Negligence

May 14, 2021

Massachusetts Woman’s Claim Against Governmental Entity Fails Due to Lack of Timely Notice

In some types of Massachusetts negligence cases, there are special requirements in addition to the usual steps for filing suit against the allegedly responsible party. For instance, a Cape Cod premises liability case involving a governmental entity may require notice of the accident to be given well before the time that the statute of limitations would otherwise run. If notice is not given, the plaintiff’s case is likely to fail, even if all other requirements are met.

Because of special situations like this, it is very important to talk to a lawyer as soon as possible after an injury caused by another’s neglect, recklessness, or carelessness. An attorney who focuses his or her practice on these types of cases can help you avoid procedural pitfalls that could end your case before you have your day in court.

Facts of the Case

in a recent (unreported) case, the plaintiff was a woman who filed suit against two defendants, a maritime academy and the Commonwealth of Massachusetts, attempting to assert certain claims sounding in tort and contract. According to the plaintiff, she was injured when she fell during a boat ride on the academy’s premises on September 24, 2016. The plaintiff’s attorney sent a letter of presentation to the defendant academy on or about March 10, 2017, purportedly advising the defendant academy of the plaintiff’s claims. The letter was, in turn, forwarded to the defendant academy’s insurance company. After more information was requested, a second, more-detailed letter and settlement demand was sent to the defendant academy’s counsel by the plaintiff’s attorney on August 23, 2017.

May 8, 2021

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

By John C. Manoog III

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.

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 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.

February 21, 2021

Massachusetts Appellate Court Reverses Verdict in Negligence Case Because Insurance Information Was Introduced at Trial

By John C. Manoog III

There’s a secret that insurance companies don’t want you to know. In almost all Cape Cod negligence cases, one or both parties have insurance of some type. For example, in a car accident case, the defendant most likely has a policy of motor vehicle accident liability insurance, and his or her defense is being paid for by that insurance company. If a verdict is entered against him or her, it is the insurance company – not the defendant – that will actually pay out the money for the judgment.

Insurance companies want you to believe this legal fiction because they believe that, if a juror is aware that the verdict will be paid by an insurance company instead of a real person, the juror will be more likely to find in the plaintiff’s favor – and more likely to award a more sizable verdict if they don’t think the defendant will be paying the verdict out of his or her own pocket.

Sometimes, an insurance company may actually be the plaintiff in a lawsuit and still want its identity to be kept secret. For example, if an insurance company pays out a claim, it may then file a subrogation claim against the person or persons who caused the loss. Even then, the insurance company doesn’t want you to know of its involvement in the case because of the fear that such knowledge would taint the outcome against it.

February 7, 2021

Massachusetts Appeals Court Considers Case Involving Injury Caused by Dog Fight

By John C. Manoog III

Landowners and those who own businesses can be held liable for injuries on their property in many instances. Similarly, those who own animals – dogs in particular (although not exclusively) – can also be held accountable for injuries inflicted on others under certain circumstances.

Of course, not every encounter between humans and animals will result in a finding of negligence against the owner of the dog or other animal in a Cape Cod personal injury lawsuit. It all depends upon the particular encounter and whether the pet owner’s negligence contributed to harm to the plaintiff.

In cases in which an animal’s owner is held liable for a person’s injuries from a bite or other harm, the injured individual may be entitled to substantial money damages. This can include medical expenses, lost earnings, and compensation for pain and suffering, among other things.