Personal Injury

July 5, 2018

Massachusetts Appeals Court Says Plaintiffs in Car Accident Suit Can Collect Damages Award from Negligent Driver’s Self-Settled Trust Fund

There are many different types of issues that can arise in a Massachusetts car accident lawsuit – who is at fault, whether the plaintiff or a perhaps a third party are also to blame, whether a certain policy of insurance is applicable considering the particular facts giving rise to the cause of action.

Sometimes, the issue is not who is at fault or whether there is liability insurance available, but, rather, whether the defendant’s personal assets can be used to satisfy the judgment. Typically, this only happens when the defendant is either uninsured or underinsured.

However, when a particular defendant has significant wealth in addition to (or in lieu of) insurance coverage, it may be possible for the plaintiff(s) to attach the defendant’s personal assets. Of course, each case is unique and must be decided on its own merits.

June 13, 2018

Neither “Controlled Affiliate” Nor Managing Agent of Housing Authority Are Public Employers Under Massachusetts Tort Claims Act

By John C. Manoog III

In most circumstances, a person who is harmed by the negligence of another party can seek monetary compensation for medical expenses, lost earnings, pain and suffering, and other damages caused by the act of negligence.

In the case of a public entity defendant, however, there are limitations on, among other things, the maximum amount of money that the injured person can receive in a Massachusetts personal injury lawsuit arising from a governmental unit’s negligence. While this may seem unfair, the idea is that a judgment against “the government” is ultimately borne by the taxpayers. Controlling the maximum amount of a potential payout preserves the public coffers, purportedly inuring to the good of all.

Facts of the Case

The plaintiff in a recent case was a public housing development resident. According to allegations in his complaint, he slipped and fell while navigating the stairs at his unit. He filed a lawsuit against the housing authority, a “controlled affiliate” of the authority, and the managing agent authority, seeking compensation for his injuries. The housing authority and the managing agent sought partial summary judgment, asking the trial court to deem them public employers under the Massachusetts Tort Claims Act (codified at Massachusetts General Laws ch. 258, § 2) and therefore not liable for damages exceeding $100,000. The trial court judge denied the motion, concluding that the Act “clearly defines the scope of a public employer” and does not include controlled affiliates within that definition.

May 24, 2018

Massachusetts Court of Appeals Affirms Summary Judgment for School District Following Field Hockey Player’s Governmental Tort Liability Lawsuit

By John C. Manoog III

When the defendant in a Cape Cod personal injury case is a governmental entity, the plaintiff faces an uphill battle. There was a time – back before there were any exceptions to the doctrine of sovereign immunity – when the plaintiff could not recover compensation at all. Now, however, the issue of whether the government has waived sovereign immunity in a particular situation can be a subject of great dispute.

Facts of the Case

The plaintiff in a recent case was a high school athlete (joined in the lawsuit by members of her family) who suffered a concussion and other injuries after being hit by a field hockey stick wielded by a teammate during a practice session. She filed suit against the defendant school district, seeking compensation under the Massachusetts Tort Claims Act. More specifically, the plaintiff alleged that the defendant was negligent in failing to properly train and supervise coaches and students, in not monitoring the plaintiff’s injuries in an appropriate fashion, and in not implementing a written academic re-entry plan following her injuries.

April 17, 2018

Massachusetts Tort Claims Act Construed to Include Electric Company as “Public Employer”

By John C. Manoog III

Electricity is one of those things to which most of us give little thought – until something goes wrong. Unfortunately, things can sometimes go very wrong when a power company acts negligently, sometimes triggering a Massachusetts personal injury or wrongful death lawsuit.

Governmental tort liability, including the possibility of immunity from suit, can be an important factor in such cases, depending upon the particular defendant that is being sued. Such cases must be handled with the utmost care, since a procedural mistake can result in a finding that the governmental entity is not liable for the plaintiff’s harm, even when obvious negligence occurred.

Facts of the Case

April 9, 2018

Massachusetts Court of Appeals Reverses Treble Damages Award to Car Accident Victim on Unfair Settlement Practices Claim

By John C. Manoog III

When someone is injured in a Cape Cod car accident, the responsible party’s insurance company has certain responsibilities toward the injured individual. When the insurance company fails in this regard, the plaintiff may have a separate legal action against the insurer.

As with a traditional tort case, the plaintiff has the burden of proving that the insurance company acted wrongfully. Due to the punitive nature of the statute, a successful case can result in substantial damages, including up to three times the amount in controversy.

Facts of the Case

April 4, 2018

Claim Preclusion Between Two Lawsuits Results in Dismissal of Medical Malpractice Case by Massachusetts Appeals Court

By John C. Manoog III

There are many procedural hoops that must be jumped through in order for a person injured by an act of medical negligence to be successful in a Cape Cod medical malpractice lawsuit. While potential pitfalls are common in the area of negligence law, this is particularly so in claims against doctors, hospitals, nurses, and so on. Unfortunately, this sometimes means that an otherwise valid (and potentially very valuable) claim falls through the cracks due to a technicality.

Facts of the Case

In a recent (unreported) Massachusetts Appeals Court case, the plaintiff was a woman who sought compensation for the alleged medical malpractice of several defendants related to complications from gallbladder removal surgery she underwent in 2013. In an earlier case, the plaintiff (on her own behalf and on the behalf of her two minor children) asserted claims against a hospital, a surgeon, and two “John Doe” (unknown) defendants, claiming that she had suffered a bile duct injury during her surgery that required her to undergo several other (otherwise unnecessary) medical procedures later. That case was dismissed by the medical malpractice tribunal on the ground that the plaintiff had not provided sufficient evidence to raise a legitimate question of liability, and the plaintiff’s complaint was dismissed with prejudice.

March 27, 2018

Massachusetts Court of Appeals Affirms Dismissal of Paralyzed Woman’s Claim for Relief from Judgment Due to Alleged Fraud by Vehicle Manufacturer in Prior Product Liability Lawsuit

By John C. Manoog III

In personal injury and wrongful death cases, there are sometimes multiple theories of liability. In a Cape Cod product liability case, for instance, the plaintiff may allege that the defendant manufacturer was negligent in the design of an unreasonably dangerous product and that the defendant should be held accountable for its failure to warn the consumer of the dangerous propensity of the product in question. These theories are not necessarily inconsistent.

Sometimes, however, a plaintiff may have to decide between legal theories that could be considered inconsistent. A recent case explored the complications that can arise in such situations.

Facts of the Case

March 16, 2018

Massachusetts Supreme Judicial Court Says Patient Who Took Generic Drug Could Have Claim Against Manufacturer of Name Brand Drug for Failure to Warn, if Defendant Acted Recklessly

By John C. Manoog III

Approximately seven out of every 10 Americans take a prescription medication. While the majority of these drugs are reasonably safe (virtually every medicine has some side effect), there has been a trend in recent years for drugs to be put on the market before the full effects are adequately studied.

A number of Massachusetts product liability lawsuits have arisen as a result of personal injuries or wrongful deaths allegedly caused by prescription medications. One common claim in such lawsuits is an allegation that the patient was not adequately warned of the medication’s side effects. A complication arises, however, when the patient takes a generic version of a drug. This is because federal law requires that a generic drug provide an identical label to its name-brand counterpart, even though the drugs may be made by different manufacturers.

Facts of the Case

March 1, 2018

Massachusetts’ Highest Court Sides with School Officials in Negligence Case Brought by Parents of Student Rendered Quadriplegic by Bullying

By John C. Manoog III

Bullying is a terrible problem in schools these days. Sometimes, a Massachusetts personal injury or wrongful death claim can arise from injuries caused by bullies. While each case stands on its own facts, a common issue in such cases is, “is the school liable?” In a case that made its way all the way to the state’s highest court, it was held that neither the school district nor teachers to whom reports of bullying had previously been made were liable for an incident that put a young student in a wheelchair for life.

Facts of the Case

In a recent case, the plaintiffs were the parents of a fourth grader who was pushed down the stairs by a classmate at his public elementary school in 2008. Although the extent of the boy’s injuries was not immediately apparent, he complained of tingling and numbness in his extremities a few hours after the fall; by the end of the school day, he reported that his legs were like “dead weight” and required assistance to walk out of the school. Two days later, the student was diagnosed with an injury to his spinal column and spinal cord, which resulted in permanent quadriplegia.

February 26, 2018

NHTSA Issues New Recalls, Warning Drivers in Massachusetts and Elsewhere of Possible Dangers

By John C. Manoog III

The National Highway Traffic Safety Administration (NHTSA) is an arm of the federal government whose mission is to save lives, prevent injuries, and reduce costs due to traffic crashes. The entity’s website lists many statistics illustrating its success, including a “safety success” of decreasing Massachusetts fatal car accidents in rural towns by 48% in 2015.

As part of its task of keeping people safe on America’s roadways, the NHTSA issues recalls of vehicles, car seats, tires, and equipment that may pose a risk to the public. Sometimes, a recall affects only a few products, but other times millions of consumers may potentially be affected. Either way, it pays to stay up to date on the latest information issued by the NHTSA.

Toyota Recalls 65,000 Tundras/Sequoias