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A resident of a public housing development in Framingham was seriously injured after slipping and falling on the stairs. He filed a claim for damages against the Framingham Housing Authority, Musterfield Place, LLC, (a “controlled affiliate” of the housing authority), and the managing agent of the property. The owner and managing agent of the property filed a partial summary judgment motion that would classify them as public employers. Under the Tort Claims Act, public employers are only liable for damages up to $100,000. The court denied this motion and instead classified the manager and owners of the building as “controlled affiliates.” As “controlled affiliates” they are not public employers and thus do not get the benefit of the damage cap. If you are injured at your apartment building or at another location, you should contact a skilled Massachusetts premises liability attorney as soon as possible to help represent you. This decision allows injured people the ability to collect the full damages they are due for their injuries.

Facts of the Case

The building that Plaintiff lived in had been identified as being in need of rehabilitation in 2009. As the housing authority did not have the money themselves to fix the building, private investors bought in to the property partially to get the tax credits associated with the investment. In order to help raise money for low income housing, the housing authority allows these investors to buy and sell the tax credits that they have no use for, as they are not subject to federal taxes. These investors are then deemed “controlled affiliates.” A controlled affiliate is an entity that owns and manages public housing. In return for the tax credits, the affiliates must keep the property affordable for low and moderate income renters for 15 years.

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.

If you have been injured by a faulty medication, you may be able to hold the drug company accountable for your injuries if your case meets certain standards. The Massachusetts Supreme Court recently heard a case regarding drug companies and their responsibilities regarding generic drugs and the required labeling. The court held that cases against drug companies based on medication injuries from generic versions of drugs can only go forward if the original manufacturer knew about possible injuries but intentionally failed to update this label. Cases against pharmaceutical companies are not only complicated, but they can also be expensive due to the resources that pharmaceutical companies have at their disposal. If you are concerned that you have been injured from a medication, along with seeking the necessary medical care to treat your injuries, you should also contact a knowledgeable Massachusetts product liability attorney as soon as possible to help you with your case.

Generic Labeling Requirements 

In order to bring a new drug to market, drug manufacturers must go through an onerous approval process with the Food and Drug Administration (FDA). Part of the process includes approval of the warning label for the drug that alerts consumers to potential side effects and other risks of the medication. The process for bringing generic versions of already existing drugs to market is much simpler. The manufacturers of generic drugs just need to prove that their medications are essentially the same as the name-brand drug in terms of active ingredients, strength, and route of administration. In order to get FDA approval, generic medications are legally required to show that the warning label is exactly the same as the name-brand medication. Therefore, a generic version is required to have the same label as the name-brand version.

A six-figure jury verdict against the manufacturer of an adhesive product called FM-37 was recently set aside by the Connecticut Supreme Court. The plaintiff sought to recover damages under the Connecticut’s Product Liability Act (CPLA) for the wrongful death of the decedent, claiming negligence and strict liability. The plaintiff contended that the decedent was exposed during his employment to an asbestos-containing product (FM-37) manufactured by the defendant and that the exposure contributed to his contraction of deadly mesothelioma. This type of theory is also relevant to cases brought by Massachusetts wrongful death plaintiffs.Malignant mesothelioma is a rare cancer that usually forms on the protective lining of the lungs and abdomen. The disease has no definitive cure, but advancements in conventional treatments along with emerging therapies are helping patients improve their survival rate. Incidence rates still hover around 3,000 new cases each year in the U.S., according to a 2017 report from the Centers for Disease Control and Prevention. However, scientific research and increased awareness are leading to earlier diagnoses and improved treatments. Exposure to asbestos remains the leading cause of mesothelioma. Asbestos, a mineral fiber, can release toxic chemicals in the air if improperly handled.

Asbestos litigation has been going on for decades, ever since the substance was linked to mesothelioma. Individuals affected by this disease have sued companies that made products containing asbestos. Last month, for example, a Massachusetts developer agreed to pay $100,000 to settle a lawsuit over accusations that workers improperly removed and disposed of asbestos. According to the lawsuit, unlicensed workers were allowed to remove materials containing asbestos without taking proper safety precautions. The lawsuit also alleged the company threw away unsealed asbestos near apartment buildings.

Also last month, the Montana Supreme Court announced that hundreds of asbestos cases could proceed through a special “Asbestos Claims Court.” The claims can include personal injuries or wrongful deaths arising out of an asbestos-related disease alleged to come from vermiculite mining, processing, or the transfer, storage, installation, or removal of a product containing vermiculite. The formation of the court was approved by the Montana legislature in 2001.

In a Massachusetts tort case, a prisoner who was incarcerated at FMC Devens filed a pleading captioned as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. He alleged that while he was incarcerated at FCC Butner, prison staff members negligently failed to secure his personal property while he was in the special housing unit. As a result, his property was stolen. On March 3, 2017, he filed with the Bureau of Prisons (“BOP“) an administrative tort claim concerning the loss of his property. The government denied the claim, concluding that there was not any evidence of negligence on the part of any BOP staff member. The plaintiff sought $663.95 in damages.The U.S. District Court for the District of Massachusetts held that the pleading failed both as a habeas and as a tort action. This blog post will focus exclusively on the tort issue.

The Federal Employees Reform and Tort Compensation Act of 1988, or the “Westfall Act,” 28 U.S.C. § 2679(b), provides that a lawsuit against the United States under the Federal Tort Claims Act (“FTCA“) is the exclusive remedy for property loss, injuries, or death arising or resulting from the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office.

The FTCA exempts a range of intentional torts. However, the FTCA does not exempt intentional torts committed by investigative officers or law enforcement officers, thereby permitting individuals aggrieved by the actions of law enforcement officers to have their day in court. The Supreme Court affirmed this so-called “law enforcement provision” in Millbrook v. United States. There, the U.S. Supreme Court held that the law enforcement provision of the FTCA applies to all of the activities of law enforcement officers within the scope of their employment, rather than just to their investigative or law enforcement activities.

A Massachusetts farmer owned a dump truck for hauling soil. One morning in April 2009, he was seen at his farm working on the truck. Later that day, he was found dead underneath it, with his clothing caught up in a spinning universal joint (U-joint) that was part of the mechanical system used to tilt the truck. The medical examiner identified the cause of death as accidental asphyxiation.As an executrix of his estate, his widow filed a Massachusetts wrongful death action. She sued, among others, Mack Trucks, which manufactured the original version of the truck, and Parker-Hannifin Corporation, which had acquired the assets of Dana Corporation. Dana manufactured a piece of equipment known as a “power take-off” (PTO), which was another part of the system used to tilt the dump body of the truck. In two separate summary judgment rulings, different superior court judges ruled in favor of each of these defendants. The Massachusetts Court of Appeals affirmed the judgments.

On appeal, the plaintiff did not argue that the incomplete vehicle that Mack Trucks sold, or the PTO that Dana sold, contained any design defect. Instead, the gravamen of her claims was that the manufacturers had a duty to warn installers and end users about the dangers posed by the use of unguarded auxiliary drive shafts and U-joints because such future uses were foreseeable. After all, she argued, the transmission of the truck was designed so that it could accept a PTO, and PTOs could be operated to power an auxiliary drive shaft. In fact, the plaintiff maintained that the foreseeability of the risks posed by exposed auxiliary drive shafts and U-joints was best demonstrated by the fact that Mack Trucks and Dana each provided some warning about them (warnings that the plaintiff claimed ultimately were inadequate). In the alternative, the plaintiff argued that even if the defendants did not face an independent legal duty to warn about such dangers, they voluntarily assumed such a duty when they provided their warnings about such uses.

The Massachusetts Supreme Judicial Court has endorsed the prevailing view that a supplier of a component part containing no latent defect has no duty to warn the subsequent assembler or its customers of any danger that may arise after the components are assembled. A component part manufacturer has no duty to provide a warning of a possible risk created solely by an act of another party that would not be associated with a foreseeable use or misuse of the manufacturer’s own product. This rule recognized by Massachusetts courts became known as “the component parts doctrine.”

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.)

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.

A 28-year-old man was seriously injured when a Somerville resident shot him in the neck, paralyzing him from the neck down. His family filed suit for negligence, arguing that the gun the shooter used had been wrongly returned to the shooter by the Somerville police department and the city of Somerville. The police department had previously confiscated the weapon in the course of revoking the shooter’s license to carry. The Massachusetts Court of Appeals concluded that the city’s conduct was “based upon” licensing activity described in section 10(e) of the Massachusetts Torts Claims Act (MTCA) and that therefore the city was exempt from liability in this Massachusetts personal injury case.The victim was shot outside the shooter’s parents’ home in November 2013. The victim was visiting one of the building’s tenants and preparing to walk home when the shooter came out and confronted him and two other men. The victim had a bullet lodged in his neck and was hospitalized for a prolonged period. He’s currently a quadriplegic.

At the resulting criminal trial, the shooter’s lawyer maintained the shooting was in self-defense. He claimed that the victim and the two other men would not let the shooter back into his parents’ home and attacked him when he threatened to call the police. But prosecutors argued that a cellphone video made by the shooter showed he escalated the incident and made attempts to make it appear to be self-defense.

Although the police department was waiting for the decision of the Massachusetts Executive Office of Public Safety and Security (EOPSS) regarding whether it could issue the shooter a new license, the department returned the guns to him following the lower court’s ruling. The EOPSS thereafter notified the department that the shooter was disqualified due to his juvenile record, and at a subsequent hearing, the lower court agreed.

A defendant and a third-party plaintiff, C M & B, Inc. (CMB), a general contractor, appealed from a judgment dismissing its indemnification and related claims against its subcontractors Ferreira Concrete Forms, Inc. (Ferreira), and Laserdig. The trial judge ruled, among other things, that the indemnification claim was barred by a governing Rhode Island statute. The Massachusetts Appeals Court agreed and affirmed.In 2009, CMB, having contracted with a property owner to construct a retail store in Rhode Island, subcontracted certain concrete work to Ferreira and certain underground utility work to Laserdig. The subcontracts specified that they were to be construed in accordance with Rhode Island law, and they included indemnification clauses. The owner separately contracted with Meade Construction, Inc. (Meade), to perform certain roofing work.

On September 13, 2009, just as Meade was about to commence work, a tree fell on the partially completed building. Since time was of the essence, CMB asked Laserdig if its on-site personnel could assist in clearing the tree, and Laserdig agreed. Although Ferreira had largely completed its concrete work and had no employees on the site that day, Ferreira and Laserdig were under common ownership and sometimes loaned each other their employees as circumstances required. Accordingly, the common owner decided to loan a Ferreira employee to Laserdig in order to assist the other Laserdig employees, as well as CMB and Meade, in clearing the tree. In the course of this work, Meade placed a ladder against the building but did not sufficiently secure it, nor did CMB safety-check it. As the worker climbed the ladder, it slid to one side, causing the worker to fall and suffer injuries.

He sued both CMB and Meade; CMB filed a third-party complaint for indemnification and other relief against Ferreira and Laserdig. After a trial on the third-party claims, the judge found that the accident resulted from the negligence of both CMB and Meade rather than from any negligence on the part of Laserdig, Ferreira, or the worker. The judge ruled that, under Rhode Island law, CMB could not enforce the indemnification clauses to obtain indemnification for its own negligence, and he therefore ordered judgment for Laserdig and Ferreira on the third-party claims. CMB appealed.

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