Slip and Fall

August 31, 2020

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

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.

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.

November 19, 2019

Massachusetts Tort Claims Act Protects Transportation Authority from Claim Arising from Discretionary Function

By John C. Manoog III

When a Cape Cod personal injury lawsuit is filed against a defendant that is a governmental entity, there is often a defense that the entity is immune from suit based on the principles of governmental tort immunity. Of course, this defense is not always successful, as there are many situations in which the government can be sued, and a judgment can be entered. Resolution of the issue of whether or not immunity applies is typically handled by motion practice in the trial court, sometimes with interlocutory review by the appellate court if an appeal is filed by the party aggrieved by the trial court’s decision.

Facts of the Case

In a recent Massachusetts Appeals Court case (unreported), the plaintiff was a man who suffered a closed head injury and bilateral leg amputations after falling onto subway tracks (owned and maintained by the defendant transportation authority) and being struck by a train. He filed a personal injury lawsuit against the defendant, averring that the defendant was negligent in failing to adequately staff the station with a safety inspector or a customer service agent (CSA) on the day the accident occurred.

The defendant sought summary judgment, arguing (among other things) that it was immune from liability for the plaintiff’s failure-to-staff claim, citing the discretionary function exception contained in Massachusetts General Laws ch. 258, § 10(b). The trial court denied the defendant’s motion, and the defendant filed an interlocutory appeal of the denial of its motion under the doctrine of present execution.

June 22, 2019

Massachusetts Recreational Use Statute Protects Indoor Sports Facility from Dekhockey Spectator’s Premises Liability Lawsuit

By John C. Manoog III

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.

June 19, 2019

$425,000 Damages Award in Slip and Fall Case Affirmed by Massachusetts Court of Appeals

By John C. Manoog III

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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July 12, 2018

Massachusetts Court of Appeals Agrees That Summary Judgment Was Appropriate Following Stabbing in Theater Parking Lot

By John C. Manoog III

There are many different circumstances through which a Cape Cod premises liability lawsuit may arise. In a “slip and fall” case, a person may be injured due to a fall caused by a slippery substance on the floor of a grocery store or poorly constructed stairs outside a public building. If the property owner breached the duty of care owed to the plaintiff, the plaintiff may be able to recover money damages to compensate him or her for medical costs, lost wages, and other losses caused by the injury.

In a negligent security case, a property owner may be held liable for failing to protect the plaintiff from harm caused by a third party – typically a criminal whose intentional actions harm to the plaintiff. Such cases can be challenging, as the defendant typically attempts to shift the blame away from itself and onto the third party.

Facts of the Case

In a recent case, the plaintiff was a man who was stabbed while waiting in his car for a friend outside a theater in 2011. The man sued the theater (and its parent companies), alleging that they were negligent in failing to provide police detail on the theater premises. (The plaintiff’s stabbing occurred on a Tuesday evening about 10 p.m. For some years prior to 2008 or 2009, the defendants had police detail on their premises seven nights a week, but they then restricted the detail to Friday, Saturday, and Sunday evenings only.) Continue reading

April 25, 2018

Massachusetts Court Affirms Summary Judgment in Slip and Fall Case Based on Exclusivity Provision of Workers’ Compensation Act

By John C. Manoog III

Cases involving injuries at one’s workplace can be wrought with many potential complications. For example, a Massachusetts workers’ compensation claim might be met with a denial of benefits on the ground that the “employee” was actually an independent contractor.

Under Massachusetts law, independent contractors are not entitled to workers’ compensation benefits. However, they may be able to sue their “employer” (the person or business with whom they had a contractual agreement to perform work) for negligence, if the employer’s failure to act in a reasonably prudent manner caused physical harm to the worker.

Often, a negligence case has the potential for a larger amount of money damages if the plaintiff is successful; a workers’ compensation case, however, has the advantage of not requiring the plaintiff to prove that the defendant was at fault in his or her accident.

January 24, 2018

Massachusetts Court of Appeals Required to Resolve Insurance Dispute Following Slip and Fall Verdict for Plaintiff

By John C. Manoog III

As we go about our daily lives, we often find ourselves on property that we neither own nor control. This can include the hallway of a hotel in which we are staying on vacation, the floor of the supermarket in which we purchase our weekly groceries, and the sidewalk from which we exit our apartment in order to begin our day, as well as many other areas.

When an accident happens due to a property owner’s negligence, the injured person has the burden of proving that the entity that controlled the area in which the accident happened breached the applicable duty of care.

In a case recently considered by the Massachusetts Appeals Court, the plaintiff in an underlying case was successful in proving negligence, but another dispute arose between the insurance company, a property owner, and an independent contractor regarding who was responsible for paying the judgment awarded to the plaintiff in the personal injury lawsuit arising from the accident.

April 25, 2017

Massachusetts Appeals Court Sides With Homeowners in Premises Liability Case – No Sanctions for Spoliation of Evidence, Summary Judgment Affirmed

By John C. Manoog III

When a person is hurt on another person’s property, he or she has a right to seek compensation through a premises liability lawsuit. Of course, just as in any negligence case, the burden of proof is on the plaintiff to prove that the defendant owed him or her a duty of care, that the duty of care was breached, that the plaintiff was harmed, and that there was a link of causation between the harm and the breached duty.

In proving his or her case, the plaintiff may introduce several types of evidence, including physical evidence, if applicable. In a recent case, an injured man sought sanctions against the defendant homeowners for their alleged destruction of a ladder that he alleged caused him to fall. He also sought the reversal of an order of summary judgment entered in the defendants’ favor.

February 2, 2017

Massachusetts Court Rules Security Supervisor’s Statement Inadmissible Hearsay in Slip and Fall Case at Mall

By John C. Manoog III

The term “hearsay” is sometimes used in everyday language to mean gossip or an unsubstantiated rumor. However, the term has a very specific meaning within the legal context. In the law, it refers to one person’s testimony about another individual’s statement or words.

Generally, hearsay statements are not admissible in court, but there are some exceptions. In the example above, the defendant’s statement might be admissible as a declaration against interest. It would be up to the trial court to decide whether, under the particular circumstances of the case, the statement would be an exception to the hearsay rule.