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Assumption of the risk is a term you may have heard while participating in an activity that is either strenuous or involves an amount of danger. A company may ask you to sign a waiver of liability before you or a friend bungee jumps or rides across a zip line. Waivers of liability can also be found at gyms or participant sporting events. When death or injury happens to a participant in an athletic activity, the tragedy is amplified by the fact the injured person was attempting to enhance, not hinder, health. If injury or death occurs, questions may arise as to whether or not a signed waiver of liability can act as a complete shield to accountability in the civil justice system.

Recently, the United States District Court of Massachusetts rendered a Memorandum and Order in Angelo v. USA Triathlon, which supported a portion and denied a portion of the organization’s Motion for Summary Judgment. The deceased person was a member of a Triathlon association and signed an agreement to waive and release the liability of the organization. During the triathlon, the man died during or shortly after the swimming event. The wife filed suit on behalf of his estate and alleged that the organization wrongfully caused his death, pain and suffering prior to his death, and infliction of emotional distress as a result of the company’s gross negligence. The triathlon company moved for partial summary judgment, based on the signed waiver of indemnity agreements.
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As school and extra-curricular activities pick up around the state of Massachusetts, concern over serious and permanent injuries may arise among parents. Even with the best of care and protective gear, accidents can happen on sports fields or while in a bus on the way to an activity. No parent wants to see any type of harm befall his or her child, but knowledge of what options are available in the event of an injury is essential when there is a catastrophic injury to the head, neck, or spine. Accountability is also important if a person or facility failed to maintain safe premises as required by law. A civil action may provide the remedies you need by holding an at-fault party responsible for negligence and receiving payments for the money spent on medical expenses.

One of the first steps of a personal injury suit is determining who is responsible for the injury. In most auto accident cases, it is a straightforward determination that the driver of the car that caused the harm is the responsible party. In other personal injury suits, several parties can share blame for the injury. In the 2013 Massachusetts case, Moore v. Town of Billerica, the Court looked at whether or not the city should be held accountable for a serious head injury sustained by a child at a public baseball field. The trial court denied the city’s motion for summary judgment, which claimed that it could not be sued due to the protection of sovereign immunity.
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A slip and fall in Massachusetts can lead to injuries ranging from minor cuts and scrapes to serious head, spine, and back injuries. Slip and fall injuries can occur anywhere outside the home, including shopping centers, public sidewalks, and the workplace. If civil action is taken in a slip and fall accident, the injured person typically files a personal injury suit. However, when the accident occurs in the workplace, a workers’ compensation claim must be filed with the employer, and monetary payments are handled by the employer’s workers’ compensation insurance. The recovery covers past and future lost wages and payment for medical expenses and doctors’ visits.

Insurers will often try to limit the amount of payment made to an injured worker and may utilize the appellate process to protest awards given by a workers’ compensation judge or review board. In a recent Reviewing Board Decision, Sullivan v. Centrus Premier Home Care, a recommitted decision was affirmed in favor of the injured visiting nurse. While the injured nurse was visiting a patient, she sustained injuries to her back, knee, and hip in a slip and fall accident.

At the underlying hearing, the judge, when finding for the injured nurse, relied on the nurse’s testimony of complaints of pain and physical restrictions, as well as the medical opinions of one of the physicians who testified that she sustained a traumatic strain to her lumbar spine that required surgery. The injured nurse had a previous condition, but the doctor opined that the work accident contributed to 50% of her condition. While the doctor ruled that the treatment for the spine was reasonable, he determined that the peripheral joint disease, peripheral arthralgia, neck pain, and right knee pain were unrelated to the work injury. The judge adopted these medical findings and awarded recovery for the spinal treatment and surgery. The Judge also found that the nurse was temporarily and totally incapacitated from gainful employment.
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To succeed in a Massachusetts personal injury case, an injured person must show that the at-fault party was more than 50% responsible for the injuries suffered. In negligence actions, the defendant must owe a duty to the injured person, and the injured person is required to show that the defendant breached this duty and caused injury as a result of the breach. Recovery is possible, even if the injured person’s actions at the time of the accident contributed to the injury, as long as the percentage of responsibility remains lower than the defendant’s. This is known as comparative negligence, and it is codified under Ch. 231, Sec. 85 of the Massachusetts General Laws. While recovery is still possible, the amount of damages awarded can be reduced by the injured person’s percentage of negligence.

In Rose v. Highway Equipment Company, the Appeals Court reviewed a man’s claim against the manufacturer of a broadcast spreader for negligence and breach of warranty. The man’s hand was severely injured following an accident with the spreader while oiling the chain. For the negligence claim, the jury found the injured man to be 73% negligent and the company to be 27% negligent, which precluded any recovery because he was deemed to be predominantly responsible for his own injuries.

For the breach of warranty claim, the jury found that the man was unreasonable in his use of the equipment. As stated in the opinion, breach of warranty actions generally focus on the nature of the product, not the actions of the user, unless the user acted unreasonably. If the injured person used the product after he or she knew it was defective and dangerous, the injured person is completely barred from any type of recovery. The appellate court upheld the jury’s determination against the injured person, finding there was enough evidence to support their decision. The testimony provided during trial revealed the injured person understood the dangerous nature of the project, failed to read the safety manual, and had oiled the machine several times.
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As you are creating your estate plan in Massachusetts, it is essential to have an attorney who can help create and organize all the documents your family will need to make decisions when you are unable to do so. Last wills are drafted documents that are meant to reflect the intentions of the estate owner, and they usually identify who receives a share or item of the estate. While this may seem straightforward, failure to properly write a will can lead to confusion and extensive litigation.

The recent Massachusetts appellate case Lowell v. Talcott provides an example of this sort of litigation. This case involved wills executed by a couple who left much of their property in trust for each of their daughters and their “issue.” One of the couple’s daughters married and had two grandchildren with her then-husband. The daughter and the husband separated, but during the process, she became pregnant with another child by a different man before the divorce was final. The question for the Massachusetts appellate court was whether the third granddaughter should be considered an “issue” of the testators’ daughter and receive her share of the testamentary trust.

The daughter’s husband was listed as the father on the birth certificate, and the husband was aware that he was named, yet he took no steps to correct the certificate. The only recorded disavowal of his paternity occurred when the third granddaughter was surrendered to the state’s care for adoption. After several decades, the granddaughter later contacted the trustees of the estate, presenting her birth certificate and claiming that she is a beneficiary of the testamentary trust.
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When you seek medical care in Massachusetts, you expect the procedure or treatment to help you heal. However, if a physician’s or hospital’s actions lead to medical malpractice, it can worsen prior health conditions or result in death. A 2014 Federal First Circuit Court of Appeals case, Sanchez v. United States, underlines how essential it is for you to have knowledgeable counsel at your side.

All personal injury lawsuits filed in Massachusetts must adhere to the statute of limitations, a deadline imposed by law to ensure timely claims that are not subject to memory lapses and loss of evidence. In Sanchez, a woman who had given birth to her third child through caesarean section died two days after the birth. The lawsuit initiated by her estate in Massachusetts state court sued both the obstetrician and anesthesiologist and was filed nearly three years after the death of the mother. The estate met the three-year statute of limitations under Massachusetts state law, but the doctors were federal employees and covered under the Federal Tort Claims Act (FTCA), which limits the timeframe for lawsuits to two years.

In the decision, the Court explained that, while the doctors may have appeared to work for a nongovernmental agency, any doctor who works for a facility that receives federal funds is considered a federal employee. The Court also reviewed the history of the FTCA, which allows lawsuits to move forward under federal jurisdiction if they were filed within two years in the state court system. The Court of Appeals did not believe the actions taken in the lawsuit by the estate’s attorneys showed due diligence in researching the hospital and its doctor employees to determine the best course of legal action.
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If you’ve been bitten by a dog in Massachusetts, it might be difficult to determine what you should do or what you can do following a dog attack. When dogs attack, injuries can range from small puncture wounds to disfiguring injuries that are prone to infection. Dog attacks may also lead to post-traumatic stress and emotional trauma. With mounting medical bills and an altered way of life, it is important to understand what legal remedies are available to you or the person suffering personal injuries or property damage.

In Massachusetts, owners of dogs who cause damage to others or their property are strictly liable for the cost of damages or injuries that occur as a result of the attack. (See Massachusetts statute, G. L. c. 140, § 155.) A recent Massachusetts Appellate Court case, Irwin v. Degtiarov, dealt with the question of what types of damages are covered under the strict liability statute. In this case, a German Shepherd attacked another dog, unprovoked. The smaller dog had to have emergency surgery to repair injuries to the head, neck, abdomen, and chest. While this case dealt with the specific damages related to the pet, it also reviewed prior case law that applies to all damages caused by dogs. Case precedent has determined the intent of the statute was to be remedial, not penal, and that the purpose was to protect people who are exposed to dog attacks through no fault of their own. When writing the current statute, the legislature removed the prior requirement that forced the injured party to show the owner knew of the dangerous habits of the dog or that the dog was prone to biting. The Massachusetts legislature wanted to make it easier for an injured party to obtain damages and return to the condition he or she was in prior to the incident with the dog.

In personal injury lawsuits, the injured person must show that the at-fault party owed a duty to him or her, and that the failure to uphold the duty resulted in the injuries suffered by the plaintiff. The injured person must also show the cost of the damage that occurred as a result of the injury. G. L. c. 140, § 155 creates liability for dog owners who fail to restrain their pets, but it does not specify how to measure “any damage caused by a dog.” Damages may be available for injuries beyond bites or physical contact with the dog, such as if a dog attempts to attack and causes an injury to the person trying to get away, or if the dog runs out into the street and causes a car accident. In these situations, the owner may be held liable for the resulting injuries if the dog acted maliciously or viciously. Even though there is strict liability for most attacks, the owner of a dog is not responsible for injuries if the injured person was either trespassing, committing a crime, or provoking the dog.
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When a Massachusetts car accident case goes to trial, experts are often used to aid in the explanation of an injury or particular process. Often, one of the experts used is a doctor who either examined the patient or reviewed his or her medical records to provide an opinion on the diagnosis and necessary treatment. In many cases, after the claim is filed, the insurance company for the defendant will seek an evaluation by one of its own recommended physicians, who may create a report or testify at one of the proceedings.

The doctor for the defense is frequently used to challenge whether or not the injury was caused by the accident. All personal injury cases involve four legal elements: duty, breach, causation, and damages. In a car accident case, the injured person must show that the at-fault party had a duty to follow the traffic laws and drive safely, that the at-fault driver failed to uphold his or her duty, and that this failure to uphold the duty resulted in an injury and resulting damages to the victim. Medical conditions may have been caused by multiple incidents throughout the injured person’s life, so it is necessary to show that the injury was causally related to the accident to recover damages like medical expenses and lost wages.

The Massachusetts Court of Appeals Case, O’Malley vs. Soske, 76 Mass. App. Ct. 495 (2010) answered the evidentiary question of whether or not a report created by the defense doctor is admissible at trial. In O’Malley, the injured person was hit in a back-end car accident by the at-fault party. She pursued a claim against the defendant, stating that she suffered injuries to her back and neck and required neck surgery. After the complaint was filed, the defendant requested an examination by an orthopedic surgeon, who concluded that the woman did not suffer injury to her musculoskeletal system as a result of the accident. The doctor did not testify, but the report was allowed at the injured person’s trial. At trial, the jury found the defendant at fault for the accident, but also found the alleged injuries were not caused by the accident, which prevented the award of any damages for the injury.
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Under Massachusetts law, there are several types of damages an injured person can recover through civil action: economic damages, which cover medical expenses, continuing medical care, lost wages, and inability to earn future income; and non-economic damages, which include pain and suffering, loss of enjoyment, and disfigurement. In recent news, a Florida jury awarded $23.6 billion in punitive damages to a widow who lost her husband in 1996 to lung cancer. The widow alleged that the tobacco industry failed to warn her husband that nicotine was addictive and can cause lung cancer. The deceased husband smoked from age 13 till his death at age 36.

Punitive damages are damages designed to punish through monetary means and discourage similar behavior in the future by the at-fault party and the general public. They are reserved for the most egregious and outrageous behavior by at-fault parties. In Massachusetts, punitive damages are only available if granted by statute. (See International Fid. Ins. Co. v. Wilson, 443 N.E.2d 1308 (1983).) Examples of actions that allow punitive damages are wrongful death actions under Chapter 229, Section 2 and employee discrimination actions under Chapter 151B. Punitive damages are available for medical malpractice suits, but those have a cap of $500,000 unless the injury is catastrophic. Massachusetts case law has established that punitive damages are only available for conduct that is outrageous due to the defendant’s evil motive or reckless indifference to the rights of others.

In Haddad v. Wal-mart Stores, Inc., 455 Mass. 91 (2009), the Massachusetts Supreme Judicial Court reinstated a $1 million punitive damage jury verdict for a woman who sued her employer, Wal-mart, for discrimination in violation of Chapter 151. In this case, the woman was awarded $972,774 in compensatory damages, but the judge set aside the $1 million punitive award, reasoning that punitive damages could only have been awarded if the employer acted with the specific knowledge it was violating the anti-discrimination statute. The Supreme Judicial Court noted in its decision that this requirement only applied to age discrimination cases. The Court also referred to prior rulings that held if the employer unlawfully interfered with the legally protected rights of others, that would be enough “reckless indifference” to warrant punitive damages. The Court noted the history of refusing to pay the hourly differential to the plaintiff, a female pharmacist, and firing her for one offense after 10 years of employment equated to egregious behavior.
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In Massachusetts personal injury cases, an injured party must show that the other party owed a duty to them, that the party failed to uphold that duty, that the failure resulted in an injury, and the type and amount of damages suffered as a result of the injury. When an injury occurs on the job, proof of negligence or fault is not necessary for recovery, but proof of causation that the injury resulted from the workplace is required.

The Massachusetts Reviewing Board issued a ruling last month in Stephan A. Dugas v. Coca-cola that looked at whether or not an employee’s hip conditions were work-related. The employee had worked from 2003 to 2009 as a merchandiser and bulk account manager, the duties of which included stocking displays, shelves, and coolers, and moving products by lifting, carrying, pushing, and pulling carts with a non-electric hand jack. In 2009, the man sought treatment for pain in his hip and began to receive epidural steroid shots to relieve the pain. Eventually, the man received a diagnosis of congenital hip dysplasia with degenerative changes in his left hip and arthritis and osteophytes in his right hip.

The Reviewing Board Decision pointed out in its recitation of facts that the employee did not mention the hip as a work-related injury to either physician when he initially sought medical treatment. The Reviewing Board also addressed the employee’s history of playing football in high school and playing men’s field hockey three times a week until he injured his right knee in 2002. The employee filed for workers’ compensation and was denied, and he pursued compensation through a hearing. The judge, after hearing testimony from doctors, upheld the denial of payments for medical treatment. The judge ruled that the employee failed to show that the injury was the result of an industrial accident that occurred while working for his employer.
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