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Articles Posted in Premises Liability

It is not unusual for a Cape Cod premises liability, personal injury, or other negligence-based lawsuit to involve multiple claims against multiple defendants. When this happens, a plaintiff may opt to settlement some claims against some parties, while the remaining claims proceed to trial. The procedural hurdles involved in such a situation must be carefully followed, in order to preserve the legal rights of all those involved.

Facts of the Case

In a recent case, the plaintiff was a tenant who sued his landlord and an appliance store, after a stove in his apartment exploded, severely burning the tenant’s right hand. The tenant’s claims against the landlord included negligence, vicarious liability for the store’s negligence, breach of the implied warranty of habitability, and breach of the covenant of quiet enjoyment. Against the store, the plaintiff sought compensation for negligence, breach of contract as a third-party beneficiary, violation of Massachusetts General Law ch. 93A, and strict liability. Various third-party and cross-claims were also filed in the lawsuit.

The tenant and the store entered into a settlement for $15,000. Without the tenant’s assent, the store filed a motion for entry of a separate and final judgment pursuant to Massachusetts Rule of Civil Procedure 54(b). The landlord opposed the motion. After a hearing, the trial court approved the settlement and ordered the entry of a separate and final judgment dismissing the tenant’s claims against the store. The landlord appealed.

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There are many circumstances that can lead to a Cape Cod slip and fall or premises liability lawsuit. While many such cases involve adults, there can also be situations in which a minor child is injured on another’s property. As with other types of negligence lawsuits, the plaintiff in such a case has the burden of proving that the defendant breached a duty of care, thus proximately causing damages to the injured party.

If you or your child has been hurt by a negligent property owner, you should speak to an attorney about your case as soon as possible, as there is a statute of limitations that limits the time during which you may take legal action.

Facts of the Case

In a recent case, the plaintiff was a woman who brought suit as the parent and the next friend of her a minor child who was allegedly injured as a result of a fall from a zip line that the defendants had installed in their backyard. Because the zip line did not have a seat, the child’s father held him up by the hips and guided him for a few feet before letting him go. The child traveled a short distance and then lost his grip. Reportedly, his father grabbed him as he was falling, but the child’s arm hit the ground and was fractured so severely that several surgeries were required. In their negligence claim, the plaintiffs focused on the defendants’ failure to install a safety seat attachment to the zip line, arguing that this failure rendered the zip line unreasonably dangerous. The plaintiffs also asserted that the defendants had failed to warn the child of the danger of the zip line.

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Hopefully, by now most people know how it important it is to file a claim for damages within the statute of limitations following a Cape Cod accident. However, many individuals may not realize that there can be additional matters of timeliness that must also be complied with, if a case is to be handled as assertively as possible.

One of these important deadlines is the 30-day period for the filing of a notice of appeal following entry of final judgment by a trial court judge. While there are some exceptions to the usual rule, these are few and far between, as the defendants in a recent premises liability lawsuit found out.

Facts of the Case

In a recent case, the plaintiff was a man who fell while maneuvering a pallet jack from his delivery truck to a loading dock operated by the defendants. According to the plaintiff, his fall aggravated osteoarthritis in hip, requiring him to undergo a total hip replacement. The plaintiff’s personal injury lawsuit alleged that the defendants were negligent in failing to maintain the mechanism that bridged the gap between his trailer and their dock, thus causing the accident and his resulting injuries.
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When someone is hurt on another’s property, there may be a possibility of filing what is commonly called a “slip and fall” or “premises liability” lawsuit against the landowner or business operator whose negligence caused the accident.

Of course, the defendant in such a case is likely to offer up a myriad of possible defenses, blaming the plaintiff for the accident or denying that the condition that led to the injury had been in place long enough for the defendant to have legal notice of it.

In some situations, there may be another possible defense, such as the recreational use statute.

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In a Cape Cod premises liability case, the plaintiff has the burden of proving that the defendant landowner or shopkeeper was negligent in maintaining its property. Of course, the defendant will likely deny that it should be held liable for the plaintiff’s slip and fall accident, pointing the finger back at the plaintiff for the accident or denying that the dangerous condition described by the plaintiff even existed. It is up to the jury to resolve the factual issues between the parties.

Facts of the Case

In a recent unpublished appellate court case, the plaintiff was reportedly an 84 year-old man whose shoe caught in an “eroded concrete surface” near a gas pump, causing him to fall. The plaintiff filed a negligence lawsuit against the defendant gas station owner, seeking monetary compensation for the injuries that he suffered in the fall. At trial, a fellow customer, who witnessed the incident, testified that the disrepair was readily apparent and had been in place for quite some time. In response, the defendant insisted that the gap that caused the plaintiff’s fall was so minor a defect that, as a matter of law, it could not give rise to a violation of the defendant’s duty of care to the plaintiff.

The jury found in the favor of the plaintiff (who was joined in the action by his wife, who asserted a loss of consortium claim), awarding him $450,000 and his wife $200,000. The trial judge issued a remittitur, reducing the plaintiff’s damages award to $300,000 and the wife’s to $125,000. The plaintiffs accepted the remittitur. The defendant filed a motion for judgment notwithstanding the verdict and/or for a new trial; the trial court denied both motions.
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All Massachusetts personal injury and wrongful death cases are subject to strict filing deadlines called “statutes of limitation.” Cases not filed within the time set forth by these statutes are almost always dismissed on procedural grounds.

It is important to note that, in some cases, there may be other deadlines – sometimes, much shorter deadlines – in addition to the general statute of limitations. Again, failure to act within the required time period can be fatal to a plaintiff’s case.

One example of this is a claim against a city or municipality. In these cases, at least some type of minimal legal action (such as the giving of notice) must be taken within a matter of days, or else the plaintiff will be barred from monetary recovery against the responsible governmental entity.

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In a Cape Cod dog bite injury lawsuit, there can be a wide variety of issues. As always, the burden of proof lies on the party asserting the claim.

Insurance coverage can be an issue in some cases. Depending on the facts, it may be the plaintiff, or it may be the defendant who is seeking a declaration from the court to the effect that the plaintiff’s claim (if it is ultimately proven) is covered by a particular policy of insurance.

As in other cases in which an insurance company seeks to avoid liability for one reason or the other, proving that there is insurance coverage can be just as difficult a battle – if not even more so – than proving the elements of the underlying case.

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Most Massachusetts personal injury lawsuits proceed in a back-and-forth fashion reminiscent of a tennis match. The plaintiff serves his or her complaint on the defendant, and then the defendant responds by filing an answer.

The parties then file discovery requests, to which the opposing party files an answer. Motions may be filed, with responses thereto filed by the other side. Eventually, if the case is not settled, a trial is held, with more back-and-forth exchanges between the plaintiff and the defendant.

Sometimes, however, a defendant may not conduct his or herself in the usual manner, potentially leading to a default judgment – a judgment declaring that the plaintiff is entitled to relief because the defendant has failed to file an answer denying the allegations in his or her complaint.

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Construction site accidents are common in Cape Cod and elsewhere in Massachusetts. Unfortunately, legal claims arising from these types of on-the-job injuries can be more difficult to pursue than more traditional workers’ compensation cases.

One reason for this is that those in the construction industry may be injured by someone other than his or her direct employer. A particular individual might also be working as an independent contractor. In such a situation, workers’ compensation may not be available, and the injured person’s only remedy may be to filed a negligence suit against the person or company who he or she believes caused the accident.

Facts of the Case

In a recent case, the plaintiff was construction worker who was severely injured when a porch roof where he was working collapsed and caused him to fall about 12 feet to the ground. The plaintiff filed a negligence lawsuit against the defendants, a contractor on the construction project, a trustee (the property where the accident happened was apparently owned by a trust rather than by an individual or corporation), and the person responsible for the maintenance of the property, seeking payment for his medical expenses of approximately $1.3 million, along with other damages resulting from the fall.

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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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