Boston Accident Lawyer Blog

A fatal Massachusetts premises injury resulted earlier this week when a backyard deck that a homeowner was working on suddenly collapsed, crushing him underneath it. George Carroll, 78, of Melrose was working on the deck when it suddenly became detached from the house. Firefighters responding to the scene could not lift the heavy deck off the victim, and had to use inflatable airbags to gain access to him. Carroll was transported by ambulance to Melrose-Wakefield Hospital, but unfortunately, it was too late and Mr. Carroll was pronounced dead.

The reason why this incident is posted here is because it offers a powerful cautionary note in the area of law known as Massachusetts premises liability. In this incident, the homeowner himself was the one who suffered the fatal injuries, and therefore his estate cannot sue another person or a third party to recover for his death or pain and suffering. If the victim had been visiting another person’s home, and suffered the injuries at that person’s property, that person or his estate could sue the homeowner where the injury occurred, for negligence. Typically, the negligence alleged would be a failure to maintain the premises in a reasonably safe condition for persons such as the victim. In the event of such a claim, the homeowners’ insurance policy of the person who owned the property would, assuming liability were acknowledged, provide coverage for the claimed damages according to the policy limits. If the owner of the property did not have a homeowner’s insurance policy or other liability insurance, through which coverage would be available, things become more difficult. Without liability coverage, any settlement or jury verdict that a plaintiff might secure, would have to be collected directly from the homeowner’s personal assets. That process involves attaching real estate and other assets, and becomes much more complicated and time-consuming.

As a Westwood, Massachusetts premises liability attorney, I can tell you that the primary lesson from this very unfortunate incident is this: Whether you own property or rent, always carry a policy of liability insurance on the property, to protect you if others are injured on your premises. While the victim in this tragic incident in Melrose this week was the homeowner himself, it often happens the other way around. And lesson number two: When making repairs to house and building structures such as stairways and decks, always employ a licensed construction professional. Structures like these are notorious for causing injuries. Ask for a copy of the contractor's trade license, and secure several customer references. Work like this must be done in accordance with local building codes. If you “do-it-yourself” and the finished work does not meet building codes, it could give your insurer an excuse to deny coverage.

If you or someone you care about has been injured while visiting another's home or premises, contact us for a free consultation. With over two decades handling these types of claims, we can provide you with the experience and guidance you need to determine your legal options.

In the past few weeks, four people have died in swimming pool accidents in Massachusetts – three children and a 36 year-old woman (the woman was found in a state-operated swimming pool, apparently several days after she died.) The Boston Globe and other media have covered these stories extensively. These unfortunate events illustrate the inherent risks that are associated with swimming pools - an area of law known as “premises liability.” Whether the pool is an in-ground pool or an above-ground portable pool, as a Boston/Dedham Massachusetts injury lawyer, I can assure you they are dangerous.

Whether in-ground or above-ground, the following safety and liability prevention measures should be taken by all property owners who have a swimming pool:

• The pool should be surrounded by a barrier such as a fence, at least four feet high, equipped with an alarm that would signal if someone is in or near the pool.
• The fence must be of sound construction, so that young children cannot get through a hole or other spaces in it.
• If the pool is in-ground, it should have working underwater lights, built into the pool walls.
• At all times when someone is in the pool, especially children, the property owners should make sure that a designated “water-watcher” is present - not necessarily a lifeguard – but someone whose designated job is to watch the pool for safety.
• A phone should be accessible at all times, and the property owner should keep a copy of CPR instructions poolside if they are needed.

The recent spate of swimming pool deaths in Massachusetts illustrates the need to be aware of the dangers that pools represent. In a great many of these types of cases, the injuries and drowning deaths that occur are sustained by children.

I advise all my clients who have a swimming pool: Make sure that your homeowners’ insurance policy provides coverage for liability claims arising from the use or maintenance of your pool. Generally speaking, I would not advise anyone with a swimming pool on their premises to carry anything less than a bare minimum of $2.0 million in umbrella coverage; you should communicate with your insurance agent to make certain that you carry adequate liability coverage. Aside from homeowners, other potential defendants in a swimming pool accident case commonly include a condominium association, an apartment building owner, a day camp or summer camp operator, a school district or university, or a hotel/motel resort. In some cases, where negligent installation or repair of a pool played a role in the accident, the manufacturer or installer of the pool might also be liable. The U.S. Consumer Product Safety Commission is conducting a national Pool Safety Campaign. Click on this link here to learn more.

Unfortunately, accidents don't take a vacation. In the unfortunate event that you or someone you know has been injured in a Massachusetts swimming pool accident, contact our office for a free consultation. We are experienced with this type of litigation, and can provide you with the expert legal guidance you will need if you are facing this kind of situation.

A Suffolk Superior Court judge has awarded more than $6.7 million to the family of a Northeastern University student who died after falling down a set of stairs at a Boston bar in 2007, following a night of drinking. What’s surprising about the award in this Massachusetts premises liability case is that the judge’s award followed a prior jury verdict in this case, where the jury ruled that although the bar violated the city building code, it was not liable for the 21-year-old’s death.

Jacob Freeman died in a fall down a staircase at the Our House East Restaurant on Gainsborough Street in Boston in the early morning hours of April 1, 2007. Freeman’s family sued the bar, Gainsborough Restaurant, Inc., claiming that it was negligent in both its maintenance of the property and the staircase on which Freeman fell down, as well as alleging that the bar was in violation of the City of Boston building code, as well as other licensing violations. Approximately three months ago, a civil jury returned a verdict which said that while the bar had indeed violated building code mandates, it was not liable for Freeman’s death. To Freeman’s family, that verdict seemed contradictory – and it was. In all likelihood, the jury did not like the fact that Freeman’s blood alcohol level at the time of the accident was quite high, and it felt that if it held the bar liable and awarded damages, it would be in essence “rewarding” bad behavior.

As a Boston, Massachusetts accident lawyer, I find this kind of reasoning specious, given the evidence in the trial. Some of that evidence included the following: 1) The staircase lacked required hand rails; 2) The staircase was poorly lit; 3) It did not have a landing, among other hazards; 4) Management of the bar was aware that patrons had used the stairs on prior occasions; and 4) Freeman’s view of the staircase was obscured by vinyl stripes.

Suffolk Superior Court Judge Elizabeth M. Fahey said that, notwithstanding the jury’s prior verdict, she ordered the bar to pay Freeman’s family $6.7 million in damages on the grounds that the bar violated the city’s permitting process for decades and ignored the several safety hazards that were presented by the stairs that Freeman fell down, in addition to several other violations. The judge made the above four conclusions in what is called a “Finding of Facts” in her ruling, which is otherwise known as a Judgment Notwithstanding the Verdict (or “JNOV”, in legal parlance. A Judgment Notwithstanding the Verdict allows a trial judge to modify or override a jury’s findings, if he or she finds that doing so is necessary to avoid a miscarriage of justice. Here, it seems that this judge felt that the jury was punishing the family of this deceased young man, due to the fact that he was intoxicated at the time if his injury. This ruling makes sense: The staircase this person fell and died on was not safe. The bar's owners knew this for several years, yet did nothing to correct or remove these hazards. The bar’s owners also had failed to obtain required building and city safety inspection permits, for many years.

For the jury to confirm that all the above was true, yet deny any compensation to the estate of this injury victim, would have been manifestly unjust. To those who disagree, or feel that this type of ruling ignores the jury’s decision: Bear in mind that judges have the power to reduce jury awards that are not warranted by the evidence, also. This is called a remittitur. So remember, the judicial ax swings both ways. And in the meantime, the restaurant plans to appeal the ruling.

If You Have Questions or Concerns About a Slip & Fall Case, or any Injury Case, contact us for a free consultation. The Law Office of William D. Kickham has almost 20 years of experience handling slip & fall accidents, as well as a variety of Massachusetts personal injury cases. We know how to provide you with the best advice possible, adn how to obtain the highest compensation possible for your injuries.

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.

In my previous post on this subject, I discussed why backyard swimming pools are generally a very strong liability risk. This type of liability broadly falls under an area of law known as "premises liability”. Legally, property owners in Massachusetts have an obligation to provide a safe environment for visitors and guests. In the event of a pool accident, an experienced Massachusetts premises liability attorney should be consulted. Under no circumstances should anyone who has been injured in such an accident, speak to an insurance representative or any other person, until they have spoken first to an experienced Massachusetts premises liability attorney. Swimming pool injuries and deaths involve complex medical and legal issues. When young children are injured, these injuries frequently involve neurological and cognitive impairment that is not always immediately apparent. Hence, the legal response to such an injury requires considerable legal experience in this area of practice.

In terms of geographical incidence of swimming pool injuries, studies indicate that (logically,) children in northern and northeastern states are involved in a higher percentage of these accidents than occur in warmer states such as Florida and California, owing to greater inexperience around swimming pools in the winter states. Anyone who buys a home with a swimming pool, or puts one in their backyard and thinks there is nothing more they need to do but ‘clean out the bugs’, is making a serious legal mistake. Proper swimming pool safety requires that several measures be taken:

• The area around the pool should be secured from curious children or intruders (usually by a view-obstructing high fence)
• Supervision appropriate to the ages of the persons using the pool should be present (as was apparently not the case in the Connecticut case in my previous post)
• The water should be regularly maintained for cleanliness and proper chemical balances.
• If a diving board is present, measures need to be taken to keep users from endangering one another.
• Signs pointing out particular hazards or warnings should also be openly and clearly displayed.

The types of injuries suffered in swimming pool accidents usually group as follows:

• Fractures resulting from improper diving or falling on hard, wet surfaces around the pool
• Head and brain injuries or spinal cord damage resulting from collisions in the pool or unsafe diving conditions
• Infection or illness caused by unsafe levels of bacteria in the water
• Toxic reaction to excessive use of chemicals
• Brain damage resulting from lack of oxygen in near drowning accidents, particularly those involving children
• Death by drowning

Rule One for homeowners with a swimming pool: Make sure that your homeowners’ insurance policy provides coverage for liability claims arising from the use or maintenance of your pool. Generally, I would not advise anyone with a swimming pool at their home to carry anything less than a bare minimum of $1.5 million in coverage. Many homeowners’ policies require a separate umbrella to provide this type of coverage; check with your insurance agent to make sure that you are adequately insured. Aside from individual homeowners, potential defendants in a swimming pool accident case commonly include a condominium association, an apartment building owner, a day camp or summer camp operator, a school district or university, or a hotel/motel resort. In some cases, where negligent installation or repair of a pool played a role in the accident, the manufacturer or installer of the pool might be liable as well. Aware of the dangers associated with swimming pools, the U. S. Consumer Product Safety Commission is conducting a national Pool Safety Campaign. Click on these links to learn more.

In the mean time, if you or someone you know has been injured in a swimming pool accident, contact our office for a free consultation. We are experienced with this type of litigation, and can provide you with the expert legal guidance you will need.

In sum, I’d say this to any owner or operator of a swimming pool, whether residential or commercial: Stay cool this summer. But when it comes to legal measures, be cool in protecting your legal interests. Or things could get very hot.

Summer is usually a time when thoughts turn to cooling off and leisurely days around a swimming pool (especially during heat waves such as we’ve had recently here in Massachusetts.) That makes perfect sense, but in my view as a Boston accident lawyer, not enough people are aware of the dangers of backyard swimming pools – whether in-ground or above-ground. In my career, some of the worst injuries I have seen involve swimming pool injuries. While having a swimming pool at your house can sometimes add to a home’s market value, legally, it can pose serious, and even deadly, hazards.

This was recently made clear in a suit filed in neighboring Connecticut, which resulted in a settlement of $1.1 million to the family of a 3 year-old boy who drowned in a swimming pool. Actually, this case illustrates two important points: 1) The risks that are associated with swimming pools (this falls under “premises liability”); and in this case: 2) The risk that can arise when parents represent to third parties that their son or daughter is capable of caring for another person’s child by babysitting, when in fact they know that their child has no particular skills to do so (this is known as “negligent entrustment.”) This particular case out of Cheshire, Connecticut, involved the death of a 3 year-old boy, Cole Veenhuis, who drowned May 2 2009 in his family’s swimming pool while being baby sat by Krista Repko, a teenager that had been hired by the boy’s parents to baby sit him and his twin sister.

Apparently, after the boy fell into the family pool, the teenage bay sitter “Froze up for a significant period of time and didn’t immediately jump into the pool to rescue the youngster”, according to the attorney for the parents of the deceased boy. As a result, the boy drowned when it appeared that he could have been saved with a quick response. The deceased boy’s mother, Diane Veenhuis, told the New Haven Register in a statement that her son’s death “Was definitely preventable and morally should have been foreseeable by the individuals we entrusted.” Diane and Richard Veenhuis alleged in their suit that the baby sitter’s mother, Michelle Repko, misrepresented her daughter’s abilities as a baby sitter to them, assuring them that her daughter could react responsibly to almost any emergency. “It wasn’t until after the tragedy when information was disclosed, which had we known, we would not have chosen her for a baby sitter,” Diane Veenhuis said.

Following an investigation into the circumstances surrounding the drowning, the police and the Connecticut state attorney’s office chose not to bring charges.

The Veenhuis family plans to put the settlement money in a trust for their daughter to be used in part to help Hannah deal with the pain associated with the loss of her brother, as well as to establish a memorial fund in Cole’s name. “Life doesn’t last forever, but our love for Cole will,” Diane Veenhuis said. “Our hearts are forever broken.”

A case like this illustrates the need to be aware of the dangers that swimming pools represent. In a great many of these types of cases, the injuries and drowning deaths that occur are sustained by children. This is so for a variety of reasons:

• The water is blue and attractive; (in legal parlance, a swimming pool is known as an “attractive nuisance”);

• It is difficult to know exactly how deep a given area of the pool is because unlike in commercial settings (such as hotels) and with municipal pool settings, there is almost ever any signage at the edge of the pool indicating pool depths at particular points along the pool; This increases the odds that neck and back injuries will result when someone jumps into a too-shallow area of a pool. Paralysis injuries are not uncommon.

• The pool is almost always surrounded by concrete or flagstone-type walking surfaces, which are slippery when wet and can cause severe injuries in the form of broken bones and concussions that can result in brain damage.

• Often, there is a diving board present, which can result in traumatic injuries when falling the ‘wrong way’.

In my next post on this topic, I’ll discuss the type of injuries that are common to this type of event, and what legal measures should be taken to minimize them.