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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.

Owners of property and persons in control of property have a responsibility under the law to keep the property in a reasonably safe condition.  Now that winter is approaching, questions arise as to the responsibility of property owners, landlords and business owners to clear snow and ice on their properties.

Beginning in 1883 the Massachusetts Supreme Judicial Court began to analyze the duty of a landlord to a tenant who fell in a common area.  From this earliest decision arose what other states and commentators have called the “Massachusetts Rule.”  This rule provided that a landlord and others who owned or controlled property could not be held liable for natural accumulations of snow or ice.  When snow fell, the landlord or business owner could simply let the snow accumulate without fault.  However, owners of land could be found liable if a person was injured on the property due to an unnatural accumulation of snow or ice.  One of the earlier decisions in Massachusetts involved a tenant that slipped and fell on ice in a common area of a tenement house. In this case, the accumulation of ice was created by a broken water pipe.  The court imposed liability for the landlord’s failure to fix the pipe “for which he was as much responsible as if he had placed the water there by his voluntary act.”  Watkins v. Goodall, 138 Mass. 533, 537 (1885).

For over 100 years this distinction between natural and unnatural accumulations of snow and ice served as the basis for deciding whether an owner of land could be found responsible for the harms and losses of people who were injured due to winter conditions.  However in 2010, the Massachusetts Supreme Judicial Court in Papadopoulos v. Target Corporation, 457 Mass. 368 (2010), eliminated this distinction and held that there exists for “all hazards arising from snow and ice the same obligation of reasonable care that a property owner owes to lawful visitors regarding all other hazards.”  In other words, a landowner owes a duty of reasonable care for all conditions on his/her property.

Construction site accidents are a leading cause of serious — and often fatal — injuries to workers. In 2013, according to the Occupational Safety & Health Administration [OSHA], 4,585 workers were killed on the job. This equates to more than 12 deaths every day. Of these, 20.2%, or 1 in every 5, were in construction. Four types of incidents lead to most of these deaths: (1) falls; (2) being struck by an object; (3) electrocutions; and, (4) being caught-in/between. Not surprisingly, OSHA has issued safety regulations in an effort to address safety hazards at construction sites. Nonetheless, in FY 2014, the top 10 most frequently cited OSHA violations included those in the areas of: (1) fall protection; (2) scaffolding failures; (3) ladders; (4) electrical, wiring methods, components and equipment; (5) powered industrial trucks; and, (6) machines and machine guarding.

People suffering serious injuries in the work or construction industry often face significant hurdles. First, they need expensive medical treatment. Second, they lose earning capacity, some of them permanently. While most employers are required to have workers compensation insurance to provide for medical care and the provision of some payments for lost wages, workers compensation is not designed to make an injured person whole in connection with their harms and losses. Rather, the medical treatment it provides is often subject to being fought by the employer’s insurer and the payments for lost wages are only a percentage of what the employee would have earned if not injured. In most cases, when an injured worker gets workers compensation payments, they are barred from bringing a claim against their employer.

That does not mean, however, that an injured employee is without other remedies. While an injured worker who is covered by workers compensation cannot bring a claim against his employer or co-workers, there are often other third-parties who can be held responsible if they negligently caused harm. General contractors, sub-contractors, vendors, suppliers and others may provide viable means of third-party recovery for injured workers. These third-party cases provide the opportunity for a more complete recovery on behalf of an injured worker, or their estate if they died on the job. Thus, claims can be made for all of the lost earning capacity and for all of the medical expenses. Unlike a workers compensation claim, in a third-party case the injured party can seek recovery for pain and suffering and the loss of enjoyment of life. These types of damages are often the most important and weighty for an injured person when their life has been fundamentally and permanently changed due to an on the job injury. In addition, the spouse and children of an injured worker may have the right to recover in a third party action for damage done to their relationship with the injured family member. This type of claim, known as a loss of consortium claim, is simply not available under workers compensation law. Thus, a third-party claim offers injured workers, and their families, their best chance for a full and fair recovery for their harms and losses.

When a visitor or patron is injured due to a slip and fall on another’s property in Massachusetts, the law imposes a burden on the injured party to establish that the owner or occupier of the land: (1) knew or should have known of the dangerous condition, and should have known that the condition involves an unreasonable risk of harm to those on the property; and, (2) should have expected that the visitor/patron would not discover or realize that danger, or will fail to protect themselves against it; and, (3) failed to protect their visitors/patrons against the danger. When the dangerous condition involves something spilled on the floor, the injured party can satisfy the first requirement if the operator of the business: (1) caused the substance to be on the floor; (2) the operator had actual knowledge of its presence; or, (3) the substance had been on the floor so long that the operator should have been aware of the condition.
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It’s been called “The Storm of the Century” or simply “MegaStorm” and regardless of where you receive your weather forecast, you know Massachusetts will be buried in snow over the next few days. Once the travel ban imposed by Governor Patrick is lifted, we will undoubtedly hear of many accidents, with injuries, in the Boston area blamed on snowy roadways. To be sure, snow, like ice and rain, makes driving more challenging and dangerous. Such conditions, however, are not an excuse for failing to drive a vehicle safely or for causing a snow-related Boston automobile accident.
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