Boston Accident Lawyer Blog

The annual Harvard-Yale football game yesterday will be known not for its memorable play or a sudden-death win, but for a sudden death of another kind: A young woman was killed by the driver of a U-Haul truck that was transporting beer kegs and other tailgating supplies to the game, held at Yale University this year. The annual event between the two Ivy League schools is 128 years old, has long been an institution among alumni of the schools, and is known as “The Game” among students and alumni.

The woman who was killed in the accident was identified by New Haven police as Nancy Barry, who lived in Salem, Massachusetts. According to a spokesperson from Yale University, Ms. Barry was not an alumna of either Harvard or Yale. Witnesses told police that Ms. Barry was run over by the truck as it accelerated when turning a corner. She was taken to Yale-New Haven Hospital, and pronounced dead shortly after 10 a.m. The two other victims suffering injuries were identified as Sarah Short, a 30-year-old Yale student from New Haven, and Elizabeth Dernbach, who was reported to be a staff member at Harvard’s Division of Continuing Education. Ms. Short suffered life-threatening injuries and was listed in critical but stable condition at Yale-New Haven Hospital, and Ms. Dernbach sustained minor injuries and was treated briefly at the Hospital of Saint Raphael in New Haven.

This fatality and these injuries are far too common. As a Boston, Massachusetts car accident lawyer, I can assure my readers that while most motor vehicle accidents involve vehicle-to-vehicle collisions, a great many also involve pedestrian injuries. This is especially so at events where large numbers of cars, trucks, and pedestrians are concentrated together at public events – like football games and concerts. Tailgating at these events – drinking and eating - is almost as popular as the events themselves. The lethal combination of too many vehicles, too many people and alcohol, is a deadly combination. In fact, it is the perfect storm for what happened yesterday. While “legacy” events such as the Harvard-Yale football game, and lesser-known college football games, have for years allowed the open use of alcohol at these events (in practice unregulated to any effective degree,) for a long time now I’ve thought that practice unwise. I should point out that while the driver of the truck that caused this death and these injuries has not yet, to my knowledge, been charged with operating under the influence of alcohol, he was transporting kegs of beer in the rented U-Haul truck he was driving, though he was taken into custody and questioned.

The accident occurred just before 10 a.m. as the truck entered a parking lot near the Yale Bowl and the driver accelerated as he made a turn, a New Haven police spokesperson said. “He accelerated, striking three women, and continued until it hit a parked U-Haul truck. That truck then pushed into another U-Haul truck.” All three trucks were loaded with kegs and other tailgating supplies.

The civil liability exposure for this motor vehicle fatality and these injuries will be extremely high. The New York Times has reported that the driver was a Yale undergraduate and that the U-Haul had been rented by members of the Sigma Phi Epsilon fraternity. In terms of obtaining financial compensation for the Ms. Barry’s death and for the injuries the other two women suffered, the attorneys representing these victims will look first to any automobile insurance that may have provided bodily injury liability coverage for the driver of the U-Haul truck. Next, attorneys will look to any liability insurance that may have covered the rental of the U-Haul truck, the business that rented the U-Haul truck, and possibly the U-Haul corporation itself. If it were later determined that the accident occurred due to a mechanical defect in the truck or any of its component parts affecting safety, then companies involved in the production, marketing and sale of those components may also become potential defendants. Last, but not least, Yale University might be a potential defendant in any litigation that follows this tragedy.

Why? As a Norfolk County Massachusetts car accident lawyer, I believe a legal argument can be made that Yale University exhibited negligence in allowing U-Haul trucks, kegs of beer, and hard liquor at this event, combined with what many people commented was poor traffic enforcement. Harvard banned U-Haul trucks and alcohol at their tailgating events last year, and beefed up traffic management. But to too many other colleges, the idea of interfering with their beloved football games and tailgating parties, is too much. How popular are some of these tailgating parties? Following yesterday’s tragedy – which was broadcast over speakers at half-time - tailgating continued throughout the game and for more than an hour after the game ended, until police forced people to leave around 5 p.m.

Texting while driving automobiles has been the focus of a lot of conversation in the recent past, in several states. In Massachusetts alone, a new law against texting while driving became effective in 2010. Most people, though, wouldn’t expect that the problem of texting while driving would be witnessed on a subway car.

Yet in 2009, that’s exactly what happened on a Green Line subway car operated by a Massachusetts Bay Transportation Authority (MBTA) driver. The subway car driver had been sending a text message to his girlfriend while accelerating the trolley from zero to 25 miles per hour along 586 feet of subway track. The driver went through a yellow subway light and ran two red subway lights before colliding with a stationery trolley with its brake lights on, in the Government Center MBTA stop. The crash injured 68 people and caused nearly $10 million in MBTA property damage. Samantha Mattei, 21, was one of those 68 injured. As a result of the crash, she suffered a broken back, a serious concussion, nerve damage, and lacerations to her face. She also suffered other injuries causing vertigo, nausea, and constant headaches. Two years after the accident, she still walks with a cane. Because she cannot drive a car due to her injuries, her parents must drive her everywhere. Because she has difficulty concentrating on her academic studies, she says she is on the verge of losing her scholarships.

So it came as no surprise that Ms. Mattei last week filed a lawsuit against the MBTA and Aiden Quinn, the subway car operator, in Salem Superior Court. In filing her suit, Ms. Mattei told the Boston Globe that “I was injured as a result of something that was perfectly preventable. As a result of negligence, I was personally affected in a way that has cost me money, time, and many parts of my life. I would like to see things change for the better.” The Massachusetts personal injury lawsuit seeks $51,425 as compensation for medical bills and lost wages, as well as damages for pain and suffering. If the case is not settled prior to trial, a jury would decide how much, if any, to award for pain and suffering. MBTA officials declined to comment on the lawsuit, citing its policy not to comment on pending litigation. A spokesman did note, however, that the trolley operator, that Aiden Quinn, was fired by the MBTA, and pleaded guilty last December to negligent operation of the trolley, a misdemeanor.

As a Boston bus accident lawyer, I can assure readers that accidents involving public (as well as private) trains and buses happen far more than most people would think. Most people like to think that when they get on a bus or train, they’re safe. Not so. Bus accidents cause thousands of personal injuries in the United States each year. In Massachusetts, cases involving personal injury and wrongful death are not at all uncommon. Massachusetts bus accidents can be caused by the same factors that cause private passenger accidents, including speeding, driver errors or fatigue, weather conditions, and even intoxication. Added to this list is the potential for maintenance violations. Subway cars and trains, like buses, are classified as common carriers. What this means is that, legally, they are held to a higher standard of liability. If you have been injured due to the negligence of a train operator, the owner and/or operator of that bus or train may be liable for your injuries.

The personal injury lawyers at the Law Office of William D. Kickham and Associates of Westwood and Boston have many years of experience representing individuals who have been injured in MBTA accidents, as well as in accidents involving private-held bus companies. If you have been involved in train or bus accident, we know how to represent your case to maximize the financial recovery you may receive. Contact us for a free consultation. We can advise you if you have an actionable case, and what your legal options are.

In my last post on this subject, I discussed the incredibly rare, recent jury verdict of $12 million that was awarded in a case involving a Norfolk County car accident. Almost all of Massachusetts, and especially Norfolk County, is notorious for finding against plaintiffs in Massachusetts personal injury lawsuits, so this verdict was widely noticed. Much of the reason for that very large and rare verdict amount, had to do with the perception that the defendant and his grandparents were not testifying truthfully in the case. But the other, equally important reason, was a legal doctrine known as “Negligent Entrustment.”

You’ll note from Part One of this post, that the driver of the car (Vittorio C. Gentile, Jr.) who injured the plaintiffs (in this case Douglas and Joseph Homsi,) was driving a 1999 Lexus SUV owned by his grandparents, Lydia and Vittorio Gentile. The younger Gentile had been found criminally responsible for the head-on collision in a criminal prosecution, and served jail time for that conviction. Evidence in the case showed that the younger Gentile had the tacit permission of his grandparents to use their car the night of this accident (evidence showed that they made the car keys available to him, and that he had driven their car in the two days preceding the accident.) Normally, in such a situation involving “permissive use,” the owner’s automobile insurance policy would provide coverage up to the policy limits on that vehicle, and if a jury verdict or pre-trial settlement was reached that exceeded the limits of that auto policy, it might be possible to pursue the vehicle owner’s homeowner’s policy and any umbrella coverage provided by that homeowner’s policy. And normally, it would be the driver’s conduct and actions that would guide a jury to determine liability and the extent of any damages. But in an odd twist, in this case it was the conduct of the driver’s grandparents that caused this jury to return the verdict that they did. This was largely because of the doctrine of Negligent Entrustment.

You see, evidence was introduced to show that Vittorio’s grandparents were well aware of his horrid driving record, together with his general personal history, which apparently did not reflect a high level of responsibility. Despite this, they made their car available to him. In court documents, it was revealed that the elder Gentiles denied that they were in any way aware of their grandson’s poor driving record, and also denied that they had either made their car available to him for his use, or that they gave him permission to drive it. Fortunately for the plaintiffs, their lawyer was smart enough to obtain documents that showed: 1) Not only were the grandparents aware of their grandson’s record of previous driving accidents, they were so aware of it that they held a special meeting with their auto insurance agent, following high premium surcharges they were paying due to their grandson’s inclusion on their policy as a “covered driver.” The plaintiffs' attorneys alleged that the younger Gentile had been hit with so many surcharges for operator citations, license suspensions and accidents dating back to 1997, that his grandparents had him removed him from their insurance policy even though other grandchildren were still covered and permitted to use their vehicles. It was reported that video deposition testimony of the insurance agent who issued multiple auto vehicle policies for the grandparents proved this, and was especially damaging to the grandparents' claim that they had no idea their grandson was a high-risk driver. This evidence established knowledge and awareness on the grandparents’ part of the dangerous driving record of the defendant.

2) As to the grandparents’ denial that they gave their grandson permission to drive their car, evidence introduced at trial established that they had made their car keys available to the defendant repeatedly. A private investigator uncovered evidence that the grandson had often used the Lexus with the tacit consent of his grandparents, and further, that the younger Gentile had driven the SUV in the 48 hours prior to the crash. Despite this, the grandparents insisted that they didn't know who had the car or where it was in the two days leading up to the crash (surprisingly, even though they never reported the vehicle as missing or stolen.) All this evidence, critically, convinced the jury that the grandparents’ testimony on these key issues was not reliable – and the jury clearly meant to issue punishment for it.

Hence, even though the operator clearly caused this accident, it was the conduct of parties not even at the scene of the accident, which produced this verdict. I have to give credit to the plaintiffs’ attorneys here. They knew from the beginning that the younger Gentile had few assets and their due diligence apparently showed that his grandparents held title to more than $2 million in real estate. They knew that the grandparents’ conduct would be key in this case, and that it was they, not the younger Gentile, who would have to be the “deep pockets” to pay for the hospital bills and future care that Douglas Homsi will require the rest of his life. Hence, the victims’ attorneys moved rapidly to get a pre-judgment attachment for $1.5 million against three properties the defendant grandparents own in Massachusetts, including their home in Westwood. In a very smart and preemptive move, the Homsi’s attorneys also obtained an injunction to prevent the grandparents from transferring assets out of their names.

Cases involving claims of Negligent Entrustment are often difficult to win. Most cases involving a driver causing harm while using another person’s car, are won or lost in the issue of whether or not the vehicle’s owner consented (expressly or tacitly,) to its use. This theory of liability is an especially high hurdle for an attorney to overcome, because it must be shown that the defendants knew or should have known about something(i.e., the operator’s dangerous driving propensities) that they claim they did not. This can be a very difficult point to prove with a licensed operator. Fortunately for the plaintiffs in this case, that evidence was made clear enough for the jury. The evidence persuaded the jury that the grandparents knew of their grandson’s horrible driving record, and yet failed to take any steps to keep him from using their car or to otherwise stop him.

Not a pleasant story or a pleasant outcome, for anyone involved. This case will very likely proceed to appeal, and what happens in the end has yet to be determined with finality. But, as a Dedham, Massachusetts car accident lawyer, I can assure you: This verdict serves as a cautionary warning to anyone who routinely allows another person – family member or otherwise – to operate their motor vehicle: 1) If you know or have reason to know that such a person is a dangerous operator, and you still tacitly allow this person to use your vehicle, you can be held personally liable for any resulting damages. This is completely separate from the issue of insurance coverage. That issue relates to coverage, not liability. Regardless of whether or not that person is listed as a covered operator on your vehicle’s insurance policy, you can still be held liable for third-party injuries and damages if you allow a dangerous or irresponsible driver to operate your vehicle.

So think twice before you tell someone whose driving history would or should arguably be known to you, “Sure, take my car.”

In an encouraging sign that juries in Massachusetts have not completely bought the fallacy of "tort reform" and lost sight of the meaning of civil justice, a Norfolk County Superior Court jury recently awarded a $12 million plaintiff’s verdict in the case of a Massachusetts motor vehicle accident that resulted in horrific injuries for the injured parties who brought suit against the at-fault driver.

The case, Silviero v. Gentile, Norfolk Superior Court No.: 2007-212, resulted from a 2006 crash in Milton that left two men, brothers in their 60’s who lived with each other, devastatingly injured for the rest of their lives. The case is noteworthy not only for the large verdict, (especially in Norfolk County, which has not been known for producing large plaintiff’s verdicts,) but for the punishment the jury obviously felt was warranted in light of the defendant’s clearly false testimony in the case.

The two brothers who were victims in this Milton Massachusetts car accident case, Douglas and Joseph Homsi of Needham, were driving on Blue Hill Avenue in Milton at around 2 a.m. on Dec. 10, 2006, when a speeding Sport Utility Vehicle (SUV) driven by (then) 26-year-old Vittorio C. Gentile Jr. of Canton, swerved across the double yellow lines in the roadway and collided head-on with the Homsi brothers’ vehicle. The resulting impact was so severe that rescue workers had to use the Jaws of Life to pry the brothers from the twisted wreckage. Joseph Homsi, who was the passenger, suffered a broken sternum and fractured ribs, as well as internal injuries. However, his brother, Douglas Homsi, who was the driver, suffered the worst from the impact, sustaining severe multiple bone fractures as well as injuries to his liver, spleen and other organs, which, collectively, left him unable to breathe or eat without assistance. The combination of these injuries later caused Douglas to suffer a stroke, which left him unable to speak. Making the result of Douglas’ injuries even more tragic was the fact that Douglas served as an informal caretaker for his brother Joseph, who suffers from mental disabilities. That is one of the reasons why the two brothers lived together in their Needham home.

But it wasn’t only the horrific injuries these two men suffered, and the fact that Douglas Homsi cared for his mentally disabled brother, which made this case stand out to the jury. In fact, a major reason for this verdict had less to do with the facts of the actual accident itself, than it had to do with events that took place before and after the accident. Events involving lying, deception, and false testimony –by the owners of the vehicle that Gentile was driving the night of the accident. The SUV that the younger Gentile had been driving that night didn’t belong to him. No, he hadn’t stolen it, either – he was using it with the tacit permission of the owners, who are Gentile’s grandparents, Lydia and Vittorio Gentile, of Westwood, Massachusetts. And it was the actions of the grandparents both before and after this accident, together with the younger Gentile’s actions in the accident – that caused this jury to award these victims $12 million.

You see, it seems that young Vittorio Gentile has a long and troubling record of motor vehicle violations and accidents, riddled with citations dating back to 1997 - of which his grandparents were both well aware of. In fact, the grandparents were so aware of their grandson’s high-risk driving history, that they took special steps with their auto insurance agent to have the younger Gentile removed as a "covered driver" from their auto insurance policy covering the vehicle that was involved in this crash. They removed their grandson from the policy because keeping him on it as a covered driver was causing their insurance premiums to increase dramatically, due to the younger Gentile’s numerous operator violations and motor vehicle accidents that he had been cited in. This introduces the legal doctrine of "Negligent Entrustment," which essentially served as the basis for the jury’s finding in this case. I’ll discuss that legal doctrine, why the jury found liability here, and why they returned such a large verdict for these plaintiffs in my next post on this case.

File this new development under “Solve One Problem; Create Another.” For years, car manufacturers have tried to make their vehicles operate as quietly as possible. Helps keep noise pollution down, and helps maximize the sounds produced by the internal audio system, right? Those efforts usually revolved around minimizing engine noise in the only real engine most people had ever known – the internal combustion engine. But along the way, and somewhat unexpectedly, came the hybrid gas-electric engine, and with it as new phenomenon: A completely silent car when "on" but not moving, or moving at slow speeds (usually under 15 MPH.)

What’s the problem? When hybrid cars are “idling” at a stop sign, or moving but at speeds usually less than 15 MPH, they are powered by the hushed electric motor of the electric-gas hybrid. The gasoline-powered engine only kicks in when speeds exceed 15 MPH – at that point, the engine produces sound similar to most car engines you now hear. It doesn’t take a genius to see the trouble here: More motor vehicle accidents and injuries when hybrids are at stop signs, or moving slowly. Since a great majority of these types of motor vehicle accidents will happen when cars have been stopped at intersections or moving slowly in parking lots, a great many of them will likely involve pedestrians. By the way: Don’t be fooled into thinking that a pedestrian can’t be hurt that badly by a motor vehicle traveling at 15 MPH or less. Trust me: A person can be killed or seriously injured when hit by a car traveling at even 10 MPH. I’ve seen it before: Horrific injuries involving paralysis, even death.

This is no small problem. As hybrids proliferate and major auto manufacturers prepare to launch battery-electric only vehicles (even more silent than hybrids,) many see the growing injury threat to pedestrians. To deal with this unexpected problem, automotive engineers are researching how they might actually add some noise back into the hybrid models now being manufactured. But how to do this without re-creating the noise-polluting car engines that most people always hated? Nissan is now developing the “Leaf”, their version of an all-electric (vs. hybrid) car, and they’ve recently tested some of their ideas for “artificial” noises to officials at the National Highway Traffic Safety Administration, as well as focus groups. Some possibilities? A Chime; a melody from a popular song; even possibly a futuristic “whirring.” There is also some talk that Congress may issue a measure requiring vehicles to produce "non-visual" warnings to pedestrians. Cars such as Tesla's Roadster, Nissan's Leaf and General Motors' Volt, will depend entirely on battery electric power, and may be even quieter than existing hybrids.

Advocates at the National Federation of the Blind, which has understandably raised this safety issue with automakers and government officials, have suggested that electric cars make sounds similar to those of gas-powered cars. According to John Par, director of strategic initiatives for the group, "Society is conditioned to that sound..” Others are concerned that if a variety of different noises are allowed, electric cars could merely add another element of noise to the typical urban cacophony. Obviously, a universally workable solution to the problem isn’t easily found. But Fisker Karma, a luxury electric vehicle, will reportedly feature an integrated audio system that will both alert pedestrians as well as give the car a "distinctive audio signature" that will be "reflective of the car's advanced technology," according to a spokesman.

Surprisingly, spokespersons at Tesla say the company has no intention of incorporating "fake noises” into their vehicles. The company is known for manufacturing the completely electric Roadster, a $109,000 luxury product that is popular with eco-conscious celebrity customers. My opinion as a Boston car accident lawyer: Let a few catastrophic injury lawsuits be filed against them, let a few juries decide that their intentional decision to make these vehicles completely undetectable to the ear was negligent and irresponsible, and they’ll change their minds fast. As they should.

Producing an eco-conscious car is great. Doing it in a way that increases the likelihood of often serious injuries or deaths to innocent pedestrians (as Ford did in the 1970’s with the infamous Pinto,) is negligent and irresponsible.

Note to Tesla and other similarly-minded auto manufacturers: Wake up and hear the engine. (Even just a little.)

In yet another example of how dangerous everyday driving can be, a 32-year-old Dedham woman was killed earlier this week as the result of injuries she received after being struck by another car. Making this death even worse, were the circumstances under which the tragedy occurred: A neighbor drove his SUV into a birthday party being held for the victim's five year-old daughter, and the victim, Kimberly McGinley, was struck by the SUV while she was trying to get other children attending the party out of the SUV’s path. Despite efforts by emergency personnel at the accident scene and by doctors at Massachusetts General Hospital, Ms. McGinley died.

Now, a 32 year-old woman is dead, and a 5 year-old child motherless. As a Boston car accident lawyer, I see these tragedies all too frequently. The lifelong damage they cause is incalculable. According to police investigators, Zeggai S. Malu, 71, of Somerville, drove his Nissan Pathfinder across the sidewalk at 21 Munroe Street, then onto the lawn at 25 Munroe. The SUV struck McGinley and a 2-year-old Roslindale child, police said. The boy was found under the car, but was not pinned. The child is still at Massachusetts General Hospital, but is in stable condition. The operator of the SUV, Mr. Malu, has cooperated with investigators, police said. Preliminary indications are that speed, drugs or alcohol were not involved, according to police.

This preliminary report underscores the reality that while driving under the influence is a terrible problem in our society, it doesn’t take drunk driving to inflict the kind of tragedy witnessed here: All it takes is taking your attention off the road for a split second, and the results can be devastating. In my practice, I see this happen all the time. It can happen to anyone. While no charges have been filed against this operator, his driver's license has been suspended for, among other reasons, Operating To Endanger.

When a victim or a victim’s family comes to our firm, as Boston, Massachusetts car accident lawyers, we activate an entire team to help them. We cannot turn time back and prevent the accident. We cannot bring back a loved one who has been lost due to someone else’s negligent driving. No lawyer can. But we can, and do, act rapidly to ensure that the victim recovers as much financial compensation as possible under the circumstances. That is one of the key reasons why automobile tort law exists as a distinct type of legal practice; it is why auto insurance is compulsory in Massachusetts – to ensure minimum amounts of insurance are available to compensate victims of Massachusetts car accidents, and other drivers’ negligence.

If you’ve been injured by someone else’s negligent driving, call us and we can help you recover the maximum financial compensation possible under the circumstances. In the immediate case of this tragedy, where a dependent child is left without a parent, the victim’s family will need to secure the maximum amount of damages possible to help provide for that child’s future. Aside from a negligence claim arising from the reported operation of this motor vehicle, a wrongful death lawsuit might also be possible (though to be certain I would need to know more facts, which at the time of this posting, I am not in possession of.)

Take a lesson from this tragedy: Always pay attention to your driving – and stay off your cell phones when behind the wheel!

Continue reading "Somerville, Massachusetts Car Accident Kills Dedham Woman, 32" »

In my previous post, I discussed the disturbing news that Massachusetts has the lowest rate of seat belt usage in the United States. Apparently, a lot of people in this state think that unless they’re barreling down a highway at 75 MPH, they won’t be badly injured in a car crash and therefore don’t need to wear a seat beat. These are the same people who will slow down to morbidly take a look at an accident scene along the road – and drive away still unconvinced. If anyone doubts that severe injuries and death can easily result from a 30 MPH car crash, just ask Beatriz Fuentes. Her daughter, Natalie DeLeon, was not wearing a seat belt when she was killed in 2006. The car DeLeon and her boyfriend were in was traveling about 30 miles an hour when the vehicle in front of it stopped short. As a Boston car accident lawyer, I see these accidents happen all the time; all it takes is a split second, to turn everything deadly. DeLeon’s boyfriend, who was driving, swerved and lost control. Their car rolled over. “She was ejected and suffered multiple major injuries,’’ said Fuentes, who has become a vocal advocate of seat belt use and founded the Friends of Natalie Bilingual Seat Belt Campaign in Springfield.

Unbuckled passengers in a car that is moving violently after a collision or rollover “become like a rag in a dryer,’’ said Fuentes. True. Unbuckled passengers in a car doing only 20 MPH are like projectiles in the car. As a Boston car crash lawyer, I can assure you that the injuries that result from such a crash can easily result in death – and sometimes worse. (If you think that death is the worst thing that can happen to you, try to think of what life would be like, burned over 90 per cent of your body and paralyzed from the neck down.)

Natalie’s Law is a bill that would strengthen Massachusetts law to allow police to pull over motorists who are not wearing a seat belt. Current law allows police to issue seat belt citations only when they have stopped a vehicle for some other, unrelated reason. This is known as a “secondary seat belt law.” Otherwise, police can flag down a seat belt violator only when a child under 12 is not strapped in. The National Highway Traffic Safety Administration suggests that a primary seat belt law in Massachusetts would increase the use of seat belts by 12.5 percent and, as a result, save 27 lives per year in Massachusetts and prevent more than 1,000 serious injuries. Last year in Massachusetts, 277 were killed in motor vehicle accidents. The lead sponsor of Natalie’s Law, state Senator Patricia D. Jehlen, noted that, “In every state that has passed a primary seat belt law, seat belt use has gone up dramatically and fatalities have gone down.” The legislation would also raise the fine for each violation from $25 to $50.

Supporters were hoping the Legislature would approve Natalie’s Law before a June 30 deadline for the state to receive $13.6 million in federal funds for traffic safety. But the deadline passed; the bill never made it to the floor. Similar legislation filed in Massachusetts has failed to pass repeatedly over recent years. Opponents have argued that the law could lead to racial profiling by giving police another reason to stop drivers. In my opinion as an experienced Boston personal injury attorney, that’s paranoid and ridiculous. Other vocal opponents include the National Motorists Association, which encourages seat belt use, but contends that “individuals should retain the freedom and responsibility to make choices affecting their own safety and the safety of their families.’’ Lawmakers have also been listening to drivers in their districts who embrace “the libertarian idea that we shouldn’t live in a nanny state,’’ said Jeff Larson, general manager of SmartRoute Systems Inc., in Cambridge.

It’s stunning to me that a supposedly educated populace like that in Massachusetts could be so blind when it comes to common sense. Then again, so many people only learn the hard way.

Continue reading "Massachusetts Motor Vehicle Accidents Increase, But Drivers Still Resist Using Seat Belts: Part 2 of 2" »

What is it about drivers in Massachusetts? Not only do we have the reputation of being among the least civilized drivers in the nation, apparently we are also among the least intelligent: Recent statistics indicate that Massachusetts is the state with the lowest percentage of seat belt use in the nation. According to a survey by the National Highway Traffic Safety Administration (NHTSA,) only about 67 percent of Massachusetts drivers are likely to buckle up. That lags behind even New Hampshire, the only state without a mandatory seat belt law, where the usage rate is 69 percent.

This is despite the fact that the Massachusetts seat belt law requires drivers to buckle up. So what is wrong with these drivers? After seven people were killed in three separate Massachusetts motor vehicle accidents over the recent July 4 weekend, (see my previous post,) in which almost all of those killed were not wearing their seat belts, the Boston Globe took to the streets to ask why facts like these don’t prompt more people don’t wear their seat belts. To hear it from the average driver, there are nearly as many reasons to avoid using seat belts as there are people who don't use them. Even news of these recent fatalities, however, didn’t seem to faze people. It seems that, despite the enlightened reputation that Massachusetts carries, a lot of people don’t like being told what to do. Some people say they’re uncomfortable. “Uncomfortable”? Ever try to imagine how “comfortable’’ it is, having your face smashed into a windshield?

Tom Vanderbilt, author of “Traffic: Why We Drive the Way We Do", had some ideas to explain this insanity: “People engage in all kinds of magical thinking: That crashes happen to other people; that the air-bag will protect me (airbags in fact provide much less safety than belts); that I’m only going a short way or I’m on a quiet country road, so I don’t need one, etc.’’ Some drivers actually think that if you are driving 20 or 30 miles per hour for a short distance, you don’t need to wear a seat belt. Talk about foolish thinking. In my more than twenty years’ experience as a Boston car accident attorney, I can attest to the reality that most motor vehicle accidents occur at speeds below 40 MPH. And the injuries and deaths that can result would shock any one of these people who think otherwise. I call these people the “WOHATOME©’” crowd: “Won’t Happen To Me”. (Yes, that’s copyrighted. If “NIMBY” helped make Barney Frank famous, I can do the same.)

In my next post on this subject, I’ll address what might be done to improve this sorry situation.

Continue reading "As Massachusetts Motor Vehicle Accidents Increase, Drivers Still Resist Using Seat Belts: Part 1 of 2" »

In yet another reminder that tragedy doesn’t take a holiday, several Massachusetts motor vehicle accidents marked this July 4 weekend, resulting in the deaths of eight people. Four fatal car crashes occurred in just one night.

In Walpole, three people died July 4 when the driver of the car they were traveling in, careened off the road and slammed into a tree near the corner of East Street and High Street at about 1:15 AM. The driver, Jason Wayne Spurlin, 31, of Lakeworth, Florida, who was the only person to survive the crash, is suspected of drunk driving and will face three counts of motor vehicle homicide in the deaths of the three passengers in the car. Those passengers were Nick Kelly and Anna Dubois, both 20, of Walpole, and Amanda Murray, 23, of Medfield. Reportedly, Murray and Spurlin were dating and Murray had recently given birth to the couple’s first child five weeks ago. Tragically, Spurlin will have to live with this for the rest of his life. That’s a prison sentence in and of itself; and it doesn’t come with a release date.

Additionally, five other people were killed in one night (July 4) in separate Massachusetts motor vehicle accidents. In Attleboro, another single-car wreck left three people dead and a fourth passenger hospitalized with grave injuries. Police said the victims, who were not wearing seat belts, were ejected from the car in the crash. Gleidson Pereira, 23, Ivanildo De Souza, 27, and Lavdeir De Silva, 29, all of Plymouth, were pronounced dead at the scene. Samuel Torres-Mendes, 29, was seriously injured and taken to Rhode Island Hospital in Providence. A four-car collision also occurred Saturday that killed Michael B. Lally, 19, of Braintree, and a crash in Sudbury left that driver dead.

Anyone notice the common thread that makes these deaths and injuries caused by motor vehicle accidents, even worse? The victims are all relatively young. Further, speed and/or alcohol have been initially implicated in all these accidents. The emotional and financial damages that car accidents like these cause, is immeasurable. As a Massachusetts car accident lawyer, I see it all the time, and it’s quite sad. Once these tragedies have occurred, the best that anyone in my profession can do, is secure the highest level of financial compensation possible, from those persons whose negligence or recklessness has caused these deaths and injuries. As a Massachusetts motor vehicle accidents lawyer and Massachusetts personal injury attorney, I have over twenty years’ experience in representing injured victims of Massachusetts motor vehicle accidents and their families. If you, a loved one or someone you know has been injured in a motor vehicle accident, please do contact us and we will be glad to offer you a free consultation to discuss your case and offer some free suggestions.

Here’s hoping you don’t need to make that call. In the meantime, drive safely.

Despite the new Massachusetts Universal Health Insurance law being in place for over a year now, a good number of people still don’t know how their medical bills are paid for if they are injured in a Massachusetts motor vehicle accident. Here’s a quick background:

Under the law governing Massachusetts motor vehicle accidents, the automobile insurance company that insured the car that you were in when the accident occurred, is the insurer that is responsible for paying for your medical bills up to an amount of $2,000.00. If you were not in a car when the accident happened, but were a pedestrian or riding a bicycle, then the first $2,000.00 in medical bills is paid for by the auto insurance company that insured the car that hurt you.

The section of the auto insurance policy which covers that first $2,000.00 in medical bills is known as Personal Injury Protection, or "PIP". In the event your bills related to medical care exceed $2,000.00, those bills greater than that amount are submitted to your health insurance carrier, to be paid by them. This process is known as “Coordination of Benefits”. If you do not have any health insurance when the accident occurred, despite the mandatory Universal Health Insurance Law in Massachusetts, or if your health insurer denies payment for these bills, your "PIP" insurance should cover those bills up to a total of $8,000.00. This can be confusing, so if you’re injured in a Massachusetts motor vehicle accident, call us and we can help you sort these questions out. As a law firm that specializes in Massachusetts personal injury law, we can advise you as to the insurance specifics that apply to your situation, and assist you with the forms required to submit bills to the appropriate "PIP" carrier.

In the meantime, drive safely – and don’t text or use your cell phone when driving.

You don't have to look far to see the terrible tragedies that occur every day as a result of motor vehicle accidents in Massachusetts.

This past Saturday (June 20 2009,) both a 3-year-old child and a man were killed when they were thrown from their sport utility vehicle in an accident on Interstate 95 in Attleboro, Mass. Shortly after 5:30 p.m on Saturday a green 1997 Ford Explorer, carrying four adults and two children, collided with a 1996 Chevrolet operated by a 19-year-old Pawtucket, R.I., woman in the center lane of I-95 between exits 2 and 3, according to a preliminary investigation conducted by Massachusetts State Police. The Explorer rolled over, fatally injuring the man and child and ejecting as many as three occupants, before coming to rest on the left lane of the three-lane highway. Rescue workers transported three adults and another juvenile to area hospitals with injuries. In addition to the two dead, a third person also suffered potentially life-threatening injuries, according to authorities. Ironically - and depending on who was responsible for this accident - the driver of the Chevrolet was not injured. While the crash remains under investigation with the assistance of the State Police Collision Analysis and Reconstruction Section and the State Police Crime Scene Services Section, no amount of investigation will bring back the dead from this tragedy, or console their families and loved ones.

This is a horrible story, made worse by the sight of children's toys strewn over the accident scene from the car carrying the 3 year-old, as broken as the human bodies that lay at the scene. If stories like this can serve to do any good at all, it will be to: 1) First and foremost, urge drivers to drive defensively and carefully; 2) Always wear seat belts; and 3) Never, ever text or become distracted with PDA's or cell phones (note: There is no evidence yet that cell phones, texting or PDA's were involved.) Those inviolable rules will help you prevent or avoid a motor vehicle accident tragedy of your own. However, there is one other message that such an incident can remind people of, and that is of the paramount importance, if you are the victim of a motor vehicle accident, of choosing the best motor vehicle accident attorney you possibly can. No lawyer can turn back time and prevent that which has already taken place. But the right personal injury lawyer can and will make sure that your legal right to financial compensation for what you have lost or suffered, is maximized to the fullest extent possible under Massachusetts law.

That is critically important. Not all lawyers are equally qualified in the area of Massachusetts personal injury and Massachusetts car accidents. The Law Offices of William D. Kickham And Associates has more than 20 years of experience in representing injured victims of car accidents. We can't turn back time for you, but we will make sure that if someone else's negligence has hurt you, they will pay the maximum allowed under Massachusetts auto accident law.

Drive Safely.

Timing is often an ironic thing. Less than 36 hours ago, on Saturday June 13, I opened this new personal injury law blog, with a post noting the growing – and deadly - problem of Massachusetts motor vehicle injuries caused by elderly drivers in this state. In that post, I made the argument that too many elderly drivers are on the road in Massachusetts, that many of such drivers are as dangerous and deadly as drunk drivers, and I proposed tough new laws to test and monitor every two years, all drivers between the ages of 79 and 85, and to then draw the line at age 85: No one aged 85 or older in Massachusetts should be issued drivers licenses.

Later that same day, tragically, a 4 year-old preschool girl by the name of Diya Patel was struck by an 89 year-old driver while in a crosswalk on Route 138 in Stoughton, Massachusetts. Mortally injured, bystanders including a nurse did all they could to help, as did paramedics who arrived as fast as they could. Clinging to life, the girl was airlifted to Tufts Medical Center in Boston, as her family prayed and hoped for her survival. Diya Patel died yesterday, Sunday. Her family, including her grandfather Govind Patel, who watched the preschooler run down and tossed 50 feet by the 89 year-old driver of the Toyota Camry that struck her, is beyond devastation.

“My granddaughter, very, very loved,” said Patel, who lives with his grandchildren in a modest apartment on Bennett Drive in Stoughton. “Very, very loved. Very, very sad.” The dead child’s father, Sanjay Patel, was too overcome with emotion to speak.

Meanwhile, three miles away, the woman (unnamed as yet by representatives from the Norfolk County District Attorney’s office) who was reportedly driving the car that killed this young girl , answered reporters at the door of her apartment in the Orchard Cove Continuing Care Retirement Community, by saying the following: “I’m refusing to say anything to any paper,” said the woman. “I have no . . . report.” Reporters, including the Boston Herald, know the woman’s name, but are withholding her identity until either the District Attorney’s office, or state authorities, release the name. Why they have not yet released it, is unclear as of the date and time of this post (Monday, June 15, 2009 at 12:50 AM EDT.)

When is the madness of state legislative inaction on this issue going to end? What will it take? To listen to the anemic, politically-calculated reactions of most legislators and state officials on this issue, is pathetic (God forbid they take a principled stand and alienate their senior voters.) One state legislator who has stood up with a proposal for action – a proposal I consider far too modest – is state Sen. Brian A. Joyce (D-Milton,) whose district, also ironically, includes the town of Stoughton where this incident occurred. His proposal would require “periodic” road testing for drivers over age 85 ("periodic" is not defined in his proposal, which would continue to allow persons over age 85 to drive.) That is far too weak and anemic a "response" to the threat this growing problem poses. To his credit, Joyce has acknowledged his proposal is “Too modest.”

And while we’re on that point, so was my own proposal, outlined in my previous post on this subject. That proposal was to require visual and motor skill road testing every two years of all Massachusetts drivers between the ages of 79-85. I now rescind that proposal, as also being too modest. At a minimum, all drivers seeking to obtain or renew a Massachusetts driver’s license, should be required to appear in person at a Registry of Motor Vehicles location to be tested for visual and motor skill road testing every year. I stand by my earlier proposal to outright ban Massachusetts drivers licenses to anyone in this state age 85 or older. I also reserve the right to add additional, stringent conditions to this proposal, as this issue develops.

On June 2, a 93-year-old man drove his car into a Wal-Mart in Danvers, injuring a mother and her 1-year-old baby. The next day, a 73-year-old Middleboro woman lost control of her minivan and plowed into a crowd gathered at a Vietnam War memorial in Plymouth, sending seven bystanders to the hospital. On June 5, an 84-year-old man slammed into a Somerset storefront. The response from state officials (the ones who count, who can make something happen if they really want to? Tepid. Muffled comments about 'addressing the matter.'

Now a 4 year-old girl who was the light of her family’s life, lies in death – a death that never should have happened. A death that was entirely preventable - had state officials woken up earlier and grown a backbone over this issue. In my opening post to this new blog on Saturday June 13, I asked the rhetorical question, “Would the person who cares to be maimed or killed next on the road, or see a loved one seriously injured or killed, please raise their hand?”

Are you listening, Beacon Hill? Act -- forcefully, and now. Or perhaps you or your loved one could be next.

Hello to my new readers! This site is a brand new blog connected to my law practice, www.kickhamlegal.com, and this post today is my ‘inaugural post,’ to open this blog. For almost a year now, I’ve already had a criminal law blog,and I’ve received a lot of positive feedback from my readers of that blog. It’s my hope that this new blog, dealing with only the legalities of personal injury actions in Massachusetts, and the legal rights of injury victims to recover damages for injuries they’ve suffered due to another person’s negligence, will bring my readers equally interesting and useful information.

So, let’s get to it: My first post on the subject of personal injury law in Massachusetts has to do with a fast-growing problem in this state, and across the nation: Elderly drivers and the often devastating injuries they (however unintentionally) cause in motor vehicle accidents. By the way, “elderly,” in the context of this post, means anyone 79 or older. (Sorry to any readers 79 or older, but a rose by any other name…)

Recently in Massachusetts, seven people were injured in Plymouth after a car driven by a 73-year-old woman jumped a curb and ran into a crowd gathered at a war memorial. It was the woman's third accident since turning 70, authorities said. In Danvers, a 93-year-old man drove his car into the entrance of a Wal-Mart, injuring six people, after he mistook the gas pedal for the brake. Such Massachusetts car accidents can cause devastating injuries, including death. In my opinion as a Massachusetts car accident attorney, an elderly driver over the age of 85 poses just as deadly a threat when operating a motor vehicle upon the public roads, as does a drunk driver. That may sound severe, but it’s true. Road safety analysts predict that by 2030, when all baby boomers are at least 65, they will be responsible for 25% of all fatal crashes. In 2005, 11% of fatal crashes involved drivers that old.

Massachusetts drivers must renew their licenses every five years, but are required to take an eye test only every 10 years. No particular or special testing at all is required for elderly drivers. That’s ridiculous – and deadly. Researchers say that drivers begin to pose a greater risk around age 70, with crash-rates increasing markedly after age 80. Most road-safety advocates agree that states like Massachusetts are not doing enough to deal with this problem, and urge at the very least, a requirement for more frequent in-person examinations for drivers over age 79. "There's a political reluctance to even address the issue, but we can't continue to ignore this," said Peter Kissinger, president of the AAA Foundation for Traffic Safety. "We clearly know that as we age, our functional performance and cognitive abilities decline."

That’s obvious, and in a few states, doctors are legally obligated to report when patients' medical conditions pose a driving danger, but not in Massachusetts: Here, it is voluntary. The result? Almost all doctors don’t report anything to anyone about an elderly patient that they think might pose a safety risk when driving. The reason? Most doctors don’t want to, essentially, “rat” on their patient, or disturb the doctor-patient privilege. We logically require doctors to report other kinds of suspected risks to public safety authorities, such as child abuse or overt mental health issues a patient may have that could clearly pose a threat to the public. But if a doctor thinks his elderly patient may not be able to safely operate two tons of steel and glass on the public roads? “Don’t ask; Don’t tell” is the norm. As ridiculous as that is, it’s the truth.

Another reason no action has been taken? Politics. Advocates for the elderly have sharply opposed age-based oversight as “discriminatory,” and noted that the state prohibits age discrimination in licensing. But with more seniors on the road than ever before - people over 65 will make up 25 percent of all drivers by 2025, according to the Insurance Institute for Highway Safety - calls are growing for more aggressive regulation. "The time is ripe for change," said Rachel Kaprielian, Massachusetts Registrar of Motor Vehicles. While Governor Deval Patrick last week threw his support behind legislation that would require drivers 85 and older to pass a road test and eye test every five years to have their licenses renewed, that is a rather weak response, in my view. But at least it’s a start.

In my view as a Massachusetts car accident attorney, something needs to be done about this problem, and fast. Too many auto accidents, serious injuries and even fatalities are resulting due to inaction in this area. In my view as a personal injury lawyer who litigates cases every day involving serious injuries caused by motor vehicle accidents, persons between the age of 79 and 85 should be required to pass vision and motor skills tests administered by the RMV every two years in order to maintain their drivers licenses. After reaching the age of 85, I don’t believe people should be issued Massachusetts drivers licenses. The risk of serious injury and death, to both the elderly driver and innocent victims of motor vehicle accidents, is simply too great.

And for those who disagree, I have a question: Would the person who cares to be maimed or killed next on the road, or see a loved one seriously injured or killed, please raise their hand?

Massachusetts public safety officials are fond of slogans: “Don’t Drink and Drive – Stay Alive”; Click It or Ticket” (Seat belts.) My solution: “It’s the law: If you’re over 85, you can’t drive.”