Negligence

January 22, 2020

Foster Family’s Claim Against State Child Services Department Was Not Barred by Massachusetts Governmental Tort Act

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.

December 27, 2019

Massachusetts Statute of Repose for Construction Defects Did Not Bar Claim Relating to Natural Gas Fire

By John C. Manoog III

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.

December 23, 2019

Under Massachusetts Law, an Insurance Company Still Owes Certain Duties to a Third-Party Claimant, Despite Professional Insured’s Refusal to Consent to Settle

By John C. Manoog III

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.

December 16, 2019

Court Refuses to Reverse Ruling Imposing At-Fault Accident Insurance Surcharge Following Massachusetts Crash

By John C. Manoog III

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.

December 9, 2019

Massachusetts Court Affirms Summary Judgment to Player, Coaches, and Refs in Hockey Player’s Personal Injury Lawsuit

By John C. Manoog III

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.

November 7, 2019

Massachusetts Court of Appeals Affirms Dismissal of Worker’s Infliction of Emotional Distress Claim But Says She Should Have Been Allowed to Add FMLA Claim

By John C. Manoog III

Massachusetts workers have certain protections under state and federal law. For instance, most workplace injury cases fall under the provisions of Massachusetts workers’ compensation laws. Generally speaking, if a worker’s injury is covered by workers’ compensation, he or she will not be able to file a negligence lawsuit against the employer or a co-worker. While there are some exceptions to this general rule, most such claims are barred under Massachusetts law. A recent case explored this concept.

Facts of the Case

In a recent appeals court case, the plaintiff was a woman who sued her former employer (a bank) and two former co-workers, alleging that she had suffered personal injuries due to the defendants’ creation of a “toxic work environment” and asserting claims for negligent retention and/or supervision, negligent infliction of emotional distress, and civil conspiracy. The defendants filed a motion to dismiss the plaintiffs’ complaint pursuant to Mass. R. Civ. P. 12(b)(6).

The plaintiff opposed the defendants’ motion and moved for permission to amend her complaint to assert a claim for retaliation under the federal Family and Medical Leave Act (FMLA). The trial court judge dismissed the plaintiff’s complaint without ruling on her motion to amend. The plaintiff appealed.

October 8, 2019

Massachusetts Supreme Judicial Court Issues Instructions for Reviewing a Tort Settlement When a Liability Insurer Objects to the Terms

By John C. Manoog III

The vast majority of Cape Cod car accident lawsuits are settled out of court. In most cases, the parties’ respective automobile accident liability insurance companies are part of the settlement process and, consequently, are bound by the terms of the settlement.

Sometimes, however, instances arise in which an insurance company may not be part of the settlement negotiations in a personal injury or wrongful death lawsuit arising from an automobile accident. A recent case explored such a situation and gave instructions for how such matters are to be handled in similar circumstances in the future.

The case at bar differed from the “typical” case in one important respect: one of the primary issues in the underlying litigation was whether the incident giving rise to the suit was an accident or whether it was the result of an intentional act. Importantly, the insurer was not obligated to make certain payments for an intentional act but was obligated to pay for damages arising from an act of negligence.

September 30, 2019

Massachusetts Appellate Court Says Lower Tribunal Should Not Have Entered Separate and Final Judgment in Tenant’s Suit Against Landlord and Appliance Store Following Explosion

By John C. Manoog III

It is not unusual for a Cape Cod premises liability, personal injury, or other negligence-based lawsuit to involve multiple claims against multiple defendants. When this happens, a plaintiff may opt to settlement some claims against some parties, while the remaining claims proceed to trial. The procedural hurdles involved in such a situation must be carefully followed, in order to preserve the legal rights of all those involved.

Facts of the Case

In a recent case, the plaintiff was a tenant who sued his landlord and an appliance store, after a stove in his apartment exploded, severely burning the tenant’s right hand. The tenant’s claims against the landlord included negligence, vicarious liability for the store’s negligence, breach of the implied warranty of habitability, and breach of the covenant of quiet enjoyment. Against the store, the plaintiff sought compensation for negligence, breach of contract as a third-party beneficiary, violation of Massachusetts General Law ch. 93A, and strict liability. Various third-party and cross-claims were also filed in the lawsuit.

The tenant and the store entered into a settlement for $15,000. Without the tenant’s assent, the store filed a motion for entry of a separate and final judgment pursuant to Massachusetts Rule of Civil Procedure 54(b). The landlord opposed the motion. After a hearing, the trial court approved the settlement and ordered the entry of a separate and final judgment dismissing the tenant’s claims against the store. The landlord appealed.

August 28, 2019

Non-Resident Was Exempt from Massachusetts PIP Insurance Requirements

By John C. Manoog III

Under Massachusetts law, there are certain requirements for those who operate motor vehicles within the Commonwealth. In a Cape Cod car accident case, a dispute may arise as to whether a driver was in compliance with these laws at the time of the accident.

It should be noted that some of the rules that affect Massachusetts drivers may not apply to those from out of state who just happen to be passing through at the time of a collision. A recent court case explores the relationship between the amount of time that a nonresident has spent in the state and the requirements for certain insurance coverage.

Facts of the Case

In a recent unreported court case, the plaintiff was a passenger in a vehicle that was involved in a two-car wreck allegedly caused by the defendant motorist’s negligence. The plaintiff’s suit also named the driver with whom he was riding at the time of the crash, her motor vehicle accident insurance company, and the defendant motorist’s insurance carrier as defendants in the suit. Only the plaintiff’s negligence claim against the defendant motorist proceeded to trial, the remaining claims having been dismissed on summary judgment or stayed.

August 8, 2019

Defendants’ Appeal in Slip and Fall Case Dismissed for Failure to File Required Paperwork Within Time Set by Massachusetts Rules of Appellate Procedure

By John C. Manoog III

Hopefully, by now most people know how it important it is to file a claim for damages within the statute of limitations following a Cape Cod accident. However, many individuals may not realize that there can be additional matters of timeliness that must also be complied with, if a case is to be handled as assertively as possible.

One of these important deadlines is the 30-day period for the filing of a notice of appeal following entry of final judgment by a trial court judge. While there are some exceptions to the usual rule, these are few and far between, as the defendants in a recent premises liability lawsuit found out.

Facts of the Case

In a recent case, the plaintiff was a man who fell while maneuvering a pallet jack from his delivery truck to a loading dock operated by the defendants. According to the plaintiff, his fall aggravated osteoarthritis in hip, requiring him to undergo a total hip replacement. The plaintiff’s personal injury lawsuit alleged that the defendants were negligent in failing to maintain the mechanism that bridged the gap between his trailer and their dock, thus causing the accident and his resulting injuries.
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