Articles Posted in Premises Liability

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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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field-trip-205687-mIn April of 1993 Jason Robinson was a student at Darmouth High School.  In the early morning hours of the school day, three assailants were involved in a violent altercation at the school with two other of Jason’s classmates and possibly Jason himself.  After the altercation the assailants fled the school and Jason was detained by school officials.  A classmate of the individuals informed school officials that the three individuals who were the assailants planned to return to the school and retaliate against Jason.  The assailants did in fact return some hours later, this time, heavily armed.  The assailants were unimpeded by school officials and made their way to an upstairs classroom where they stabbed Jason to death.

The individual who stabbed Jason was subsequently convicted of murder in the second degree by the Massachusetts court system.  Jason’s mother, Elaine Brum, filed an action in Superior Court against the town of Darmouth and various town and school officials alleging a failure to maintain adequate security measures at the school which amounted to negligence.  The Defendants filed a motion to dismiss the mother’s claim based on Massachusetts General Law Chapter 258 § 10(J), which does not allow a lawsuit to be filed against the Commonwealth or any of its political subdivisions where the claim is:

“based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”

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mallOn April 24, 2011, Jackie and Ricky Cox, a husband and wife, went to a Wal-Mart to purchase some goods.  As Mrs. Cox made her way through the entrance, she fell and sustained serious personal injuries in connection with her fall.  An uninterested witness, an observer some twelve feet away, watched the fall take place.  He testified that for an hour before the fall he had observed the door threshold rising up approximately one half inch whenever a customer or cart crossed the threshold.  The witness testified that he observed this to occur due to the fact that the threshold plate was not secured tightly to the ground.  As a result, whenever a person stepped on one side of the metal plate, the other side would rise up.  He further observed, and subsequently testified, that when Mrs. Cox stepped on the plate with one foot, her other foot caught the plate causing her to fall.  A manager for Wal-Mart denied any sort of occurrence predicated on a rising plate.

Mrs. Cox filed a complaint in her home state of Mississippi and it was ultimately removed to Federal Court.  Mrs. Cox claimed that it was negligent of the store to allow a defect to exist on the property and that such a defect was unreasonably dangerous to persons such as herself.  The Defendant store argued that the purported defect in the threshold was not unreasonably dangerous.  A lower court agreed with the defense and held that a door threshold is among those dangers which are usual and which customers normally expect to encounter on the business premises, such as thresholds, curbs and steps.  As a result, the Plaintiff’s claim was dismissed.

The Plaintiff filed an appeal in the matter which was heard by the United States Court of Appeals in the Fifth Circuit.  The Court, on appeal, held that while there are certain dangers which are usual for a customer to expect, a defect is not one of those dangers.   A defect, the court detailed, is not a condition that one would normally encounter in the normal course of operations or mode of operation of a business.   The Court reversed the prior court’s ruling and allowed the Plaintiff to proceed to litigate her case on the merits. Continue reading →

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darkIn September of 2009, Michael Eason reserved a room at the Boston Marriot Burlington Hotel for an overnight stay.  After checking into the hotel at approximately 8:00 pm, he made his way to his rented room.  After opening the door to his hotel room, Mr. Eason admitted that the room was dark except for the faint glow emanating from the partially open door and a small gap in the curtain hanging over the windows.  As he stepped further into the hotel room, the light became even fainter as the door fully closed.  Mr. Eason took a few more steps in his room and unexpectedly encountered a coffee table that caused him to sustain a serious fall.  Mr. Eason alleges that it was negligence on behalf of the hotel that caused or substantially contributed to the injuries he sustained in connection with his fall.  A suit was commenced in Middlesex Superior Court but was ultimately moved to federal court for litigation.  The Defendant Hotel filed a motion for summary judgment in hopes of getting the case dismissed.

In order to succeed in a claim predicated on negligence a plaintiff must establish that the defendant owed the plaintiff a duty of care, that there was a breach in the purported standard of care, and due to the breach the plaintiff was caused to sustain damages for which he or she should be compensated.  In discussing the duty in this matter, the Judge reiterated that:

“While a landowner has a duty to lawful visitors of its property to maintain reasonably safe conditions and to warn of unreasonable dangers, landowners “are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury from blatant hazards. . . Stated otherwise, where a danger would be obvious to a person of ordinary perception and judgment, a landowner may reasonably assume that a visitor has knowledge of it . . . .””

Continue reading →

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wet floorIn a decision issued on May 12, 2014, the Massachusetts Appeals Court held that a man injured as a result of a slip and fall at Walgreens could not recover for the injuries he sustained.  The Plaintiff, Alejandro Curet, went to the Defendant Walgreens in Roxbury in order to pick up a medication.  While he was walking through the store with the aid of crutches, he went down the aisle containing hand lotions and creams.  While he was halfway through the aisle, he slipped and fell on a substance he alleged was lotion.  The Plaintiff brought suit against the Defendant claiming negligence in allowing a substance to be on the floor for an unreasonable amount of time.  The existence of a substance on the floor, according to the Plaintiff, constituted an unreasonable defect that caused or significantly contributed to his injuries.

While there was no evidence that there was cream or lotion on the floor at the time of the Plaintiff’s fall, the court noted that the Plaintiff could not point to any evidence that the Defendant organization knew the cream was there, had reason to know it would be there, or even a reasonable opportunity to discover its presence.  In response, the Plaintiff relied on the theory “mode of operation.”  Prior to 2007, when it came to the liability of a store owner for a slip and fall, liability would attach only where the owner had actual or constructive notice of the dangerous condition.  With the landmark decision of Sheehan v. Roche Bros. Supermarkets, Inc., the Supreme Judicial Court of Massachusetts held that a Plaintiff’s burden to prove notice of a dangerous condition could be satisfied if they are able to establish that the injury was attributable to a reasonably foreseeable dangerous condition that is related to the owner’s mode of operation. Continue reading →

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movie-house-771223-mAlthough property owners are not responsible for preventing every instance of violence, they must take reasonable steps to secure the premises in appropriate circumstances.  A negligent (or inadequate) security claim arises when a person is injured due to the poor or unreasonable safety precautions established by the premises owner.  In a case recently decided by the Appellate Court of Massachusetts, the Court held that a woman who alleged she was raped in the bathroom of Regal Cinemas in Bellingham could not have a new trial after judgment was entered for the Defendant cinema.  The Plaintiff claimed that Regal Cinemas should be held liable under the theory of negligent supervision, specifically, that the Defendant organization had policies or procedures in place that exacerbated or made it possible for such an egregious act to occur on its property.

The failure of a homeowner, business owner, or premises owner to prevent a crime does not establish the owner’s liability in a negligent security case.  Instead, the court will determine whether the underlying crime was foreseeable to the owner.  When a crime is reasonably foreseeable to occur on the premises of another there may be a duty to protect, and thus, negligence may attach.  The court has held that when it comes to security of premises, a landowner is not an insurer of land.  However, the court has articulated that liability may be warranted in certain circumstances which hinge on the foreseeability of the underlying acts: Continue reading →

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penWhen the circus rolls into town there are sights and sounds that captivate the audience.  Many gasps and sighs form a chorus in the crowd in response to the planned acrobat stunts from the seasoned gymnasts and adventurers employed by the circus.  The light and ethereal mood can become dark and somber when the gasps and sighs correspond to unplanned events- like accidents.  Such was the case this past weekend in Providence when eight circus acrobats were hurt during a performance when a rig collapsed with the performers in midair.

Eight female acrobats were hanging by their hair forming a human chandelier when an apparatus fell and plummeted to the ground. The eight performers were brought to the hospital to treat their injuries.  As of the date of this writing, three of the performers are currently labeled as being in critical condition.  While no audience members were injured in the tragic accident, the question arises as to what happens when a patron or audience member signs a “waiver” or a release of liability prior to being in the audience or participating in a dangerous activity. Continue reading →

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tree cuttingAs any remaining snow thaws and April showers slowly make their seasonal retreat, a drive on the weekend in any neighborhood often captures the sights of many homeowners tending to their property.  Whether it is putting grass seeds on the lawn, tending to vegetable gardens, or raking mulch, lots of yard activities can be accomplished at this time of year.  With the surge of physical activities on property, so too is the surge of possible legal consequences in the pursuit of those, sometimes dangerous, activities.

On December 2, 2009, Jose Bonano was performing yard work at a friend’s house where he was utilizing equipment to aid him in that quest.  Across the street, Dean Koz was surveying a tree on his property and determined that he needed to cut a rather large branch.  The branch was described as being five inches wide and at least ten feet long, incapable of being cut while a person stood on the ground.  Dean Koz went across the street and asked Mr. Bonano for his assistance in his efforts.  In exchange for helping him cut the tree branch, Mr. Koz offered to help with the removal of all the brush and clippings that Mr. Bonano had stacked on the property of his friend.

Mr. Koz, the Defendant, set up the ladder on the ground under the branch.  Mr. Bonano, the Plaintiff, climbed the ladder and severed the branch from the tree.  As the tree branch fell to the ground it bounced back and struck the Plaintiff.  This is often times in landscaping referred to as a “kick-back.” The Plaintiff fell from the ladder, hit the ground, and sustained a wrist fracture and a right arm radius fracture.  He was scarred and left with decreased function in his hand and incurred significant monetary damages. Continue reading →

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sparklerAs warmer weather approaches and festivities loom on the horizon, one expects many different sights that accompany the celebrations in the coming months.  Often fireworks are considered vital to a celebration in the spring and summer months.  Supervised displays of fireworks by municipalities, fair associations, amusement parks and other organizations are authorized under Massachusetts law.  However, private uses of fireworks are still prohibited under the rules of the Commonwealth and punishable by fines and even jail time.

Under Massachusetts General Law Ch. 148 § 39:

No person shall sell, or keep or offer for sale, or have in his possession, or under his control, or use, or explode, or cause to explode, any combustible or explosive composition or substance, or any combination of such compositions or substances, or any other article, which was prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration, or detonation.

For the purposes of this section the word “fireworks” shall include compositions, substances or other articles and shall also include blank cartridges or toy cannons in which explosives are used, the type of toy balloon which requires fire underneath to propel the same, firecrackers, cherry bombs, silver salutes, M-80’s, torpedoes, sky-rockets, Roman candles, sparklers, rockets, wheels, colored fires, fountains, mines, serpents, or other fireworks of like construction or any fireworks containing any explosive or flammable compound, or any tablets or other device containing any explosive substance.

While the criminal penalties are listed in the statute, there is no mention for liability for a civil action brought against a person, or corporation, for fireworks causing damage to another that originate on their property. Continue reading →

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pewLinda and Kenneth Patterson, members of a senior center in Georgia, took part in a sight seeing tour organized by the center that included stops along the east coast.  One of these stops included a visit to the Old North Church in Boston’s North End.  The church is said to be the location of the famous, “one if by land, and two if by sea” phrase associated with Paul Revere’s midnight ride prior to the Battles of Lexington and Concord during the American Revolution.  As Mrs. Patterson made her way through the historic church, she was directed to sit in the church’s pew boxes.  At the entryway to each pew box was a hinged door and single step riser that was painted a very similar color to the existing carpet on the floor.  As Mrs. Patterson went to enter the pew, she did not see the riser and fell onto the bench.  As a result, she sustained serious and severe personal injuries that required hospitalization and surgery.

Mrs. Patterson brought suit alleging negligence against the Defendant foundation that was responsible for organizing tours in the church.  Among the allegations, the Plaintiff claimed that she and her husband were not warned to use caution or to watch their step when entering the pew box and that the sanctuary was poorly lit.  Additionally, the Plaintiff claimed violation of the Consumer Protection Statute, Ch. 93a, which declares unlawful unfair or deceptive acts in the conduct of any trade or commerce.  Specifically, the Plaintiff alleged that the Defendant was liable under this statute because when she injured herself in the pew box, the church was not in compliance with Architectural Access Board accessibility requirements.

The Defendant, a nonprofit organization that organizes tours and historical programs at the church, argued that it was not liable under the recreational use statute in Massachusetts.  Under Massachusetts General Laws Ch. 21, s. 17C: Continue reading →

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