Cape Cod Injury Lawyer Blog

June 26, 2020

Federal District Court in Massachusetts Is Called Upon to Determine Proper Forum for Cross-Claims in Products Liability Lawsuit

In a Cape Cod products liability case, there are likely to be several defendants. This is because several different parties in the chain of distribution – from the manufacturer to the wholesale distributor to the retailer – can potentially be liable to the plaintiff.

While it might seem simpler to name only a single defendant, this is rarely wise. Naming multiple defendants can help ensure that the plaintiff ultimately receives what he or she is due if there is a favorable judgment, even if one or more of the defendants proves to be insolvent or has limited resources for satisfying the plaintiff’s claim.

When there are several defendants, each of whom could potentially be held liable for a plaintiff’s personal injuries, it is not unusual for there to be cross-claims between the defendants as each attempts to limit its own monetary outlay to the plaintiff. Experienced product injury lawyers are well-acquainted with these tactics and understand that this “infighting” between the defendants cannot stand in the way of the injured party’s quest for justice.

June 22, 2020

Massachusetts Appeals Court Agrees with Lower Tribunal That Moving Company Could Not Be Held Liable for Employee’s After-Hours Sexual Assault on Non-Customer

By John C. Manoog III

There are four things that must be proven in a Cape Cod negligence case: duty, breach of duty, damages, and causation. “Duty” means that the plaintiff has to show that the defendant had an obligation to either act in a certain manner or refrain from acting in a particular way. “Breach of duty” occurs when the defendant failed to perform the action(s) required by the duty he or she had to the plaintiff or when the plaintiff performed an action that he or she should not have, given the duty. For example, drivers owe one another a duty to keep a proper lookout while driving. If a driver is looking down to read a text, he or she has likely breached this duty. If you’ve been injured and believe another person may be responsible, discussing the details of the incident with a Cape Cod personal injury lawyer is a good idea.

Not every breach of duty results in a finding of liability, however. This is because there must also be proof of damages (such as physical injury) and proximate causation. The question of proximate causation is more than a simple “someone breached a duty and someone else got hurt” proposition. Rather, the harm that befell the plaintiff must have been a foreseeable result of the breach of duty.

Sometimes, a defendant may have blatantly breached a duty of some sort but still not be held liable for a plaintiff’s injuries. This is because, in the court’s view (or in the jury’s view, if the case proceeds to trial) the harm that resulted was beyond that which a reasonable person would have foreseen at the time that the defendant acted (or failed to act).

June 12, 2020

Massachusetts Appeals Court Discusses Duties Owed – and Not Owed – Directly to a Parent Whose Child is Being Treated by a Healthcare Professional

By John C. Manoog III

Being the victim of professional malpractice can be doubly difficult. First, there is the harm caused by a negligent Cape Cod doctor, nurse, or other provider. This alone can be substantial, expensive to rectify (if this is even possible), and life-altering.

Then, there is the emotional difficulty of accepting that someone you trusted to help you was actually the person or entity that caused the harm. The idea of confronting a careless medical professional in a court of law can be daunting, and, truth told, can even dissuade some would-be litigants from seeking compensation for what has happened to them.

However, this only serves to give the negligent provider a “free pass” to continue such conduct in the future, possibly leading to additional patient harm or even death. If you find yourself as the victim of medical malpractice, it is important to consult a Cape Cod medical malpractice attorney who can explain your legal rights, the process of filing a claim, and the procedure necessary in order to seek fair compensation for your injuries.

June 8, 2020

Massachusetts Appellate Court Refuses to Set Aside Arbitration Award in Car Accident Case

By John C. Manoog III

While the right to a trial-by-jury in a Cape Cod car accident case is very important, there are sometimes occasions when the parties to such a matter may opt to submit their dispute to arbitration rather than move forward with a traditional trial. Like other kinds of alternative dispute resolution such as mediation, arbitration takes the case away from the consideration of a traditional judge and jury and places decision-making into the hands of one or more neutral persons.

In such a situation, there may be a single arbitrator, or there may be several. The result of the arbitration may be binding or non-binding (although, typically, “arbitration tends to be binding, while “mediation” tends to be non-binding).

Arbitration can sometimes be mandatory (such as when someone has signed an agreement to arbitrate all claims prior to the accident or event at issue). Arbitration can also be entered into by the agreement of the parties when all sides believe that it is the most fair and effective means of resolving the issues in a particular case.

May 27, 2020

Massachusetts Was More Convenient Forum in Federal Case Involving Grocery Store Slip and Fall

By John C. Manoog III

Ideally, the outcome of a Cape Cod premises liability or personal injury case would be the same regardless of whether it went to trial in a state court or a federal court, before a jury or just a judge, or in the city or in a small town. Justice is justice, right?

Unfortunately, the court system is far from perfect, and there can be differences in the outcome of a given case based on these and other factors. Because of this, the plaintiff in a case may choose to file his case in one venue rather than another – if there is a potential choice about such matters, given the facts. Defendants, too, sometime engage in “forum shopping” of sorts by seeking removal of a state case to federal court or transferal of a federal case from one district to another.

Facts of the Case

The plaintiff in a recent slip and fall negligence case was a man who alleged that he was injured when he slipped on a “wet, dangerous, and hazardous condition” located on the floor of a Massachusetts grocery store. He filed suit against the defendant store owners in a New Jersey state court in late 2019, seeking fair compensation for his medical expenses and associated damages resulting from the fall. The defendants removed the case to a federal court located in New Jersey based on diversity of citizenship.

May 20, 2020

Trial Court Should Have Suppressed Evidence Obtained During Warrantless Seizure of Massachusetts Man’s Cell Phones

By John C. Manoog III

Questions concerning the legality of searches and seizures can play heavily in the resolution of a Cape Cod criminal defense case. With appropriate legal representation, it is sometimes possible to get potentially incriminating evidence excluded from the jury’s consideration at trial.

Without this evidence, the Commonwealth’s case may quickly fall apart. This can result in a plea bargain on lesser charges, or, in some cases, in outright dismissal of the case. Of course, the Commonwealth will usually fight hard against such a result, so it is important that the defendant be represented by an attorney well-versed in this area of the law.

Facts of the Case

In a recent case, the defendant was arrested on numerous drug charges in 2009. He filed a motion to suppress certain evidence concerning calls made to his cell phones – and intercepted by police while he was in custody – relating to the possible sale of illegal substances. The trial court denied the defendant’s motion, and he was convicted on multiple charges. He appealed, seeking relief from his convictions.

May 14, 2020

Massachusetts Appellate Court Affirms Dismissal of Medical Malpractice Litigant’s Case for Failure to Prosecute

By John C. Manoog III

Cape Cod medical malpractice cases have some special requirements that other types of negligence cases do not. One of these is the filing of an offer of proof that is presented to a three-person tribunal that will determine whether the plaintiff has enough evidence to raise a legitimate question as to the defendant(s)’ liability for harm caused by medical negligence.

If the tribunal answers the question in the affirmative, the case proceeds to the next phase of litigation in the same manner that a non-medical tort case would. If the tribunal does not find that the plaintiff has presented substantial evidence of liability, however, the case is not necessarily over.

At that point, the plaintiff has the option of posting a bond to cover certain defense costs if he or she does not prevail in the litigation. The court has some flexibility as to the amount of the bond, and the parties may argue that it be adjusted upward or downward from the “usual” amount of $6000.

May 7, 2020

Massachusetts Appeals Court Reverses and Remands in Case in Which Defendant Alleged There Was a Settlement but the Plaintiff Disagreed

By John C. Manoog III

Many Cape Cod personal injury cases settle outside of court. Some claims settle before a lawsuit has been filed, some suits settle after the discovery phase has been completed, and some cases literally settle on the front steps of the courthouse. In most situations, the parties agree that the case has been settled, paperwork is drawn up, and the defendant pays the plaintiff the monetary amount that has been agreed upon. Sometimes, however, a dispute arises as to whether a “meeting of the minds” has truly been had – such as recently happened in a case involving multiple plaintiffs who were seeking recovery against the same defendant.

Facts of the Case

In a recent unreported case, the plaintiff was apparently a litigant or a would-be litigant in a personal injury case that involved her sister and the defendant. (The circumstances of the case are not explained in the court’s opinion.) The plaintiff’s sister allegedly settled her claim against the defendant. The plaintiff, however, alleged that she did not authorize an attorney to settle her claim; rather, according to the plaintiff’s response to the defendant’s motion to enforce the purported settlement agreement, the plaintiff’s attorney sent an email to the defendant’s attorney to formally reject the offer that had been made.

The trial court judge granted the defendant’s motion to enforce the settlement that he alleged the plaintiff had entered into. The plaintiff appealed, seeking review of the appellate court.

April 28, 2020

Summary Judgment to Plaintiff is Dog Bite Case Affirmed by Massachusetts Appeals Court

By John C. Manoog III

Those who own animals that cause serious injury to others by biting them or otherwise attacking them can be held liable for medical expenses, lost earnings, and other damages. Of course, there are some limitations on this general rule. For instance, if the bite or attack came as a result of the plaintiff provoking the animal in some manner, the owner may not be liable for the plaintiff’s injuries. Often, Cape Cod dog bite cases come down to a factual dispute that must be resolved by the trier of fact. Sometimes, however, dog bite cases can be handled though the pre-trial summary judgment process.

Facts of the Case

The plaintiff in a recent (unreported) case was a man who was bitten by a dog owned by the defendant. Seeking monetary compensation for serious injuries he allegedly received in the incident, the plaintiff filed suit against the defendant pursuant to Massachusetts General Law ch. 140, § 155. In his suit, the plaintiff stated claims for both negligence and strict liability, alleging that, at the time that he was bitten, he was not “teasing, tormenting, or abusing” the dog but, rather, had merely leaned down to pet the animal. The defendant’s unsigned answers to interrogatories asserted that the plaintiff had awoken the dog from sleep, stepped on its tail, and swung a heavy medallion at the dog.

The trial court granted summary judgment to the plaintiff. The defendant sought reconsideration, but the trial court did not change its earlier ruling in the plaintiff’s favor. The defendant appealed.

April 21, 2020

Massachusetts Appeals Court Affirms Dismissal of Car Accident Case Against City Due to Lack of Presentment of Claim

By John C. Manoog III

Most Cape Cod car accident lawsuits are filed by an individual, couple, or family against a motorist whose careless conduct led to injury or death. Sometimes, however, there are other possible defendants in such cases.

If the allegedly negligent driver was acting in the course and scope of his or her employment at the time that the motor vehicle collision occurred, the driver’s employer may be named as a defendant. In some situations, a governmental entity may be a defendant in a personal injury case – particularly in cases in which a city employee’s allegedly negligent driving led to an accident. Lawsuits against the government often have special requirements, so it is important to talk to a lawyer as soon as possible if you or a loved one has been hurt in a crash caused by someone employed by a local or state government who was on the job at the time of the accident.

Facts of the Case

In a recent unreported case, the plaintiff was a woman who sued the defendant city and a police officer whom it employed, asserting a claim for personal injuries she sustained due to the officer’s allegedly negligent operation of a motor vehicle. After filing her initial complaint against both the officer and the city, the plaintiff opted to file an amended complaint in which only the city was named as a defendant. In turn, the defendant city filed a pre-answer motion pursuant to Massachusetts Rule of Civil Procedure 12(b)(6) asking the trial court to dismiss the plaintiff’s complaint for failure to state a claim.