Boston Injury Lawyer Blog

When a Massachusetts personal injury lawyer represents a client, we work diligently for the best result given the circumstances of the collision, the client's injuries, his or her work history, and the permanency of the injuries. However, when we review statistics from Massachusetts and from around the country, we look to seek if there are any patterns that show things are safer year after year. The good news this year is they are!

There were 605 Massachusetts highway fatalities in 1990, 433 in 2000, 441 in 2005 and 334 in 2009. Massachusetts' fatality rate was 1.3 deaths per 100 million miles driven in 1990; in 2009 it was reduced to 0.6. The United States total rate went from 2.1 down to 1.1 in that time period. That is, from 44,599 deaths to 33,808 deaths. In Connecticut, for example, the rate went from 1.5 down to 0.7; in New Hampshire the rate went from 1.6 to 0.9. While the statistics are getting better, there are still too many wrongful deaths in Massachusetts, as well as injuries and permanent losses in Massachusetts.

One statistic that gets better but remains a nagging fact is with respect to drunk driving accidents in Massachusetts. Notwithstanding the fact that drunk driving may be down by 30%, according to the United States Centers for Disease Control and Prevention, drivers in the US drove while impaired 112 million times in 2010. In 2009, the result was 11,000 deaths as a result of alcohol related driving. The statistics include the fact that men are responsible for 81% of the drinking and driving episodes; and, while men aged 21 to 34 represent only 11% of the population, they are responsible for 32% of the alcohol related driving instances. Further, 85% of drinking and driving episodes involved "binge drinking" which is 5 for more drinks for men and 4 or more for women. According to the CDC, having only two beers results in loss of judgment and having trouble doing two tasks at the same time.

An unnerving fact is that a 2011 study of drivers throughout the 50 states undertaken by the GMAC Insurance Company indicates that 80 % of current drivers cannot pass a basic driving written test! What is even scarier is that drivers in the Northeast scored the lowest

With the casino gambling issue rising again in Massachusetts, one argument is that there will be more crime, especially organized crime. We have no sense of the criminal activity following casino growth. However, another area we are concerned with is the rise in more dangerous driving, including alcohol related driving, that may accompany the growth of local casinos. If Native Americans get a license, there is an added concern because Native Americans are significantly more likely to be involved in alcohol related driving fatalities, according to a United Stated Department of Transportation, National Highway Traffic Safety Administration study.

Whether it's a casino or just plain neighborhood drivers, we continue to follow the statistics of senior drivers. In a 2011 Israeli study regarding "hazard detection" of drivers verses pedestrians in the road, it was found that elderly drivers had a slower response time. The study showed that the elderly had limited useful field of view. They also drove 20% slower; perhaps knowing their response time was slower.

On the other hand, children were found to be safer when driving with their grandparents versus their parents! This is from a study in Pediatrics by Fred Henretig.

Finally, with the large number of college students and young people in Massachusetts, we are concerned with their driving. In a 2009 Australian study published in March 2011, psychologically distressed driving was the explanation for 8.5% higher rate of risky driving among drivers aged 17 to 25. The rate was significantly higher for females; 9.5% versus 6.7% for males.

Here is to working with all of you to make 2012 a safer new year!

In the United States, there is often the feeling that once you get your driver's license at age 16 or so, you have a license to drive over state and federal roads until the day you die. Some drivers, young or old, are always safe. Some are reckless at any age. But what about those who were safe drivers for so long, but now may be just old enough that reflexes are too slow?

In a program called "Keys to Independence" Emerson Hospital, in Concord Massachusetts, will utilize objective testing to determine the answers to those questions. The battery of tests, administered by an occupational therapist, is to include visual acuity, strength tests range of motion testing, and cognitive and perceptual abilities.

Emerson Hospital also hosts an AARP driving safety program. However, helpful these programs are, we would note that in a recent case in our Massachusetts accident law office, a 95 year old man who testified that he satisfactorily "passed" that program pulled out from a stop sign and caused a crash, on Route 2A in Acton, Massachusetts, when he misjudged the timing of his turn.

Nevertheless, the program seems to be a good step in informing responsible drivers how they are doing. We wonder, however, how much of an effect this will have considering the number of elder drivers that will take the class, and even if they do, what they will do with the results.

In a study undertaken by professors at the Eastern Virginia Medical School,
published in 2005, elderly drivers were tested to see how their perception of their driving skills was, compared to their actual skills. The conclusion of the study stated that "Cognitive ability was not related to self-rated driving evaluation performance." That is, after self-evaluation, drivers over 65 who considered themselves better drivers than their piers were "over four times more likely to be unsafe drivers."

Massachusetts law does not require driving tests following the initial test, usually taken at age 16 or 17! There is a new law, which requires that all license renewals for Massachusetts's drivers at age 75 or above must undertake the Massachusetts RMV vision test, or produce a "vision screening certificate" from their doctor. That law, which became effective on September 30, 2010, known as the Safe Driving Law, was the law that forbids new drivers from using cell phones, and all drivers from texting while driving in Massachusetts.

Let's try to be fair. As a Boston accident lawyer, I hear a lot from folks who wonder why "that person was driving" at all. Folks that say the elderly shouldn't drive are just as prejudiced as those that say all teenagers are texting. Most folks take driving very seriously and most have impeccable driving records. How can we differentiate those who are dangerous drivers from the rest of us? Most people know when their capacity to drive diminishes, and they stop. Or they stop at night when they can't see as well. The motor vehicle laws, no matter how expansive or restrictive, won't stop negligent drivers and won't stop someone from slipping on ice or following too close. Thus, be careful out there. And evaluate yourself, your neighbors and your loved ones on a regular basis. Recommend the Emerson Hospital class, or a similar one, to folks whose driving you think could use evaluation.

According to a new University of Massachusetts, Amherst, study, use of seat belts is decreasing in Massachusetts. Seat belt use is down to 73% in Massachusetts, according to the study, with the national rate at approximately 85%. This is concerning to a Massachusetts injury lawyer because seat belt use is directly correlated with saving lives. Massachusetts is among the lowest use states in the nation. Teenager seat belt use according to the UMass study was down 3.9%, to only 69%; African American seat belt use was down to 65%; and, with Hispanics, the rate was only 54%. Commercial vehicle drivers were even lower, at 47%. Between men and women, the rate is 68% for men and 80% for women. The National Highway Traffic Safety Commission studies conclude that having a primary seat belt law would boost rates by 10%!

Pending in the Massachusetts State house is legislation entitled "Natalie's Bill" which would require seat belts as a "primary " law, meaning it would allow police officers to pull over a vehicle when the primary reason was for failing to wear a seat belt. Studies show that this results in a higher seat belt usage, associated with fewer injuries and deaths.

The name of the proposed law is based on a young woman who died in Massachusetts in 2004. Natalie DeLeon was 21 years old when she went for a short drive with her boyfriend. When her boyfriend swerved to avoid another vehicle, Natalie, not wearing a seat belt, was ejected from the vehicle and died as a result of a brain injury.

Belts Ensure a Safer Tomorrow (BELTS) is a coalition with dozens of members from vast portions of the state including: Children's Hospital, AAA Southern New England, Brain Injury Association of Massachusetts, Massachusetts Fire Chiefs, and the Massachusetts Medical Society

According to Massachusetts Children's Hospital, a primary seat belt law could save the Commonwealth "over $170 million in costs associated with medical care, lost productivity and damage to property" and would save over $55 million on health insurance costs.

What is holding legislators back? One argument is that with a primary law, minorities would get pulled over more. That is, the law could have a disproportionate impact on minorities. However, the National Highway Safety Administration has studied this issue and concludes that there is no correlation. Another argument is freedom to make one's own decision about whether or not to wear a seat belt. However, others argue that when driving on public roads, and using public hospital monies to attend to those that are injured, the state should have the right to make seat belt use primary.

We again point to evidence from around the world. In 1997, Princess Di was killed and the fact that she was not wearing a seat belt was considered a "substantial contributing factor" leading to her death. We represented a young women in town just north of Boston who suffered a broken back and testified, "if I hadn't been wearing my seat belt I would be dead. I know it."

The law now essentially says that anyone in a passenger vehicle shall wear a seat belt. The law specifically says, however, that it can only be enforced "when an operator of a motor vehicle has been stopped for a violation of the motor vehicle laws or some other offense." Massachusetts General Laws, Chapter 90, Section 13A.

Massachusetts State Senator Stephen Brewer, of Barre, the Chairman of the Ways and Means Committee, has introduced a bill before the Massachusetts Senate, removing the current helmet law and allowing all motorcyclists over the age of 21 to have the right to refrain from wearing a helmet. The bill was the subject of hearings in the Senate Transportation Committee this week. The Massachusetts Motorcycle Association sees this as a "freedom" type of law which would promote tourism. Even if they are right, is this the kind of tourism we want to promote? Wouldn't this simply bring in out of state riders who may or may not have health insurance dramatically increasing their odds of serious personal injury while in Massachusetts? Further, the helmetless advocates point to the casino law: the pendulum swung in favor of casinos when tourism dollars fleeing the state was used as the argument.

One senator, Anne Gobi, of Spensor, sponsored a bill that would allow all motorcyclists over the age of 18 to forgo a helmet. Senator Gobi wants those riders to take a safety course. Ms. Gobi, who may or may not practice personal injury law in Massachusetts, should know that all of the injured victims of motorcycle accidents in Massachusetts that we have represented were not responsible for the accidents. So what would a safety course really do?
The current law, Massachusetts General Laws Chapter 90, Section 7, requires that "every person operating a motorcycle or riding as a passenger on a motorcycle...shall wear a protective head gear..." The statute goes on to require "eye glasses, goggles or a protective face shield" if there is no windshield.

Motorcycle accident lawyer Neil Burns points to the facts about motorcycle helmet use. We last wrote about Massachusetts motorcycle accidents noting that the fatality rate went down over the last decade. Part of that decrease is because of the increased use of helmets. In our April 4, 2011 article about motorcycle accidents, we noted that Massachusetts has a 97% helmet use while the national average is 59%.

This is not news to Commonwealth law enforcement officials. According to the National Highway Traffic Safety Commission, motorcyclists are 37 times more likely than car drivers to die in a crash and 9 times more likely to be injured; riders who neglect to use helmets are 3 times more likely to receive traumatic brain injuries in Massachusetts and throughout the country.

Finally, a word about motorcycle and insurance. Most motor vehicle policies in Massachusetts have Personal Injury Protection insurance. This is essentially "no fault medical insurance up to $8,000. With Med Pay insurance, many Massachusetts vehicles have an additional $10,000 in medical coverage. Motorcycles do not have PIP insurance. Wherefore, if you are injured on a motorcycle and you don't have medical insurance, you are subjecting yourself, and possibly your family, to significant medical bills. Further, most insurance agents do not sell sufficient Massachusetts under insurance policies to motorcyclists. If you are seriously injured, and the driver of the vehicle that caused the accident is insufficiently insured, you could help yourself significantly by having a substantial underinsured policy. For information , click on our Massachusetts underinsurance article.

As a Massachusetts consumer attorney, I try to keep clients informed of how to keep safe this holiday season. With rainy weather, and a huge travel day today, we offer the following to avoid Massachusetts motor vehicle accidents: 1. Don't drive in holiday traffic if you don't have to. 2. Texting while driving is illegal. 3. Wear your seat belt - it's the law and the easiest way to stay safe when involved in a motor vehicle accident in Massachsuetts 4. Children must be in child safety seats in Massachusetts 5. The most obvious should be do not drink and drive, but, we should all be aware to assist others who may not know they should not drive. 6. While it may be too late for today, put on your shopping list to check your underinsurance coverage in Massachusetts, which is often too low. We recommend that our clients purchase significantly more than the minimum of $20,000.00 underinsurance to protect them from underinsured vehicles and uninsured Massachusetts vehicles.

For our clients who are shopping for more fun items than insurance, we relate some of the tips offered by the Massachusetts Attorney General's office which include: 1. Know your rights when buying gift certificates. The law says they are good for seven years. However, remember that you don't want to be a creditor if the business files for bankruptcy in Massachusetts, so if you receive a gift certificate, use it promptly. 2. Stores must disclose their return policies, but often have different ones and strict rules. It makes sense to review a return policy if you are likely to return any item. 3. Layaway policies can be helpful for budgeting, but be careful of the policy before you turn over your hard earned money. 4. If you see a print advertisement, bring it with you as model numbers and sizes can be switched without your knowing. 5. Following all purchases with a debit or credit card, check your bank or credit card statement for any suspicious charges.

If you shop online: 1. Use a credit card for on line purchases because this gives you a layer of security. 2. Only use websites you know are legitimate. 3. Be sure to confirm the website's authenticity before giving y our credit card information. You can look for the "s" in the "https://" for security. Also, in the lower right corner on a check out page, look for the "lock" symbol. 4. Beware of emails asking for information about your order. Do not give out information in response to those emails. The Retailers Association of Massachusetts has a website that offers additional information.

Finally as a Massachusetts burn injury lawyer, I remind folks to be safe when using ovens to cook for a holiday meal: Stay in the kitchen when you are cooking, especially if you have food heating on the stovetop. Turkeys should be checked frequently. Keep children away from stovetops and, before opening the oven to check or baste the bird, have all children away from the vicinity and protected from entering the area. Keeping the kitchen floor clean and free of debris helps prevent falls near hot items. Spending the day near the kitchen is a good time to check general safety, including the storage of knives, the security of poisonous cleaning fluids, and smoke alarms.

Have a safe and happy holiday.

A recent incident in Boxboro, Massachusetts, with an allegedly illegal immigrant charged with a sixth offense for driving under the influence in Massachusetts, sparked much debate about drunk driving accidents in Massachusetts. Motor vehicle accidents in Massachusetts are frequently caused by drunk drivers. According to the Centers for Disease Control, the number of times that Americans drove drunk in 2010 was 112 million! 33% of all motor vehicle deaths are associated with alcohol impaired drivers. In 2009 there were 11,000 alcohol related motor vehicle deaths.

In Massachusetts, alcohol fatalities totaled 334 in 2009. This was down from over 400 alcohol related motor vehicle deaths over several years in the '80s, there is clearly work to be done. While the Massachusetts highway accident rate makes it one of the safest states in the country, there is clearly still work to be done.

Driving under the influence, defined by national standards, is when driving with the blood alcohol level of 0.08% or greater. The CDC found that 81% of drunk driving "episodes" involved men. While men aged 21 to 34, "young men" are only 11% of the adult population, they were responsible for a disproportionally large percentage of drunk driving: 32%. 85% of drinking and driving episodes were associated with folks who are binge drinkers. Binge drinking, that is those men that have five or more drinks, or women who have four or more drinks in a short period of time.

Mothers Against Drunk Driving, an organization dedicated to educating use about the seriousness of the issue of alcohol and driving, claims that one person dies every 50 minutes from a drunk driving crash; 10,839 people per year. In addition, one person every minute is injured from an alcohol related motor vehicle accident.

The good news is that the number of alcohol impaired driving is down by 30% according to the CDC.

Massachusetts drunk driving laws are serious. A first offense can include jail time of up to 30 months, fines up to $5,000, license suspension of one year, and can include a court approved treatment program. A second offense includes jail time from one to 30 months, fines up to $10,000, two years of license suspension, and an ignition interlock device. We represent victims of motor vehicle accidents, and not those accused of violating the driving laws. However, many of our clients who are victims of alcohol induced collisions, note that many perpetrators get the 24D disposition, enabling initial offenders to keep their license and take the rehabilitation class.

In the incident in Boxboro, the problem goes beyond the drunk driving laws. This is because the driver had already been convicted five times; two in Massachusetts, three in California. His breathalyzer test was 0.09%, which is presumed drunk. He had no license, so he was also charged with a suspended license, another criminal offense. He had no registration for the vehicle he was driving, so that charge was added too. He produced false identification to the police officer, which engendered another criminal charge; his identity was made by fingerprints over a national system. Finally, he was charged with operating a motor vehicle with an open container of alcohol.

In 2009, 676 people in the United States were killed and 113,000 injured in collisions at red lights, according the National Highway Traffic Safety Administration's Fatality Analysis Reporting System. While the Massachusetts Legislature debates allowing our communities to decide whether to install cameras at traffic lights in order to catch and deter red light violators, numerous organizations have spoken out in favor of the idea. Foxboro Police Chief Ed O'Leary proposed the idea back in 2006 and was shut down in his community. Southern New England AAA spokesperson Mary Maguire said, "We feel that in urban locations where there are a substantial numbers of infractions, we see evidence that red light cameras can deter red light running." New York, California, Florida and our neighbor, Rhode Island are among the 27 states that allow red light camera laws. That is enough to get us thinking that this is an idea worth considering that our antidotal evidence from representing victims of car accidents and families where there has been a death from motor vehicle collisions shows that many injuries occur because someone was just trying to beat the light.

A 2011 Federal Highway Administration study found that red light cameras "reduced the fatal red light running crash rate by 24 percent and the rate of all types of fatal crashes at signalized intersections by 17 percent." Of course there are constitutional issues. There are overreaching issues. There are police enforcement costs. But what about the deterrence effect of folks knowing, or thinking, that they will be cited by a camera and ticketed by a local police department if they violate the law by traveling in an intersection during a red light?

From the prospective of a Massachusetts personal injury lawyer, there are numerous things we can do to keep our homes safe. While Spring-cleaning, it's perhaps a good time to check up on those things.

Smoke detectors should be checked and batteries changed. Be sure they are on the highest ceiling on each floor and strategically placed with respect to heat sources and kitchens.

Fire extinguishers need to be easily accessible and checked to be sure they are full. Reading the directions on a regular basis to recall how they operate can save time in an emergency situation.

Continue reading "Massachusetts Safety Tips for Spring Cleaners" »

Massachusetts roofs are in danger, though perhaps only a very small percentage of them. Ice dams can result in water damage to homes. Boston personal injury lawyer Neil Burns notes that experts say it may be safer to not attempt roof work in this weather. The most attention should be paid to flat roofs in Massachusetts commercial buildings rather than homes. Some of those flat roofs do not drain properly.

The Massachusetts Executive Office of Public Safety and Security (EOPSS) provides a host of safety tips for residents. The following are ways to prevent injury and property damage:

1. Pay attention to build ups, especially in one or more specific places on the roof;
2. Wear protective headgear and eye glasses when examining and working near roofs;
3. If you can "rake" the roof from the ground, try; be careful of power lines, cable lines, windows, etc. This task could be more dangerous than doing nothing;
4. Avoid ladders as they add risk of danger, especially in winter weather;
5. Flat roofs can be shoveled, but only if it is determined safe to be up there;
6. Icicles are not a sign of ice damming, but they can be dangerous

The news around town this week focuses on winter storms, roof collapses and snow. And more snow. Keeping safe in winter involves a multiplicity of venues. First, driving:
our article Avoiding Massachusetts Motor Vehicle Accidents on Superbowl Sunday outlines basic driving tips for Boston area winter drivers. The focus was on avoiding alcohol and driving when tired or otherwise impaired after the game. Of course, in bad weather, the idea is to stay off the road and use public transportation. In our article Winter Driving Tips for Massachusetts Drivers, we offered advice culled from experts regarding safe driving in Massachusetts. A multiplicity of advice including stopping texting and being cautions in intersections, even when you have the right of way.

Second, your home: There is a new Massachusetts snow and ice law which makes homeowners and landlords more responsible for clearing snow and ice from their stoops and walkways. House roofs in Massachusetts [add cite from roof article here] are more vulnerable than ever with the weight of the snow and ice. Our blog article on Massachusetts roof safety points to the general advice there.

There is also the threat of loss of power. The experts offer the following advice;

1. The use candles is potentially dangerous;
2. Have flashlights, a portable radio, and a food supply;
3. Generators can be good, but require a host of safety tips;
4. Check your clothes dryer and other fan vents;
5. Space heaters can be dangerous, don't use near flammable objects;
6. Allow water to run to avoid freezing pipes;
7. Be especially careful inspecting power lines - they are dangerous.

The new Massachusetts snow and ice law is working. In a case decided by the Appeals Court this past week, the Court followed the new law regarding negligence for snow and ice injuries. In this case, the plaintiff was injured when she fell outside a condominium complex on snow and or ice. She sued the condominium association but her case was thrown out by the Trial Court Judge because, under the law at the time, there was no proof that the fall was not the result of a natural accumulation of snow and ice. Following that, the Supreme Judicial Court decided Papadopolos v. Target which eliminates any distinction between natural and unnatural accumulations of snow and ice. The standard for landlords now owe lawful visitors reasonable care to protect them from hazards.

Most importantly, the Appeals Court here said that the Papadopolos case should be applied retroactively. Therefore, any injuries that folks have as a result of snow and ice injuries should be reevaluated. If you went to a lawyer before this summer, when Papadopolos was decided, and he or she said the standard was too high, consider finding an injury lawyer now for reevaluation.

See Nazar v. Mayer et al, Massachusetts Appeals Court Number 10-P-51, (December 23, 2010

As motor vehicle accident lawyers, we try to focus our blogs on safety and consumer information as much as we can. So, when a University of Massachusetts physics professor wins a traffic safety award, we want to bring it to the attention of our clients. Dr. Marguerite Zarrillo, a surface transportation engineering professor at U Mass Dartmouth, has undertaken research on distracted driving.

Dr. Zarrillo's research is to develop computer models to study traffic flow, including toll booth queuing, for which she has published numerous papers and undertaken research for the Center for Advanced Transportation Systems. Her recent research involves a driving simulation program that studies drivers who are also attempting to perform other tasks such as cell phone while driving reading, or eating while driving. We are pleased that the Massachusetts public education system has acknowledged such critical work in the field of motor vehicle safety.

Personal injury lawyers note that a change in the MBTA law will harm victims of accidents on the T, including bus accidents in Massachusetts. In an attempt to help the fiscally troubled MBTA, the Massachusetts Legislature amended the Massachusetts Tort Claims Act to bring the T within the scope of the Act. Among the many ramifications this has, it allows the T to escape interest on judgments; the Commonwealth, its agencies, cities and towns of Massachusetts do not have to pay interest on judgments.

In a case that came down from a Superior Court judge, the Court found that the law cannot be applied retroactively, against an injured party. In July 2005, the plaintiff in the case at issue was injured. He sued the MBTA and the bus driver involved in a collision. There was a trial in September 2009. The jury came back in favor of the plaintiff in the amount of $661,784. The Court imposed interest and costs, as it usually does, and added them to the verdict.

Continue reading "Claims Against MBTA Are Now Within Massachusetts Tort Claims Act " »

The Law Office of Neil Burns wishes our clients and friends a happy and safe holiday season. With motor vehicle injuries and deaths down, we remind folks that staying safe while driving in Massachusetts is critical. Drive and cross defensively, especially in intersections; when you have a green light or a crosswalk be sure to look before you enter; your permission to enter does not stop a negligent driver. Be careful about leaving things in your vehicle when parked. Brown University Police point out that where you park and what you leave in your vehicle could help too. Holiday safety of course includes extra care around flammable Christmas trees and their associated lights. For children's presents, Massachusetts Eye and Ear reminds you to avoid toys that shoot, fly or have sharp edges and suggest looking for the ASTM label; also, they remind us to give protective eyewear when giving sporting gifts.

The US Fire Administration, a division of FEMA, has numerous helpful suggestions, including how to treat, light and dispose of your tree. The Electrical Safety Foundation International has a whole holiday safety newsletter. Of course, the Centers for Disease Control and Prevention has a terrific website which has pointers for holiday safety including obvious but critical hints including regular hand washing, keeping warm and managing winter (holiday) stress.

The feds, the local media, and Boston car accident lawyer Neil Burns are criticizing the leniency in Massachusetts laws regarding drunk driving. According to the National Transportation Safety Board, Massachusetts, and 9 other states, lag behind other states in enacting measures to prevent alcohol related motor vehicle collisions. The NTSB Most Wanted List includes elimination of "hard core" drinking while driving as one of its main targets for improvement for states.

The list from the NTSB for actions urged for state governments to pass with respect to drinking and driving are: enacting laws to reduce repeat offenders, undertaking frequent statewide highway checkpoints for sobriety, set higher penalties for first time offenders, set the limit for second time offenders at zero, cancel driving licenses for those who refuse a blood alcohol or breathalyzer test, stop plea bargaining agreements, keeping records for 10 years, special programs for repeat offenders. While we can't comment on the effectiveness of this list, we would urge the legislature to adopt as many measures as possible to deter drinking and driving and to keep repeat offenders off the road.

The Boston Globe recently focused on the Massachusetts Legislature drunk driving news, including a review of Melanie's Law, enacted in 2005. We won't get into local politics here, except to say that victims of motor vehicle accidents need as much protection as possible.