Cape Cod Injury Lawyer Blog

May 8, 2021

Summary Judgment Reversed in Case of Massachusetts Teen’s Drowning in Swimming Pool

In a Cape Cod premises liability lawsuit, the duty of care that a landowner owes to an individual who comes upon his or her property can vary from case to case. One of the primary considerations is whether the individual had the landowner’s invitation or implied permission to be on the property or whether he or she was a trespasser.

Usually, trespassers are owed a lower duty of care than those who are on another’s property with permission. However, this is not always so.

Facts of the Case

In a recent (unreported) appellate case, the plaintiffs were the administrators of the estate of a 17-year-old high school student who drowned in a swimming pool that belonged to the defendant city. According to the record on appeal, the student was a trespasser and gained access to the pool through the girls locker room (an area in which had no authority to enter). The depth of the water was not marked on the pool, and the student was not able to swim. In their wrongful death lawsuit, the plaintiffs sought compensation based on a theory of negligence and premises liability. The defendant filed a motion seeking summary judgment as to the plaintiffs’ claims against it. The trial court granted the motion, and the plaintiffs appealed.

April 28, 2021

Massachusetts Man’s Pharmaceutical Malpractice Case Following Allergic Reaction to Prescription Drug Dismissed on Summary Judgment

By John C. Manoog III

Under Massachusetts law, a pharmacist or druggist who misfills a prescription can be held liable in a pharmaceutical negligence suit. In such cases, the plaintiff has the burden of proof, and several procedural requirements must be met in order for the plaintiff to prevail. If you or someone in your family has been hurt by the mistake of a drug store or pharmacy, you should talk to a lawyer to learn more about your legal rights. Waiting too long to get legal advice about your case can result in forfeiture of what might otherwise have been a valid and valuable claim for pharmaceutical malpractice.

Facts of the Case

In a recent case initially filed in Massachusetts state court but removed to the United States District Court for the District of Massachusetts, the plaintiff was a man who was prescribed the drug Levaquin for treatment of a head cold. Levaquin is a quinolone antibiotic also known as levofloxacin. When the plaintiff attempted to get his prescription filled at the defendant pharmacy, the pharmacist who was on duty received a “hard stop” warning on his computer indicating that the plaintiff was allergic to quinolones. The pharmacist looked into the matter further and saw that there was conflicting information that included a prior statement by the plaintiff to the effect that he “in fact had no quinolone allergy” and had been prescribed quinolones on multiple occasions in the past. As per the defendant’s policy in such situations, the pharmacist exercised his “individual judgment,” ultimately deciding to go ahead and dispense the Levaquin.

After suffering an allergic reaction to the medication, the plaintiff filed suit in state court, seeking $650,000 in compensation for his injuries. After the defendant removed the case to federal court, it moved for summary judgment. The district court found that the case had been properly removed to federal court based on diversity jurisdiction, despite the defendant’s meager settlement offer of $5,000. The court also agreed with the defendant that it was entitled to summary judgment on the plaintiff’s claims for negligence, breach of warranty, and unfair or deceptive practices in violation of Massachusetts General. The plaintiff sought appellate review.
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April 22, 2021

Massachusetts Court Addresses Issue of Whether Lead Inspector Owed Duty of Care to Child Who Lived in Property 20 Years After Inspection

By John C. Manoog III

Timeliness can be an important issue in a Cape Cod negligence case. Typically, cases not filed within the applicable statute of limitations and/or statute of repose will be dismissed unless the circumstances fall within some very narrow exception to the general rule.

Sometimes, time can also factor into other issues in a given case, including the determination of whether a duty to a particular plaintiff existed. If the passage of time was such that the defendant did not owe a duty of care to the plaintiff, then the case will be subject to dismissal.

Facts of the Case

In a recent negligence case considered on appeal, the plaintiff was a minor child, suing through his mother as next friend. The plaintiff’s suit attempted to assert claims for both negligence and violation of Massachusetts Gen. Law ch. 93A against the defendant lead inspector, but the defendant filed a motion to dismiss the plaintiff case, arguing that the claims were not viable. Although the defendant admitted that he had, in fact, performed a lead inspection on the property at issue, he pointed out that the plaintiff had not become a tenant at the property until some 20 years after the inspection.

April 14, 2021

Massachusetts Ironworker Who Was Physically Capable of Minimum Wage, Unskilled Work Was Not Permanently Disabled for Purposes of Workers’ Compensation

By John C. Manoog III

In a Cape Cod workers’ compensation case, one of the most important issues is whether the worker (or “claimant”) has suffered a permanent physical impairment due to an on-the-job accident or a work-related illness. If so, the next inquiry is usually whether the impairment is such that the worker cannot return to work as a result.

The question of whether the claimant can return to work involves more than the issue of whether the injured individual can go back to the same job that he or she held at the time of the event giving rise to his or her permanent physical impairment. Rather, the question is whether he or she can return to any type of job at all – even one that he or she has never done before.

Of course, this doesn’t mean that a person who has done nothing but hard physical labor will be expected to shift into a desk job for which he lacks the requisite education and training. These matters, too, are taken into consideration. A recent case involved a related question, i.e. whether a skilled worker was totally disabled if he could still perform low-paying unskilled work.

April 9, 2021

Defense Verdict in Parking Lot Slip and Fall Case Affirmed by Massachusetts Appeals Court

By John C. Manoog III

In a Cape Cod premises liability case, evidence regarding the accident scene can be crucially important. Without photographs or video surveillance of the place where the accident happened, it can be difficult for the plaintiff to convince the jury that the landowner was negligent in creating the dangerous condition that caused the accident or, if a third party caused the situation, in allowing the condition to persist past the time that a reasonable property owner would have noticed and corrected the issue(s).

Of course, not every piece of evidence is as reliable as it might first appear. There is technology available that can alter the appearance of both photographs and videos, a fact to which anyone who has skimmed through a fashion magazine can attest.

The case described below dealt with a situation in which the image shown in the photograph was real; it accurately reflected the scene at the time it was taken. However, there may have been a discrepancy regarding when the party offering the photographs into evidence said the picture was taken and when it was actually taken.

March 28, 2021

Federal District Court Applies Massachusetts Law to Deny Summary Judgment in Negligent Entrustment Case

By John C. Manoog III

Having an insurance policy that covers accidents caused by uninsured or underinsured motorists is important. Without such coverage, it is extremely difficult – often impossible – to receive fair compensation for personal injuries or a wrongful death caused by a driver who either doesn’t have insurance at all or who has only minimum coverage.

Unfortunately, simply having “UM/UIM” (as it is called in the insurance industry) does not mean that there will not be protracted litigation before the case is finally settled. Consequently, it is important to consult an attorney if you have been involved in a Cape Cod car accident, even if you have uninsured/underinsured motorist coverage in place.

Facts of the Case

In a case recently considered by a federal district court sitting in Massachusetts, the plaintiff was an insurance company, acting as the subrogee of its insured (who was covered by an uninsured/underinsured motorist insurance policy), who was involved in a car accident in 2016. According to the plaintiff’s complaint, the accident was caused by the negligence of the defendant motorist, who was allegedly issued a citation for failure to yield the right-of-way to the plaintiff’s insured. At the time of the crash, the motorist was driving an automobile owned by her father-in-law, the defendant vehicle owner. The plaintiff alleged that the vehicle owner had negligently entrusted the automobile to the defendant motorist and that this negligence had contributed to the cause of the accident. The defendant vehicle owner filed a motion for summary judgment.

March 23, 2021

Massachusetts Appeals Court Affirms Jury Verdict in Favor of Injured Restaurant Patron, Despite Argument that Condition Was Open and Obvious

By John C. Manoog III

One of the more common defenses in a Cape Cod premises liability lawsuit is an assertion by the defendant that the condition was so open and obvious that any reasonable person would have noticed it and avoided it. Of course, each case must stand on its own facts when it comes to such matters.

Even if a particular case involves a condition that was arguably open and obvious, the case will not necessarily be futile. Liability may still be had in a case against a premises owner under some circumstances.

Facts of the Case

In a recent case was the personal representative of the estate of a customer who sustained serious personal injuries when she fell down an unmarked step in the defendant restaurant’s dining room. The customer filed a personal injury lawsuit against the restaurant, alleging that its negligence had been the proximate cause of her fall. The case was tried to a jury and resulted in a verdict in favor of the customer. (Some time after the trial, the customer apparently died, and the personal representative of her estate was substituted as plaintiff.) The restaurant filed an appeal, seeking review of case and asserting numerous errors.

March 16, 2021

Defendant Had No Reasonable Expectation of Privacy in Basement of Multifamily Home in Which He Did Not Live, Says Massachusetts Appeals Court

By John C. Manoog III

Many times, the resolution of a Cape Cod criminal case revolves around the issue of whether certain evidence was unlawfully obtained by police. If a court rules that a particular search or seizure was in violation of the law, the evidence may be suppressed at trial.

When evidence is suppressed, it cannot be used to support a conviction against the defendant. Without crucial evidence, the Commonwealth’s case may be much weaker. Charges may be reduced or, sometimes, even dropped.

If the defendant loses his or her motion to suppress evidence at the trial court level and is convicted, he or she can file an appeal. When this happens, the appellate tribunal will review the trial court’s decision to determine whether a reversible error of law was made. If the reviewing court does so hold, it is possible that the defendant’s conviction may be reversed.

March 5, 2021

Massachusetts Supreme Judicial Court Holds that Traditional “But-For” Causation Is the Appropriate Standard in Most Negligence Cases

By John C. Manoog III

Causation is one of the essential requirements in proving a case of negligence in a Cape Cod personal injury lawsuit. Without the element of causation, a defendant’s breach of a duty of care toward the plaintiff will not result in a finding of liability, even if the plaintiff can prove substantial damages.

It works like this: the plaintiff must be able to prove, by a preponderance of the evidence, not only that he or she was owed a duty of care, that this duty was breached, and that he or she suffered harm but also that his or her damages were caused by the defendant’s actions or in actions. However, “cause” or “causation” is a term of art in the world of negligence law. Something can be the actual cause of harm without necessarily being the legal cause of such damages.

Public policy factors into the development of this area of the law. Would it be wise to hold a defendant liable for a “freak accident,” even if, technically, his or her breach of duty resulted in damages to the plaintiff? Probably not. Somewhere between such occurrences and conduct that is so likely to result in harm as to be considered intentional – and possibly subject to punitive damages – lies the type of conduct that the principles of negligence are designed to govern.

February 25, 2021

Massachusetts Appeals Court Affirms $0 Verdict in Medical Malpractice Case Alleging a Delayed Cancer Diagnosis

By John C. Manoog III

In a Cape Cod medical malpractice case, the plaintiff has the burden of proving not only that the defendant healthcare professional breached the standard of care that applied to the situation at hand but also that this breach of care was the proximate cause of the damages about which the plaintiff complains. Sometimes, damages are readily apparent, and the real fight is about whether there was negligent care. However, this is not always so.

Sometimes, a mistake was obviously made, but the doctor insists that his or her error did not harm the patient in any meaningful way. This argument is especially prevalent in cases involving a missed diagnosis.

In such cases, the plaintiff believes that, had a proper diagnosis been made in a timely fashion, he or she would have had more treatment options and/or a better outcome of the illness that the doctor somehow missed. In turn, the physician is likely to claim that the illness – and the ultimate result thereof – was bound to happen anyway, such that his or her mistake should not result in monetary compensation to the patient or his or her family.