A Suffolk County jury has awarded $2,025,000 to an iron worker who suffered a disabling shoulder injury on a construction site.

May 7th, 2013

 

A Suffolk County jury has awarded $2,025,000 to an iron worker who suffered a disabling shoulder injury on a construction site.  The injured worker, Lee Arnold, was working at the Blackstone Valley Water Treatment facility in September, 2009, when he slipped and fell on debris that had been left in a walkway.  Mr. Arnold alleged in the suit that employees working for the general contractor, Walsh Construction Company, had left the debris on a catwalk, in violation of job site safety standards.  Mr. Arnold suffered a severe injury to his shoulder and ultimately underwent three surgeries but has been left with a permanent impairment that renders him unable to return to iron work.  An economist testified that Mr. Arnold’s economic loss was in excess of $1.6 million.  According to Mr. Arnold’s attorneys, Claudine Cloutier and Loren Laskoski, of Keches Law Group, in Taunton, the verdict will be reduced because the jury also found that Mr. Arnold was partially at fault for the incident.

 

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OSHA Fall Prevention Campaign

May 3rd, 2013

by Kevin P. DeMello, esq.

With the 2013 construction season in full swing, OSHA, NIOSH and the National Occupational Research Agenda (NORA) Construction Sector Councilhave announced the re-launch of their construction fall prevention campaign.  Their fall prevention campaign was a great success in 2012, reaching hundreds of thousands of workers with the simple message: Safety Pays and Falls Cost.  The three campaign websites received over half a million page views last year.  Campaign partners and stakeholders also spread the campaign’s message to thousands of construction workers and employers through e-mail blasts, radio and television broadcasts, webinars, publications, trainings and outreach events.

Still, there is work to be done.  Falls continue to be the most fatal hazard in the construction industry, accounting for almost one in every three construction worker deaths in this country.

Printed campaign materials are available by contacting Frank Meilinger, OSHA’s Director of Communications at Meilinger.Francis2@dol.gov or by calling 202-693-1999.  Campaign publications, videos and other resources are available on the three official campaign websites: www.osha.gov/stopfalls/, www.cdc.gov/niosh/construction/stopfalls.html, and www.stopconstructionfalls.com.  OSHA’s campaign website, www.osha.gov/stopfalls/ is now available in both English and Spanish.

 

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Good Samaritans in Massachusetts

April 29th, 2013
by Barbara M. Callahan, Esq.

Did you know that Massachusetts has a Good Samaritan law which protects ordinary citizens who act out of kindness and moral responsibility by helping in emergencies?

Massachusetts General Laws Chapter 112 Section 12 V states that “any person whose usual and regular duties do not include the provision of emergency medical care, and who, in good faith, attempts to render emergency care including, but not limited to, cardiopulmonary resuscitation or defibrillation, and does so without compensation, shall not be liable for acts or omissions, other than gross negligence or willful or wanting misconduct, resulting from the attempt to render such emergency care.”

This law, and similar ones in many states will shield you as an ordinary citizen against liability if something goes wrong if you render aid to someone in distress.  To obtain the benefit of the law, you must act voluntarily, without the expectation of monetary or other compensation in the event of an emergency and the person in trouble must not object to your help.  If that person objects and something goes wrong, the Good Samaritan law would not apply to protect you.

Separate statutes protect emergency medical services personnel who act in good faith in the performance of their duty and  physicians and nurses who in good faith voluntarily render emergency care or treatment outside of their practice.

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Importance of Adequate Insurance Coverage

April 26th, 2013

by Kevin P. DeMello, esq.

I have handled several cases recently where defendants in negligence cases either did not have adequate insurance, or had no insurance at all. This situation is unfortunate for both the injured party, and the defendant. While the injured party may not have much in the way of proceeds from such litigation, the defendant can be placed in a very precarious financial situation. In one case, a delivery driver fell do to a defective railing in a condominium common area. In that case, the condo association failed to provide liability insurance, and lacked sufficient assets to cover the injured party’s damages. As a result, each of the condo unit owners became personally liable for the injured party’s damages. That situation led to the unfortunate scenario of the condo unit owner’s property being subject to seizure and sale.

These kinds of situations can be avoided by making sure adequate liability insurance coverage is available. If you own property, you should consult an insurance agent regarding liability insurance for the property. If you own or drive a vehicle, make sure that you have adequate coverage. In Massachusetts, the minimum required coverage is only $20,000 per person, and $40,000 total per accident. In many cases, this amount is woefully inadequate. If you have a good driving record, the expense of additional insurance coverage is minimal and well worth it if the unexpected happens.

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OSHA Quicktakes

April 18th, 2013
According to OSHA, falls are the leading cause of death in the construction industry.  In 2010, there were 264 fall fatalities out of 774 total fatalities in construction. OSHA is working with the National Institute for Occupational Safety and Health and the National Occupational Research Agenda to get the word out about how to “Plan, Provide, Train” to prevent fatal falls. To learn more, visit www.osha.gov/stopfalls.
 
The most recent issue of OSHA’S Quicktakes highlights ladder safety.    

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Individual Rights on Personnel Files

April 17th, 2013

By: Brian C. Dever, Esq

In this day in age, most employers do annual reviews of employees. That review is then put into a personnel file. That personnel file is often discoverable in a personal injury lawsuit. It frequently comes up if the issue is how well someone was doing at work, whether they were likely to stay with that employer and get additional pay raises. It goes to the diminution earning capacity issue. That is a key element of a personal injury claim. Consequently, the question is does every employee have a right  to see their own personnel file?

Massachusetts has a personnel record law that gives individuals the right to see what is in their own file. The file produced must contain all employee performance evaluations including but not limited to employee evaluation documents, writings of any warnings of substantiated performance, list of probationary periods, waivers  signed by the employer, copies of data of termination notices and other documents relating to disciplinary action. There is an exception if the company you work for has fewer than 20 employees. You are also entitled to see your personnel record file if you have received noticed that your employer has added information, if you know that the information is and has been used or maybe used to negatively effect your qualifications for employment, probation transfer additional compensation or the possibility that you will be subject to disciplinary action. You can do that up to twice a year. Your employer has up to five business days following a written request to provide you that information. You also have the right to disagree and to submit a written statement requesting that it be removed or corrected or you can submit a written statement explaining your position. That statement then becomes your permanent personnel record.

It is important for you to keep up to date on your personnel file and to know what is contained in the file.  Knowing this information can help you and your attorney keep better record of your potential issues relative to your lost earnings and your employment history.

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Springtime in New England

April 9th, 2013

By: Brian C. Dever, Esq.

With the springtime growing season upon us, the Massachusetts Highest Court has issued four different rulings clarifying marijuana laws in Massachusetts. Not to be outgunned, Rhode Island has recently enacted changes to their marijuana laws.  For those of you that have heard their teenage children explaining to you that marijuana is legal,  the following is the summary the Massachusetts and Rhode Island marijuana laws.

In 2008, Massachusetts voters decriminalized the possession of one ounce of marijuana or less. Decriminalizing means that someone caught with one ounce or less of marijuana will be given a fine similar to a parking ticket but there will be no criminal record. This past month, the SJC in Massachusetts ruled on four different cases.  In one of the cases,  a group of young people were at the Hemp Fest at Boston Common and they were sharing a joint between friends. The police spotted them and searched one of the individuals backpack turning up 10 small bags of marijuana weighing less than an ounce in total. The SJC said that the charge needed to be thrown out because the police had targeted the individual when they spotted him committing civil infraction. Sharing a joint is not a crime. The SJC ruled that the sharing of marijuana is akin to simple possession and does not constitute a facilitation of drug transfer, from a seller to a buyer.  That facilitation remains the hallmark of drug distribution which is criminal.

In another decision, the police searched a car after the car had been stopped and smelled like marijuana. When asked, the driver of the car admitted that she was in possession of a small amount of marijuana. The police searched the car and found a gun.  The SJC ruled that the search was not justified given that the contraband sought was a small amount of marijuana.  On the other hand, the SJC ruled that the police did have a right to search her car to make sure the driver was not operating under the influence of marijuana which remains a criminal offense akin to drinking and driving.

Finally, Massachusetts ruled that an individual who sets up his home to grow marijuana indoors with the necessary lighting could be prosecuted for cultivating marijuana even though the amount of marijuana seized was less than an ounce. The  court ruled that cultivation of one ounce or less of marijuana regardless of its intended use is a criminal offense.

Rhode Island became the latest state to roll back criminal penalties for minor marijuana possession and replacing that with a $100.00 civil fine. In Rhode Island, it is a criminal offense to drive while under the influence of marijuana. However, adults caught with an ounce or less of marijuana will face the $100.00 civil fine and a hearing at the state’s traffic court. Minors will be required to complete community service and a drug awareness class. However, the incident will not appear on an individuals criminal record.  However,  anyone cited three times within 18 months will face misdemeanor charges.

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Civil Rights Actions Under Section 1983

April 8th, 2013

by Barbara M. Callahan, Esq.

Every American citizen has certain civil rights provided for by the United States Constitution.  But what happens when your civil rights have been violated? The mechanism for a citizen to enforce these rights is a claim under the federal civil rights statute, 42 U.S.C. § 1983.  A claim under this statute is generally called a “Section 1983″ claim.  Section 1983 can be invoked whenever a state or local government official acting under “color of law” violates a federally guaranteed right.  That statute states in relevant part:

42 U.S.C. § 1983 – Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

For example, Section 1983 claims can be brought to redress violations of the following federally protected rights:

  • Violations of the First Amendment’s right of government employees to speak out on matters of public concern (retaliation against government whistleblowers );
  • Violations of the Fourth Amendment’s protection against unreasonable search and seizure (includes false arrest, excessive force and police brutality claims);
  • Violations of an individual’s Eight Amendment (prisoner) and Fourteenth Amendment (detainee) rights to adequate medical care (when the government shows deliberate indifference to a serious medical need);
  • Violations of the Fourteenth Amendment’s Due Process and Equal Protection Clauses when the government treats one class of people differently than another class of people (racial discrimination).

Section 1983 can be also be used to enforce rights based on other Constitutional rights and federal statutes, such as the prohibition of public employment discrimination based on race, color, national origin, sex and religion.

Often, a Section 1983 civil rights claim can be made in conjunction with other claims.  There are certain advantages to bringing a Section 1983 claim including the award of reasonable attorney’s fees to the prevailing claimant and the entitlement bring a suit in federal court, where oftentimes a case moves more quickly than in state court. In certain cases, including wrongful death cases, punitive damages may be awarded (which are not available under Massachusetts’ wrongful death statute.

 

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Boston’s Taxi Industry and Personal Injury

April 2nd, 2013

By Jason R. Markle

Anyone who has ever ridden in a Boston taxi knows that they can be dangerous. The drivers are often in too much of a hurry to follow the rules of the road and those hard plexiglass or metal partitions are only about eighteen inches from your face. But even scarier than that is a recent three-part article by the Boston Globe which, in part, details just how scary a taxi ride can become.

In An Empire Built of Ambition and a Very Hard Edge, the Globe staff found that personal injury claims arising out of taxi accidents are rigged against accident victims. For starters, despite being under the umbrella of large corporations, the large majority of taxis in Massachusetts are extremely under-insured.

According to the Globe, about 80% of taxis operate with the state-minimum bodily injury insurance coverage of only $20,000 per person, $40,000 per accident. According to the state Division of Insurance, that’s less coverage than 85% of personal vehicles in Massachusetts, even though taxis have seven times as many accidents as typical personal vehicles. That coverage is also less than half of the $50,000 coverage required of bicycle messengers in Boston, and a tiny fraction of the $1 million coverage required for livery vehicles such as Boston Coach. And sadly, these minimum insurance policies are allowed because the Legislature has repeatedly ignored proposals to mandate more coverage for taxis.

In addition, large taxi companies shield themselves from liability from claims by calling taxi drivers “independent contractors,” rather than employees. As a result, accident victims often have no recourse against the larger corporate entities. To put this in perspective, Boston Cab controls one out of every five taxis in Boston and has taxi licenses worth more than $220 million. Yet, even when a taxi driver kills or maims a passenger or pedestrian, Boston Cab fights tooth and nail to limit it’s liability to the state-minimum insurance coverage of $20,000, if they even agree to pay that amount. These tactics lead to costly lawsuits that go on for years and clog up our courts.

As the Globe points out, the solution to this problem is simple. We need to demand of our legislators that they provide us with more protection. New York and Los Angeles each require minimum insurance coverage of $100,000 per person, $300,000 per accident. Dallas requires a minimum of at least $500,000 in insurance coverage.

For years, the Massachusetts Academy of Trial Attorneys and the Massachusetts Bar Association have advocated for increased minimum coverage for taxis. Insurance associations, such as Property Casualty Insurers Association of America, have fought that increase, stating that they generally oppose higher insurance minimums because insurers will have to pay larger claims. But what’s more important, insurance companies’ profits or our safety?

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Garage Sale Dangers

April 1st, 2013

by Barbara M. Callahan, Esq.

Spring has arrived and with the good weather comes spring cleaning and yard sales.   While yard, garage and tag sales are great places to find that bargain (and for sellers to make a little money) according to the Consumer Product Safety Commission (“CPSC”) dangers lurk amongst those tables and boxes.The Consumer Product Safety Commission (“CPSC”) was created in 1972 by the Consumer Product Safety Act  to “protect the public against unreasonable risks of injuries and deaths associated with consumer products.”  It does so by creating and enforcing mandatory and voluntary safety standards.  You often hear about the CPSC when it issues recalls of certain consumer products under its jurisdiction.

What you may not know is that the CPSC’s laws and regulations apply to ANYONE who sells or distributes consumer products.  That includes those who hold garage sales, who offer items on Craigslist or who operates a table at the flea market.

In 2008, Congress passed the Consumer Product Safety Improvement Act.  According to the CPSC website,

“The Consumer Product Safety Improvement Act of 2008 (CPSIA) changed the used marketplace significantly. For example, it is now illegal to sell:

• Products that have been recalled by CPSC (unless the products have been repaired in accordance with the recall);

• Most cribs manufactured before June 2011;

• Children’s metal jewelry that does not comply with the federal limit on lead of 100 parts per million;

• Products intended primarily for children age 12 or younger with lead content known to be over the specified amount;

•  Durable infant and toddler products such as play yards, infant walkers, bath seats, bed rails for toddlers, and others that appear unstable, are missing parts, or contain known hazards;

•  Toys and other articles intended for use by children and any furniture with paint or other surface coatings containing lead over the specified amount.

Resellers should closely examine their products in inventory prior to resale to make sure that their products are safe and compliant with federal laws.”

Before you sell that baby product at a yard sale or consignment shop, you can check SaferProducts.gov or Recalls.gov to see if the CPSC has recalled it.  The CPSC recommends that

“When in doubt, throw it out!  Products used in the nursery, especially cribs and bassinets, have caused deaths and have been the subject of numerous recalls of millions of units. Do not sell any broken or wobbly nursery furniture or durable infant product that is missing parts, even if it has not been recalled.  A baby’s life could depend on it.  The risk is too high.”

For more information go to: cpsc.gov

 

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