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(This Boston Accident and Injury Lawyer Blogpost is the Last in a Three Part Analysis of a Recent U.S. Appeals Court Ruling involving defamation, public officials and the news media Click here to view Part One and Click Here to view Part Two)

PART THREE : THE COURT RULES ON THE DEFAMATORY BROADCAST

As stated previously, under Maine common law, a plaintiff alleging defamation must show a false and defamatory statement published without privilege to a third party resulting in harm to the plaintiff.

HAMSTEAK.jpgIn the lower court proceeding, the defendants had contended that the various statements made on the show and attributed to Levesque either were not defamatory or, because Levesque had stipulated that he was a public official, it could not be shown that they were made with actual malice. The district court held that the statements were protected on multiple grounds. It found the “hate crime” comments substantially true and mention of the “anti-ham response plan” protected as “rhetorical hyperbole”.

However, the lower court determined that the ham sandwich and the “ham is not a toy” comments were materially false, reasonably susceptible of a defamatory meaning, and highly offensive. Yet the court believed that Levesque had failed to demonstrate that the defendants had acted with constitutional malice when they made the defamatory comments.

The Court of Appeals agreed, finding that most, but not all of the statements attributed to the Plaintiff were largely true, although laced with “imaginative expression” or “rhetorical hyperbole”, which it concluded were protected speech.

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(This BlogPost written by Boston Personal Injury Attorney, the attorney, is the Second in a Three Part Analysis of a Recent U.S. Appeals Court Ruling involving defamation, public officials and the news media Click here to view Part One)

PART TWO – FOX & FRIENDS READS AND REACTS

On April 24, a line producer for “Fox & Friends” discovered the Plagman article. The Fox News Research Department read the Plagman article and conducted further research, and discovered additional information, including the original Lewiston Sun Journal story. The Plagman articles and other research materials were delivered to the show’s Doocy and Kilmeade. Doocy used Google News to conduct additional research, also found the Plagman article and Sun Journal stories, and decided to use the story as part of its show.

ham sandwich.jpgDuring the three-hour show, Doocy and Kilmeade repeatedly raised the April 11 incident, ridiculed Levesque, and blamed him for the handling of the incident. They reported as true several of the fabricated quotations that Plagman attributed to Levesque including the fact that the student had placed a ham sandwich on the table, the “ham is not a toy” statement and also attributed to Levesque a false statement comparing the incident to Mogadishu. Throughout the show, Doocy and Kilmeade repeated these falsified quotations.

After the April 11 incident, Levesque had received derogatory and threatening emails and phone calls from persons who learned about the incident and the student’s suspension. Of seventy-five emails submitted to the district court, sixty-nine were written after the “Fox & Friends” cablecast. As the result of these incidents, he elected to bring an action for defamation.

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(This Blogpost is the First in a Three Part Series by Boston Injury Lawyer, the attorney, who analyzes an interesting recent U.S. First Circuit Court of Appeals Ruling involving defamation, public officials and the news media. Click Here to view Part Two)

PART ONE – THE SCHOOL HATE CRIME INCIDENT MAKES LOCAL NEWS  

The U.S. District Court of Massachusetts has affirmed a lower Court’s summary judgment ruling that Fox News Network, LLC (“Fox”), and “Fox and Friends” television personalities, Steve Doocy and Brian Kilmeade, did not defame the Superintendent of the Lewiston, Maine public schools during a morning show, which ran in April, 2007.

FOX AND FRIENDS.jpgThe story involves an incident, which took place on April 11, 2007, when a student at the Lewiston Middle School placed a bag containing leftover ham on the cafeteria table where Somali Muslim students were sitting for lunch. The Somali students reported the incident, which resulted in an investigation and suspension of the offending students. The incident was classified as a “Hate Crime/Bias” in the school’s computer system, and a police report was filed characterizing the incident as “Crime: Harassment/Hate Bias.”

The Plaintiff, Leon Levesque, was the superintendent of the Lewiston School System. He was informed of the suspension and endorsed the decision. The following week, a reporter for the Lewiston Sun Journal, interviewed Levesque for an article she intended to write about the incident, which was published on April 19, 2007. The article included quotations from Levesque, describing the offending student’s conduct as “a hate incident”.
 

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This Blogpost by Boston Personal Injury and Accident Laywer, the attorney, anaylzes a battle between insurers over costs of construction accident.

Following a construction site accident where an insurer of a subcontractor refused to defend the general contractor, who then successfully filed a declaratory action to force the subcontractor’s insurer to share in the defense and settlement costs of the action, the Massachusetts Supreme Judicial Court has refused to permit the general’s insurer to recover the attorney’s fees incurred in successfully bringing its declaratory judgment action.
 
zurich.jpgIn January of 2001 a worker fell and suffered injuries while employed on a project in Uxbridge, Massachusetts. A year later he brought a negligence action against the general contractor and another subcontractor on the project. The general contractor was insured under a general liability insurance policy with Zurich American Insurance Company (Zurich). The subcontractor also had a policy issued by Worcester Insurance Company (Worcester), and was required by contract to list the general as an additional insured.

Upon filing of the complaint, the general called upon the subcontractor and Worcester to defend. They refused and Zurich defended. Zurich also brought a declaratory judgment action in the general’s name, seeking indemnification from the subcontractor and Worcester for their refusal to defend. Ultimately, the negligence case settled, with the general contributing $75,000 to the settlement.

The general contractor prevailed in the declaratory judgment action and Worcester was ordered to pay one half of both the settlement amount and the costs of defending the negligence action. However, the general contractor also sought an award of the attorney’s fees incurred to file and prevail in the declaratory judgment action, even though it was evident that it was Zurich who had paid the fees. The Superior Court judge denied the request and the general contractor appealed.

The SJC affirmed and discussed at length its reasoning. Massachusetts generally follows the customary approach to the award of attorney’s fees in civil litigation, known as the “American Rule”. In the absence of some statute or other rule, successful litigants must nonetheless pay their own attorney’s fees and expenses.

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(This is the second post of a blog, from Boston Personal Injury Lawyer, the attorney, which considers protections afforded under a Massachusetts statute intended to protect non-profit entities from liability from accidental personal injury)

PART TWO – GL C. 231, S. 85V CONSIDERED

General Laws c. 231, § 85V limits the liability of non profit sports programs to third parties for accidents and injuries arising from the conduct of such programs. However, the limit on liability is not absolute. Specifically, liability can arise for conduct relating to the care and maintenance of real estate which the association uses in connection with a sports program or related activity (G.L. c. 231, § 85V(iii)).

goal-post2.jpgThe Plaintiff articulated two reasons why the immunity provided by the statute should not apply to his facts. First, he contended that the statute did not apply because he was neither a participant, nor a spectator at an organized game or practice at the time of the accident. The Court rejected this theory on the basis that the immunity was not controlled by the status of the individual who was injured, but rather on the question of what was the status of the organization. If the injury arose from the conduct of the sports program, the immunity applied. Here, the placement of the goal posts on the field was irrefutably a part of the conduct of its soccer program.

The Plaintiff also contended that the real estate exception in the statute imposed liability on the association. He argued that the associations were negligent in their care and maintenance of Haskell Field by permitting improperly secured goal posts to be present on the property, and that this dangerous condition caused him serious harm. The Court rejected this argument, and an analysis that followed the common law duty of landowners to invitees with regard to unnatural and dangerous conditions on the premises.

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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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