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stop-this-watch-487816-mAccording to Black’s Law Dictionary, a Statute of Limitations is defined as a time frame set by legislation where affected parties need to take action to enforce rights or seek redress after injury of damage. Put another way, a claimant does not have until the end of time to pursue a cause of action for injury or damages sustained by that person. The result would be catastrophic as evidence erodes over time, memories fade, and the ability to effectively pursue a claim diminishes with each passing day. As a result, the Commonwealth of Massachusetts has set standards by which a claimant can pursue certain causes of action. These standards limit the time in which a person may file his or her claim in the proper court.

While various areas of the law have different statutes of limitations attached to them, under Massachusetts General Laws C. 260, § 2A:

“Except as otherwise provided, actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues.” Continue reading →

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under-construction-1268302-mOn May 31 2005, Tom Filepp was riding his bicycle on Harvard Street in Brookline, Massachusetts when he had an unfortunate accident due to the condition of the pavement. Specifically, he was pedaling his bicycle and encountered a “rut” in the pavement that caused his bicycle, and him, to turn over. Mr. Filepp suffered serious and severe personal injuries as a result. He promptly provided notice to the City of Brookline of the injuries he sustained. Subsequently, it was discovered that the Boston Gas Company was the responsible party as the corporation created the defect in pavement that caused Mr. Filepp’s accident.

Mr. Filepp was forced to file suit against the Boston Gas Company for claims predicated on negligence. The Defendant corporation asked the court to dismiss the case arguing that there were no material facts in dispute that rise to a triable level, and as a result, the Defendant should be entitled to judgment as a matter of law. The Defendant argued that Mr. Filepp, the Plaintiff, failed to give notice to the Defendant within 30 days of his accident. Under Massachusetts General Laws c. 84, § 18, a person injured due to a defect on a public way must send notice within thirty days after the injury to the, “county, city, town or person by law obliged to keep said way in repair.” As a result, because the Plaintiff failed to notify the Boston Gas Company, the organization obliged by law to maintain the parcel of land, the court dismissed Plaintiff’s case. Plaintiff appealed.  Continue reading →

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dark-doorway-1364550-mAn eighty year old woman enters a funeral home to attend the funeral of a friend. As she makes her way to her destination, snow continues to fall as it had been doing for the past hour or two. After making her way up the stairs to the funeral home and through the entryway door, she wipes her feet on the carpet just inside the entrance of the funeral home. After taking one step off the carpet she falls in a 3′ x 4′ area of dirty water on a marble floor and suffers injuries. She brings suit against the owner of the funeral home claiming negligence, and specifically, a breach of a duty of care owed to her and other patrons by failing to recognize the danger of water that had been accumulating on a marble floor. After extensive litigation in the matter, a jury returned a verdict for the injured Plaintiff. However, on appeal, the decision was reversed and the court held that, due to the transitory nature of the premises, and the lack of evidence that the floor became peculiarly slippery when wet, the court could not find the landlord breached his duty to the Plaintiff.

Does the “transitory nature” of premises effect a person from recovering due to a fall of snow, water, or ice at the entranceway of a premises?

The court in Wexler v. Stanetsky Memorial Chapel of Brookline, Inc. (referred to above) held that it does prevent an individual from recovering money from a landlord or shop owner. The court held that the transitory conditions of the premises, and its use in normal wet weather, could not have been prevented. Additionally, “there was no evidence to indicate that the water on the floor was more than the, “results from the tramping of many feet in such a place . . . under the conditions of weather then existing.’”  Continue reading →

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ambulance-1334534-mIn the past few months there have been lawsuits against the Mirena intrauterine device (IUD) which is used for contraception. Many women have been using this device for birth control as it was represented as being safer than oral contraceptives that were on the market. Today, approximately over 2 million women are using the IUD. However, not all women have been satisfied with the results of the device. There have been claims from around the country that the device has led to side effects including miscarriages, excessive bleeding, extreme stomach and abdominal pain, and even hysterectomies. Bayer Pharmaceuticals, the manufacturer of the Mirena IUD, is being sued on the ground that it failed to warn women of certain risks associated with the device; that the product was defective and inherently dangerous; and that the label of the device was unfair and/or deceptive as it listed certain risks as uncommon when in fact they were common.

While the cases around the country proceed, the question has been presented, what is the role of a medical device or drug manufacturer in relation to that a of prescribing physician? Generally speaking, a manufacturer is ultimately responsible for any and all products it puts into the stream of commerce to the hands of a consumer. However, in Massachusetts (along with states across the country) courts utilize the “learned intermediary doctrine.” Under this theory, a manufacturer or supplier of a prescription drug is relieved from any duty to warn patients of the dangerous qualities of the prescribed drug. 

The underlying theory behind the learned intermediary doctrine is that the physician acts as the “informed intermediary” between the patient and the manufacturer. As such, the physician is best suited to understand the complicated directions, warnings, risks, and implications of that drug. Once the physician is apprised of this small print, he or she informs the patient who makes the ultimate decision as to whether they want to use the drug or device. In the event that a manufacturer fails to include all relevant warnings and directives to the doctor, such as with the IUD case mentioned above, an injured patient may sue the manufacturer for breach of its duty to the physician.  Continue reading →

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black-and-white-trampoline-733512-mA child sneaks out of his house onto his neighbor’s property late at night. He spots a trampoline on the property and heads in that direction. Without his parents’ consent, or the consent of the owner of the property, he climbs on the trampoline and begins jumping higher and higher. The minor is flying high in the sky. As he prepares his feet to hit the lining of the trampoline in an effort to jump even higher, he mistakenly hits the side of the trampoline which causes a gruesome leg break. After the homeowner hears the screams and contacts the appropriate authorities- the question remains… who is responsible for the injuries sustained by the child? The parents for failing to monitor their child? Or the homeowner for failing to properly fence or otherwise guard the trampoline?

In Massachusetts, a person who enters the land of another without any right or privilege to do so is considered to be a trespasser. Traditionally, an adult trespasser is entitled to no duty of care by the landowner. However, a landowner cannot engage in any willful, wanton, or reckless disregard for the trespasser’s safety. This generally means that a landowner cannot knowingly and intentionally disregard an unreasonable risk where there is a great likelihood that a person could be seriously injured should that person enter the land owner’s property (even without permission). What constitutes an unreasonable risk may vary depending on the circumstances of each particular case. However, when the trespasser is a child, as opposed to an adult, the law is vastly different.

Under Massachusetts General Laws, Ch. 231, § 85Q, any person who maintains an artificial condition upon his or her own land shall be liable for physical harm to children trespassing thereon if:

(a) the place where the condition exists is one upon which the land owner knows or has reason to know that children are likely to trespass,

(b) the condition is one of which the land owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children,

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it,

(d ) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. Continue reading →

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doodled-desks-2-1193228-mA 28 year old woman from California recently posted a video in which she confronted a former teacher that allegedly abused her while she was a middle school student. Jamie, the woman who confronted her abuser, had been waiting for years to confront the woman who had allegedly sexually and physically abused her while she was a young child on the woman’s basketball team. After years had passed, and Jamie had a daughter of her own, she finally worked up the courage to confront her abuser. Jamie located the accused and discovered that she was an assistant principal in another school district. Jamie decided to confront the woman who had tormented her and, unbeknownst to the accused, recorded the conversation.

The recording of the conversation has gone viral. In the week since its posting the video has had over a million hits on YouTube. In the video, Jamie asks the accused whether she has any idea how many issues that Jamie has developed as a result of the abuse. The former teacher says she regrets the abuse and that she was only trying to “help” Jamie. The accused, who seemingly admitted to many of the allegations put forward by Jamie, acknowledged that she was disgusted with her own behavior. Jamie submitted a copy of the recording to the former school district in which the abuse took place and to the local police department as well. The police are currently conducting an investigation into the allegations, and as of the date of this post, the accused has been arrested.

Jamie may have an opportunity to file suit against the school district in which the abuse occurred. In the past few years in Massachusetts there has been a surge of students and parents bringing suit against public schools for injuries sustained as a result of the acts or omissions on the part of school officials. School districts have been faced with charges ranging from children getting injured on school grounds to negligence claims against the school for failing to protect children from bullying. Generally speaking, under the Massachusetts Torts Claim Act, public employees (such as teachers and faculty of public schools) are generally immune from negligence claims. As long as an employee was acting within the scope of his or her employment at the time of the injury and reasonably cooperates in a defense of any action brought against the school- that individual will be granted immunity from negligence claims.  Continue reading →

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