Articles Tagged with Boston personal injury attorney

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Claudine Cloutier

1-508-822-2000

By the second year of law school, every law student knows that in order to successfully pursue a personal injury claim based on negligence, the plaintiff must establish four elements: 1) duty of care; 2) breach of that duty of care; 3) damages; 4) a causal nexus between the breach and the damages.  But what do these mean if you’re the person injured? Although each of the elements has volumes of legal treatises attempting to interpret and explain it, a basic understanding is not difficult.

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In July 2015, an ironworker was seriously injured in the course of his employment when he fell 40 feet at the central parking garage at Logan Airport. Investigators revealed that the worker had fallen onto a piece of precast concrete that had also fallen.  The 53-year-old man, a resident of Connecticut, was transported by ambulance to Massachusetts General Hospital where he underwent treatment for life-threatening injuries

The investigation into the incident revealed that a 32-ton piece of concrete fell while it was being hoisted by a crane, as part of the garage construction.  The worker was apparently attempting to secure the panel when he fell.  All work at the construction site was halted pending an investigation by OSHA, the Occupational Safety and Health Administration.  OSHA is the federal agency charged with overseeing compliance with Federal Safety Regulations under 29 CFR 1910.

This incident highlights the perils faced by construction site workers.  What many do not know is that workers injured during the course of scope of their employment not only have rights under Massachusetts General Law Chapter 152, the so-called “workers compensation statute”, but they may also have a cause of action against both the general contractor on the site as well as any sub-contractors whose negligence was a contributing factor in causing the injury.  While an employee is generally unable to file a civil lawsuit against their own employer due to the exclusivity provisions of M.G.L. Ch. 152, this statute does not prohibit the injured party from pursuing a claim or lawsuit against non-employer responsible parties.

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Many employers have complained about the nuisance and cost of certain workplace safety regulations.  While the effectiveness of any regulation must continually be evaluated, there is no question that government regulations requiring safety compliance have reduced the number of workplace injuries and deaths.

The Occupational Safety & Health Administration (OSHA) publishes commonly used statistics regarding workplace injuries.  Sadly, there were 4,585 reported worker fatalities in 2013.  As noted, that equates to an average of 12 per day.   Eight hundred and seventeen (817) of these fatalities were Hispanic or Latino workers.  One in five of the fatalities involved construction accidents.   See https://www.osha.gov/oshstats/commonstats.html.

No amount of money can make up for a lost loved one.  But pursuing all possible benefits may lessen the financial toll.  Family of workers’ killed and injured employees may be entitled to receive workers’ compensation benefits. Such payments may not be sufficient to make up for lost wages and lost fringe benefits during a disability.  Moreover, workers who are self-employed or work as independent contractors may have difficulty even qualifying for workers’ compensation benefits.

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It’s summertime, and we are right in the middle of baseball season. The Home Run Derby and the All-Star Game just took place, and the second half of the MLB season will kick off tonight with some teams thinking about a pennant and others weighing their options for next year. Behind the scenes, however, a movement has begun to drastically alter the way that we watch baseball from the stands. My colleague, Brian Dever, recently wrote a blog on the Baseball Rule, which states that stadium owners are generally not liable for injuries caused by balls and bats flying into the stands and hitting spectators. Instead, the onus is on the fans to be alert during the game. But this rule may now have to withstand a new challenge in federal court.

A San Francisco woman has brought a federal class action lawsuit against Major League Baseball and its commissioner, Rob Manfred. The lawsuit is not asking for money, but instead only seeks to have protective netting to be extended from foul pole to foul pole. Currently, protective netting is only required in certain sections behind home plate. The lawsuit claims that the protection afforded to those behind home plate should also be given to fans along the first and third base lines. The lead Plaintiff alleges that she, a longtime Giants fan, is fearful to go to the park because of foul balls. Interestingly enough, she states that the unprotected seats along the base lines are cheaper than the protected seats behind the plate, implying that some fans are given the choice to pay for greater safety. Please check out the ESPN article and the NBC Sports article on the lawsuit.

Simply from a legal standpoint, this is a very interesting issue. As Attorney Dever’s post details, the courts have long held that there are some “danger zones” in MLB stadiums that are required to have some sort of netting to protect fans. This is why the net is behind home plate (it’s also the reasoning that requires netting around shooting areas of hockey rinks). The court has also held that outside of this “danger zone,” the stadium does not owe any duty to protect. So instead of pursuing the claim under a theory that has been rejected by courts for decades, the new lawsuit instead seeks to expand the “danger zone” where the duty does exist. Only time will tell whether this action will be successful.

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The summer is a great time to go outside and enjoy the nice weather and sunshine, and a time when many people take advantage of the ability to be more active and participate in a variety of sports. However, people do not always consider the liability ramifications of participating in sports, or even merely being a fan in the stands. A few weeks ago, a woman got hit with a piece of a broken bat at a Red Sox game. This is a reminder that sometimes we can encounter danger when we least expect it. See the stories in the Boston Globe and in USA Today for more information on that accident.

The Baseball Rule discussed regarding the Red Sox fan’s injury basically states that the stadium is not legally responsible for spectator injuries sustained when a foul ball or broken bat flies into the stands. The rule was most recently applied in the case of Costa v. Boston Red Sox Baseball Club, 61 Mass. App. Ct. 299, 809 N.E.2d 1090 (2004), upholding a ruling of the Superior Court granting summary judgment to the defendant. The theory behind the baseball rule is rooted in assumption of risk, an area which remains very much alive in sport. The Baseball Rule does not shield stadium operators for liability in their entirety. A duty does remain to provide protective screening where the risk of immediate and unavoidable danger is at its highest, called the “zone of danger,” not just in baseball, but also in other sports, most notably hockey. A recent law review article by James Kozlowski, Professor at George Mason University discussed this rule in greater detail. The screening behind home plate at a ballpark, the netting behind the boards at a hockey game, and the prohibition of leaving your seat at a hockey game during live play are all examples of the limited duty that the stadium operator owes fans due to the Baseball Rule.

Assumption of risk does not just apply to spectators, but to participants as well. Generally, athletes assume the risk of injury incurred by participating in sports. This is true of being struck by a golf ball on the course, as in Gray v. Giroux, 49 Mass. App. Ct. 436, 730 N.E.2d 338 (2000). Additionally, there are two trial court level rulings, Orth v. Novelli, No. CIV. A. 95-0990-A, 1997 WL 805469 (Mass. Super. Nov. 11, 1997) and Mangone v. Pickering, No. CIV.A. 95-0357, 1997 WL 197232 (Mass. Super. Apr. 14, 1997) which detail the culpability standard for being struck by a golf club. In Orth the standard that must be met is negligence. In Mangone the standard that must be met is recklessness. This split of opinion must be resolved at the appellate level, and presumably will be heard at some point in time. This also applies in a contact sport context. In the case of Gauvin v. Clark, 404 Mass. 450, 450, 537 N.E.2d 94, 95 (1989), a hockey player was not held liable for injuring an opponent by hitting him with the butt end of his stick during a faceoff. The action was in violation of the rules of hockey, but not so egregious as to impose liability.

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