Premises Liability

Caution wet floor sign on floor

Premises Liability Law in Massachusetts: Determining Who’s at Fault

Gravity works and things happen. We all know that, so we aren’t surprised when an injury occurs because of a slip and fall event. Sometimes gravity gets a bit of an assist in slip and fall events, however. This is why landlords and/or tenants are sometimes held responsible under the law of premises liability.

This means that someone falling on a property can blame gravity without question, but blame can also fall to the landlord and/or tenants, depending on the facts of the incident. The wise course of action is obvious: have your personal injury lawyer on speed dial if you’re a landlord or tenant.

Premises Liability Law

“Premises liability” holds the owners of properties and the residents living there liable for accidents occurring on the property. Landlords and tenants may be liable for injuries caused by a slip and fall, or other type of accident, on the premises which you own and/or occupy.

When an incident occurs and legal action begins as a result, one of the first steps is determining who’s at fault for the accident occurring. Under Massachusetts premises liability laws, injured parties can make legal claims for monetary damages if the event occurred as a result of a hazardous defect or situation on your real property.

Anyone who owns property in Massachusetts must maintain that property in a reasonably safe condition for lawful visitors. When an accident happens or a slip and fall incident occurs, certain conditions must apply in order to bring a lawsuit. Anyone filing a lawsuit against a property owner must provide proof that the owner had a duty to provide reasonable care, that the owner breached that duty and that an injury resulted because of it.

That’s not to say that the property owner is automatically faulted when a fall or injury occurs. The law recognizes that a normal part of daily life is occasionally dropping or spilling things. A property owner may not necessarily garner blame for not cleaning up a spill immediately or instantly picking something up. The law also recognizes that grounds shift over time, creating uneven areas that take time to rectify.

Property owners are also not at fault when someone trips or slips on something that an ordinary person could reasonably expect to find there, such as a drainage grate or a concrete parking bumper. These things are an expected encounter in a modern urban area and ordinary people should anticipate their presence, expect to see them and avoid them.

In short, we’re all expected to look where we’re going.

Determining Who’s at Fault

Every state has its own laws and procedures that determine liability when an injury happens. The focus of the law may be on the property, its condition at the time of the incident and the activities of the owner and the injured party. Or, the law may center around the status of the injured person in determining liability.

Determining who is responsible may hinge on one or more of the following:

  • The visitor’s legal status. One of the following labels may be applicable: invitee, licensee, social guest or trespasser.
  • The actions of the visitor and the owner, as well as the condition of the property at the time of the incident.
  • Is the injured party a child or a trespasser?
  • Could “shared fault” rules be applicable in an injury event?
  • Rules specifically governing landlords.

In Massachusetts, the injured party has the option of filing an insurance claim against the property owner’s insurance carrier or taking the case to court by filing a personal injury lawsuit. While there are a number of laws and legal rules in Massachusetts that can impact litigation, there are two main legal points to consider before filing your lawsuit.

First, there is a statute of limitations deadline for filing litigation in a slip and fall occurrence. Meeting this deadline is imperative before moving forward with your case.

Second, Massachusetts has “shared fault” rules. This means a ruling that you bear some amount of responsibility for the accident may impact your right to recover monetary compensation for damages.

Statute of Limitations for Slip and Fall in Massachusetts

The civil court system of Massachusetts puts a limit on the amount of time allowed to pass before you forfeit your right to bring a lawsuit into court. Your personal injury attorneys in Boston or other cities can explain the statute of limitations that applies to your specific type of case.

The important point to understand is that trying to file a slip and fall lawsuit after the statute of limitations deadline date will almost certainly end in a dismissal of your case. The property owner or landlord you’re filing against will be quick to point out to the court that you are past the deadline date. When this happens, expect the property owner’s motion to dismiss to be swiftly granted.

The slip and fall statute of limitations in Massachusetts is the same as most laws governing personal injury cases in general. Massachusetts General Laws Chapter 260 section 2A places a time limit of three years within the date of the incident for filing a slip and fall accident lawsuit.

It is also required that the property owner or landlord receive notice when you intend to pursue a claim under premises liability laws. There is a limit on the time allowed for this. Such notice is generally required within 30 days of the event.

 

Contact us

At the Boston law firm of Colucci Colucci Marcus & Flavin, PC, our attorneys will help our clients recover the maximum possible compensation for their injuries. For a free initial consultation with one of our professional and experienced personal injury lawyers, call (617) 698-6000, or contact us online via our email form.

Not All Falls Are Just Accidents

Falling is a leading cause of accidental death worldwide, and it is a major cause of personal injury. Sometimes, a fall is just an accident, and nothing could have been done to avoid it.  However, that does not mean that one legally can turn a blind eye towards hazardous conditions.

As a general rule, liability for negligence is imposed when a person owes a legal duty to another, and a breach of that duty proximately causes an injury. One such legal duty that is recognized in the common law is the duty of an owner or possessor of land to exercise reasonable care to persons lawfully upon the premises.

That duty includes an obligation to warn visitors of any unreasonable dangers of which the landowner is aware or reasonably should be aware.  Although a landowner is not obligated to warn of open and obvious dangers, that does not mean that a landowner can maintain his or her property in an unreasonably unsafe condition as long as the unsafe condition is open and obvious.  Rather, the landowner’s duty includes an obligation to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.  Even though an open and obvious danger provides its own warning, a landowner is not relieved from remedying that danger where he or she knows or has reason to know that lawful entrants may not heed the warning for a variety of reasons, including their own failure to exercise reasonable care.

For that reason, it is not always apparent whether a fall was just an accident, or whether it could have been avoided. If there is doubt, there is nothing wrong with asking an attorney whether something could have been done to prevent a fall from occurring.

The law firm of Colucci, Colucci, Marcus & Flavin, P.C. has been recognized by Newsweek.com as one of the Top 10 Best Law Firms for Personal Injury in the Country. Attorney Darin Colucci has also been recognized by Newsweek.com for 3 consecutive years as one of the Top 10 Best Personal Injury Attorneys in the Country.

What is Implied Warranty of Habitability?

What is an implied warranty of habitability?

As a tenant, you have a right to a safe, decent, and sanitary place to live. The implied warranty of habitability is a legal duty imposed on residential landlords that a rental unit has to comply with State building and sanitary codes in order for people to live there. If a premises is in violation of these codes, and a tenant is injured, the landlord can be held liable for the injury under this implied warranty. It is not a warranty that can be waived.

Does this warranty extend to guests of tenants?

In Masschusetts, yes. The Supreme Judicial Court ruled in Scott v. Garfield, 454 Mass. 790 (2009), that guests of tenants could recover from landlords if they were injured on the tenant’s rented property.  The Court found in favor of this because, logically, a tenant might invite a guest to his rented home, rented homes must be safe for guests to visit, and landlords have an obligation to maintain a habitable premises for their tenants.

The law firm of Colucci, Colucci, Marcus & Flavin, P.C. has been recognized by Newsweek.com as one of the Top 10 Best Law Firms for Personal Injury in the Country. Attorney Darin Colucci has also been recognized by Newsweek.com for 3 consecutive years as one of the Top 10 Best Personal Injury Attorneys in the Country.

Slip and Fall Cases – The Most Misunderstood Cases

Slip and Fall (Trip and Fall) cases are some of the most misunderstood cases in the world of personal injury law. People often think that if you fall on someone’s property that the property owner is immediately responsible.  Such is definitely not the case.  For any property owner or property maintenance company to be responsible you have to be able to prove that they were negligent in causing the tripping or slipping hazard.  Very often a client will call our firm and say “I fell down a flight of stairs and broke my ankle and needed surgery.”  So you have damages.  The next question we ask is “What caused you to slip?”  If someone says “I don’t know”, there will be no case.

If you have something like this happen, and have the misfortune of slipping and becoming injured, you have to find out what you slipped on.  Often times security cameras will have caught the event.  It makes sense to request that they safeguard any surveillance video that could show the incident. But, if you read this article and can maintain presence of mind despite being injured, you will know to ask whoever you are with to go back and look immediately after the event to see what, if anything, is there.

Very often slip and fall incidents occur in supermarkets.  It would really make or break a case to know what you slipped on.  It could be something as small as a grape or something as large as a quart of milk that spilled on the floor.  In any event, determining what caused you to trip or slip will always be central to the viability of the case.  Conversely, if there was nothing identifiable that caused you to slip or trip, no case exists.

The law firm of Colucci, Colucci, Marcus & Flavin, P.C. has been recognized by Newsweek.com as one of the Top 10 Best Law Firms for Personal Injury in the Country. Attorney Darin Colucci has also been recognized by Newsweek.com for 3 consecutive years as one of the Top 10 Best Personal Injury Attorneys in the Country.

 

 

When Your Lawyer Is Part Of The Problem

Hating lawyers is as American as grass stains on a kid’s blue jeans, but is it justified?

A recent Pew Research Center study reveals that just 18 percent of those polled believe that lawyers make a positive contribution to society. Having practiced myself for nearly 30 years, I know that most lawyers do good work, are reliable, trustworthy and honorable. We’re good people, and we work hard.

There are times, however, when “One Bad Apple” seems to spoil the whole barrel. Our office handles cases against negligent lawyers, many of whom maintain insurance in the event of their malpractice. When a lawyer gets sued for legal malpractice, his or her insurance company customarily selects and pays for counsel to mount a defense to the lawsuit. In this unique instance, both counsel and client are lawyers.

Several years ago we won a jury trial against a negligent lawyer whose insurance company ultimately disclaimed coverage on the grounds that the insured acted intentionally. Insurance, they argued, covers accidents, not intentional acts. Simply put, we proved our case and won the trial but had no source from which we could recover the judgment that the jury had awarded to us. It subsequently came to light that the defendant/lawyer had previously and repeatedly requested that his assigned counsel make an effort to settle the case and thereby avoid the possible personal liability that a jury verdict could impose. These pleas fell on deaf ears, however. The verdict that we ultimately achieved created personal liability for the defendant/lawyer who could ill afford to pay a judgment in excess of $1,000,000. We instituted a new lawsuit against the defendant/lawyer’s counsel under the theory that he did not properly represent the interests of his client, (the lawyer being sued), but rather acted in a manner that was beneficial only to the insurance company, (the entity that selected him and paid his bills throughout the lengthy litigation). Through this new lawsuit, we learned that assigned counsel was so optimistic of his success at trial that he actually (and secretly), urged the insurance company not to settle the case prior to a jury verdict—all in defiance of the wishes of his client, the defendant/lawyer. We ultimately settled this case against the assigned counsel for more than the underlying judgment that we obtained against the original defendant/lawyer.

It’s well settled that a servant can’t serve two masters. The obligation of a lawyer is to his or her client, not the insurance company, (even though the insurance company is solely responsible for paying counsel’s bills). Why is this precept important to you? Because should you get into a routine car accident, your insurance company will select and pay for a lawyer to defend your interests. You want to make sure that whoever is assigned as your counsel acts in your best interests, rather than in the best interests of your insurance company.

Protecting Your Family

If you or someone you know has been hurt because of a negligent property owner, give us a call at 1 (888) 330-6657 or contact us and we can talk to you about your options.

Slip and Fall on Ice – Who is liable?

Slip and fall cases are one of the first scenarios the general public thinks about when they think of a lawsuit. A person walks into a business and slips on a patch of ice in the parking lot and is hurt on impact.

These cases are always premise liability cases, where a personal injury occurred because of a dangerous condition at a physical location.

However, we always stress to our clients that the liable party in a case is not always obvious. There may be multiple potential defendants that could be involved, such as the business where the injury occurred, the owner of the property, or the snow removal company that failed to clear away the ice.

 

Recent Developments

There is some good news for people who were hurt in a winter time slip and fall in Massachusetts: The laws got friendly to plaintiffs a few aears ago and businesses can no longer get away with not touching snow on their property.

Massachusetts used to give property owners a pass for not clearing snow and ice on their property. They would hold businesses liable if the snow and ice had been disturbed, such as with footprints, tire tracks or shovel marks, but anyone who stepped on virgin snow did so at their own risk. This was called “natural accumulation.”

In 2010 the Massachusetts Supreme Judicial Court threw out the natural accumulation rule in the case Papadopoulos v. Target Corp. where a customer of the Target retail store in Danvers fell on a chunk of ice that was near his car. The court opinion stated:

“It is not reasonable for a property owner to leave snow or ice on a walkway where it is reasonable to expect that a hardy New England visitor would choose to risk crossing the snow or ice rather than turn back or attempt an equally or more perilous walk around it.”

Because of that ruling, businesses in Massachusetts are now required to keep the walkways and parking lots around their locations clear of snow and ice for the safety of the public.

 

Protecting Your Family

If you or someone you know has been hurt because of a negligent property owner, give us a call at 1 (888) 330-6657 or contact us and we can talk to you about your options.

 

 

Medical Malpractice – There’s nothing frivolous about being hurt

There’s a general perception by the public that there are a ton of medical malpractice cases that are being brought to court, and many of them are frivolous and are opportunistic attempts to make money. Frankly that isn’t true, and I’ll tell you why.

We handle a lot of medical malpractice cases here at our firm and we vet them very seriously. We probably reject 10 cases for every one that we would accept. Medical malpractice cases require an unbelievable amount of man hours, and unbelievable amount of money to prosecute. We take these cases on a contingent basis, so we’re not asking the clients for an money up front. We’re staking our money in trying to bring this case through litigation, and all the way to a trial if necessary.

The additional safeguard that exists is that medical malpractices are entitled to a tribunal. That is to say, a hearing before a judge, a lawyer and a medical doctor to determine whether a case has sufficient merit to move forward.

That’s why we are very careful about the cases that we take, and to take those cases that we believe has merit and we believe we can actually obtain a recovery for the client. You can reach us at 1 (888) 330-6657 and we’ll be happy to go over your options and let you know what your rights are.

Can you win with a bad lawyer?

We’ve been in existence as a firm for over 20 years, and during that time we have handled every foreseeable type of personal injury case. From regular motor vehicle accidents, construction accidents, and nursing home negligence, to quirky cases where a plane struck a house and injured people while they slept. We represented a poor woman who took medication that was mislabeled for over a month.

One of our attorneys had three tree cases, where someone was cutting down a tree and didn’t know what they were doing and the tree fell and injured someone. In one case, the tree fell and killed a gentleman.

With all of this experience I can tell you this unequivocally, it all comes down to your lawyer. Whether or not you’re going to get compensated, and more importantly, the amount of that compensation, comes down to the skill of the attorney you choose.

For the plaintiffs, it really is simple. They care about only one case: Theirs.

If it’s important to your family and your family’s future, then why take a chance? You want to go with someone who has experience and who has been there before.

With all the experience we have in the building, and having seen all these cases in every format, we feel comfortable with anything that comes in the door. We’re not the only one who say that, find out why Newsweek listed us as one of the top personal injury law firms in the country. Come give us a call at 1 (888) 330-6657 and we’ll be happy to let you know what your options are.

Why so many smoke detectors fail

We’ve come to learn that the smoke detector manufacturers continue to sell ionization smoke detectors. People are simply unaware of the difference, and the fact that if they rely on ionization they may be left with too little time to escape a fire in certain circumstances.

The two types are based upon the technology that operates the alarm mechanism. One is ionization, the other is photoelectric. In a smoldering fire situation where people may be asleep and unaware of the fact that the smoke is building up, a photoelectric will give you approximately, on average, 30 to 33 minutes earlier alarm sounding than an ionization.

The difference between the cost of a photoelectric and an ionization ranges from $2 to $4 per unit.

It’s amazing that that small cost can ensure the safety of your family in a situation where they need an early warning from a smoldering fire that they’re unaware of simply because they are asleep.

We have gathered a team electrical engineers, toxicologists, and experts in the technology of activating smoke alarms so that we’re prepared to handle these types of cases. You can reach us at 1 (888) 330-6657 and we’ll let you know what your options are.

Death of 7 year old Kyzr Willis of Dorchester

We were saddened to read that 7-year-old Kyzr Willis from Dorchester

Wrongful Death Summer Camp in Boston

We were saddened to read that 7-year-old Kyzr Willis from Dorchester recently wandered away from a daycare program only to be found dead hours later.

Having handled these cases in the past I can honestly say that they are nothing short of heart wrenching.

Our firm was recently responsible for handling the case of a 2 year old boy (also from Dorchester) who wandered away from a daycare center and met the same unfortunate fate.  The bitter truth is that these cases should never occur.

There is no reason for any child to slip away from those responsible for their care.  Never …  People are quick to speak badly of lawyers, and there are members of our profession that do harm its overall reputation, but the truth is that only a lawyer will get to the bottom of this situation and hold accountable those responsible.

The only real good that can come out of any tragedy is to shine a light on what went wrong, who is responsible, and to make certain that it never happens again.

Our thoughts and prayers go out to this little boy’s family and friends for their loss.

More information can be found about the case from the Boston Globe.