Why Chad “Ochocinco” Johnson Should Use His Turn Signal

Never understood the point of getting a ticket for not using my turn signal… Officer it’s nobody business where I’m fucking going 😡

— Chad Johnson (@ochocinco) December 3, 2012

1. You can get a ticket (as it sounds like you found out);

2. It’s safer for yourself and everybody else on the road; and

3. You are an NFL superstar who will always be a target for people trying to get your money. If you get into a car crash and you weren’t using your turn signal in Massachusetts, you will be presumed greater than 50% at fault for the crash.

“The operator of a vehicle subject to the Safe Driver Insurance Plan shall be presumed to be more than 50% at fault when operating a vehicle which is in collision while failing to signal as required by law before turning or changing lanes.” 211 CMR 74.04(07).

 

Should Meteorologists be Legally Liable for Inaccurate Forecasts?

On April 6, 2009, a 6.3 magnitude earthquake rocked the Italian city of L’Aquila. As a result of the quake, 309 people were tragically killed.

A regional Italian Court sentenced 6 scientists from the Italian National Institute of Geophysics and Volcanology and an ex-government official from the Civil Protection Agency of manslaughter. (See “Scientists Aghast Over Italian Quake Verdicts“)

“Prosecutors said the defendants gave a falsely reassuring statement before the quake, while the defence (sic) maintained there was no way to predict major quakes.” (See “L’Aquila Quake: Italy Scientists Guilty of Manslaughter“)

The scientists are now facing jail sentences of six years, pending appeal. (See id).

For the six scientists and ex-government official, I’m sure the pending 6-year sentences are their major concern. But, as an attorney, my thoughts immediately go to how will this case impact future cases and influence people’s actions?

Will scientists be held to a higher standard across the globe?

Will this cause scientists to refuse to share their opinions?

Will this cause scientists to insist on evacuating cities, even when a large earthquake is unlikely, just because they don’t want to face criminal charges?

Although Massachusetts felt the impact of an earthquake centered in Maine last week, earthquakes are not a common concern for Massachusetts residents. But how about snow storms? Should this logic extend to meteorologists? What if a meteorologist forecasts that we aren’t going to be hit by a snow storm. Then, weather patterns change, and the area is slammed with snow. Drivers all over the state chose to drive to work that day because of the forecast that we wouldn’t receive snow. As a result of this inaccurate forecast, the drivers who were stuck in the snow storm were involved in car crashes. Should the meteorologists be responsible for these crashes and resulting injuries?

What do you think? Let me know by leaving a comment. A few additional points that I find interesting about the Italian Earthquake Case is that the Court was located in the same city hit by the quake and the conviction was decided by a judge, not a jury.

What Happens to Your Dramshop Claim if you Don’t File an Affidavit?

In “A Possible Dramshop in Framingham,” Tort Perform discussed the elements of a dramshop case. For a quick summary,

A dramshop case is where an injured person is able to prove the following:

• the driver was a customer of a bar/restaurant;
• the driver was served alcohol while intoxicated and the bar/restaurant knew or reasonably should have known the customer was intoxicated;
• the customer operated a motor vehicle while intoxicated;
• it was reasonably forseeable to the bar/restaurant that the customer would operate a vehicle;
• a person of ordinary prudence would not have served the customer; and
• the customer’s driving caused an injury that was within the scope of the risk. (See Cimino v. Milford Keg, Inc., 385 Mass. 323, 331-332 (1982).

Unfortunately for injured people, litigation is a very complicated and confusing process. It not as simple as being able to prove the above elements. There are additional statutory and procedural elements that must be satisfied.

Massachusetts General Laws Chapter 231, §60J states,

“Every action for negligence in the distribution, sale or serving of alcoholic beverages to a minor or to an intoxicated person shall be commenced in the superior court department and shall proceed according to the Massachusetts Rules of Civil Procedure unless otherwise provided for by this section.

The plaintiff shall file, together with his complaint, or at such later time not to exceed ninety days thereafter, an affidavit setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry.” (G.L.c. 231, §60J).

In Chiulli v. Newbury Fine Dining, Inc., et al., the United States District Court for the District of Massachusetts faced the issue of what happens when the plaintiff fails to comply with G.L.c. 231, §60J.

“On the night of June 19, 2008, into the early morning of June 20, 2008, Plaintiff Robert Chiulli and several of his companions were patrons at Sonsie. Defendants Jeffery Reiman, Victor Torza, and Garrett Burgess were also patrons at Sonsie that night. Reiman was visibly intoxicated when he entered Sonsie. Nonetheless, Sonsie staff served Reiman alcohol. Reiman got into an argument with, and threatened, Plaintiff and his companions. Some time after this initial altercation, Reiman invited Plaintiff and his companions to go outside. As Plaintiff exited Sonsie, Torza or Burgess punched Plaintiff and threw Plaintiff into a wall.” Chiulli v. Newbury Fine Dining, Inc., et al. (Lawyers Weekly No. 02-471-12) (9 pages) (Tauro, J.) (USDC) (Civil Action No. 10-10488-JLT) (Oct. 4, 2012)(Footnotes omitted).

The plaintiff filed suit against Sonsie, alleging a number of counts of negligence. However, the plaintiff failed to comply with the requirements of G.L.c. 231, §60J.

“On October 2, 2012, Plaintiff filed an affidavit. Plaintiff did so a year and a half after the Second Amended Complaint, after two missed deadlines, and within two weeks of trial. Accordingly, this court granted Defendants’ motion to strike the affidavit from the record.” Chiulli v. Newbury Fine Dining, Inc., et al. (Lawyers Weekly No. 02-471-12) (9 pages) (Tauro, J.) (USDC) (Civil Action No. 10-10488-JLT) (Oct. 4, 2012).

As a result of failing to comply with G.L.c. 231, §60J, the plaintiff was prevented from being able to pursue a claim for dram shop negligence. However, the plaintiff can still proceed on a claim for negligent training of Sonsie staff (but not as it relates to serving of alcohol).

If you have been injured in a dramshop case, please consult an attorney experienced in handling dramshop cases. Andrew T. Silvia, Esq. and the attorneys at the Law Offices of Morgan & Murphy, LLP have years of experience handling similar cases and are always ready to help people and families rebuild their lives. If you or a loved one believe you have a dramshop case, you should consult with an attorney as soon as possible.

Pool Safety

A swimming pool can be a very fun, refreshing and relaxing place to be on a hot summer day. However, without the proper protections in place, it can be a very dangerous place for a young child.

On Sunday in Brockton, Massachusetts, a 2-year-old girl tragically drowned in a neighbor’s pool. “Neighbors saw [the young girl] splashing around on the top step of the ladder to her  neighbor’s above-ground pool early Sunday evening. One hour later, neighbors pulled the toddler out of the pool and tried to resuscitate her – but it was too  late.” (“Brockton police say child drownings ‘horrendous’ and easily ‘avoided’” by Maria Papadopoulos).

Massachusetts building codes are very specific and detailed in regard to pools, whether above-ground or in-ground. They require a 4-foot barrier surrounding the pool to prevent unsafe access to the pool. The codes go as far as to control the size of the mesh on chain link fences to prevent children from climbing the fence to gain access. What’s important to note is that the barrier required by code doesn’t necessarily have to be a fence. The code allows the pool itself, to serve as the barrier in the case of an above-ground pool. However, in the case of an above-ground pool serving as its own barrier, there are specific height requirements. The barrier must still be 48 inches above grade.

“Brockton Superintendent of Buildings James Casieri said Monday there was no permit filed with the city for the 3-foot-high pool, as required by state code.  Homeowners with pools greater than 2 feet in depth are required to file a permit with the city, and fence in their yard, Casieri said.’The pool was 3 feet high, so it actually required the yard be fenced in because there’s no 4-foot high barrier,’ Casieri said.” (“Brockton police say child drownings ‘horrendous’ and easily ‘avoided’” by Maria Papadopoulos).

If, in fact, the pool is only 3 feet high, the owners could also comply with the code by installing a smaller fence on top of the pool’s structure, extending the height of the pool above the required 4 feet. But compliance with the code doesn’t end with extending the height of the pool, the owners also need to assure that the ladder to the pool is properly secured so that a young child cannot gain access to the pool.

Everybody has an image of town and city building inspectors being the enemy. THEY ARE NOT! They provide an extremely important service to our communities to make sure property owners keep their properties safe for themselves and for everybody else.

The average person probably doesn’t know all the requirements contained in the Massachusetts building codes, but our building inspectors do. If you have a pool, in-ground or above-ground, please make sure you are in compliance with all building codes and have obtained all necessary permits. It may cost you some money, but you might just save a life.

Can You Total a Dog?

We’ve all heard the term “totaled” used in the context of cars:

“How much damage was done to your car?”

“It was totaled.”

Put simply, when the cost of repairs exceeds the value of the car, the car is deemed “totaled.” For an example, let’s assume somebody owns a car worth $3,000.00. They get into a crash that causes $4,000.00 in damages to the car. No rational person (or insurance company) is going to pay $4,000.00 to repair a car that’s only worth $3,000.00. Rather than do the irrational, an insurance company will deem the car “totaled” and pay the owner the value of the car so they can just replace the car.

But what happens when the damaged property is a dog, not a car?

In a recent case arising out of Newton, Massachusetts, the plaintiff’s dog was injured by the defendant’s dog. The plaintiff was awarded the cost of medically treating the dog as damages by the Honorable Dyanne J. Klein in the Newton District Court. The defendant appealed Judge Klein’s decision, arguing “the maximum recovery available to the plaintiffs is the market value of the dog.” Irwin, et al. v. Deresh, et al. (App. Div. No. 11-ADMS-10056) (June 29, 2012).

The Honorable Laurence D. Pierce of the Massachusetts District Court Appellate Division for the Northern District upheld Judge Klein’s decision reasoning:

“Without romanticizing the relationship between a domesticated animal and its owner, we find that household pets, and dogs in particular, belong to a unique category of personal property…. Determining damages in the case of injury to a dog involves different considerations than with other types of personal property. A dog should not be placed in the same category as an automobile or appliance, whose market value and replacement cost can be determined with a high degree of accuracy. Limiting damages to the market value of a dog or measuring damages by the diminution in market value would not be a fair and reasonable measure of the owner’s loss. … Awarding plaintiffs the reasonable amount paid in veterinary costs was well within the trial court’s proper exercise of discretion and wholly consistent with the goal of returning the plaintiffs to the position they were in prior to the wrongful conduct. It was reasonably foreseeable that the injured dog would require veterinary care and that such care would be provided at a cost to the injured dog’s owners.” Irwin, et al. v. Deresh, et al. (App. Div. No. 11-ADMS-10056) (June 29, 2012).

So you can’t just total a dog! Count this as a win for dogs, good dog owners, and veterinarians. Count this as a loss for bad dog owners and insurance companies. Sounds like the right result to me!