The Facts of the Case

It is reported that while he was at work, the plaintiff slipped and fell in the parking lot. He filed a workers’ compensation claim and was subsequently awarded benefits. He also filed a personal injury lawsuit in which he asserted negligence claims against the defendant, the party responsible for clearing the subject lot of snow and ice. The parties exchanged discovery, which included the plaintiff providing the defendant with documentation of his workers’ compensation claim. Before trial, the plaintiff filed motions in limine asking the court to preclude evidence of his workers’ compensation claim from use at trial.

Evidence of Workers’ Compensation Claims in Personal Injury Matters

First, the court examined the plaintiff’s motion in limine with regard to his current workers’ compensation benefits on the ground that it could detrimentally impact his recovery of damages. The defendant did not object to the plaintiff’s motion; as such, it was granted as unopposed. The plaintiff also filed a motion in limine asking the court to prohibit the defendant from introducing evidence of other injuries or his prior workers’ compensation claims, arguing that they were not relevant and would be overly prejudicial.

Further, the plaintiff noted that the defendant had not identified any expert who could analyze the extent to which his prior injuries impacted his current health. The defendant agreed as to the workers’ compensation records but argued that evidence of prior injuries may be relevant to the subject case, as it could provide an explanation for the plaintiff’s current symptoms. The court ultimately agreed with the defendant, and denied the second motion with respect to evidence of other injuries but granted it with regard to the workers’ compensation claim.

Meet with an Experienced Cape Cod Attorney

People who recklessly cause others to suffer harm should be held accountable, but in some cases, they will attempt to avoid liability by showing the injured party received compensation from another source. If you were hurt by another party’s careless behavior you should meet with a lawyer to discuss your rights. The experienced personal injury lawyers of The Law Offices of John C. Manoog, III, are adept at proving negligence, and if we represent you we will work tirelessly on your behalf. You can reach us through our online form or by calling us at 888-262-6664 to set up a meeting.

The Harm Sustained by the Plaintiff

According to the lawsuit, the plaintiff was a plumber. He fell into a sump hole in a basement that was filled with scorching water while servicing a boiler at a house. The sump was connected to the boiler’s drain valves when it was installed in 2001, allowing water to drain away from the boiler. Following his injury, the plaintiff filed a complaint, naming as defendants the insurance and reinsurance firms that provided coverage for the premises, as well as the adjuster who worked for the insurance company that conducted a boiler check in 2015.

According to reports, the plaintiff claimed that as part of the inspection, the defendants had a duty to detect the open sump’s risks. The defendants moved for summary judgment, and the trial court granted the defendants’ motion. The plaintiff appealed, but on appeal, the trial court’s decision was upheld. Insurance Companies’ Liability

The plaintiff had to establish that the adjuster was negligent in order to succeed on his claims, according to the appellate court. To put it another way, he had to establish that the adjuster owed him a duty of reasonable care, that the defendant breached the duty, and that the breach caused him harm. The plaintiff, however, was unable to prove duty and causation.

The appellate court emphasized that defining a duty involves assigning risk by weighing the foreseeability of harm against the burden that would be imposed in light of the circumstances. The legal question of whether or not a party owes a duty of care to another is resolved by looking at current societal norms, policies, and conventions. The plaintiff claimed the defendants owed him a statutory, contractual, and common law responsibility to inspect the pump in the issue at hand. The court disagreed, though, and found that the defendants owed no duty to the plaintiff. As a result, the trial court’s decision was upheld.

Consult a Capable Massachusetts Attorney Regarding Your Injuries

Many property owners allow dangerous conditions to exist on their premises, resulting in serious injuries. You have the right to seek compensation if you were injured in an accident on someone else’s property, and you should consult an attorney about your options. The capable lawyers of The Law Offices of John C. Manoog, III, can assess the circumstances surrounding your harm and help you to seek the best legal outcome available. You can contact us via our online form or by calling us at 888-262-6664 to set up a meeting.

The Facts of the Case

It is reported that the plaintiff worked for a roofing company. The defendant hired the plaintiff’s employer to remove snow from a flat roof on an apartment building. While on the job site, the plaintiff fell off of the roof and sustained critical injuries. He then filed a lawsuit against the defendant, setting forth claims that it negligently failed to provide adequate fall protection on the roof.

Allegedly, prior to trial, he moved in limine for an order allowing him to introduce evidence of certain publications and regulations issued by OSHA (the Occupational Safety and Health Administration), but the court denied his motion. The jury attributed thirty percent of the fault for the accident to the defendant and seventy percent of the fault to the plaintiff, and therefore, returned a verdict in favor of the defendant. The plaintiff filed an appeal, asserting that the trial court erred in excluding the OSHA regulations. Establishing Liability for a Fall at a Work Site

On appeal, the court found that while a violation of a regulation can be deemed evidence of negligence, the plaintiff did not demonstrate that the OSHA materials he sought to introduce were relevant and admissible for that purpose. Instead, he only intended to use them to establish the standard of care.

The appellate court noted that the defendant failed to explain how OSHA regulations were relevant to establishing the standard of care that the defendant, a property owner, owed under common law. In fact, the plaintiff failed to mention the common law standard of care that applied at any point in his appeal.

The appellate court explained that, contrary to the plaintiff’s argument, safety regulations do not create a new standard of care, and could not be used as grounds for demonstrating the defendant’s liability for negligence per se. Finally, the appellate court stated that the judge was within her discretion in determining that the OSHA regulations did not apply because the plaintiff was not the defendant’s employee and the fall did not occur at a construction site. Thus, the appellate court affirmed the trial court ruling.

Confer with an Experienced Massachusetts Attorney

While the law typically precludes people hurt at work from seeking compensation in tort claims against their employers, they have the right to pursue damages from other people responsible for their injuries. If you sustained harm in a workplace accident, you should confer with an attorney regarding your possible claims. The Cape Cod premises liability attorneys of The Law Offices of John C. Manoog, III take pride in helping injured people fight to protect their interests, and if you hire us, we will work tirelessly on your behalf. You can contact us via the form online or at 888-262-6664 to set up a meeting.

The Plaintiff’s Fall

Reportedly, the plaintiff attended a burial at a cemetery owned by the defendant municipality. After the ceremony concluded, he walked from the gravesite towards his car. He did not walk on a path but over other graves. At one point, he stepped on what he referred to as a soft spot, which created a deep hole. His left foot and ankle got caught in the hole, and he suffered significant injuries.

Allegedly, the plaintiff filed a lawsuit against the defendant, asserting its negligence caused his fall. Prior to trial, the defendant moved for summary judgment, arguing it had not breached any duty owed to the plaintiff. After reviewing the evidence of the case, the court granted the defendant’s motion.

Establishing Constructive Notice in Slip and Fall Cases

In Massachusetts, landowners are generally liable to invitees who suffer harm due to conditions on their property, but only if they know or by exercising reasonable care would have discovered the conditions and should realize that they involve an unreasonable risk of harm to such invitees, and should anticipate that invitees will not make a discovery or recognize the danger, but fail to take reasonable measures to protect the invitees against harm.

Thus, whether a landowner will be held accountable for harm suffered by an invitee typically turns on whether the landowner possesses actual or constructive notice of the unsafe condition that caused the harm. In the subject case, the evidence indisputably showed that the sinkhole that caused the plaintiff to fall was not known or visible, and therefore, was not a condition of which the defendant’s employees were or should have been aware. Thus, as the plaintiff could not establish the basic elements of negligence, the court granted the defendant’s motion.

Speak to a Seasoned Cape Cod Attorney

People often trip due to holes, uneven ground, and other dangerous obstacles, and the parties responsible for maintaining the properties where falls occur can often be held accountable. If you were hurt in a trip and fall accident, you should meet with a lawyer regarding what evidence you must produce to recover damages. The seasoned Cape Cod premises liability attorneys of The Law Offices of John C. Manoog, III can advise you of your rights and aid you in seeking the full amount of compensation available. You can reach us via the form online or at 888-262-6664 to set up a conference.

The Plaintiff’s Claims

It is reported that the plaintiff, who is a Massachusetts resident, was a guest at the defendant resort when she slipped and fell in the area near the hot tub. She suffered serious injuries in the fall and subsequently filed a lawsuit against the defendant in the Massachusetts District court, asserting negligence claims. The defendant moved to dismiss the plaintiff’s claims for lack of personal jurisdiction, while the plaintiff argued she was entitled to jurisdictional discovery prior to her claims being dismissed. The court ultimately ruled in favor of the plaintiff and denied the defendant’s motion. Jurisdiction Over Out of State Defendants

Personal jurisdiction is the court’s power to compel a party to abide by its orders. In cases involving diversity of citizenship, a court must determine whether its exercise of personal jurisdiction over a defendant complies with both the Due Process Clause of the Fourteenth Amendment of the United States Constitution and the state’s long-arm statute.

Further, it is well-established that Massachusetts’ long-arm statute imposes requirements that are not coextensive with the Due Process Clause. Thus, a party must show that the court’s exercise of personal jurisdiction comports with both state and federal requirements. The state long-arm statute states that a court may exercise personal jurisdiction over a person, which includes a business or entity who, either directly or through an agent, engaged in business transactions within the commonwealth if the cause of action against the person arises from such transactions.

The long-arm statute is construed broadly in favor of personal jurisdiction. The court further explained that “arising from” has been interpreted to mean that the harm would not have occurred but for the defendant’s actions. In the subject case, the court found that the plaintiff adequately alleged facts that would allow it to exercise general personal jurisdiction over the matter. Thus, the court denied the defendant’s motion, and allowed the plaintiff to conduct discovery to determine if specific personal jurisdiction was proper.

Meet with a Capable Cape Cod Attorney

Slip and fall accidents can cause serious injuries, and in many instances, they arise out of a property owner’s negligent failure to maintain their premises in a safe condition. If you were hurt in a slip and fall accident, you should meet with an attorney to discuss your rights. The capable Cape Cod premises liability attorneys of The Law Offices of John C. Manoog, III can assess the circumstances surrounding your harm and advise you of your potential claims. You can contact us via the form online or at 888-262-6664 to set up a meeting.

Because of special situations like this, it is very important to talk to a lawyer as soon as possible after an injury caused by another’s neglect, recklessness, or carelessness. An attorney who focuses his or her practice on these types of cases can help you avoid procedural pitfalls that could end your case before you have your day in court.

Facts of the Case

in a recent (unreported) case, the plaintiff was a woman who filed suit against two defendants, a maritime academy and the Commonwealth of Massachusetts, attempting to assert certain claims sounding in tort and contract. According to the plaintiff, she was injured when she fell during a boat ride on the academy’s premises on September 24, 2016. The plaintiff’s attorney sent a letter of presentation to the defendant academy on or about March 10, 2017, purportedly advising the defendant academy of the plaintiff’s claims. The letter was, in turn, forwarded to the defendant academy’s insurance company. After more information was requested, a second, more-detailed letter and settlement demand was sent to the defendant academy’s counsel by the plaintiff’s attorney on August 23, 2017.

The case did not settle, and the plaintiff filed a formal complaint in court. The defendant academy filed a motion to dismiss the plaintiff’s complaint due to her failure to comply with the presentment requirements of Massachusetts General Laws ch. 258, § 4. The trial court granted the defendant academy’s motion to dismiss, holding that the plaintiff’s first letter did not contain sufficient detail to constitute a proper presentment; her second letter, while more detailed, did not cure the defects in the first letter because it was not sent to the defendant academy’s president; and the plaintiff could not escape the presentment requirement by “recasting her tort claim as a contract claim.”

Decision in the Case

The Commonwealth of Massachusetts Appeals Court affirmed the lower court’s decision. Under the Massachusetts Tort Claims Act, a civil action could not be instituted against a public employer on a claim for damages unless the claimant first presented his or claim in writing to the executive officer of such public employer within two years after the date of the accident for which he or she sought compensation. To comply with the requirements of the Act, the plaintiff’s presentment of his or her claim had to set forth sufficient facts upon which public officials could reasonably discern whether the plaintiff was entitled to recovery. Here, the plaintiff’s first letter was deficient in setting forth the requisite details, and her second letter was addressed to an attorney, not to the public official to whom notice should have been given. As to the plaintiff’s attempt at a breach of contract claim, the appellate court agreed with the trial court that dismissal for defective presentment was the correct course of action.

Speak to Counsel About a Negligence Case in Cape Cod

The Law Offices of John C. Manoog III can help if you have been injured in a Cape Cod slip and fall accident. Call us at 888-262-6664 to speak to someone about setting up a free consultation. There is no legal fee until we settle your case or win a judgment in your favor in a court of law, so please call sooner rather than later. A delay in getting the advice and counsel that you need could result in forfeiture of your right to seek monetary damages for medical expenses, lost wages, pain and suffering, and other losses caused by another’s negligence.

Usually, trespassers are owed a lower duty of care than those who are on another’s property with permission. However, this is not always so.

Facts of the Case

In a recent (unreported) appellate case, the plaintiffs were the administrators of the estate of a 17-year-old high school student who drowned in a swimming pool that belonged to the defendant city. According to the record on appeal, the student was a trespasser and gained access to the pool through the girls locker room (an area in which had no authority to enter). The depth of the water was not marked on the pool, and the student was not able to swim. In their wrongful death lawsuit, the plaintiffs sought compensation based on a theory of negligence and premises liability. The defendant filed a motion seeking summary judgment as to the plaintiffs’ claims against it. The trial court granted the motion, and the plaintiffs appealed.

The Decision of the Appeals Court

The Commonwealth of Massachusetts Appeals Court reversed the lower court’s order granting summary judgment and remanded the matter for further proceedings. In the appellate court’s view, the primary question was whether the student both knew of and understood the risks that were posed by entering an area with an unguarded swimming pool. Although the lower court answered the question in the affirmative in granting summary judgment to the defendant, the reviewing court disagreed with this result. Rather, the appeals court held that the question at hand was one of fact, not law, and should have been reserved for the jury’s determination at trial.

In so holding, the court of appeals acknowledged that, under Massachusetts law, a landowner’s duty to a trespasser is not the same as his or her duty would be to someone who was on the subject property with the landowner’s permission or implied consent. Generally speaking, in the case of a trespasser, the landowner only owes a duty to avoid wanton and willful conduct. However, the court went on to point out that, when the trespasser in question is under the age of 18, landowner owes a more heightened duty. Because children and youth may not realize the risks involved in certain dangerous situations, landowners owe a duty of taking reasonable care to avoid harm to them.

Call a Wrongful Death Lawyer in Cape Cod

If you have lost a loved one in a swimming pool accident, the Law Offices of John C. Manoog III can help you explore the possibility of filing a claim for wrongful death against the owner of the property upon which the pool was located. To schedule a free consultation to learn more about your legal rights and the process of seeking compensation in a court of law, call us at 888-262-6664 or contact us through this website. We have offices located in both Hyannis and Plymouth, and we serve all of the Cape Cod area.

Of course, not every piece of evidence is as reliable as it might first appear. There is technology available that can alter the appearance of both photographs and videos, a fact to which anyone who has skimmed through a fashion magazine can attest.

The case described below dealt with a situation in which the image shown in the photograph was real; it accurately reflected the scene at the time it was taken. However, there may have been a discrepancy regarding when the party offering the photographs into evidence said the picture was taken and when it was actually taken.

Facts of the Case

The plaintiff in a recent (unreported) case was a woman who was hurt after she allegedly slipped and fell on black ice as she was attempting to get control of her dog in the parking lot of a veterinarian’s office. She sued the defendants, the veterinary clinic and the family realty trust that owned the property, alleging that their negligence contributed to her injuries. Prior to trial, the plaintiff filed an emergency motion to continue the trial because a “new so-called rebuttal expert” could not be present on the scheduled trial date. The expert in question was to be called to testify regarding certain discrepancies in the metadata field (particularly the date and time) of photographs that the defendants claimed represented the accident scene.

The trial court denied the plaintiff’s motion, and the case was tried to a jury. The jury determined that the clinic was not negligent and that, although the trust was negligent, its negligence was not a substantial contributing factor to the plaintiff’s injuries. The plaintiff sought appellate review.

Resolution on Appeal

The Massachusetts Appeals Court affirmed the lower court’s entry of judgment upon the jury’s verdict in favor of the defendants. Although the plaintiff argued on appeal that the lower tribunal had erred in denying her motion for a continuance and in excluding evidence from her proposed expert (which she maintained would have shown spoliation), the reviewing court found no cause to disturb the ruling. In so holding, the appellate court pointed out that the plaintiff’s motion to continue did not claim spoliation, fraud on the court, or perjury, all of which she relied upon in seeking a reversal of the defense verdict.

Furthermore, the plaintiff did not object to the admission of the photographs about which her expert would have testified had there been a continuance, and she was the first party to affirmatively use the photos at trial. Under these circumstances, the plaintiff was found to have waived the arguments that she attempted to advance at trial.

To Speak to an Injury Lawyer in Cape Cod

A slip and fall accident in a parking lot or elsewhere can result in permanent disability, extensive medical costs, and a great amount of pain and suffering to the affected individual. If you have questions about getting started on a premises liability lawsuit to hold the responsible party liable in such a situation, please contact the Law Offices of John C. Manoog III at 888-262-6664. If you have any photographs of the accident scene or information about possible witnesses, please have this potential evidence available when you meet with an attorney about your case.

Even if a particular case involves a condition that was arguably open and obvious, the case will not necessarily be futile. Liability may still be had in a case against a premises owner under some circumstances.

Facts of the Case

In a recent case was the personal representative of the estate of a customer who sustained serious personal injuries when she fell down an unmarked step in the defendant restaurant’s dining room. The customer filed a personal injury lawsuit against the restaurant, alleging that its negligence had been the proximate cause of her fall. The case was tried to a jury and resulted in a verdict in favor of the customer. (Some time after the trial, the customer apparently died, and the personal representative of her estate was substituted as plaintiff.) The restaurant filed an appeal, seeking review of case and asserting numerous errors.

The Appellate Court’s Decision

The Commonwealth of Massachusetts Appeals Court affirmed the lower court’s decision entering judgment on the jury’s verdict in the customer’s favor. On appeal, the restaurant insisted that the customer’s case had proceeded only on the legal theory of failure to warn. The appeals court began its opinion by pointing out that this characterization was incorrect; rather, the customer had argued not only that the restaurant had failed to warn her of the dangers of the step but also that it had failed to maintain its premises in a safe condition in light of the fact that there was a “level change” in the middle of the building. This distinction was important because, in a case proceeding purely on a failure-to-warn theory of liability, a defendant can avoid liability by showing that the complained-of danger was “open and obvious.”

The reviewing court went on to note that, even if a property owner is relieved of its usual duty to warn of a hazardous condition due to its open and obvious nature, the owner may still have other duties to those coming upon the business property. This can include, for example, the duty to remedy in some situations. Thus, if a plaintiff proceeds on a theory other than failure to warn, he or she may have a viable claim even if the condition at issue was open and obvious. Turning to the case at bar, the appeals court first held that the restaurant had waived appellate review of the trial court’s jury instructions on failure to remedy because it did not properly preserve the issue for appellate review. The court also then found that review of whether or not a special verdict slip inquiring as to whether the step was open and obvious had been waived, insomuch as the trial judge had revised the slip to comply with the defendant’s objection to an earlier version.

Overall, considering the evidence presented at trial, the appeals court opined that it would have been reasonable for the jury to have found that either the condition at issue was not open and obvious, thus triggering a duty to warn, or that, although it was open and obvious, the restaurant still owed a duty to remedy the step because it was likely to cause harm. Thus, there was no reason to disturb the lower court’s order entering judgment upon the verdict.

To Schedule a Free Case Evaluation with an Injury Attorney in Cape Cod

Those who have been hurt in a slip and fall accident may be owed substantial compensation for their injuries. To speak to an experienced Cape Cod premises liability attorney, call the Law Offices of John C. Manoog III at 888-262-6664 to learn more about how we can help you pursue a liability claim against the responsible party.

Of course, this assumes that the case ultimately makes its way into a courtroom and is tried in front of a judge and jury. It is important to note that there are a lot of steps that may occur before this happens.

First and foremost, the court in which the suit is filed must have jurisdiction over the case. This encompasses both the right to adjudicate the subject matter of the suit and also power over the particular defendants, a concept known as “personal jurisdiction.”

Facts of the Case

In a recent federal case, the plaintiff was a woman who lost both her husband and her son in a drowning accident in Montreal, Canada, in 2016. The husband died immediately, but the son was pronounced brain dead and died sometime later. Suing both individually and administratrix of the estate of the husband and son, she sought compensation from the defendant hotel owners (who owned the pool where the drownings occurred). The plaintiff’s wrongful death lawsuit was filed in 2018 in a Massachusetts state court. One of the defendants was a Canadian corporation, one was a Delaware corporation, and one was a Maryland corporation. In addition to the wrongful death claims, the plaintiff also asserted causes of action for conscious pain and suffering of the son who died and negligent infliction of emotional distress on behalf of her two surviving children, who witnessed the drownings.

The defendants removed the case to federal court based on diversity of citizenship and then moved for dismissal based on the doctrine of forum non conveniens and on the allegation that none of the defendants were subject to personal jurisdiction in Massachusetts. The district court initially denied the defendants’ motion but later granted dismissal based on the forum non conveniens argument.

Opinion of the Court

The United States Court of Appeals for the First Circuit affirmed the district court’s denial of the defendants’ motion to dismiss the plaintiff’s suit for lack of personal jurisdiction and reversed the district court’s order granting dismissal on forum non conveniens grounds. The lower court had based its decision in part on the number of Canadian witnesses who could not or would not travel to Massachusetts for the litigation. However, as the appellate court pointed out, the only two potential witnesses who were actually present when the drownings happened were the plaintiff’s two surviving children, both of whom were American citizens.

The reviewing court noted that, because the defendants had sent certain promotional material to the plaintiff and the decedent husband to entice them to travel to Canada, there was sufficient contact for personal jurisdiction, as well.

Seek Advice from an Injury Attorney in Cape Cod

When a landowner or property owner’s negligence causes a wrongful death, the victim’s family should speak to an attorney about the process of holding the responsible party liable. At the Law Offices of John C. Manoog III, we have experience in these types of cases, and we welcome your call. Phone us at 888-262-6664 or use the contact page on this website to learn more about our services. We serve clients throughout the Cape Cod area, including Hyannis and Plymouth.

If the defendant did owe a duty of care to the plaintiff, the next step is to determine whether the duty was breached. If it was, then the issue turns to the question of causation and, then, damages. Only if the defendant owed the plaintiff a duty of care, breached that duty, and thereby proximately caused legal damages to him or her may the case be resolved in the plaintiff’s favor.

If the answer to the duty question is “no,” the case ends there – unless the trial court’s judgment is appealed, of course. Then, a higher court may take a look at the case to determine whether a mistake was made in the lower tribunal. Only if the appealing party can convince the appellate court that a reversible error was made will there be a reversal of the lower court’s decision and a reinstatement of the plaintiff’s complaint.

Facts of the Case

In a recent unreported appellate court case, the plaintiff was the mother of (and the personal representative of the estate of) a three-year-old child who drowned in a pond about half a mile from the defendants’ home. According to the plaintiff’s complaint, the child was “in the custody of” and “a guest of” the defendants at the time of her death. The plaintiff filed a wrongful death action, asserting that the defendants had acted negligently in allowing the child to roam outside of their home with their intellectually challenged son. Apparently, the child and the defendant’s son had wandered through the woods to a neighbor’s pond, and the child had attempted to swim but was unable to do so. Notably, the son had not tried to stop her from going into the water.

The defendants filed a motion to dismiss the complaint, and the trial court granted the motion. The plaintiff appealed.

The Court of Appeals’ Decision

The appellate court affirmed the trial court’s order, beginning its analysis by acknowledging that the issue of whether a duty of care existed in a certain situation was a question of law appropriate for a motion to dismiss. In order to survive a motion to dismiss based on a lack of duty, the plaintiff’s complaint had to contain factual allegations sufficient to plausibly suggest an entitlement to relief.

The court also noted that, generally, there is no legal duty to prevent the harmful consequences of a condition or situation which a defendant did not create; under Massachusetts law, social hosts are only liable in situations in which there was a recognized legal basis requiring the protection of a guest or in which there was a special relationship between the homeowner and the person who was injured or who died.

Although the plaintiff insisted that special relationship had existed here, the court of appeals rejected this contention, stating that “custody” required more than just a child’s presence in another’s home. Without more proof of the defendants’ alleged custody of the child, there was no affirmative duty on the defendants to protect the child from hazards located off of their property.

For Assistance in Filing a Cape Cod Wrongful Death Claim

If you have suffered the tragic loss of a family member due to another’s negligent or reckless conduct, you should talk to an attorney about the procedure of filing a claim seeking compensation for your loved one’s wrongful death. At the Law Offices of John C. Manoog III, we handle both personal injury and wrongful death cases in Hyannis, Plymouth, and elsewhere in Cape Cod. For a free consultation about your case, call us now at 888-262-6664. Please be mindful that there is a statute of limitations that limits the time for filing wrongful death claims, so please do not delay in speaking to legal counsel about your situation.

In some cases, however, the insurance company’s participation is more direct. In a recent case, the defendants filed a third-party action against their insurance company, which they averred had wrongfully denied a claim that had been filed against them.

After the original claim between the defendants and the parties who sought compensation for certain personal injuries was settled, the defendants’ claim against the insurance company proceeded to trial – twice. After the second trial, the insurance company sought appellate review of the decision entered against it in the court below.

Facts of the Case

In a case recently decided by the Massachusetts Appeals Court, the plaintiff was a minor child who, through his mother and next friend, filed suit against the defendant apartment owners, seeking compensation for injuries caused by the minor’s alleged exposure to lead while living in the apartment from 2007 to 2010. The apartment owners had owned the building since 1972 and, in the early 1990s, had sought liability insurance coverage for potential lead poisoning liability. After they were sued and the defendant insurance company denied the claim against them, the apartment owners filed a third-party claim against the insurance company, asking the court to require the insurance company to provide coverage for the minor’s injuries.

After the minor and the property owners settled the case between them, the property owners’ case against the insurance company continued. The trial court entered partial summary judgment to the effect that the insurance policy at issue was not ambiguous in its non-coverage of the minor’s claims, and the case proceeded to trial on the issue of whether the defendant was estopped from denying the claims. Juries in two successive trials determined that the insurance company was estopped and, thus, was liable for the plaintiffs’ claims. The insurance company appealed.

The Appellate Tribunal’s Decision on the Issues

The appeals court vacated the judgment in the second trial, reversed the order granting a new trial after the first verdict, and directed that the first verdict be reinstated. According to the court, the evidence supported the jury’s conclusion that the property owners had expressly sought coverage for lead poisoning risks; that, under the circumstances, the insurance company had a duty to inform the property owners that the documents that they had submitted in their efforts to secure such coverage were inadequate; and, given the limited formal education of the male property owner who had interacted with the insurance company regarding this matter, the homeowners “reasonably believed” that they had coverage for lead poisoning claims such as the one brought by the minor.

Seek Legal Advice from a Cape Cod Attorney

If you have been hurt by the negligence of a Cape Cod property, you have only a limited time for filing a lawsuit. The Law Offices of John C. Manoog III handle many types of premises liability actions, including negligence, building code violations, and negligent security claims. For an appointment to discuss your claim, call us now at 888-262-6664. We represent clients in Hyannis, Plymouth, and other locals in the Cape Cod region.

Unfortunately, the court system is far from perfect, and there can be differences in the outcome of a given case based on these and other factors. Because of this, the plaintiff in a case may choose to file his case in one venue rather than another – if there is a potential choice about such matters, given the facts. Defendants, too, sometime engage in “forum shopping” of sorts by seeking removal of a state case to federal court or transferal of a federal case from one district to another.

Facts of the Case

The plaintiff in a recent slip and fall negligence case was a man who alleged that he was injured when he slipped on a “wet, dangerous, and hazardous condition” located on the floor of a Massachusetts grocery store. He filed suit against the defendant store owners in a New Jersey state court in late 2019, seeking fair compensation for his medical expenses and associated damages resulting from the fall. The defendants removed the case to a federal court located in New Jersey based on diversity of citizenship.

The defendants filed a motion in the United States District Court for the District of New Jersey, seeking transferal of the plaintiff’s case to the United States District Court for the District of Massachusetts. Alternatively, the defendant asked the court to dismiss the plaintiff’s lawsuit under the forum non conveniens (inconvenient forum) doctrine. The plaintiff opposed the defendants’ motion on the grounds that there was no jurisdiction in federal court and that, thus, the matter should be returned to the New Jersey state court in which it was initially filed.

The Court’s Decision

The federal district court in New Jersey granted the defendants’ motion to transfer the case to the federal district court in Massachusetts. Although the plaintiff insisted that both federal courts lacked subject matter jurisdiction because the amount in controversy did not meet the jurisdictional requirements, the court opined that neither the plaintiff’s pre-litigation demand nor the defendants’ pre-litigation offers had any bearing on the “amount in controversy” question. After all, the court reasoned, settlement offers made prior to the filing of a lawsuit merely reflected the parties’ conception of potential compromises of the claim, not the actual outcome. Once the matter proceeded to trial, such offers would not be controlling on the jury in assessing damages.

After deciding that the federal courts had jurisdiction, the court went on to consider whether a transfer from New Jersey to Massachusetts was in order. The plaintiff averred that he was a “dual resident” of both states. Given that the accident at issue occurred in Massachusetts, most (if not all) of the witnesses to the accident resided in Massachusetts, and all of the records related to the accident (including the plaintiff’s medical records) were located in Massachusetts, the court found that both the public interests or the private interests of the defendants and witnesses to litigate the matter in Massachusetts outweighed the plaintiff’s preference to present his case in New Jersey.

Speak to a Cape Cod Lawyer

A trip to pick up essentials like groceries should not end with a slip and fall accident, possibly requiring an emergency room visit or months of medical care. Shops, restaurants, and other places of businesses owe the public certain duties to keep their premises safe for those who come to do business. If you have been hurt due to the negligence of property owner, you should talk to a lawyer about filing a claim for damages. For an appointment to discuss your situations with an experienced Cape Cod premises liability attorney, please phone the Law Offices of John C. Manoog III, today at 888-262-6664. There is no charge for the consultation, and you are under no obligation, should you decide not to pursue litigation against the negligent party after speaking with us.

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.

Facts of the Case

In a recent case, the plaintiff was a tenant who sued his landlord and an appliance store, after a stove in his apartment exploded, severely burning the tenant’s right hand. The tenant’s claims against the landlord included negligence, vicarious liability for the store’s negligence, breach of the implied warranty of habitability, and breach of the covenant of quiet enjoyment. Against the store, the plaintiff sought compensation for negligence, breach of contract as a third-party beneficiary, violation of Massachusetts General Law ch. 93A, and strict liability. Various third-party and cross-claims were also filed in the lawsuit.

The tenant and the store entered into a settlement for $15,000. Without the tenant’s assent, the store filed a motion for entry of a separate and final judgment pursuant to Massachusetts Rule of Civil Procedure 54(b). The landlord opposed the motion. After a hearing, the trial court approved the settlement and ordered the entry of a separate and final judgment dismissing the tenant’s claims against the store. The landlord appealed.

The Ruling of the Appellate Court

On appeal, the landlord contended that the trial court had erred in entering the separate and final judgment for the store, insisting that such relief was inappropriate because his cross-claim overlapped factually and legally with the tenant’s dismissed claims against the store and because the trial court judge had not made an express finding that there was no just reason for delay. The Massachusetts Appeals Court agreed with the store’s arguments, vacated the certification and entry of the separate and final judgment pursuant to Rule 54 (b), and remanded the case for further proceedings.

In so holding, the court acknowledged that, although the trial court judge had properly acknowledged that Massachusetts General Laws ch. 231B, § 4(b) (which discharges a tortfeasor to whom a good faith release is given from all liability for contribution to any other tortfeasor) did not impair any right of indemnity under existing law, the judge had went on to state that the landlord was not entitled to indemnification from the store because the landlord was “not without fault” for the tenant’s injuries. According to the appellate court, the allegations in the tenant’s complaint presented different legal theories of recovery arising from the same factual scenario; thus, there was a single claim, not multiple ones, for purposes of Rule 54. In this situation, it was error for the trial court judge to grant the Rule 54(b) certification.

Contact an Injury Attorney in Cape Cod

If you or a loved one has suffered a serious injury, such as a burn injury, you should talk to an attorney as soon as you can. There are many steps to pursuing fair compensation in a Massachusetts personal injury case. Thus, it is important to get started on your claim sooner rather than later, so that important deadlines are not missed. For a free consultation about your case, contact Cape Cod premises liability attorney John C. Manoog III, today at 888-262-6664.

If you or your child has been hurt by a negligent property owner, you should speak to an attorney about your case as soon as possible, as there is a statute of limitations that limits the time during which you may take legal action.

Facts of the Case

In a recent case, the plaintiff was a woman who brought suit as the parent and the next friend of her a minor child who was allegedly injured as a result of a fall from a zip line that the defendants had installed in their backyard. Because the zip line did not have a seat, the child’s father held him up by the hips and guided him for a few feet before letting him go. The child traveled a short distance and then lost his grip. Reportedly, his father grabbed him as he was falling, but the child’s arm hit the ground and was fractured so severely that several surgeries were required. In their negligence claim, the plaintiffs focused on the defendants’ failure to install a safety seat attachment to the zip line, arguing that this failure rendered the zip line unreasonably dangerous. The plaintiffs also asserted that the defendants had failed to warn the child of the danger of the zip line.

The defendants filed a motion for summary judgment, which the trial court granted. According to the trial court, the danger that a child of the minor plaintiff’s age (six years) might lose his grip while dangling from the hand trolley was so obvious that it was reasonable for the defendants to conclude that a person of ordinary intelligence would perceive the risk and avoid it.

Decision of the Court

The Massachusetts Appeals Court affirmed the lower court’s entry of summary judgment for the defendants, first noting that the duty to warn of a dangerous condition is owed to an adult supervising a child, not to the child himself. Here, the minor plaintiff was on the defendants’ property because he had been taken there by his parents, including the adult plaintiff. The child had then used the zip line with his father’s assistance and under his father’s supervision. Because the danger at issue was open and obvious to the child’s father, the defendants did not have a duty to warn the father about the lack of a seat on the zip line.

With regard to whether the defendants owed the plaintiffs a duty to remedy the open and obvious condition of the zip line, the court found that the plaintiffs had failed to show that the zip line was “unreasonably dangerous.” In so holding, the court noted that the zip line was low enough for the child’s father to lift him up to the trolley by his hips and that there was no evidence of poor construction.

How to Get Assistance with Your Case

If your child has been hurt on someone else’s property, you may be able to seek compensation on his or her behalf. As this case demonstrates, premises liability lawsuits filed against allegedly negligent landowners can be challenging, but each case stands on its own merits so it is important to consult an experienced Cape Cod slip and fall accident lawyer to review your particular case. To schedule an appointment at The Law Offices of John C. Manoog III, call 888-262-6664 and ask for a free consultation.

One of these important deadlines is the 30-day period for the filing of a notice of appeal following entry of final judgment by a trial court judge. While there are some exceptions to the usual rule, these are few and far between, as the defendants in a recent premises liability lawsuit found out.

Facts of the Case

In a recent case, the plaintiff was a man who fell while maneuvering a pallet jack from his delivery truck to a loading dock operated by the defendants. According to the plaintiff, his fall aggravated osteoarthritis in hip, requiring him to undergo a total hip replacement. The plaintiff’s personal injury lawsuit alleged that the defendants were negligent in failing to maintain the mechanism that bridged the gap between his trailer and their dock, thus causing the accident and his resulting injuries.

The case was tried to a jury, who found that the defendants were liable for the plaintiff’s injuries. The defendants filed a timely motion asking for a new trial or, alternatively, a remittitur. The trial court judge denied the defendants’ motion on February 12, 2018, thus triggering the commencement of the 30-day period set forth for filing an appeal pursuant to Massachusetts Rule of Appellate Procedure 4(a). Unfortunately for the defendants, they did not file a notice of appeal within the 30-day period. Instead, some 8 days after the 30-day deadline, they filed a motion to extend the time to file a notice of appeal. The trial court granted the defendants’ motion, and they eventually filed an appeal on April 2, 2018, which was 49 days after their post-trial motion was denied. The plaintiff filed a cross appeal, challenging the trial court judge’s decision to allow the defendants to file their untimely appeal.

Decision of the Court

The Massachusetts Appeals Court dismissed the defendants’ appeal as untimely. Pursuant to Rule 4(a), an appellant in a civil case is required to file a notice of appeal within 30 days of the date that a final judgment is entered (or after an order is entered denying a motion for a new trial). After this deadline has passed, a trial court judge can only allow a motion to file a late notice upon a showing of “excusable neglect.” Reviewing the decision of the lower tribunal for an abuse of judicial discretion, the appellate court found that the defendants had failing to make the requisite showing in the case at bar.

According to the court of appeals, the defendants had purposed to show excusable neglect through the affidavit of an attorney who had been hired as appellate counsel to the effect that he was out of the country at the time the notice was due and that he had a “good faith understanding” that the notice of appeal would be filed by trial counsel. The attorney further explained that trial counsel was apparently unaware of his travel plans and assumed that he would be the one to file the appeal. According to the reviewing court, the situation presented, at best, a type of miscommunication that the court had held in previous cases to be “garden variety oversight” rather than the truly excusable neglect that would be sufficient to warrant an extension of the time for filing an appeal.

Talk to a Lawyer About Your Case

Having effective legal representation through each and every step of your personal injury lawsuit is critically important when it comes to pursuing fair compensation for injuries suffered due to another’s negligence. To schedule an appointment to discuss your accident with an experienced Cape Cod slip and fall lawyer, call the Law Offices of John C. Manoog III, at 888-262-6664. We have offices in Hyannis and Plymouth; we can also visit your hospital room or home, if need be.

Of course, the defendant in such a case is likely to offer up a myriad of possible defenses, blaming the plaintiff for the accident or denying that the condition that led to the injury had been in place long enough for the defendant to have legal notice of it.

In some situations, there may be another possible defense, such as the recreational use statute.

The Facts of the Case

The plaintiff in a recent case was a woman who reportedly fell from the bleachers at an indoor sports facility after watching her child play dekhockey (street hockey). She filed a personal injury lawsuit against the defendant, the operator of the facility, seeking monetary compensation for her injuries, including a torn ligament in her knee. The plaintiff’s husband joined in the suit to assert a claim for loss of consortium.

The defendant filed a motion to dismiss the plaintiffs’ case on the ground that it was immune from liability under the recreational use statute codified at Massachusetts General Laws ch. 21, § 17C. The superior court treated the motion as if it were a motion for summary judgment, ruling in the defendant’s favor and thereby dismissing the plaintiffs’ complaint.

What the Court of Appeals Decided

The Massachusetts Appeals Court affirmed the lower court’s decision. Noting that the statute in question was intended to encourage landowners to permit broad, public, and free use of their land for recreational purposes by limiting their obligations to lawful visitors under the common law, the court of appeals pointed out that, although the plaintiffs’ son may have incurred an indirect fee in order to use the defendant’s facilities, the plaintiff herself had entered the premises without charge. Although the plaintiffs attempted to distinguish their case by arguing that the female plaintiff was not at the facility for a recreational purpose, but, rather, to supervise her minor child, the court declined this argument. According to the court, when a parent who entered a recreational facility for free was injured while watching his or her child play in an organized activity in which the players were under the charge of a third-party coach and referee, the parent’s “mere invocation of the term ‘supervision'” was insufficient to stave off a defendant’s motion for summary judgment.

Lest its holding be misinterpreted, the appellate court noted that it did not rely on the defendant’s “reductionist claim” that owners of recreational facilities of whatever stripe were automatically entitled to the protections of the recreational use statute if the injured spectator was not charged an entrance fee.

Do You Need Legal Advice About a Personal Injury Case?

Serious and even life-threatening injuries can result from so-called “slip and fall” accidents resulting from the negligence of landowners and others charged with the care and maintenance of real property. If you have been hurt on another’s property, you should talk to an attorney about your legal rights, including the right to pursue fair compensation for medical expenses, lost wages, and pain and suffering. To schedule a free consultation with a helpful and experienced Cape Cod premises liability lawyer, please call The Law Offices of John C. Manoog III at 888-262-6664.