Massachusetts Injury Lawyer Blog

A list of the top ten consumer complaints for 2009 was just released a few days ago by the Consumer Federation of America, the National Association of Consumer Agency Administrators, and the North American Consumer Protection Investigators. The three major consumer groups jointly conducted a survey of several state, county, and city consumer agencies from a number of states across America, including several from Massachusetts, like the Cambridge Consumers' Council, the Cape Cod Consumer Assistance Council, and the MASS PIRG Consumer Action Center. The report, entitled 2009 Consumer Complaint Survey Report, was released on July 27, 2010.

Here's a summary of what they found (it's really the top 11, because #9 was a tie):

1. Auto: deceptive advertising or misrepresentation in selling or leasing cars, defective vehicles, or inadequate repairs.

2. Credit/Debt: problems with credit card companies, mortgage brokers, bill collectors, or debt relief agencies; predatory lending.

3. Home Improvement/Construction: not doing the contracted job properly, or not doing it at all.

4. Utilities: problems with electric or gas companies or cable, satellite, phone, or internet providers.

5. Retail Sales: deceptive advertising, defective merchandise, or problems with coupons, gift certificates, or rebates.

6. Services: poor performance, misrepresentation, or not being properly licensed.

7. Internet Sales: misrepresentation of products or prices, or nondelivery of merchandise.

8. Household Goods: misrepresentation of products or prices, nondelivery of merchandise, or inadequate repairs

9. (tie) Landlord/Tenant: improper eviction, violations of health or safety codes, refusal to repair, or disputes over rent or deposits.
9. (tie) Home Solicitations: misrepresentation of products or prices, or nondelivery of merchandise in TV or telephone, mail, or door-to-door solicitation; not honoring do-not-call list.

10. Health Products/Services: poor performance, misrepresentation, or not being properly licensed.

All of these reported ways to cheat consumers have one thing in common: they are easy to carry out because they rely on the consumer having no good way to fight them. Most ordinary people don't have the money to hire a lawyer, and the stakes are too small compared to a lawyer's fees. Here in Massachusetts, though, we have a powerful weapon against people and businesses that defraud consumers: the Consumer Protection Act. That law provides that consumers who are damaged by unfair or deceptive practices are entitled not only to get their damages back, but sometimes double or even triple their damages to punish the wrongdoer, as well as having all the costs of the suit and their attorney's fees paid by the defendant. Often just a "Demand Letter" under this statute from a good consumer attorney leads to payment of the damages and attorneys fees without even filing suit.

The Consumer Complaint Survey Report lists six pages of tips about "How Consumers Can Protect Themselves," which is worth reading. It can help you avoid losing your money in the first place. But if it is too late, and you are the victim of a deceptive or unfair consumer practice, the Massachusetts Consumer Protection Act can give you the power to fight back, and a good lawyer is not that hard to find.

Continue reading "Top Ten Complaints by Consumers" »

The Massachusetts Supreme Judicial Court (SJC) today eliminated the ancient distinction between "natural" and "unnatural" accumulations of ice and snow, making property owners liable for injuries caused by their negligent creation or failure to eliminate both kinds of winter hazards.

Calling the distinction between natural and unnatural accumulations of ice and snow a "relic" derived from old cases, which "has sown confusion and conflict in our case law," the Court in Papadopoulos v. Target Corporation discarded it and stated: "We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to 'act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.'"

In the past, people who slipped and fell on ice or snow that had fallen or accumulated naturally and which remained untouched by the owner were unable to recover from the owner for their injuries. A property owner was better off not shoveling or plowing the snow or salting or sanding the ice. Over time, this concept was applied expansively to include even natural snow that had been plowed into a pile or ice which was uncovered by the shoveling efforts of the owner. Indeed, in the Papadopoulos case, the trial judge ruled that the defendant was not liable when the plaintiff tripped on a chunk of ice that had fallen from a plowed up snow bank or a patch of refrozen runoff from the snow pile, because those were "natural" accumulations even though they resulted from the plowing of the parking lot.

The SJC applied the new rule "retroactively", that is, to any cases currently pending or yet to be filed, even if the injury has already occurred, so long as they have not gone to final judgment or the statute of limitations has not expired.

Continue reading "Massachusetts SJC Expands Liability for Snow and Ice Slip and Fall Cases" »

The Foxboro Reporter reported today that a 62 year old bicycle rider was injured Sunday when he hit a pothole on Route 140 in Foxboro. John Polacek was wearing a helmet and riding properly with traffic when the pothole flipped his bicycle. Polacek landed on his head and suffered serious spinal injuries. He was airlifted to Massachusetts General Hospital.

The pothole had been there for months, according to a resident who lives near it. Crews would occasionally patch it "with a couple of shovels full (of asphalt)" but it would be "bad again in a couple of days." Even after the injury to Polacek, it took prodding by the Foxboro Reporter to get the pothole repaired. They discovered that it remained untouched and was not marked to warn drivers or riders of its danger a full two days after the incident, so they notified the state highway department. A crew was sent to repair the site that same day. Whether they completed the repair and how long it will last is not known.

We hope Polacek has hired a good attorney or at least gives the state notice of his injury within 30 days of last Sunday under the Massachusetts highway defect statute. As I blogged last week in Short Deadline Precludes Claim for Massachusetts Motorcycle Accident Injuries, meeting this unrealistically short notice requirement is essential to preserving your claim if you are injured by a defect relating to a road or sidewalk.

Continue reading "Another Massachusetts Road Defect Injury -- This Time a Bicycle Rider" »

The Massachusetts Supreme Judicial Court announced today that injured people will be allowed to introduce the full charges on their medical bills as evidence of their damages at trial despite the Superior Court's ruling otherwise. The case, Law v. Griffith, was argued by Kathy Jo Cook of KJC Law Firm LLC in Boston. Professor Timothy Wilton, from Suffolk University Law School, served as a consultant on both the brief and the oral argument.

Joanne Law was injured in an automobile accident when Daniel Griffith ran a stop sign and crashed into her car. By the time of the trial, Ms. Law had received extensive medical treatment for which the providers billed Ms. Law $112,269.94. Ms. Law's medical insurance provider, Mass Health, however, had paid the providers $16,387.14 in full satisfaction of those bills. Ms. Law was not personally responsible for any further payment.

The rates MassHealth will pay for medical treatments are set by statute and are far lower than that which doctors and hospitals charge. By law, providers are not permitted to bill the patient for the balance. Although private health insurers generally pay a higher rate than the government operated MassHealth, they also usually pay less than the amount the providers bill. People without health insurance, however, are responsible for payment of the full charge.

At trial, the defendant argued that the medical bills presented "distorted" evidence of Ms. Law's damages. The trial judge ruled that Ms. Law could not introduce evidence of the amount "charged" for any of the services, but rather, could only offer evidence of the amount "paid." Ms. Law was permitted to introduce only the payments of $16,387.14 as her medical expenses, rather than the charges of $112,269.94. The jury was instructed that it could award damages for "medical and hospital bills, as proved," as well as for scarring, loss of function, impairment of enjoyment of life, and pain and suffering. The jury found for Ms. Law, but in a general verdict for all of the items, it awarded only $48,500.00.

On appeal, attorney Kathy Jo Cook argued that the statute governing the admission of medical bills as evidence of an injured party's damages for medical expenses required a trial judge to allow the admission of medical bills in the full amount charged. The Supreme Judicial Court unanimously agreed, the majority writing that the statute "states unambiguously that medical bills are admissible to establish the reasonable value of services rendered."

Continue reading "KJC Law Firm Wins Important Personal Injury Case in the Massachusetts Supreme Judicial Court " »

Aerosmith guitarist, 59-year-old Joe Perry, was hospitalized last week after his motorcycle was hit from behind while he was traveling in Middleboro. Fortunately for Perry, he suffered only a back injury and some minor cuts and bruises. Edmund Lindberg, a 28-year-old Iraqi war veteran and Worcester County Jail Correctional officer whose motorcycle was struck days earlier when a car made an abrupt left turn into his path, wasn't so fortunate. Just thirty minutes after the collision Lindberg was pronounced dead at a local hospital.

Motorcycle accidents can and often are deadly. According to a June 2010 report of the National Highway Traffic Safety Administration (NHTSA), the number of fatalities has more than doubled over the past 10 years. According to the Insurance Information Institute (III) there has also been a significant increase in deaths among riders age 40 and up.

Motorcyclists, who have virtually no protection in a crash, must be extremely careful to avoid accidents. The Motorcycle Safety Foundation (MSF) offers these safety tips: "(1) Get trained and licensed; (2) Wear protective gear--all the gear, all the time--including a helmet manufactured to the standards set by the DOT; (3) Ride unimpaired by alcohol or other drugs; (4) Ride within you own skill limits; and (5) Be a lifelong learner by taking refresher rider courses." MSF offers a wealth of information on safety and rider training courses as well as information about Massachusett's and other area states' laws regarding motorcycling. Additional information can be found in the Department of Transportation's publication, Motorcycle Safety.

We hope you'll have an injury free ride.

Continue reading "Massachusetts' Motorcycle Accidents Highlight the Need for Safety" »

On July 15, 2010, the Massachusetts Appeals Court held in DiNitto v. Town of Pepperell that two motorcyclists who were injured when they failed to stop at a hidden stop sign could not recover from the town because they had failed to give the town the 30 day notice required by the Massachusetts highway defect statute and tried instead to sue the town under the Massachusetts Tort Claims Act. The court held that the highway defect statute was the exclusive remedy for the injured motorcyclists, and that it applied to the town's negligent failure to keep "trees, brush and overhanging vegetation" growing on adjoining town land from obscuring the sign.

The highway defect statute, over a century old, permits limited recovery against a negligent county, city, or town (and under G.L. c. 81 §18, the state) for bodily injury or property damage caused by a defect in a road. But it also requires that the claimant give the government notice of the time, place and cause of the injury or damage within 30 days.

The more recent Tort Claims Act generally permits claims against the government for injury or damage caused by the negligent acts of government employees. It has a far more realistic two year notice requirement. But it specifically left the highway defect statute intact as the exclusive remedy for those injured by a "defect or a want of repair...in or upon a way."

The DiNittos argued that the untrimmed vegetation from adjacent town property was not a defect in the road itself. The court relied on some old cases defining the reach of the highway defect statute broadly to permit recovery which was otherwise unavailable at that time. It cited an 1872 case applying the statute to "obstructions overhanging the way," and a 1920 case involving the limb of a tree growing next to the road which hung too low over the road. Cases enlarging the injured person's right of recovery were now used to preclude it.

Whenever there is an injury or property is damaged on or near a road or sidewalk, it is critical to get to an experienced lawyer immediately. Defects in the design or maintenance of the property may have played a role, and the very harsh 30 day notice requirement may apply. Waiting for too long or going to the wrong lawyer may cause you to lose your chance of recovery for your injuries or damage.

Continue reading "Short Deadline Precludes Claim for Massachusetts Motorcycle Accident Injuries" »