Articles Posted in Premises Liability

It’s summer, 2012. And with it comes marketing for more and more amusement park rides, such as the new ride that debuted at Six Flags New England in Agawam, Mass.: The roller coaster “Goliath.” Guests sit beneath the track with their feet dangling as they ascend a tower. Once at the top of the tower, riders drop nearly 20 stories in a vertical free-fall that reaches speeds of 65 miles per hour. Then riders go head-over-heels on the outside of a 102-foot-tall vertical loop, followed by a 110-foot-tall butterfly turn that rockets them up another tower. www.sixflags.com/newengland/index.aspx. Sounds fun, doesn’t it?

Except when you take into account the accidents that can happen. Too often, the public attends amusement and theme parks to have a good time, and they don’t consider the kinds of injuries that can occur on these rides. As a Massachusetts amusement-ride injury lawyer, I know all too well the types of personal injuries that can occur. Read on, below. I’ll get to injury statistics about amusement park rides further down in this blog post.

Theme-park injuries and amusement-park injuries can frequently be life-threatening. The personal injuries someone can sustain include whiplash, broken bones, heart attacks, traumatic brain injury, and neck and back injuries. In adition to permanent-construction theme parks like Six Flags and Disney World, there are also many traveling carnivals throughout Massachusetts each summer. Visiting a local carnival that has stopped in your town? Although kids love them, (I certainly remember that I loved them,) I know from professional experience that many of them run electrical wiring on the ground, where almost anyone, especially kids and older people, can trip over them, or walk in the wrong place and suffer an electrical shock. And people should always worry about equipment that is routinely getting taken down – and put back up — as carnivals are basically traveling road shows. Equipment that is so temporary doesn’t really inspire confidence. Worse, this equipment is assembled and reassembled by the least-skilled of workers.

Given the fact that many people belong to health clubs these days, I’m often approached by people about their Massachusetts health club contracts. You see, (if you belong to a gym or health club,) you’ll learn that the standard contract terms that are used for these types of agreements by almost all Massachusetts gyms and health clubs, prevent you as the customer from suing the health club for any injuries suffered on the premises.

These health club injuries can arise from any number of circumstances: A weight dropped on someone, a cable or pulley on a machine that lets go, a slip and fall on a floor or pool area, even swimming pool injuries. You signed the agreement, and now you find that you’ve been injured in some way that you feel is attributable to negligence of the part of the health club. So you’re out of luck, right?

No, you’re not. While 99.9% of businesses try to escape liability by incorporating liability disclaimers like this, not all of them are effective or valid. When it comes to health club memberships in Massachusetts, attempted “Releases of Liability” like these are barred by state statute. Specifically, Massachusetts General Laws Chapter 93, Section 80, which states in relevant part: “No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller or any assignee or transferee of the health club services contract any claim or defense arising out of the health club services contract or the buyer’s activities at the health club.”

Harvard University is the crème de la crème of Ivy League schools; an institution that has fostered the best and the brightest.

And now it finds itself caught up in a storm that has to do with a murder in one of its residence halls. And interestingly enough, none of the three men allegedly involved in the Cambridge Massachusetts murder were Harvard students, which has brought about a case of college dormitory negligent security.

Here’s the story. A 21-year-old man named Justin Cosby allegedly entered Kirkland Hall at Harvard University on May 18, 2009. Prosecutors alleged that Mr. Cosby entered the property for the sole purpose of selling a large quantity of marijuana to some people there in the residence hall. A man named Jabrai Copney was convicted in Middlesex Superior Court of the alleged first-degree murder of Mr. Cosby. Mr. Copney was not a Harvard student either, but he had access to Harvard University buildings because he was romantically involved with Harvard Student Brittany Smith, who lived in Lowell House. He apparently lived in Lowell House with Ms. Smith.

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.

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.

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.

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.

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.

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)

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.