Cape Cod Injury Lawyer Blog

Massachusetts Appeals Court Holds Go-Cart Facility Not Entitled to Exemption Under Recreational Use Statute

February 17, 2016 | by John S. Moffa

In Amaral v. Seekonk Grand Prix Corp., a woman suffered injuries while observing her children operate go-carts at the defendant’s go-cart facility in Massachusetts. The injuries occurred when one of the drivers on the course lost control of the go-cart in which he or she was riding, and it crashed through the fence where the woman was standing. Although the woman was required to purchase tickets for her children to use the go-cart facility, she did not have to buy a ticket in order to observe her children from behind the fence.

Shortly after the accident, the woman filed a negligence action against the owner of the go-cart facility, requesting compensation for her physical injuries, which included a painful pulmonary embolism that resulted from a blood clot that formed in the woman’s leg.

In response to the complaint, the defendant filed a motion indicating that summary judgment was appropriate according to the recreational use doctrine. Pursuant to Massachusetts General Laws C. 21 Section 17C, a property owner that allows the general public to use its land for recreational activities without imposing a fee or charge for the use cannot be held liable for any injuries that an individual sustains during his or her time on the property. An exception to this statute is when the property owner engages in reckless, wanton, or willful conduct, and that conduct results in the victim’s injury.

NTSP Proposes Lowering BAC Limit for Drunk Drivers to 0.05%, Potentially Affecting Massachusetts Residents

February 17, 2016 | by John S. Moffa

Drunk driving is one of the highest causes of injuries and fatalities in the United States. According to the Centers for Disease Control and Prevention (“CDC”), roughly 30 people die each day in a motor vehicle collision that involves an intoxicated driver. Also, the estimated yearly costs associated with alcohol-induced car accidents totals nearly $60 million. In 2013, drunk driving accidents accounted for 31 percent of traffic accident fatalities that occurred in the United States. The National Highway Transportation Administration has also issued a number of studies and reports highlighting the dangers that result when alcohol and driving are mixed.

Recently, the National Transportation and Safety Board (“NTSB”) has recommended lowering the legal blood alcohol content to 0.05 percent from 0.08 percent. The NTSB’s recommendation is intended to help combat these devastating injury and death tolls associated with drunk driving across the United States.

Massachusetts Appellate Court Rules Emotional Distress Case can Proceed Against Expert Witness

January 30, 2016 | by John S. Moffa

In Harrison v. Roitman, a husband retained a psychiatrist to provide expert witness testimony regarding his wife’s psychiatric state during a highly confrontational divorce proceeding. The expert witness, however, never met the wife or conducted an examination of her, but instead he provided a written report to the presiding judge explaining that the wife suffered from a personality disorder, had severe mental health problems, and did not show signs of improvement.

The wife filed an action against the expert witness, alleging that the psychiatrist committed malpractice in providing the report because he had not conducted any examinations of the plaintiff and did not know her. In her complaint, the wife contended that she experienced emotional distress as a result of the psychiatrist’s report, alleging theories of negligent and intentional emotional distress in addition to a claim alleging civil conspiracy. The wife’s main theory was that providing such a report and making such medical diagnoses without conducting an examination or reviewing records from other treating physicians breached the medical community standard of care for a psychiatric doctor.

Massachusetts Legislature to Consider Multiple Bicyclist, Pedestrian, and Motorist Safety Bills

January 21, 2016 | by John S. Moffa

The Massachusetts legislature is set to consider a number of bills that would provide greater protections for bicyclists throughout the state.

First, the Vulnerable Users Bill would impose a three-feet law on motorists when passing or operating a vehicle near a so-called “vulnerable user,” even if doing so would require the motorist to steer into another lane or cross a center line. As proposed, the definition of a vulnerable user is broad, including first responders, construction site employees, pedestrians, police, and bicyclists. According to research included with the legislative proposal, bicycle accidents involving impacts from the rear constitute 40 percent of incidents resulting in death. This law attempts to reduce that figure.

Massachusetts Appellate Court Dismisses Premises Liability Claim for Lack of Causation

January 17, 2016 | by John S. Moffa

In Stewart v. Five Bridge Inn, LLC, a woman suffered injuries while attending a wedding at an inn located in Massachusetts after suffering a fall. In particular, the woman experienced a broken tibia and fibula. The woman filed a premises liability complaint against the inn, alleging that an oddly shaped rock embedded in the parking lot was responsible for her tumble. During the litigation, however, the woman indicated that she was wearing three-inch heels during the accident and that she was not completely clear on whether the irregularly shaped rock was responsible for her tumble.

The defendant filed a motion for summary judgment. In such a motion, the moving party advances that there are no genuine issues of material fact and that the court should rule on the litigation as a matter of law. The lower court granted the motion, agreeing with the defendant’s assertion that the plaintiff did not prove that a defective condition at the defendant’s location was the cause of her injuries.

Massachusetts Courts Uphold Dismissal of Claim Based On Scope of Self-Insured Provisions

January 11, 2016 | by John S. Moffa

When it comes to personal injury cases, there is little dispute over the duty of an insurance company to provide prompt, fair, and equitable representation and services to their insureds. This is especially true in situations when someone makes a claim against one of the insurance company’s policyholders, and the insured’s liability for the injuries and damages complained of is clear. In a recent case, a more nuanced question regarding insurance companies’ duties arose: whether the defendant was actually in the business of providing insurance and subject to Massachusetts’ laws governing insurers’ duties at all.

Appellate Court Overturns Defense Verdict in Massachusetts Informed Consent Medical Negligence Case

January 4, 2016 | by John S. Moffa

In Bradley v. Sugarbaker, a woman suffered scars on her lungs after she was involved in a car accident in 2002. Roughly two years later, the woman underwent a medical examination that revealed she may have lung cancer. The physician who performed the test was a thoracic surgeon. Shortly thereafter, the woman received a surgical biopsy to remove part of her lung tissue and to test it for cancer. Prior to the operation, the woman signed an informed consent document stating that she would receive a bronchoscopy, a mediastinoscopy, and a minithoracotomy.

The procedure commenced, and the thoracic surgeon ended up also performing a pulmonary wedge resection, which resulted in the sample containing a larger portion of lung that also included healthy lung tissue. According to the plaintiff’s medical records, the operation became “more extensive” as a result of the scarring on the woman’s lungs from previous trauma and surgery, and there were a number of air leaks as a result of the wedge resection.

A number of months later, the woman was diagnosed with several conditions, including a fungus in her chest, a bronchopleural fistula, a collapsed lung, a cough, and worsening pain in her arm. Eventually, the plaintiff was required to quit working due to the severity of her health conditions, and she was also required to receive a number of subsequent surgeries, as well as expensive anti-pain and anti-fungal medications.

Massachusetts Court Dismisses Product Liability Claim for Lack of Standing

December 21, 2015 | by John S. Moffa

In Kerin v. Titeflex Corporation, a homeowner had installed a gas fire pit at his home that used Gastite CSST, a device that is common in both commercial and residential buildings and that is used to provide gas to stoves, fire pits, and other devices. The plaintiff filed suit against the maker of Gastite CSST, Titeflex Corporation, claiming that there was a product defect in the product’s corrugated stainless steel tubing.

The plaintiff originally filed suit in Massachusetts federal district court. In his complaint, the plaintiff asserted four causes of action against the manufacturer: strict liability, negligence in design, negligent failure to warn, and strict liability for failure to warn. The plaintiff sought damages for the cost of replacing the Gastite CSST device with something that did not pose the same potential dangers.

The defendant challenged the complaint for lack of standing, and the lower court judge dismissed the case, finding the plaintiff’s alleged injury too attenuated to support a claim for damages. The court also noted that the plaintiff had failed to appropriately allege the standard of care that applied to economic harm in a defective product lawsuit according to Massachusetts law.

Massachusetts Federal Judge Rules Defense Not Entitled To Plaintiff’s Mental Health Records in Car Accident Case

December 14, 2015 | by John S. Moffa

In a recent car accident case, a Massachusetts federal judge held that the defendant was not entitled to obtain copies of the plaintiff’s mental health records. In Conklin v. Feitelberg, a woman suffered severe injuries as the result of a car crash that occurred in June 2011 involving the defendant. In her complaint, the plaintiff brought claims for negligence, seeking compensation for medical bills, lost wages, emotional distress, permanent injuries, pain and suffering, and loss of enjoyment of life.

During discovery, the defense informed the plaintiff that it intended to seek copies of medical records from the five physicians from whom the plaintiff had sought mental health treatment. The subpoena that the defendant prepared requested records for the period of one year before the accident through to the present day. In response, the plaintiff filed a motion seeking a protective order under Federal Rule of Civil Procedure 26(c), claiming that the mental health records were privileged. The defendant also filed a motion to compel production of the mental health records.

Liability Issues in Massachusetts Ski and Snow Parks

December 7, 2015 | by John S. Moffa

The winter season is in full swing, bringing snow to the Northeast and bringing all the wonderful winter outdoor sports that come with it. In New England, skiing, snowboarding, tobogganing, ice skating, and other winter sports are extremely popular. Whether you are an occasional skier or a seasoned aficionado of the slopes, there are countless dangers that lurk on ski slopes and recreational snow parks.

If you or someone you love has suffered an accident while at a ski resort, snow park, or similar type of location, you may be entitled to compensation. One of the first things that you should consider after suffering an injury in this location is whether the injury could have been prevented by the ski resort or snow park and whether it was foreseeable that someone would injure him or herself in the same manner. If the facility had knowledge that the condition leading to your injury existed, they may also be held liable for failing to warn you about the dangerous condition or for failing to take steps to remedy it.