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Wednesday, November 23, 2022

Fall on Playground Results in Defense Verdict


Not all personal injury claims are created equal and sometimes an accident really just is an accident.  This lesson was just learned by a Plaintiff in Middlesex Superior Court after a four-day trial resulted in a defense verdict and no recovery for the Plaintiff.  The claim involved an injury to a seven year old girl who suffered a fall at a school playground.

In the matter of Ozkan v. City of Malden, seven year old Nihal Ozkan was a student at the Linden Steam Academy in Malden, Massachusetts.
Read more . . .


Thursday, October 27, 2022

Post Beer Pong Tournament Fight Leads to Double Damages Against Insurer


While we typically think of car accidents and slip and falls as the stereotypical personal injury cases, there are actually quite a few other types of situations that lead to personal injury cases.  One such type of personal injury case involves physical assault caused by an intoxicated person.  Many times, liability will extend beyond the actual individual responsible for another’s injuries to the person or establishment who served the liquor.  Massachusetts and many other states have enacted a “Dram Shop law” in an effort to deal with these types of cases.

Pursuant to Massachusetts General Laws chapter 138 § 69, someone suffering from physical injury, property damage, or other damage may sue the licensed liquor provider who served an intoxicated person.
Read more . . .


Thursday, September 22, 2022

Plymouth Jury Awards 1.4 Million Dollars to Trip and Fall Victim


For a long time in the legal world, there has been a bias that juries in certain counties in Massachusetts will not award verdicts of higher amounts.  Several of these counties are located in the South Coast and Cape Cod area.  Insurance companies and defense counsel have used this bias (which, to be fair, is sometimes a reality) in making unreasonable settlement offers to personal injury plaintiffs.  A jury in Plymouth Superior Court recently made a big statement that these counties may be willing to award the big verdict by awarding a trip and fall victim in Plymouth County a verdict of $1,437,314.00.
Read more . . .


Wednesday, June 22, 2022

Experts Can Be Necessary for Medical Causation


Massachusetts allows personal injury cases to move forward if there is an “obvious causal relationship” between the injury claimed and the accident that forms the basis of the claim.  However, a recent case was dismissed by a U.S. District Court judge who ruled that a premises liability plaintiff could not rely on Massachusetts’ “obvious causal relationship” exception to avoid having to introduce expert medical testimony rebutting a defense expert’s opinion that her torn rotator cuff was due to a fall that occurred eight months before she slipped and fell at the defendant’s store.

In this particular case, the Plaintiff slipped and fell in the restroom of a Costco store.
Read more . . .


Friday, April 22, 2022

Massachusetts Wage Act Provides for Automatic Treble Damages for Late Wage Payments


If an employer does not provide an employee leaving the company with his or her wage payments on time but quickly corrects the problem, that is the end of the issue, correct?  Not so fast, the Massachusetts Supreme Judicial Court recently held.  Even if the employer fails to make timely wage payments to a departing employee by mistake, the employer will be on the hook for automatic treble damages.  The SJC’s recent ruling and clarification of the Massachusetts Wage Act is essential information for all employers in Massachusetts to be fully informed about before failure to comply with the Act becomes a very costly mistake.

Massachusetts General Law c.149 § 148 states that "any employee leaving his employment shall be paid in full on the following regular pay day, and, in the absence of a regular pay day, on the following Saturday; and any employee discharged from such employment shall be paid in full on the day of his discharge.
Read more . . .


Thursday, January 20, 2022

Massachusetts Road Deaths Highest Since 2009


Massachusetts had more deaths on its roads in 2021 than in any year since 2009.  According to a new report from the Massachusetts Department of Transportation, four hundred and eight people died on Massachusetts road last year, including drivers, passengers, bicyclists, and pedestrians.  This death total is nineteen percent higher than the 2020 total of 343 fatalities.

There are many explanations for this increase in fatalities.  Beginning in April of 2020, there was an increase of reckless driving and speeding which was explained by the Covid-19 pandemic emptying roadways which used to home congested streets.
Read more . . .


Thursday, December 23, 2021

Charlie’s Law Could Strengthen Distracted Drivers Laws in Massachusetts


On October 6, 2021, Charlie Braun was killed when he was struck by a car while riding his bicycle in Northampton, Massachusetts.  The driver that hit and killed Charlie Braun is facing charges of negligent motor vehicle homicide, failing to stop for a stop sign, and FaceTiming while driving.  As a result, there has been a new push to further reduce distracted driving in Massachusetts and it involves strengthening the state's current hands-free driving law and closing an existing loophole regarding broadcasting video content while driving.

The state's hands-free law, which went into effect in February 2020, already prohibits drivers from holding their phones while operating their vehicles, but, in a bit of a loophole, it does not prohibit operates from filming while driving.  More specifically, while the Massachusetts law bans drivers from viewing video displayed on a mobile electronic device, it does not ban drivers from recording or broadcasting video of themselves while driving, using apps like FaceTime or Zoom.
Read more . . .


Thursday, October 28, 2021

Employers’ Vaccine Mandates Upheld in Massachusetts


Last week, a Federal Judge in Boston denied the motion of two hundred and twenty-nine Massachusetts General Brigham employees who sought an injunction to prevent the company from enforcing its vaccine mandate.  Prior to that, the Court ruled against a group of Massachusetts correction officers who similarly asked for an injunction on the vaccination mandate.  Putting aside the hot button question as to whether or not employers should be able to mandate vaccinations for its employees (of which there are strong arguments both for and against), the reality is that a large number of employees in Massachusetts are going to be facing a decision that they do not want to have to make: get the vaccine or lose their job.

Massachusetts General Brigham employees approximately 77,000 people across its hospital network, so the two hundred and twenty-nine employees that joined in the Court case to try and block the mandate represents a very small fraction of its total workforce.  In fact, Massachusetts General Brigham estimates that over ninety-five percent of its employee base has been at least partially vaccinated.
Read more . . .


Wednesday, July 28, 2021

Home Held in Trust is Not a “Countable” Asset


Emily Misiaszek and her husband created an irrevocable trust during their lifetime, the corpus of which included their home.  The terms of the Irrevocable Trust granted the Misiaszeks the right, during their lifetime, a limited power of appointment to appoint all or any portion of the trust principal to a nonprofit or charitable organization over which they have no controlling interest.  When Ms. Misiaszek applied for MassHealth long-term care benefits, she was denied on the basis that the home was a countable asset.  The Massachusetts Office of Medicaid’s Board of Hearings affirmed MassHealth’s decision, but a Superior Court judge reversed the board’s ineligibility determination.
Read more . . .


Tuesday, June 22, 2021

In Terrorem Clauses Have Power in Massachusetts


One of the most powerful clauses in a will or a trust is the in terrorem clause, which is more commonly referred to as a “no-contest” clause.  In terrorem means “in fear” in Latin and is an appropriate name for the clause as if someone challenges a will or a trust with an in terrorem clause and the challenge is not successful, there can be dire consequences for the challenger.  Namely, a challenger to a will or trust with an in terrorem clause risks losing all of his or her rights and interest under a will or trust.

Almost a year ago, the Massachusetts Appeals Court ruled in the matter of Capobianco v. Dischino, Mass.
Read more . . .


Thursday, April 22, 2021

Not Giving a Terminated Employee their Final Pay on the Day of Termination Can Lead to Triple Damages and an Award of Attorney’s Fees


Massachusetts wage and hours laws provide employers with guidance as to how, when, and how much workers must be paid.  One common issue that arises is when and what employees that resign or are terminated need to be paid.  Generally speaking, an employee is voluntarily quits or resigns may be paid on the next regular pay date after his or her last day of work but an employee who is involuntarily terminated must be paid in full on the day of discharge.  Failing to adhere to these rules can have significant consequences.

Massachusetts General Laws chapter 149 § 148 states “any employee discharged from such employment shall be paid in full on the day of his discharge.
Read more . . .


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