send e-mails and text messages by voice. You can ask your GPS for directions, go online and even log into social media sites, such as Facebook and Twitter, all while driving, though these practices are unsafe.
While the federal government seeks industry support to limit use of these features while cars are in operation, the speech-to-text technology is legal in all 50 states. It provides an alternative in the 11 states and District of Columbia which ban cell phone use for all drivers. Massachusetts is one of the 41 states and District of Columbia which ban texting while driving for all operators, though drivers over 18 can talk on cell phones.
Distracted Driving Study
The new study by the AAA Foundation for Traffic Safety shows that putting the phone down and talking is still a risk. The study reported that speech-to-text technology causes a higher level of cognitive distraction than other activities behind the wheel, such as listening to a book on tape, the radio or talking on a hand-held phone or hands-free phone. Researchers compared drivers undertaking the different activities with eye-scanning technology that measured where driver attention was focused and electrical activity in the brain.
The study was led by David Strayer, a neuroscientist at the University of Utah who researches driving behavior and car accidents. He was the same researcher who led the 2006 University of Utah study.
Distracted Driving Concerns
In 2013, 9 million systems will be shipped in cars worldwide, according to ABI Research, an industry research firm. The number is expected to rise as automakers push the technology.
This technology meets heavy government concern about distracted driving. In 2010, 3,092 people were killed in car crashes related to distracted driving, according to the National Highway Traffic Safety Administration.
Recently, National Transportation Safety Board Chairman Deborah Hersman called for a ban on all phone conversations behind the wheel, even with hands-free devices. Last December, the federal government released voluntary guidelines for the auto industry, recommending that many infotainment system features be disabled while cars are in use. The recommendations seek to prevent drivers from manually enter messages, read messages, browse the Internet and make video conference calls while driving.
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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.
Attorney David White to Speak at Boston Cycling and Health Expo about Insurance for Cyclists
Attorney David W. White of Breakstone, White & Gluck will speak this weekend about how cyclists can purchase accident coverage to protect themselves from injuries and lost wages. White will speak at the Boston Cycling and Health Expo at 12:30 p.m. Saturday at the Westin Boston Waterfront. His talk is free and open to the public.
Cyclists often ride around with small amounts of coverage because they are unaware of how easy and relatively affordable it is to purchase extra coverage through their Massachusetts auto insurance policies. Drivers in Massachusetts are required to carry auto insurance, but they often carry very little and in some cases, none at all. If a cyclist is hit by a driver with inadequate insurance, he or she may be left without the compensation that is needed to fully recover and pay for medical expenses, bills, and the physical injuries.
White will talk about two ways cyclists can protect themselves by:
- Purchasing adequate amounts of Underinsured and Uninsured Motorist coverage
- Purchasing adequate Medical Payments coverage
Want to learn more before the event? Read our article, What Every Massachusetts Bicyclist Needs to Know About Car Insurance.
White will review the key parts of a Massachusetts auto insurance policy and explain the different options for cyclists to obtain compensation for injuries, including their own health insurance and no fault benefits. He will also discuss medical liens that health insurance companies may place on a personal injury case.
Cyclists who do not own cars may still be able to benefit from coverage if they live in a household with a car.
About Attorney David W. White
White is a Boston personal injury lawyer who has specialized in bicycle accident cases for over 25 years. He is a past president of the Massachusetts Bar Association. He is a frequent lecturer at continuing legal education programs and other events.
About the Boston Cycling and Health Expo and MassBike Bike Night
The Boston Cycling and Health Expo begins Friday and will host vendors from throughout New England who offer cycling, sports equipment and services aimed at healthy living. It starts at 2 p.m. Friday at the Westin Boston Waterfront at 425 Summer Street. It is also open Saturday from 9 a.m. to 5 p.m. Two notable events: MassBike will host its Bike Night and Fashion Show on Friday, starting at 6:30 p.m. Then on Saturday, the expo will start with a group bike ride around the City of Boston.
Breakstone, White & Gluck Booth
Breakstone, White & Gluck will have a booth and we invite you to stop by. Our lawyers and staff will be demonstrating how to use the firm’s new Boston cycling app. The smart phone app provides users with safety tips from our lawyers, an easy way to store your health insurance information and tools to gather information at the scene if you are in an accident. We will also be sharing pictures from our work donating youth bike helmets to Boston Bikes, Cycle Kids, Bikes Not Bombs and other organizations this spring. Learn more.
Bike Helmets in Boston
If you were in Boston last week, there is a good chance you saw a few cyclists. It was Bay State Bike Week and cyclists came out strong for events and group rides.
While many cyclists were wearing helmets, a new report says not all are. According to the City of Boston Cyclist Safety Report, from 2009 to 2012, cyclists were wearing helmets in less than 50 percent of incidents responded to by Boston Emergency Medical Services (Boston EMS).
Women wore helmets in 60 percent of incidents while men wore them in 43 percent.
Overall, the city reports 72 percent of cyclists citywide are wearing helmets.
Cyclists who wear bike helmets reduce their risk of head injury in a cycling accident by as much as 85 percent and the risk of brain injury by as much as 88 percent, according to the National Highway Traffic Safety Administration.
The city’s report shows bike accidents in Boston have increased from 2010 to 2012. The Boston Police Department reports a 2 percent increase while Boston EMS reports 9 percent. Nine cyclists died in accidents, including five in 2012. Ridership has also increased over this time as the city expanded infrastructure and launched the Hubway bike share program, making hundreds of new bikes available for short-term rentals.
Boston Bikes (the office which manages the city’s bike programs) reported a 16-28 percent increase in bike trips over that period. In the city’s report, Mayor Thomas Menino has pledged to decrease the cyclist crash injury rate by 50 percent by 2020.
Bike Helmets in Boston
In Massachusetts, cyclists who are 16 years of age or younger must wear helmets while riding bicycles, under M.G.L. c.85 Section 11B. The helmet must be secured to the cyclist’s head with straps and meet standards established by the U.S. Consumer Product Safety Commission.
But they are important for cyclists of all ages. The Boston cyclist safety report, which was produced by a number of city offices, has a long-term goal of passing a law requiring cyclists of all ages to wear helmets in Boston.
The city has tried to make discount helmets available to riders, launched a $40,000 “Wear a Helmet” advertising campaign promoting helmet usage and plans to install helmet vending machines at Hubway bike share stations. It also stresses helmet usage through its community programming.
In addition, Hubway riders agree to wear helmets as part of their rental agreement. But a study last year revealed many riders are not holding up their end of the deal. In the study, researchers at Beth Israel Deaconess Medical Center reported 80 percent of bike-share users in Boston and Washington D.C. were not wearing bike helmets. By contrast, riders who owned their own bike wore their helmets about half the time.
The study’s author wrote that head injury accounts for about one third of all bicycle injuries and about three-quarters of all bicycle-related deaths.
Bike Helmet Law for Boston?
Boston was one of the first cities in the country to offer bike sharing. It would be leading the way again if it passed a law requiring cyclists of all ages to wear helmets. Massachusetts, the District of Columbia and 21 other states require cyclists under 16 to wear helmets, but there are no states which mandate use by adults, according to the Insurance Institute for Highway Safety.
There are other cities and towns with laws or ordinances requiring helmets be worn by cyclists of all ages, including Dallas, Texas and Sykesville, Maryland. There is a bill proposed in the Legislature to make Maryland the first state to require cyclists of all ages to wear helmets.
In Washington State, more than two dozen communities have laws or ordinances requiring helmets to be worn by all ages, but there is no statewide law.
Bike Month: Time for Massachusetts to Think About Safety
This is National Bike Month, when cyclists gather for events and rides all over the country. In Massachusetts, the busiest time is during Bay State Bike Week, which began last weekend. Cyclists from Boston to Springfield to Cape Cod are being encouraged to pedal to and from work in the name of fitness and reducing traffic congestion on the roads.
But along with the fun, Bike Month is a time to ask ourselves and lawmakers if we can make the roads safer to prevent personal injury to bicyclists.
While Boston has been called a world-class cycling city in recent years, safety advocates say we can do better. This month, the League of American Bicyclists dropped the state’s ranking from third to sixth in its 2013 Bicycle Friendly State Rankings, offering these and other suggestions to state officials:
Safe Passing Law. Adopt a safe passing law with a minimum distance of three feet to address bicycle safety.
Vulnerable Road User. Adopt a vulnerable road user law that increases penalties for motorists that injuries or kill bicyclists or pedestrians.
Cell Phone Ban for Drivers. Pass a cell phone ban for all drivers. Currently, Massachusetts bans all drivers from texting while driving but only bans drivers under 18 from talking on their cell phones and driving.
Bicycle Riders Manual. Create a statewide bicycle riders manual with laws, state bike routes and laws for cyclists.
MassBike, the state’s leading advocacy group for cyclists, has been seeking passage of a vulnerable road users bill that increases penalties for drivers who injure or kill a bicyclist or others defined as a vulnerable road user. MassBike first filed a bill with the Massachusetts Legislature in 2011 and refiled a few months ago for the start of the new legislative session.
Under the bill, drivers found guilty of crimes such as motor vehicle homicide or hurting or killing a person while driving drunk would face double the normal fines if the victim is considered a vulnerable road user.
The bill defines vulnerable road users as “a pedestrian or a person operating a bicycle, handcycle, tricycle, skateboard, roller skates, in-line skates, wheelchair, non-motorized scooter or any non-motorized vehicle, or a person riding a horse.”
Additionally, the bill would require violators to take a traffic class and perform 100 hours of community service related to road safety. There would be special penalties for drivers who harass vulnerable users with their vehicles. Meanwhile, victims would be given guidelines for filing civil lawsuits against drivers who assault or threaten them.
Another bill proposed by MassBike is the Bicycle Lane Bill, which would make it a violation for a car to park or stand in a marked bike lane. Boston and some other communities have bans, but MassBike seeks a statewide ban.
Read about other bills filed and supported by MassBike.
Texting While Driving Study: Voice-to-Text is Not Safer
We all have one: a cell phone we keep close by throughout the day, to keep in touch with work and the people in our lives. Many of us now use smart phones so in addition to talking and texting, we have quick access to apps, cameras and other neat gadgets. The bottom line is we get more use from our mobile phones now than ever.
While the conveniences are nice, they are a negative when it comes to driving. Studies have long shown cell phone use of any type is a distraction which can result in drivers taking their eyes off the road and causing motor vehicle accidents.
Most states have some restriction on use. The District of Columbia and 39 states, including Massachusetts, ban texting while driving. Ten states and the District of Columbia ban all phone use by drivers. Massachusetts bans all cell phone use for drivers under 18.
Some say these efforts and related educational campaigns are falling short and the use of smart phones is actually increasing. The market has certainly grown dramatically. By last October, the count was over 1 billion smart phone users worldwide, according to one firm’s report. By 2015, another billion users are expected to get smart phones.
Many new users are using talk-to-text technology while they drive, but a new study finds this is not actually any safer. The study by the Texas A&M Transportation Institute was released during April’s National Distracted Driving Awareness Month. The study was the first to compare voice-to-text and manual texting.
The Study
The transportation institute studied 43 research participants driving a vehicle on a closed course. Drivers traveled the course without any cell phone use, then three more times performing texting exercises. On the first two laps, they used two different voice-to-text applications. On the third lap, they texted manually.
Researchers found driver response was significantly delayed when drivers used voice-to-text or sent text messages. In both cases, drivers took about twice as long to react as they did when they were not texting.
Manual texting required slightly less time than voice-to-text, but driver performance was roughly the same.
One theory for why is drivers who used voice-to-text had to look down at the phone after they spoke their message and check it before sending, taking their attention from the road.
Massachusetts Texting While Driving Law
The Massachusetts law which bans texting while driving is M.G.L. c. 90, Sec. 13B. It took effect Sept. 30, 2010.
Under the law, drivers in Massachusetts are banned from both texting and e-mailing while operating a car. They cannot read or browse the Internet. Voice-to-texting is not specifically addressed in the law.
Some police departments are seeking to enforce the law. In January, West Bridgewater police stopped 51 drivers over four hours on a Saturday afternoon. In March, another four-hour sting caught 43 drivers texting.
Texting while driving is a non-criminal offense which carries a $100 for the first offense, $250 for the second offense and $500 for the third.
Drivers who are texting and driving and cause injury or death can also be criminally charged under M.G.L. c. 90, Sec. 24(2)(a). Read about a recent case.
Dangerous Magnet Toys Recalled by Major Retailers
The Consumer Product Safety Commission (CPSC) has moved a step closer to taking two dangerous magnet toys out of the hands of children.
On April 12, six retailers voluntarily recalled Buckyballs and Buckycubes. The stores included Barnes & Noble, Brookstone, some Hallmark stores, Marbles the Brain Store and Think Geek.
Maxfield & Oberton Holdings of New York City, the importer and distributor, refused to issue a recall last year, prompting the CPSC to file a lawsuit against the company in July to stop sales. The rare legal action – one of just four taken by the CPSC in the past 11 years – resulted in the company discontinuing its products in October. It stopped doing business in December.
The product was manufactured by Ningo Prosperous Imp. Exp. Co. Ltd. of Ningbo City in China.
Buckyballs and Buckycubes vary in size and color, but they are essentially a ball or cube of small powerful magnets. They were sold in containers of 10 to 216 magnets that can become loose. The first of the two products was introduced in the U.S. in March 2009. Since then, over three million sets of magnets have been sold in U.S. retail stores and online.
Maxfield & Oberton initially marketed Buckyballs to children, calling it “an amazing toy.” It later rebranded the magnet toys as an adult desk toy and stress reliever.
But while the magnets were being marketed to adults, the CPSC was still receiving reports that children were swallowing them. It has received 54 reports of injuries, all but one requiring medical treatment.
CPSC Complaint
The CPSC’s July 25, 2012 complaint alleged that the magnet products had defective labeling and warnings, defective design, and posed a substantial product hazard.
The CPSC began working with the company on labeling three years ago, when the magnets were labeled for use by children “Ages 13+.” The agency said the magnets should have been marketed for age 14 and up.
Maxfield & Oberton changed the labeling and agreed to a voluntary recall of 175,000 magnet toys, but the CPSC said the injuries continued. In its complaint, it states, “…labeling and warning labels cannot guard against the foreseeable misuse of the product and prevent the substantial risk of injury to children.”
Company officials did not agree with the CPSC’s action. In October, they posted a statement on their website that read in part: “We’re sad to say that Balls & Cubes have a one-way ticket to the Land-of-Awesome-Stuff-You-Should-Have-Bought-When-You-Had-the-Chance.”
Dangerous Toy
Over the past few years, the CPSC set up a Magnets Information Center on its website to educate the public about the danger of swallowing magnets.
The risk is that if a child ingests more than one of the powerful magnets, they can become attracted to each other while in the intestines, pinching tissue and damaging the intestinal walls. This can result in a wide range of symptoms, including vomiting, abdominal pain, infection and death. Surgery is often required and becomes more complicated because the magnets can stick to the metal surgical tools.
And in some cases children ingested more than one or two. CBS News reported the case of a 3-year-old Oregon girl who swallowed 37 Buckyballs. The CPSC complaint details cases of other young children who have swallowed numerous magnets.
Related:
CPSC administrative complaint
Recall information for consumers
Massachusetts Compounding Pharmacy Recalls All 2013 Products
An unannounced inspection at a Massachusetts compounding pharmacy recently uncovered suspicious material on medication containers, leading the operation to order a voluntarily recall for all its 2013 products.
Pallimed Soluitions, Inc. of Woburn issued the recall after the visit from the Food and Drug Administration (FDA) and the Massachusetts Board of Registration in Pharmacy. The agencies found an unknown substance on sterile compounding products. Five affected vials were discovered and no illness has been reported. The recalled drugs include those used for erectile dysfunction treatment, testosterone replacement therapy, vitamin injections and ophthalmic preparations.
The Board of Registration has ordered the pharmacy to halt sterile compounding activities. In December, the compounding pharmacy was among three cited by the state pharmacy board during unannounced inspections. Pallimed was ordered to stop production of sildenafil citrate, which is sold as Viagra. The inspection found the medication was being prepared with improper components.
Medication involved in the recall was shipped to patients and medical offices in Massachusetts, New Hampshire, Rhode Island, Maine, Connecticut, Vermont and 15 other states. Recipients are advised to discontinue use of medications and return to Pallimed Solutions.
The FDA and Massachusetts Board of Registration in Pharmacy share regulation of compounding pharmacies in Massachusetts, which in contrast to large manufacturers, are allowed to dispense medications for individuals with prescriptions, often with conditions which cannot be met in regular pharmacies.
Both agencies are still responding to the aftermath of 2012, when the New England Compounding Center in Framingham was linked to a deadly fungal meningitis outbreak, which sickened over 650 people in 19 states and killed at least 39 others.
In January, Gov. Deval Patrick proposed new licensing requirements for compounding pharmacies, including to let the state assess fines for violating regulations, to protect whistleblowers and reorganize the state pharmacy board.
Along with federal regulations, compounding pharmacies in Massachusetts operate under 247 CMR. Under M.G.L. 94C, section 21 and 105 CMR 721.000, pharmacies and pharmacists must have a prescription for a specific patient before they dispense a medication.
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.