Not every breach of duty results in a finding of liability, however. This is because there must also be proof of damages (such as physical injury) and proximate causation. The question of proximate causation is more than a simple “someone breached a duty and someone else got hurt” proposition. Rather, the harm that befell the plaintiff must have been a foreseeable result of the breach of duty.

Sometimes, a defendant may have blatantly breached a duty of some sort but still not be held liable for a plaintiff’s injuries. This is because, in the court’s view (or in the jury’s view, if the case proceeds to trial) the harm that resulted was beyond that which a reasonable person would have foreseen at the time that the defendant acted (or failed to act).

Facts of the Case

In a recent case, the primary plaintiff was a woman who alleged that she was beaten and sexually assaulted by the defendant moving company’s employee in 2011. The woman, who was joined in the suit by her husband, filed suit against the moving company, the employee, and a second moving company with whom the first moving company may have had some contractual agreement that created an agency relationship between the two companies. According to the plaintiffs’ complaint, the employee had and extensive criminal history, as well as a history of substance abuse.

The plaintiffs’ suit asserted personal injury and loss of consortium claims against the defendants, based on several legal theories of liability, including respondeat superior (based the companies’ liability for the actions of their employee); negligent hiring, retention, and supervision; and violation of the consumer protections set forth in Massachusetts General Laws ch. 93A. The companies filed a motion for summary judgment, which was granted by the trial court. The plaintiffs appealed.

Holding of the Appellate Court

The Massachusetts Appeals Court affirmed the lower court’s order granting summary judgment to the defendants. In ruling in the defendants’ favor, the lower court had ruled that the plaintiffs’ injuries were not foreseeable because there was no nexus between the attack and the employment relationship between the moving companies and the employee who attacked the plaintiff. The lower court also held that the defendant companies did not owe any legal duty to the plaintiffs and that the facts were inadequate to raise a triable issue of proximate causation.

On review, the appellate court agreed that the plaintiffs’ negligence claims failed. Even though the reviewing court found that one of the companies had violated its own policies in failing to conduct a background check on the employee, the court found that this was “too attenuated from the harms suffered” by the plaintiffs to form the basis for liability under Massachusetts law. The court went on to discuss the issue of proximate causation, explaining that a defendant in a negligence case could only be held liable in situations in which the harm to the victim was foreseeable, given the breach of duty by the defendant. Insomuch as the employee’s criminal acts were committed while he was off duty – and were done to a victim with whom the defendant companies held no commercial relationship – the foreseeability of the employee’s actions were not sufficient to hold the defendant companies liable for their alleged negligence in failing to investigate the employee before hiring him. Thus, summary judgment to the defendants was appropriate in the appeals court’s view.

Talk to a Cape Cod Attorney

When a business or individual’s breach of duty results in foreseeable harm, the victim of the accident or other wrongdoing has the right to seek money damages in a court of law. To schedule a free consultation to discuss your Cape Cod personal injury case, contact The Law Offices of John C. Manoog III via this website or by calling 888-262-6664.

In both situations, the burden of proof is on the plaintiff to prove his or her case by a preponderance of the evidence. Thus, it is important that the plaintiff be represented by experienced legal counsel who can assist him or her in the filing of the required pleadings, the gathering of evidence, and the presentment of the case to the jury at trial.

Facts of the Case

In a recent (unreported) case, the plaintiff was a man who suffered a traumatic brain injury in 2008 as a result of an argument that began over a bar stool in a restaurant and culminated in an exchange of blows in the street later in the evening. The plaintiff filed a negligence security practices lawsuit against the restaurant, and, in 2012, a jury determined that the restaurant and an associated entity were each 45% at fault for the plaintiff’s injuries. The plaintiff was awarded $4.5 million in compensatory damages. The plaintiff then filed a second case against the insurance company that insured the defendants in the first case, seeking damages for the insurer’s alleged failure to effectuate a prompt, fair, and equitable settlement of the first case after liability had become clear.

In the second case, the parties waived a jury trial, and the trial court judge found that liability did not become reasonably clear until after closing arguments in the first case and that the insurer had violated Massachusetts General Laws ch. 176D, § 3(9)(f) from that time point until six weeks later. However, the trial court found that this violation was not willful or knowing and, accordingly, awarded the plaintiff damages of only $25, plus attorney’s fees and costs. Both parties appealed.

The Court’s Decision

The Massachusetts Appeals Court affirmed in part and reversed in part, thereby vacating the portion of the lower tribunal’s order that had determined that the insurer’s violation of ch. 93A was not willful or knowing. The court then remanded the case for a determination as to whether the amount of the judgment on the claims arising out of the case and the underlying occurrence should be doubled or tripled under ch. 93A, § 9(3).

The reviewing court thereby rejected the insurer’s contention that an alleged settlement after the first lawsuit precluded the plaintiff’s claims in the second suit. According to the appeals court, the settlement of the underlying insurance claim – even within a short time of a ch. 93A demand letter – did not necessarily resolve the associated ch. 93A claims because those claims allowed the plaintiff to remedy the separate harm caused by the insurer’s unfair settlement practices. Because of the distinction between the claims in the first and second suits, the plaintiff’s acceptance of the insurer’s tender of payment for an insured claim litigated in the first suit did not vitiate a claim under ch. 93A as a matter of course. Such would only happen if the latter claim had been expressly settled, which was not the situation here.

To Ask a Cape Cod Attorney a Question About a Possible Lawsuit

In addition to the obligation to keep their premises safe from dangerous conditions such as slippery floors and icy parking lots, those who own bars, restaurants, and similar establishments also have a responsibility to have effective security measures in place to protect customers from foreseeable harm. If you have a question about a Cape Cod bar or restaurant’s liability, call the Law Offices of John C. Manoog III, at 888-262-6664, and ask to speak to a member of our legal team. During the COVID-19 pandemic, we are taking steps to limit exposure to the virus for our clients and staff, but we are still able to conduct business remotely, such as through a telephone call or a video chat.

In a negligent security case, a property owner may be held liable for failing to protect the plaintiff from harm caused by a third party – typically a criminal whose intentional actions harm to the plaintiff. Such cases can be challenging, as the defendant typically attempts to shift the blame away from itself and onto the third party.

Facts of the Case

In a recent case, the plaintiff was a man who was stabbed while waiting in his car for a friend outside a theater in 2011. The man sued the theater (and its parent companies), alleging that they were negligent in failing to provide police detail on the theater premises. (The plaintiff’s stabbing occurred on a Tuesday evening about 10 p.m. For some years prior to 2008 or 2009, the defendants had police detail on their premises seven nights a week, but they then restricted the detail to Friday, Saturday, and Sunday evenings only.)more

The defendants filed a motion for summary judgment. The trial court granted the defendants’ motion, agreeing with them that the plaintiff’s stabbing was not reasonably foreseeable.

The Decision of the Court

The Commonwealth of Massachusetts Appeals Court affirmed, noting that, as a general rule, landowners such as the defendants herein are not required to take affirmative steps to protect patrons from the dangerous or unlawful acts of third parties. Although exceptional circumstances can arise in rare cases such that a duty does exist, this is so only if the defendant landowner knew of – or should have known of – the potential for violence. Because the stabbing giving rise to the plaintiff’s claim was not reasonably foreseeable, the appellate court agreed that the defendants were entitled to summary judgment.

Although there was some evidence of nonviolent crimes in the vicinity of the defendants’ property, there was no evidence of prior stabbings or other violent incidents. While some violent incidents had been reported at a nearby establishment, the plaintiff was unable to prove that this activity “leaked” to the defendants’ premises.

Schedule a Free Legal Consultation

Cases seeking compensation for injuries suffered on business properties are very fact-specific. If you or a loved one has been harmed due to a business owner’s negligence or failure to take reasonable precautions to protect patrons against a third party’s criminal action, you should talk to an attorney about your specific situation. To schedule a free, confidential consultation with an experienced Cape Cod negligent security attorney, call the Law Offices of John C. Manoog, III, at 888-262-6664. We serve injured persons throughout Hyannis, Plymouth, and the surrounding area.

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When the parties to a lawsuit have rested their cases, the trial judge issues a set of instructions to the jury before they retire to deliberate. The majority of these instructions are general in nature, but some may be fact-specific.

The parties may make requests for the court to issue certain instructions, and adverse rulings may result in appeals, should the jury’s verdict be unfavorable to the requesting party.

When this happens, the appellate court must review the instructions to determine whether, taken as a whole, they adequately provided the jury with a correct statement of the law.

Facts of the Case

In the recent (unreported) case of Wess v. Butterworth, the plaintiff was a man who lived in an apartment building owed by the defendant landlord. The front door to the building did not have a locking door, thus allowing the public to come and go at will. The doors to the individual apartments did have locks, but they did not have peepholes. There was neither a buzzer system nor an intercom on the premises.

An “estranged friend” of the plaintiff entered the apartment building and knocked on the plaintiff’s door. The plaintiff opened the door, and the man stabbed him in the stomach with a nine-inch knife. The plaintiff filed suit against the landlord (both individually and as trustee of the building’s legal owner), asserting claims for negligence, breach of the warranty of habitability, and violations of Mass. Gen. Laws ch. 143, § 51 and ch. 93A. (The plaintiff’s wife joined in the suit, asserting a claim for loss of consortium.) A jury trial resulted in a defense verdict. The plaintiff appealed.

The Massachusetts Appeals Court’s Ruling

The appellate court affirmed the trial court’s entry of judgment for the defendant. Although the plaintiff argued that the trial court had committed reversible error with regard to certain jury instructions, the appeals court disagreed, holding that the jury instructions on foreseeability and proximate cause were correct and that the lower court did not err in refusing to give an instruction proposed by the plaintiff regarding the definitions of proximate cause and superseding cause. Any other errors regarding the jury charge were deemed waived because the plaintiff did not mention them in the brief on appeal.

According to the court, when read as a whole, the trial judge’s instructions to the jury were correct and appropriately addressed all of the plaintiff’s arguments regarding foreseeability, proximate cause, superseding cause, and intervening cause.

If You Have Questions About a Possible Negligent Security Lawsuit in the Cape Cod Area

When property owners and business operators breach their duty of care towards tenants, visitors, guests, and others, tragic consequences can result. If you or a family member has suffered a serious injury because of negligent security, you may be able to assert a claim against the responsible landowner. The Cape Cod negligent security attorneys at the Law Offices of John C. Manoog, III, can help you get started on your case. To schedule a free consultation, call us at (888) 262-6664. We have offices in both Hyannis and Plymouth offices. We serve all of the Cape Cod area.

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The reason for this is that premises liability law requires property owners to keep their premises in a reasonably safe condition. The courts have interpreted this requirement as including taking reasonable precautions to keep visitors (such as hotel guests and nightclub patrons) safe from harm. While not every act of violence is foreseeable or preventable, landowners have a duty to act appropriately given the circumstances of a particular security risk.

Facts of the Case

In the recent (unreported) case of Pena v. Pena, the defendants were the operators of a bar in Roxbury, Massachusetts. The plaintiffs filed a personal injury lawsuit against the operators, alleging that, because of the operators’ negligence, a bar patron stabbed the plaintiffs. The trial court entered judgment for the plaintiffs, awarding one of them $70,000 in damages and the other $500 in damages. The operators appealed, urging that the trial court’s judgment was not supported by the evidence.

The Case of Appeal

The court first noted that, in the court below, the operators had “defaulted” (perhaps by failing to file a timely answer to the plaintiffs’ complaint). The trial judge had then held an evidentiary hearing for the purpose of assessing the plaintiffs’ damages. The defendants argued on appeal that the trial court judge’s findings were erroneous, but the appellate court affirmed the judgment for the plaintiffs. Since the defendants did not provide the appellate court with a transcript of the evidentiary hearing in the lower court, there was no basis for a finding that the trial court judge had made a mistake in the award of damages to the plaintiffs. Without a transcript to prove otherwise, the appellate court was required to assume that the trial judge’s findings were adequately supported by the record.

To Talk to a Lawyer About a Possible Cape Cod Premises Liability Lawsuit

If you or someone in your family has been hurt because of the negligence of a landowner or business operator, the Law Offices of John C. Manoog, III, can review the facts of your case and inform you of your legal rights. To talk to an experienced Cape Cod negligent security and premises liability lawyer, call 888-262-6664 and ask for a free consultation. We serve all of Cape Cod from our Hyannis and Plymouth offices. If you need us to come to your home or hospital room to discuss your case, we will be glad to make arrangements to do so. Nos falamos Portugues!

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The Underlying Case

In the case of Chiulli v. Liberty Mutual Insurance Company, Inc., the plaintiff was a bar patron who was severely injured in a fight at a restaurant in 2008. Due to a skull fracture, he spent three months in a coma. His medical expenses were $661,928, and he was left with a permanent disability that he alleged significantly reduced his future earning capacity. The parties’ experts disagreed as to the exact amount of lost future earnings, but the figure was at least $413,532 and possibly as much as $1,589,949.

During pretrial discovery, employees of the restaurant testified that they had not been trained on safety rules related to liquor licenses and that, although they thought a fight was likely between two groups in the restaurant, they did not try to prevent it. The patron filed suit against the restaurant and three individuals who participated in the fight in state court, but the case was removed to federal court.

In 2010, the patron sent a demand letter to the defendant insurance company, but no settlement offer was made prior to the trial of the matter, which took place in 2012. During the trial, the insurance company made a settlement offer of $150,000, and the patrol refused. The federal jury found the restaurant to be 90% at fault in causing the patron’s injuries and awarded him $4,494,665 in damages. The insurance company moved for judgment as a matter of law or a new trial, but the parties settled the case before the motions were ruled upon.

The Suit in Massachusetts State Court

The patron then filed suit against the insurance company in state court, alleging that it had violated Mass. Gen. Laws chs. 93A and 176D by engaging in unfair and deceptive settlement practices, namely by refusing to make a reasonable settlement offer after it became reasonably clear that the insurance company’s client was liable. The insurance company made a special motion to dismiss under Mass. Gen. Laws ch. 231, § 59H, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. The trial court denied the motion, and the insurance company appealed.

The Decision on Appeal

The Appeals Court of Massachusetts affirmed, holding that the insurance company was not entitled to the protections of the anti-SLAPP statute and that “its deployment of that statute would eviscerate the consumer protections embodied in ch. 176D.” In so holding, the court rejected the insurance company’s contention that the application of chs. 93A and 176D against it was an unconstitutional infringement of its state and federal rights to a jury trial.

To Speak to an Experienced Cape Cod Premises Liability Lawyer

If you or a loved one has been injured due to a business owner’s failure to take proper measures to keep his or her premises safe, call the Law Firm of John C. Manoog, III today at (888)262-6664. We are currently reviewing premises liability and negligent security cases throughout the Cape Cod area, including Hyannis and Plymouth. We will be glad to schedule a free initial consultation about your case at your convenience.

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The plaintiff also called defendant Federal Express, which had erroneously delivered the package to the plaintiff’s home. The plaintiff relayed the package’s contents and asked the defendant not to disclose her whereabouts to the sender of the package. Meanwhile, the sender of the package also contacted the defendant, asking for a “trace” on the package and telling the defendant that she suspected that the package had been delivered to a street that also began with the same letter of the alphabet and that she would find it herself if the defendant did not help her. Three men later came to the plaintiff’s house, inquiring about the package, but the plaintiff slammed the door and called the police.

The Plaintiff’s Lawsuit in State Court

Eventually, it was discovered that one of the defendant’s employees had made a mistake in entering the information provided by the sender into the computer, thereby generating an address label with the plaintiff’s address rather than the address of the intended recipient. The plaintiff initially sued the defendant in state court, asserting that the defendant had mislabeled the package, misdelivered the package, and wrongfully gave her address to the sender or the intended recipient. She asked for damages for the defendant’s invasion of her privacy under Mass. Gen. Laws ch. 214, § 1B, as well as for the defendant’s intentional infliction of emotional district, its negligent infliction of emotional distress, and its general negligence in handling the matter.

Removal to Federal Court

The defendant removed the case to federal court. After the discovery phase of the case, the defendant filed a motion for summary judgment, urging that the plaintiff’s claims were preempted by the Airline Deregulation Act (ADA), 49 U.S.C. § 41713(b)(1). The federal district court granted the motion, and the plaintiff appealed.

The Decision of the Appellate Court

The Court of Appeals for the First Circuit affirmed the trial court’s grant of summary judgment to the defendant, agreeing that the plaintiff’s evidence as to the defendant’s alleged invasion of privacy by disclosing her address to the sender of the package was “nothing more than a laundry list of possibilities and hypotheticals.” With regard to the plaintiff’s remaining common law claims of intentional infliction of emotional distress, negligent infliction of emotional distress, and general negligence stemming from the defendant’s admitted mislabeling and misdelivery of the package, the court found that all such claims were pre-empted by the ADA, which prevents states from enforcing laws related to the price, route, or service of an air carrier.

In closing, the court noted that the case before it was a “hard case” and that courts facing such hard cases are often under a temptation to make bad law. However, the court’s duty was to apply the federal law so that the services of the defendant and others similarly situated will be free from state regulation, thus insuring that the airline industry remains a competitive market.

If You Need Help with a Negligence Case

If you have been the unfortunate victim of an individual or business’s negligence and would like to talk to an experienced attorney about your case, call the Law Offices of John C. Manoog, III to schedule an appointment. We handle a wide variety of negligence cases, and we will give your case the attention that it deserves. We accept cases primarily in the Cape Cod area, including Plymouth and Hyannis. In many injury cases, we don’t charge a fee until we obtain a settlement or judgment in your favor.

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Although many premises liability cases stem from situations where a customer has slipped and fallen in a store or other business, legal liability against a business owner can also result from inadequate security measures. In order to recover in such a situation, the customer must show that the business was aware of certain dangers but failed to provide a reasonable amount of security for its customers. If you have suffered injuries as a result of a property owner’s failure to provide adequate security or otherwise maintain his or her premises in a safe condition, Cape Cod premises liability attorney John C. Manoog, III can advise you about your rights.

Patron of Tavern Attacked by Unknown Assailants While on Premises

In the recent case of Certain Interested Underwriters at Lloyds, London v. LeMons et al, the plaintiff was a patron at a tavern that was insured under a commercial general liability policy issued by Lloyds. In 2001, the patron was attacked and injured by several unknown assailants while at the tavern. In 2004, the patron and his wife sued the tavern, seeking to recover for bodily injuries and loss of consortium on a theory of negligent security by the tavern. At first, Lloyds defended the lawsuit under a reservation of rights. Eventually, however, it disclaimed any duty to defend or indemnify the tavern. As grounds, Lloyds pointed to an “assault and battery” exclusion in the insurance policy under which it insured the tavern. In 2006, the patron and the tavern agreed to a settlement of $1.2 million, and the tavern assigned its rights against Lloyds to the patron’s wife as litigation trustee. Meanwhile, Lloyds filed a declaratory judgment action against the tavern, seeking an order declaring that the patron’s lawsuit fell under the “assault and battery” exclusion of the policy.

The Issue in the Case

Did the superior court properly grant summary judgment in favor of the insurance company on the grounds that an assault and battery exclusion in the tavern’s policy relieved the insurer from any duty to defend or indemnify the tavern?

The Court’s Review of the Policy Language

The insurance policy at issue contained an “assault and battery” exclusion, which excluded coverage for bodily injury “arising out of an assault or battery, provoked or unprovoked, or out of any act or omission in connection with prevention or suppression of an assault or battery, committed by any insured or an employee or agent of the insured.” The patron and his wife argued that the exclusion applied only when an assault and battery was committed by the tavern’s agent or employee, which was not the case in the underlying claim involving the patron because his assailants were unknown.

No Ambiguity in the Exclusion

According to the court, there was no ambiguity in the assault and battery exclusion in the insurance policy provided by Lloyds. The court found that the plain language of the exclusion, the context of the insurance policy as a whole, and prior case law excluded coverage in the patron’s lawsuit against the tavern. The underlying claims stemmed from an assault and battery, and it did not matter who committed the acts. Thus, the court affirmed the lower court’s judgment declaring that Lloyds had no duty to defend or indemnify the tavern.

If You Need Assistance with a Premises Liability Lawsuit

If you have been injured as a result of a property owner’s negligence, the Law Offices of John C. Manoog, III can help you determine whether you have grounds for suit. To schedule a free initial consultation, call the office at 888-262-6664 or reach us on our contact page. Someone will be happy to discuss your case with you.

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