William D. Kickham
William D. Kickham
Construction Accident
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Almost everyone knows about the tragedies of drunk driving. What a lot of people don’t know about, is the subject of civil liability that can attach to drunk driving. When people do think of this subject, they commonly think of the damages that a victim of drunk driving might be able to receive from the insurance company that insured a car driven by the drunk driver. That’s very common in Massachusetts car accident cases, and it’s an area that our firm specializes in.

But what a great many people don’t know about is the liability that can attach to the business or other source that provided or served the alcohol to the drunk driver. Categorically, these sources are usually restaurants, bars & taverns, or non-commercial hosts of parties, receptions or similar events. Civil liability law permits individuals who are injured as the result of negligent service of alcohol to bring suit against any of these categories of potential defendants. When the defendant is a business such as a bar or restaurant, the liability is usually based on “Dram Shop Laws“, which are specific state statutes that impose liability on liquor license holders or their promotional partners (known legally as “licensees.”) Such statutes are designed to encourage responsible alcohol service, and to provide a mechanism for third parties to file suit for injuries or deaths that result from a liquor law violation. When the defendant is not a business such as a restaurant or bar, but is instead a homeowner who threw a party or function at which alcohol was served, and injuries resulted allegedly due to over-serving someone alcohol, the liability is known as “social host liability.” This liability stems from specific laws stating that social hosts (i.e., non-commercial hosts of a party or function, etc.) who provide alcohol to their guests can be held legally responsible for injuries or damages that may result to someone if alcohol has been provided irresponsibly to an attendee of the function.

In addition, suits for damages resulting from the over-service of alcohol can also be based on common negligence. This body of law defines “negligence” as the failure to act in a manner that a reasonable person would act under the same or similar circumstances. These types of lawsuits can be brought by innocent victims who are injured by an intoxicated person, and they can also be brought by the intoxicated person himself. Juries can award monetary damages to compensate victims for the damages they suffered due to the intoxicated person, and sometimes, they can issue punitive damages to further punish the defendant when particularly egregious evidence is presented. Awards can range from a few thousand to millions of dollars.

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“A dog is man’s best friend.” That maxim has a lot of truth in it – dogs truly can be the kind of friend many people wish they had in their human relationships: Loyal, understanding, forgiving, compassionate. I myself have always loved dogs (though the less noise they make, the better.)

But it’s also true that man’s best friend can get ugly at times – often very unpredictably. When that happens, when a dog attacks a person – horrific physical and psychological injuries can often result. A dog’s teeth are extremely sharp, and their ability to inflict devastating injuries was given to them by their generic ancestors – wolves and prairie dogs. Most dogs can bite with incredible speed and ferocity. Their teeth are built to tear the flesh off of their victims or attackers with their powerful jaws. That’s not how most people see their own or their neighbor’s pet, but that is how evolution created them. Clearly, some breeds, such as pit bulls, are notorious for being unpredictably violent, but as a Dedham, Massachusetts dog bite lawyer, I can assure you that all dogs have it within them to be violent if provoked.

An example of this was seen recently with the pre-trial case settlement of a dog bite case in Massachusetts. The plaintiff was a 23-year-old woman, who was invited to a friend’s home along with two other friends. Why were they invited? To bid farewell to the friend’s dog, which was scheduled to be euthanized (i.e., put to sleep) the next day. Sounds kind of touching, doesn’t it? It would have been, but for the exception of one slight detail: The plaintiff’s friend never told the plaintiff that the reason the dog was going to be put to sleep, was that the dog had attacked her (the friend) just one week earlier. Just a minor detail ….

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Much of life can be cruel, and even ironic. So it was that a 17 year-old boy, who was only weeks away from getting his much-awaited driver’s’ license, was killed last Thursday while skateboarding in Taunton, Massachusetts. Nicholas Silva-Thomas was killed by a car driven by a hit-and-run driver, as yet unidentified.

The youth was skateboarding on Bay Street in Taunton, after leaving Watson Park with other skateboarding friends to go to a pizza shop. At about 9:40 PM, as Silva-Thomas was skateboarding on a street he hoped to be driving on in the near future, he was struck by a driver who fled the scene and abandoned the youth, lying in the street with a fatal head injury. Witnesses said that not only did the driver leave the scene, he or she turned their lights off while doing so, to make the license plate on the car harder for any witnesses to see. No one was able to identify the license plate as the car sped away. Hopefully, there really is a thing called hell, and hopefully, there is a spot reserved for people like this driver.

This is a tragic story, but if it can do any good at all, let it illustrate the enormous and grave dangers connected with not only skateboarding as a sport, but skateboarding and Massachusetts motor vehicle accidents. I am fully aware that skateboarding has become very popular in recent years. When I was a kid, in the 1970’s and ’80’s, skateboarding was popular, then it fell out of vogue. In the past ten years or so, it’s come back with a rage. Michael J. Fox made it popular in 1986’s “Back To The Future” – though his skills were computer-animated. I understand the thrill of sports like this, and I understand kids (like many adults) want thrills. The problem is that seemingly all caution is thrown to the wind with so many of these activities: A reminder: No matter how adept at using a skateboard, no one can navigate, turn, or stop on these things with the same precision as even a bike. In an emergency, you cannot evade or escape a collision with anywhere near an “acceptable” margin of safety while on a skateboard.

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Scientists at the Institute for Aging Research at Hebrew SeniorLife in Boston, Massachusetts released a study today that indicates that nursing home patients who are given SSRI antidepressants are at increased risk of suffering falls. SSRI’s are a class of anti-depressants known as Selective Serotonin Reuptake Inhibitors, which in general act to increase levels of serotonin in the brain. Common names for these drugs include Prozac, Paxil, Lexapro, Celexa, and Zoloft.

The study, published in the Journal of Gerontology: Medical Sciences, examined 1,181 cases of nursing home falls. The study reportedly discovered a five-fold increase in patient falls within 48 hours of receiving a new SSRI, or being administered higher doses of an existing SSRI that they were already taking. However, the rate appeared to decrease each day after the prescription change. In a press release, Dr. Sarah D. Berry, a scientist at the Institute for Aging Research of Hebrew Senior Life and the lead author of the study, said that “Our results identify the days following a new prescription or increased dose of a non-SSRI antidepressant as a window of time associated with a particularly high risk of falling among nursing home residents.” Berry theorized that the increased risk of falling after receiving an SSRI might be due to coordination problems caused by the medications. Berry commented that the benefits of these medications may still outweigh the increased risk of falling, so long as patients are closely monitored in the days immediately following administration of the drugs.

These findings are important because far too many nursing home patients are prescribed antidepressants, because they exhibit symptoms of depression. Ask yourself: What nursing home resident have you ever met who wouldn’t have reason to be depressed? If the average American knew what life (or more accurately, “existence,”) was really like in a nursing home, they’d be shocked. The response of most Primary Care Physicians and nursing home medical directors to dealing with the predictable depression that results when a patient is placed in a nursing home, is to put the patients on yet another medication – antidepressants. This practice has even increased in the recent past, now that medical studies have proven that administering anti-psychotic medications to nursing home residents suffering from dementia produces an increased risk of death to patients suffering from dementia. For years, patients suffering from senility and Alzheimer’s Disease were routinely prescribed anti-psychotics, due to the symptoms the disease would cause. Finally, medical studies proved that giving anti-psychotic medications to dementia patients could be fatal, so doctors switched over to prescribing these same patients antidepressants. Now, new research shows that antidepressants can cause elderly patients to lose their balance and suffer debilitating falls.

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A Worcester, Massachusetts gun manufacturer has agreed to pay the families of two men, one of whom was killed and one who was wounded, to settle a Massachusetts wrongful death suit that resulted after the men were shot from a gun manufactured by Kahr Arms.

Before you wonder why a gun manufacturer would be named as a defendant in a civil suit for damages stemming from the use of a gun that it manufactured: Remember, there is always (as here) a story behind the story: You see, the man who shot the victims was an employee of Kahr Arms, who stole the gun from his employer and then used it to shoot the two victims outside a Worcester nightclub in 1999. That employee had a criminal record that his employer never checked into, and the suit alleged that Kahr should have conducted employee background checks prior to hiring the employee, who was quite dangerous. The suit also claimed that the company should have employed better employee theft-prevention methods to prevent an employee from stealing a gun for illegal use, such as installing metal detectors at the plant to prevent employees from stealing the guns they manufactured.

Guzman’s family and the man who was wounded filed a wrongful death suit against Kahr Arms, and eventually Kahr Arms agreed to pay $600,000 to settle the case before going to a jury. As a Boston/Dedham Massachusetts wrongful death lawyer, it’s easy for me to see why the defendant settled this case. Instrumental in the litigation and settlement of the case was the Brady Center to Prevent Gun Violence in Washington, D.C., named after President Ronald Regan’s Press Secretary who suffered a permanent brain injury in the assassination attempt against Reagan. The Brady Center termed the settlement the largest damages payment to date made by a gun manufacturer accused of negligence in the criminal use of a gun.

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Nursing home abuse and neglect is, tragically, still a “dirty little secret” for most of society. While public consciousness has been raised in the past two decades due to the efforts of plaintiffs’ tort lawyers and brave families, I don’t think enough people, or enough media, truly appreciate just how pervasive this problem really is. Massachusetts nursing home abuse and neglect (and nursing home abuse that occurs everywhere) is caused by the willingness of far too many nursing home companies, to allow the safety and well-being of their paying residents to suffer, in the name of maximizing their profits.

Making matters worse, corporations that own nursing homes in Massachusetts still cannot be held criminally responsible for the acts of their employees. Note: I am talking here about a corporation being held responsible for criminal acts, not specific individuals. While a specifically named nursing home employee who is accused of committing a criminal act against a nursing home resident, such as an assault and battery, can be criminally convicted, the corporation still, as of this time, cannot be.

In my view as a Norfolk County Massachusetts nursing home abuse lawyer, that itself ought to be a crime. The Massachusetts Attorney General tried to change that law in a novel criminal indictment a few years ago. Sadly, that noble effort did not succeed. The indictment charged a parent corporation that owned a nursing home with involuntary manslaughter and criminal neglect, based on its collective knowledge of the conduct of several of the corporation’s employees. What made the case novel was that the indictment did not single out any one employee of the corporation for criminal acts — instead, the corporation itself was indicted. This legal approach to indicting a corporation for the criminal acts of its unnamed employees, had never before succeeded. The case was Commonwealth of Massachusetts vs. Life Care Centers of America. This case represented the first attempt by the state of Massachusetts to criminally indict a corporation for manslaughter and neglect in the death of a nursing home resident.

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In the past few weeks, four people have died in swimming pool accidents in Massachusetts – three children and a 36 year-old woman (the woman was found in a state-operated swimming pool, apparently several days after she died.) The Boston Globe and other media have covered these stories extensively. These unfortunate events illustrate the inherent risks that are associated with swimming pools – an area of law known as “premises liability.” Whether the pool is an in-ground pool or an above-ground portable pool, as a Boston/Dedham Massachusetts injury lawyer, I can assure you they are dangerous.

Whether in-ground or above-ground, the following safety and liability prevention measures should be taken by all property owners who have a swimming pool:

• The pool should be surrounded by a barrier such as a fence, at least four feet high, equipped with an alarm that would signal if someone is in or near the pool.

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This past March, a four year-old boy was killed in an escalator accident at a mall in Auburn, Massachusetts. The boy, Mark DiBona, was pulled by the handrail of the escalator into a 6 ¼ inch gap that existed alongside the escalator. The boy was pulled into the gap that abutted a Plexiglas barrier, and he fell one story to the floor below, suffering devastating head injuries. After doctors determined that the boy suffered extensive and irreversible brain damage, and essentially declared him brain dead, the boy’s parents donated his organs.

Escalator safety inspections are normally conducted by the state. Media reports following this incident caused the Patrick administration to conduct a review of not only when this particular escalator was last inspected and by whom, but also a statewide review of escalator safety inspections in general. This inquiry led to disciplinary action being taken against not only the two inspectors that were responsible for the Auburn mall escalator, but approximately two thirds of the state’s total escalator inspectors, for approving escalators with safety violations that were similar to those that caused Mark DiBona’s death.

Who is legally liable for injuries or death in such a situation? The answer is, potentially a number of different parties. And who brings the suit? When the case involves a fatality, the answer is the executor of the victim’s estate – in this case, the parents of this boy, on behalf of his estate. The potential defendants in a case like this, can be several: The designer of the escalator; the manufacturer of the escalator (if different); the company that installed the escalator; the property owner of the mall, the retailer in whose store the escalator was operating in; the Commonwealth of Massachusetts (who employed the escalator inspectors); and possibly other potential defendants. The legal reason why so many potential defendants are named is because each party may have played a role in the constellation of events that ultimately led to the injury or death that is the result of this suit.

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When someone is injured, one of the first questions that must be answered, among others, is whether or not the injury took place in connection with the victim’s employment. If the injury inarguably took place at work or while on the job, then the expertise of a Massachusetts workers compensation lawyer is needed. If the injury did not take place at work, then the injured victim should seek the advice of an experienced Massachusetts personal injury laywer.

Sometimes, the issue of whether an injury occurred on the job or off, isn’t so clear-cut. The Massachusetts Supreme Judicial Court (SJC) is now considering a case that could have a significant impact on the liability of contractors and subcontractors for Massachusetts construction site accidents and Massachusetts personal injuries. The case, Wentworth v. Becker, stems from a 2005 explosion at a home construction site in Newburyport, Massachusetts, in which a father and son were critically injured. The father, Timothy Wentworth, 51 at the time, died from burns he suffered in the explosion. His son Ezekiel, then 24, survived but suffered severe, disfiguring burns. The Wentworths were spraying a waterproofing material at a home construction site when a pilot light from a water heater ignited fumes from the spray.

According to records filed in the case, a Newburyport builder by the name of Henry C. Becker hired the Wentworth’s’ North Berwick, Maine, company as a subcontractor on the Newburyport construction job. The Wentworths’ company did not carry workers’ compensation insurance, which pays for medical costs and lost wages when a worker is injured or killed while on the job. Massachusetts law, specifcally M.G.L. Chapter 152, requires most employers to provide workers’ compensation insurance to employees and also requires most employers to make sure that subcontractors are covered in most situations. The Massachusetts Department of Industrial Accidents administers most of these regulations. Cheryl Wentworth, widow of Timothy and mother of Ezekiel, filed a workers’ compensation claim against Becker, asserting that he had permitted an uninsured subcontractor to work on the job. Becker’s company agreed to a settlement in that claim, according to court records. Cheryl Wentworth later hired a Massachusetts personal injury lawyer (note: not this firm,) to sue Becker on top of the previous workers compensation claim, alleging negligence in the death of her husband and the injuries that her son suffered, and that’s where things got really thorny. Becker fought the suit in court, arguing that Massachusetts law doesn’t allow subcontractors such as the Wentworths, to collect workers’ compensation insurance and maintain a Massachusetts personal injury suit for damages. Becker argued that under the “exclusivity provision” of the Massachusetts Workers Compensation statute – an injured worker must choose one forum (a personal injury suit) or the other (a workers’ compensation claim, which is a much more streamlined, administrative process.) Becker argues that the Wentworths could not choose both, and that they had already chosen a workers compensation claim. Two years ago, an Essex County Superior Court judge, Thomas R. Murtagh, found in favor of Becker.

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Texting while driving automobiles has been the focus of a lot of conversation in the recent past, in several states. In Massachusetts alone, a new law against texting while driving became effective in 2010. Most people, though, wouldn’t expect that the problem of texting while driving would be witnessed on a subway car.

Yet in 2009, that’s exactly what happened on a Green Line subway car operated by a Massachusetts Bay Transportation Authority (MBTA) driver. The subway car driver had been sending a text message to his girlfriend while accelerating the trolley from zero to 25 miles per hour along 586 feet of subway track. The driver went through a yellow subway light and ran two red subway lights before colliding with a stationery trolley with its brake lights on, in the Government Center MBTA stop. The crash injured 68 people and caused nearly $10 million in MBTA property damage. Samantha Mattei, 21, was one of those 68 injured. As a result of the crash, she suffered a broken back, a serious concussion, nerve damage, and lacerations to her face. She also suffered other injuries causing vertigo, nausea, and constant headaches. Two years after the accident, she still walks with a cane. Because she cannot drive a car due to her injuries, her parents must drive her everywhere. Because she has difficulty concentrating on her academic studies, she says she is on the verge of losing her scholarships.

So it came as no surprise that Ms. Mattei last week filed a lawsuit against the MBTA and Aiden Quinn, the subway car operator, in Salem Superior Court. In filing her suit, Ms. Mattei told the Boston Globe that “I was injured as a result of something that was perfectly preventable. As a result of negligence, I was personally affected in a way that has cost me money, time, and many parts of my life. I would like to see things change for the better.” The Massachusetts personal injury lawsuit seeks $51,425 as compensation for medical bills and lost wages, as well as damages for pain and suffering. If the case is not settled prior to trial, a jury would decide how much, if any, to award for pain and suffering. MBTA officials declined to comment on the lawsuit, citing its policy not to comment on pending litigation. A spokesman did note, however, that the trolley operator, that Aiden Quinn, was fired by the MBTA, and pleaded guilty last December to negligent operation of the trolley, a misdemeanor.

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