Personal Injury

Massachusetts Court Discusses Third Party Liability for Work Injuries

August 13, 2021 | by John C. Manoog III

Massachusetts’ workers’ compensation laws generally preclude people who suffer injuries in the workplace from pursuing civil claims against their employers. People hurt at work may be able to recover damages from third parties that contributed to or caused their harm, however. Generally, they must establish that the negligence of the third party caused their harm; otherwise, they will be denied compensation, as demonstrated in a recent Massachusetts personal injury case. If you were injured at work, you should meet with a skillful Cape Cod personal injury lawyer to determine whether you may be able to pursue claims against parties other than your employer.

The Facts of the Case

It is reported that the plaintiff worked for a roofing company. The defendant hired the plaintiff’s employer to remove snow from a flat roof on an apartment building. While on the job site, the plaintiff fell off of the roof and sustained critical injuries. He then filed a lawsuit against the defendant, setting forth claims that it negligently failed to provide adequate fall protection on the roof.

Allegedly, prior to trial, he moved in limine for an order allowing him to introduce evidence of certain publications and regulations issued by OSHA (the Occupational Safety and Health Administration), but the court denied his motion. The jury attributed thirty percent of the fault for the accident to the defendant and seventy percent of the fault to the plaintiff, and therefore, returned a verdict in favor of the defendant. The plaintiff filed an appeal, asserting that the trial court erred in excluding the OSHA regulations. Continue Reading ›

Court Explains Immunity Under the Massachusetts Tort Claims Act

June 26, 2021 | by John C. Manoog III

People often volunteer in their communities. Unfortunately, during the act of performing good deeds, some people suffer injuries due to the negligence of others. While they can pursue claims for their losses, their ability to recover from their towns may be limited by Massachusetts law, as discussed in a recent opinion. If you were hurt because of another party’s negligence, it is smart to speak to a skillful Cape Cod personal injury attorney about your possible claims.

The Plaintiff’s Harm

Reportedly, in 2014, the plaintiff worked as a volunteer for the band parent organization (BPO) for the defendant town’s high school band. He was sitting in the driver’s seat of a golf cart that was located in the back of the truck to assist with the process of unloading the truck. The golf cart fell from the truck, causing the plaintiff to suffer a traumatic brain injury. He subsequently filed a lawsuit against the defendant as well as the co-presidents of the BPO, arguing their negligence caused him to suffer harm.

It is alleged that the defendants moved for dismissal via summary judgment, arguing the plaintiff’s claims were barred by the Massachusetts Tort Claims Act (MTCA). The court ruled in favor of the defendants, and the plaintiff appealed. Continue Reading ›

Massachusetts Supreme Judicial Court Establishes New Rule for Seeking a Mistrial in a Restaurant Food Contamination Case

May 27, 2021 | by John C. Manoog III

When a restaurant serves unsafe food to a patron and that person is injured as a result, a personal injury claim may be possible. In asserting a Cape Cod food contamination case, the burden of proof is on the plaintiff, meaning that he or she must present evidence sufficient to convince the jury, by a preponderance of the evidence, that he or she is entitled to money damages due to the incident and injuries at issue.

Damages may include compensation for pain and suffering, medical expenses, lost earnings, and the like. The exact amount to be awarded is in the jury’s discretion but is subject to appellate review.

Facts of the Case

The plaintiff in a recent appeals court case was a woman who was injured when she allegedly bit down on a piece of bone that was in a hamburger purchased from the defendant restaurant. According to the plaintiff, the bone caused one of her upper molars to split, necessitating over two years of dental and medical treatment. This included two root canals, sinus elevation surgery, and a bone graft. The plaintiff’s lawsuit, filed in 2013, asserted claims for breach of the implied warranty of merchantability under Massachusetts General Laws ch. 106, § 2-314 and violations of Massachusetts General Laws ch. 93A. (The plaintiff also asserted a negligence claim and a negligent infliction of emotional distress claim, but these claims were voluntarily dismissed prior to trial.) Continue Reading ›

Massachusetts Court Addresses Issue of Whether Lead Inspector Owed Duty of Care to Child Who Lived in Property 20 Years After Inspection

April 22, 2021 | 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.

Defense Verdict in Parking Lot Slip and Fall Case Affirmed by Massachusetts Appeals Court

April 9, 2021 | by John C. Manoog III

In a Cape Cod premises liability case, evidence regarding the accident scene can be crucially important. Without photographs or video surveillance of the place where the accident happened, it can be difficult for the plaintiff to convince the jury that the landowner was negligent in creating the dangerous condition that caused the accident or, if a third party caused the situation, in allowing the condition to persist past the time that a reasonable property owner would have noticed and corrected the issue(s).

Of course, not every piece of evidence is as reliable as it might first appear. There is technology available that can alter the appearance of both photographs and videos, a fact to which anyone who has skimmed through a fashion magazine can attest.

The case described below dealt with a situation in which the image shown in the photograph was real; it accurately reflected the scene at the time it was taken. However, there may have been a discrepancy regarding when the party offering the photographs into evidence said the picture was taken and when it was actually taken.

Federal District Court Applies Massachusetts Law to Deny Summary Judgment in Negligent Entrustment Case

March 28, 2021 | 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.

Massachusetts Appeals Court Affirms Jury Verdict in Favor of Injured Restaurant Patron, Despite Argument that Condition Was Open and Obvious

March 23, 2021 | 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.

Massachusetts Supreme Judicial Court Holds that Traditional “But-For” Causation Is the Appropriate Standard in Most Negligence Cases

March 5, 2021 | 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.

Massachusetts Woman’s Wrongful Death Case for Husband and Son’s Death in Canadian Hotel Should Not Have Been Dismissed

January 23, 2021 | by John C. Manoog III

A Cape Cod wrongful death or personal injury lawsuit cannot succeed unless the plaintiff is able to prove that the defendant’s negligence caused the accident victim’s death or physical harm. This must be proven by a preponderance of the evidence, via legally admissible evidence.

Of course, this assumes that the case ultimately makes its way into a courtroom and is tried in front of a judge and jury. It is important to note that there are a lot of steps that may occur before this happens.

First and foremost, the court in which the suit is filed must have jurisdiction over the case. This encompasses both the right to adjudicate the subject matter of the suit and also power over the particular defendants, a concept known as “personal jurisdiction.”

Massachusetts Appeals Court Affirms Dismissal of Medical Malpractice Case Against Doctor, Nurse, and Student Physician’s Assistant

December 28, 2020 | by John C. Manoog III

Doctors and nurses make mistakes. Sometimes, these errors in judgment cause serious harm to patients. When this happens, the injured individual has a right to seek fair compensation through a Cape Cod medical malpractice claim.

However, it is important to note that medical malpractice cases can be difficult to pursue. The insurance companies that represent healthcare facilities and medical professionals have plenty of financial resources to fight a finding of liability, if possible.

It is important to consult a knowledgeable malpractice attorney if you believe that you have a medical negligence claim. An attorney experienced in this area of the law can help you review your medical records, consult an appropriate expert witness to render an opinion regarding whether an act of malpractice occurred, and, if the case proceeds to trial, explain the complex medical issues to the jury in a way that they can understand.