Boston Injury Attorney Blog

December 1, 2017

The Problem of Pre-injury Releases

by Heinlein Beeler Mingace & Heineman, P.C.

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.

December 1, 2017

Computer Operated Cars: New Driving and Legal Challenges

by Heinlein Beeler Mingace & Heineman, P.C.

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:

November 22, 2017

Medical Errors Now 3rd Leading Cause of Death

by Heinlein Beeler Mingace & Heineman, P.C.

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.

November 22, 2017

Retention Bonus Agreement: A Lion in Sheep’s Clothing

by Heinlein Beeler Mingace & Heineman, P.C.

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.

November 15, 2017

School Liability for Injuries on Field Trips

by Heinlein Beeler Mingace & Heineman, P.C.

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.

November 15, 2017

Practical Estate Planning Tips

by Heinlein Beeler Mingace & Heineman, P.C.

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.

November 6, 2017

Negligence and Winter in New England

by Heinlein Beeler Mingace & Heineman, P.C.

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.

November 6, 2017

Practical Tips for When You are Involved in a Motor Vehicle Collision

by Heinlein Beeler Mingace & Heineman, P.C.

If you’re lucky, you’ll never have to deal with the headache of being involved in a car accident. Unfortunately, most of us will be involved in a collision at some point in our lives. Statistics show that over the course of a typical long, driving lifetime, you should have a total of three to four accidents. When you are involved in an accident there are numerous problems that arise. First, and foremost, are any of the people involved hurt? Even low impact collisions can cause injuries, including injuries you don’t feel immediately after the accident. Here are a few tips on what to do if you’re involved in a car accident.

If either driver feels they’ve been injured or there is any vehicle damage, call the police. Calling the police doesn’t necessarily mean one of the drivers will get a ticket or arrested, but it does ensure that there will be documentation of what happened including the identity of all persons involved and any witnesses. A police report can be a vital piece of information if a dispute about the collision arises.

The police officer that responds will be gathering as much information about the collision as he or she can, but this doesn’t mean you can’t collect your own too. If you have a smart phone take pictures and take notes. Pictures of injuries to yourself, vehicle damage, license plate numbers, skid marks, traffic signals and mile markers on the road, are all valuable pieces of evidence to preserve. You don’t have to be exhaustive, just get what you believe to be the important evidence. If you do end up in an insurance dispute or lawsuit, contemporaneous pictures and notes could help you against the other driver when often times collisions are not witnessed and the case becomes one of “he said versus she said.”

October 25, 2017

The Opioid Crisis

by Heinlein Beeler Mingace & Heineman, P.C.

The Centers for Disease Control and Prevention has indicated that in 2015 more than 33,000 people died from opioid overdoses, which includes prescription opioids, heroin and fentanyl, and that nearly half of that number involved a prescription overdose. https://www.cdc.gov/drugoverdose/data/index.html

The names of these prescription opioids are familiar to many of us: Methadone, Oxycodone (such as OxyContin®) and Hydrocodone (such as Vicodin®).

In addition to overdoses resulting in death, the widespread use of prescription opioids also results in other staggering statistics:

September 1, 2015

Construction Site Accidents and Building Collapses

by Heinlein Beeler Mingace & Heineman, P.C.

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.