According to the U.S. Energy Information Administration [EIA], Massachusetts consumes nearly half of the natural gas used in New England. The majority of the gas is used to generate electricity, but residential customers use more than one-fourth of the state’s natural gas consumption and more than half of the households in Massachusetts rely on natural gas as their primary source for home heating.

Natural gas is marketed as cleaner, more efficient and often less costly for the consumer than alternatives like oil.Natural gas is delivered to these homes and businesses through an infrastructure of pipelines, many of them aging, and leaks are not uncommon. It is the flammability of the gas that makes it a useful fuel source. That same flammability and explosiveness, however, is what can lead to explosions, fires, death, injury and property damage.

It appears that such an event happened in the Massachusetts communities of Andover, North Andover and Lawrence on September 13, 2018. Reportedly more than 80 homes and businesses were impacted and many were seriously damaged by the 60 resultant fires. More tragically, one person is reported dead after debris from a chimney hit the car he was in when a building exploded. At least 25 others were injured in the fires. While it will no doubt take some time to determine the cause and origin of the fires and explosions, reports indicate that federal safety experts will be investigating and that state officials have been looking into the gas supply system operated by Columbia Gas which may have pushed high-pressured natural gas into a low-pressure section of the network. Columbia Gas has been working to address its 8,600 customers in the area. As a result of the incident, 18,000 customers are without electricity and as of the morning of September 14, 2018 road access to the City of Lawrence had been cut off by officials. Many institutions, including schools and the state Courts have been closed.

It is not too early to consider what the Massachusetts Supreme Judicial Court’s decision in Nguyen v. Massachusetts Institute of Technology, 479 Mass. 436 (2018) means for Institutions of Higher Education [IHEs], students and courts. Attorney Jeffrey S. Beeler, at this firm, was counsel for the Nguyen Estate in this case against the Massachusetts Institute of Technology [MIT]. Some initial observations about Nguyen v. Massachusetts Institute of Technology [MIT] are warranted.

First, the Supreme Judicial Court [SJC] made clear – again – that IHEs are “clearly not bystanders or strangers in regards to their students.” Nguyen, 479 Mass. at 450 (citing Mullins v. Pine Manor College, 389 Mass. 47, 51-52 (1983)). The era of IHE “bystander” non-liability is over.

Second, breaking new ground, the Court held that IHEs and their employees have “a special relationship with a student and a corresponding duty to take reasonable measures to prevent [a student’s] suicide” in three circumstances. Nguyen, 479 Mass. at 453. They have an affirmative “duty to take reasonable measures under the circumstances to protect the student from self-harm[,]” where they have “actual knowledge” of: (1) a student’s suicide attempt that occurred while enrolled at the [IHE]; (2) a student’s suicide attempt recently before matriculation; or, (3) a student’s stated plans or intentions to commit suicide. See id. at 453-454. In such circumstances, “suicide is sufficiently foreseeable as the law has defined the term, even for [IHE] nonclinicians without medical training” to owe a duty. See id. at 455. The duty, at least for nonclinicians, is “limited to initiating the [IHE’s] suicide prevention protocol, and if the school has no such protocol, arranging for clinical care by trained medical professionals or, if such care is refused, alerting the student’s emergency contact[,]” — often a parent. Id. at 457. Among the reasonable measures noted by the SJC for IHEs are: (1) initiating the IHE’s suicide prevention protocol, if any; (2) requiring the IHE employee who learns of a student’s suicide risk to contact the IHE employee(s) empowered to assist the student in getting professional mental health support; (3) contacting the student’s emergency contact (often the parents) if the student is resistant to intervention; and, (4) “obviously[,]” in emergency situations, contacting police, fire, or emergency personnel.  See Nguyen, 479 Mass. at 456.

In 2015, vehicular crashes involving at least one large truck or bus were involved in an estimated 6,263,000 nonfatal crashes and killed 3,838 people in the United States.

Anyone who has been driving for any period of time on the modern-day rifle ranges known as Massachusetts highways has driven by and seen first-hand the devastation caused by automobile collisions. The carnage can be exponentially worse when one of the involved vehicles is a bus or truck. This is due to simple physics.  Force = mass x acceleration. The more something weighs, the more force it will impart at a given speed when it strikes another object. School busses are a particular concern. They often contain our children, do not have seat belts and weigh about 30,000 pounds before passengers get in them.

Following a collision involving a commercial truck or bus, it is important that an injured person take certain steps as quickly as possible to best preserve their rights. Indeed, in an ironic twist on the pejorative term “ambulance chaser” some insurers and defense law firms have rapid response teams designed to get to truck and bus collision scenes before the vehicles are cleared from the scene. These defense insurers/firms – in their effort to limit their legal exposure — know the value of seeing the scene with their own eyes, taking photos of the scene from the perspectives that put their employers in the best possible light and quickly identifying percipient witnesses. Of course, these corporations usually have an enormous advantage over an injured party. First, they are not injured and on the way to the hospital. Second, they have other people to begin the “risk management” process. Nonetheless, the sooner an injured party gets counsel working on their behalf, the better.

One of my favorite movies is “My Cousin Vinnie”.  In one scene, Ralph Macchio, who accidently left a convenience store with an extra can of tuna fish, thinks he is being questioned about this “shoplifting” when, in fact, he is being questioned about the murder of the clerk.

A written transcript of the dialogue would be:

Q:        You paid for the groceries?

We have all been there. You wait in a long line to sign a son or daughter up for an activity in which they are excited to participate. By the time you get to head of the line, you are ready to quickly sign anything – including the innocuous-sounding registration form.  Even if you don’t read it, if someone gets seriously hurt, signing such a document can be a big mistake.

Many of these forms contain pre-injury releases of liability – often buried and in small print. While treated differently in many States, in Massachusetts, such a release may well bar a subsequent case regardless of the seriousness of one’s injuries. For example, in Cormier v. Central Mass. Chapter of the Nat. Safety Council, 416 Mass. 286 (1993), the Massachusetts Supreme Judicial Court upheld such a release finding that the “allocation [of] risk by agreement is not contrary to public policy.” More to the point, the Court reasoned that placing the risk of negligently caused injury on an inexperienced consumer as a condition of that person’s voluntary choice to engage in a potentially dangerous activity ordinarily does not contravene Massachusetts public policy. In the absence of fraud, deceit or undue duress, requiring a person to sign such a release before participating in such an activity does not render the release unconscionable.  So you’re stuck, right?  Not always.

Each case must be examined on its own facts. The language of these releases varies widely. Some are broad, others narrow and all are subject to interpretation. Doubts about the interpretation of the release must be resolved in the injured person’s favor, but the law books are littered with cases that ended badly for the Plaintiff due to these releases. In addition, there is a body of law that stands for the proposition that these releases cannot protect against claims for gross negligence nor can they protect against liability arising out of the violation of a statutory or regulatory duty. See White Const. Co., Inc. v. Commonwealth, 11 Mass. App. Ct. 640, 647 (1981). Finding such statutory and regulatory duties can be difficult, but finding one can be decisive and render a claimed release void, allowing the case to proceed.

How will the possibly, perhaps inevitably, driverless future impact motor vehicle accidents? In 2015 there were over 6 million reported car crashes that resulted in over 2 million injuries.[1]  The primary cause behind most motor vehicle crashes is human error; for all the things humans do well, driving isn’t necessarily one of them.

In 2014 Tesla released the Model S, which included a tech package option that had autopilot features.[2]  Tesla’s idea was to have a system that could handle some of the responsibilities of driving to eliminate some of the deficiencies inherent in humans drivers.  Tesla, among other car manufacturers and some tech companies, believe computer operated cars could someday eliminate human errors in driving entirely.[3]

Unfortunately, in 2016 a Tesla car operating on autopilot resulted in a fatal crash for the car’s driver.[4]  The crash was an unfortunate tragedy, but the incident raised a number important legal questions:

Medical researchers at Johns Hopkins University estimate that medical error is now the third leading cause of death in the United States. Over 250,000 people die each year because of medical error.  Only Heart Disease and Cancer take more lives.  Accidents, like car accidents for example, kill approximately 135,000 people annually.  The results of the Hopkins research were published in the BMJ, a journal published for the medical community and reported in the Washington Post.

In Massachusetts medical malpractice cases are handled very differently from auto collision cases and require the services of an attorney with experience in the area.  There are strict time requirements (statutes of limitations) and notice requirements (presentment type letters to the potential defendants) which must be followed.  Additionally, injured people are required to have a qualified expert render opinions that the defendant health care provider’s medical care deviated from, or fell below, the standard of care required of them.

All too often people are being injured or dying from the medical treatment they receive rather than the injury or disease for which they were seeking care.

My employer was recently purchased by a larger company and they have just asked me to sign a “retention bonus.”  What do I do?

This is a question that I recently got from a client who was in a quandry about what to do with a retention bonus agreement she received.  She was a good employee for the company for many years, enjoyed her job, her benefits, and her co-workers.  She was a faithful, competent employee that wanted to continue to work for the new company.  The problem was that the “Retention Bonus” was a lion in sheep’s clothing as it was really a non-compete agreement in disguise.  The Agreement hit all the buzz words such as a “bonus” but the restrictive covenants that were part of the non-compete portion of the Agreement prevented the employee from working in the very industry that she had grown to love and more importantly had her experience after she separated from the company.

Non-compete Agreements are either negotiated separately when an employee is first hired by a company or buried as a clause in another document.  They typically address preclusions of areas where an employee may work after they separate from a company.  The agreements will restrict a geographical area of employment, potential employers, and be in place for a period of time post-employment.  The company often attempts to prevent the employee from competing with the company or removing or attempting to remove any of its employees. The more restrictive both in area and in time should be reflected in the compensation received.

Often, one of the best parts of an educational experience comes from putting the books and lectures aside while getting out into the real world to see and experience things. Unfortunately, such trips sometimes come with various risks of injury, and the Courts are, at times, called on to address resultant claims.

Recently, the Connecticut Supreme Court, in Munn v. The Hotchkiss School, 326 Conn. 540 (2017), was called upon to decide whether Connecticut public policy mandated an exception to the general rule that schools must refrain from negligently exposing their students to foreseeable dangers. The Court answered this question with a definitive no, and held that Connecticut public policy does not preclude imposing a duty on the school to warn about or to protect against the risk of serious insect-borne disease when taking a school trip.

The issue arose in connection with a school trip to China that led to a 15-year-old student contracting a very rare tick-borne encephalitis that resulted in horrific neurological injuries. In connection with a trip to Mt. Panshan, where the tick bite occurred, the Plaintiff argued that students were not warned to wear clothing that would protect against bites or to apply insect repellant. A Federal Court jury agreed the school was at fault, that the risks encountered were foreseeable to the school, and that economic damages in the amount of $10.25 Million and $31.5 Million in noneconomic damages were warranted. The U.S. Second Circuit Court of Appeals affirmed the judgment insofar as it agreed that the Plaintiff had presented sufficient evidence at trial for the jury to find that her illness was foreseeable.  This last point is quite important: it is for the fully-informed jury – at trial – to answer the foreseeability question that is central to all negligence cases.

Thinking about creating a Will or end of life planning can be uncomfortable and daunting for many people but it should not be avoided. The failure to plan for the future may place an unanticipated burden on your loved ones.

A Will is the simplest and most straightforward way for a person to make sure that their final wishes are carried out. The individual creating his/her Will chooses a trusted and responsible person, most times a close family member, to act as the Personal Representative of the Estate. It is then the Personal Representative’s job to make sure that all assets of the Estate are distributed as has been laid out in the Will.

Though many people feel that they do not need a formal Will as their loved ones will know what they want to happen upon their death, this is not practical for a couple of reasons. The first being that many times when faced with the death of a loved one, especially if the death is unexpected, family members feel overwhelmed and unsure on how to proceed. This can lead to family rifts and rushed decisions.