Parker | Scheer LLP Blog

The Perils of Cutting Down Your Own Christmas Tree in Massachusetts

December 14, 2009

For those of you who still in need of that perfect tree for Christmas; this blog’s for you. 

There are a few things to keep in mind before you lace up your snow boots, head out into the frosty air and cut down your own Christmas tree. Aside from frostbite and squirrel attacks, you may be walking into less obvious dangers when you cut down your own tree. And what’s more concerning is that even if you are seriously injured you may have no recourse against the owner of the tree farm.

A recent Massachusetts case illustrates the dangers inherent in “pick your own” tree farms. In the case, a woman was seriously injured when she tripped over a stump that was covered in snow while she was out looking to cut down her own tree. The woman sued the owner of the Christmas tree farm for her injuries but the lower court denied her claims citing a Massachusetts statute. The statute does provides for limited liability for owners of “pick your own” Christmas tree farms, however what was most troubling about the trial court’s decision was that they said that the owner of the farm could avoid all liability even if they did not post a proper warning sign!

Fortunately, the appellate court overruled the trial court and found that in order for the owners of “pick your own” Christmas tree farms to avoid liability for injuries that are sustained by its customers; they must post a proper warning.

What this means for those of you who want a pick your own tree, is that you may be relinquishing your rights if you walk onto a Christmas tree lot. If you see this sign at the entrance of the lot:

WARNING
Under section 2E of chapter 128 of the General Laws the owner, operator, or any employees of this farm, shall not be liable for injury or death of persons, or damage to property, resulting out of the conduct of this ‘pick-your-own’ harvesting activity in the absence of wilful, wanton, or reckless conduct.

you are giving up your right to be compensated for injuries that you suffer on the lot. The warnings must be placed in a location visible to people entering the farm and the warning must appear on a sign in black letters of at least one inch in height.

The point here is that people need to be aware when their rights are being extinguished. So before you enter the Christmas tree lot this holiday season, remember to look for the sign.

Have a safe and happy holiday from Parker | Scheer LLP. 

Parker Scheer LLP, a leading Boston personal injury law firm, has successfully represented numerous persons in personal injury matters. If you or someone you know has been injured as a result of the negligence of another, contact us seven days, toll free at 866-414-0400 or by email to info@parkerscheer.com

Over 50 People Treated For Noxious Gas Exposure In New Bedford, MA

New Bedford, Massachusetts. More than 50 people were treated Monday for symptoms of noxious gas exposure at the ABC Disposal facility in New Bedford. At least two people were reportedly in critical condition as a result of the incident. According to published reports, victims reported nausea, vomiting and breathing difficulties, although the source and composition of the chemicals remains unknown.

According to the company's website, ABC Disposal collects, transports and disposes over 200,000 tons of non-hazardous waste for more than 10,000 satisfied customers each year. The company claims that its  equipment is state-of-the-art.

Parker Scheer LLP, a leading Boston personal injury law firm, has successfully represented persons injured as a result of chemical exposure caused by negligence. If you or someone you know has been injured as a result of exposure to hazardous chemicals, contact us seven days, toll free at 866-414-0400 or by email to info@parkerscheer.com

What if Tobey, the Governor's Dog, and Fritz, the Boston Police Dog, Each Bit Someone's Nose Off? How Would Their Victims Fare?

In a follow-up to yesterday's post about the Mattapan, Massachusetts woman who was attacked by "Fritz" the off-duty, Boston police dog, we now read that Governor Deval Patrick's dog, Tobey, may have injured a woman who attended a Town Meeting this week. What's interesting about these two incidents is the way the two victims would be compensated under existing Massachusetts law, had - hypothetically - both dogs inflicted the very same injuries.

In the case of the female Mattapan victim, regardless of the extent of her injuries, the very most she would likely recover against the Commonwealth of Massachusetts (as the owner of the dog) is $100,000.00. This would be the maximum recovery, even if the injuries included massive facial disfigurement or death. Massachusetts lawmakers simply do not believe that any injury caused by the negligence of its employees (or its dogs) is deserving of any more than one hundred grand.

Now consider the victim of Governor Patrick's dog, Tobey. While it appears that the injuries inflicted by Tobey were only minor, since Tobey is owned by Governor Patrick, and not by the Commonwealth, the Governor does not enjoy the same protections as those provided to the Commonwealth. Simply put - if both Fritz and Tobey each bit a person's nose off, Tobey's victim might receive hundreds of thousands of dollars or more in compensation, while Fritz's victim would never receive a dime over one hundred thousand dollars.

The Massachusetts Tort Claims Act (G.L. c. 258 section 2) creates two classes of tortfeasor for the purpose of compensating victims: The citizen tortfeasor (which includes individuals and corporations) and the governmental torfeasor. The problem with such a system is obvious: governmental tortfeasors have no real economic incentive to avoid acts of negligence; as the worst case scenarios involve a penalty that the State can easily afford to pay. If a Boston police officer runs a red light while operating his cruiser and kills a pedestrian in a crosswalk - the maximum recovery to which the family of the victim is legally entitled is just one hundred grand - that's before attorney's fees, case expenses, and unpaid medical costs. Not a penny more.

I hate when people say it, but I have to agree - laws only change when lawmakers suffer the tragedies and inequities that their constituents face every day. Only then will the relic that is Chapter 258 be brought in line with 21st century medical costs, wage losses, and other economic damages that victims of governmental negligence presently face as victims.

Eric J. Parker

Boston Police Dog Attacks Pedestrian

The "off duty" Boston police dog that attacked a Mattapan woman today may just be the luckiest dog around. Under Massachusetts law, the owner or "keeper" of a dog that causes injury to a person is "strictly liable" to the victim for the damages inflicted. In plain words - if you own a dog, and your dog bites someone, the only question to be answered is: how much is the victim entitled to recover. There is no limit to the amount of the recovery the victim may be awarded by a Massachusetts jury - unless of course, the dog happens to be owned by the Commonwealth of Massachusetts. Under Massachusetts General Laws Chapter 258 Section 2, the absolute most that a victim may recover from the Commonwealth for personal injuries caused by the negligence of the Commonwealth (or-in this case, its dog) is one hundred thousand dollars - regardless of the extent of the injuries inflicted, including wrongful death. The $100,000 limit, a figure established by Massachusetts law-makers long ago, would not begin to compensate a person who suffers debilitating injuries as a result of a dog attack. Nevertheless, the Massachusetts legislature has shown no interest in updating this antiquated law. In more "civilized" States, such as New York, the liability of a governmental body (such as a city or town) is treated no differently than an individual charged with the very same negligence. Had the victim of the Mattapan attack been the owner of a dog who attacked a Massachusetts police officer (an employee of the Commonwealth of Massachusetts) the owner of the dog would face unlimited liability for the injuries suffered by that police officer. The $100,000 cap simply would not apply. This law is outdated, unfair to victims, and should be updated.  

The Auto Insurance You Thought You Purchased - But Didn't

               When an individual is seriously injured or killed in a motor vehicle accident, the general practice is to first look to the insurance coverage available under the automobile insurance policy covering the party responsible for the accident. This coverage is called “Bodily Injury Coverage” and must be purchased before a car, truck or motorcycle can be legally registered in Massachusetts.  Bodily Injury Coverage is the insurance coverage that would be available to you or your household members in the event of a serious accident. The minimum amount of Bodily Injury Coverage required to legally put a car on the road in Massachusetts is currently just $20,000. This means that if a negligent driver causes serious injury or death to you or a member of your household, the most you could recover from that driver’s insurance company would be $20,000. While in very rare instances the personal assets of the negligent driver may supplement this coverage, in the overwhelming percentage of motor vehicle-related injury claims, Bodily Injury Coverage is the only source of financial recovery available to the victim.

            There are however two other “parts” of the standard Massachusetts automobile insurance policy that provide additional coverage to you and your household members in the event they suffer serious injury or death as a result of an UNDER-insured or UN-insured motor vehicle operator. The problem is most victims of motor vehicle negligence don’t realize that they lack this coverage until after the accident takes place. 

            In recent months, Parker Scheer has been retained by a growing number of clients seriously injured in motor vehicle accidents where no under-insured or un-insured coverage was available to the victims. Nearly all of these drivers were under the false impression that they had purchased “the maximum insurance” at the time of the accident. It was not until we met with these victims, following their accidents, that we had the unpleasant duty to inform them that what they had purchased was actually the minimum coverage needed to register their vehicles – that there was no additional coverage available to them.

            We believe that the current economic downturn has created a very dangerous climate for Massachusetts drivers. It is our belief that current conditions have lead a growing number of Massachusetts drivers to decrease their motor vehicle insurance coverage limits as a means of reducing general household expenses; a dangerous mistake with potentially catastrophic consequences for both those who cause injuries to others as well as to those who suffer serious injuries or fatalities.

            What is perhaps most frustrating of all is just how little it costs per month to increase your under-insured and un-insured motorist coverage limits to the maximum coverage your auto insurance company is legally required to sell you. That answer can be easily obtained through a single telephone call to your automobile insurance company.           

            Don’t wait for a serious accident to occur before you take this important step. Call your automobile insurance company today and learn what it costs to increase your un-insured (Part 3) and under-insured (Part 12) coverage limits to $250,000 per person ($500,000 per accident) levels. Increasing Part 3 and Part 12 coverages to these recommended limits may require you to increase your Part 5 (Optional Bodily Injury to Others) coverage to equal limits, but the increased cost is greatly outweighed by the potential future benefits.

            If you have any questions about any of the recommendations contained in this advisory, do not hesitate to call us directly. There is absolutely no charge to discuss this important issue with one of our experienced trial attorneys. Or telephone your automobile insurance company or agent to learn more about your options and costs.

            Our hope is that neither you nor any member of your household ever needs the insurance coverage described in this letter. But should events occur which would make such coverage available to you or a family member, we hope you never find yourself without it.

      

Massachusetts Insurance Commissioner Reverses Plan to Kill Auto Surcharge Appeals

In a last minute reversal of a plan which would have ended the right to appeal an automobile insurance "surcharge", Massachusetts Insurance Commissioner, Nonnie Burns, killed the idea, which - for now - leaves the Appeals Board intact. All I can say about this is: "Phew"!

Massachusetts is already among the most pathetically anti-consumer States in the Country, with $20,000 caps on liability for deaths caused by hospitals and their employees, and $100,000 caps against any governmental body found liable for negligence resulting in serious injury or death. So it was not exactly out of step for the Commonwealth to consider yet another way to strip its citizens of their legal rights - all in the name of saving money.

Under current Massachusetts law, the operator of a motor vehicle who suffers or causes at least two thousand dollars in property damage, and is believed by his insurance company to be a least 51% at fault for the accident, is "surcharged" a fee which remains payable for a number of years after the accident, even if the surcharged driver does not have another accident. The proposed elimination of the Surcharge Appeals Board would have left a wrongly surcharged driver without any reasonable right of appeal.

But what makes the Commissioner's original plan particulary scary, is the fact that approximately half of all surcharges are actually dismissed by the Appeals Board. Fifty percent! Think about that for a second. Here you have the Massachusetts Appeals Board tossing-out half the cases brought against Massachusetts motorists - and an insurance Commissioner who believes Massachusetts motorists don't deserve to have their appeals heard by a neutral party.

Even if only 10% of all appeals were overturned, that alone would - in my opinion - be more than sufficient to justify the right to an appeal hearing. Under Commissioner Burns' original plan, a motorist hit with a surcharge would have to request an appeal from the very insurance industry which stood to collect the surcharge. How "Massachusetts" is that? But alas... Commissioner Burns evidently responded to the outcry and left the Appeals Board breathing... at least for now.

Thinking About Reducing Your Auto Insurance Coverage? Think Again!

It happens every time the economy falters: people look for ways to reduce their household expenses and motor vehicle insurance coverage tends to find itself on the chopping block. While nobody can successfully argue against the practice of eliminating wasteful spending, reducing automobile insurance coverage as a means of trimming expenses is not the answer. In fact, as economic conditions weaken, the stronger the argument becomes for actually increasing your automobile insurance coverage.

When you or a household family member are involved in a serious motor vehicle accident, your motor vehicle insurance policy may provide those injured with valuable insurance benefits. Two examples of such benefits are"Under-insured motorist coverage" and "Un-insured motorist coverage" (commonly referred to as "U-Coverage"). U-Coverage becomes available to you  - under your own auto policy - in the event the operator of the vehicle that caused the accident has insufficient coverage to fully compensate the victims for the injuries suffered. In a sense, your coverage actually becomes the coverage of the "at fault" driver, and is available to compensate you when the at fault driver has insufficient coverage. Because it takes just $20,000 in bodily injury insurance coverage to legally put a car on the road in Massachusetts, the argument for higher U-Coverage limits is extremely strong.

That argument grows even stronger when you consider just how many people in Massachusetts operate motor vehicles with only the minimum required insurance coverage. And in difficult economic times, the number of people who choose to operate their motor vehicles without any insurance coverage, in direct violation of Massachusetts law, rises dramatically. In the event you or a household members suffer serious injuries as a result of an under-insured or un-insured driver, the only policy you will likely turn to for coverage will be your own. The more coverage you own at the time of the accident, the more likely you will be fully compensated. In short - reducing U-coverage during difficult economic times is pound foolish. Increasing U-coverage to guard against the under-insured or un-insured driver may be the smartest decision you could make.

__________________________

Eric Parker is a highly experienced Massachusetts personal injury lawyer, and concentrates in serious motor vehicle related cases. Reach him at ejp@parkerscheer.com or call toll free seven days a week 866-414-0400. There is never a fee to discuss your potential case.

Supreme Court Hands Down a Major Victory For Victims of Bad Drug Labeling

In one of the most closely watched cases by personal injury trial lawyers, The U.S. Supreme Court, in 6-3 decision, upheld a six million dollar jury award to a woman who suffered the loss of her arm due to poor drug labeling by the pharmaceutical giant, Wyeth. In the 80 page decision in the case of Wyeth v. Levine, The Court ruled that Wyeth, makers of the drug known as Phenergan, was liable to the plaintiff who suffered the loss of her arm after the drug was accidentally injected into her artery rather than the intended vein during a procedure known as "I.V. Push". The plaintiff had argued at trial that the drug's labeling materials failed to provide stricter warnings to the plaintiff's physicians against the use of the I.V. Push method when administering Phenergan due to the relatively high risk of gangrene.

The case is important because it represented an aggressive effort by the pharmaceutical industry to insulate itself from liability for injuries caused by insufficient warnings contained in drug labeling materials. Lawyers who represent victims of pharmaceutical negligence worried that a ruling in favor the the drug industry in this case would prevent such cases from being decided by juries in State courts - a practice known as "Federal Preemption". 

This case represents a major victory for all persons who have been injured or killed as a result of insufficient drug labeling, and is a major setback for drug makers seeking the protection of Federal Preemption. Without adequate labeling and warnings, doctors are denied information which would likely protect patients from risks known to the manufacturer.

If you or someone you know suffers a serious injury as a result of a pharmaceutical manufacturer's negligence, contact us toll free seven days a week at 866-414-0400. There is never a charge to discuss your potential case.

Hey! Where's My Airbag?

As if you didn't already have enough on your mind, here's another one to worry about: Does your car really have an airbag behind the steering wheel? In most cases, the answer is yes - particularly if you purchased your car brand new, from a authorized dealer. It's when you bought your car used, from - say - a less reputable dealer that "missing airbag syndrome" may be of greater concern. Here's why...

When a motor vehicle equipped with an airbag is involved in a front-end collision, sensors located in the vicinity of the front bumper are tripped, leading to the deployment of the driver's side and/or passenger side airbags. Once deployed, airbags can not be reused. Instead, new airbag components must be purchased and reinstalled in the vehicle by trained technicians. The cost is considerable. A typical airbag replacement (not including "shell" damage to the dashboard) can run anywhere from $1000 to $3000 or more per airbag to replace. So it's not hard to imagine some less reputable used car dealers choosing to stuff a few rags back into the airbag compartment in order to save costs.

While many States prohibit the sale of a used car known to contain fake or inoperative airbags, our research did not disclose any Federal laws requiring a deployed airbag to be replaced with a new system. Eric J. Parker, a Massachusetts attorney who routinely represents individuals seriously injured in Massachusetts car accidents, believes the problem may only get worse during these difficult economic times. "In tough economic times, some people cut corners, risking human life in the name of personal profits" says Parker. "As the saying goes - caveat emptor".

So what's a used car buyer to do? For one thing, research the car's vehicle history as carefully as possible. Companies like "Carfax" for a fee offer a printed history of the vehicle based on the car's unique V.I.N. (Vehicle Identification Number). Such reports often provide information on prior insurance claims involving the vehicle. While these reports may not prove whether your used car contains a functional or fake airbag, it is fair to assume that the more accidents the car was involved in, the higher the potential for fraud. Again, buying from reputable dealers is likely to decrease your chances of buying a car with a missing airbag system.

If you or someone you know has been injured as a result of a car accident involving airbags that failed to deploy, call us at 617-886-0500 seven days a week. There is never a fee charged to discuss your potential case with one of our experienced attorneys.

Leaving Your Car Unattended Can Spell Disaster... For You!

Every year in Massachusetts hundreds of cars are reported stolen. Many of these thefts occurred because the vehicle owner left the keys to the unattended car or truck in the ignition. According to Massachusetts General Laws chapter 90 section 13: "No person having control or charge of a motor vehicle, except a person having control or charge of a police, fire or other emergency vehicle [...] shall allow such vehicle to stand in any way and remain unattended without stopping the engine of said vehicle, effectively setting the brakes thereof or making it fast, and locking and removing the key from the locking device and from the vehicle".

A violation of this law could arguably be offered as "evidence of negligence" in a civil case against the vehicle owner in the event an idling vehicle was stolen and subsequently involved in an accident involving injury or death to a third person. 

To avoid potential liability for injuries or death resulting from the theft of your car or truck, always remove the keys from the vehicle after shutting the engine.