Boston Accident Lawyer Blog

President Barack Obama, in his State of The Union speech Monday evening, made another reference to the supposed need for tort reform; to 'control the rise in health care costs.' I bristle at these kinds of mentions, for two reasons: 1) They demonstrate how successful liability insurers have been in their propaganda campaign to convince everyone from the person on the street to the President of the country, that increases in the cost of health care and in the cost of liability insurance, are due to “frivolous lawsuits.” 2) The average person who has not been the victim of medical negligence or has not known someone who has been a victim, has absolutely no idea of the impact that these draconian ideas of limiting a plaintiff’s financial recovery in court, will wreak on such victims’ lives.

And they need to know just how bad "tort reform" really is. Tort reform isn't a single concept or one single law. Rather, it's an amalgam of ideas and laws that are designed to drastically alter the way our civil justice system works. Many of these “tort reform” proposals would place “caps” on jury awards for pain and suffering, as well as death that results from a doctor’s or a hospital’s medical negligence. Arbitrary caps like this are a liability insurer’s dream – and an insult to anyone else who has suffered due to medical negligence. I’ve blogged previously about this subject, but it can’t be said enough: Arbitrary and formulaic caps on damages, and restrictions on certain types of lawsuits, represent a horrible assault on this nation’s civil justice system. Furthermore, since lawsuits are not a major factor in determining liability and medical malpractice premiums, these inequitable and unjust ideas will not reduce liability insurance premiums, or health care costs.

If anyone needs proof of just how unjust “tort reform” is in the real world, I offer the following. A Massachusetts medical malpractice case that was filed in Suffolk County a few years ago, and that settled this week, illustrates just how horrific some of these cases can be, and of how proposals to enact “caps” on jury awards and damages, are scathingly unjust. Consider the following facts in this case:

Rebecca Riley was little more than 2 years old when her parents, murderous animals by the names of Carolyn and Michael Riley, brought her to a psychiatrist at Tufts Medical Center in Boston, a Dr. Kayoko Kifuji, claiming that Rebecca was supposedly ‘acting strangely.’ In fact, these two animals took not only Rebecca but her two siblings, (now 10 and 15,) to Dr. Kifuji, as part of a scheme to claim the children were psychiatrically ill, so the parents could collect federal disability checks for the children’s supposed mental disorders. Carolyn and Michael Riley were not any of these children’s biological parents – they were foster parents, paid by the state to care for the children. These living examples of human filth are now guests of the Massachusetts state prison system, having been convicted last year of Massachusetts murder charges (in separate trials) in Rebecca’s death.

Yes, these two individuals were twisted. But how and why did Rebecca Riley die? Because Dr. Kifuji, according to documents filed in the medical malpractice case against Kifuji and Tufts, diagnosed Rebecca – then little more than a 2 year-old child – as “bipolar”, based solely on her very first appointment with Rebecca, without conducting any background inquiry into other professionals such as Rebecca's teachers or school nurse, and prescribed numerous and powerful psychiatric medications to be administered to her by her foster parents. Carolyn and Michael Riley then gave the child these medications, which led to her death.

I’ll discuss my opinion of just how stunning this medical malpractice was, in my next post.

In my previous post on this subject, I wrote of how the law governing liability for injuries suffered on someone else's property due to slipping or falling on snow or ice, has recently undergone some major changes. The changes come not from the Massachusetts Legislature, but the Massachusetts Supreme Judicial Court.

Thankfully, those changes have finally come. In Papadopoulos v. Target Corporation, the SJC eliminated the ancient distinction between "natural" and "unnatural" accumulations of ice and snow discussed in my last post, terming the distinction between natural and unnatural accumulations of ice and snow a "relic" derived from old cases, which "has sown confusion and conflict in our case law." The Court's ruling stated that "We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to 'act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.'" (emphasis added.) This means that all property owners - homeowners or commercial - must take reasonable measures to minimize as much as possible any safety hazards created by snow or ice - regardless of whether that snow or ice has been previously moved or altered in any manner.

Very importantly, the SJC applied the new rule "retroactively", to any cases that are currently pending before state court dockets, or that have yet to be filed. This is so even if the injury has already occurred, so long as those cases have not proceeded to final judgment or the statute of limitations on the action (typically three years) has not expired. That's it. End of discussion. From this point forward, Massachusetts will follow the same legal principles as the other forty-nine states in this country.

Critics of this important legal decision have derided it as opening up a floodgate of Massachusetts personal injury litigation. (Those critics are usually liability insurance industry executives and commercial property owners.) I highly doubt that will result. In my opinion as a Norfolk County, Massachusetts premises liability lawyer, the chief effect this decision is going to produce, is to remove the inequities that often resulted previously, between who could, and could not, recover for injuries suffered on a property owner's premises due to a fall on snow or ice. Because of the confusion surrounding the previous "Accumulation Doctrine," many injured persons who deserved to recover for their injuries, could not.

What the court has done here, is to equalize the liability standard for snow and ice injuries, with the same liability standard applied to all other property hazards. That standard (one of "reasonable care" under the circumstances) is not an undue burden to place on either real estate owners, or commercial property owners. Now, a level playing field will exist for all plaintiffs and defendants in these types of actions. That's a good thing, not the reverse. Noticeably in its January 9 2011 Sunday edition, The Boston Globe supported this position in its editorial last Sunday (click here to read that editorial.)

The easiest legal translation and the bottom line: If you own any kind of property, personal or commercial, you must undertake "reasonable measures" to clear your property of safety hazards caused by the presence of snow and ice. Common sense: This means clear the snow and ice as fast and as much as is reasonably possible, and salt or sand any remaining hazard.

If you're someone who has suffered an injury due to a fall on snow or ice on property owned by someone else, contact us for a free consultation. We have extensive experience in these types of injury cases, and we can help you secure the maximum amount possible for your injuries.

Either way, stay warm and stay safe.

In the wake of last week's major snowstorm, you won't read a more timely or important post than this one - at least on the subject of Massachusetts personal injury law. The reason is that very recently, the Massachusetts Supreme Judicial Court (SJC,) issued a landmark, critical decision in the area of property owner liability for injuries caused by slips and falls due to snow and ice.

The case name is Papadopoulos v. Target, 457 Mass. 368 (2010.) This is a landmark decision because in it, the SJC completely changed the legal standards and rules that are applied in these types of Massachusetts premises liability cases. For almost 100 years previous to this decision, the legal question of whether or not a landowner - a homeowner or commercial property owner - was liable for another person's injuries due to a slip or fall on snow or ice, was extremely complicated and often murky.

Why? Because Massachusetts common law previously required judges and juries to make a complicated distinction between "natural'' and "artificial'' accumulations of snow and ice. What's the difference? For almost 100 years, that was a good question - and one that judges themselves (trial and appellate) often had a hard time answering.

Previous to this landmark ruling, liability in these types of cases was decided according to the confusing "Natural Accumulation Doctrine" (or the "Massachusetts Rule", aptly named because we were the only state in the Union that employed it.) People who suffered injuries by slipping and falling on snow or ice which had accumulated naturally and which remained untouched by the owner were unable to recover from the owner for their injuries. Under the previous, antiquated law, property owners (both personal and commercial) were not liable for injuries resulting from snow that remained unplowed, or icy parking lots that weren't sanded. The explanation? Supposedly, these types of conditions were "natural'' conditions, freeing the property owner from liability.

In contrast, if a property owner for example, plowed snow into a pile, then later on that snow melted, the water runoff re-froze and someone fell on that ice and suffered injuries, that property owner could be held liable for those injuries. The reason? Again supposedly, the property owner, in the process of plowing or shoveling, had "changed the natural condition of the snow", and therefore rendered the snow and/or ice into an "unnatural accumulation". Because the snow and ice that caused the injuries was in an "unnatural accumulation", liability resulted. Confused enough yet? So were a lot of people, for many, many years.

Far worse from this law sowing such confusion, it produced serious inequities between injured persons who could, and could not, recover for many times serious injuries. Believe me, we aren't talking about just sprained ankles here - a fall on snow or ice can result in surprisingly devastating injuries, including broken necks and backs, fractured skulls - even paralysis. The rule also fostered a disincentive for some property owners to undertake serious efforts to clear their property of snow and ice - because if they did, under the law they would have changed the snow or ice from a "natural accumulation" to an "unnatural accumulation", and hence opened themselves up to potential legal liability for any injuries that resulted from a slip or fall due to snow or ice on the property. Many property owners were legally better off not removing the snow, or not taking measures to sand the ice. Over time, this confusing and inequitable concept was expanded to include even more confusing scenarios than the ones described above.

I'll detail the important changes that the SJC has made in this area of Massachusetts premises liability, in my next post.

I love to report and comment on stories like this: A Massachusetts personal injury case that results in solid justice to the plaintiff.

Readers of a certain age and above will remember that back in the late 1970’s and early ‘80’s, tobacco companies would literally give away samples of their cigarettes to the public. They had been doing this since at least the early 1960’s. I’m dating myself here, but in the mid-‘70’s, I can clearly remember riding the Green Line into and out of Boston during those years, and seeing young, healthy looking men and women standing outside subway entrances at peak commuting hours, handing out small sample packs of cigarettes to almost anyone who walked by. These tobacco company “hawkers” (usually college kids or recent grads trying to make a few bucks,) would hold trays of cigarettes samples (usually containing 4 or 5 cigarettes,) out in front of them, held by a strap around their necks. While downtown locations were usually the best fishing grounds for this activity, these hawkers could also be found outside nightclubs on weekend evenings, and at beach locations in the summer. Usually very attractive young women who could double as models, these hawkers conveyed beauty, youth, and health.

There was just one problem: What they were promoting was anything but healthy, and anything but beautiful. In point of fact, they were legal drug pushers, pushing a deadly, addictive product, for free, just to get people hooked on the nicotine. It was literally like handing out cocaine samples for free – and worse, they pushed these deadly products on anyone and everyone who walked by – usually without regard to age. If you were a twelve-year-old who looked 15, you got cigarettes. Fast forward about 35 years: A woman in her mid-40’s, Marie Evans, is dying of lung cancer. She remembers when her addiction began: At age nine, when these healthy-looking, tray-carrying cigarette hawkers regularly handed out samples of Newport cigarettes to her and other kids. She files suit against the manufacturer of those cigarettes, Lorillard Tobacco Co., of Greensboro, North Carolina, shortly before her death in 2002. This past month, in December of 2010, a Suffolk Superior Court jury awarded her estate $50 million in damages for negligence, and awarded her son $21 million, for her death due to lung cancer. Days later, the jury added another $81 million to the verdict, for punitive damages, bringing the total verdict against Lorillard Tobacco Co., to $152 million.

The case is unique by being the first to claim that a tobacco company intentionally targeted minority communities with samples of cigarettes. Lorillard Tobacco makes the Newport Cigarettes brand, a menthol brand known to be very popular among black communities. The jury found the cigarette company was negligent in passing out samples of cigarettes to Evans and other black children when they lived in the Orchard Hill housing development in the Roxbury section of Boston. Evans testified that “pretty white ladies” would pass the cigarettes out, attracting children her age. “They seemed to be there waiting when we got out of school,” Evans said. The verdict is also unusual in that even though tobacco companies’ marketing practices have been criticized by government agencies, jurors historically haven’t sided with smokers who bring lawsuits against tobacco companies, preferring instead to hold the smoker partly responsible. This jury here believed that Evans was too young at the time she was given the cigarettes to know anything about them, and that once she was addicted, she couldn’t quit.

A Lorillard spokesman denied the plaintiffs’ claims, and announced that the company will appeal the verdict.

Earlier this week, lawyers for the plaintiffs asked a Massachusetts Superior Court judge to order Lorillard Tobacco to place $270 million aside in capital reserves to pay what the jury’s award could eventually amount to, with interest, as the appeal moves forward. The plaintiffs’ lawyers requested this order, because $270 million is what the final award could amount to, after adding statutory pre-and post-judgment interest. Without that order, Lorillard Tobacco Co. would have been able to essentially transfer all of its working capital to another corporate subsidiary, (Lorillard Inc.,) which would be beyond the court’s jurisdiction. Before any pro-business fans bemoan this judgment, bear this in mind: Lorillard’s own expert testified at trial that Lorillard Tobacco earns $16 million per day in revenue. Believe it or not, when judge Elizabeth Fahey asked Lorillard’s attorney how an order to reserve enough cash to pay the judgment would harm Lorillard, its attorney said, “The harm to Lorillard Tobacco Co. is going to be some adverse effect on its credit,’’ quoting from a transcript of the hearing. Thankfully, the judge wasn’t buying it.

As a Massachusetts product liability attorney, this verdict for me is sweet music. Not because I’m in any way connected to this case, but because predatory businesses like the tobacco companies should be punished swift and hard for all their dishonest and unethical marketing practices – no matter how far back those practices occurred. That opinion applies also to present predatory types of businesses such as banks and fast-food manufacturers. (Yes, “Big Food”, embodied in companies like McDonald’s, Burger King and KFC, specifically manufacturer their products to be habit-forming. Don’t believe it? Look at the obesity of the average American).

Product liability can arise from a variety of products that cause injury to an end-user, including automobiles, power tools, baby furniture, toys, food products, swimming pools, appliances and several other categories. If someone you care about has been injured in connection with the use of a product, contact us. We’re experienced in this field of law, and we’ll provide you a free initial consultation to let you know what your legal options might be.