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A New Direction for Recreational Use Statute?

A recent Appeals Court decision suggests that the court may be taking a closer look at the Massachusetts Recreational Use State, G.L. c.21, section 17C.  The statute, which bars ordinary negligence claims against landowners who allow the public to use their property for recreational purposes “without imposing a charge or fee,” has in recent years been expanded far beyond what the legislature originally intended.

The court in Amaral v Seekonk Grand Prix Corp. rejected a claim by the operator of a go-kart facility that a mother who was injured while watching her sons ride could not recover after being struck by an errant go-kart.  The facility had raised the Recreational Use Statute as a defense, claiming that, since it permitted the mother to watch her sons without paying for the privilege, it was not liable for negligence.

At first blush, this defense seems patently absurd: how could a money-making operation possibly avoid liability to patrons injured through its negligence?  How could a statute which was intended to encourage landowners to allow the public to use open space for hiking, horseback riding and similar activities be used to protect a business? Yet, the go-kart operator was able to point to a line of decisions in which spectators at an event for which admission was not charged could not recover for negligence.  And the Superior Court judge who heard the motion for summary judgment agreed.

Fortunately, common sense prevailed in the Appeals Court.  The court reversed the grant of summary judgment, noting that the plaintiff had purchased admission tickets for her sons to ride the go-karts.  The court noted that “Grand Prix could fully anticipate that a parent accompanying minor children and paying a fee on their behalf would qualify as a paying customer under the statute.”  Because the plaintiff had paid a fee “for her particular use of the land,” her claim was not barred.

The decision still doesn’t go as far as many victims would hope–and there was a much easier way for the court to get there.  The statute does not require that the individual user pay a fee, but merely that the landowner allow recreational use by the public “without imposing a charge or fee.”  The plain language of the statute would seem to exempt commercial money-making endeavors from its scope.


Fairness for Third-Party Claimants

Worker’s compensation insurers cannot enforce their lien against third-party settlement proceeds that are allocated to a claimant’s pain and suffering damages, the Supreme Judicial Court recently ruled.  In DeCarlo v. Suffolk Construction Co., Inc., the Court held that the compensation carrier could recover amounts paid for medical bills and lost wages only from settlement proceeds attributable to those categories of damages.

The law in Massachusetts and most other states bars employees from suing their employers for injuries suffered in the workplace, instead limiting them to worker’s compensation benefits.  Those benefits, while usually paid immediately and for the duration of the disability, cover medical bills and part of the wage loss, but provide only limited compensation for loss of function and nothing at all for pain and suffering.  The employee may still bring negligence claims against other persons or entities, and may recover full tort damages.  If the employee recovers additional compensation, the worker’s compensation carrier has a right to be reimbursed for what it has paid.

For years, insurers have successfully insisted that their lien may be satisfied from the employee’s entire recovery, regardless of how it is allocated among the various elements of tort damages.  This process sometimes leaves the employee with little to no compensation for general damages such as pain and suffering, because the lien consumes a large portion of the settlement or judgment.

The plaintiff in DeCarlo argued that the insurer could recover its payments only from amounts allocated to medical bills and lost wages, and that lien could not reach that portion of the settlement attributable to his pain and suffering.  Relying on the language of the third-party recovery statute, G.L. c.152 s. 15, the Court agreed.  The Court noted that the statute specifically referred to an injury “for which compensation is payable…”  Since no compensation is payable for pain and suffering, the insurer could not enforce its lien against damages for that injury.  The result is  consistent with an earlier ruling of the Appeals Court in Hultin v. Francis Harvey & Sons, Inc., which recognized that the insurer could not enforce its lien against a spouse’s recovery for loss of consortium.

The Court noted that employees would not be able to “stack the deck” against the insurer by allocating all or even the lion’s share of a settlement to pain and suffering damages.  The allocation of a settlement is subject to approval by a superior court judge or the Department of Industrial Accidents, at a hearing at which the insurer has a right to be heard.  Plaintiffs and their lawyers should be prepared to justify the allocation of settlement proceeds to different categories.


ATV collision results in four injured

Four individuals, two young boys and two men, were hurt during a New Year’s Eve accident involving two all-terrain vehicles at around 9:20 p.m. on Thursday, December 31 in the area of 500 Ashburnham Hill Road in Fitchburg, Massachusetts.

According to Deputy Fire Chief Thomas Dateo, the victims were only identified as a 32-year-old man, a 21-year-old man, a seven-year-old boy, and a six-year-old boy. He added that each ATV was occupied by a man and a boy at the time of the collision.

Emergency medical responders said three of the four individuals who were hurt in the incident sustained “severe multiple-trauma injuries.” The 32-year-old man was airlifted to UMass Memorial Medical Center – University Campus in Worcester where his leg was amputated. The 21-year-old suffered from a head injury and was transported to Leominster Hospital.

The six-year-old boy was suffering from respiratory problems when responders arrived at the scene and was airlifted to UMass. The seven-year-old boy sustained a compound fracture in his left leg and was also taken to UMass via ambulance.


Bridgewater, Raynham vehicular accidents result in multiple injuries

Two serious car crashes which happened less than half an hour apart resulted in injuries to three individuals and the delay of public traffic along Route 24 in Bridgewater and along Interstate 495 in Raynham, both in Massachusetts, on Monday, December 7.

A two-vehicle collision that occurred at around 2:40 p.m. on Route 24 South near Route 104 in Bridgewater critically injured two individuals and also caused the sides of Route 24 to close temporarily. The roads were opened to traffic about 40 minutes later. The injured victims were airlifted to Rhode Island Hospital and Beth Israel Deaconess Center in Boston, according to Massachusetts State Police trooper Paul Sullivan.

The Bridgewater Fire Department and the Massachusetts State Police responded to the scene of the accident and secured the area.

Meanwhile, a second accident occurred at around 3:10 p.m. when a pickup truck flipped over and came to rest on its roof on I-495 South near Exit 8 in Raynham, causing a 21-year-old New Bedford resident to suffer minor injuries.


Study finds ‘rich doctors’ are subject of fewer malpractice lawsuits

A recent study conducted among medical practitioners has shown that doctors and physicians who choose to spend more money on higher quality equipment and medical facilities are less likely to become the target of medical malpractice lawsuits.

The study’s authors analyzed data and interviewed physicians in order to draw its conclusions. One doctor, Anupam Jena, from a hospital in Massachusetts, discussed the concept of defensive medicine. She explained that physicians who are willing to invest in nicer equipment deal with fewer technical mistakes. Her explanation is apparently corroborated by findings of the study, which stated that doctors who do not invest extra money in equipment face a 50% higher risk of malpractice lawsuit.

At Crowe & Mulvey, LLP, our Massachusetts legal team represents clients who have been the victim of medical practitioners whose actions can be considered negligent. Often, these patients are faced with additional medical issues as a result of the mistakes made by their doctors. If you have suffered at the hands of a medical professional who failed to uphold an acceptable standard of care, contact our attorneys by calling (617) 426-4488 today.


Liz Mulvey Ranked #1 Lawyer in Massachusetts by Super Lawyers

In a recent issue of Boston Magazine, attorney Elizabeth Mulvey of Crowe & Mulvey, LLP, was ranked the #1 lawyer in the state of Massachusetts by Super Lawyers. She was also recognized on a list of the Top 100 lawyers in the state, and again on a list of the Top 50 women attorneys in MA. Liz Mulvey is listed under the category of Personal Injury Medical Malpractice: Plaintiff by the publication.

The entire team at Crowe & Mulvey, LLP, is thrilled to congratulate Liz on this tremendous accomplishment, as Super Lawyers uses a rigid selection process that combines independent research, peer review, and professional achievement to determine its annual rankings of attorneys in the state.


Massachusetts man charged in motorcycle accident

Twenty-three-year-old Burlington, Massachusetts resident Patrick Litchfield has been charged with multiple criminal offenses in relation to a hit-and-run motorcycle accident that occurred on Route 25 in Gorham, Maine on Monday, October 5 at around 7 a.m. and caused injuries to 37-year-old Hiram resident Jonathan Lord.

Gorham police arrested Litchfield and charged him with reckless conduct with a dangerous weapon, leaving the scene of a personal injury crash, possession of heroin, criminal speeding, driving to endanger, driving after his license was revoked, and trafficking in dangerous knives.

According to Lieutenant Christopher Sanborn, Officer Robert Henckel had been patrolling Route 25 when a gold-colored sedan traveling at 85 miles per hour in a 50 mph zone came zooming past him in the opposite direction.

Henckel said he turned his police cruiser around to question the speeding driver, but he stopped when he found Lord and his battered motorcycle resting beside the road.

Dangerous drivers are out there, and they cause serious accidents every day. If you have been injured in a car accident, call Crowe & Mulvey, LLP at (617) 426-4488 today to discuss your options.


Medical diagnoses often wrong in the United States

A new report issued by the Institute of Medicine showed that there was a prevalence of medical diagnosis errors in the United States because health care providers pay little attention to them.

According to IOM chairman and member of the American College of Physicians, Dr. John Ball, “patients are central to a solution”, meaning this situation could be remedied if health providers – lab workers, doctors, and nurses – make patients part of their team. Ball believes health care providers should listen to patients more attentively when they complain about feeling different than they are supposed to feel after an operation or after ingesting medication prescribed to them. Providers should also give patients a copy of their test results immediately.

For her part, National Quality Forum president Dr. Christine Cassel said should there be an instance when after consulting three doctors, the third doctor made the right diagnosis – different from the diagnosis of the two previous doctors – the third doctor should not be embarrassed to pick up a phone and tell the other two doctors, “It turned out that the patient had X and not Y”.

Our attorneys at Crowe & Mulvey, LLP in Massachusetts want our clients to know that we have a vast experience when it comes to handling medical malpractice cases and that we will give our 100% so that our clients’; can have a favorable resolution to their case. Call our offices today at (617) 426-4488.


Massachusetts has second lowest rate of injury-related deaths in U.S.

A new report states that Massachusetts has the second lowest rate of injury-related deaths in the United States.

Massachusetts scores points for safety in a few different categories, including having a law that requires booster seats in vehicles for children, instituting vaccination programs for residents, and having a bicycle helmet law. However, the report also identified areas for improvement in the state, such as mandating the use of ignition interlock devices for drunk drivers as well as creating a primary seatbelt law.

The report noted that the leading cause of injury-related deaths in the state is drug overdose, which exceeds statistics for automobile accident cases.

Northampton public health director Merridith O’Leary said that more than 1,000 deaths in the state can be attributed to opioids – heroin and prescription drug use – in 2014, and said that number is bound to increase because three of the largest cities in the state have yet to report their data regarding the matter.

Despite these promising and encouraging statistics, the attorneys at Crowe & Mulvey, LLP, know that residents of Massachusetts still can do more to decrease the number of preventable accidents, deaths, and injuries that occur every year. If you or someone you love has been injured because of someone else’s recklessness or negligence, we are here to help. Call us today at (617) 426-4488 to learn more.


Bicyclists often ride past red light intersections

More than half of the 865,000 bicycle riders who commute to work every day in the United States cycle through red light intersections without stopping, according to a recent study conducted by researchers at the State University of New York at Buffalo, The Record reported on June 29.

Another study conducted in Minnesota showed that 49% of bicycle accidents occurred through the fault of the bicyclist; an Arizona study, on the other hand, showed that 44% of fatalities in bicycle-automobile accidents were caused by the cyclist rather than the car driver.

Chris Juden, chief technical officer of the United Kingdom’s 137-year-old Cyclists Touring Club, said the reason why sometimes bicyclists fail to stop at red lights is due to the lost momentum and kinetic energy they experience.

The attorneys of Crowe & Mulvey, LLP, in Massachusetts represent those who have been injured in an accident through no fault of their own. If you have experienced this, we may help you pursue the financial compensation you need to cover medical bills and other expenses. Call us at (617) 426-4488 today to learn more.