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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.

A $20 million federal lawsuit has been filed against the NFL and the New England Patriots on behalf of the former fiancee and daughter of Aaron Hernandez, who committed suicide this year while serving a murder conviction. The lawsuit was filed the same day it was revealed that Hernandez had suffered from chronic traumatic encephalopathy (CTE).Doctors at Boston University studied the brain of the former Patriots tight end and determined that Hernandez had Stage 3 CTE, an advanced form of the neurodegenerative disease. CTE, which can only currently be diagnosed in an autopsy, can be caused by repeated head trauma and leads to symptoms like violent mood swings, depression, and other cognitive difficulties. Hernandez’s CTE was allegedly the most severe case of CTE that the Boston University researchers had ever seen for someone of his age. Advanced stage 3 of CTE is usually found in the median age of 67-year-old men.

Beginning in 2005, a forensic pathologist and neuropathologist found CTE in the brains of diseased NFL players Mike Webster, Terry Long, Andre Waters, Justin Strzelczyk, and Tom McHale. Between 2008 and 2010, the bodies of twelve former professional American football players were diagnosed with CTE postmortem by Dr. Ann McKee.

In 2012, roughly four thousand former NFL players joined civil lawsuits against the League, seeking damages over the League’s failure to protect players from concussions. On August 30, 2013, the NFL reached a $765 million settlement with the former NFL players over their head injuries.  According to the settlement, players whose careers concluded before July 2014 gave up the right to sue the NFL unless they opted out. Hernandez’s last NFL game was in January 2013.

A plaintiff, while working as a police officer, responded to a call at the home of the defendant. The call indicated that the defendant had locked himself inside the house and was threatening to hurt himself. After arriving at the home and making numerous requests of the defendant to enter, the plaintiff ultimately attempted to kick the door down and was seriously injured as a result. He alleged that his injuries were proximately caused by the defendant’s negligence. He did not make any allegations relating to conditions on the premises.The common-law firefighter’s rule provides that a firefighter or police officer who enters private property in the course of his employment duties generally cannot bring a civil action against the property owner for injuries sustained as a result of a defect in the premises. The plaintiff appealed from the trial court judgment in favor of the defendant. In granting the defendant’s motion to strike, the trial court concluded that the firefighter’s rule precluded the plaintiff’s sole claim, which was rooted in ordinary negligence. On appeal, the Supreme Court of Connecticut concluded that the firefighter’s rule should not extend beyond claims of premises liability. The court therefore reversed the trial court’s judgment in favor of the defendant and remanded the case to the trial court.

On appeal, the plaintiff asserted that the trial court incorrectly granted the motion to strike because his claim was not barred by the firefighter’s rule. Specifically, he claimed that the issue was controlled by the Connecticut Supreme Court’s decision in Levandoski v. Cone, in which the firefighter’s rule was limited to claims of premises liability.

In Levandoski, the Connecticut Supreme Court considered whether the firefighter’s rule should be extended beyond the scope of premises liability to bar a police officer from recovering from a defendant who does not control the premises. The Connecticut Supreme Court held that the firefighter’s rule should not extend to a non-premises liability case. In so holding, the court noted that since the firefighter’s rule is an exception to the general rule of tort liability, any loss should be endured by the negligent party. The burden of persuasion should rest with the party seeking to broaden the exception.

A Connecticut resident filed suit for negligence after injuring herself while walking to the Danbury Hospital parking lot. She prevailed during a bench trial, and the defendant appealed. The Connecticut Court of Appeals affirmed the lower court’s decision, which may be interesting to Massachusetts slip and fall claimants as well.In June 2010, the victim and her daughter were visiting the victim’s husband, who was being treated at Danbury Hospital. After their visit, they exited the hospital’s main building and walked onto a walkway leading toward the parking lot. They were familiar with this walkway, since they had made this same trip several times in the past.

While they were walking along the pathway, the victim hit something with her foot and fell to the ground. As a result of the fall, she sustained injuries to her right foot and ankle. It later was determined that she had broken her big toe and damaged the fifth metatarsal of her right foot. Within minutes of the fall, she was taken to Danbury’s emergency room, where she was examined and treated for her injuries. As a result of her fall, she experienced chronic lower back pain from a protruded disc that required several epidural steroid injections and, eventually, a surgical decompression procedure. The lower court ruled for the victim following a bench trial.

On appeal, the defendant first claimed that the trial court erroneously found that the defect in the walkway that caused the plaintiff’s injuries was a reasonably foreseeable hazard. The appeals court disagreed, reasoning that the trial court reviewed reports prepared by members of the defendant’s security and medical staff, as well as photographs depicting the alleged defect and the surrounding area, and it heard the testimony of the plaintiff and her daughter describing the fall and the defect. The trial court therefore had before it adequate evidence of a broken slab of pavement that contained a chip in a well-traveled walkway that had existed for a sufficient period of time. Thus, the appeals court concluded that the findings related to this claim were not clearly erroneous, and the conclusions were not unreasonable.

In a medical malpractice action not unlike some Massachusetts medical malpractice cases, the defendant Emergency Medicine Physicians of New London County, LLC, appealed from the judgment of the trial court after a jury verdict was rendered in favor of the plaintiff. On appeal, the defendant claimed that there was insufficient evidence supporting the jury’s verdict and award of noneconomic damages. Specifically, it claimed that the plaintiff failed to present sufficient evidence for the jury (1) to find that the defendant’s negligence caused the death of the decedent, and (2) to award $150,000 in damages for the destruction of the decedent’s capacity to carry on and enjoy life’s activities. The Connecticut Court of Appeals affirmed the judgment of the trial court.On November 29, 2008, the decedent was found unresponsive and was brought to a hospital emergency department, where she was treated for a suspected drug overdose by the attending emergency department physician. After the decedent’s vital signs improved and stabilized, she was discharged and returned to the home of a friend, where she was found unresponsive the next morning and was pronounced deceased.

The plaintiff alleged that the hospital was vicariously liable for the medical malpractice of the doctor in treating the decedent for a suspected drug overdose. The plaintiff claimed that the doctor’s discharge of the decedent after only four and one-half hours of observation was premature in that the doctor should have kept the decedent under medical monitoring for 24 hours, which is the period of time during which the fatal side effects of methadone toxicity may occur. If the decedent had remained under medical monitoring for the full 24 hours, the fatal overdose side effects she experienced after her discharge would have been treated, and her eventual death from methadone toxicity would have been averted.

The jury returned a verdict for the plaintiff, and the trial court rendered judgment in accordance with the verdict, from which the doctor appealed. The hospital claimed that there was no direct evidence as to when the decedent consumed the fatal dose of methadone, and the undisputed scientific evidence established that if she had actually overdosed on methadone on November 29, 2008, she would have had a recurrence of overdose symptoms before she was discharged from the hospital’s emergency department.

A woman filed suit on behalf of her daughters, based on a a Massachusetts car accident that occurred in December 2010. The defendant was driving a tractor-trailer owned by the co-defendant when he rear-ended the plaintiff’s car. The defendants conceded liability, and the trial proceeded strictly on the issue of damages. The jury returned a verdict of $6,749.29 to the woman, $6,414.70 to one daughter, and no damages to the other daughter. The plaintiffs moved to set aside the jury verdict and for a new trial, both of which were denied.The plaintiffs appealed, arguing:  (1) the trial judge abused her discretion in refusing to continue the trial when co-counsel withdrew after jury empanelment; (2) the trial judge wrongfully excluded the plaintiffs’ revised medical records; (3) the trial judge wrongfully admitted certain medical records offered by the defendants; and (4) there was ineffective assistance of counsel. The Massachusetts Appeals Court rejected these arguments and affirmed the lower court’s judgment.

The appeals court first considered the plaintiffs’ claim that the judge abused her discretion in denying their motion for a continuance and “forcing” them to trial without adequate assistance of counsel. After jury empanelment, “lead counsel’s” renewed motion to withdraw was permitted due to what he described as an ethical conflict. The judge then stated her intention to dismiss the case for want of prosecution if the plaintiffs did not go forward without him. The plaintiffs did not object to the judge’s decision at that time. Since they raised the issue for the first time on appeal, the appeals court explained that the argument was waived.

Either way, the court found that it was not an abuse of discretion for the judge to require the plaintiffs to go forward with their two remaining attorneys, who had been counsel of record from the beginning of the case and who also had been actively involved throughout discovery and pretrial proceedings. The judge concluded that since the plaintiff’s behavior had triggered the ethical issue that prompted the attorney’s withdrawal, she should not be rewarded with a continuance.

A former student and his parents filed a federal lawsuit alleging that the Chelmsford public school system and its employees failed to take sufficient steps to protect the student from a sexual assault at a school-sponsored football camp and from subsequent bullying and harassment by teachers and other students at Chelmsford High School (CHS). The case alleges negligence, among other federal and state law violations. The defendants–the Town of Chelmsford, the Chelmsford School Committee (CSC), and various other school officials–moved to dismiss. Last month, the United States District Court for the District of Massachusetts granted in part and denied in part the motions to dismiss.The case alleges that for years, CHS embraced a culture that put winning first and encouraged bullying and harassment of student-athletes to make them “tough enough” to win championships. The Town, the CSC, and the former Superintendent allegedly knew about and condoned this “winning” sports culture, in which ordinary rules did not apply to star athletes.

In September 2012, the victim enrolled as a freshman at CHS. He was a special-needs student with an Individualized Education Plan under the federal Individuals with Disabilities Education Act (IDEA). In October 2012, during freshman football, three students forced another student to urinate in the victim’s cleats. The family reported the incident to the athletic director, and the three students were suspended for one game.

In August 2013, CHS held its annual football camp at Camp Robindel in New Hampshire. The students stayed in bunkhouses with no regular adult supervision, despite CHS having knowledge of hazing and bullying that took place at past football camps. In the bunkhouse, the victim was hit in the face with powder, and the video recording was posted to social media. He had his food, iPod, and cellphone stolen. He was pelted with milk and repeatedly picked up by his underwear. The lawsuit alleges the hazing culminated in at least three of the victim’s teammates holding him down and raping him with a broomstick.

An 18-year-old woman was fatally shot by Maine police in February. Her mother recently filed notice for a wrongful death lawsuit against the three officers who fired the shots, the town of Vassalboro, Kennebec County, the Vassalboro Police Department, and the head of the Maine State Police. She was appointed the personal representative for her daughter’s estate by a Kennebec County Probate Court judge. She is seeking $500,000 in damages.The victim was shot to death on February 10th of this year on Arnold Road in Vassalboro. A 25-year-old man was also killed in the incident. He was driving a truck in which the victim was the passenger. The man allegedly rammed into a police cruiser, and two Maine police officers and the Vassalboro police chief  all fired their guns. The officers were responding to a reported robbery when the man hit the police cruiser. All three officers have been placed on administrative leave without pay since the shooting.

The woman claims that the victim was merely an innocent bystander. At the time the shots were fired, she’s said, the victim was not a threat to any of the officers or anyone else. She hadn’t committed a crime, and she wasn’t trying to escape or flee. The police didn’t need to use deadly force, she said, and “they could have took that car out.” Her notice of suit claims the agencies had inadequate training and policies to cause the use of force that caused her daughter’s death.

Neither the law enforcement agencies involved nor the Maine attorney general’s office have released information regarding the killings of the two people. It is unclear how many shots were fired, where the officers were positioned when they fired, which officers fired the deadly shots, and whether the officers believed their own lives were in peril. It is likewise not known whether either the man or the woman was armed. Pursuant to standard practice, the Maine attorney general has opened an investigation into the fatal shootings. Since 1990, however, the attorney general’s office has never ruled a deadly shooting by an officer to be unjustified.

A plaintiff filed suit for negligence under the Massachusetts Tort Claims Act (Act) against the Massachusetts State Police after being attacked by a trained police dog in a parking lot. A state trooper who was an experienced dog handler had been in pursuit of a criminal through that parking lot. The plaintiff sued the police, alleging that the trooper’s conduct in releasing the police dog to capture a criminal in a public space created a foreseeable risk of harm to an innocent bystander. The lower court disagreed and granted summary judgment to the state police, reasoning that the plaintiff’s negligence claim was barred by the immunity provisions of the Act. The plaintiff appealed.In reversing, the appeals court first explained that the Act exempts a public employer from liability for any claim based on the performance of a discretionary duty by a public employee, regardless of whether that discretion is abused. The parties agreed that the state police was a public employer immunized from liability by the discretionary function exemption in the Act.

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