Negligent Security

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

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).

April 7, 2020

Massachusetts Court of Appeals Rules Against Insurance Company in Unfair Settlement Practices Lawsuit

By John C. Manoog III

Some Cape Cod personal injury cases are multi-faceted. In addition to pursuing several different theories of liability and/or naming several defendants in a suit, a plaintiff may also file multiple lawsuits in different courts, seeking different types of compensation, as the case progresses. For instance, a plaintiff may seek compensation for a business owner’s negligence in his or her initial lawsuit. Later, that same individual may file a different type of lawsuit against the original defendant’s insurance company due to its failure to meet its legal obligations during settlement negotiations in the first case.

In both situations, the burden of proof is on the plaintiff to prove his or her case by a preponderance of the evidence. Thus, it is important that the plaintiff be represented by experienced legal counsel who can assist him or her in the filing of the required pleadings, the gathering of evidence, and the presentment of the case to the jury at trial.

Facts of the Case

In a recent (unreported) case, the plaintiff was a man who suffered a traumatic brain injury in 2008 as a result of an argument that began over a bar stool in a restaurant and culminated in an exchange of blows in the street later in the evening. The plaintiff filed a negligence security practices lawsuit against the restaurant, and, in 2012, a jury determined that the restaurant and an associated entity were each 45% at fault for the plaintiff’s injuries. The plaintiff was awarded $4.5 million in compensatory damages. The plaintiff then filed a second case against the insurance company that insured the defendants in the first case, seeking damages for the insurer’s alleged failure to effectuate a prompt, fair, and equitable settlement of the first case after liability had become clear.

July 12, 2018

Massachusetts Court of Appeals Agrees That Summary Judgment Was Appropriate Following Stabbing in Theater Parking Lot

By John C. Manoog III

There are many different circumstances through which a Cape Cod premises liability lawsuit may arise. In a “slip and fall” case, a person may be injured due to a fall caused by a slippery substance on the floor of a grocery store or poorly constructed stairs outside a public building. If the property owner breached the duty of care owed to the plaintiff, the plaintiff may be able to recover money damages to compensate him or her for medical costs, lost wages, and other losses caused by the injury.

In a negligent security case, a property owner may be held liable for failing to protect the plaintiff from harm caused by a third party – typically a criminal whose intentional actions harm to the plaintiff. Such cases can be challenging, as the defendant typically attempts to shift the blame away from itself and onto the third party.

Facts of the Case

In a recent case, the plaintiff was a man who was stabbed while waiting in his car for a friend outside a theater in 2011. The man sued the theater (and its parent companies), alleging that they were negligent in failing to provide police detail on the theater premises. (The plaintiff’s stabbing occurred on a Tuesday evening about 10 p.m. For some years prior to 2008 or 2009, the defendants had police detail on their premises seven nights a week, but they then restricted the detail to Friday, Saturday, and Sunday evenings only.) Continue reading

July 5, 2016

Massachusetts Appeals Court Affirms Defense Verdict for Landlord in Negligent Security Case Arising from Stabbing – Wess v. Butterworth

By John C. Manoog III

When the parties to a lawsuit have rested their cases, the trial judge issues a set of instructions to the jury before they retire to deliberate. The majority of these instructions are general in nature, but some may be fact-specific.

The parties may make requests for the court to issue certain instructions, and adverse rulings may result in appeals, should the jury’s verdict be unfavorable to the requesting party.

When this happens, the appellate court must review the instructions to determine whether, taken as a whole, they adequately provided the jury with a correct statement of the law.

April 11, 2016

Massachusetts Court Affirms $70,500 Judgment Against Bar Operators After Alleged Stabbing – Pena v. Pena

By John C. Manoog III

You may already know that business operators and landowners can be held liable for injuries that occur on their property. Slip-and-fall accidents (also called fall down accidents or trip and falls) fall under a category of negligence law known as premises liability. What you may not know is that businesses’ and property owners’ liability can also extend to injuries or deaths sustained due to the actions of a third party, if the defendant is found to have been lax with regard to security.

The reason for this is that premises liability law requires property owners to keep their premises in a reasonably safe condition. The courts have interpreted this requirement as including taking reasonable precautions to keep visitors (such as hotel guests and nightclub patrons) safe from harm. While not every act of violence is foreseeable or preventable, landowners have a duty to act appropriately given the circumstances of a particular security risk.

April 6, 2015

Massachusetts Anti-SLAPP Statute Did Not Protect Insurance Company That Failed to Make Reasonable Settlement Offer – Chiulli v. Liberty Mutual Insurance Company, Inc.

By John C. Manoog III

There are some cases in which liability is clear cut and the only real decision is the amount of the check that one party will write the other. In other cases, the issues are multiple, including who was at fault and to what degree. Recently, a Massachusetts appellate court was called upon to determine whether a particular case fell within the former or the latter category.

The Underlying Case

In the case of Chiulli v. Liberty Mutual Insurance Company, Inc., the plaintiff was a bar patron who was severely injured in a fight at a restaurant in 2008. Due to a skull fracture, he spent three months in a coma. His medical expenses were $661,928, and he was left with a permanent disability that he alleged significantly reduced his future earning capacity. The parties’ experts disagreed as to the exact amount of lost future earnings, but the figure was at least $413,532 and possibly as much as $1,589,949.

January 28, 2015

Massachusetts Woman and Daughter Unintentional Recipients of Package Containing Marijuana – Tobin v. Federal Express Corporation

By John C. Manoog III

Most of us can relate to the surprise and excitement brought on by an unexpected package. What could it be? A gift sent by a loved one? An item we ordered some time ago and forgot? The possibilities delight us, until we can stand it no more and rip into the package to see what lies within. In the case of Tobin v. Federal Express Corporation, the plaintiff and her 11-year-old daughter opened just such a “surprise package” and found two vacuum-sealed bags of marijuana inside. The plaintiff called the police, worried that her safety and that of her child were in jeopardy should the intended recipient of the package track the package to their home.

The plaintiff also called defendant Federal Express, which had erroneously delivered the package to the plaintiff’s home. The plaintiff relayed the package’s contents and asked the defendant not to disclose her whereabouts to the sender of the package. Meanwhile, the sender of the package also contacted the defendant, asking for a “trace” on the package and telling the defendant that she suspected that the package had been delivered to a street that also began with the same letter of the alphabet and that she would find it herself if the defendant did not help her. Three men later came to the plaintiff’s house, inquiring about the package, but the plaintiff slammed the door and called the police.

June 4, 2014

No Insurance Coverage Owed to Tavern in Massachusetts Inadequate Security Suit Falling Under “Assault and Battery” Exclusion

By John C. Manoog III

Massachusetts law requires property owners to keep their premises safe. When a business or homeowner breaches this duty and someone is hurt, the injured person can file a premises liability lawsuit seeking money damages. In a successful premises liability case, an injured person may be able to receive compensation for medical bills, lost wages, and pain and suffering.

Although many premises liability cases stem from situations where a customer has slipped and fallen in a store or other business, legal liability against a business owner can also result from inadequate security measures. In order to recover in such a situation, the customer must show that the business was aware of certain dangers but failed to provide a reasonable amount of security for its customers. If you have suffered injuries as a result of a property owner’s failure to provide adequate security or otherwise maintain his or her premises in a safe condition, Cape Cod premises liability attorney John C. Manoog, III can advise you about your rights.

Patron of Tavern Attacked by Unknown Assailants While on Premises

In the recent case of Certain Interested Underwriters at Lloyds, London v. LeMons et al, the plaintiff was a patron at a tavern that was insured under a commercial general liability policy issued by Lloyds. In 2001, the patron was attacked and injured by several unknown assailants while at the tavern. In 2004, the patron and his wife sued the tavern, seeking to recover for bodily injuries and loss of consortium on a theory of negligent security by the tavern. Continue reading