911 Call Admitted Into Evidence

The court recently outlined the factors necessary for a 911 recording to be admitted into evidence primarily in domestic disputes against a defendant at trial. This is particularly important because when the victim has made a 911 call that qualifies under the various factors, the Defendant can be convicted based upon a 911 recording and statements to the police even if the victim does not testify.

Objective Standards Must Be Used In Issuing and Extending Restraining Orders

A restraining order under Massachusetts law may be issued to a family or household member on one of three grounds:

1. Attempting to cause or causing physical harm;
2. Placing another in fear of imminent serious physical harm; or
3. Causing another to engage involuntarily in sexual relations by force, threat, or duress.

Most of the applications under M.G.L. c. 209A §1 for restraining orders are based on the first two reasons. Most common is the second, relative to fear of imminent serious physical harm. The judges today tend to err on the side of caution. In other words, they stretch the law to make it apply in order to issue a restraining order at the first stage of the proceedings (which is ex parte, meaning the Defendant is not notified and has no opportunity to be heard). There are also well-trained advocates who work for the courts who are well versed in the language needed to establish the basics for requesting a restraining order.

The court has now indicated that when a sufficient time has passed, usually a one-year period, the court must determine whether an apprehension of anticipated physical force is reasonable. A court will look to the actions and words of the Defendant in light of the attendant circumstances. This is so because a “reasonable fear of imminent serious physical harm” is determined by an objective standard. The complainant’s fears “must be more than subjective and unspecified: viewed objectively, the plaintiff’s apprehension that force may be used must be reasonable.”

When there is an application for an extension, a judge has wide discretion, but no presumption arises from the fact that a prior order had been issued. The Plaintiff must establish that the facts that exist at the time the extension is sought justify relief.

Another important issue that was decided is that when an extension request is made, the judge is not limited to issuance of a permanent injunction or not. The statute permits extensions for such additional time as the judge deems necessary to protect the Plaintiff from abuse.

Persistent behavior by a Defendant would be required for most if not all extension orders. Therefore, if the abuse has stopped and there has been full compliance with the original order, the chances are greatly reduced that a new order would be extended for any period of time. Smith v. Jones, 75 Mass. App. Ct. 540 (2009) citing Commonwealth v .Gordon, 407 Mass. 340, 349 (1990) and Iamele v. Asselin, 444 Mass. 734, 737 (2005) and Vittone v. Claremont, 64 Mass. App. Ct. 479, 486 (2005) and Carol v. Kartell56 Mass. App. Ct. 83, 86–87 (2002)

Failure to Pay Accrued Vacation Time Pursuant to M.G.L. c. 149, §148

Once accumulated vacation time has been earned according to a company’s vacation pay policy it becomes due under the definition of wages and, therefore, constitutes wages earned. An employee had accumulated five weeks of vacation time which could be used during the following calendar year. Prior to his involuntary discharge on April 8, 2005, the employee had only used one day. His employer refused to pay what he had earned the previous year. The employer produced a company policy manual which provided that if an employee leaves employment voluntarily he or she will forfeit all unused vacation pay. The court reasoned that the policy manual of forfeiture was in direct contravention to the laws as set forth in Massachusetts General Laws Chapter 149, section 148, and the employer was ordered to pay the vacation time owed with penalties.

In this case the Attorney General handled the case. In a case handled by a private attorney with permission from the Attorney General, an employee may receive up to three times the amount owed under the statute together with payment of attorney’s fees and costs, thus free legal help for an employee who is owed wages or benefits.

Patient Hits Her Head After Stretcher Tips Over

The Plaintiff, 71, was suffering from end-stage renal disease. The Defendant, an ambulance company, was transporting her on a stretcher from her dialysis center to an ambulance so she could be driven home. As she was being wheeled through the parking lot to the ambulance, one of the wheels of the stretcher became lodged in a large hole in the parking lot. This caused the stretcher to tip over, which caused the Plaintiff to fall and strike her head on the pavement resulting in her death three days later. Since she was completely secured to the stretcher, she had no ability to brace herself for the fall.

The Plaintiff alleged that the ambulance company’s employees were negligent in that they failed to keep a proper lookout of a parking lot which was in obvious disrepair. The Plaintiff also claimed that the property owner was negligent as they failed in their duty to maintain the parking lot in a reasonably safe condition.

The ambulance company claimed its employees took all steps necessary considering the condition of the parking lot, and the property owner claimed the defects were minimal but open and obvious to the ambulance personnel.

The case was mediated and settled for $750,000 based upon the Plaintiff’s age and minimal life expectancy prior to this incident.

Intersection Collision

The Plaintiff, 54, was operating his motor vehicle through an intersection when the Defendant failed to stop for a blinking red light and crashed into the Plaintiff’s vehicle, forcing him off the road and into a fire hydrant, electrical box, streetlight, and telephone pole.

The Plaintiff was med-flighted to a Boston hospital and was diagnosed with a right hip dislocation and fractured right hip socket. The Plaintiff underwent surgery the next day and remained in the hospital for several days. He was confined to his home for several months while undergoing home physical therapy and then was released to outpatient physical therapy.

The case was mediated and settled for $285,000.

Pedestrian Hit By Car

The Plaintiff was walking on the sidewalk of a strip mall when a motor vehicle being operated by an 88-year-old jumped a two-inch curb onto the sidewalk and struck and pushed the Plaintiff through a storefront window. The Plaintiff sustained significant injuries including two broken legs, a broken right ankle, severe scalp laceration, two broken ribs, and a punctured and collapsed lung.

The Plaintiff brought suit against the strip mall owner and alleged that they failed to follow safety regulations and standards regarding curb heights, wheel stops, bumper guards, or other devices to protect pedestrians on the sidewalk. At the time of the incident the Defendant’s parking lot was covered by two inches of hard packed snow, which provided no barrier between the parking lot and sidewalk.

According to the Plaintiff’s expert, the industry standard and local zoning codes suggested a minimum of a six-inch curb, which he opined would have been sufficient to prevent this incident. Had the case proceeded to trial the Plaintiff would have introduced evidence of a nearly identical incident within close proximity to this one.

The case settled prior to trial for $950,000.

Hardship Licenses - You Can Get It Sooner Than You Think

In past articles I have indicated that a hardship license is a 12-hour license which can be for any 12-hour period, but must begin and end on the hour. It cannot be on the half hour. Usually when the Registry of Motor Vehicles sends a Notice of Suspension it will also contain a clause that you may apply for a hardship license after you have served 50% of your suspension. In a second offense OUI case, you will also be required to have an interlock device installed on your vehicle for the entire length of the suspension plus two years following. The important thing to remember is that even though the Registry's letter indicates when you can apply for the hardship license, we at Ianello Legal Associates can, in the event of extreme hardship, obtain a 12-hour work or school license before the 50% time period has elapsed. A hardship license is usually crucial to preserving your home and employment.

$4.6 Million Settlement

A $4.6 million settlement was reached for an electrician's apprentice who was crushed by a mechanical lift.

We have all seen those scissor-type mechanical lifts used in the construction industry. The interesting legal theory which resulted in the settlement was that the provider or lessor of the scissor lift failed to provide any instructions, safety precautions, or warnings relative to the use of the machine.

The failure to do so provided the plaintiff with enough factual and legal basis to persuade the insurance company to settle. The injuries were substantial in that the plaintiff had a closed head injury, bi-lateral femur fractures, a left acetabular fracture (socket of the hip joint), multiple facial fractures, teeth evulsions, partial vision loss, and multiple scarring which resulted in the plaintiff being permanently disabled for the rest of his life.

Hip Procedure Causes Severe Nerve Damage

The plaintiff, 64, was experiencing increased pain and stiffness in his right hip and was deemed a candidate for a total hip replacement. During the procedure his sciatic nerve was lacerated, which probably occurred when the electrocautery came too close to the nerve. After the surgery the plaintiff was numb from his hipto his foot and had severe pain.

An EMG and nerve conduction study revealed the plaintiff suffered sciatic nerve damage with severe right-sided sciatic neuropathy and severe axonal loss. The plaintiff experienced decreased sensation and motor function and persistent numbness and burning pain from his right knee to his toes. He was required to use a cane to walk and to wear a compression dressing on his right foot up to his knee. The plaintiff alleged that the hospital and its employees and/or agents deviated from the applicable standard of care and caused permanent damage to his sciatic nerve during surgery.

The case settled for $450,000 prior to filing suit.

Infant Suffers Stroke During Birthing Process

The plaintiff presented to the hospital for induction of labor at 37 weeks. The defendant doctor assumed her care at approximately 6:30 p.m. The plaintiff began the second stage of labor, also known as the pushing stage, at approximately 2:40 a.m. By 5:15 a.m. the baby failed to descend any further due to the plaintiff's abnormally narrow pelvic outlet. Additionally, the fetal heart monitor had changed from a normal heart rate to troubling patterns of slow rates. The defendant did not perform another exam until 7:45 a.m. at which time there was no improvement in the baby's positioning and the heart rate had become rapid. Despite this the defendant continued with vaginal delivery efforts until his shift ended.

The next doctor to assume the plaintiff's care examined her at approximately 9:15 a.m. and immediately decided to perform a C-section as there was no progress made in over six hours, the pelvic outlet was too small, and the changes in the baby's heart rate. The baby was delivered by C-section and appeared to be healthy; however, by nine months the plaintiff noticed that the baby was not using his right arm and leg as much as his left and notified his pediatrician who referred him to a neurologist. The neurologist determined that the baby suffered a prenatal stroke.

At trial the plaintiff's expert testified that the stroke was caused by a lack of blood flow to the “watershed” area of the brain. The expert also opined that this was caused by the decreased fetal heart rate and intracranial pressure caused by the many hours of contractions. The expert testified that had the defendant performed a Csection in a timely manner the child's permanent injuries would have been avoided.

The child has undergone many years of physical and occupational therapy; however, he only has minimal use of his right hand and arm and walks with a limp.

After four hours of deliberation, the jury awarded the child $1.8 million and each parent $250,000.

Operating Under the Influence of Drugs

Recently the Supreme Court announced that a person who is charged with operating< under the influence of drugs includes narcotics, stimulants, or depressants, but only those specifically defined pursuant to Chapter 94C of the Massachusetts Controlled Substance Act.

Our Supreme Judicial Court reversed the conviction of a defendant who had stimulants and depressants in her system which were discovered from a hospital blood test. The Commonwealth could not prove that the drugs in the defendant's system were those specifically required for a conviction.

The interesting part about this case is that there have been many individuals over the years who have pled guilty or been found guilty who may have been innocent. In the event that your criminal record is affected, you may want to go back to court to have your guilty plea withdrawn or your conviction overturned, if it has affected your criminal record. Call us if we can be of any assistance.

Sobriety Checkpoints

Sobriety checkpoints were deemed to be constitutional. In two cases the defendants attacked the sobriety checkpoints as unconstitutional because the first stop is made by an officer or state trooper who inquires as to whether someone has been drinking or not. It is at that point that the trooper makes a determination as to whether or not you are to be directed to a second checkpoint where you are asked to perform field sobriety testing< as well as a breath test.

The lower courts both felt that the checkpoint was unconstitutional because it was purely discretionary on the part of the first officer or state trooper's judgment as to whether or not you should proceed to the second checkpoint. The Supreme Judicial Court, however, reversed the lower court and decided that it was constitutional as long as the officer's training and experience will allow him to differentiate between someone who is merely drinking (which is not a crime) and someone who may be under the influence as noted by the smell of alcohol, the responses from the person, and observations about speech, movement, etc.

The court did not change the existing law that a person instructed to proceed to the second checkpoint does not have to submit to any field sobriety testing or breath testing as such refusals are still constitutionally protected.

Late Diagnosis of Cancer Results in Death

In 2002 a 76-year-old woman underwent a pelvic exam and her doctor scheduled a CT scan thereafter. The CT scan report came back as “normal”. In February of 2006 she visited her doctor with a report of blood in her urine, and a second CT scan was ordered with comparison made to the 2002 CT scan.

It was noted that the 2006 scan measured endometrial thickness to be 22mm compared to 17mm in 2002. Following this the patient was properly diagnosed and it was determined that she had endometrial cancer. Due to the delayed diagnosis a radical hysterectomy and other related procedures were performed. She was discharged from the hospital on February 27, 2006, and died on July 15, 2006, of complications from the cancer.

The Plaintiff’s expert was prepared to testify that had a proper diagnosis been made in 2002, the appropriate intervention could have been done before the cancer became more advanced and ultimately metastasized. The Plaintiff sued on the theory that the Defendant deprived her of her best chance for survival. The case settled for $600,000.

Arbitration Awards

Arbitration is an option to a civil trial. Civil trials usually take 18 to 30 months to conclude from the time suit is filed, whereas an arbitration can be scheduled within 6 to 12 months.

Arbitration is an informal hearing before an arbitrator (usually a retired judge or a lawyer) who will hear the case and make a finding on fault and damages. The arbitrator’s award is binding upon the parties. We find arbitrations to be more consistent than jury trials. Juries over the years seem to be very critical from years of insurance company propaganda.

A client of ours was riding his motorcycle and was injured when the defendant negligently and carelessly made a left turn in front of him. He sustained a back injury which resulted in a 7% impairment. We were able to show the cost of future medical expenses if further treatment became necessary. A retired judge was appointed arbitrator, and he issued an award of $135,000 to our client.

What is a Limo or Taxi Cab Company’s Responsibility?

A limo or taxi cab company, not a common carrier, may now be held accountable to an injured third party for negligence if the driver knew or should have known that a passenger was intoxicated and would likely drive an automobile which would cause injury to an innocent third party motorist.

In other words, if a taxi or limo driver knows or should have known that their patron is intoxicated and delivers that patron to a location where it is obvious or foreseeable that the patron will be operating a motor vehicle, the driver and his/her company will be liable for the harm caused to an innocent motorist.

Absent from the case is what the driver of the limo or taxi cab should do if one of their passengers is drunk. Should the driver call the police? Should the driver take the person home against his will? Should the driver take the person’s keys away? It is likely that this type of case will be a problem for both plaintiffs and defendants.

Commerce Insurance Company v. Ultimate Livery Services, 452 M. 639 (2008)

Disability Retirement

The Supreme Judicial Court of Massachusetts has recently allowed an employee of the City of Salem to recover accidental disability retirement benefits when, as a result of being told that her employment would be eliminated in the upcoming budget, she suffered a heart attack which ultimately led to her death.

The Contributory Retirement Appeal Board (CRAB) determined that the employee was entitled to accidental disability retirement benefits. The Supreme Judicial Court affirmed (or agreed with) that ruling.

This is the first case in Massachusetts that dealt with the issue of an accident caused by news of a termination. It would seem even a layoff would apply. This case, though, only applies to city or state employees.

Junior Operators

The Junior Operator’s Bill was signed into law on January 3, 2007. This new law placed significant restrictions on junior operators within the Commonwealth. An individual is deemed to be junior operator if they are under eighteen years of age and are within the first six months of receiving their license.

Some of the new restrictions include a junior operator may not operate a motor vehicle with a passenger under the age of 18 unless accompanied by a person who is at least 21 and a junior operator may not operate a motor vehicle between the hours of midnight and 5:00 a.m. unless accompanied by a parent. Penalties for violating these provisions include a 60-day suspension of their license and a $100 reinstatement fee.

The penalties a junior operator faces for moving traffic violations are severe. A speeding ticket will result in a 90-day suspension of their license, completion of the Driver Attitudinal Retraining course and State Courts Against Road Rage (“SCARR”) course, payment of a $500 reinstatement fee, and retake and pay for the permit test and road test. The penalties are even more severe for other serious motor vehicle infractions.

If your child is a junior operator and receives a citation from a police department, contact us immediately to learn about your child’s rights to a hearing and the opportunity to save their license.

Child Endangerment While Operating a Motor Vehicle Under the Influence of Intoxicating Liquor

A law that has been on the books since 2005 which revamped many of the laws relating to operating under the influence all the way to manslaughter convictions is now being used very aggressively by police departments.

That law passed in 2005 provides enhanced penalties for any person who operates a motor vehicle under the influence of intoxicating liquor while having a child as a passenger in the vehicle who is 14 years of age or younger.  In addition to all other penalties for the OUI conviction, there is an additional penalty of $1,000 to $5,000 and imprisonment in the House of Corrections for 90 days to 21/2 years.

For a second offense or violation under this section, the Defendant will be punished by a fine between $5,000 and $10,000 and by imprisonment in the House of Corrections for six months to 21/2 years or state prison for three to five years.  Imprisonment imposed upon such person shall not be reduced to less than six months (mandatory) nor suspended nor shall any such person be eligible for probation, parole, or furlough until six months has transpired.

In addition to the sentence above, the registrar shall suspend the license or right to operate of a person who violates this section for a first offense of one year and a penalty of a three-year loss of license or suspension for three years for a second or subsequent violation.

Needless to say, this is a tough law with tough penalties which is now being enforced on a regular basis, and caution must be used when transporting children.