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Maintaining a personal injury or wrongful death claim against a governmental entity can be difficult. In fact, there was once a time in which such claims were not allowed under the law. Nowadays, however, a Cape Cod personal injury lawsuit against the government may be possible in some situations, although it can be expected that the government will attempt to get the case dismissed, if at all possible. Even if the claim survives a motion to dismiss, there may be limitations on the amount of damages available to the plaintiff for his or her injuries. There may also be other procedural hurdles, including the requirement of formal notice within a relatively short period after the accident.

Facts of the Case

In a recent Massachusetts Appeals Court case, the plaintiffs were a mother, father, and minor child who sought compensation from the defendant, a state child services department, for injuries suffered by the minor child due sexual assault by a foster child whom the family had taken in. Although the placement was supposed to be short-term, the defendant left the foster child (a 12-year-old boy) in the plaintiff foster parents’ care for several months. Unbeknownst to the plaintiffs – but known by the defendant – the foster child had a history of both having been sexually abused himself and also being the perpetrator of sexual abuse.

After the minor child (a 5-year-old girl) disclosed that the foster child had sexually assaulted her, the plaintiffs filed suit against the defendant, claiming that the defendant had been negligent in placing the foster child with them and that the defendant had breached a contractual agreement under which the defendant had agreed to provide the plaintiffs with “sufficient information” about any proposed foster child to enable them to knowledgeably determine whether to accept the child.

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Cape Cod work injuries are common. In order to receive the benefits to which he or she is entitled, the injured employee must take several proactive steps. First and foremost, the worker must give the employee notice of the accident, injury, or work-related illness. A formal claim must also be filed within a set period of time. Having an attorney handle this aspect of the case is wise. After all, the employer and its insurance company are routinely engaged in such matters, and a worker who may be filing a claim for the first time can be at a substantial disadvantage.

Facts of the Case

In a recent case considered by the Massachusetts Supreme Judicial Court, the plaintiff was a woman who had filed a workers’ compensation claim some years prior. Her claim eventually proceeded to a hearing before the Massachusetts Department of Industrial Accidents, which approved a “lump sum agreement” in 2016. Almost two years later, the plaintiff filed a motion asking that she be granted an extension of time in which to file an appeal from the agreement previously approved by the department. An administrative law judge denied the plaintiff’s motion for an extension of time in which to appeal, as well as her motion for reconsideration.

The plaintiff then filed a notice of appeal in the Massachusetts Appeals Court, seeking review of the administrative law judge’s orders denying her motions. The court (through a single justice) treated the plaintiff’s “notice of appeal” as a motion for leave to file a late notice of appeal and denied the plaintiff’s request. The plaintiff then filed documents in a county court, seeking review pursuant to Massachusetts General Laws ch. 211, § 3. The plaintiff’s efforts to have her case reviewed by that tribunal were likewise unsuccessful.

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A great number of Cape Cod criminal cases revolve around the issue of whether evidence that the government seeks to introduce at the trial of the case was legally obtained. The defendant may argue that a particular search was violative of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures. If the court agrees that police violated the defendant’s constitutional rights with regard to a certain search, the evidence obtained through that illegal search must be excluded from the jury’s consideration because it is the “fruit” of the “poisonous tree.” Without the evidence that can no longer be submitted at trial, the government’s case against the defendant may be much weaker, or perhaps non-existent.

Facts of the Case

In a recent case, the defendant was arrested on a drug trafficking charge. He filed a motion to suppress evidence found in his vehicle by police, insisting that the evidence was the fruit of an illegal search. According to the defendant, the exit order given to him by the police officer who stopped him was illegal, and thus the evidence found by the officer after the defendant stepped out of the vehicle should have been excluded. The trial court denied the defendant’s motion to suppress, and he appealed to the intermediate appellate court. That court reversed the lower tribunal’s denial of the defendant’s motion. The Commonwealth sought further review from the state’s highest court.

Decision of the Court

The Massachusetts Supreme Judicial Court affirmed the court of appeals’ reversal of the trial court’s order denying the defendant’s motion to suppress, holding that exit order was not lawfully issued and that, therefore, the evidence obtained by the search should have been suppressed as the fruit of the poisonous tree.

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If you have a potential negligence claim against an individual, business, or entity of the government, it is very important to remember that Cape Cod personal injury, wrongful death, and property damage claims can be subject to both a statute of limitations and a statute of repose.

The difference between these two limitations periods is significant. A statute of limitations gives the accident victim a certain amount of time, typically calculated from the date of the accident or sometimes from the date that the injury is discovered, in which to formally file a lawsuit. (Sometimes, formal notice is also required, especially for claims against the government.) In contrast, the statute of repose may be tied to an independent event not related to the actual accident or discovery of harm, thus rendering a claim time-barred before it even happens.

The Factual Background

In a recent case, the plaintiff was the insurer of a building that sustained extensive damage due to a natural gas fire. Acting as subrogee of the building owner, the plaintiff filed suit against the defendant natural gas supplier, asserting that the defendant had been negligent in failing to detect or correct problems associated with the installation of natural gas into the building that had burned.

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Although you might not realize it if you were watching a Cape Cod personal injury case play out in a court room, the vast majority of negligence claims are actually paid by an insurance company, not the defendant himself or herself. Many negligence cases are settled out of court, but, even if a particular case proceeds to a jury trial, it is usually the defendant’s insurance company – not the defendant – who writes the check that satisfies the verdict.

Thus, the actual defendant typically does not have a say in the amount of the settlement or even input as to whether there will be a settlement. The insurance company bears the ultimately financial obligation, so the insurance company controls most of the litigation.

There are some special cases, however, in which the defendant has more of say in the matter. While it all depends on the language in the insurance contract, it is more often a “professional” defendant – such as doctor, lawyer, or engineer, whose professional reputation or even licensure could be affected by an admission of liability – who has an active role in a negligence lawsuit.

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Under Massachusetts law, contributory negligence does not necessarily bar recovery of monetary compensation for damages suffered in a car accident. Generally speaking, this means that being “a little at fault” in causing a crash does not prevent an injured person from filing suit to recover compensation for lost wages, medical expenses, and pain and suffering caused by the collision. (It should be noted that the plaintiff’s recovery will be reduced by his or her percentage of fault in the crash.)

However, if the injured person’s fault was greater than the amount of negligence attributable to the opposing party, the injured person cannot recover any money damages from the other driver. This rule is known as the “modified comparative fault rule.” Additionally, an automobile accident insurance company may opt to impose a surcharge on an insured who is found to be more than 50% at fault in causing an accident. This is yet another reason to seek legal counsel following a Cape Cod car accident, especially one in which it was not clear who was at fault.

Facts of the Case

In a recent case, the appellant was a man who appealed a lower court’s judgment affirming a state board of appeal’s decision in favor of the appellee’s insurer with regard an insurance surcharge imposed on the appellant following an automobile accident. The appellant insisted that that the board (the Massachusetts Board of Appeal on Motor Vehicle Liability Policies and Bonds) had erred in upholding the insurer’s decision to impose a surcharge because, in the appellant’s view, he was not “more than 50% at fault” as the board had determined.

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In a Cape Cod personal injury lawsuit, the essential question is, did the defendant behave in a reasonably prudent manner under the circumstances? These types of cases can be very fact-specific, as what constitutes “reasonable” can vary substantially from situation to situation.

For example, generally speaking, it would not be considered reasonable to run into another person with the intent of knocking an object out of his or her possession. However, the same conduct might be considered acceptable within the confines of two teams playing a rough sport – hockey, for example. Still, even in a game, there are situations in which a negligence or recklessness claim may be viable. As stated above, it all depends on the circumstances.

Facts of the Case

In a recent Massachusetts appeals court case, the plaintiff was a hockey player who brought suit against the defendants (the plaintiff’s coach, a player on an opposing team, the opposing team’s coach, two referees, and others), seeking monetary compensation for injuries he allegedly incurred while participating in a hockey game. Both the plaintiff and the opposing player whose blades allegedly cut the plaintiff’s wrist during the game were 17 years old at the time of the incident giving rise to the litigation.

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The defendant in a Massachusetts drunk driving case has certain constitutional rights. One of these rights in the Fourth Amendment right to be free from unreasonable searches and seizures. Generally speaking, this means that an officer of the law must either obtain the defendant’s consent or secure a search warrant in order to obtain certain types of evidence. However, there are some exceptions to this general rule, such situations involving exigent circumstances. With regard to the issue of consent, there can be substantial disagreement as to whether a particular individual’s “consent” was voluntary under the circumstances (only “voluntary” consent excuses an officer’s failure to obtain a warrant, unless an exception applies) and, if there truly was voluntary consent, the extent of that consent.

Facts of the Case

In a case recently considered by the Massachusetts Appeals Court, the defendant was a man who was involved in a car crash that rendered him unconscious. He was extracted from his car and taken to the hospital via ambulance. An officer placed him under arrest for operating while under the influence of alcohol and administered his Miranda warnings to him. The defendant admitted that he had been drinking and gave consent for a “chemical test to determine [his] blood alcohol concentration.” After a blood test was administered, confirming that the defendant was under the influence of alcohol, he was prosecuted for drunk driving.

The defendant filed a motion to suppress the results of the blood tests. The trial court denied the motion, as well as his motion for reconsideration. The defendant then entered a conditional plea, wherein he admitted facts sufficient for a finding of guilty while appealing the trial court’s denial of his motion to suppress.

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When a Cape Cod personal injury lawsuit is filed against a defendant that is a governmental entity, there is often a defense that the entity is immune from suit based on the principles of governmental tort immunity. Of course, this defense is not always successful, as there are many situations in which the government can be sued, and a judgment can be entered. Resolution of the issue of whether or not immunity applies is typically handled by motion practice in the trial court, sometimes with interlocutory review by the appellate court if an appeal is filed by the party aggrieved by the trial court’s decision.

Facts of the Case

In a recent Massachusetts Appeals Court case (unreported), the plaintiff was a man who suffered a closed head injury and bilateral leg amputations after falling onto subway tracks (owned and maintained by the defendant transportation authority) and being struck by a train. He filed a personal injury lawsuit against the defendant, averring that the defendant was negligent in failing to adequately staff the station with a safety inspector or a customer service agent (CSA) on the day the accident occurred.

The defendant sought summary judgment, arguing (among other things) that it was immune from liability for the plaintiff’s failure-to-staff claim, citing the discretionary function exception contained in Massachusetts General Laws ch. 258, § 10(b). The trial court denied the defendant’s motion, and the defendant filed an interlocutory appeal of the denial of its motion under the doctrine of present execution.

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In a Cape Cod personal injury case, the plaintiff has the burden of proving four elements, each by a preponderance of the evidence. These elements include duty, breach of duty, damages, and causation. Once these elements have been proven, it is up to the jury to determine the amount of money damages to which the plaintiff is entitled in compensation for his or her injuries.

Along the way, both the plaintiff and the defendant are bound by certain rules regarding the admissibility of evidence and the civil procedures to be used. If an overzealous legal advocate runs afoul of these rules, it is up to the trial court judge – and ultimately the appeals courts, if further review is taken – to decide whether a new trial is warranted under the circumstances. As was reiterated in a recent case, the question is not merely whether there was wrongdoing by an attorney at trial but, rather, whether the misconduct had such an effect on the jury that a mistrial was required.

Facts of the Case

In a recent case considered on appeal by the Massachusetts Appeals Court, the plaintiff was a woman who suffered a broken tooth while eating a fast food hamburger in 2011. After determining that there had been a bone fragment in the burger, the plaintiff filed suit against the defendants, the restaurant where the hamburger was purchased and the company that supplied beef to the restaurant, seeking compensation for the injury to her tooth (which had required nearly two dozen trips to the dentist over a two-year period to resolve).

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