Boston Personal Injury Lawyers Blog

Civil litigation in Massachusetts moves slowly. So slowly in fact that clients routinely voice frustration to their personal injury attorneys over how long their cases take to resolve. This is particularly true in the area of medical malpractice litigation, where the life of an average case, from intake through trial, can easily take upwards of three or more years to complete. These days, medical malpractice cases seem to be taking even longer to resolve.

One reason for the snail's pace of medical malpractice litigation may have something to do with a "bone" the Massachusetts legislature threw to the medical malpractice insurers a few years back. I'll call it "the free ride" bone.

In almost any other category of claim for personal injury, for example,. auto-related injury or product liability, commenced in Massachusetts State court, the plaintiff is legally entitled to receive - on top of the amount ultimately awarded by the jury or judge - "pre-judgment interest" at the rate of 12% per year, calculated from the date of the filing of the civil complaint with the court (not the date of injury) through the date the court enters final judgment. So, by way of example, if a person is injured as a result of a car accident and files a law suit against the negligent driver on January 2, 2010, and the jury returns a verdict in favor of the plaintiff on January 2, 2013 in the amount of one million dollars, the plaintiff would be entitled to receive a total award of $1,360,000.00 (one million dollars plus $360,000 in pre-judgment interest).

The reasoning behind pre-judgment interest is to disincentive defendants (insurance companies for the most part) from dragging their feet and denying funds to which the plaintiff is legally entitled. The system works quite well. Insurance companies hate paying pre-judgment interest, and, in fact, have worked quite hard to convince Massachusetts law makers that the rate of 12% is excessive - particularly in today's low-interest rate environment.

Fortunately for plaintiffs, the Massachusetts legislature understands that pre-judgment interest has something more than an economic benefit in mind; it was designed to prevent insurance companies from sitting on their hands and doing nothing (something insurers would otherwise love to do in every case).

Enter the Massachusetts Medical Malpractice Insurance Lobby. In what should be regarded as nothing short of a coup, the insurance companies that insure doctors in Massachusetts successfully convinced the Massachusetts legislature to lower the pre-judgment interest rate in medical malpractice cases only, from the standard 12% annual rate, to a rate that is tied to United States Treasury rates - in short - just about 0% these days. The net effect of this coup was to provide the medical malpractice insurance companies with every reason in the world to work slooooowly. So slowly in fact that medical malpractice cases currently take longer than just about any category of injury-related litigation.

In a perfect world, members of the Massachusetts legislature would actually take notice of the monster they've created by virtually eliminating pre-judgment interest and the intended goal of the pre-judgment statute. But Massachusetts remains a long, long way from the perfect world, so don't count a change in the law any time soon.

Continue reading "Another Reason Massachusetts Medical Malpractice Cases Can Take a Long Time to Resolve" »

In Massachusetts, the owner or "keeper" of a dog who causes injury to another person is legally obligated to compensate the victim for conscious pain and suffering, as well as for the costs of medical treatment, lost wages, and other resulting losses. Depending on the nature and extent of the injuries inflicted, the financial consequence of such an attack can be considerable. Now consider the extent of the financial liability if the Court were to triple the value of that very same claim - turning a $300,000 jury verdict into a recovery approaching one million dollars!

Massachusetts General Laws Chapter 140 Section 155 (the so-called Massachusetts "dog bite statute") is the section of Massachusetts law that imposes liability upon the dog's owner or "keeper" for injuries or death caused by a dog.

§ 155. Liability for damage caused by dog; minors; presumption and burden of proof

If any dog shall do any damage to either the body or property of any person, the owner or keeper, or if the owner or keeper be a minor, the parent or guardian of such minor, shall be liable for such damage, unless such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. If a minor, on whose behalf an action under this section is brought, is under seven years of age at the time the damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant in such action.

But it is Massachusetts General Laws Chapter 140 Section 159 that adds the real "teeth" to the Massachusetts Dog Bite Law. According to Section 159:

§ 159. Treble damages for injuries caused by dogs ordered to be restrained

If a dog which the selectmen of a town, chief of police of a city or the county commissioners, or, upon review, a district court, shall have ordered to be restrained shall wound any person, or shall worry, wound or kill any live stock or fowls, the owner or keeper of such dog shall be liable in tort to the person injured thereby in treble the amount of damages sustained by him.

Simply put - if, prior to causing injury or death, a dog was ordered by city or town officials to be "restrained", and the owner or keeper of the dog failed to abide by that order (for example, by allowing the dog to roam free, or unmuzzled, as the order so specified), then the dog's owner or keeper would be responsible to compensate the victim three times (3X) the amount awarded the victim by the judge or jury.

This does not mean that the victim of a dog bite would automatically be entitled to have their award or verdict tripled simply because the offending dog has bitten others in the past. To be eligible for a triple award, the offending dog must have been (1) the subject of a prior "restraining order" which typically requires a special hearing to evaluate the need for such restraint, (s) found to be in violation of that prior restraining order.

A lawyer with significant experience in the area of Massachusetts dog bite law is in the best position to determine whether such an order was previously issued and violated, giving rise to "treble" (triple) damages.

Continue reading "The Real Teeth in the Massachusetts "Dog Bite" Statute" »

Well, they finally did the right thing. The Massachusetts Supreme Judicial Court, the Commonwealth's highest court, ruled in the case of Papadopoulos v. Target Corp that differentiating between a "natural" and "unnatural" accumulation of ice or snow - as a basis for liability on the part of a property owner was...well... unnatural, and instead created a new standard for determining the liability of a landowner (or controlling party) to persons injured as a result of a fall on snow or ice.

For those who have not followed this fascinating (NOT) debate, a short summary of the previous test for liability may be instructive.

Under the old rule, if a person slipped and fell on a patch of ice while walking through a mall parking lot, for example, or a friend's driveway, and suffered an injury as a result of that fall, the victim could NOT recover compensation from the property owner UNLESS the victim could prove that the ice that caused the fall accumulated unnaturally - that is - that it was not the product of natural weather conditions. In simple terms: if it rains in Massachusetts and the temperature falls below 32 degrees Fahrenheit, and the puddles of rain turn into sheets of ice - that's "natural". On the other hand, if the property owner, in an effort to clear a path to his car, creates an icy berm that would never have existed but for the pile of snow and ice created by the property owner, and someone trips over that berm, then the accumulation might be regarded as "unnatural", and thereby make the property owner liable for the victim's medical expenses and other losses. The operative word here is "might" - and therein the "problem".

To understand why Massachusetts personal injury lawyers (rather than the lawyers who represent the insurance companies) hated this rule, was that it was often difficult if not impossible to prove whether a particular accumulation of snow or ice was "natural" or "unnatural". Take for example the case of a woman who slips and falls on a patch of ice located directly in front of the entrance to a supermarket. As a result of her fall, the woman suffers a serious closed-head injury, involving bleeding of the brain and a prolonged and expensive hospitalization. An investigation of the accident scene demonstrates that the supermarket's employees had shoveled away the snow leading to the entrance of his store the evening before the accident, and just after a major snow storm. The problem is, they placed the shoveled snow in a pile, slightly uphill from where the entrance to the supermarket was located. As the snow began to melt, water flowed from the pile of snow to the supermarket's main entrance and accumulated as a puddle of water, which later froze as temperatures dropped.

Under the old rule, to recover for her injuries, the victim had to prove that the ice upon which she slipped and fell was "unnatural"; that is would not have existed where it did, and in the form (ice) that it did, had it not been for the actions of the store's employees in creating a snow pile where they did. Seems easy enough - until lawyers for the company insuring the property insisted that the ice upon which the woman fell was entirely "natural"; that it was (natural) rain water, which flowed (naturally) downhill, due to the (natural) force of gravity where it collected and froze (naturally) when the (natural) weather conditions lead to colder temperatures. Was this debate costly and difficult for trial judges to decide - naturally it was.

You see, in almost all other kinds of personal injury cases involving a fall on property, the victim need only show that the property owner failed to maintain his property in "reasonably safe condition"; free of hazards or dangerous conditions that a "reasonable" (more on that word in a future blog post) person would be required to correct. So, for example, if the owners of a strip-mall parking lot perform maintenance on their lot, and leave a puddle of machine oil behind, causing a patron to slip and all, liability on the part of those who should have removed the oil is fairly easy to prove under current law. Nobody need debate whether the oil flowed naturally, or whether motor oil was a natural material, etc., etc. All the victim need show was that the property contained a defect that the property owner knew of - or, in the exercise of due care - was expected to know of - given his duty to monitor, inspect, and otherwise supervise his property for the safety of his visitors. None of this "natural" vs. "unnatural" banter is necessary.

Then - in July of 2010 - just when everyone in Massachusetts is thinking about snow and ice, the "Supremes" decided the case of Papadopoulos v. Target Corp and everything changed. No longer would a plaintiff be required to prove an unnatural accumulation in order to recover. Instead, the high court ruled, the plaintiff would only be required to demonstrate that the property was in defective condition, sufficient to warrant correction by the property owner, as the basis for liability.

Kudos to the SJC for bringing the natural vs. unnatural debate to an end.

Parker Scheer LLP co-founder and Managing Partner, Eric J. Parker, has been appointed to a three year term as a member of the Dean's Advisory Committee of the Suffolk University Law School. The appointment was made by Suffolk Law School Dean Alfred C. Aman, Jr. on April 25th, 2008. The purpose of the Committee is to serve as an advisor to the Dean of the Law School in a wide range of areas, including evaluation of the Law School and its programs, fundraising efforts, national standing, and other relevant matters.

For more information, please contact us.

For the 4th consecutive year, Parker Scheer LLP co-founders Barry S. Scheer and Eric J. Parker have been named Massachusetts Super Lawyers® by the publishers of Boston Magazine.The Super Lawyer® designation is the result of annual peer surveys conducted throughout Massachusetts, with only the top 5% of all Massachusetts attorneys receiving the designation. Parker Scheer has been awarded the Super Lawyer® designation every year since the honor was created in 2004. This year, the magazine also named Parker Scheer attorneys Susan M. Bourque, Debra Concepcion, and Ryan P. B. Kelly, as Massachusetts Rising Stars®.

For more information, please contact us.

December 14, 2009

For those of you who still in need of that perfect tree for Christmas; this blog's for you. 

There are a few things to keep in mind before you lace up your snow boots, head out into the frosty air and cut down your own Christmas tree. Aside from frostbite and squirrel attacks, you may be walking into less obvious dangers when you cut down your own tree. And what's more concerning is that even if you are seriously injured you may have no recourse against the owner of the tree farm.

A recent Massachusetts case illustrates the dangers inherent in "pick your own" tree farms. In the case, a woman was seriously injured when she tripped over a stump that was covered in snow while she was out looking to cut down her own tree. The woman sued the owner of the Christmas tree farm for her injuries but the lower court denied her claims citing a Massachusetts statute. The statute does provides for limited liability for owners of "pick your own" Christmas tree farms, however what was most troubling about the trial court's decision was that they said that the owner of the farm could avoid all liability even if they did not post a proper warning sign!

Fortunately, the appellate court overruled the trial court and found that in order for the owners of "pick your own" Christmas tree farms to avoid liability for injuries that are sustained by its customers; they must post a proper warning.

What this means for those of you who want a pick your own tree, is that you may be relinquishing your rights if you walk onto a Christmas tree lot. If you see this sign at the entrance of the lot:

WARNING
Under section 2E of chapter 128 of the General Laws the owner, operator, or any employees of this farm, shall not be liable for injury or death of persons, or damage to property, resulting out of the conduct of this 'pick-your-own' harvesting activity in the absence of wilful, wanton, or reckless conduct.

You are giving up your right to be compensated for injuries that you suffer on the lot. The warnings must be placed in a location visible to people entering the farm and the warning must appear on a sign in black letters of at least one inch in height.

The point here is that people need to be aware when their rights are being extinguished. So before you enter the Christmas tree lot this holiday season, remember to look for the sign.

Have a safe and happy holiday from Parker | Scheer LLP. 

Parker Scheer LLP, a leading Boston personal injury law firm, has successfully represented numerous persons in personal injury matters. If you or someone you know has been injured as a result of the negligence of another, contact us seven days, toll free at 866-414-0400 or by email to info@parkerscheer.com

In a follow-up to yesterday's post about the Mattapan, Massachusetts woman who was attacked by "Fritz" the off-duty, Boston police dog, we now read that Governor Deval Patrick's dog, Tobey, may have injured a woman who attended a Town Meeting this week. What's interesting about these two incidents is the way the two victims would be compensated under existing Massachusetts law, had - hypothetically - both dogs inflicted the very same injuries.

In the case of the female Mattapan victim, regardless of the extent of her injuries, the very most she would likely recover against the Commonwealth of Massachusetts (as the owner of the dog) is $100,000.00. This would be the maximum recovery, even if the injuries included massive facial disfigurement or death. Massachusetts lawmakers simply do not believe that any injury caused by the negligence of its employees (or its dogs) is deserving of any more than one hundred grand.

Now consider the victim of Governor Patrick's dog, Tobey. While it appears that the injuries inflicted by Tobey were only minor, since Tobey is owned by Governor Patrick, and not by the Commonwealth, the Governor does not enjoy the same protections as those provided to the Commonwealth. Simply put - if both Fritz and Tobey each bit a person's nose off, Tobey's victim might receive hundreds of thousands of dollars or more in compensation, while Fritz's victim would never receive a dime over one hundred thousand dollars.

The Massachusetts Tort Claims Act (G.L. c. 258 section 2) creates two classes of tortfeasor for the purpose of compensating victims: The citizen tortfeasor (which includes individuals and corporations) and the governmental torfeasor. The problem with such a system is obvious: governmental tortfeasors have no real economic incentive to avoid acts of negligence; as the worst case scenarios involve a penalty that the State can easily afford to pay. If a Boston police officer runs a red light while operating his cruiser and kills a pedestrian in a crosswalk - the maximum recovery to which the family of the victim is legally entitled is just one hundred grand - that's before attorney's fees, case expenses, and unpaid medical costs. Not a penny more.

I hate when people say it, but I have to agree - laws only change when lawmakers suffer the tragedies and inequities that their constituents face every day. Only then will the relic that is Chapter 258 be brought in line with 21st century medical costs, wage losses, and other economic damages that victims of governmental negligence presently face as victims.

Eric J. Parker

The "off duty" Boston police dog that attacked a Mattapan woman today may just be the luckiest dog around. Under Massachusetts law, the owner or "keeper" of a dog that causes injury to a person is "strictly liable" to the victim for the damages inflicted. In plain words - if you own a dog, and your dog bites someone, the only question to be answered is: how much is the victim entitled to recover. There is no limit to the amount of the recovery the victim may be awarded by a Massachusetts jury - unless of course, the dog happens to be owned by the Commonwealth of Massachusetts. Under Massachusetts General Laws Chapter 258 Section 2, the absolute most that a victim may recover from the Commonwealth for personal injuries caused by the negligence of the Commonwealth (or-in this case, its dog) is one hundred thousand dollars - regardless of the extent of the injuries inflicted, including wrongful death. The $100,000 limit, a figure established by Massachusetts law-makers long ago, would not begin to compensate a person who suffers debilitating injuries as a result of a dog attack. Nevertheless, the Massachusetts legislature has shown no interest in updating this antiquated law. In more "civilized" States, such as New York, the liability of a governmental body (such as a city or town) is treated no differently than an individual charged with the very same negligence. Had the victim of the Mattapan attack been the owner of a dog who attacked a Massachusetts police officer (an employee of the Commonwealth of Massachusetts) the owner of the dog would face unlimited liability for the injuries suffered by that police officer. The $100,000 cap simply would not apply. This law is outdated, unfair to victims, and should be updated.  

It happens every time the economy falters: people look for ways to reduce their household expenses and motor vehicle insurance coverage tends to find itself on the chopping block. While nobody can successfully argue against the practice of eliminating wasteful spending, reducing automobile insurance coverage as a means of trimming expenses is not the answer. In fact, as economic conditions weaken, the stronger the argument becomes for actually increasing your automobile insurance coverage.

When you or a household family member are involved in a serious motor vehicle accident, your motor vehicle insurance policy may provide those injured with valuable insurance benefits. Two examples of such benefits are"Under-insured motorist coverage" and "Un-insured motorist coverage" (commonly referred to as "U-Coverage"). U-Coverage becomes available to you  - under your own auto policy - in the event the operator of the vehicle that caused the accident has insufficient coverage to fully compensate the victims for the injuries suffered. In a sense, your coverage actually becomes the coverage of the "at fault" driver, and is available to compensate you when the at fault driver has insufficient coverage. Because it takes just $20,000 in bodily injury insurance coverage to legally put a car on the road in Massachusetts, the argument for higher U-Coverage limits is extremely strong.

That argument grows even stronger when you consider just how many people in Massachusetts operate motor vehicles with only the minimum required insurance coverage. And in difficult economic times, the number of people who choose to operate their motor vehicles without any insurance coverage, in direct violation of Massachusetts law, rises dramatically. In the event you or a household members suffer serious injuries as a result of an under-insured or un-insured driver, the only policy you will likely turn to for coverage will be your own. The more coverage you own at the time of the accident, the more likely you will be fully compensated. In short - reducing U-coverage during difficult economic times is pound foolish. Increasing U-coverage to guard against the under-insured or un-insured driver may be the smartest decision you could make.

__________________________

Eric Parker is a highly experienced Massachusetts personal injury lawyer, and concentrates in serious motor vehicle related cases. Reach him at ejp@parkerscheer.com or call toll free seven days a week 866-414-0400. There is never a fee to discuss your potential case.

Insurance companies that insure Massachusetts homeowners have quietly been reducing, if not altogether eliminating insurance coverage previously available to dog owners. The trend began several years ago when a number of homeowner's insurance companies began "black-listing" certain breeds they labeled as "highly dangerous", including Pit Bulls, Doberman Pinschers, American Bull Dogs, and other breeds believed to be more dangerous to humans than other breeds. More recently, however, owners of breeds not listed as "dangerous" have discovered that their homeowners' insurance policies provided a substantially lower limit of coverage for claims asserted against them when their dog did cause injury. Unfortunately, discovering low (or no) limits of coverage after your dog causes injury to another person, can be almost as painful for the dog's owner as it can for the dog's victim.

In Massachusetts, the owner of a dog who bites or otherwise causes injury to another person is considered "strictly liable" for the injuries caused by their dog. The only defense available to the dog owner arises when the victim of the dog attack was shown to have been "teasing or tormenting" the dog at the time the attack occurred. In the absence of evidence of teasing or tormenting by the victim, if your dog bites - you pay! And in some cases, you pay big!

Even a person who does not legally own a dog, but is deemed a temporary "keeper" may be held liable under Massachusettsts' so-called "dog bite law".

If you are the owner of a dog, or you "keep" a dog owned by another person, be sure to speak with your homeowner's insurance company or insurance agent to confirm whether you indeed have coverage for dog-related claims, and exactly how much coverage is available to you "per claim". If the amount of dog-related coverage is lower than the limits of coverage available to you for other categories of claims, be sure to ask your insurance company or agent whether you can purchase higher limits for dog-related liability. If not, consider moving to an insurance company that can provide you with higher insurance limits.

Parker Scheer attorneys have significant experience representing adults and children seriously injured by dogs. If you or someone you know has been the victim of a dog-related injury, contact us seven days a week at 866-414-0400. There is never a charge to discuss your case. [Read More]

Martin L. Aronson, one of the Massachusetts' most distinguished trial lawyers and mediators, will join Parker Scheer as Senior Counsel, effective June 1, 2008. Marty brings more than forty years of experience in the areas of tort litigation and domestic relations law. In addition to his legal practice, Marty has served as an Adjunct Professor of Law at Boston College Law School since 1974, teaching classes in both Negotiations, and Trial Practice. He has served as a Guest Instructor in Harvard Law School's Trial Advocacy Program, as well as a Teaching Participant in the Massachusetts Continuing Legal Studies (MCLE) program, and as a guest lecturer at Northeastern University. Prior to joining Parker Scheer, Marty was a principal in the Boston law firm of White, Inker, Aronson, P.C., widely regarded as among Boston's most respected domestic relations and civil practice law firms, and served as Managing Partner for most of his 35 years there. Marty holds an A.V. rating from the Martindale Hubbell Law Directory, a distinction awarded only to those attorneys deemed by their peers to embrace the highest standards of professional skill and ethics in the practice of law, and was named a Massachusetts Super Lawyer (awarded to the top 5% of all practicing attorneys) by the Editors of Boston Magazine. In addition to his legal practice, Marty has established a highly successful divorce mediation practice. Marty has served as a "certified mediator" with Legal Options; James P. Barron's, Alternative Dispute Resolution Specialists; and the Middlesex Superior Court Auto Intervention Program. Through his work as a mediator, Marty has developed a reputation for resolving complex disputes both effectively and cost-efficiently. Marty is an elected member of the American Board of Trial Advocates (A.B.O.T.A) (President, Massachusetts Chapter, 1994-1996), and is a past President of the Boston College Law School Alumni Association. Marty is a graduate of Boston College Law School and Dartmouth College.

E-mail: mla@parkerscheer.com

Under current Massachusetts law, when someone is injured or killed as a result of the negligence of an employee of a Massachusetts Town, City, or the State, the maximum the victim or the victim's family can recover as compensation for the injury or death is $100,000. That's before deductions for attorney's fees and costs (usually amounting to about $33,000). This leaves the victim with roughly $66,000, whether the victim is left quadriplegic, blind, paralyzed, or dead. What brings this ridiculous law from the world of the absurd to the world of the insane is that the $100,000 cap applies even if the municipal employee is "grossly negligent" - generally defined as "reckless", or "with wanton disregard for the value of human life". Keep in mind, this law was created by Massachusetts lawmakers to protect the Commonwealth's treasury. It does not exist in New York or in most other civilized States. It has only one purpose: to save the State money no matter how horrific the act.

Every week, it seems, we read about another death or serious injury caused by the negligence of another Massachusetts City or State employee. Whether it's the death of a young child in a negligently maintained school yard, or the death of an innocent motorist in a defective State-owned tunnel, regardless of the extent of the negligence, the most the City or State will ever have to shell-out to the victim or the victim's family is $100,000. How can the "Bluest State in America" ( - Jon Keller) be so damn "Red"?

If it were not so damn sad, you would almost have to laugh. The Massachusetts legislature is now considering changes to Massachusetts General Laws Chapter 231 Section 15 -- the so-called Charitable Immunity Statute -- which would deny churches the protections otherwise available to such organizations, for claims involving sexual abuse to minors by priests and other church employees. But what about children injured by other demons?

Why must their injuries go largely uncompensated? Raped by a priest? Collect a million dollars. Left in a wheelchair by a drunk school bus driver? You're out of luck. Massachusetts lawmakers still feel that about sixty thousand dollars (after legal fees and expenses) is fair enough, when the harm is caused by a Massachusetts State employee. The only reason the legislature is even looking into revising the statute is because rapes by priests is today's "tort du jour". Do we have to wait until every kind of injury makes the front pages of the daily newspapers before Massachusetts lawmakers address the next injustice caused by these laws? What a real crime that would be.

Eric. J. Parker