Boston homeownersare now required to remove snow and ice from sidewalks abutting their property. Failure to do so may result in civil penalties. Here is a link to this new ordinance which will likely, if complied with by Boston homeowners, substantially reduce the incidence of slips and falls in Boston.
Here is a link to this ordinance: snow and ice clearing ordinance.
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.
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.
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.
Minors in Massachusetts cannot initiate a lawsuit. When a minor, for example, has a personal injury claim that requires litigation, the lawsuit is brought by the minor's parents. The parents, in the context of litigation, are referred to and named in the lawsuit as "next friend." At times, a guardian must be appointed and approved by a court if the parents are not alive or do not have the capacity to act as "next friend" on behalf of the minor.
Slip and fall cases are tough to win in Massachusetts. Often, an insurance company will deny a slip and fall claim because it feels that the victim caused the accident and was alone responsible for the loss. In order to defeat this notion, it is often important to hire an engineer who, through testing, photography and observation of the accident scene, can determine whose fault the Massachusetts slip and fall accident actually was.
One way that engineers do this is through a coefficient of friction test. This test will gauge the tread of the surface where you fell, and may show that the surface was somehow defective. If it is shown to be defective, you may be able to show negligence on the part of the premises owner.
In sum, if you are going to win your Massachusetts slip and fall claim with an insurance company, you usually have to retain an expert, such as an engineer, who can opine as to how your Massachusetts slip and fall accident actually occurred.
It is not easy to have success with a snow and ice, slip and fall claim in Massachusetts. The reason is that you have to show there was an "unnatural accumulation" of snow and ice that caused your accident. There are three ways under Massachusetts law to show an "unnatural accumulation" of snow and ice. They are:
1) That the premises owner somehow moved the snow and/or ice to a different location of the property and therefore created an "unnatural accumulation";
2) That the premises owner had a gutter or canopy or other man-made device on the property which somehow affected or altered the flow and creation of snow and/or ice on the property, or;
3) That a constant stream of people walked over and onto the snow and/or ice converting it from a natural accumulation into an "unnatural accumulation."
If you or your personal injury lawyer can somehow satisfy one of these elements, then your Massachusetts snow and ice, slip and fall case may have a leg to stand on. Please note, also, that these elements do not apply in the landlord/tenant context. It is generally easier to win a slip and fall on snow and/or ice case in Massachusetts when you are bringing the claim against a landlord for failure to clear snow and ice from the subject property.
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
