Articles Posted in General Litigation

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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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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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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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bossWhile the use of Latin has become a dying language, there are few words and phrases that have stood the test of time and made their way into common vernacular.  These words are often associated with legal concepts that remain in full force long after their first utterance.  One of the more popular Latin phrases that has a legal connotation is respondeat superior.  The literal translation of this phrase is, “let the master answer.”  Respondeat Superior is legal term of art that generally means that an employer should be responsible for the acts of his or her employee.  This concept arises mostly in the world of agency and tort law.

Massachusetts courts have held that, “[C]onduct of an agent is within the scope of employment if it is of the kind he is employed to perform …; if it occurs substantially within the authorized time and space limits …; and if it is motivated, at least in part, by a purpose to serve the employer…. The fact that the predominant motive of the agent is to benefit himself does not prevent the act from coming within the scope of employment as long as the act is otherwise within the purview of his authority.”  Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859–860, 501 N.E.2d 1163 (1986).

Respondeat Superior is most often used when an injured person seeks to recover damages for the negligence of an employee from the employer.  The injured party must first prove that he or she sustained personal injury or property damage due to negligence, that the tortfeasor was an actual employee of the defendant-employer, and that the employee was acting within the scope of his or her employment at the time of the injury. Continue reading →

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lockWhen it comes to personal property, the law of torts allows for an aggrieved person to use one of two causes of action to pursue a case for damages.  While the two causes of action may seem similar, they are in fact quite different.  These two methods of recovery are not interchangeable.  Rather, depending on the destruction of the personal property or the deprivation to the owner of his or her personal property, these factors will weigh heavily in determining which method of recovery you and your lawyer will utilize to maximize your recovery.  The two causes of action, trespass to chattels and conversion, will each be discussed in turn.

Under the theory of conversion, a person may recovery for the distinct and unauthorized act of dominion or ownership that is exercised by a person who is not the owner of the property.  Put differently, if John owns item X and Jane takes item X without John’s consent and ultimately destroys it, Jane is liable under the theory of conversion.  Other acts which may constitute conversion under the laws of Massachusetts:

(1) depriving another of their property;

(2) destroying or altering the property;

(3) using the property in a manner which seriously violates the right of the owner to control its use;

(4) receiving possession of the property from another with intent to acquire it for himself or for another;

(5) refusing to surrender the property upon reasonable demand after a reasonable opportunity to identify the true owner. Continue reading →

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questionAfter a lawsuit is filed, the attorneys for both sides of the case engage in an exchange of information.  They is generally referred to as the “discovery” stage of litigation.  One side to the case, such as the Plaintiff, may ask that the Defendant respond to written questions (referred to as interrogatories), product requests for the production of documents, and even respond affirmatively or negatively to single questions (referred to as admissions).  While this information can form the landscape of the case and be vital in determining whether or not a case may win or lose, often, the single most important part of discovery deals with the parties themselves- depositions.

Under Massachusetts Rule of Civil Procedure, Rule 26 governing discovery:

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods except as otherwise provided in Rule 30(a) and Rule 30A(a), (b): depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.

A deposition is a formal meeting between the parties in which questions are asked, under oath, to one of the parties.  Typically, the party being asked the questions (the deponent) will be present with his or her attorney, the attorneys representing the other parties to the matter, and a stenographer.  After the stenographer puts the deponent under oath, the deposition gets under way.  Depositions allow the parties to truly flesh out their case and ask any questions (within reason) that they’d like to in an effort to get a better understanding of the underlying allegations for the matter.  For instance, if you are the Plaintiff in a medical malpractice action, the attorney for the nurse or physician may depose you through his or her attorney.  The attorney would then ask you questions ranging from your childhood, your educational background, the alleged incident in question, whether you have been convicted of any crimes, your relationship status with your significant other, how you were after the accident, other cases you’ve been involved in, etc.. Continue reading →

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