A seller of alcohol was liable for the negligent acts of a minor to a third party.
The court has now expanded the ruling to include not only sales to minors but also sales to a minor who obtains alcohol and gives it to another minor. If the minor who ultimately received the liquor injures a third party, the liquor establishment or package store will be held responsible.
The court decided this case on the basis that the sale to a minor, whether or not it is transferred to another minor, is foreseeable in today’s society. Whenever alcohol is involved in a personal injury case this aspect must be investigated thoroughly as there may be additional assets or insurance coverage available to secure a proper settlement or award.
At Ianello & Brittain P.C., we have a great deal of experience in handling these cases. Call us anytime you need our help.
Ianello & Brittain P.C. located in Western Massachusetts, with offices in Springfield, represent you in personal injury and criminal cases.
Monday, August 30, 2010
Friday, August 27, 2010
IMPORTANT AUTOMOBILE INSURANCE – MEDICAL PAYMENTS BENEFITS
The law has changed with reference to Medical Payments (“Med Pay”) benefits to cover medical expenses as a result of injuries sustained in an automobile accident.
Before the new law, if you had sustained injuries in an automobile accident, your automobile insurance company would pay the first $2,000 in medical bills and/or lost wages under your Personal Injury Protection (“PIP”) benefits. If you had health insurance coverage, the remaining medical bills would be submitted to your health insurance company. If you had a claim against a third-party and recovered damages, the health insurance company would have to be paid back out of your settlement. The result would have been that you would receive that much less in your pocket.
The new change is significant in that after the first $2,000 has been paid by PIP, the remainder would be paid by Med Pay if you carried this optional coverage. If your claim against a third party were settled, the Med Pay benefits would not have to be paid back, which would result in significantly more money in your pocket. Since this optional coverage can be purchased through your insurance agent at a very low premium, I strongly urge you to call your insurance agent and add this coverage to your policy.
Before the new law, if you had sustained injuries in an automobile accident, your automobile insurance company would pay the first $2,000 in medical bills and/or lost wages under your Personal Injury Protection (“PIP”) benefits. If you had health insurance coverage, the remaining medical bills would be submitted to your health insurance company. If you had a claim against a third-party and recovered damages, the health insurance company would have to be paid back out of your settlement. The result would have been that you would receive that much less in your pocket.
The new change is significant in that after the first $2,000 has been paid by PIP, the remainder would be paid by Med Pay if you carried this optional coverage. If your claim against a third party were settled, the Med Pay benefits would not have to be paid back, which would result in significantly more money in your pocket. Since this optional coverage can be purchased through your insurance agent at a very low premium, I strongly urge you to call your insurance agent and add this coverage to your policy.
Thursday, August 26, 2010
Trebled Damages for Unauthorized Cutting Down of Trees
A jury recently found a defendant responsible for cutting down his neighbor’s trees without permission and awarded the neighbor $30,000 in damages. The neighbor proved by expert testimony that the replacement value of the trees came to $30,000. What the average person does not know is that the law under M.G.L. c. 242 §7, requires any damages to be tripled. Thus the final award was $90,000 plus interest and costs.
You must receive written permission from your neighbor to cut down trees which may block your view or for any other personal reasons. If you are able to obtain a written permission slip describing the details permitted, make sure that you give a copy to the tree service because they will not perform the service on someone else’s property without written authorization.
You must receive written permission from your neighbor to cut down trees which may block your view or for any other personal reasons. If you are able to obtain a written permission slip describing the details permitted, make sure that you give a copy to the tree service because they will not perform the service on someone else’s property without written authorization.
Wednesday, August 25, 2010
CDL Rules and Regulations Applicable to OUI
This is a federal regulation adopted by the Federal Motor Carrier Safety Administration applicable to all commercial drivers’ licenses across the country. Our Massachusetts Registry of Motor Vehicles is mandated to follow these rules and regulations.
A first offender who holds a CDL will lose his privilege for one year and his employer must place the employee “out of service” until such time as his CDL has been reinstated. A second offense requires a lifetime suspension whether or not a commercial or non-commercial motor vehicle was being operated at the time of the offense. This penalty is a lifetime loss of license. The offender after ten (10) years may appeal the suspension, as long as he attends an alcohol rehabilitation program mandated by the state, but there is no guarantee that his CDL will be restored.
Unfortunately, our Board of Appeals which normally has authority in applicable cases to issue a hardship license has no authority to issue a hardship commercial driver’s license. For more complete information visit our website at www.iblawpc.com under important links, additional resources, Federal Motor Carrier Safety Administration - Rules and Regulations.
A first offender who holds a CDL will lose his privilege for one year and his employer must place the employee “out of service” until such time as his CDL has been reinstated. A second offense requires a lifetime suspension whether or not a commercial or non-commercial motor vehicle was being operated at the time of the offense. This penalty is a lifetime loss of license. The offender after ten (10) years may appeal the suspension, as long as he attends an alcohol rehabilitation program mandated by the state, but there is no guarantee that his CDL will be restored.
Unfortunately, our Board of Appeals which normally has authority in applicable cases to issue a hardship license has no authority to issue a hardship commercial driver’s license. For more complete information visit our website at www.iblawpc.com under important links, additional resources, Federal Motor Carrier Safety Administration - Rules and Regulations.
Tuesday, August 24, 2010
Employer’s Liability for Alcohol Consumption
The court recently affirmed an appeals court case that decided that an employer cannot be held liable for injuries to a third party caused by its employee’s negligence in the operation of his motor vehicle. The employee had been out at a restaurant consuming alcohol with his company’s supervisor for the purpose of discussing company business. After the employee left the restaurant, he was no longer on company business and was on his way home when the accident happened.
The court purposefully ruled that after the meeting had ended at the restaurant, the employer had ceased to be responsible even though the consumption of alcohol by the employee was sanctioned by his supervisor with whom he had the company meeting. It seems that one of the important factors that the court took into consideration was that the employee bought and paid for his own liquor and presumably was responsible for his own intake of alcohol. The court also spent time analyzing the going and coming rule which in most cases with the exception of police officers and those who work from their homes, are not working when they travel to and from their work place. A tough case nonetheless.
The court purposefully ruled that after the meeting had ended at the restaurant, the employer had ceased to be responsible even though the consumption of alcohol by the employee was sanctioned by his supervisor with whom he had the company meeting. It seems that one of the important factors that the court took into consideration was that the employee bought and paid for his own liquor and presumably was responsible for his own intake of alcohol. The court also spent time analyzing the going and coming rule which in most cases with the exception of police officers and those who work from their homes, are not working when they travel to and from their work place. A tough case nonetheless.
Monday, August 23, 2010
Restraining Order
Massachusetts General Law provides that family or household members may apply for a restraining order against another family or household member who has attempted to cause or has caused physical harm or placed another in fear of imminent serious physical harm or caused another to engage in involuntary sexual relations.
It is interesting to note that in addition to those originally intended for its protection such as husbands and wives and those living together, the statute has been expanded to those related by blood or marriage and those having a child in common regardless of whether they have ever been married. A substantive dating or engagement relationship is also covered.
The technical aspects of this law can easily be overlooked. Since the issuance of a restraining order usually contains serious conditions, it is essential to make sure that those conditions are not unfairly or arbitrarily applied. Conditions which are doomed for failure will result in a criminal complaint against the defendant for violation of the restraining order, which could result in incarceration.
It is interesting to note that in addition to those originally intended for its protection such as husbands and wives and those living together, the statute has been expanded to those related by blood or marriage and those having a child in common regardless of whether they have ever been married. A substantive dating or engagement relationship is also covered.
The technical aspects of this law can easily be overlooked. Since the issuance of a restraining order usually contains serious conditions, it is essential to make sure that those conditions are not unfairly or arbitrarily applied. Conditions which are doomed for failure will result in a criminal complaint against the defendant for violation of the restraining order, which could result in incarceration.
Friday, August 20, 2010
INCREASED SMALL CLAIMS FEES
Effective August 1, 2010, the small claims limit was raised from $2,000 to $7,000. However with that the courts have taken advantage of tough times and have raised all of the filing fees. The filing fee will depend on the amount of the claim:
• $500 or less.................$40
• $501 to $2,000...............$50
• $2,001 to $5,000.............$100
• $5,001 to 7,000..............$150
Personal injury cases may now be filed in small claims court as long as the damages awarded won’t be more than $7,000. This is a significant change in that insurance companies on behalf of the defendant will no longer have the opportunity to sit on small cases for the usual two years it takes to get a case to trial or if they wish to proceed to trial and receive an adverse judgment, they have a right of appeal. Remember that the defendant has a right to appeal, the plaintiff does not. However if the defendant appeals from an adverse judgment, the primary or original judgment may be entered as evidence in court in the second trial. In essence, the original judgment is enough proof in and of itself to allow the court or jury to find for the plaintiff once again, without the plaintiff having to present any evidence. One other feature is that if the defendant transfers the case to the regular civil docket and loses, the defendant or his insurer will have to pay the plaintiff attorney fees.
One further quick note is that M.G.L. c. 93A, our consumer protection act, wherein double or triple damages plus attorney’s fees may be awarded, should not be effected by the $7,000 maximum. In other words, if the damages are $7,000 and there has been a violation of c. 93A, theoretically the magistrate may triple that amount to $21,000. The magistrate may also award attorney’s fees as well uneffected by the $7,000 limit. Accordingly, since an insurance company may be sued for bad faith in the small claims court you will now probably see the pendulum swing more equitably in favor of the injured. Let's hope so anyway.
• $500 or less.................$40
• $501 to $2,000...............$50
• $2,001 to $5,000.............$100
• $5,001 to 7,000..............$150
Personal injury cases may now be filed in small claims court as long as the damages awarded won’t be more than $7,000. This is a significant change in that insurance companies on behalf of the defendant will no longer have the opportunity to sit on small cases for the usual two years it takes to get a case to trial or if they wish to proceed to trial and receive an adverse judgment, they have a right of appeal. Remember that the defendant has a right to appeal, the plaintiff does not. However if the defendant appeals from an adverse judgment, the primary or original judgment may be entered as evidence in court in the second trial. In essence, the original judgment is enough proof in and of itself to allow the court or jury to find for the plaintiff once again, without the plaintiff having to present any evidence. One other feature is that if the defendant transfers the case to the regular civil docket and loses, the defendant or his insurer will have to pay the plaintiff attorney fees.
One further quick note is that M.G.L. c. 93A, our consumer protection act, wherein double or triple damages plus attorney’s fees may be awarded, should not be effected by the $7,000 maximum. In other words, if the damages are $7,000 and there has been a violation of c. 93A, theoretically the magistrate may triple that amount to $21,000. The magistrate may also award attorney’s fees as well uneffected by the $7,000 limit. Accordingly, since an insurance company may be sued for bad faith in the small claims court you will now probably see the pendulum swing more equitably in favor of the injured. Let's hope so anyway.
Tuesday, August 17, 2010
Government Allowed to Retain DNA Sampling
In a recent decision in the Federal Court it was decided that a person who is convicted and consequently must provide a DNA sample cannot have that sample destroyed and cannot have the DNA information collected expunged from the data base once he has finished his sentence or probationary period.
The DNA Act authorizes the government to use such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample. Even if the person cooperates, once collected, a qualified federal offender’s sample is analyzed by the FBI to create a DNA profile. The DNA profile is then loaded into the FBI computer called CODIS short for Combined DNA Index System. CODIS is a three tiered system which links databases maintained at local, state, and national levels. There are over eight million offender profiles in the system and over 300,000 forensic profiles. The government claims that it has assisted in producing 120,000 matches as of June 2010. This has assisted in 117,000 investigations of various crimes nationwide.
The probationer in this case was never sentenced to prison but to a one year term of probation during which time he had to submit his DNA sample. The court concluded that the DNA sample was not an unreasonable search and seizure under the Fourth Amendment and allowed the government to retain the sample and the DNA profile. It will be interesting to see if contamination or human error will lead to false charges and wrongful convictions. Only time will tell.
The DNA Act authorizes the government to use such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample. Even if the person cooperates, once collected, a qualified federal offender’s sample is analyzed by the FBI to create a DNA profile. The DNA profile is then loaded into the FBI computer called CODIS short for Combined DNA Index System. CODIS is a three tiered system which links databases maintained at local, state, and national levels. There are over eight million offender profiles in the system and over 300,000 forensic profiles. The government claims that it has assisted in producing 120,000 matches as of June 2010. This has assisted in 117,000 investigations of various crimes nationwide.
The probationer in this case was never sentenced to prison but to a one year term of probation during which time he had to submit his DNA sample. The court concluded that the DNA sample was not an unreasonable search and seizure under the Fourth Amendment and allowed the government to retain the sample and the DNA profile. It will be interesting to see if contamination or human error will lead to false charges and wrongful convictions. Only time will tell.
Friday, August 13, 2010
Nursing Home Contracts
Nursing homes are now putting language in their contracts with their residents (or with a relative with a health care proxy) which requires, in a dispute over care or injuries, resolving the matter in an arbitration forum.
In the case of Miller vs. Cotter the Supreme Judicial Court ruled that a lawsuit was precluded by the arbitration clause which was signed by the son who had the requisite authority to make a binding agreement on behalf of his 91-year-old father. This is a significant ruling because arbitration awards are generally non-appealable and generally result in an award that is much less than a jury award. They may also be limited in the type and amount of damages which may be awarded.
Absent fraud, duress, or undue influence, arbitration agreements are enforceable in the context of nursing home agreements and, therefore, have become your only remedy in resolving disputes of negligence or substandard care which you may have alleged against a nursing home facility.
To read our five steps to protect your loved ones from nursing home neglect, please visit our Important Links page, click on Law and Penalties, then click on Nursing Home Neglect.
Always keep in mind that if you have any questions concerning a possible claim, our consultations by phone or in person are always free.
In the case of Miller vs. Cotter the Supreme Judicial Court ruled that a lawsuit was precluded by the arbitration clause which was signed by the son who had the requisite authority to make a binding agreement on behalf of his 91-year-old father. This is a significant ruling because arbitration awards are generally non-appealable and generally result in an award that is much less than a jury award. They may also be limited in the type and amount of damages which may be awarded.
Absent fraud, duress, or undue influence, arbitration agreements are enforceable in the context of nursing home agreements and, therefore, have become your only remedy in resolving disputes of negligence or substandard care which you may have alleged against a nursing home facility.
To read our five steps to protect your loved ones from nursing home neglect, please visit our Important Links page, click on Law and Penalties, then click on Nursing Home Neglect.
Always keep in mind that if you have any questions concerning a possible claim, our consultations by phone or in person are always free.
Thursday, August 12, 2010
Changes to Drug Evidence
Drug Certificates are no longer accepted to prove the type, quality and quantity of the drug evidence against a defendant. The Supreme Court in the famous case of Melendez-Diaz v. Massachusetts now requires that a chemist who is an expert in drug analysis be called as an expert witness to prove the type and quantity of the drugs which the Commonwealth intends to use or introduce against the defendant before the court will allow that to happen.
While the new law will create a tougher burden upon the Commonwealth, the testimony by the expert which is subject to cross examination by the defendant’s attorney assures that the claimed drug quantity and quality is what it purports to be.
Although this is a heavier and costlier burden in the prosecution of these cases, hopefully the Commonwealth will spend its energies on the larger cases rather than those which are minor or insignificant.
While the new law will create a tougher burden upon the Commonwealth, the testimony by the expert which is subject to cross examination by the defendant’s attorney assures that the claimed drug quantity and quality is what it purports to be.
Although this is a heavier and costlier burden in the prosecution of these cases, hopefully the Commonwealth will spend its energies on the larger cases rather than those which are minor or insignificant.
Wednesday, August 11, 2010
Check the National Driver Register
This entity is a government registration bureau that requires all state Registry of Motor Vehicle departments throughout the United States to file reports of violations and license suspensions of all drivers.
If you have had any traffic violations or suspensions of your right to operate outside of Massachusetts or outside of your home state, it would be wise to request a record check.
Since a notice of suspension is often triggered by an open case from a foreign state it may take some time for Massachusetts to notify you of a suspension. By checking you will be able to clear up the outstanding matter and avoid suspension of your driver’s license.
Upon completing the appropriate form, the National Driver Register will provide you with all information, if any, free of charge. To obtain a copy of this form please go to our website at www.iblawpc.com for a link to the register which will provide you with a request form as well as filing instructions.
If you have had any traffic violations or suspensions of your right to operate outside of Massachusetts or outside of your home state, it would be wise to request a record check.
Since a notice of suspension is often triggered by an open case from a foreign state it may take some time for Massachusetts to notify you of a suspension. By checking you will be able to clear up the outstanding matter and avoid suspension of your driver’s license.
Upon completing the appropriate form, the National Driver Register will provide you with all information, if any, free of charge. To obtain a copy of this form please go to our website at www.iblawpc.com for a link to the register which will provide you with a request form as well as filing instructions.
Tuesday, August 10, 2010
Automobile Insurance You Must Have
Oftentimes when clients come into our office as a result of a motor vehicle collision in which they have sustained serious injury, our first question is, “What do you have for automobile insurance coverage that protects you in the event that the wrongdoer has inadequate insurance?”
The response is nearly universal: “I have full coverage.” Unfortunately, very few realize that insurance agents keep insurance rates to a minimum at your expense by failing to recommend insurance coverage that will protect you in the event of serious or catastrophic and permanent injuries.
If you look at your insurance coverage selection page, you will find that the mandatory coverage is 20/40. This means that in the event that the wrongdoer is insured for only $20,000, your maximum recovery is only $20,000. It makes no difference how serious your injuries are; the $20,000 maximum will apply.
We recommend that you consult with your insurance agent and obtain quotes for a minimum of $100,000 for the following:
#3 Uninsured Coverage
#12 Underinsured Coverage
#5 Optional Bodily Injury to Others
#6 Medical Payments
With reference to medical coverage, most people believe that $8,000 in Personal Injury Protection Benefits (PIP) is adequate. Today, if you miss work and you have medical bills and lost wages that exceed $8,000, your coverage ends. Even if your health insurance pays your bills, the insurer will have a lien on your case and must be paid back out of your recovery. By having the extra coverage (#6 – Medical Payments), your bills and medical liens will likely be paid in full.
If you have any questions or require any assistance in determining the appropriate insurance coverage to protect yourself, please feel free to call us for help.
The response is nearly universal: “I have full coverage.” Unfortunately, very few realize that insurance agents keep insurance rates to a minimum at your expense by failing to recommend insurance coverage that will protect you in the event of serious or catastrophic and permanent injuries.
If you look at your insurance coverage selection page, you will find that the mandatory coverage is 20/40. This means that in the event that the wrongdoer is insured for only $20,000, your maximum recovery is only $20,000. It makes no difference how serious your injuries are; the $20,000 maximum will apply.
We recommend that you consult with your insurance agent and obtain quotes for a minimum of $100,000 for the following:
#3 Uninsured Coverage
#12 Underinsured Coverage
#5 Optional Bodily Injury to Others
#6 Medical Payments
With reference to medical coverage, most people believe that $8,000 in Personal Injury Protection Benefits (PIP) is adequate. Today, if you miss work and you have medical bills and lost wages that exceed $8,000, your coverage ends. Even if your health insurance pays your bills, the insurer will have a lien on your case and must be paid back out of your recovery. By having the extra coverage (#6 – Medical Payments), your bills and medical liens will likely be paid in full.
If you have any questions or require any assistance in determining the appropriate insurance coverage to protect yourself, please feel free to call us for help.
Monday, August 9, 2010
PROTECT YOURSELF FROM IDENTITY THEFT/FRAUD
Today, more and more people are aware of the dramatic increases in identity theft/fraud thanks to a variety of media outlets. However, very few people take proactive steps to protect themselves from identity theft/fraud. Below, we have listed some simple steps to protect yourself from identity theft /fraud as well as what you should do if your wallet is lost or stolen.
1. The next time you order checks do not use your full name. Use your first name initial and your last name. If you have a P.O. Box, use that rather than your home address. Never have your social security number printed on the checks. If a merchant requires your phone number on the check, use your work number.
2. When writing checks to pay credit cards, do not write your entire account number on the check. Instead, write just the last four numbers of your account number.
3. Do not sign the back of your credit cards. Instead, write “Photo ID Required”
4. Photocopy the contents of your wallet. This includes your license, credit cards, social security card, etc. Place the photocopies in a safe place where they can be quickly retrieved if your wallet is lost or stolen.
5. If your wallet is ever lost or stolen, you should IMMEDIATELY:
a. Report all credit cards lost or stolen;
b. File a police report; and
c. Call the three national credit reporting organizations to place a fraud alert on your name and social security number. This is particularly important as the company that checks your credit will know your information was lost or stolen and will have to contact you to authorize new credit.
6. Below are the numbers you will need if your wallet, I.D., etc. has been stolen:
a. Equifax: 1-800-525-6285
b. Experian: 1-888-397-3742
c. Trans Union: 1-800-680-7289
d. Social Security Administration (fraud line): 1-800-269-0271
1. The next time you order checks do not use your full name. Use your first name initial and your last name. If you have a P.O. Box, use that rather than your home address. Never have your social security number printed on the checks. If a merchant requires your phone number on the check, use your work number.
2. When writing checks to pay credit cards, do not write your entire account number on the check. Instead, write just the last four numbers of your account number.
3. Do not sign the back of your credit cards. Instead, write “Photo ID Required”
4. Photocopy the contents of your wallet. This includes your license, credit cards, social security card, etc. Place the photocopies in a safe place where they can be quickly retrieved if your wallet is lost or stolen.
5. If your wallet is ever lost or stolen, you should IMMEDIATELY:
a. Report all credit cards lost or stolen;
b. File a police report; and
c. Call the three national credit reporting organizations to place a fraud alert on your name and social security number. This is particularly important as the company that checks your credit will know your information was lost or stolen and will have to contact you to authorize new credit.
6. Below are the numbers you will need if your wallet, I.D., etc. has been stolen:
a. Equifax: 1-800-525-6285
b. Experian: 1-888-397-3742
c. Trans Union: 1-800-680-7289
d. Social Security Administration (fraud line): 1-800-269-0271
Friday, August 6, 2010
MASSACHUSETTS SUPREME JUDICIAL COURT ABOLISHES NATURAL ACCUMULATION RULE
Massachusetts up until a recent decision followed the rule that a person who was injured by a fall caused by a natural accumulation of ice or snow could not recover. In other words, a land owner or occupier had no obligation to sand or salt a sidewalk, parking lot or driveway as long as nature created the defect. Even if there was a rain storm or sleet storm which coated an owner or occupier’s property with a sheet of ice, there was no obligation to sand, salt or remove the ice. Massachusetts now follows the majority rule throughout the U.S. that a land owner or occupier must keep the premises in a reasonably safe condition for all those persons who are lawfully on the owner or occupier’s property. Many of the quite serious and debilitating injuries were suffered by the elderly and handicapped because they neither have the physical skills nor the reflexes to appreciate and avoid the danger.
The new law is a good one as it will force homeowners to shovel their walks and clear their driveways and businesses to make sure that their parking lots are properly plowed, salted, sanded and maintained throughout our winter season. In the long run this will avoid many injuries to those that can least afford it.
The new law is a good one as it will force homeowners to shovel their walks and clear their driveways and businesses to make sure that their parking lots are properly plowed, salted, sanded and maintained throughout our winter season. In the long run this will avoid many injuries to those that can least afford it.
Thursday, August 5, 2010
VIOLATION OF PUBLIC POLICY RESULTS IN A WRONGFUL DISCHARGE
The general rule in Massachusetts does not protect an at-will employee (an employee without a contract) who has been fired for complaints about internal company policies or a violation of a company rule even though in reporting the violation the employee’s intent was made in good faith and was reasonable under all of the circumstances.
There is, however, a public policy exception which protects employees from complaining about violations of public policy. For example, recently there was a case where an appliance dealer forced an employee to install appliances requiring plumbing and electrical work when it knew that a licensed plumber and licensed electrician were required. There was also a violation in that the proper permits and inspections were not obtained. The employee’s case was allowed to proceed under a wrongful discharge claim because it was confirmed that his installations without license and without permit were against the law and these laws were passed to protect the safety and health of the public. So remember, when purchasing new appliances make sure that the dealer, if providing free installation, provides a licensed plumber or electrician and also verify that a proper permit has been issued. Your safety as well as your families is at stake.
There is, however, a public policy exception which protects employees from complaining about violations of public policy. For example, recently there was a case where an appliance dealer forced an employee to install appliances requiring plumbing and electrical work when it knew that a licensed plumber and licensed electrician were required. There was also a violation in that the proper permits and inspections were not obtained. The employee’s case was allowed to proceed under a wrongful discharge claim because it was confirmed that his installations without license and without permit were against the law and these laws were passed to protect the safety and health of the public. So remember, when purchasing new appliances make sure that the dealer, if providing free installation, provides a licensed plumber or electrician and also verify that a proper permit has been issued. Your safety as well as your families is at stake.
Wednesday, August 4, 2010
ARGUMENT OR DISAGREEMENT MAY TURN INTO CRIMINAL HARRASSMENT CHARGE
It is now a misdemeanor to willfully and maliciously engage in a known pattern of conduct over a period of time directed at a person, which “seriously alarms” that person so that it would cause a reasonable person to suffer “substantial emotional distress”. The punishment for this misdemeanor is two and half years in the House of Correction or by a fine of not more than $1,000 or both.
The conduct which this law seeks to control would be any contact conducted by mail or by use of telephone or telecommunication devices. Any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photo-electronic, or photo optical system would be included along with email and other internet communications such as instant messaging directed at another. It is obvious from a reading of the law that the intent is to control the boom in technology related communication devices.
Our guess at Ianello & Brittain is that the term “substantial emotion distress” will be tested and contested in nearly every prosecution. Name calling or the use of vulgar or indecent language or gestures could cause a reasonable person to suffer “substantial emotional distress”. Some words or gestures might “seriously alarm” one person but might not alarm another. What might be offensive to one person may not be offensive to another. If a person takes things literally, then even communications made in jest may warrant a criminal charge. A valid constructive criticism lodged against another which “seriously alarms” that person or causes that person to suffer “substantial emotional distress” may now be a crime. If we don’t tread softly, and reflect more about the laws which our elected officials are passing these days, we may find our first amendment rights being usurped by our ever growing socialist population.
The conduct which this law seeks to control would be any contact conducted by mail or by use of telephone or telecommunication devices. Any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photo-electronic, or photo optical system would be included along with email and other internet communications such as instant messaging directed at another. It is obvious from a reading of the law that the intent is to control the boom in technology related communication devices.
Our guess at Ianello & Brittain is that the term “substantial emotion distress” will be tested and contested in nearly every prosecution. Name calling or the use of vulgar or indecent language or gestures could cause a reasonable person to suffer “substantial emotional distress”. Some words or gestures might “seriously alarm” one person but might not alarm another. What might be offensive to one person may not be offensive to another. If a person takes things literally, then even communications made in jest may warrant a criminal charge. A valid constructive criticism lodged against another which “seriously alarms” that person or causes that person to suffer “substantial emotional distress” may now be a crime. If we don’t tread softly, and reflect more about the laws which our elected officials are passing these days, we may find our first amendment rights being usurped by our ever growing socialist population.
Tuesday, August 3, 2010
ANTI-BULLYING LAW
Is it legally necessary or an over-reaction? Our elected officials in another knee jerk reaction to a tragic event, a teen suicide, decided to show their sympathy by passing what is probably the most unnecessary and costly piece of legislation for school districts and law enforcement in the past 20 years. The new law defines bullying as the repeated use by a student toward another student of written, verbal or electronic expression or physical act or gesture which: 1. Causes physical or emotional harm to the victim’s property; 2. Places the victim in reasonable fear of harm to himself or of damage to his property; 3. Creates a hostile environment at school for the victim; and 4. Infringes on the rights of the victim at school or materially and substantially disrupts the education process or the orderly operation of a school. This will include cyber bullying as well. The law applies to public or private school students of an elementary or secondary school. The next logical step will be a future amendment to include college students, as well.
Cyber bullying for those of you who don’t know has been defined as the use of technology or any electronic communication which includes any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photo-electronic or photo-optical system, including but not limited to email, internet communications, instant messages or facsimile communications. Cyber bullying also includes someone who creates a web page or blog and assumes the identity of another person or a knowing impersonation of another person as the author of posted content or messages if the creation or impersonation creates any of the conditions enumerated in the previous clauses.
This is a confusing and unimaginable concoction of words, many of which are clearly prohibited from limitation by our Constitution. When will our lawmakers learn that you cannot restrict the freedom and free speech of 99.9% of the student population to protect 100th of 1%. Some things can’t be legislated and this is a good example of a law that hopefully will be struck down as unconstitutional before our cash-strapped state, cities and towns and private schools are forced to spend millions and millions of dollars to increase police, court, school and social service personnel.
Cyber bullying for those of you who don’t know has been defined as the use of technology or any electronic communication which includes any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photo-electronic or photo-optical system, including but not limited to email, internet communications, instant messages or facsimile communications. Cyber bullying also includes someone who creates a web page or blog and assumes the identity of another person or a knowing impersonation of another person as the author of posted content or messages if the creation or impersonation creates any of the conditions enumerated in the previous clauses.
This is a confusing and unimaginable concoction of words, many of which are clearly prohibited from limitation by our Constitution. When will our lawmakers learn that you cannot restrict the freedom and free speech of 99.9% of the student population to protect 100th of 1%. Some things can’t be legislated and this is a good example of a law that hopefully will be struck down as unconstitutional before our cash-strapped state, cities and towns and private schools are forced to spend millions and millions of dollars to increase police, court, school and social service personnel.
Monday, August 2, 2010
Has Your Driver’s License Been Revoked or Suspended?
You may be able to obtain a “Cinderella” or 12-hour hardship license through the “Board of Appeals”, an arm of the Registry of Motor Vehicles which can change or modify decisions of the Registry of Motor Vehicles. The Board, however, only has jurisdiction as long as the basis of the suspension has not originated from a reported suspension by another state.
Since the creation of the National Driver Register, all states report suspension to this entity. Under the law, the home state must honor suspensions from the foreign state.
The Massachusetts Registry of Motor Vehicles is mandated to suspend a person’s driver’s license until such time as their “right to operate” is reinstated in the foreign state.
For example, if your right to operate has been suspended in Connecticut and you hold a Massachusetts license, Massachusetts will suspend your license until such time as your “right to operate” has been reinstated in Connecticut. Since Connecticut is right next door, it would be easy to clear up the Connecticut matter to the satisfaction of the Board. What happens if the foreign state is Pennsylvania or Georgia, for example? It could be insurmountable.
When you have done all that is required in the foreign state, make sure all paperwork is certified, and make sure your privilege to operate has been formally restored. Since Massachusetts will require proof of reinstatement by you, make sure that you obtain a copy of the driving history in the foreign state as well.
A hardship license will be granted generally for work but may also apply to a student going to school full time. Any documents presented to the Registry must be within thirty (30) days of your hearing. Additionally, a letter from your employer, on letterhead, must state the applicant’s need for a hardship license and your hours of work. (Remember this is a 12 hour license that may be given and the hours must start on the hour not on the half hour.) The applicant will also have to show that there is no public transportation which could be a substitute.
Since the creation of the National Driver Register, all states report suspension to this entity. Under the law, the home state must honor suspensions from the foreign state.
The Massachusetts Registry of Motor Vehicles is mandated to suspend a person’s driver’s license until such time as their “right to operate” is reinstated in the foreign state.
For example, if your right to operate has been suspended in Connecticut and you hold a Massachusetts license, Massachusetts will suspend your license until such time as your “right to operate” has been reinstated in Connecticut. Since Connecticut is right next door, it would be easy to clear up the Connecticut matter to the satisfaction of the Board. What happens if the foreign state is Pennsylvania or Georgia, for example? It could be insurmountable.
When you have done all that is required in the foreign state, make sure all paperwork is certified, and make sure your privilege to operate has been formally restored. Since Massachusetts will require proof of reinstatement by you, make sure that you obtain a copy of the driving history in the foreign state as well.
A hardship license will be granted generally for work but may also apply to a student going to school full time. Any documents presented to the Registry must be within thirty (30) days of your hearing. Additionally, a letter from your employer, on letterhead, must state the applicant’s need for a hardship license and your hours of work. (Remember this is a 12 hour license that may be given and the hours must start on the hour not on the half hour.) The applicant will also have to show that there is no public transportation which could be a substitute.
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