Articles Posted in ACCIDENTS

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This is the first of a two part Blogpost,which looks at a Boston area personal injury case where the insurer avoided payment for an accident involving a youth soccer player injured by a goal post.

PART ONE- THE UNDERLYING FACTS

In this recent appellate decision, a participant in a Sudbury youth soccer program who suffered a  personal injury as the result of an accident in which a metal goal post flipped over onto him during a team practice cannot sue for any alleged negligence arising from the improper placement of the posts. The Massachusetts Supreme Judicial Court affirmed a Superior Court decision that a Massachusetts Statute, G.L. c. 231, s. 85V, protected the non-profit association from such suits. 

soccer posts.jpgThe Plaintiff was a twelve year old who in April, 1998, was a participant in a program run by the Sudbury Youth Soccer Association, Inc. His team practiced and played games on a field in Sudbury, Massachusetts. The association had acquired metal goal posts and nets that were used for both practices and organized matches. Welch was injured when a goal post flipped over, striking and fracturing his right leg.
 
The Plaintiff filed an action against the Sudbury association in 2006, alleging it had negligently failed to maintain the goal posts in a safe and secure condition, and to warn him of the danger that existed if the goal posts were not properly anchored to the ground. Welch further alleged that he was seriously injured as a result of the association’s careless and negligent conduct.

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SOCIAL HOST LIABILITY – PART TWO

This is part Two of a two part blogpost, in which Boston Personal Injury Lawyer, the attorney, analyzes liability issues in the recent drowning death in Andover, Massachusetts.

It now appears that a parent was present in the Andover home where an overnight teenage party ended with the drowning death of one of the female guests. The Essex County District Attorney has convened a grand jury, which is taking testimony of persons present to determine if any crimes were committed related to the death (For Additional Information see February 19, 2009 Blog, Social Host Liability -Part One ).

BEER PONG.jpgIf the evidence indeed demonstrates that these underage students were permitted to consume alcohol, or more seriously, if a parent procured or supplied the alcohol for the party, then both criminal and civil liability may attach. However, the issue of whether premises liability can attach to these facts is not as clear as it may seem, as no Massachusetts appeals court has expressly articulated a position on these particular facts.

The Massachusetts Supreme Court has long held that a social host can be found liable for injury in one particular instance. In a 1986 decision,
Mc-Guiggan v. N.E. Tel. and Tel. Co. , the Court created a common law theory of liability of a social host “to a person injured by an intoxicated guest’s negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person’s injury.”

The duty is imposed because it is believed that the social host knew or should have known that the guest was drunk and was in a position to protect an innocent third party from the harm. In Mc-Guiggan , the Court elected not to impose liability even though the 18 year old operator of the motor vehicle admitted he had consumed alcohol at a graduation party, and pleaded guilty to operating under the influence, after his passenger and friend died from injuries suffered when his head hit a concrete post as he put leaned out of the car window to vomit.

In Mc-Guiggan , based on testimony of the homeowners and others, the Court determined that the evidence was legally insufficient to demonstrate that the hosts knew or should have known that the driver was so impaired that he could not or should not be driving. And this was so even though the blood alcohol level of the driver was still above the legal limit 3 hours after the accident.

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SOCIAL HOST LIABILITY, PART ONE

This is part One of a two part blogpost, in which Boston Personal Injury Lawyer, the attorney, analyzes liability issues in the recent drowning death in Andover, Massachusetts.

In the early morning of February 16, 2009, sixteen year old Concord Academy student, Elizabeth Mun, was found by friends face-down in a shallow stream in an upscale residential neighborhood in Andover, Massachusetts. She was pronounced dead as the result of drowning later that day at Children’s Hospital in Boston.

It is believed that she had attended an overnight party at the home of a fellow Concord Academy student, whose parents apparently were not present. She had apparently left the house on her own around 5:00 a.m. and her friends became concerned when she had not returned by 6:30. The Essex District Attorney is investigating the incident, although it is presumed that alcohol may have been a factor.

Many are already drawing parallels to the death of Taylor Meyer, a King Philip Regional High School student who drowned last fall in Norfolk, Massachusetts after wandering from an underage drinking party.

If it turns out that alcohol or drugs were involved in this recent incident, the question immediately arises as to the responsibility, and by inference the premises liability, of the parents who owned the Andover home, and who appear to have left their teenage child without supervision at the home, and by implication, permitted the party to take place.

It is well known that criminal responsibility can attach when there is evidence that parents or other adults have procured alcohol for minors. In fact, last fall a 44 year old Gloucester woman was sentenced to a year in jail after pleading guilty to multiple counts of reckless endangerment and illegally supplying alcohol to minors after buying alcohol for her 13 year old daughter and her friends so that they could “party” in her home.

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A worker was entitled to medical and disability payments under the Massachusetts worker’s compensation statute for a work related injury even though there was evidence in his own medical record that he had a pre-existing back condition.

The Massachusetts Appeals Court determined that the insurer for the employer had failed to produce evidence to overcome the opinion of the worker’s chiropractor that the injuries were primarily related to the new injury, rather than the pre-existing degenerative back condition, as was required under G.L. c. 152, s. 1(7A).

On December 31, 2004, Scott MacDonald was cleaning up a worksite at the end of a work day. While lifting buckets of waterproofing, he felt a tightness in his back, which did not seem sufficiently serious at the time to prevent him from completing his workday. However, the following day the pain became excruciating, and he sought treatment with a chiropractor, which continued for the next four months.

The chiropractor also recommended that he obtain an MRI, which revealed disc herniations and degenerative changes. MacDonald then sought treatment from a group of neurologists, whose reports referenced prior back injuries and treatment, and made a diagnosis of pre-existing degenerative disc disease. The records show that MacDonald’s condition was improved in March, 2005 and he was back to work by the beginning of May, 2005.

McDonald sought benefits for a work related injury, which his employer’s insurer challenged on the basis that his injury was pre-existing and not work related. An administrative judge heard MacDonald’s claim and awarded medical benefits, temporary total incapacity from January 1, 2005, to March 15, 2005, and temporary partial incapacity from March 16, 2005, until April 30, 2005.

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A serious and deadly construction accident, which took place in downtown Boston on Saturday, February 7, 2009, reminds of the dangers associated with construction related work, and in particular work being performed at high elevations using lift equipment.

In the Saturday incident, a mobile lift toppled and fell into a vacant lot used by the Brattle Book Shop, where there were several patrons present. The falll killed a construction worker who was working on the lift and severly injured a second worker. It is reported that the crane was being used to inspects roofs on a Suffolk University Dormitory, which recently opened on West Street, several blocks from downtown crossing.

According to fire officials the two men involved in the accident were working for Reliable Roofing & Sheet Metal LLC of Framingham, Massachusetts. It appears that Suffolk had hired Tremco Inc. of Beachwood, Ohio, to inspect the roof of the building located at 10 West Street. Tremco then subcontracted with Reliable Roofing to do the work. The lift being used had been rented from Equipment 4 Rent, located in South Boston and West Bridgewater, Massachusetts.

This was the second fatal accident involving lift and staging equipment in downtown Boston in the last year. The prior accident took place at a building a few blocks away on Boylston Street being renovated by Emerson College, which killed another construction worker as well as the operator of a motor vehicle, which was passing on the street below.

In such accidents, a worker is barred from suing his employer by the Worker’s Compensation Act in Massachusetts. However, claims can be made against other “third parties” involved in the work, but only if it can be proved that their acts and/or omissions were a contributing the cause of the accident.

Questions inevitably arise after such an accident: did the equipment fail? Were the workers properly instructed in the use and operation of the equipment? Were there adequate safety measures in place to protect the workers? Was someone other than the employer of the injured workers who had these responsibilities? Did anyone interfere with the use and operation of the equipment?

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The wife of an employee who suffered injuries while operating a forklift, which resulted in his death, is entitled to keep an award of $1.5 million awarded by a jury who found that the manufacturer of the forklift beached a duty it owed to the subsequent users of the machine, even though they were not its original purchasers.

The U.S. First Circuit Court of Appeals had certified a question to the Maine Supreme Court regarding a jury instruction given in the case, which was taken from the Restatement of Torts, section 10, involving products liability. The question was whether a manufacturer had a duty to warn known but indirect purchasers where a product was not defective at the time of sale, but a product hazard developed thereafter.

The Maine Supreme Court answered in the affirmative, not relying on the Restatement language, but based on the facts presented in the case, determining that liability could be established on a theory of simple negligence. This was so because the manufacturer specifically knew that this company owned one of its forklifts and therefore the risk of injury to this particular defendant was foreseeable.

The Defendant argued that it was entitled to a new trial because the Restatement jury instruction was improper, based on this interpretation. The First Circuit disagreed. Specifically, the Court found that the duty of care issue had been properly presented to the jury, and before the Court made any kind of ruling on the jury instructions, and in fact it was the Defendant who had requested the Restatement instruction.

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A January 22, 2009 collision between a police cruiser responding to an auto accident and a vehicle driven by an Auburn woman has reminded us of a law little known to most, which limits the unfettered rights of official vehicles responding to an emergency.

While it is well known that laws require driver’s to yield to police and other emergency vehicles, few are aware that the responders also have limitations on their rights. Specifically, although permitted to pass through an intersection against a red traffic light or where there is a stop sign, in the interest of avoiding dangerous collisions, the responders are nonetheless required to come to a complete stop before proceeding.

This particular car accident occurred in Sutton, Massachusetts at around 8:45 a.m. when a car collided with a Sutton police cruiser at the intersection of Route 146 and Boston Road. Although the woman was cited for failing to yield, it appears that she was legally passing through the intersection with a green light, and the police cruiser passed through a red light signal. 

Apparently, other vehicles were aware of the cruiser and had yielded, but the woman did not. It is assumed she was not aware of the presence of the police car, and the obvious question is whether the cruiser indeed came to a complete stop before proceeding through the intersection.

 

police-cruiser-collisionIf it is determined that the officer did not completely stop before proceeding, he violated a Massachusetts statute, G.L. c.89, §7B, entitled Operation of emergency vehicles , which states in part:

….that the driver of a vehicle of a police or recognized protective department or the driver of an ambulance, in an emergency and while in performance of a public duty or while transporting a sick or injured person to a hospital or other destination where professional medical services are available, may drive such vehicle …through an intersection of ways contrary to any traffic signs or signals regulating traffic at such intersection if he first brings such vehicle to a full stop and then proceeds with caution and due regard for the safety of persons and property… 

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Accidents often arise out of situtions where someone’s conduct causes injury to another, and it appears that the act causing injury was carried out intentionally. The most obvious type of situation is an assault and battery. Someone hits you in the face with their fist and causes injury, requiring medical treatment. You obtain treatment, seek the services of an attorney and bring a claim. The individual who caused the injury usually resides in a home and may have liability insurance coverage under the policy insuring the home, even if someone else owns the house. 

Most homeowners’ insurance policies provide insurance coverage for household members for their conduct both within and outside of the home. However, there are usually exclusionary provisions, which preclude coverage for intentional acts, and more specifically, for intentional illegal or criminal acts.

At first blush, one might assume that in all such situations, where an act appears to be intentional, there will be no coverage. However, Courts in Massachusetts and elsewhere have interpreted insurance policies to preclude coverage only where there was an intent to cause a specific injury, rather than simply if the act itself was intentional.


febsnow_snowball_fight400x300.jpgThus, for example, if a group of children were throwing snowballs at one another in the yard, obviously intending to hit one another, and a snowball happened to hit a child in the face, causing injury to an eye, for example, it is likely that there would be insurance coverage for the accident. The act was intentional, but there was no intent to cause the specific injury. In this situation, there would likely be coverage afforded.

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prostitution02cc_400.jpgA police officer who prevented an suspected prostitute from leaving a hotel by grabbing her in a hotel hallway and then detaining in her in a hotel room, after physically preventing her from leaving the premises, may be liable for personal injuries as the result of using excessive force, but not for wrongful detention, according to the U.S. Court of Appeals.

The case involved a prostitution sting, which took place in a hotel in Portland, Maine in March, 2006. The hotel room was set up for video and audio surveillance, with officers and a prosecutor set up in an adjoinging hotel room. The Plaintiff had responded to a telephone request for an exotic dancer to come to the hotel. An undercover officer was in the room impersonating a customer seeking sexual favors.

The Plaintiff entered the room, and was asked to undress, but suspicious of the circumstances, told the officer she was only there to dance and then asked the officer to take his clothes off. He refused. She then agreed to undress, but quickly discerned that the police were involved. Money was sitting on the dresser and the woman took a $20.00 to “pay for her trouble”, and commenced to leave the room and the hotel.

However, she was apprehended in the hallway by a police officer who had been in the adjoining room. He grabbed the Plaintiff by the arm, put her against the wall, and then took her back into the hotel room to further question her. She was ultimately permitted to leave without any arrest. The Plaintiff went home, called the police, and later went to the hospital, where was treated for injuries to her arm and shoulder, which later was diagnosed as a torn rotator cuff.

The Plaintiff filed a 42 U.S.C. 1983 action, claiming her civil rights had been violated by the police officer, alleging wrongful detention and excessive force. The Defendant moved for summary judgment, which was granted by the U.S. District Court Judge, finding that the police officer had probable cause to detain the Plaintiff based on the “pooled knowledge” of the police present, and specifically because the Plaintiff had stolen the $20.00 bill (although she gave it back at the hotel). The judge ruled that the detention, and force used, were reasonable, given that there was probable cause for an arrest and that the officer had limited immunity in carrying out reasonable and appropriate police activities.

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A severe fire related accident occurred as the new year struck in Freedom, NH. The location was a lakeside private home owned by one of the group, all recent graduates from Holy Cross College. The group was outside celebrating and had a bonfire going on an old grill.  It appears that the accident occurred when one of the revelors poured an accelerant, said to be a lantern fuel, onto a smoldering log, intending to restoke the fire. It is believed that gas fumes from the fuel ignited and set fire to the clothing worn by three woman who were huddled around the fire causing personal injuries to several woman present.

Two of the woman were Boston area residents and were critically injured with first, second and third degree burns. The third girl’s injuries were less severe, as she was apparently wrapped with a blanket more quickly following the incident. It was said that the other girls ran back to the larger group still aflame, and only then were wrapped so that the flames could be put out.

The accident brings to mind the severe danger, which fires, and in particular outdoor bonfires present, especially during holiday times, when the consumption of alcohol seems to become a factor in the judgment used by partygoers.  The U.S. government has conducted studies, which show that outdoor fires spike during holiday periods, and that the period between midnight and 1:00 a.m. on New Years has a particularly high incidence rate of fires, and fire related accidents, much more so than other times of the winter and the rest of the year. Based on a 2001-2 study conducted by the U.S. Fire Administration, there were an estimated 6,400 fires during the New Year’s period, causing an average of 30 deaths and 93 injuries.

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