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A large number of premises liability cases arise from situations like slip and falls or hazardous passages. In both of these situations, the owner or manager of a property or business is liable when she or he fails to exercise reasonable care for the safety of the invited public. A recent Appeals Court case, Wess v. Butterworth (14-P-1790), addresses a different type of premises liability case. Here, the court assessed whether the jury instructions were an adequate reflection of the law that creates a duty for landlords to use reasonable care to guard against the foreseeable wrongful and criminal acts of third parties. In this case, the injured man was stabbed by an estranged friend who entered the building without authorization. The injured man alleged the landlord was negligent because the apartment building doors had locks but no peepholes, intercom, or buzzer system to help identify anyone on the other side of the door.The injured man and his wife filed suit against the landlord of the property, complaining of serious physical and psychological injuries. The case proceeded all the way to trial, where the jury found that the landlord had been negligent, but her negligence was not the proximate cause of the harm to the plaintiffs. The verdict returned was ultimately in favor of the defendant, and the injured man and his wife appealed. On appeal, the couple argued that the judge erred by not giving a requested instruction regarding the definition of proximate cause and superseding cause.

The requested instructions included a recitation of the law described above – that the failure of the landlord to use reasonable care to guard against the foreseeable wrongful and criminal acts of third parties may result in a breach of the duty to exercise reasonable care. The appellate court agreed that the proposed instructions reflected the law and could even have included the established law that the specific criminal act did not need to be foreseeable, just the type of crime. The appellate court determined that the supplemental instruction given to the jury accurately described proximate causation and went on to charge that the injured man did not have to foresee the exact manner in which the harm occurred, but the harm he suffered must have been a natural and probable consequence of the defendant’s negligence.
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In Draper v. Francesco Demolition, Inc. (15-P-702), the Commonwealth’s Appeals Court reviewed a directed verdict made during trial in favor of the defendants in a personal injury action, determining whether an injured man contracted bacterial pneumonia as a result of the defendants’ negligence. In this case, the focus was whether the injured man presented enough proof to show his injury was caused by the defendants. In its analysis, the appellate court affirmed the trial court’s determination that the injured man needed some sort of expert testimony to help the jury distinguish between his pre-existing condition and the injuries caused by the bacterial pneumonia alleged to have been caused by the standing water.

Draper centered around proof of causation, which is one of the four elements in any personal injury action. The four elements in a negligence lawsuit are commonly known as duty, breach, causation, and damages. A defendant cannot be held liable unless she or he owes some sort of duty under the law to the injured party. The injured party must then show that the duty was breached and that the breach was the cause of the injury. Proving causation at trial can be accomplished in many ways, depending on the situation. People who witnessed the scene can be called to testify. Professionals can be called to testify about their field of expertise to help the jury understand a complicated engineering or medical concept. Pictures and research can also be utilized to help illustrate certain ideas or a sense of the place where the injury occurred.

The appellate court in Draper looked at the injured man’s health and lifestyle, which included tobacco and alcohol use, prior lung disease, a pre-existing heart block, and a need for a pace-maker. During trial, the injured man chose not to introduce any medical records or expert testimony. He also chose to change the injury from pneumonia to an unidentified illness, even though the defendants used a medical expert who testified it was pneumonia and caused by his collection of pre-existing conditions. The injured man claimed he was going to rely on his own testimony, his wife’s testimony, and a witness, but that was not enough for the trial court or the Appeals Court.
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Many types of employment involve repetitive motions. Over the course of time, these repeated movements can lead to an injury that is compensable under Massachusetts’ workers’ compensation laws. A recent Board Decision in Aguilar v. Old Republic Insurance (Bd No. 029539-12) reviewed a decision that awarded a limited amount of temporary total incapacity benefits, an ongoing award of partial incapacity benefits, and medical benefits for a total replacement for the injured worker’s right knee. In this case, the injured employee worked as a certified nursing assistant (CNA), which required her to move, feed, dress, and bathe patients. During the proceedings, the injured CNA testified that she felt pain in her knees, especially the right one. The nurse stated that she fell to the floor in 2011, landing on the right knee while bringing a tray to a patient.

The employee stopped working in the year following the fall, and she had the knee replacement procedure. The injured CNA then applied for short-term disability benefits, followed by workers’ compensation benefits. Following the filing of this claim, the CNA was seen by an impartial medical examiner, who agreed with her treating physician that her employment was the major cause of her knee injury. The judge adopted these opinions, ruling out the pre-existing condition defense raised by the insurer. The judge found the injured CNA’s testimony regarding her multiple falls was credible, based on the hospital visit that followed a fall and a report to a supervisor. The judge also felt that she should be credited for all the multiple, documented complaints she made throughout the years preceding the knee replacement to her supervisor.

In addition to arguing the injured employee’s knee was the result of a pre-existing condition, the insurer also argued that the CNA did not prove she fell and struck something during the last reported fall, nor did she prove the rest of the falls described arose out of her employment. The insurer pointed to the employee’s non-work-related diagnosis of vertigo and dizziness as the cause of the falls. While the Reviewing Board agreed that the judge did not make findings about the falls or the nature of the falls, the judge felt that those falls were not really relevant to whether or not the injured CNA suffered a workplace injury. The board found that the focus of these proceedings was the repetitive movements the employee had to make while performing her duties. The board felt that there was plenty of evidence and testimony for the judge to find a workplace injury did occur, and to award all of the temporary, partial, and medical benefits.
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Soon after a lengthy personal injury trial, the unsuccessful party can move for a Judgment Notwithstanding the Verdict and for a new trial, claiming that the evidence did not support the verdict handed down by the jury. This occurred in a recently issued Massachusetts Appeals Court decision, Ellis vs. Peter Clarke (15-P-868), in which the defendant doctor, an emergency radiologist, appealed a jury verdict in favor of the estate of a now-deceased patient. In this appeal, the defendant physician challenged the use of a witness and the conclusions drawn by the jury based on the evidence presented that his actions led to the death of the patient and grantor of the estate.

The defendant radiologist argued that the estate did not use an appropriate witness who was a standard radiologist, rather than an emergency radiologist. The appellate court listed several cites from case law, which has established the standards for a medical expert. A medical expert may be utilized to testify about many things, including the appropriate standard of care for a patient with the health issues around which the litigation centers. Massachusetts case law has specifically addressed that the expert does not have to be a specialist in the area concerned. The medical expert witness just needs to have the sufficient education, training, experience, and familiarity with the main subject matter of the testimony. The trial judge made a prior determination that the estate’s medical expert was qualified based on his experience reading chest x-rays from ERs, alongside his training and education.

The radiologist also questioned the judge’s ruling determining that the estate did not have to produce evidence showing the diagnosis of cancer should have been made by a certain date. The appellate court did not think a date was necessary, particularly since the law presumes that any warning, if given, will be heeded. In this case, the expert witness stated that the deceased patient would have had a greater chance of survival if the appropriate care had been used and she had been warned.
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In Massachusetts workers’ compensation claims, an award of partial incapacity benefits rather than total incapacity benefits can make all the difference to a worker and his or her family. It can be the difference between financial strain and an existence that resembles life before the accident. Massachusetts workers’ compensation law Ch. 152 §1(7A) allows compensation for workplace injuries that exacerbate pre-existing conditions, as long as there is a determination of whether or not the compensable injury remains a major cause of the disability or need for treatment. The workplace injury does not have to be the predominant cause of the disability. In Herrera vs. Mediate Management, Inc. (Bd. No. 010696-10), the Reviewing Board chose to return the case to the Administrative Law Judge for additional findings of fact regarding whether or not the compensable injury was a major cause of the disability. The board did so because it felt there was insufficient analysis in the determination of whether or not the janitor’s current medical condition entitled him to receive total incapacity benefits instead of partial incapacity benefits.

In this case, the janitor tore his medial meniscus and underwent physical therapy and arthroscopic knee surgery. The janitor testified that his pain did not abate, and he was unable to work in the same occupation due to this injury. The ALJ, in his findings, wrote that he agreed with the medical opinion of the insurer’s expert witness, which concluded he had a pre-existing condition that was unrelated to the injury and progressive in nature. However, he also wrote that he agreed with the janitor’s medical expert, who placed restrictions on the employee’s movement and opined that the work-related injury remained a major contributing factor to his need for treatment. The ALJ then concluded, based on the testimony of the impartial physician (which was not formally adopted), that the arthritis and continuing degeneration were not caused by the workplace injury. The judge went on to rule that the janitor could work light duty and qualified for partial incapacity benefits, but not total incapacity benefits.
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Since insurance coverage is mandated by law, most car accident victims must deal with one or more insurance companies when seeking compensation for injuries to their person and property. An insurance company must follow certain settlement guidelines found within Massachusetts’ General Laws in order to ensure fair claims settlement practices. In a recent case, Villanueva vs. Commerce Insurance Company (15-P-697), the Appeals Court looked at whether or not the at-fault party’s insurance company offered a reasonable settlement prior to the trial to an injured pedestrian.

The accident that forms the foundation of this action involved a woman who was seriously injured after she was struck by a motorist. The insurer of the driver independently determined that the injured woman was more than 50 percent negligent because she stepped out between two parked cars into traffic while wearing dark clothes on a dark morning. There was a witness to the accident who provided a statement that he saw a car driving too fast, leaving the scene of the accident right after the collision occurred. The driver stated that she circled the block after the impact because it was still dark, and she did not receive a citation from police when they arrived at the scene. The injured pedestrian had no memory of the accident.

After the accident, the plaintiff sought the limit of the driver’s policy, but only if the matter settled prior to filing suit. The at-fault driver’s insurer offered only $5,000 to settle the claim, instead of the $100,000 policy limit. The injured pedestrian then filed suit against the driver. The driver’s insurance company tried repeatedly to take testimony from the lone witness, but it was unsuccessful at reaching him until right before the scheduled date of trial. The jury awarded the injured pedestrian $414,500, reduced by the pedestrian’s comparative negligence of 35% in the accident. After the jury verdict, but before post-trial motions, the driver’s insurer paid the policy limit of $100,000.
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When an at-fault party is faced with a lawsuit, they will raise any and all legal defenses available to avoid liability. In all litigation, courts attempt to avoid duplicative processes to provide efficient and effective justice. The legal doctrines of res judicata and collateral estoppel bar re-litigating claims or issues that have been previously decided on the merits in a prior adjudication in a final judgment. In complicated personal injury and wrongful death lawsuits with multiple parties, doctrines like res judicata and collateral estoppel are often utilized to bar or limit claims an injured party, estate, or family member may have.

In Resto vs. City of Lawrence (14-P-1711), an 11-year-old boy was hit by a car crossing a street undergoing a lot of construction. A motorist driving his car at a high rate of speed hit the child, who died as a result of his injuries. The administratrix of the estate filed suit against the driver of the car as well as companies that were hired by the city to perform construction work at the high school. The estate alleged in an amended complaint that the construction companies did not take proper steps to mitigate the intersection’s pedestrian safety issues. A year after the original complaint was filed, the estate filed to amend a second time and added the Massachusetts city as a defendant. The estate alleged the city failed to maintain signage about the increased pedestrian and vehicular traffic.

The trial court judge denied the amendment, determining that the city did not owe a duty to the deceased boy and that its negligence was not the proximate cause of the accident. The companies hired by the city later filed motions for summary judgment, arguing that the court’s reasoning in its prior refusal to allow the addition of the city applied to them. The companies felt this logic should extend to them – that no duty of care was owed to the child who died, and that their negligence was not the proximate cause of the child’s injuries. The judge agreed, and the claims against the companies were dismissed through the court’s entry of summary judgments.
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Recently, the Supreme Judicial Court weighed whether or not an affidavit submitted by an administrator of an estate had to be based on personal knowledge. In Bayless vs. T.T.S. Trio Corp., (474 Mass. 215), the estate filed suit for a man who died after a solo car accident, which occurred after he left a restaurant bar he often frequented. The estate sought to hold the restaurant liable under the Commonwealth’s Dram Shop Act, G. L. c. 231, § 60J, which holds establishments responsible if they continue to serve alcohol to patrons when they knew or should have known the patron was intoxicated. As part of any civil action, the Act requires an affidavit to be filed within 90 days of filing the complaint. The defendant restaurant appealed the decision of the trial court, which allowed an affidavit submitted by the administrator as part of the initial pleadings. The Massachusetts Supreme Judicial Court decided to hear the case under an interlocutory petition for relief.

The affidavit described the deceased’s behavior throughout his patronage of the restaurant and the evening he died. The statement was made based on information gathered from several witnesses who had witnessed his excessive drinking, which often caused him to have impaired movement and speech. Witnesses also described conversations between the deceased person and an unnamed female bartender, who would continue to serve the decedent alcoholic drinks after he was clearly intoxicated.

On the evening of his death, the decedent was witnessed drinking at 4 P.M., when he proceeded to become drunk once again. He spoke to his daughter several times, who asked him to come home to a family barbecue. The daughter also spoke to the bartender mentioned above, who tried to assure her he was fine. This same bartender later told a different patron that she was concerned about the decedent because he hadn’t eaten anything. The bartender, as was her custom, continued to serve him alcohol, and he bought and drank 12 drinks while he was at the restaurant. The daughter, during her last call to him at 9 P.M., noticed his speech was slurred. Soon afterward, he died in a vehicle crash from multiple traumatic wounds.
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In Robert Amaral’s Case (15-P-860), the Appeals Court of Massachusetts reviewed whether or not it was appropriate for an administrative hearing judge to terminate a worker’s total weekly incapacity benefits. The worker injured his shoulder and lower back while helping restrain two juveniles at the Department of Youth Services. He originally received both total and partial incapacity benefits, but his employer, a self-insurer, filed to discontinue the total incapacity benefits.

The employer argued that the injured worker was no longer entitled to weekly benefits because the injury sustained at work was not a major cause of his continued disability. The administrative judge relied upon the employer’s medical expert witness, who opined that his disability mostly stemmed from his pre-existing spinal degeneration and obesity.

In all workers’ compensation cases, the judge is allowed to weigh the medical evidence presented in order to determine whether the injuries sustained by the worker were actually from the workplace and not aggravated by conditions preceding the accident or aggravated by circumstances outside of and unrelated to work. In this case, the injured worker appealed the judge’s ruling and the affirmation of the Reviewing Board, arguing that the judge had abused her discretion by adopting the medical opinion of the employer’s expert.
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There are many documents you can and should use for your Massachusetts estate plan. Medical care considerations can become especially complicated as you weigh the resources available to help cover the cost. The recent Massachusetts Appeals Court case of Heyn vs. Dir. of the Ofc. of Medicaid (15-P-166) reinforces a grantor’s ability to create an irrevocable trust, which could then make him or her eligible for Medicaid benefits.

In this case, the grantor, now deceased, created a self-settled irrevocable inter vivos trust, transferring the title to her home to the trust, while retaining a life estate interest that would not make her ineligible for Medicaid benefits. The grantor moved into a skilled nursing facility and applied for Masshealth benefits to pay for the cost of her care, which were originally approved. After a little over a year at the nursing facility, she was notified that her benefits were terminated based on the agency’s determination that the home held by the trust should be considered a countable asset, rendering her ineligible for benefits.

The grantor of the estate appealed, but she died before a decision was issued upholding the termination of benefits. The hearing officer determined that the trust allowed the trustee to sell the assets and invest the proceeds of the sale in other forms of investments, like an annuity. The officer reasoned that annuity payments can create income for the grantor, which should be considered a “countable asset” for determining Medicaid/Masshealth benefits eligibility. The Superior Court upheld the hearing officer’s ruling, and the case went on to the Appeals Court of Massachusetts.
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