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Articles Posted in Negligence

elderly woman's handsMany civil lawsuits are filed each year in the state and federal courts – far too many to be handled efficiently by the court system if a full-blown trial is required in every case. For this and other reasons, settlements are highly encouraged.

Under Mass. Gen. Laws ch. 176D, § 3(9)(f), an insurance company has a legal obligation to effectuate a “prompt, fair, and equitable settlement” of claims in which liability is clear. When this does not happen, Mass. Gen. Laws ch. 93A, § 9 allows the person whose rights were affected by the violation of the law to bring a civil action against the insurance company to recover damages.

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police dogPolice dogs are used by many law enforcement agencies across the country to assist officers as they search for drugs, locate missing individuals, and, sometimes, help apprehend suspects who attempt to flee the scene after being arrested.

Just as human officers can occasionally make mistakes, so, too, can K-9 officers. When this happens, should an innocent person who is injured by the dog’s error have the right to sue the government for damages?

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bulldogA liability insurance policy is, at its essence, a contract. In determining whether to enter into the agreement, an insurance company is entitled to rely on certain representations made by the would-be insured and to price its product accordingly.

Once the agreement is made, the insured has the right to demand that the insurance company defend him or her against any claims that are covered under the policy and pay any judgments (up to the policy limits) resulting from such claims.

A recent case explored the issue of whether a particular misrepresentation by the insureds during the application process was sufficient for the insurance company to later void the policy and deny coverage of a claim that would otherwise be covered.

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ladderWhen a person is hurt on another person’s property, he or she has a right to seek compensation through a premises liability lawsuit. Of course, just as in any negligence case, the burden of proof is on the plaintiff to prove that the defendant owed him or her a duty of care, that the duty of care was breached, that the plaintiff was harmed, and that there was a link of causation between the harm and the breached duty.

In proving his or her case, the plaintiff may introduce several types of evidence, including physical evidence, if applicable. In a recent case, an injured man sought sanctions against the defendant homeowners for their alleged destruction of a ladder that he alleged caused him to fall. He also sought the reversal of an order of summary judgment entered in the defendants’ favor.

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peanutSometimes, it’s hard to know whose side to take. In a recent case between a teacher and a town that had allegedly breached its agreement to “eradicate any and all records” with regard to an accusation that the teacher had recklessly exposed a child to an allergen, the court came down on the side of the teacher, agreeing with her that she was the wronged party when the town released an investigative report to the child’s father, who turned the report over to the authorities.

However, when one considers the case from the perspective of the child and her father, things are not so clear. While the criminal charge against the teacher was ultimately dismissed, one wonders whether a civil tort action would have been likewise dismissed, had the family chosen to pursue that course rather than a criminal charge.

Had the town held to its agreement to, in effect, destroy the evidence of the complaint against the teacher, how would this have affected discovery in a civil lawsuit seeking compensation for injuries suffered by the child (if injuries could, in fact, have been proven)?

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city bus

Most people are aware that there are deadlines for the filing of a lawsuit in a personal injury case. However, simply filing suit within the statute of limitations does not guarantee that a case will be considered in compliance with all rules pertaining to timeliness.

There may also be a statute of repose or – particularly in cases in which the defendant is a governmental entity – a notice requirement that is separate from the statute of limitations. A failure to give notice in a timely fashion can be just as detrimental to the plaintiff’s cause of action as missing the statute of limitations.

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City BusWhile an insurance company is not obligated to settle every liability action that is filed against one of its insureds, those in the insurance industry do have certain obligations when it comes to the fair handling of claims.

A failure to comply with the law in this regard can result in substantial penalties being levied against an insurance company, including treble damages. The exact calculation of such penalties was the subject of a recent appellate court opinion.

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Connections

Before a court can exercise jurisdiction over a defendant in a lawsuit, there must be personal jurisdiction – either general or specific.

General jurisdiction is much broader, subjecting a defendant to suit in the forum state in all matters, even those that have no direct relationship to the forum state. By contrast, specific jurisdiction exists only with regard to the defendant’s forum-based contacts.

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apartment complexWhen a driver fails to act in a reasonably prudent manner, and someone else is hurt, the negligent driver can be held liable for the injured person’s medical expenses, lost wages, and pain and suffering. Unfortunately, not every at-fault driver has high enough limits on his or her automobile liability policy to pay fair compensation in serious accident cases.

Underinsured motorist coverage helps protect those who are injured as a result of the negligence of an underinsured driver. However, disputes can arise as to whether a particular person is considered to be an “insured” under a given policy.

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There are four components in a basic negligence lawsuit:  duty, breach of duty, causation, and damages. sidewalkWhether a duty exists in a given situation is usually a question of law to be resolved by the court.

Recently, a Massachusetts appeals court was called upon to resolve the issue of whether a landowner owed a duty to fix a defective public sidewalk or, alternatively, to warn those in the vicinity of the problem.

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