Boston Injury Lawyer Blog

As followers of this blog know, the panel studying the death of Princess Di in Paris in 1997 said that the failure to wear a seat belt was a substantial contributing factor to her death. After all, the only person who survived the limousine crash was wearing a seat belt. With prom season coming, Boston personal injury lawyer Neil Burns urges Massachusetts' teenage drivers to drive safely, avoid any and all alcohol before driving, and follow the zero texting and cellphone law. But on an every day basis, wear a seat belt in Massachusetts.

In a horrific reminder of this safety rule, last week a 21 year old involved in a Somerville car accident was charged with motor vehicle homicide as a result of a collision that resulted in the deaths of two teenage girls after a party Somerville. The police also charged the driver with drunk driving, speeding and motor vehicle homicide in Somerville District Court. Three other passengers who were wearing their seat belts were not seriously injured. There is a Massachusetts penalty for failing to wear a seat belt of a 60-day loss of license.

The law requires a minimum of Massachusetts uninsurance insurance coverage and Massachusetts underinsurance coverage. That minimal Massachusetts insurance amount is $20,000. We have written extensively about the dangers of this: if you a victim of a Massachusetts motor vehicle accident and suffer serious injuries or loose income from a motor vehicle accident, you are limited to the amount of insurance the person causing the accident has. However, if you have sufficient underinsurance coverage, you can apply to your own insurance company for monies for pain, suffering and lost earnings. After 25 years of practicing law in Massachusetts, I have extensive experience in this. For example, last year we secured the full underinsurance policy for a young woman with a severe traumatic brain injury after she was struck by a taxi in a crosswalk - the taxi, like most taxis in Massachusetts - had only the statutory minimum insurance policy of $20,000.

Continue reading "Underinsurance in Massachusetts, Again!" »

Can we make Massachusetts playgrounds safer for children? 2,973 children were injured on Massachusetts playgrounds in 2009. Nationally, the number was over 70,000 per year in the years 2001-2008, and 67% was from falls or playground equipment failure. According to the National Program for Playground Safety (NPPS), there are ways to make playgrounds safer. In a case in Melrose, where we represented the parents of a two year old who fell from a playground ladder and broke his leg, the cause of the fall was determined to be poorly maintained ladder rungs - the rungs were steady until the top rung -- which rotated, causing our client to fall and break his leg on the hard ground. Further, our expert witness determined that there was insufficient bark mulch, or padding, on the landing.

A key factor is failure to maintain playground equipment, especially the simplest maintenance of all, putting proper bark mulch below the playground equipment; and replacing the mulch when it wears thin. According to the Massachusetts Department of Public Health, 40% of the child injuries in playgrounds are as a result of negligent supervision. The Massachusetts DPH provides a playground safety list which provides a host of information and resources, some of which are quite basic, but not often followed: have 12 inches of bark mulch or other impact absorbing base and remove visual barriers so that parents and care providers can see the children. There is also a federal Consumer Product Safety Commission paper on playground safety.

According to reports about motor vehicle safety in Massachusetts, Route 2 in Concord will finally get an upgrade. The highway has a full elbow turn at what is known as Crosby's Corner. We have represented victims of car accidents at that location; in one case in particular, at the deposition of the truck driver who was coming from Route128, he testified that he had no idea there was such a long decline with a red light at the end. When his brakes failed, he testified that he had never tested them before driving that particular truck. That truck caused a collision, which involved approximately a dozen vehicles that had all been stopped for the red light at Crosby's Corner. Last year there was an accident involving a diesel oil truck at that intersection, in which the truck driver was injured. We have also represented victims of truck accidents along that corridor of Route 2, including a wrongful death case.

It seems that the Commonwealth is finally able to fix portions of the road where there are frequent vehicle accidents. The new design will involve an elevated highway and new surface roads for local traffic. The Crosby's Corner plan apparently involves local, state and federal authorities working together. It includes a Wetlands Protection Act variance and is ready for bidding.

We represent victims of legal malpractice in Massachusetts. Generally, our client alleges that his or her attorney was negligent when the attorney was handling the clients' case. When the attorney has professional negligence insurance, the insurance company, upon notice of the claim, steps in and provides counsel and, in the event of a settlement or judgment, indemnifies, or pays, on the claim. On the other hand, in a recent case when an attorney and his former firm had a fee dispute, they tried to invoke the malpractice insurance policy, saying that "an act or omission in the performance of legal services" invoked the insurance, both to pay for the defense and to indemnify, or pay, any judgment. Federal Judge Ponsor, sitting in Springfield, however, found that the dispute was a business dispute, and not a negligence issue. The Court, however, in Clermont v. Continental Casualty Co. v. Freedman, DeRosa & Rondeau LLP, found that it was a "business decision"

The federal case was derived from a serious personal injury lawsuit. When the victim's attorney left his law firm, he took the client with him. At the time of settlement, the prior law firm filed an action to prevent any payout to the injured party absent getting a share of the attorney fee. Wherefore, the lawyer filed a countersuit against his former law firm. The plaintiff's lawyer also filed a claim against his malpractice insurance company, requesting injunctive relief, saying that the insurance company should defend him, and make any payment required. Judge Ponsor found that the issue between the attorney and his previous partners was "not based on a wrongful act or omission in the provision of legal services" but it was the "business" of providing legal services.

The Kentucky legislature passed a law forbidding lawyers from soliciting victims injured in motor vehicle accidents for the first thirty (30) days. While the law is intended to protect victims of motor vehicle collision, the nominal fine of $1,000 may not deter attorneys when there are wrongful death accidents or serious truck accidents. It is not clear how consumers will be helped as the Kentucky law allows insurance companies, who clearly have an interest in resolving claims before victims have counsel, to contact injured parties.

The Kentucky rule is more restrictive than the Massachusetts rule regarding solicitation, Massachusetts Rules of Professional Conduct Rule 7:3 Solicitation of Professional Employment. The Massachusetts Rules are essentially: a lawyer may not "coerce or harass," use a "false or misleading communication," solicit someone who is in a "physical, mental or emotional state" where he or she cannot "exercise reasonable judgment," and when the prospective client clearly does not want to be solicited. Massachusetts lawyers can solicit by "written communication, including audio or video" so long as they retain a copy of the communication for two years. Specifically, the Massachusetts Rule forbids paying non-lawyers, i.e. runners, for solicitation and referrals.

Massachusetts child injury lawyer notes that over 3,300 children are injured each year from falling out windows. About 8 children die each year from such injuries, according to the Consumer Product Safety Commission. Thus, the National Safety Counsel has established this week as National Window Safety week. The experts recommend the following: install (quick release) window guards to protect children; keep furniture away from windows; double hung windows should be opened only at the top; remember that screens keep bugs out, not children in; teach children to play away from, and not near, windows.

In Bellingham, Massachusetts a three year old fell from a third floor window and fell three stories, 35 feet, to the ground. While the issue may have been neglect, there was no reason this could not have been prevented using the above tips about window safety for children.

It's springtime in Massachusetts. This means Red Sox, students going wild, and motorcycles coming out of storage. Unfortunately, there were 4,955 people killed on motorcycles in the US in 2008. There were 41 Massachusetts motorcycle fatalities in crashes in that year. While motorcycles make up only 0.4% of vehicle miles traveled, per mile traveled, motorcyclists were 37 times more likely to be injured than a motor vehicle occupant. Motorcyclists were 9 times more likely to be injured. Statistics are from the National Highway Traffic Safety Administration. According to NHTSA, 47% of motorcycle fatalities involved collisions with other vehicles. 77% of the fatal accidents were motorcycles struck in the front, with merely 7% struck in the rear. Significantly, in 41% of the fatalities, the motorcycle was going straight and the other vehicle was turning left.

Massachusetts has a 97% helmet use; nationally, the rate is 59%. The NHTSA estimated that the use of helmets saved 1,829 lives, and, that if all motorcyclists had worn helmets, an additional 823 lives could have been saved.

Continue reading "Massachusetts and Motorcycle Safety" »

In our personal injury law blog we normally refrain from filing articles about individual collisions, choosing to focus on studies or trends we see, and avoiding the sensational and tragic. However, as a Massachusetts wrongful death attorney and auto accident trial lawyer, we felt the need to report on a Haverhill collision which resulted in the death of a 55-year-old Danville man, with injuries to his passenger who was treated at the Massachusetts General Hospital after the crash. News reports from the Lawrence Eagle Tribune indicate that a 17-year-old was driving while texting on River Street in Haverhill last month. The district attorney's office charged the youth with Massachusetts motor vehicle homicide and texting while driving in Massachusetts.

Allegedly, Aaron Deveau, of Haverhill, was driving a 2001 Chevrolet Malibu on River Street in Haverhill when his vehicle crossed the centerline and collided with a 1992 Toyota Corolla on the afternoon of February 20, 2011. The extent of the injuries on the passenger was not reported.
The new Massachusetts law, Chapter 155 of the Laws of 2010 amends Massachusetts General Laws, Chapter 90 which went into effect on October 1, 2010, sets a fine of $100 for anyone texting while driving. For a driver under 18 years old, the penalties include a 60 day loss of license and attendance in a driving class. The penalties escalate with additional offenses.