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When an accident occurs outside a business on a walkway, it can be initially difficult to tell who is responsible for a walkway when there are hazards. A recent Appeals Court case, Halbach v. Normandy (15-P-1500), discusses how liability is determined when the sidewalk right outside a business actually belongs to the city or another property owner. In this case, the injured man suffered serious injuries after he fell on uneven pavement outside a parking garage.  The sidewalk was public property. The building was maintained by a separate group, which the injured man alleged was responsible for repairing the sidewalk or warning pedestrians of any hazard.

The managing company moved to dismiss, and the trial court granted it. To prove negligence occurred, one must show that a duty existed under the law. Under premises liability case law, the owner or manager of a business must use reasonable care to protect guests from harm. However, the scope of the duty created only extends to areas for which the business is actually responsible. The lower court ruled in this case that the managing company did not owe a duty to the injured pedestrian. The appellate court looked at whether the lower court was correct in its determination and also addressed whether the scope of the duty should be extended.

The injured pedestrian tripped and fell near a garage. The pavement was uneven on the sidewalk owned by the city, which was adjacent to the garage maintained by the defendants. After the accident, the managing company hired someone to grind down the uneven pavement. The injured pedestrian initially argued that the managing company exercised control over the sidewalk, and because of this control, it owed a duty to the injured party. The Appeals Court pointed out that the duties of an owner of property abutting a sidewalk or another public way are limited. Case law states that an owner cannot create a hazardous condition that could interfere with travel but does not have an affirmative duty to keep a public sidewalk clear.

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During the course of a career, the employing company may re-organize different aspects of its business, including its workers’ compensation insurer. Workers’ compensation law provides for this situation, in the event that a long-term worker suffers an ongoing injury with another injury. The successive insurer rule requires an insurer to pay for the compensation of all of the injuries that a worker suffers, even if it was not the insurer when the original incident or ongoing injury occurred. As long as the recent injury has a causal relation to the disability claimed, the insurer must cover the risk. The insurer must take the employee “in the condition in which he finds him,” so the provision of benefits is streamlined and expedited.

In Linton v. G.P.C. International (Bd. No. 035380-10), the second insurer appealed a decision granting medical benefits for a repetitive injury to an employee’s right shoulder. The employee worked for the employer since 1996, performing repetitive, heavy lifting of 75 to 100 pounds as a paper processor and machine operator.  He began having pain in 2003 in his right arm, which resulted in physical therapy. Seven years later, the worker returned for shoulder pain care and could not work for two months. During this period, he received weekly workers’ compensation benefits. The first insurer paid for medical expenses, including physical therapy and a TENS unit he still uses.

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As one nears retirement, many decisions await from family to financial matters. A recent federal appellate decision, O’Shea v. UPS Retirement Plan (No. 15-1923), reveals the importance of careful estate planning alongside serious illnesses or retirement. In this case, an employee, diagnosed with cancer, died one week before his official retirement date but after his final day of work. Following a diagnosis in the previous year, the employee originally planned to retire at the end of the calendar year. The employee met with a human resources supervisor, who advised him to take his accrued time, which pushed back his official retirement date. This advice given was standard practice, and the HR supervisor had no knowledge that he was terminally ill.

Following the submission of his retirement application, the employee was told that his annuity start date would be March 1, 2010 after his official retirement on February 28, 2010. The employee chose the Single Life Annuity with 120-Month Guarantee and named his children as the beneficiaries. The Guarantee allowed him to receive payments of over $4,000 each month for 10 years. If he died during this term, his listed beneficiaries would receive the payments. Neither the HR supervisor nor the retirement benefits applications made it clear that he needed to live until the annuity start date on March 10, 2010 for the guarantee to be realized. The employee was unaware that he risked forfeiting his payments by delaying the retirement date.

While the retirement application did not explicitly lay out the requirements in the body of the application, it did note that the benefits plan designations are subject to the terms of the Plan. The Plan states that payments can be made to the beneficiaries if the participant dies before the first payment but after the annuity starting date. The only exception listed is for a spouse or domestic partner, who would be entitled to receive a pre-retirement survivor annuity. In addition to the annuity plan, the employee also participated in the Special Restructuring Program, which provided a year’s compensation in exchange for signing a release of claims and retiring. The employee accepted this with his attorney on February 12, 2010 for a single pre-tax payment of $98,800. The release included his employer and “all related companies,” which included the benefit programs, as well as any claims of which he might not know.

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Duty is a term that one may hear frequently in a personal injury lawsuit. In any negligence action, it is one of four elements that must be proven at trial to hold a defendant liable for her, his, or its actions. The duty to act in a certain manner to ensure the safety of others is often created by statute. However, certain duties are strengthened or lessened by case law formed by one or more appellate decisions. This can be seen in a recently issued wrongful death case, Bernier vs. Smitty’s Sports Pub, Inc. (No. 14-P-1967).

In this case, the decedent patron had entered the rear entrance of a pub. He opened a door with an “Employees Only” sign, thinking it was the bathroom. The bathroom’s door and the “Employees Only” door looked similar. However, the “Employees Only” door opened into a concrete staircase with a large drop. This door was typically locked during business hours but was unlocked at this time, causing the man to fall and injure himself. The man died a couple of weeks later as a result of his injuries. His estate filed suit against the pub, alleging negligence, and a jury found the pub to be 80% negligent and the deceased to be 20% negligent.

The pub appealed, arguing that they did not owe a duty to the man because he was a trespasser. Under case law, a landowner owes a duty to those it invites onto its property. The premises must be maintained in a reasonably safe condition, with the owner acting as a reasonable person would act. A court will consider the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. However, if the person is a trespasser, this duty disappears. A landowner is only required to refrain from reckless or wanton conduct that could cause harm to a trespasser. A trespasser cannot file a negligence action against the owner of the property.

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When you work at a physically intensive workplace for a long time, minor to moderate individual injuries that occur over several years can become a sustained injury. A recent Reviewing Board Decision, Breire v. Lowell General Hospital (BOARD NO. 036471-11), highlights considerations made by deciding authorities in Massachusetts’ workers’ compensation system. In this case, the injured employee worked for nearly 40 years as a certified nurse’s assistant (CNA). Throughout this time, she incurred several injuries, some from the workplace and some from her personal life.  Those of note included a workplace injury in which she hurt her back lifting a 350-pound man into a car, as well as car accidents outside work in which she hurt her back and neck. The injured CNA also sustained multiple injuries while working for the employer in this case, hurting her back, hip, and neck on different occasions over 10 years.

The injury that led to this litigated claim occurred when she helped her co-workers lift a 400-pound patient. The CNA suffered hand, neck, and back injuries. On the date of the injuries, she finished her shift, and she returned to work the next day but eventually sought a leave of absence from her job. The injured worker advised her employer that she could no longer perform her duties, due to the combination of injuries suffered. The employee sought temporary total disability benefits, among others. The insurer filed a denial, arguing that the injury suffered was not a workplace injury. After a conference and a hearing, the Administrative Law Judge (ALJ) awarded the injured CNA § 34A (total permanent disability benefits), finding that the last injury was the major cause of her disability.

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The Massachusetts Appeals Court recently assessed a summary judgment in favor of the defendant manufacturer in Niedner vs. Ortho-McNeil Pharmaceutical, Inc. (No. 15-P-1272). The estate filed suit against the makers of a birth control device that was prescribed and taken by a deceased college student. The woman was first prescribed an oral form of birth control in 2008, which she took but eventually discontinued. The young woman then looked for another form of birth control and was prescribed the Ortho Evra patch (patch), which transfers synthetic forms of estrogen and progestin through the skin. Rather than daily ingestion, this method only requires direct application to the skin once a week for three straight weeks, followed by a patch-free week. After taking this second round of hormonal birth control for three months, the young woman collapsed and died in her dorm room from a pulmonary embolism. The estate filed suit, alleging breach of warranty. The central focus of this breach of warranty claim was that the birth control manufacturer failed to adequately warn of the increased risks of suffering a blood clot.

By law, a manufacturer of a product with known dangers has a duty to warn consumers who will foreseeably come in contact with the product and be subjected to those dangers. (See H.P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 75 (1976). If communication with a consumer is unreasonable, the burden of this duty is alleviated. Specifically, this comes in the form of the “learned intermediary rule,” under which the manufacturer is not as responsible for passing the knowledge of risks to the consumer if those risks are communicated to the physicians and pharmacists handling the drug. However, case law has shifted part of this duty back to the manufacturer as patient participation has increased and the medical supervision over commonly used products, like birth control, has decreased.

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The Massachusetts Workers’ Compensation Act, under G. L. c. 152, § 31, provides benefits to the spouse of a deceased worker whose fatal injuries were caused by the workplace. The statute allows unmarried widows or widowers to receive 2/3 of the deceased’s average weekly wage. This benefit was designed to help living spouses who were not able to support themselves, and it can be reviewed at any time for cost-of-living increases, reductions, or termination.  In Freedman vs. Suffolk County Sheriff’s Office (Bd No. 012354-97), the wife of a deceased worker appealed the termination of her spousal benefits after an Administrative Law Judge (ALJ) ruled that she was fully self-supporting.

To determine whether or not the wife was self-supporting, the ALJ conducted an in-depth review of her living expenses. The ALJ found that her qualified weekly expenses were $768.50, which were more than covered by her salary of $894.97 a week. The woman had been receiving $751.04 from the § 31 benefit, and she appealed the ALJ’s finding, arguing that she was not fully self-supporting because she was putting her daughter through college.

The Board determined that the judge’s method of calculations was correct to determine what was “necessary and reasonable.” However, while the Board emphasized there is generally a high amount of deference to ALJ findings, it did not agree with the exclusion of college expenses. While there is not a “redline” for determining reasonable and necessary expenses, consideration is given to accustomed standards of living. The Board went on to hold that college tuition must be factored into a determination of whether a widow or widower is fully self-supporting.

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In medical treatment, patients depend upon doctors and nurses to provide the best care available under the current standards of care. Patients also hope and expect the instruments and devices used by medical staff to work, aiding in their recovery. If one of these instruments or devices fails, a patient may experience a greater injury than the condition from which they suffered originally.  When this occurs, civil relief is available through a product liability lawsuit, as seen in Albright v. Boston Scientific Corporation (15-P-633). The injured patient, a lady from Ohio, filed suit against the manufacturers of the pelvic mesh surgically implanted to treat her Pelvic Organ Prolapse (POP). The injured woman had the mesh implanted to assist with weakened tissue in her pelvic area after a previous surgery provided minimal to no relief. Her surgeon implanted one of BSC’s devices, which was advertised as safe for treatment of POP. The FDA had cleared the device for sale, but through the § 510(k) process in which the device is substantially equivalent to another already on the market. Under the § 510(k) process, the device does not have to undergo clinical tests for approval. At trial, the injured patient provided expert testimony that concluded the mesh oxidized and reacted with the patient’s tissue in an unexpected, untested way. The trial court, however, excluded two letters from the FDA sent to the manufacturer, as well as the medical application caution sent by the supplier of polypropylene material, which addressed some of the potential issues with the mesh.

The injured patient appealed the exclusion of this evidence, which was offered for the limited purpose of showing knowledge and notice on the part of the manufacturer that they were aware of potential problems with the mesh’s material. Both sides offered witness testimony and opinion as to what caused the injury to the patient and whether the manufacturer should have known of the risks, based on the type of materials used. The injured patient and the manufacturer also presented evidence regarding whether or not the manufacturer advised her surgeon of the known risks in its use.

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In personal injury lawsuits, claims must be filed within a certain time limit set by law. Most must be brought within three years of when the date of the cause of action accrues or arises. The time begins to run when the injured party knew or should have known that he or she was harmed by the defendant’s conduct. In a recent Supreme Judicial Court opinion, Parr vs. Rosenthal (SJC-12014), the court formally adopted the “continuing treatment doctrine” for medical malpractice claims. Under this doctrine, the statute of limitations does not begin when the allegedly negligent physician continues to treat the patient for the same or a related condition. The idea behind the doctrine is to encourage recovery rather than litigation by promoting the doctor-patient relationship for conditions that require ongoing treatment.

In this case, the injured person was a boy born with a large lump on the back of his right calf. A team of doctors examined the lump and diagnosed it as a desmoid tumor, a benign tumor that can grow in a way that would hamper the normal growth of tissues and bodily functions.  For this patient, the tumor had already caused an abnormality in his gait. The team approached the defendant doctor to perform Radio Frequency Ablation (RFA) to remove the tumor. This process uses a long probe with heating tines that burn the tumor in a spherical area immediately surrounding the tines, but it does not distinguish between healthy and unhealthy tissue. The doctor is known as the “inventor” of this process, and he is considered a leader in the field. However, the defendant doctor had not performed this procedure on this type of mass prior to the date of the surgery.

Immediately before the procedure on November 4, 2005, the doctor did not explain the risks associated with the surgery to the parents, particularly the risks of burns to the skin.During the procedure, the doctor discovered he had burned more than the planned treatment area. The defendant doctor stopped the procedure and told the parents of the burn, but he assured them their child would “recover and be fine.” The boy did not recover, his nerves destroyed by the burn. Eventually, the child’s leg was amputated below the knee on March 20, 2006, due to continued problems with the burn. Even then, a second amputation became necessary on March 12, 2008, due to continued infections and insufficient muscles for a prosthesis. A little over a year later, on March 6, 2009, the parents filed suit. At trial, the injured boy proposed jury instructions that the statute of limitations did not begin until the treatment by the defendant doctor or the team of doctors was terminated. The judge declined to give such instructions, and the jury returned a verdict in favor of the defendant doctor, concluding that the injured person knew or should have known about the injury before March 6, 2006.

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Trusts can provide a way for an owner to enjoy her or his property during life, while ensuring the property held in trust pass to certain parties after her or his death.  In Mond vs. Pitts (15-P-686), the Massachusetts Appeals Court reviewed whether property held in two trusts with the same primary trustee and beneficiaries terminated, allowing the property to pass to the trustee’s heirs, or remained intact, passing to the beneficiaries after the settlor’s death.  At trial, the judge of the Land Court held the trust terminated after one of the trustees resigned and assigned her interest as trustee in both trusts at issue.  The beneficiaries appealed, and the appellate court reversed the prior ruling, agreeing with their argument that the trust remained intact.

As with all trusts, the construction of the document is the first place administrators and courts look at to determine the intent of the trustee. Both trusts in this case were created in the 1980s, for a term of forty hears and thirty years, unless the death of the settlor occurred first.  The 40 years trust named the settlor as the beneficiary, and then the two appellants, or their survivors, as the next beneficiaries if he died.  The trustees named in the document were the settlor and another woman, with a provision that either will become the sole trustee if the other dies or resigns.  The 30 years trust had similar language, with the same trustees and beneficiaries named.  It also had a similar provision assigning the remaining trustee as the sole trustee if one dies or resigns.  The settlor eventually became the sole trustee for both trusts after the other trustee resigned as trustee and assigned her interest.

The heirs of the settlor filed suit after his passing, arguing that the trusts terminated when the settlor became the sole trustee.  The land judge agreed, finding the paragraphs within the trust to be inconsistent with one another – with one paragraph naming the two appellants as beneficiaries and another within the trust document as heirs.  The judge also found that the doctrine of merger applied when the settlor became the sole trustee, becoming the sole lifetime beneficiary and trustee of each trust.  The appellate court disagreed with this analysis, finding that the second paragraph in question dictated the proceeds to be divided among the “beneficiaries if living”.  Both appellants were alive at the time of the settlor’s death.  The appellate court found reading the document as a whole consistently pointed to the appellants as beneficiaries of the trust.  The appellate court also disagreed with the land judge’s view of merger, pointing out that the designation of contingent beneficiaries precluded any merger.  The appellate court reversed the ruling of the land judge and remanded it to the lower court for the trust property to be distributed to the beneficiaries, as intended by the settlor.

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