Published on: |

Generally speaking, a property owner does not have a duty to prevent dangerous or harmful acts of third parties. Under Massachusetts personal injury law there is an exception to the general rule, in that a property owner can be held liable for ignoring criminal activity it knew or should have known was occurring on the premises. In Charles Northrup v. National Amusements, the Appeals Court of the Commonwealth of Massachusetts recently clarified that a property owner will only be liable for a criminal act occurring on its property if it had knowledge of prior similar acts.

In Northrup, the Plaintiff was sitting in his vehicle in the parking lot of the Defendant’s movie theater, when he was stabbed by an individual suffering from schizophrenia and other mental illnesses. Plaintiff subsequently sued the Defendant for negligence, alleging the Defendant’s failure to provide police protection on the premises caused his injuries. The Defendant filed a Motion for Summary Judgment, arguing the stabbing was not foreseeable. The trial court granted Defendant’s Motion and Plaintiff appealed. On appeal, the Appeals Court of the Commonwealth of Massachusetts affirmed.

The court noted that while police reports indicated there were thirty incidents at the movie theater in the three years prior to the incident, only three of the incidents resulted in an arrest, and only one incident involved a violent act. The remainder of the incidents involved theft and other property crimes. Additionally, the internal incident reports written by the Defendant indicated there were seventy-one incidents in the three-year period prior to the stabbing. While most of the incident reports did not indicate any criminal activity, four of the reports indicated violent acts, including one report of an incident in which rocks were thrown at children when they were leaving the theater.

Continue reading →

Published on: |

Insurers can raise an “affirmative defense” during the proceedings related to a claim for Massachusetts workers’ compensation benefits.  One such defense is allowed by the Worker’s Compensation Act, which prevents someone from receiving benefits when they’ve rejected treatment that can lessen her or his suffering through reasonable remedies and operations available through the medical profession.  The injured needn’t try every possible medical procedure, just those where it appears there is substantial gain to be had, which do not subject the injured to unusual risk or danger. 

Recently, the Massachusetts Reviewing Board looked at whether an affirmative defense was appropriately raised and considered.  The employee claiming § 34 temporary total incapacity benefits in this action was a vending machine route delivery driver.  He worked for over twenty years in this position as part of his forty-year work history.  His job involved repetitive motions carrying heavy boxes of coins weighing up to 100 pounds.  In 2015, he injured various locations on his right arm after falling down steps at work.  The deliveryman’s employer began the payment of § 34 temporary total incapacity benefits, and the employee has not worked since. 

After ten months, the insurer filed to modify or stop the § 34 benefits after a medical report from the insurer’s examining physician.  This report relayed that the employee was able to return to light work with limited lifting.  The employee filed for permanent and total incapacity benefits.  The claims moved onto a §10A conference where the judge granted the motion for permanent benefits and ended the insurer’s motion to discontinue.

Continue reading →

Published on: |

The Commonwealth’s Supreme Court reviewed a new issue recently in a Massachusetts wrongful death law suit.  The legal question was whether a pharmacy was required by law to notify the prescribing physician after the patient’s health insurer advises the pharmacy that it needs a “prior authorization form” filled out by the physician.  The decedent was prescribed Topamax to treat her epilepsy.  The medication controlled her life-threatening seizures.  Her insurer paid for this prescription twice in the months before her nineteenth birthday, but refused to do so afterward because it did not have a prior authorization form for an insured who is older than eighteen.  The woman’s family made multiple attempts to obtain the medication, but the pharmacy refused to fill it.  The family could not afford the medication without insurance and the woman died from a fatal seizure that year.

The woman’s mother and executor brought an action for wrongful death and punitive damages against the pharmacy, her daughter’s neurologist, and the neurological practice.  The mother testified at trial that the pharmacy repeatedly told her daughter and other family members the pharmacy would notify her doctor about the need for prior authorization, but the physician and his practice denied receiving notice.  The trial court granted the pharmacy’s motion for the summary judgment on the legal basis that the pharmacy had no legal duty to the decedent to notify her doctor and the practice about the need for prior authorization.

Prior authorization was required by MassHealth to establish the medical effectiveness and necessity of the medicine.  This was to ensure there were no other cost-effective options to use, or generic drugs.  The form was two pages long and took less than ten minutes to complete. It provided information about the diagnosis, the prescribed medication, basic patient  information ,the doctor’s information, and the prescriber’s signature.  The form was accepted only by the prescribing physician.  Pharmacies and patients were not allowed to complete the form.  The insurer only told the pharmacy because it was the pharmacy that submitted the claim for coverage. 

Continue reading →

Published on: |

The owner and manager of an apartment building attempted to extend the umbrella of immunity under the Tort Claims Act, G.L. c. 258 Sec. 2 to avoid liability for a serious injury Massachusetts slip and fall accident.  A resident of a public housing development fell while descending the stairs in his apartment building.  He filed suit against the city’s housing authority, the company that owned the property, and the company that managed the property.  The owner and manager moved for partial summary judgment, asserting they were public employees.  The motion was denied and the defendants appealed.

The Massachusetts Torts Claims Act arose out of a case law precedent known as “sovereign immunity”.  This legal concept shielded the government from liability if someone was injured as a result of the negligence stemming from a governmental agent.  The Massachusetts legislators created the Tort Claims Act to delineate when this privilege applied and when exceptions to this privilege occurred.  While the Act increases the ability for an injured person to find legal relief, public employees are shielded from liability.  The defendants in this suit argued they were public employees as “controlled affiliates” for a housing authority apartment complex.  The controlled affiliate of a local housing authority is an entity with the power to own and manage residential real property which is within the legal control of the housing authority.  The trial judge found controlled affiliates do not fit within the scope of the definition of “public employee” found within the Tort Claims Act. 

The defendants came into their respective positions in 2009, when the housing authority realized the rehabilitation project costs exceeded the public funds available to them.  The project was partially financed through five other sources, including an equity investment seeking to take advantage of the Federal Low Income Housing Tax Credit program.  The tax credits are available to investors providing funds for qualified low income housing projects with rent restrictions and a minimum share of rental units for moderate and low income households.  The housing authority cannot utilize these tax credits, so in order to keep outside investors on board, they “sell” the use of these credits and transfer the ownership of the housing project to a “controlled affiliate”.  The apartment complex in this suit was transferred over to the owner, giving him 99.99 percent ownership interest and the manager, giving him .001 per cent ownership interest. 

Continue reading →

Published on: |

A Massachusetts car accident resulted in an estate filing suit against a convenience store chain after a speeding driver ran into the deceased as he crashed into the front of the store.  The deceased’s husband and executor alleged the company had experienced several front-of-store “car strikes” and knew of the risks cars had to its store.  The estate claimed bollards or other barriers could have been erected along the walkway and entrance to the parking lot.  The estate argued this would have prevented a car traveling at high speed from injuring anyone, particularly the deceased in this suit.  A jury agreed and awarded the estate over $32 Million in compensatory damages, eventually reduced by the court to $20 million; and $10 in punitive damages, which was waived since it did not meet the $5000 minimum.

The convenience store chain appealed, arguing it should have been granted a new trial after it improperly admitted an internal report about 485 prior car strikes at other stores.  The chain believed each accident referred to should have been subjected to a “rigorous” review to determine whether or not it was substantially similar to the accident in this suit.  At trial and during the appeal, the chain contended the accident was random and unforeseeable.  In response, the estate looked for reinstatement of the $32 million compensatory damages award, asserting the remittitur of the damages was improper. 

The location of the events was similar to other property owned by the chain gas station and convenience stores.  The store was surrounded by parking spaces for those stopping into the store as well as gas pumps.  No barriers or devices were set along the walkway.  The store was located at the “corner” of a three-way intersection that did not meet at 90 degree angles. Two of the three entrances to the property required drivers to slow down to make a turn and enter.  One did not.  This entrance allowed drivers to come straight from the apex of the intersection onto the property without reducing speed or turning.  The situation was dangerous enough for a store employee to complain to two separate managers, but nothing was done to alter the set-up of the property. 

Continue reading →

Published on: |

Lawsuits against government entities used to be very difficult to pursue.  For a long time, government entities were protected by sovereign immunity, a doctrine founded on the idea the “king”  could not be bothered with litigation.  Eventually, the Commonwealth’s legislature changed the reliance on this precedent by enacting the Tort Claims Act, G. L. c. 258, in 1978.  This allowed many more opportunities for lawsuits when employees of state or local government act in a negligent manner while performing work for the city or state government.  However, this statute still provides protection to the government through exceptions for allowed claims.  G. L. c. 258, § 10(j), inserted by St. 1993, c. 495, § 57 bars claims asserting a government employee acted, or failed to act, to prevent or diminish harm, including violent or tortious conduct of a third person, if it did not originate from a public employer or public employee. 

In a recent Massachusetts personal injury action, 17-P-230, the Massachusetts Appeals Court considered a student’s appeal from the dismissal of his negligence action against the school.  The student was injured during field hockey practice by another teammate, who struck her with a field hockey stick. The injury occurred during a drill supervised by a volunteer coach, but not the head coach.  The head coach was on the field but was not actively supervising the drill.  No warnings or techniques were provided to the student athletes to avoid injury.   The student was struck in the face, losing consciousness and two teeth.  The head coach did not implement concussion protocol, nor did he take any steps to stay with her and provide care.  As a result, the student had to have dental surgery and suffered academically due to a concussion.  The student and her parents filed suit, alleging the school failed to properly train and supervise the coaches and other athletes who were present during the incident, failed to provide adequate post-injury monitoring and assistance, and failed to create and use an academic reentry plan after the injuries.  The trial court granted the defendant’s motion to dismiss, finding G. L. c. 258, § 10(j) precluded suit against the school, a government entity. 

On appeal, the student and her parents argued the school caused the original action when the head coach allowed an untrained volunteer coach to supervise a new drill and left the field unsupervised with inadequate instructions.  The appellate court found the behavior to be omissions rather than affirmative actions, as required by the statute.  The court assessed the plaintiffs’ assertion to be an attempt to hold the school liable for failing to ensure the student’s safety during field hockey practice.

Continue reading →

Published on: |

The Massachusetts Appeals Court affirmed a verdict holding the son and power of attorney of the decedent accountable for a million dollars after he removed his father’s girlfriend as the beneficiary of several accounts.  The long-time girlfriend of 38 years and the defendant son were to both benefit from the division of his estate.  The father had named his girlfriend and his son as the beneficiaries and joint tenants on several bank accounts and executed a will in 2013 dividing the estate nearly evenly between the girlfriend and the son. 

Prior to the execution of the will, the girlfriend provided care for the estate owner from 2005 to 2013 after a stroke.  His health was in a general state of decline until 2013, when it became significantly worse following a diagnosis of Stage IV pancreatic cancer.  The girlfriend sought help from the son, since she was unable to care for the father.  She provided the son several financial records, and the father named his son as power of attorney.

After this occurred, the son began transferring several of the bank accounts to his name and his father’s name only.  Some of these transactions included his father, but others did not.  Evidence presented during the trial supported the girlfriend’s claim that the owner of the estate did not know about some of these transfers.  The son also sought new counsel to help prepare a new will for his father.  A second will was executed, leaving the entire estate to the son, less than a month after the first will was executed.

Continue reading →

Published on: |

Massachusetts workers’ compensation is available to employees of businesses who are injured while performing duties for the employer in the scope of their employment.  Whether or not benefits are issued to an injured person hinges on whether the injured person is considered to be an employee.  The Massachusetts Supreme Court recently reviewed in SJC 12368 whether or not an employee should be defined by the the workers’ compensation act in General Laws Section 152 or the independent contractor statute, found in G. L. c. 149,§ 148B. 

The injured person in this case worked as a delivery-woman for a company acting as a middleman to deliver publications to subscribers.  Over the course of her employment, she signed several contracts identifying her as an independent contractor.  She was given a route, but she had the freedom to choose the delivery time and path she liked as long as the deliveries were completed by 6 AM on weekdays and 8 AM on weekends.  The injured person made deliveries in her own car for 12 years.  She was paid based on each newspaper delivered, with an additional stipend for delivering papers to those who did not receive a scheduled delivery. 

In 2010, the appellant injured herself while loading papers in her car using a hand carriage.  She fell off a ramp and injured her right hand and right knee.  She reported it to her employer but continued on with her workday, seeking no medical treatment.  The injured person experienced another accident a few months later, slipping on ice while delivering papers and hurting her right leg.  For this injury, the injured person had to undergo two surgeries for her right leg and right hand. 

Continue reading →

Published on: |

The Massachusetts Supreme Court recently determined there was no special relationship between a university and its student that would create a duty for the university to take action to prevent his suicide.  Without an obligation to act, the university was not liable for the student’s death.  In this Massachusetts wrongful death case (SJC-12329), the Supreme Court acknowledged that a special relationship could be formed between a university and its student, but it wasn’t present here.

This case originated with a graduate student who lived off campus.  He struggled taking tests and sought help from the program coordinator.  The coordinator referred him to the school’s disability services, but the student declined to use the disability accommodations.  Notes of the meeting between the disability coordinator and the student show he declined to connect with the school’s medical division, believing it would not help.  The student was also referred to the university’s mental health services, where he also turned down assistance.  The student denied suicidal ideation. 

Later, the student admitted he had long suffered from depression and had made two prior suicide attempts in college.  The student denied having any active thoughts of suicide.  The student agreed to return at the beginning of the school year to address his test-taking issues and mental health.  However, during the summer, he expressed frustration at the course of action taken by the university with referrals to mental health services.  The student relayed to school officials he was actively under the care of a psychiatrist.  When he returned to school, he again acknowledged he had been treated for depression by a private physician.  After additional meetings, the school reached out to the private physician, who accepted the information provided and expressed concern without formally acknowledging he was treating the student. 

Continue reading →

Published on: |

The Commonwealth’s Appeals Court recently issued a Massachusetts workers’ compensation decision affirming the determinations made by the Administrative Judge and Reviewing Board granting temporary and permanent benefits to a bank teller who suffered a series of back injuries at work. The employee first reported transitory back pain in 2011, but she was asymptomatic for two years following her treatment. In 2014, she had another round of back pain after lifting several coin rolls from the floor to take to a service window. The employee managed to return to work but experienced increasing back pain for several months. The employee left to treat the pain and came back, but she eventually left for good in January 2015 after the pain refused to subside.

At the hearing, the judge found the teller suffered an industrial injury in 2014, which resulted in total disability from July 12, 2014 through November 3, 2014, and again from January 2015 and ongoing. The insurer was directed to pay the compensation for those periods as well as payment for the necessary medical treatment provided. The insurer appealed, arguing the Board’s decision upholding the administrative judge’s award was arbitrary and capricious, and it was not based on the evidence provided in the record.

The appellate court found the evidence, although conflicting, supported the judge’s findings and conclusions in favor of the teller. The administrative judge found the teller’s testimony to be credible and persuasive, and he adopted her account for all of the substantive points. The submitted notes and testimony from the treating and examining physicians backed up the teller’s testimony, and the accident in March 2014 was determined “with reasonable medical certainty” to be the cause of the teller’s pain. The judge adopted the opinion of the physician who concluded the teller was unable to carry out her previous work functions. While this opinion differed from the other physician’s testimony, the court found it was within the judge’s discretion to adopt one opinion over the other.

Continue reading →