Personal Injury

September 15, 2020

Court Affirms Dismissal of Former College Student’s Massachusetts Negligence Lawsuit Against University Following Alleged Assault

The concept of negligence law is born of the idea that we each owe certain duties to one another. This includes not only individuals and businesses but also branches of the government. It can also include non-profit organizations and, as was the situation in a recent case, colleges and universities.

Some duties are general in nature, such as the duty that motorists owe one another to keep a proper lookout while driving. Duties can sometimes be more specific, depending on special knowledge or control by one party or the other.

One thing that is sure, however, is that no one owes anyone else the duty to prevent any and all harm that might befall him or her. Such a notion would be very unfair, of course. Instead, the question of duty is more often resolved based on an inquiry into whether the harm was foreseeable and whether the defendant could have prevented such with reasonable efforts.

September 10, 2020

Federal District Court in Massachusetts Holds that Jurisdiction Outside the United States is More Convenient Forum for Boating Accident Case

By John C. Manoog III

One of the first considerations in a personal injury lawsuit in Massachusetts, such as a negligence claim arising from a Cape Cod boating accident, is the forum in which the plaintiff’s claim will be filed. Often, there is but a single possibility for the filing of such a case, so the inquiry is a relatively simple one.

However, some situations lend themselves to the possibility of jurisdiction in more than one court – a state court or a federal court, perhaps. Sometimes, two states may arguably both have jurisdiction over a given case.

Rarely – but sometimes – two different nations may have jurisdiction of a particular lawsuit. In such a situation, it is up to the court system to decide which nation’s court will provide the more convenient forum based on the situation at hand.

August 31, 2020

Summary Judgment to Insurance Company on Claim for Indemnification in Massachusetts Case Involving Injuries from Altercation Held Erroneous

By John C. Manoog III

When it comes to the ultimate outcome of a Cape Cod personal injury case, the availability of liability insurance is one of the most important factors to be considered. Assuming that there is a policy of insurance that covers the occurrence at issue, another important consideration is the policy limits of such coverage.

In the absence of adequate liability insurance, the plaintiff’s options for recovering a judgment against the defendant are limited. While the plaintiff may have a right to execute the judgment against any property owned by the defendant and/or any wages that he or she earns in the future, it may take a very, very long time to satisfy a judgment – if it is ever satisfied.

Of course these issues are meaningless if the plaintiff is unable to prove his or her case in court, so it is important that someone who has suffered personal injuries due to another person’s careless or reckless conduct consult an attorney who can help him or her build a case that will convince the jury of his or her right to money damages. Without evidence that preponderates in the plaintiff’s favor, the defendant’s liability insurance is irrelevant.

July 14, 2020

Massachusetts Appeals Court Sides with Insured in Third Party Claim as to Insurance Coverage in Lead Poisoning Case

By John C. Manoog III

In most Cape Cod personal injury lawsuits, the main issue is whether the defendant should be held liable for the plaintiff’s injuries and, if so, the amount of compensation to which the plaintiff is entitled for his or her medical expenses, lost earnings, pain and suffering, and other damages. The defendant’s insurance company is somewhat of a “silent partner” in the case, insomuch as it pays the defendant’s legal expenses and, when all is said and done, writes the check that satisfies the jury’s verdict but is otherwise out of view.

In some cases, however, the insurance company’s participation is more direct. In a recent case, the defendants filed a third-party action against their insurance company, which they averred had wrongfully denied a claim that had been filed against them.

After the original claim between the defendants and the parties who sought compensation for certain personal injuries was settled, the defendants’ claim against the insurance company proceeded to trial – twice. After the second trial, the insurance company sought appellate review of the decision entered against it in the court below.

June 26, 2020

Federal District Court in Massachusetts Is Called Upon to Determine Proper Forum for Cross-Claims in Products Liability Lawsuit

By John C. Manoog III

In a Cape Cod products liability case, there are likely to be several defendants. This is because several different parties in the chain of distribution – from the manufacturer to the wholesale distributor to the retailer – can potentially be liable to the plaintiff.

While it might seem simpler to name only a single defendant, this is rarely wise. Naming multiple defendants can help ensure that the plaintiff ultimately receives what he or she is due if there is a favorable judgment, even if one or more of the defendants proves to be insolvent or has limited resources for satisfying the plaintiff’s claim.

When there are several defendants, each of whom could potentially be held liable for a plaintiff’s personal injuries, it is not unusual for there to be cross-claims between the defendants as each attempts to limit its own monetary outlay to the plaintiff. Experienced product injury lawyers are well-acquainted with these tactics and understand that this “infighting” between the defendants cannot stand in the way of the injured party’s quest for justice.

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

By John C. Manoog III

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).

June 12, 2020

Massachusetts Appeals Court Discusses Duties Owed – and Not Owed – Directly to a Parent Whose Child is Being Treated by a Healthcare Professional

By John C. Manoog III

Being the victim of professional malpractice can be doubly difficult. First, there is the harm caused by a negligent Cape Cod doctor, nurse, or other provider. This alone can be substantial, expensive to rectify (if this is even possible), and life-altering.

Then, there is the emotional difficulty of accepting that someone you trusted to help you was actually the person or entity that caused the harm. The idea of confronting a careless medical professional in a court of law can be daunting, and, truth told, can even dissuade some would-be litigants from seeking compensation for what has happened to them.

However, this only serves to give the negligent provider a “free pass” to continue such conduct in the future, possibly leading to additional patient harm or even death. If you find yourself as the victim of medical malpractice, it is important to consult a Cape Cod medical malpractice attorney who can explain your legal rights, the process of filing a claim, and the procedure necessary in order to seek fair compensation for your injuries.

June 8, 2020

Massachusetts Appellate Court Refuses to Set Aside Arbitration Award in Car Accident Case

By John C. Manoog III

While the right to a trial-by-jury in a Cape Cod car accident case is very important, there are sometimes occasions when the parties to such a matter may opt to submit their dispute to arbitration rather than move forward with a traditional trial. Like other kinds of alternative dispute resolution such as mediation, arbitration takes the case away from the consideration of a traditional judge and jury and places decision-making into the hands of one or more neutral persons.

In such a situation, there may be a single arbitrator, or there may be several. The result of the arbitration may be binding or non-binding (although, typically, “arbitration tends to be binding, while “mediation” tends to be non-binding).

Arbitration can sometimes be mandatory (such as when someone has signed an agreement to arbitrate all claims prior to the accident or event at issue). Arbitration can also be entered into by the agreement of the parties when all sides believe that it is the most fair and effective means of resolving the issues in a particular case.

May 27, 2020

Massachusetts Was More Convenient Forum in Federal Case Involving Grocery Store Slip and Fall

By John C. Manoog III

Ideally, the outcome of a Cape Cod premises liability or personal injury case would be the same regardless of whether it went to trial in a state court or a federal court, before a jury or just a judge, or in the city or in a small town. Justice is justice, right?

Unfortunately, the court system is far from perfect, and there can be differences in the outcome of a given case based on these and other factors. Because of this, the plaintiff in a case may choose to file his case in one venue rather than another – if there is a potential choice about such matters, given the facts. Defendants, too, sometime engage in “forum shopping” of sorts by seeking removal of a state case to federal court or transferal of a federal case from one district to another.

Facts of the Case

The plaintiff in a recent slip and fall negligence case was a man who alleged that he was injured when he slipped on a “wet, dangerous, and hazardous condition” located on the floor of a Massachusetts grocery store. He filed suit against the defendant store owners in a New Jersey state court in late 2019, seeking fair compensation for his medical expenses and associated damages resulting from the fall. The defendants removed the case to a federal court located in New Jersey based on diversity of citizenship.

May 7, 2020

Massachusetts Appeals Court Reverses and Remands in Case in Which Defendant Alleged There Was a Settlement but the Plaintiff Disagreed

By John C. Manoog III

Many Cape Cod personal injury cases settle outside of court. Some claims settle before a lawsuit has been filed, some suits settle after the discovery phase has been completed, and some cases literally settle on the front steps of the courthouse. In most situations, the parties agree that the case has been settled, paperwork is drawn up, and the defendant pays the plaintiff the monetary amount that has been agreed upon. Sometimes, however, a dispute arises as to whether a “meeting of the minds” has truly been had – such as recently happened in a case involving multiple plaintiffs who were seeking recovery against the same defendant.

Facts of the Case

In a recent unreported case, the plaintiff was apparently a litigant or a would-be litigant in a personal injury case that involved her sister and the defendant. (The circumstances of the case are not explained in the court’s opinion.) The plaintiff’s sister allegedly settled her claim against the defendant. The plaintiff, however, alleged that she did not authorize an attorney to settle her claim; rather, according to the plaintiff’s response to the defendant’s motion to enforce the purported settlement agreement, the plaintiff’s attorney sent an email to the defendant’s attorney to formally reject the offer that had been made.

The trial court judge granted the defendant’s motion to enforce the settlement that he alleged the plaintiff had entered into. The plaintiff appealed, seeking review of the appellate court.