June 28, 2017

Litigation Blog

Recent SJC Decision Expands Strict Liability for Some Commercial Property Owners

In most personal injury cases, the injured must show that the damage she suffered was due to some intentional or negligent act by another party.  However, in certain situations, the law may impose “strict liability”, which allows liability against a party without evidence of fault.  Traditionally, strict liability has been limited to a small number of situations, such as injuries caused by hazardous activities (such as blasting), harm caused by livestock, and on-the-job injuries that fall within workers’ compensation laws.   Under the doctrine of strict liability, a defendant is liable for all harm that occurs, even where the injured party caused or contributed to the harm occurring.

In April 2014, the Massachusetts Supreme Judicial Court (“SJC”) issued a decision in the case of Sheehan v. Weaver, 467 Mass. 734 (2014), which expanded the application of strict liability against certain commercial property owners.  The Sheehan case dealt with an injury that occurred at a mixed-use residential/commercial property.  Notably, the plaintiff sued the property owner under Massachusetts General Law c. 143 § 51, which imposes strict liability on owners of “a place of assembly, theatre, special hall, public hall….manufacturing establishment or building” for any damage caused by a violation of the state building code.    The SJC determined that Section 51 applies strict liability for harm caused by any violation of the state building code.  This decision overruled longstanding precedent which limited strict liability to only certain violations of the state building code relating to fire safety. [Read more…]

Dog Bite Injuries: Who is Responsible?

The Massachusetts Society for the Prevention of Cruelty to Animals (MSPCA) reports that there are approximately 4.7 million reported dog bites every year in the United States. Not surprisingly, many dog owners have questions about what would happen if their dog caused an injury to another person.

Massachusetts General Law c. 140, § 155 states in part that if “any dog shall do any damage to either the body or property of another person, the owner or keeper…shall be liable for such damage….” Therefore, under the statute, the owner or keeper will be held liable for harm caused by the dog without requiring any further proof of negligence or other wrongdoing by the owner/keeper. [Read more…]

Water, Water Everywhere…Massachusetts ‘Common Enemy Rule’ to ‘Reasonable Use Doctrine’

It’s a fact of life that surface water such as rain and snowmelt tends to move from higher elevations to lower elevations. Construction often changes the flow of surface water on a property, causing an increase in runoff which may affect neighboring lots.  Disputes often arise between property owners when excessive runoff flows from one lot onto another.  Do you know what rights you may have if a neighbor’s actions have caused increased surface water to flow onto your property?

For over 100 years, Massachusetts Courts followed the colorfully-named “Common Enemy Rule”, which protected property owners who attempted to remove or divert surface water from their land.  The Common Enemy Doctrine held that, with few exceptions, a property owner would not be liable for damages to adjoining property resulting from activities taken on his own property which affected the flow of surface water.   [Read more…]

How To Sign On Behalf Of A Corporation Or LLC

One of the reasons most business owners form a corporation or limited liability company is to avoid personal liability for the liabilities of the business.  Unfortunately, many business owners expose themselves to personal liability by not properly identifying the business when they sign agreements.  It defeats the purpose of forming the business entity if Joe Smith forms his business as XYZ, Inc. but then signs a contract with a supplier as simply “Joe Smith”. In order to maintain the benefit of the separate entity and avoid personal liability, the business owner should sign contracts, proposals, agreements and any other documents for a business as follows:

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Security Deposit Violation: The Easiest Mistake A Massachusetts Landlord Can Make

There are many ways in which landlords can cross the line and get into serious trouble with their tenants, but perhaps the easiest is by misappropriating their security deposit. Many landlords collect a security deposit to ensure that there are funds available to repair any damage caused by a residential tenant or to recover unpaid rent at the conclusion of the tenancy. Although this practice may have its advantages, it is important to be sure that you are complying with the laws regarding security deposits. According to the Massachusetts Security Deposit Statute, M.G.L. 186 §15B, a landlord may accept a security deposit provided it does not exceed the amount of the first month’s rent.  All Massachusetts landlords collecting a security deposit for a residential property must comply with the following minimum requirements:

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Pulled over by a Massachusetts State Trooper or Police Officer

How should you act if you are ever pulled over by the police while driving? 

What if the officer has an attitude? 

There is an old saying; the best way to take a chip off of someone’s shoulder is to let them take a bow.  If you get pulled over by a police officer and he or she seems to be unpleasant at first, unless you have been driving really badly, you are probably not the reason for the bad attitude.  More than likely, someone has been “kicking the officer’s cat” that particular day and then you happen to come along.  One thing you should never do is act like a wronged taxpayer and remind the officer who pays his or her salary.  Be polite, cooperative and respectful. Addressing an officer in this manner will make you stand out from the majority of the public that the officer will encounter during the shift and may result in a verbal or written warning instead of a financial penalty, which may also translate into an insurance surcharge.

I am criminal defense attorney Peter Paulousky. In later blogs, I will take you through some various stop scenarios with tips based upon real life experience of 37 years during which I have been a full time police officer, a prosecutor and private attorney.

For now, remember that

  1. how you act at a stop goes into a police report;
  2. what you say gets repeated at a hearing; and
  3. the police do talk about their day in the locker room, so don’t give the officer any reason to take out his or her bad day on you.

A Summary of Summary Process

Summary Process is the legal procedure landlords must use to evict tenants from residential and commercial properties. It is one of the most abbreviated court procedures in the Commonwealth, yet it requires careful adherence to Massachusetts law and the rules that govern terminations of tenancies and evictions. Below is a summary of the steps involved in the process.

1. Termination of A Tenancy – A landlord must terminate a tenant’s tenancy before commencing a summary process action. Tenancies that are subject to a lease automatically expire at the end of the lease term. When a tenant fails to pay rent or engages in some other type of lease violation, a landlord must send the tenant a “Notice to Quit.” This notice informs the tenant of the failure to pay rent or other lease violation and demands that the tenant move out of the premises. [Read more…]

The dangers of misclassifying employees as independent contractors under Massachusetts law

The failure to properly classify workers as employees in Massachusetts can cause employers to incur tax penalties, increase their insurance liability, receive civil and criminal fines and become subject to litigation.

One potential area of liability for misclassification is of wages.  Classification as an employee affords a worker various protections including minimum wage and overtime pay.  Massachusetts courts have awarded a misclassified worker the wages he would have earned as an employee regardless of the fact that he was actually paid more as an independent contractor than as an employee. [Read more…]

Changing Terms of Employment Agreement Voids NonCompete

A recent Massachusetts Superior Court case reinforced the importance of an employer honoring its contractual obligations with employees if it hopes to enforce a noncompete agreement.  The facts involved a company that sold its assets to a new owner.  The new owner changed the employee’s compensation structure by reducing the employee’s salary and instituting a new compensation structure by which the employee could possibly earn as much or more money under a bonus structure.  The Court agreed with former employee that the new employer could not enforce the noncompete agreement, which the employee had signed before the company was sold, finding that the new owner’s change to the employee’s salary was “a material change” in the employment relationship which voided the preexisting noncompete agreement.

This case underscores the importance of a purchaser of a business understanding that if it wishes to maintain noncompete agreements with the employees of the company it purchased, it cannot make a material change to the employment relationship or should negotiate new noncompete agreements with the employees.  All employers should understand that if they make other changes in the employment relationship, a review of existing noncompete agreements should be conducted and new noncompete agreements should be considered.  For example, when an employee receives a promotion, a new noncompete agreement should be considered.  If you have questions regarding noncompetition agreements or any other matter, please do not hesitate to contact one of our employment or business lawyers.

Massachusetts Law Can Apply To Out Of State Residents

A Massachusetts court recently ruled in a lawsuit brought by a Florida resident who worked for a Massachusetts company that the Massachusetts Wage Act applied to the Florida resident because the Florida resident had sufficient contacts with the Commonwealth of Massachusetts such that the Massachusetts Wage Act should apply.  The issue of which state’s laws should apply often arises in many lawsuits.  This is important as laws vary from state to state.  This is one reason why properly drafted contracts often have a provision addressing the state law that will apply to disputes regarding the contract.  This can help to avoid later disputes regarding which state’s law will apply.

If you have any questions regarding any litigation matter, please do not hesitate to contact one of the litigation attorneys at Doherty, Ciechanowski, Dugan & Cannon, P.C.

Budget Cuts Limit Access to Massachusetts Courts

One of the effects of recent budget cuts has been limiting the trial courts’ ability to respond to litigants and attorneys involved in lawsuits.  The budget cuts have caused decreases in staffing but the number of lawsuits and demands upon court personnel have certainly not decreased.   Lawyers have long seen delays caused by budget cuts.  As explained in this press release, these delays have now forced some courts to limit the times that they will speak to the public in person at the courthouse and answer telephone calls.  The dilemma caused by budget cuts to courthouse staff is not limited to Massachusetts as noted in the attached recent New York Times editorial.

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Threadbare American Justice – NYT Editorial

The dilemma caused by budget cuts to courthouse staff is not limited to just Massachusetts as noted in the recent New York Times editorial below.

New York Times Editorial
Published: August 17, 2011

It is an American article of faith that the path to justice runs through the courts. State courts, which handle a vast majority of civil and criminal cases, are in a state of crisis. Across the country, deep budget cuts and increased caseloads have created long delays and a denial of basic access to justice.

More than 48 million cases, excluding traffic cases, were filed in state courts in 2008. Since then, courts have been flooded with thousands of new foreclosures, credit card cases and other lawsuits driven by economic hardship. At the same time, the recession and the deepening budget crunch have led states to lay off judges, law clerks and other courthouse personnel, which means longer waits for trials and delays even for recording judgments so that cases can be resolved. [Read more…]

What happens when I am sued?

Everyday thousands of lawsuits are filed across the county and in the Common wealth of Massachusetts.  Typically, you first learn you have been sued when you are served with a copy of a Summons and Complaint by a judicial officer.  After receiving a Complaint, you should review it carefully and consult with an attorney experienced in litigation.  Depending on the type of the lawsuit, you may need to send a copy of the Complaint to your insurance company.

Shortly after receiving the Complaint, your attorney will file an Answer outlining your defenses to the lawsuit, as well as any counterclaims that you against the plaintiff, or cross-claims against co-defendants.  The case then enters the discovery phase, during which the parties make requests for information and take depositions to learn more about the case.  Once the parties are satisfied with the information they have received and have evaluated the merits of the case, the parties often try settle the matter.  The vast majority of cases reach are resolved by settlement negotiations, including some form of alternative dispute resolution like mediation, arbitration, or case evaluation.

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What should I do when I have been sued?

The first thing that you should do is to call an experienced Massachusetts litigation attorney. You should also be prepared to discuss with that attorney if you have insurance. You may have insurance that will pay for your legal fees to defend you in the lawsuit and pay any claim that may be entered against you in the lawsuit. It is important that you investigate if you have insurance as soon as possible as the insurance policy will most likely require that you notify the insurance company immediately or forfeit your rights.

You should also investigate if you have any benefits from your employer or groups that you belong to such as a union that will provide you with free or discounted legal services. You should also remember that once you have been sued whatever you say about the lawsuit to anyone could become the subject of court or deposition testimony. Because of this fact, you should be careful to say little or nothing about the lawsuit to anyone except an attorney because what you say to an attorney that represents you is protected by the attorney-client privilege. This is one reason why the first step when you are sued is to call an experienced litigation attorney to represent you.

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Massachusetts Judges vow to shut 11 courts

Two very common questions one has when they become involved in a law suit is what should they expect and how long will the process take? The answers to these questions just got very complicated.

A recent Boston Globe article discussed the political and legal problems that decreased funding is causing the Massachusetts court system. The decrease in funding has led to increasing delays in courts addressing cases. In turn, this has caused frustration for citizens involved in law suits in Massachusetts.

Being a party to a law suit in Massachusetts was already a time consuming and sometimes confusing process for people unfamiliar with the process. Getting a law suit through the Massachusetts court system when there were more funds available took years and that time line may now become longer. Massachusetts Courts now have less staff and fewer judges. This means it takes longer for a case to reach trial. Furthermore, court house closing are threatened, which will lead to further delays as more cases will be handled in fewer courts by fewer judges.

[Read more…]

Attorneys in Franklin Massachusetts and Medfield MA lawyers

The Massachusetts attorneys of Doherty, Ciechanowski, Dugan & Cannon provide legal services to Massachusetts businesses, families, and individuals in the practice areas of business law, criminal defense, divorce and family law, employment law, estate planning, personal injury, real estate, and litigation matters.

Our attorneys represent clients throughout Massachusetts and in every county of Massachusetts including Norfolk County, Suffolk County, Worcester County, Bristol County, Middlesex County, Plymouth County, Hamden County, Essex County and Barnstable County. Our attorneys represent clients in Massachusetts’ largest communities including the cities of Boston, Worcester, Springfield, Lowell, Cambridge, Brockton, New Bedford, Fall River, Lynn, and Quincy.

Our law offices are located in Franklin and Medfield and serve the Greater Boston MetroWest region and the neighboring towns of Bellingham, Milford, Upton, Hopedale, Holliston, Medway, Millis, Medfield, Norwood, Walpole, Sharon, Foxborough, Wrentham, Easton, Mansfield, North Attleboro, Norton, Plainville, Raynham, Taunton, Attleboro, Seekonk, Rehoboth, Uxbridge, Whitinsville, and Worcester.