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rocksElephant Rock Beach Club, Inc., the Defendant, operated a a private beach club in Westport, Massachusetts.  The area, as well as the beach along the property, was open to members and their paid guests to use the property and facility.  Near the shore of the beach adjacent to the Defendant’s property is “Elephant Rock” which is a natural rock formation.  Ownership of the rock formation is with the Commonwealth of Massachusetts.  The formation is located beyond the buoys at the end of the safety ropes that the Defendant erected.  As such, unless you were to access the rocks by swimming up from a boat- the only access would be by being a member or guest at the Defendant’s organization.  It became general knowledge, however, that guests would commonly make use of the rock formation by swimming to it and jumping off the rocks for leisure.

On July 6, 2009, Andrea Paige Carter Cohen, the Plaintiff, went to the club as a guest of a duly authorized member.  While she enjoyed the beach, the sun, and the waves, she witnessed many individuals jumping from the rock.  As a result, she ventured to the rock and did so as well.  After running and taking a dive into the water below from the rocks, she claims that her foot smashed into a portion of the rock below the surface of the water which caused her to sustain a compound fracture of her leg.

The Plaintiff filed a suit alleging negligence based on premises liability and a duty to warn individuals such as the Plaintiff.  More specifically, the complaint alleged that the Defendant breached it’s duty of care to maintain the rock as part of its preemies in a reasonably safe condition.  The Defendant filed a motion for summary judgment claiming that the Plaintiff can provide no proof to support her claims and even to assume that she could, she would be barred by the Massachusetts recreational use statuteContinue reading →

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lightningTim Kerin, a homeowner in Florida, had an outdoor fire pit equipped with gas.  Gastite CSST is used in home and commercial structures throughout the country in order to provide gas.  Mr. Kerin brought suit against Titeflex Corporation for an alleged product defect in Gastite corrugated stainless steel tubing.  In essence, the complaint alleges that there is a severe risk of CSST being vulnerable to failure after lightning strikes.

The suit, which was originally filed in federal court in Massachusetts, was dismissed due to lack of standing.  As we previously discussed, the justiciability requirement of standing requires an individual to have a concrete injury prior to bringing a suit.  The court dismissed Mr. Kerin’s injury as being speculative.  Mr. Kerin, on appeal, argues that lightning strikes can cause an electrical arc that punctures CSST which can ignite the natural gas contained within it.  Additionally, he argued that the CSST’s risks are well established and that experts have recommended several possible remedies for the problem including outright removal.

Mr. Kerin alleged four caused of action predicated on Massachusetts law against the manufacturer- based on the notion of CSST’s susceptibility to lightning strikes:  “strict liability for design and manufacturing defects, negligence in design[ing] and failing to test the product, negligence in failure to warn, and strict liability in failure to warn.”  It should be noted that Mr. Kerin did not plead, nor did he claim, that the susceptibility of his own CSST to lightning strikes has manifested in any actual, tangible, harm.  However, in an effort to circumvent and prevent and future harm- he is seeking damages for the cost of remedying the issue.

The district court in dismissing the case believed that the standing requirement could not be met because it was currently subject to too much conjecture.  The court held that ‘injury’ was too attenuated as it would take a lightning strike and a puncturing of the CSST to result in the sort of harm that is necessary to maintain a suit.  Additionally, the court concluded that even if there was standing, Kerin failed to state a claim because he failed to allege an applicable standard of care “as required to claim economic injury from a defective product under Massachusetts law.” Continue reading →

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After an individual has been sucessful in the court and has been awarded a sum of money, it can some times be difficult to actually acquire the judge or jury determined amount. For instance, if a plaintiff sues a defendant for fire damage to her household, and a jury determines that the defendant is responsible in the amount of $300,000.00, what happens when the defendant is unable to pay that amount of money? This is a situation that often occurs in the legal world. Not every defendant, or every matter, has a insurance policy in play that would indemnify the defendant from personally paying funds. In these situations there may be an opportunity to attach the defendant’s real estate to secure the debt that is now owed to the plaintiff.

Real property (or real estate) that is located within the Commonwealth of Massachusetts may be subject to attachment. Attachment is a legal process by which a court of law, at the request of a creditor, designates specific property owned by the debtor to be transferred to the creditor, or sold for the benefit of the creditor. When dealing with attachment of personal property (like items and goods) an officer may take possession of the property immediately. However, when dealing with real estate property, this does not necessarily result in the defendant automatically losing possession. However, once an attachment is made and property recorded at the registry of deeds, the world is put on notice that there is a lien on the property. Continue reading →

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courtroom-of-styleMany people believe that once a lawsuit has been filed the matter immediately is bound for a court room. While that it is true to some extent, there is a crucial step that must occur after a complaint has been filed: the answer. Under the laws of Massachusetts, once a party has filed a lawsuit there is a certain time that party has to “serve” the defendant with his or her complaint. After this, the defendant is then responsible for filing an answer to the complaint. This is the first opportunity that the defendant has to respond to the allegations put forth in the plaintiff’s complaint. For instance, if part of a complaint for a slip and fall case alleges that the defendant is the owner of a certain parcel of land, the answer would be the appropriate document to respond by either admitting this fact or denying this fact- nothing more or less.

In some situations it can be impossible for a defendant to respond by either admitting the facts in the complaint or denying the facts in the complaint. While these situations are not necessarily common- a defendant does have the ability to claim that they are without sufficient information to properly admit or deny the allegations in the plaintiff’s complaint. While the answers can be relatively brief in comparison to a plaintiff’s verbose complaint- the filing of an answer is a vital document that should best be prepared with an attorney with a background knowledge of the intricacies that are involved with complex litigation matters. Admitting or denying a fact can have huge repressions and should be approached with lawyer for best results. Continue reading →

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candleIn a case recently decided by a California trial court, it was determined that a candle manufacturer and distributor had no liability for the result of the deaths of twin boys that tragically lost their lives in a fire.  Parents of the two 15 year old boys claimed that the fire that took their lives was caused by a defective candle product, specifically, a candle surrounded by a glass container that was manufactured by Anchor Hocking LLC and Home Garden Party LLC (doing business as Celebrating Home).  Allegedly, the candle was lit and in the middle of the night, the fire escaped the confines of the candle and entrenched the boys’ room in flames.

After a thorough investigation by the fire department, it was determined that while the candle was probably the cause of the fire, there was no evidence of a candle or wax in the boys’ room.  Additionally, several electrical devices were present near an electrical outlet that was adjacent to the alleged candle- which would presumably have been a greater catalyst for any spark or flame that the candle may have initiated.  Parents brought suit against the manufacturer claiming wrongful death predicated on negligence for a defective product.

After suit was filed, the Defendant manufacturer filed a motion for summary judgment with the court.  In essence, the motion claimed that there were no facts in dispute that rose to a triable level and that they should be entitled to judgment as a matter of law.  In opposition, the parents of the deceased children filed a report by an expert witness that discussed his belief, to a reasonably degree of scientific certainty, that the defect in the candle and/or glass caused the deaths of the boys.  However, the Court was reluctant to accept this from the expert.  The assumption of facts that the expert witness based his opinion had no evidentiary support and rose to the level of speculation and mere conjecture. Continue reading →

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scalesMany times lawyers have to educate clients on when there is grounds for a lawsuit and when there is not.  Sometimes lawyers are able to speak from experience and other times they rely upon guide posts provided from the courts and legislature in determining what the elements for  cause of action are in order for a person to successfully bring a claim.  There are, however, other requirements that all possible cases need to meet prior to an action being able to commence in a court: the case must not be moot, it must be fit for judicial review, and the party bringing suit must have standing.

Under the constitutional “justiciability” doctrine of mootness- an actual controversy must exist all stages of the proceeding.  If events subsequent to the filing of a case resolve the dispute, the case should be dismissed as moot.  For instance- if neighbor A abandons a large piece of machinery on neighbor B’s property, neighbor B may bring a claim for trespass on his property due to the fact that the machinery continues to reside on his property.  However, if after the lawsuit is filed neighbor A comes to his or her senses and takes the machinery back- the case would now be moot.  A case must not be moot at trial level- or it will be dismissed by the court.  While there are a few exceptions to this rule- it is important to note that a voluntary cessation of behavior by the Defendant may not result in a case being moot if that individual is free to resume the harm/injury causing behavior.

The second requirement of justiciability is ripeness.  Ripeness seeks to separate matters that are premature for review because the injury is speculative and may never occur.  This concept centers on whether the injury has occurred yet.  For example, suppose a customer buys an item such as a gun and subsequently learns that there is a design defect present in the gun that makes it easier to unintentionally shoot.  If that customer decides to bring a case against the gun manufacturer because the gun is defective- the case will be dismissed as ripe.  The case is not fit for judicial review because the injury causing behavior (the possibility that the gun may shoot unintentionally) has not occurred yet.  This is not to say that the customer would have no recourse (perhaps returning the gun), but the options present would not include a products liability claim. Continue reading →

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carAt some point prior to 2007 Flansburgh Associates, Inc. contracted with the city of Lawrence to provide architectural services and to oversee the construction project of a new high school.  These services also included a traffic study and walkways from the school to the street.  In October of 2007, Dario Rodriquez was walking near Lawrence High School as he made his way to a local fast food restaurant that necessitated his crossing route 114.  As he was making his way across the street, a car approached and struck Dario.  Dario tragically died to the injuries he sustained in this pedestrian crash.  The motor vehicle was driven by James Gianni who was subsequently convicted of negligent operation of a motor vehicle so as to endanger in criminal court.

The estate of the minor, through a duly appointment administrator of the estate, brought a lawsuit against two of the drivers involved in the crash, Flansburgh Associates, and the consulting company that conducted the traffic study alleging claims of negligence, wrongful death and negligent infliction of emotional distress.  The estate additionally sought to include the city of Lawrence and the Commonwealth of Massachusetts as defendants.  The court concluded that the city and the state did not have an established duty of care owed to the decedent and therefore were not the proximate cause of the minor’s injury.  As such, they were not added to the underlying suit.

Flansburgh Associates and the consulting company filed a motion for summary judgment claiming that because the Commonwealth and the city were found to have no liability, there cannot be liability for the two entities who had a contract with the State.  The lower court agreed and found that Flansburgh did not owe a duty of care to the Plaintiff, did not breach a duty of care, and was not the proximate cause of the minor’s death.  The Plaintiff appealed. Continue reading →

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clubIn or around August of 2009, Angela Sarkisian was in attendance at a night club named ‘The Liquor Store’ in Boston, Massachusetts.  Ms. Sarkisian was at the club for a bachelorette party she was attending.  The club consisted of two bars as well as a wooden dance floor and lounge area adjacent to the dance area.  Patrons were freely able to bring drinks from the bar to the dance floor as well as the lounge area.  In order to get to the lounge area a patron had to ascend two stairs.  Ms. Sarkisian spent the night with her friends and frequented the dance portion of the club as well as the lounge area.  At one point, she was taking the steps down to the dance floor and slipped on a puddle of liquid.  As a result she broke her leg in two places and required serious medical attention for her personal injuries.

Ms. Sarkisian brought suit against the club, predicated on negligence, and claimed that the club was negligent in allowing a defect (the puddle) to exist on the floor.  As a result of such a defect, she claimed she suffered serious and severe personal injuries.  The club countered that the Defendant did not breach any duty of care to the Plaintiff and that she failed to prove that club knew, or should have known, about the spill on the floor.  The club contended that without such notice, no breach of duty of care could be established.  As a result, the Defendant filed a motion for summary judgment alleging that there were no material facts in dispute that rose to a triable level- and as such- the Defendant should be entitled to judgment as a matter of law.  The court ruled in favor of the Defendant and Ms. Sarkisian appealed.

On appeal the Plaintiff argued that the mode of operation approach should apply because, based on the night club’s businesses, it is foreseeable that drinks can be spilled on a floor and create a dangerous condition.  In discussing the Plaintiff’s argument of ‘mode of operation’ the court wrote: Continue reading →

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blueAs discussed in the first entry of foreign and unexpected items in food, the courts of Massachusetts have drawn a distinction between food that is unwholesome and food with natural (although unexpected) items present in the food such as a fishbone in seafood chowder. When dealing with the former, courts have relied upon traditional concepts of negligence and breach of warranty in an attempt to resolve legal matters.

Generally, if a person were to suffer an injury as a result of a foreign object present in food, he or she may bring a claim predicated upon negligence. To prove negligence, a plaintiff must show that a duty existed to him or her, that the defendant breached this duty owed to the plaintiff, that the plaintiff suffered injuries that were causally related to the defendant’s breach. The plaintiff does not need to exclude every possible cause of a foreign object in his or her food, but her or she must show by a preponderance of the evidence (meaning it is more likely than not) that the object was the responsibility of the defendant.

In Ash v. Childs Dining Hall Company, the court was asked whether negligence could apply to a defendant restaurant after a plaintiff alleged that she received injuries from the presence of a tack in a piece of blueberry pie she was eating whilst a guest of the defendant’s establishment. The manager of the restaurant, testifying on behalf of the defendant, claimed that the blueberries came in ordinary quart berry baskets and this was the first time in eighteen years that he heard of a tack in blueberries. Additionally, there was other testimony that there was a high degree of care exercised in the preparation of blueberries for all pies including the one that ultimately injured the Plaintiff. The court surmised that: Continue reading →

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appleThe month of October is often associated with many fantastical creatures, sights, sounds, and gimmicks.  Halloween brings out the fun and quirkiness of many people who decide to dress up and go door to door in an effort to procure (or disseminate) bite size candy bars to various children.  Prior to going out and collecting as much candy as humanely possible- children are often warned to not eat any candy until the parents can safely sort through the goodies to determine whether or not the candy is safe.  When asked why, children are often regaled with the story of the child who bit into a candy bar only to discover a razor blade hidden within its chocolate center.  While this story is more legend than fact- it presents an interesting question as to the liability when an individual bites into a foreign or unexpected objects in food.

In April of 1959, Priscilla Webster went to the Blue Ship Tea Room in an old building on the Wharf in Boston.  Ms. Webster was a native of New England at the time of her presence at the Blue Ship Tea Room.  As she sat and looked at the menu, she ordered clam chowder and a crabmeat salad.  She was told that while the restaurant was out of clam chowder, she could have fish chowder as a substitute.  Ms. Webster agreed and was presented with chowder containing haddock, potatoes, milk, water and seasoning.  As she ate her bowl of soup she became aware that something was lodged within the confines of her throat.  Ms. Webster went to Mass General Hospital where it was discovered that a fish bone was stuck in her esophagus.   While she did not have long lasting injuries- she did file a claim against the Blue Ship Tea Room for the bone that caused her pain and injuries.

Ms. Webster claimed, under the Uniform Commercial Code, that the Defendant had a duty as a seller of goods- to make sure that they were reasonably safe and fit for their ordinary purpose (in this case consumption).  And due to the fact that there was a bone present in the chowder- liability must attach because bones are not fit for ordinary human consumption.  The Defendant argued that as a native resident of New England- Ms. Webster was or should have been aware of items that can be in fish chowder- such as bones.  The Court, relying on unusual sources for guidance, mentioned that, Continue reading →

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