Massachusetts Personal Injury Blog

Slip and Fall Claims and IME's in Massachusetts

If you are involved in slip and fall litigation in Massachusetts, you should be aware of the right of the defense to conduct an IME (Independent Medical Exam).  This right comes from Rule 35 of the Massachusetts Rules of Civil Procedure which states:  "When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control."

The IME will be arranged by the defense attorneys defending the case and will be paid for by the insurance company that insures the party that you are suing for injuries.  The doctor's report of his/her findings following the IME must be released to your attorney following a written request for same.

Remember that the IME doctor wants to have continued business from the insurance companies so therefore, do not be surprised if that doctor says in his/her report that you are not injured or, not injured to the extent that you claim.

Notice Requirements of Personal Injury in Massachusetts

Here are some various notice requirements in Massachusetts that you must be aware of if you have been injured:

Defects in public way causing personal injury or property damage - 30 days;

Snow or ice on a public way or private property causing personal injury or property damage - 30 days;

Ski area operators' negligence causing personal injury to skiers - 90 days;

Federal Tort Claims Act - two years for written presentment;

Massachusetts Tort Claims Act - two years for written presentment;

Hit and run accidents - must notify police and insurer within 24 hours of the accident.

Injured on a Boston Street or Sidewalk? You May Be Out of Luck

If you have tripped or fallen on a Boston sidewalk or street, and sustained injury, you face a grim reality.  G L c. 84, Sec. 15 places a $5000.00 cap on these claims.  That is right!  No matter how serious your injury, how much your medical bills amount to, and how much in lost wages you have incurred, you are still stuck with the $5000.00 cap if a defect on a street or sidewalk caused your injuries.  This law must change as it is simply absurd and unjust.  Here is the actual language of the law:

Section 15. If a person sustains bodily injury or damage in his property by reason of a defect or a want of repair or a want of a sufficient railing in or upon a way, and such injury or damage might have been prevented, or such defect or want of repair or want of railing might have been remedied by reasonable care and diligence on the part of the county, city, town or person by law obliged to repair the same, he may, if such county, city, town or person had or, by the exercise of proper care and diligence, might have had reasonable notice of the defect or want of repair or want of a sufficient railing, recover damages therefor from such county, city, town or person; but he shall not recover from a county, city, town or local water and sewer commission more than one fifth of one per cent of its state valuation last preceding the commencement of the action nor more than five thousand dollars; nor shall a county, city or town be liable for an injury or damage sustained upon a way laid out and established in the manner prescribed by statute until after an entry has been made for the purpose of constructing the way, or during the construction and repairing thereof, provided that the way shall have been closed, or other sufficient means taken to caution the public against entering thereon. No action shall be maintained under this section by a person the combined weight of whose carriage or vehicle and load exceeds six tons.

New "Massachusetts Lawyers Weekly" Publication for Non-Lawyers

Massachusetts Lawyers Weekly, a weekly publication for lawyers on news and developments in Massachusetts law, has recently launched Exhibit A.  Exhibit A is a monthly newsletter written by lawyers and intended for non-lawyers.  It is written in a way which makes the law a little less confusing and easier to understand.  It is a FREE monthly publication you can pick up at most MBTA stations.  The newsletter covers many different legal topics which you may find useful if you have specific legal questions, or, if you are just interested in the law generally.

Important New Massachusetts Snow and Ice Decision

The Massachusetts Appeals Court recently decided the case of O'Brien v. Leahy Landscaping.  In that case, the plaintiff, O'Brien, sustained a fractured wrist after slipping and falling due to snow and ice that had remained on the Defendant's premises for five days following a snow storm.  As you may know from reading this blog, the only way to create liability in Massachusetts snow and ice cases is to show the accident was caused by an 'unnatural' accumulation of ice and snow.  Many times, this is difficult, if not impossible to show.

O'Brien's lawyer successfully argued that the snow and ice had been converted to an 'unnatural' accumulation by the landowner's failure to clear it within a reasonable period of time.  This case is significant because it expands the definition of what constitutes an 'unnatural' accumulation of ice and snow in Massachusetts.  That means those injured in snow and ice accidents now have an added way in which to create liability on the part of a landowner.

Important New Massachusetts Premises Liability Decision

The Supreme Judicial Court of Massachusetts recently altered the law surrounding slip and fall accidents.  Under the traditional approach, a storeowner would only be liable if there was notice of the dangerous condition that caused the injury.  Notice could be shown in one of three ways.  First, that the owner created the dangerous condition.  Two, that the owner knew of the dangerous condition.  Three, that the owner should have known about the dangerous condition, and failed to correct it.  Establishing any one of these standards is often difficult for a plaintiff to prove.

Now, under the more modern "mode of operation" approach, a storeowner can be held liable for injuries where (1) injury is caused from a "self-service" mode of operation where customers help themselves, and the risk of injury is reasonably foreseeable and (2) the owner failed to take reasonable measures to protect against the risk of injury, and (3) that the owner failed to act reasonably.

Slip and Fall Accident Information

You would be surprised how many people in Massachusetts are significantly injured in slip and fall accidents every year.  If you are one of these people, it is important for you to know how fault, or negligence, is determined in these cases.  Here is a great post provided by Dallas personal injury attorney Jeffrey H. Rasansky over at injuryboard.com on this very topic:

Many thousands of people are injured each year -- some very seriously -- when they slip or trip and fall on a dangerous floor, a flight of stairs or a rough patch of ground. If you have been injured in this way, first consider that it is a normal part of living for things to fall or to drip on a floor or the ground, and for smooth surfaces to become uneven. Also, some things put in the ground -- a drainage grate, for example -- serve a useful purpose there. Therefore, someone who owns or occupies property cannot always be held responsible for immediately picking up or cleaning every slippery substance on a floor. Nor is a property owner always responsible for someone slipping or tripping on something that an ordinary person should expect to find there or should see and avoid. We all have an obligation to watch where we're going.

Slip and Fall Accidents and the Critical Significance of "Notice"

The success of slip and fall cases in Massachusetts hinge on the element of "notice."  Property owners in Massachusetts are required to keep their property in a reasonably safe condition free from defects.  These owners must take reasonable measures to insure their property is safe for those lawfully on the property.  In order to establish negligence on the part of a property owner, you need to show the owner had notice of the dangerous defect that caused your slip and fall injuries.

Massachusetts Slip and Fall Accidents and "Charitable Immunity"

In Massachusetts, those injured on the property of a "charitable institution" may face a grim reality.  That is because the Massachusetts charitable immunity statute found at M.G.L. 231, section 85k imposes a cap on personal injury damages at $20,000.00.  So no matter how bad your injuries, no matter how much your medical bills are, your damages will effectively be capped at $20,000.00.

Massachusetts Slip and Fall Accidents and the Intoxication Defense

Slips and falls happen each and every day in Massachusetts.  These accidents happen with greater frequency during the winter due to ice and snow accumulations.  If the property owner was negligent in failing to maintain the premises of where you fell, you may have a case.  But, if you were intoxicated at the time of the fall, that can be a problem.  Usually, the fact that you were intoxicated will not kill your case.  But, it will reduce the value of your case.  The extent of that reduction depends on the specific facts of your Massachusetts slip and fall accident.