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Articles Posted in Premises Liability

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.”

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The first question that must be answered in any Cape Cod wrongful death or personal injury lawsuit is, “Did the defendant owe a duty of care to the plaintiff?” The answer to this inquiry can be impacted by state statutes, existing case law, local ordinances, the particular facts of the case, the relationship between the parties, and various other matters.

If the defendant did owe a duty of care to the plaintiff, the next step is to determine whether the duty was breached. If it was, then the issue turns to the question of causation and, then, damages. Only if the defendant owed the plaintiff a duty of care, breached that duty, and thereby proximately caused legal damages to him or her may the case be resolved in the plaintiff’s favor.

If the answer to the duty question is “no,” the case ends there – unless the trial court’s judgment is appealed, of course. Then, a higher court may take a look at the case to determine whether a mistake was made in the lower tribunal. Only if the appealing party can convince the appellate court that a reversible error was made will there be a reversal of the lower court’s decision and a reinstatement of the plaintiff’s complaint.

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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.

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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.

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Some Cape Cod personal injury cases are multi-faceted. In addition to pursuing several different theories of liability and/or naming several defendants in a suit, a plaintiff may also file multiple lawsuits in different courts, seeking different types of compensation, as the case progresses. For instance, a plaintiff may seek compensation for a business owner’s negligence in his or her initial lawsuit. Later, that same individual may file a different type of lawsuit against the original defendant’s insurance company due to its failure to meet its legal obligations during settlement negotiations in the first case.

In both situations, the burden of proof is on the plaintiff to prove his or her case by a preponderance of the evidence. Thus, it is important that the plaintiff be represented by experienced legal counsel who can assist him or her in the filing of the required pleadings, the gathering of evidence, and the presentment of the case to the jury at trial.

Facts of the Case

In a recent (unreported) case, the plaintiff was a man who suffered a traumatic brain injury in 2008 as a result of an argument that began over a bar stool in a restaurant and culminated in an exchange of blows in the street later in the evening. The plaintiff filed a negligence security practices lawsuit against the restaurant, and, in 2012, a jury determined that the restaurant and an associated entity were each 45% at fault for the plaintiff’s injuries. The plaintiff was awarded $4.5 million in compensatory damages. The plaintiff then filed a second case against the insurance company that insured the defendants in the first case, seeking damages for the insurer’s alleged failure to effectuate a prompt, fair, and equitable settlement of the first case after liability had become clear.

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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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