Posts made in March 2013

Massachusetts sidewalk swallowed by gaping sinkhole

Everyday people use sidewalks while traveling to work, stores and school. However, should someone slip and fall on a ill-maintained sidewalk, that victim may seek compensation in a court of law for their injuries.

Recently, a gaping sinkhole measuring 10 to 20 feet deep developed along a Massachusetts sidewalk. The sinkhole was formed when a sewer line collapsed, causing the sidewalk to buckle in. The broken sidewalk is located near an area high school. Fortunately, no one has yet been injured by the sinkhole.

Although no one was harmed in this incident, a broken sidewalk could pose a serious threat should someone slip and fall. When this happens, the victim may seek compensation for their injuries. In some states, cities and municipalities are immune from lawsuits. However, in other states this is not the case, and cities and municipalities are charged with the responsibility of maintaining sidewalks in good repair. The failure to repair sidewalks that are aged or broken could result in a lawsuit, should someone be injured while walking on them.

In addition, there are circumstances in which a property owner may be liable for accidents caused by broken sidewalks on their premises. For example, property owners are charged with ensuring private sidewalks on their property are kept in safe conditions. And even if the sidewalk is a public sidewalk, the property owner may be liable if the sidewalk is used almost exclusively to service the property owner, such as a sidewalk that is used primarily by customers entering a store.

People injured by inadequately maintained sidewalks may be able to bring a lawsuit against the city or property owner. Any compensation received from such a suit could provide the victim with the financial resources necessary to recover from the incident.

Source: ABC40 News WGGB “Sinkhole Opens Up Under Holyoke Sidewalk,” March 13, 2013

Massachusetts man killed by an allegedly drunk driver

Some people think nothing of getting behind the wheel after having a few drinks. Some may even think they drive better while drunk. But drunk driving is always a dangerous endeavor. For if a drunk driver were to cause a car accident, not only could it result in serious injuries to innocent victims. It could even result in death.

A Massachusetts man recently perished after the car he was driving was smashed into by an allegedly drunk and high driver. Police estimate the driver was traveling nearly 70 miles per hour when he ran a red light and struck the victim’s vehicle. The driver’s blood alcohol concentration was over .111 when the accident occurred, and the police also believe he may have been high on marijuana. The driver now faces charges of motor vehicle homicide while driving drunk. He has plead not guilty.

When a victim is killed by a drunk driver, that driver could face more than criminal charges. They could face a civil lawsuit as well. To aid in such a lawsuit, the victim of a drunk driving accident may rely on the report compiled by police regarding the car accident. After pulling a suspected drunk driver over, police may question the driver as to whether they’ve been drinking. The police will also take note of anything such as beer or liquor bottles in open view that may indicate the driver was drinking. Another inspection police may perform is a field sobriety test. Finally, police may request the driver to submit to a breathalyzer test that would measure the driver’s blood-alcohol concentration. All of this information would be included in the official police report.

The victim, in this case, was well loved by his community, and they deeply mourn his loss. But for other victims in these circumstances, filing a lawsuit against the drunk driver may be one way for them to find some peace and closure with the tragedy in their lives.

Source: boston.com, “Middleborough man denies drunk driving charges,” March 13, 2013

Massive recall of defective minivans sold in Massachusetts

Most cars are designed to keep drivers and passengers safe. But when something goes wrong and a vehicle needs to be recalled, companies may face a product liability lawsuit from those injured due to the defective product.

Nearly 230,000 Ford Freestar and Mercury Monteray minivans have been recalled in Massachusetts and 20 other “salt belt” states. The vehicles had a rust defect in the latching ability of the third row passenger seats, which became loose after having corroded. Fortunately, although 80 complaints have been filed, there have not yet been any reports of injuries.

The federal government sets minimum safety standards for all vehicles in the United States. These standards cover the parts related to the safe operation of a vehicle, such as brakes or tires. However, there are also standards for a vehicle’s safety features, such as airbags and seatbelts. A car may be recalled if it does not conform to the Federal Motor Vehicle Safety Standards. In addition, recalls may be made if the vehicle is later found to be defective in a manner that has the potential to harm people. This recall can extend to all vehicles of the same manufacture and design, if they all contain the same defective component. Some examples of safety defects include steering wheels that suddenly break, accelerators that stick and seats that fail to remain in their proper position while in use.

Defective vehicles can cause serious damage or even injury if they malfunction while on the road. Through proper recall procedures, manufacturers can keep these cars off the road and keep their buyers safe.

Source: Torque News, “Ford recalls over 230k minivans due to rust problem,” Anthony Faccenda, March 8, 2013

Head-on car crash claims the life of one, injures two others

In the blink of an eye, a driver could be involved in a car crash that has deadly results. Losing a loved one in a car crash can be life-altering for those left behind. But by bringing a wrongful death suit, the victim’s loved ones may receive some compensation for their loss.

A tragic car crash in Massachusetts claimed the life of one man and left two others injured. For reasons not yet known, the driver of a Toyota Corolla veered into the opposite lane of traffic, and slammed head-on into a Chevy Tahoe. Rescuers had to use the jaws of life to reach the man in the Toyota Corolla. Unfortunately, he died at the scene of the accident. The driver and passenger of the Chevy Tahoe were hospitalized for their injuries. The accident is still under investigation.

Sometimes, a car crash can result in the death of another. When that happens, the victim’s survivors may choose to pursue a wrongful death claim. A wrongful death claim is brought by a personal representative of the decedent’s estate, with the award being distributed to the victims loved ones. To prevail in such a lawsuit, it must be shown that the victim died due to the negligence of another, and that the victim’s loved ones suffered some sort of monetary loss because of the death. Most damages in a wrongful death suit are pecuniary, and include medical expenses, funeral expenses and loss of support.

If the victim’s loved ones wish to recover for the decedent’s pain and suffering they must file a similar law suit known as a survival action. To determine the amount of damages in a survival action, courts will look at the severity of pain suffered, how long the pain lasted and the extent to which the victim was conscious of the pain and aware that they may die.

A fatal car accident can be devastating for the victim’s loved ones. However, by bringing a wrongful death suit the survivors may obtain the financial resources necessary to recover from their loss.

Source: boston.com, “1 dead, 2 hurt in head-on crash in Wilmington,” March 4, 2013

Professional Negligence

In late 2003, the defendant/crossclaim plaintiff, Sean Murphy, planned to purchase and develop 8 contiguous parcels of property located in Wareham, Massachusetts. To this end, he retained the legal services of the defendant, John Lamond III, Esquire. Murphy claimed that he acted on his attorney’s advice in forming and utilizing numerous limited liability corporations to both acquire and develop the land. Murphy procured the financing for the project from Hill Financial Services Company, a private lender that he had previously used for other development projects.

Despite the fact that Murphy had never personally visited the property that he proposed to purchase, Hill loaned to Seamur Enterprises, LLC, (one of the corporations created by Murphy in 2003), the sum of $500,000.00 to close on two of the eight parcels in Wareham. An additional $390,000 was loaned by Hill to a separate Murphy controlled entity several months later for the purchase of two additional parcels. Not all of the four parcels purchased by Murphy were contiguous, however. Hill had planned to extend an additional $1,000,000 in financing to Murphy on a rolling basis once construction got underway. This money was never loaned, however, because Murphy never developed the property. Neither did he ever purchase the remaining four parcels that were necessary to complete the assemblage.

In addition to the funds loaned to Murphy by Hill, he spent his own capital on the project. Despite this fact, the necessary permits were never obtained and a vital easement issue concerning NStar was never resolved. Absolutely no development occurred during Murphy’s ownership. Over the course of two and one-half years, Murphy repaid to Hill the sum of $241,000 in interest only payments. Because Murphy had simultaneously borrowed money from Hill to finance other unrelated projects in several other towns, however, it was unclear as to which repayments were tendered to specifically pay down the Wareham indebtedness. Frustrated with a lack of progress at the Wareham site and running short on funds, Murphy defaulted and Hill foreclosed on the property in 2007. In undertaking their due diligence in preparing to auction the property, Hill made a startling discovery. Several months prior to Murphy’s original purchase of the Wareham property, Lamond had been sent a letter from the Commonwealth of Massachusetts Department of Historical Preservation seeking to notify him that an ancient Native American grave was unearthed at the back corner of one of the Wareham parcels. The letter also purported to memorialize a telephone conversation between a state archeologist and Lamond whereby the suggested remedy of a “preservation restriction” around the grave was supposedly discussed. When subsequently confronted with the existence of this letter, Lamond denied receiving the letter, denied engaging in the phone conversation referenced in the letter and denied any foreknowledge of the grave. A copy of the Massachusetts Department of Historic Preservation’s phone bill obtained through discovery revealed that a call lasting 1 minute and 26 seconds had been placed to Lamond’s office in December of 2003. There was no additional evidence that an actual conversation in fact took place, however.

Hill filed suit against Murphy for the deficiency and Murphy brought a third party complaint against Lamond for, inter alia, negligence and violation of M.G.L. c. 93A. Murphy maintained that had he known about the Native American grave, he would never have purchased the property. He also asserted that the discovery of the grave “tainted” the property thereby depriving Hill of mitigating its damages and selling the property for an advantageous price. Lamond countered with a number of defenses including the allegations that (1) Murphy lost the property to foreclosure due to his own mismanagement and inaction (Lamond insisted that Murphy was merely seizing upon the discovery of the Native American grave as a convenient excuse); (2) the Massachusetts’ Unmarked Burial Law does not prohibit or even restrict a developer from undertaking to build on a property that contains a Native American grave; (3) the implementation of a common “preservation restriction” would have ensured that the presence of a single Native America grave (in a remote corner on the property), was not an impediment to the development of the larger property; (4) Murphy had failed to make an effort to acquire the remaining 4 parcels which would have been an indispensable prerequisite to the ultimate development of the property; (5) extensive wetlands located on the property rendered an exceedingly large portion of the whole undevelopable anyway; and, (6) the general downturn in the economy was responsible for the diminished value suffered by the property, if any. The parties engaged in a failed mediation.

After seven days of trial, the jury found for Murphy in the amount of $20,000 on the negligence claim (the same amount of money Lamond had been paid for legal representation), and, $397,000 for violation of M.G.L. c. 93A. The jury then doubled the total award having found Lamond acted willfully. When added to statutory interests and attorneys fees provided by M.G.L. c. 93A, the total award exceeded $1,100,000.

Dog euthanized after mauling a Massachusetts boy

As many in Massachusetts can attest, dogs can bring lasting company and joy to the lives of their owners. However, dog owners must never underestimate the possible dangerous propensities of their pets, including the possibility of dog bites. For if a dog were to attack another individual, it could result in severe injuries for the victim and serious consequences for the dog and the dog’s owner.

A 6-year-old pointer-hound mix was euthanized after attacking a 6-year-old Massachusetts boy. The attack occurred while the dog owner’s teenage daughter was babysitting the victim. The dog bit the boy on the face, causing an injury that required over 400 stitches to repair. In addition to the physical injury, the boy has also suffered severe emotional trauma as a result of the attack, saying that he is now “ugly.”

When a person is bitten by a dog, they may be able to sue the dog’s owner in a court of law. There are two theories the lawsuit could be brought under. Some states follow the theory of strict liability. Under strict liability, the dog’s owner is liable for dog bites, even if that owner took steps to avoid attacks, such as posting signs or chaining the dog. Even if the owner had no reason to believe their dog was dangerous, they could still be held liable.

However, in other states a dog owner is liable for attacks only if they know or should have known that their dog had dangerous propensities. It is not always easy to determine what constitutes a dangerous propensities. Some factors the court will consider are the dog’s size, breed, whether the dog was kept for protective purposes and whether the dog has bitten someone in the past. If the owner put up “beware of dog” signs or told someone the dog may attack, that could also be used to show the owner knew the pet had dangerous propensities.

Victims of pet bites could receive compensation for medical expenses and pain and suffering. This compensation could be vital in allowing the victim to recover, physically and emotionally from a serious animal attack.

Source: boston.com, “Dog that attacked Mansfield boy ordered put down,” Feb. 28, 2013

Massachusetts pharmacy issues fertility drug recall

When someone is sick, they put their trust in pharmaceutical companies to provide safe and effective medications for their treatment. However, it is not unheard of for dangerous and defective drugs to reach unsuspecting consumers.

A Massachusetts pharmacy has recalled six fertility medications used for in vitro fertilization. Village Fertility Pharmacy of Waltham Massachusetts issued the recall after discovering a foreign substance floating in a vial. Patients affected by the recall include nearly 2100 women who took Progesterone Injection Cottonseed Oil 50 MG/ML, Progesterone Injection Olive Oil 50 MG/ML, 100 MG/ML, Progesterone Injection Sesame Oil 50 MG/ML, 100 MG/ML, Progesterone Injection Ethyl Oleate 50 MG/ML, 100 MG/ML, Hydroxy Progesterone Caproate 250 MG/ML or Compounded Leuprolide Acetate 1MG/.2ML. It should be noted, however that each patient would have had the medication specially formulated for their needs.

When a company produces a product that turns out to be defective or dangerous, they could find themselves the subject of a product liability lawsuit. Generally, products must adhere to a consumer’s ordinary expectations, free from unanticipated dangers or defects. Potential defendants include any party in the chain of distribution, including manufacturers, wholesalers and retail sellers.

To prevail in a product liability suit, it must be shown that the injury was caused by the defective product and that due to the defect, the product was unreasonably dangerous. There are three possible types of defects: design defects, manufacturing defects and marketing defects. A design defect is some sort of problem originating with the initial design of the product. Manufacturing defects occur when the manufactured product does not meet the designer’s or manufacturer’s intended specifications. Finally, marketing defects could include improper warning labels or unclear instructions. Any of these defects could give rise to a lawsuit.

Dangerous and defective drugs can cause serious harm to patients who consume them. If a patient suffers such an injury, a products liability lawsuit may provide them with the financial compensation they need to assist with their recovery.

Source: WXYZ.com, “Massachusetts pharmacy recalls fertility medications that were shipped to Michigan,” Feb. 25, 2013

Icy sidewalks in Massachusetts cause injuries

Massachusetts law holds property owners liable for maintaining their buildings. Property owners are responsible for maintaining a safe and injury-free environment. To ensure this, homeowners, homeowner associations and businesses are responsible for clearing ice and snow from their sidewalks.

The Inspectional Services Department oversees Boston’s snow-removal rules. According to the commissioner of the department, residents are responsible for their property. If each person helps to clear the snow, it will help prevent accidents. He cautioned residents not to push the ice or snow onto the streets, as it is illegal.

Property owners are also required to clear the area close to the sidewalk, which is at least 42 inches wide. They are required to clear ice and snow within three hours of the ending of a snowstorm. If the storm ends at night, property owners must clear the path within three hours of sunrise. The Inspectional Services Department said that it had received over 600 complaints in connection with icy sidewalks and almost 350 complaints for inadequately cleared sidewalks.

Officials also noted that icy sidewalks may pose a lot of danger to pedestrians. If a person slips on an icy sidewalk, the person may sustain serious injuries. Such accidents may also prove fatal for the victim.

A person injured in a slip-and-fall accident may need medical care and rehabilitation. The person may also undergo pain and suffering due to the fall. The injured person may file a claim against the property owners for compensation, as the liability of maintaining the property, and hence for the accident, rests on the owners. An injured fall victim may claim compensation for medical expenses and pain and suffering. Knowledge of the applicable laws and the assistance of a legal professional may help accident victims pursue a successful claim for damages.

Source: Boston.com, “Boston issues 6,900 parking tickets, tows 650 cars, hands out at least $25,650 in snow removal fines,” Matt Rocheleau, Feb. 12, 2013

Four people injured in Boston two-car accident

Boston police are investigating a recent two-vehicle accident that injured four people in Mattapan. According to investigators, one car traveling across Cummins Highway from Greenfield Road was struck on the driver’s side by another vehicle. The force of the collision rolled the car and it came to rest on its side.

Two 50-year-olds, a 24-year-old, and one other person whose age was not released were taken to local hospitals for treatment. None of the injuries in the car accident were considered life threatening. The crash remains under investigation.

Car accidents have many causes, but among the most common are a driver’s failure to exercise caution or pay complete attention to driving. Even a minor distraction can lead to a fatal car accident. A driver may be texting or using a cell phone, driving under the influence, speeding or driving recklessly. All of these amount to negligence. Negligent drivers can injure and kill themselves and others on the road.

An accident victim may have injuries that require continuous medication and sometimes long and expensive rehabilitation. The person may not be able to work, so medical expenses may mount while the person has no income. An accident can also be devastating for a family, whether or not the victim lives or dies. A family may have to endure emotional trauma along with medicals costs, funeral costs and the loss of economic support.

The person injured in an accident or the surviving family members of someone killed in an accident may file a lawsuit for damages against the negligent driver. Compensation may be sought to cover medical expenses, lost wages and rehabilitation. In the case of a fatality, a family may pursue a wrongful death claim for loss of consortium and other related costs.

Source: My Fox Boston, “Four people injured in Mattapan rollover crash,” Feb 20, 2013