Negligent Supervision

January 13, 2020

Further erosion of the ban of lawsuits against gun manufacturers

Lots-of-Guns-300x200 As I explored in a previous blog, the Protection of Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”) has shielded gun manufacturers from suit since its enactment in 2005. The law bars any civil liability action against a firearms dealer or manufacturer, except for certain limited exceptions. My previous blog revolved around the parents of the victims killed in the Sandy Hook massacre, who survived summary judgment on a motion conceived under PLCAA filed by the defendant, Remington Arms Company. Now, the city of Kansas City is bringing a claim against a manufacturer and several firearms dealers, which may further chip away at the Act’s once impenetrable protection.

PLCAA’s protection is broad. 1515 U.S.C. § 7902 provides that “[a] qualified civil liability action may not be brought in any Federal or State court” against a firearms manufacturer or dealer. The definition of a qualified civil liability action is explored in § 7902, which defines the term broadly, encompassing ostensibly all civil claims against licensed gun dealers and manufacturers. However, § 7903(A) identifies certain claims that will not be considered a qualified action.

Contractual disputes or claims for breach of warranty are not qualified actions. § 7903(5)(A)(iv). Neither are claims related to defective design or manufacture of a firearm. § 7903(5)(A)(v). Claims arising out of negligent entrustment, where a manufacturer or a dealer puts a firearm into the hands of someone likely to injure themselves or others, are permitted. § 7903(5)(A)(ii; § 7903(5)(B). Similarly, if a manufacturer or dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, immunity from suit is not available. § 7903(5)(A)(i).

June 11, 2018

Massachusetts Court Rules School Cannot Be Held Liable for Bullying Injuries

by Neumann Law Group

Unfortunately, bullying happens in schools all over Massachusetts every day. The Massachusetts Supreme Judicial Court issued a ruling earlier this year that clarifies who can be sued when a student suffers physical injuries from bullying. In the case at issue, an elementary school student was pushed down the stairs by a classmate in an act of bullying. The court affirmed a motion to dismiss after a lawsuit was brought against Lynn Public Schools, the school district in Massachusetts where the bullying occurred. The court held that the Massachusetts Tort Claims Act bars this case from going forward and essentially shields the district from liability for this and similar incidents. This does not necessarily mean the family of the injured student has no civil recourse; there may still be other people who could be held responsible for his injuries. Knowing who should be sued can be complicated due to laws like the Tort Claims Act and similar legislation. That’s why it’s so important to contact a skilled Massachusetts personal injury attorney if you are injured. If you don’t include all of the necessary parties, you may lose your chance to hold them accountable.

The Massachusetts Tort Claims Act

The Massachusetts Tort Claims Act specifies that public employers are liable for negligent or wrongful acts when they are committed by employees acting within the scope of their employment. However, the act includes an exception to liability when the violent or tortious act was committed by a third party, unless the employee was the original cause of the situation.

November 20, 2017

Massachusetts District Court Refuses to Amend Complaint in Medical Malpractice Case

by Neumann Law Group

A plaintiff, in his capacity as the personal representative of the estate of a victim, brought a Massachusetts nursing home negligence action against Park, Marion, and Vernon Streets Operating Company, LLC d/b/a Brookline Health Care Center (BHCC), and John Doe Physicians and Jane Doe Nurses. As alleged in the complaint, as a result of the defendants’ negligence, the victim choked to death when she was left unsupervised to eat in the dayroom of the assisted living facility in which she resided.The victim was admitted to BHCC in April 2012 for nursing care and rehabilitation after a hospitalization for seizures and falls, and she remained there until her death in May 2014. Throughout this period, she was deemed to be at risk for falls. Her medical records also indicated that she was on a soft diet, customized for her diabetes, and at variable times during her residency at the facility, she required continual supervision while eating, since she was at risk for aspiration. On the morning of May 7, 2014, a resident in the day room alerted the nurses to help the victim, who was holding her chest and in distress. A nurse’s note later in the day said that the victim was seen holding her neck and tapping on her chest and that she became unresponsive as she was being assessed by staff.

When ambulance personnel attempted to insert an endoctracheal tube, they had to remove a silver dollar-sized piece of food before they were able to successfully intubate her. The victim was pronounced dead upon her arrival at Beth Israel Hospital. The cause of death was respiratory distress, secondary to aspiration.

Suit was originally filed in Norfolk Superior Court in February 2017. BHCC removed the action to the U.S. District Court for the District of Massachusetts in May 2017, alleging that this court had diversity jurisdiction. (Diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court in the federal judiciary has the power to hear a civil case when the amount in controversy exceeds $75,000 and when the persons that are parties are “diverse” in citizenship, which generally indicates that they are citizens of different states or non-U.S. citizens.)

November 13, 2017

Appeals Court Holds Bicycle Collision Case Barred by the Massachusetts Torts Claims Act

by Neumann Law Group

A recent case arose from a bicycle collision on the Cape Cod Rail Trail between a child on a supervised school field trip and a passing cyclist. The injured cyclist and his wife appealed from a Superior Court judgment entered on the defendants’ motion for summary judgment, dismissing their negligence claims against the town of Williamstown and others. On appeal, the plaintiffs contended that (1) the chaperones who supervised the field trip were not public employees and thus could be held personally liable for their negligence, and (2) the Massachusetts Tort Claims Act (MTCA) did not preclude their claims against the town. The Massachusetts Appeals Court affirmed the lower court’s judgment for the defendants in this Massachusetts bicycle accident case.The plaintiffs argued that the lower court erred when it concluded that the chaperones supervising the elementary school field trip were public employees as a matter of law. They suggested that the chaperones were independent contractors who had broad discretion in exercising their duties and therefore should not be afforded the liability protections provided by the MTCA.

The test for determining whether an individual is a public employee, the appeals court explained, is the same as that used to establish whether an agent is a servant for whose negligent acts a principal may be liable under the common law doctrine of respondeat superior. The basic question is whether a person is subject to the direction and control of a public employer.

The appeals court explained that even if it were to draw all of the inferences in a manner favorable to the plaintiffs, the undisputed facts showed that the principal and the teachers retained the right of control and that the chaperones were subject to their direction and control as a matter of law. Before the field trip, the school held a chaperone meeting in which the chaperones were given guidelines for their duties on the trip. The guidelines stated that the teacher was in charge, and their directions must be followed at all times. The guidelines also instructed the chaperones to follow all safety rules, not leave children alone or unescorted, and keep the groups together.