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Articles Posted in Personal Injury

If you are hurt because of a slip and fall-type accident in or around Cape Cod, do you know how long you have to file a claim against the negligent party who caused the condition that led to your fall? You may think you know, but, chances are, you only know part of the answer to this important question.

Generally speaking, there is a three-year statute of limitations for personal injury and wrongful death claims in Massachusetts. However, there may be additional considerations that could shorten the effective time for taking legal action to a much shorter time – perhaps even a matter of days rather than a matter of years.

For example, for claims against governmental entities for injuries caused by a “defective way,” an injured person has just 30 days to filed a formal notice of claim (a precursor to a lawsuit filed in court) with the appropriate entity under Massachusetts Gen. Laws ch. 84, §§ 15, 18. If this formal notice is not given, the defendant will most likely be able to have the plaintiff’s lawsuit dismissed later on – even if the suit itself is filed within the general three-year statute of limitations.

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Each year, hundreds of Massachusetts residents lose their lives in automobile accidents, and tens of thousands more are injured. If you or a family member has recently been involved in a Cape Cod car accident, there are several things that you should know. Having the right information at the right time can go a long way toward making sure that you receive fair compensation for your injuries (or, in the case of a fatal crash, for your loved one’s wrongful death).

Getting Started on a Claim

The first thing to know about seeking fair compensation following a Cape Cod motor vehicle accident is that the burden of proving fault lies on the plaintiff (the person seeking payment for medical expenses, lost wages, property damage, etc.) This means that the plaintiff must file a civil claim against the responsible party within the period set forth by the Massachusetts statute of limitations for personal injuries or wrongful death. (It is possible that the defendant may be charged criminally due to an accident, but this is a separate matter that, typically, does not involve the injured individual.)

While it is possible for a car wreck litigant to represent himself or herself in court in a civil lawsuit seeking compensation for injuries suffered in an accident, this is not advisable. The defendant’s insurance company will hire an attorney to represent the defendant in court, and the plaintiff will need skilled legal representation during both pre-trial settlement negotiations and during litigation, if the case proceeds to trial.

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Naturally, some Cape Cod automobile accident cases are more complex than others. Still, a case reviewed early this month by the Massachusetts Court of Appeals stands out as unusually protracted. Although the facts of how the accident happened were straightforward enough (a pedestrian was struck by a car while crossing the street), a total of three lawsuits were ultimately filed.

Two complicating factors were that, in one action, the plaintiff was awarded more than four times the defendant’s liability insurance limits in damages and that, thereafter, the defendant filed for bankruptcy protection.

Facts of the Case

In a recent appellate court case, the plaintiff in an earlier action was a pedestrian who was injured when she was struck by a certain motorist (named as the defendant in that action). The case proceeded to a jury trial and resulted in a determination that the defendant was 65% at fault. The plaintiff was awarded $414,500 in damages after deduction of personal injury protection benefits previously received. The defendant’s insurance company paid policy limits of $100,000.

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As the holiday season winds down, many Massachusetts residents may be planning to begin the new year with the resolution of healthier eating – fewer starchy processed foods and more fresh fruits and vegetables. Usually, this would be a good plan.

Unfortunately, however, there have been several food contamination scares recently that could leave one wondering whether a new diet would indeed be best choice or whether eating “healthier” might end in a Massachusetts food poisoning lawsuit.

The Romaine Lettuce Recall

The United States Food & Drug Administration oversees the safety of the nation’s food supply. Often, this comes in the form of the recall of batch of foods (such as ground beef) processed within a few days time. With the recent romaine lettuce situation, however, the warning (first issued in late November) was much broader. Consumers were urged not eat any romaine lettuce and to throw out any such food product until more information was obtained by the FDA.

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In a Cape Cod personal injury case, the plaintiff’s case is usually premised on a legal theory known as “negligence.” When a defendant is accused of negligence, the plaintiff is averring that he or she failed to behave in a reasonably prudent manner under the circumstances. In other words, the defendant is said to have breached a duty of care that was owed to the plaintiff, proximately causing some kind of damage to him or her.

Sometimes, however, a person who is hurt by another’s intentional – rather than negligent – act(s) may also seek compensation for injuries suffered to his or her person.

Facts of the Case

In a recent case considered on appeal by the Supreme Judicial Court of Massachusetts, the plaintiff sought compensation from the defendant transportation authority after one of the defendant’s bus drivers allegedly physically attacked him. The plaintiff’s complaint asserted claims for vicarious liability for the driver’s intentional actions and for direct negligence in the defendant’s hiring, training, and supervision of the employee. The defendant filed a motion for judgment on the pleadings, asserting that it was could not be held vicariously liable for the driver’s intentional tort and that the plaintiff had failed to adequately present his negligence case as required by the Massachusetts Tort Claims Act.

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When someone acts carelessly and causes harm to another, a negligence claim may lie under Massachusetts law. In some situations, the injured individual may have another claim as well. For example, the plaintiff in a recent case filed in federal court alleged that she had been the victim of negligence with regard to certain medical care (that she claimed she needed while a pre-trial detainee), while also asserting a civil rights claim under civil law. If you have questions of this nature, be sure to reach out to a Massachusetts personal injury attorney for answers.

Facts of the Case

The plaintiff in a recent federal case was a pre-trial detainee at a correctional institute. She filed suit against the defendants, a doctor and the healthcare group that employed him, seeking compensation for injuries she allegedly suffered due to the worsening of a medical condition that she had had for some time. According to the plaintiff, she had psoriasis and psoriatic arthritis and had been taking a certain medication prior to being lodged at the correctional institute (from which she was eventually released). She claimed that the defendants should have allowed her to continue taking that particular medication (rather than a combination of less expensive alternatives) and that their failure to do so amounted to a violation of her civil rights under federal law and also constituted negligence under Massachusetts state law.

The United States District Court for the District of Massachusetts granted summary judgment to the defendants on the plaintiff’s federal claim, holding that a reasonable jury could not find that there was deliberate indifference to the plaintiff’s serious medical needs by the defendants. The court also dismissed (without prejudice) the plaintiff’s negligence claim after ruling that she did not have a viable claim under federal law. The plaintiff appealed.

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There are many steps to receiving fair compensation for injuries suffered due to the negligence of others. The first step in a typical Cape Cod personal injury lawsuit is an investigation into the accident giving rise to the plaintiff’s claim. The case then proceeds through a phase called “discovery,” during which issues such as the defendant’s alleged breach of duty and the plaintiff’s medical treatment and expenses are explored.

If an amicable settlement cannot be reached between the parties, the next step is a trial. In the case of a jury trial, each party can ask the court to give the jury specific instructions, based on his or her view of the law that is applicable to the facts of the case. It is up to the trial court judge to decide which instructions will actually be given. If one side or the other is displeased with the judge’s instructions, an appeal may follow the jury’s verdict.

Facts of the Case

In a recent (unreported) case decided by the Commonwealth of Massachusetts Appeals Court, the plaintiff filed suit against the defendant inn, seeking payment for personal injuries that she allegedly suffered when she fell on the defendant’s property and broke her arm. According to the plaintiff, the defendant’s negligence was to blame for her fall. The case was tried to a jury, which returned a verdict in the inn’s favor on the plaintiff’s negligence claim. The plaintiff appealed.

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A Cape Code product liability lawsuit can arise from many different types of products, including prescription medications. Drug-based product liability cases can involve products that were defectively designed or manufactured, but more often they may claim that the manufacturer failed to warn consumers of possible complications from usage of the medication.

Of course, the plaintiff has the burden of proving that the defendant is liable for his or her injuries, and this can be a challenge in many cases. If the plaintiff’s complaint does not alleged sufficient facts to support a viable cause of action against the defendant, the trial court may dismiss the plaintiff’s case.

Facts of the Case

In a case recently ruled upon by the United States District Court for the District of Massachusetts, the plaintiff was a man who claimed that he suffered serious side effects from a prescription medication and that the defendants, a drug manufacturer and a research and development company, failed to warn him of these possible issues. The drug in question was Risperdal, which is an anti-psychotic drug. The plaintiff, who is an inmate at a correctional institution in Bridgewater, Massachusetts, was purportedly prescribed the drug due to a diagnosis of a personality disorder. According to the plaintiff, the drug caused him to gain weight, have tremors, and develop gynecomastia (increased breast tissue).

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In a Cape Cod car accident case, the plaintiff may seek reimbursement of medical expenses and lost wages necessitated by the motor vehicle collision. He or she may also seek money damages for pain and suffering in most cases.

However, if the plaintiff’s medical expenses are $2000 or less, he or she is not entitled to compensation for pain and suffering unless certain exceptions (such as permanent disfigurement or loss of sight) apply.

Facts of the Case

In a recent unreported court decision issued by the Commonwealth of Massachusetts Appeals Court, the plaintiff was allegedly injured while riding in a wheelchair inside a vehicle owned by one defendant and driven by the other. According to the plaintiff, the driver stopped abruptly, causing her to fall part of the way out of her wheelchair. At trial, the plaintiff introduced certified copies of her medical records, but she did not submit any evidence of her medical costs. Continue reading

When the negligence of an individual, business, or governmental entity causes physical harm or death to someone, the accident victim (or his or her family, if the victim perished) has a legal right to seek compensation for medical expenses, lost wages, and other damages through a Massachusetts personal injury or wrongful death lawsuit.

If the case proceeds to a jury trial and the plaintiff is successful, he or she may also be entitled to prejudgment interest on the damages award entered by the jury.

Facts of the Case

In a recent federal case, the plaintiffs obtained a jury verdict against the defendants, an equipment company and another business, awarding them $8,250,000 in damages for injuries suffered due to the defendants’ negligence. Thereafter, the plaintiffs filed a motion seeking 12% prejudgment interest on the total amount of the judgment from February 25, 2015, until the day the judgment was entered. The defendants opposed the motion, arguing that the portions of the jury’s verdict pertaining to future lost earnings and future medical and personal care were not subject to prejudgment interest. Continue reading