William D. Kickham
William D. Kickham
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Someone made a film in the recent past, about a couple that was accidentally left stranded on a ski lift, high above a mountain. Slowly freezing to death and unable to jump from the chair height, the couple faces a harrowing ordeal.

Something not too far from that happened just a few days ago here in New England,at Sugarloaf Mountain in Maine. A chairlift at the state’s tallest ski mountain derailed December 28, injuring eight people who plummeted 25 feet to the mountain below, and stranded almost 150 others for a few tense, and very cold, hours before they were rescued. Winds gusted as high as 25 miles per hour while rescue workers attempted to reach the stranded skiers. The eight skiers who were injured were transported to Franklin Memorial Hospital in Farmington, Maine. A spokesman for the ski resort said none of the injuries were considered life-threatening.

Initial reports indicate that a rope within the Spillway East chairlift, one of 15 chairlifts on the mountain, somehow derailed from the lift’s eighth tower about 10:30 a.m. As the rope loosened, about five chairs slammed on the snow-covered ground, while the rest remained suspended in the air, he said. The 150 or so stranded skiers were hoisted down from the damaged lift by the ski patrol, using a pulley system.

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Most people who know me, know that as a Massachusetts product liability lawyer, I have a natural mistrust for big business. I’ve seen too many examples of their disregard for consumers’ safety and related interests, whether dealing with insurance companies, big banks, auto manufacturers or drug manufacturers. If anyone doubts that, take a look at the U.S. Consumer Product Safety Commission’s work.

Today’s post reveals yet another chapter in how “Big Pharma” so often puts the bottom line first, and consumer interests, a distant second. To wit: Recent news that eleven drug manufacturers have agreed to a preliminary settlement in the United States District Court in Boston, within a lawsuit that alleged the companies artificially inflated the wholesale prices of approximately 200 separate drugs. The effect of this artificial price-spiking was (you guessed it) to increase the co-payments and full payments that consumers (as well as others) paid. The preliminary settlement amounts to almost $21.8 million dollars, which would be distributed to eligible consumers who paid either increased prescription drug co-payments, or full price for the prescription, from January 1, 1991 to March 1, 2008. Qualifying claimants would receive a minimum of $35 dollars back. The reason that the average payment to each claimant is so low, is that over 17 years, there are millions of persons who could qualify for the settlement distribution.

As part of standard practice within such settlements, the defendant companies denied any wrongdoing, but agreed to settle the claims “to resolve the litigation and avoid any further expenses and inconveniences” in continuing to contest the charges. (You can smirk now.) When will industries like “Big Pharma”, insurance companies, banks and others, be satisfied to make hundreds of millions in profits, without cheating the American consumer in the process? One may as well ask when will the sun stop rising in the east.

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Today is Thanksgiving Day, and so if this post can offer anything to be grateful over, perhaps you can say that you’re grateful you weren’t injured or killed by the negligence of the people who built Boston’s famous Big Dig tunnels. (You know, the same tunnels which ended up leaking millions of gallons of Boston Harbor water into the tunnels, due to more negligence and graft than I care to cover right now.)

One of several dangerous defects in the design and construction of those tunnels, centers on the guardrails/handrails that were designed and installed at the sides of the tunnels. The rails were placed there to protect tunnel employees who would regularly be walking at the sides of the tunnels, from falling into traffic. The rails are slightly more than 3 feet off the ground, about the same height of a motorcycle seat or car window – extremely low. The dangerousness of these tunnel handrails was first brought to light last February 2010, when The Boston Globe published a story on how many injuries and fatalities had resulted by drivers literally being sliced to death after being caught in the rails. Between 2005 and 2008, a total of seven motorists and passengers were killed after striking the handrails which line the Big Dig tunnel system. Most of the seven victims who died were dismembered by the rails in the accidents; one other person lost an arm but survived. Four victims were riding motorcycles and three deaths involved people in vehicles.

One of those victims was a Massachusetts state police trooper, Vincent Cila, who was killed on duty when he lost control of his motorcycle, and was dismembered by the guardrails. Cila’s family sued the Massachusetts Turnpike Authority (now known as the Massachusetts Department of Transportation,) and several private contractors involved in the design and construction of the tunnels and the guardrails, alleging negligence in the design and installation of these particular guardrails.

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In a hopeful sign that more aggressive action is being taken against schools, public and private, that do not begin to act aggressively to monitor and punish bullying, the U.S. Department of Education (DOE) earlier this week took some firm action.

DOE sent letters to hundreds of schools across the country, warning them of potential liability for federal civil rights violations if they do not institute strong prevention and punishment policies for this kind of behavior. DOE is warning schools that either tolerating or otherwise failing to adequately address ethnic, gender-based, or sexual harassment could violate federal anti-discrimination laws. If a school is found to have failed to institute policies and practices that act to prevent bullying in any of these areas, the school could be prosecuted under U.S. Civil rights laws (of which there are several). This kind of civil liability could result if, for example, it were shown that a student was bullied because of their gender or ethnicity, or even their perceived sexual orientation.

This type of federal civil rights violation might apply, for example, in the Massachusetts bullying cases of Carl Joseph Walker Hoover and Phoebe Prince, two tragic examples of suicides caused by bullying. Walker was allegedly bullied by students because he was perceived to be effeminate and gay (ironically, his mother has reported that he was not gay, simply fragile and vulnerable.) Phoebe Prince was targeted supposedly because she was a girl and was the recipient of ethnic slurs such as “Irish slut.” In the Prince case, six students have been charged criminally with various counts of assault and even statutory rape. But if it could be shown in cases like these that any of the individual defendants’ actions were based on a protected status under federal civil rights laws and it could be shown that the school failed to take adequate measures to prevent these violations, then federal civil rights charges may also apply in addition to any state law violations.

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The most recent example of how social media has come to bring the culture in this country down even further, is yet another tragic tale: Tyler Clementi, an 18 year-old gay student at Rutgers University, took his life earlier this week by jumping off the George Washington Bridge in New York City. The reason for his suicide: His roommate, Dharun Ravi, and Ravi’s classmate, Molly Wei, secretly videotaped sexual encounters between Clementi and another gay man, and then. according to published media reports, posted the video on YouTube. Humiliated and desperate, Clementi took his life.

The tragic sequence of events began with a Twitter post sent on Sept. 19 by Ravi: “Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay.” Later that night, according to investigators, Ravi used a video camera that he had set up in his dormitory room to live stream Clementi’s intimate encounter on the Internet. Three days later, Clementi, by all accounts a fine person and an accomplished violinist – killed himself by jumping from the George Washington Bridge into the Hudson River. A promising young life that could have brought beautiful music into the world, amidst all the ugliness this world can offer, gone. This is just the latest in a series of deaths by young American, all of which followed the online posting of vicious and hurtful material.

The Middlesex County, New Jersey District Attorney’s office have charged Clementi’s roommate, Dharun Ravi, 18, of Plainsboro, N.J., and Molly Wei, 18, of Princeton Junction, N.J., each with two counts of invasion of privacy for using “the camera to view and transmit a live image” of Mr. Clementi. In addition, Ravi was charged with two additional counts of invasion of privacy for attempting to post a similar live feed on the Internet on Sept. 21, the day before Clementi’s suicide. In New Jersey, the most serious charges carry a maximum sentence of five years.

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In my previous post on this story, I discussed the horrific events surrounding the murders of the wife and two daughters of Dr. William Petit, in the 2007 Cheshire, Connecticut home invasion murders. I’ll now discuss why I believe there is a distinct possibility that the Cheshire Connecticut Police Department may possibly be exposed to a civil liability suit for negligence and wrongful death, owing to the police department’s failure to act in a reasonable or timely manner to rescue the Petit family.

To begin with, a (very) quick review of the tort of wrongful death: As I explain on my website page dealing with wrongful death, this is a rather broad legal term that is used to describe a situation where the death of a person would not have taken place under the circumstances that it did, except for some negligence that occurred on the part of another party. The circumstances surrounding a “wrongful death” can be varied: A loved one might have died as a result of medical negligence, a motor vehicle accident, a construction injury, or a defective product. A wrongful death suit is usually brought by a family member or a representative of the deceased victim’s estate. (If such a suit were brought here, the party filing the suit and seeking damages would be the representative(s) of the estate(s) of Dr. Petit’s wife and two daughters. A wrongful death suit seeks the recovery of damages for the surviving family’s or the estate’s benefit as a result of the victim’s death.)

Were such a suit brought in this case, the plaintiff(s) would have to show that, but for the Cheshire Police Department’s failure to intervene in a timely manner to rescue Dr. Petit’s family, Mrs. Petit and Dr. Petit’s two daughters would not likely have perished. This could either be a daunting task, or a fairly easy one, and the success or failure of such a suit would likely come down to expert testimony. The plaintiff(s) would need to produce experts in the field of law enforcement and hostage situations, to show that the Cheshire Police Department’s failure to take any action other than to place themselves outside the Petit home, for almost 35 minutes, was unreasonable given the specific circumstances present.

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Normally, this story would be posted on my Massachusetts criminal law blog. But I feel that it deserves to be discussed here, for reasons illustrating the legal concepts of negligence and wrongful death. This is an appallingly frightening story, nightmarish in its reality, and stunning in what appears at this time to be shocking negligence on the part of a local police department in Connecticut.

On July 23 2007, at 9:17 AM, a woman walked into a Connecticut bank, and in the process of withdrawing $15,000.00 in cash, explained to a teller as calmly as she could, that her husband and two daughters were being held hostage by two men who had invaded their Cheshire, Conn., home the night before. She told the teller that the armed invaders assured her that if they did not receive this money, that her husband and daughters would be killed. Trying desperately to appear inconspicuous, the woman, Jennifer Hawke-Petit, explained to the teller that she had been driven to the bank by one of the kidnappers, that he was watching her from the car, and also told the teller that the kidnappers had told her (Mrs. Petit,) that if the police were called, the armed invaders would kill her family. The woman then collected the $15,000.00 withdrawn from the account by the teller, and left the bank.

The bank manager was alerted to what had just transpired, and immediately called the Cheshire, CT Police Department. At 9:21 AM, Cheshire Police first learned of the hostage situation. About three miles away, her husband William and daughters Michaela, 11 and Hayley, 17 were being savagely beaten and terrorized by the armed invaders. At 9:26 AM, Mrs. Petit left the bank and got into the car waiting for her. She was closely watched by bank employees, and the bank manager provided a description of the vehicle to Cheshire Police, who were also given Mrs. Petit’s home address. At that same time (9:26 AM,) police cruisers were dispatched to the Petit home, to “set up a perimeter.” At 9:27 AM, a Police Department Captain ordered his officers to not approach the home. For the next thirty minutes, not a single officer approached the Petit home, or did anything to save the Petit family. Within this very time frame, the Petit family was being traumatized, tied up, beaten with a baseball bat, and one of the daughters raped. Worse, during this entire time frame, no other authorities were alerted to this situation by the Cheshire Police Department – not the Connecticut State Police or the State Police SWAT Team, not EMS or medical rescue personnel, not the Fire Department.

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In my last post on this subject, I discussed the incredibly rare, recent jury verdict of $12 million that was awarded in a case involving a Norfolk County car accident. Almost all of Massachusetts, and especially Norfolk County, is notorious for finding against plaintiffs in Massachusetts personal injury lawsuits, so this verdict was widely noticed. Much of the reason for that very large and rare verdict amount, had to do with the perception that the defendant and his grandparents were not testifying truthfully in the case. But the other, equally important reason, was a legal doctrine known as “Negligent Entrustment.”

You’ll note from Part One of this post, that the driver of the car (Vittorio C. Gentile, Jr.) who injured the plaintiffs (in this case Douglas and Joseph Homsi,) was driving a 1999 Lexus SUV owned by his grandparents, Lydia and Vittorio Gentile. The younger Gentile had been found criminally responsible for the head-on collision in a criminal prosecution, and served jail time for that conviction. Evidence in the case showed that the younger Gentile had the tacit permission of his grandparents to use their car the night of this accident (evidence showed that they made the car keys available to him, and that he had driven their car in the two days preceding the accident.) Normally, in such a situation involving “permissive use,” the owner’s automobile insurance policy would provide coverage up to the policy limits on that vehicle, and if a jury verdict or pre-trial settlement was reached that exceeded the limits of that auto policy, it might be possible to pursue the vehicle owner’s homeowner’s policy and any umbrella coverage provided by that homeowner’s policy. And normally, it would be the driver’s conduct and actions that would guide a jury to determine liability and the extent of any damages. But in an odd twist, in this case it was the conduct of the driver’s grandparents that caused this jury to return the verdict that they did. This was largely because of the doctrine of Negligent Entrustment.

You see, evidence was introduced to show that Vittorio’s grandparents were well aware of his horrid driving record, together with his general personal history, which apparently did not reflect a high level of responsibility. Despite this, they made their car available to him. In court documents, it was revealed that the elder Gentiles denied that they were in any way aware of their grandson’s poor driving record, and also denied that they had either made their car available to him for his use, or that they gave him permission to drive it. Fortunately for the plaintiffs, their lawyer was smart enough to obtain documents that showed: 1) Not only were the grandparents aware of their grandson’s record of previous driving accidents, they were so aware of it that they held a special meeting with their auto insurance agent, following high premium surcharges they were paying due to their grandson’s inclusion on their policy as a “covered driver.” The plaintiffs’ attorneys alleged that the younger Gentile had been hit with so many surcharges for operator citations, license suspensions and accidents dating back to 1997, that his grandparents had him removed him from their insurance policy even though other grandchildren were still covered and permitted to use their vehicles. It was reported that video deposition testimony of the insurance agent who issued multiple auto vehicle policies for the grandparents proved this, and was especially damaging to the grandparents’ claim that they had no idea their grandson was a high-risk driver. This evidence established knowledge and awareness on the grandparents’ part of the dangerous driving record of the defendant.

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In an encouraging sign that juries in Massachusetts have not completely bought the fallacy of “tort reform” and lost sight of the meaning of civil justice, a Norfolk County Superior Court jury recently awarded a $12 million plaintiff’s verdict in the case of a Massachusetts motor vehicle accident that resulted in horrific injuries for the injured parties who brought suit against the at-fault driver.

The case, Silviero v. Gentile, Norfolk Superior Court No.: 2007-212, resulted from a 2006 crash in Milton that left two men, brothers in their 60’s who lived with each other, devastatingly injured for the rest of their lives. The case is noteworthy not only for the large verdict, (especially in Norfolk County, which has not been known for producing large plaintiff’s verdicts,) but for the punishment the jury obviously felt was warranted in light of the defendant’s clearly false testimony in the case.

The two brothers who were victims in this Milton Massachusetts car accident case, Douglas and Joseph Homsi of Needham, were driving on Blue Hill Avenue in Milton at around 2 a.m. on Dec. 10, 2006, when a speeding Sport Utility Vehicle (SUV) driven by (then) 26-year-old Vittorio C. Gentile Jr. of Canton, swerved across the double yellow lines in the roadway and collided head-on with the Homsi brothers’ vehicle. The resulting impact was so severe that rescue workers had to use the Jaws of Life to pry the brothers from the twisted wreckage. Joseph Homsi, who was the passenger, suffered a broken sternum and fractured ribs, as well as internal injuries. However, his brother, Douglas Homsi, who was the driver, suffered the worst from the impact, sustaining severe multiple bone fractures as well as injuries to his liver, spleen and other organs, which, collectively, left him unable to breathe or eat without assistance. The combination of these injuries later caused Douglas to suffer a stroke, which left him unable to speak. Making the result of Douglas’ injuries even more tragic was the fact that Douglas served as an informal caretaker for his brother Joseph, who suffers from mental disabilities. That is one of the reasons why the two brothers lived together in their Needham home.

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Almost every other day, it seems, we hear of another case in the news where someone has been “tasered” by police or security personnel. The modern suspect-control device has grown in popularity with many police departments across the United States, as well as U.S. military and some private security agencies. The device’s advocates, led by its manufacturer, Taser International, argue that the device is safer than using mace or pepper spray, because mace can miss its target and harm bystanders since it’s applied in aerosol form, while a Taser stun gun can’t harm anyone other than the person who is tasered. As a matter of physics, that may be true, but the electric charge that most Taser stun guns are set at, can’t be altered on-site just prior to use, resulting in a standard electric shock being administered to most suspects being shocked. Unlike the old Star Trek TV series, Captain Kirk doesn’t give out an order to preemptively adjust the guns on a “stun” or “kill” setting, depending on the threat level.

The devices are in theory designed to temporarily stun someone, just long enough for police or security personnel to subdue and handcuff or restrain the suspect – but theory and practice exist in two different worlds, and it doesn’t take a genius to see that this one-size-fits-all approach was eventually going to cause some tragic results.

Four years ago, a Watsonville, California man was shocked with a Taser stun gun by a police officer in that city. The victim, Steven Butler, 49, was tasered by an officer using a Taser X-26 device, after Butler reportedly became combative with the officer when asked to get off a bus he was riding on. Butler was alleged to have been drunk and off his psychiatric medication in October 2006 when the incident occurred. After being tasered, Butler went into cardiac arrest and stopped breathing. It took medical personnel 18 minutes to resuscitate him and, as a result, Butler suffered an anoxic brain injury (loss of oxygen to the brain.) Butler was left with substantial brain damage and has no short-term memory. Additionally, he suffered a loss of mobility and the loss of his motor skills. As a result of the injury he will require around-the-clock care for the rest of his life, and cannot be left unattended, according to pleadings filed in the suit.

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