Massachusetts Injury Attorney News

October 14, 2020

Comparative Negligence in Massachusetts Pedestrian Accidents

by The Law Offices of Barry Feinstein & Affiliates P.C.

Pedestrians, such as daily commuters, runners, hikers, and those traveling by stroller or wheelchair, are among the most vulnerable type of road users in Massachusetts. The National Highway Traffic Safety Administration (NHTSA) classifies these groups of people, along with young drivers, bicyclists, and school bus occupants as “higher risk transportation system users.” These individuals tend to suffer the most significant injuries and damages when they are involved in an accident. The NHTSA’s most recent data indicates that these users accounted for over 50% of the nearly 400 traffic fatalities reported to the state.

The rate of pedestrian fatalities occurs more frequently during colder months (October-February) than warmer ones (March-September). Research suggests that these rates coincide with low visibility, unsafe roadways, and judgment errors. Although motorists have a higher duty to act with reasonable care for others’ safety, pedestrians must also abide by a similar duty of care. Both motorists and pedestrians must take steps to prevent foreseeable danger to themselves and others. When a party fails to adhere to this standard, their right to damages may be reduced or barred.

Massachusetts follows a modified comparative fault model. Under this model, an injury victim who is more than 51 percent responsible for their injuries will be ineligible to collect damages. However, if the plaintiff is less than 51 percent responsible, their recovery will be reduced by their share of liability. Massachusetts pedestrian accident victims may face a reduction in their damages in cases where they unsafely enter the roadway, fail to use crosswalks, or otherwise violate traffic rules.

October 6, 2020

Massachusetts Personal Injury Lawsuits Involving Child Victims

by The Law Offices of Barry Feinstein & Affiliates P.C.

According to recent National Highway Transportation Safety Administration data, over 60 million children in the United States are involved in traffic accidents every year. In fact, Massachusetts motor vehicle accidents are one of the leading causes of death for children 14 years old and younger. Other causes of death are bicycle accidents, injuries related to incidents at school or after school programs, and dog bites. Although many safety agencies have implored the public to use child safety seats and other restraints, these accidents and injuries continue to occur, and the outcomes can be devastating.

When a child suffers injuries or wrongful death in a Massachusetts accident, their loved ones must understand the child’s rights and remedies. Although the evidentiary burden is typically the same, whether the victim is a minor or an adult, there are some differences between these lawsuits. First, under the law, children cannot bring their own lawsuits. Anyone under 18 years old is considered a “minor.” The law requires that these lawsuits are filed by the child’s “next friend.” Usually, this is the minor’s parent or legal guardian. Settlement agreements for $10,000 or higher must receive approval from the Court. A judge will review the settlement and ensure that the representative understands that the funds must be used for the child’s benefit. Finally, the statute of limitations is different in cases involving children. In typical accident cases, the statute of limitations expires three years after the date of the incident causing the injury. However, the statute of limitations in minors’ cases expires three years after reaching their 18th birthday.

Accidents involving children are particularly tragic and can result in serious permanent disability or death. For instance, a recent report indicates that a 10-year-old girl suffered fatal injuries in a multi-vehicle accident in Massachusetts. An initial investigation reveals that the children were passengers in a Subaru driven by a 29-year-old woman. The woman made contact with the back of a Toyota SUV, and both drivers pulled over to assess the damage. They stopped in the left lane and decided to address the damage later; as they were about to continue driving, a JEEP crashed into the Subaru, causing it to slam into the Toyota. The young girl died in the accident, and six other people suffered serious injuries.

September 28, 2020

Massachusetts Bicycle Helmet Laws and Their Impact on Personal Injury Liability

by The Law Offices of Barry Feinstein & Affiliates P.C.

Massachusetts is among the growing number of jurisdictions that require bicyclists and motorcyclists to wear helmets. Policymakers designed these laws to increase road safety and protect vulnerable road users from serious injuries. In addition to traffic citations, those that violate Massachusetts’ helmet laws may suffer serious brain injuries. According to the Centers for Disease Control and Prevention (CDC), helmets save nearly 2,000 lives every year. Additionally, helmets reduce the likelihood of head injuries by nearly 70%. However, it is essential to note that bicycle injury victims who failed to wear a helmet may still hold a negligent motorist liable for their injuries and damages.

Under Massachusetts law, bicyclists and bike passengers 16 years old and younger must wear an approved helmet. Approved helmets are those that meet the Consumer Product Safety Commission safety standards. Additionally, cyclists should ensure that they wear their helmets correctly. A narrow exception to this rule applies if the passenger rides in a trailer or sidecar that protects the rider’s head.

Bike injury victims must understand that not wearing a helmet does not automatically preclude a biker from holding other parties responsible for the injuries they suffeed in an accident. Specifically, the law states that the other party cannot use a biker’s helmet usage as evidence of contributory negligence in a personal injury or wrongful death lawsuit. However, a rider’s failure to wear a helmet may result in a reduction in the amount of damages they are able to obtain, if the defendant can prove that the motorcyclist’s failure to wear a helmet contributed to their injuries.

September 21, 2020

Pursuing a Personal Injury Lawsuit After a Massachusetts Pedestrian Accident

by The Law Offices of Barry Feinstein & Affiliates P.C.

Massachusetts pedestrian accidents often result in life-threatening injuries. Despite common misconceptions, individuals who are hit by a car are not automatically entitled to compensation. Pedestrian injury victims wishing to recover damages must establish that the other party was negligent. In many cases, the party who hit the pedestrian may dispute liability, and insurance companies may deny coverage. In addition to threshold tort issues, pedestrian accident victims must abide by strict filing and notice requirements and the state’s statute of limitations.

Under Massachusetts law, injury victims must prove that their injuries meet the minimum criteria to file a tort action against the responsible party. If a victim cannot meet the threshold, they may recoup losses through their Personal Injury Protection coverage. Victims who wish to file a lawsuit against the at-fault driver, must be able to establish that they suffered more than $2,000 in medical expenses related to broken bones, eye or ear injuries, or permanent scarring or disfigurement.

Pedestrians may recover economic and non-economic damages for their injuries and losses. Economic damages are generally objective, quantifiable losses such as lost wages and medical bills. Whereas, non-economic damages are subjective and include losses related to loss of enjoyment of life, pain and suffering, and loss of companionship and consortium. Unlike many other states, Massachusetts only allows punitive damages, which are designed solely to punish the wrongdoer, in cases of wrongful death where the defendant acted willfully or with wanton disregard of another’s safety. Injury victims must file their damages claim within three years of the accident—however, certain narrow exceptions exist, such as when the victim was a minor when the accident occurred.

September 15, 2020

Personal Injury Lawsuits Following a Massachusetts Bike Accident

by The Law Offices of Barry Feinstein & Affiliates P.C.

Bicycling is an increasingly popular transportation method in Massachusetts, however, the increase in bicycling corresponds with a rise in Massachusetts bike accidents. To address the dangers of biking, cities have created bike lanes to make biking safer and more accessible. Although, bike lanes are part of a more significant nationwide safety effort, they often pose risks of their own, especially when the lanes are poorly designed.

According to the National Association of City Transportation, a bike lane is a defined part of a roadway that has been designated for the exclusive use of bicyclists. These lanes are typically marked with distinctive signage or markings. The lanes allow bicyclists to safely ride without traffic interference. However, in most cases, bike lanes do not have any barriers to protect cyclists from encroaching vehicles. These lanes usually run in the same direction as traffic; but in some instances, there may be portions that run in the opposite direction of traffic. It is crucial that cities thoroughly evaluate traffic patterns and provide sufficient buffers and signage to protect bicyclists from traffic, pedestrians, and parked vehicles.

Despite safety measures, bike lanes pose risks because of the inherent danger of bicyclists sharing the roadway with vehicles. In fact, some argue that bikers and motorists fail to appreciate the danger of sharing the road because of the false sense of security that a bike lane may provide. However, many accidents can be avoided if these lanes are appropriately designed and include sufficient signage and barriers.

September 9, 2020

Pursuing a Wrongful Death Lawsuit Following a Massachusetts Wrong-Way Crash

by The Law Offices of Barry Feinstein & Affiliates P.C.

According to the U.S. Department of Transportation Federal Highway Administration, wrong-way crashes result in nearly 400 fatalities every year. Although wrong-way crashes do not occur as much as other types of Massachusetts car accidents, when they do, they are much more likely to result in a fatality. Wrong-way crashes occur when one vehicle is traveling in a direction against the proper flow of traffic. These accidents typically happen on a divided highway or an exit or entrance ramp, and generally involve head-on collisions occurring at high speeds. If a wrong-way collision results in the death of a motorist, it may be the basis for a Massachusetts wrongful death lawsuit.

Despite the various public service campaigns to educate and enforce safe driving habits, wrong-way accidents still occur. The leading causes of wrong-way crashes are motorists driving under the influence of drugs or alcohol, speeding and engaging in dangerous maneuvers, improper passing, vehicle malfunctioning, and road hazards that lead to a loss of control. The nature of these accidents tends to cause serious and potentially fatal injuries. Some common injuries after wrong-way accidents are traumatic brain injuries, spinal cord damage, broken bones, and burn injuries. Many victims and their families experience enormous financial burdens in the aftermath of these accidents.

Recently, a Boston news report indicated that two people died, and one person suffered severe injuries in a wrong-way accident. According to the report, a 30-year-old woman drove her vehicle in the wrong direction on a highway. She collided with another car driven by a 66-year-old woman. The woman was transferred to a Boston hospital, where she succumbed to her injuries. A 39-year-old passenger in her car died at the scene of the accident. The accident involved another vehicle; however, that passenger did not require emergency medical treatment. Police stated that they are continuing to investigate the circumstances that led to the tragic accident.

August 27, 2020

Massachusetts Drunk Driving Accidents

by The Law Offices of Barry Feinstein & Affiliates P.C.

The dangers of driving under the influence of drugs or alcohol are well-known, documented, and ingrained in most individuals before they even obtain their driver’s license. However, unfortunately, drunk driving continues to be problematic, causing thousands of fatal accidents every year. Victims of Massachusetts drunk driving accidents may be able to obtain compensation for their injuries through a personal injury lawsuit. There may be more than one person responsible after a drunk driving car accident, and naming all potentially liable parties in a case is crucial. Thus, it is important that victims contact an attorney to discuss their rights and remedies.

In Massachusetts, the law presumes that a driver is “operating under the influence” (OUI) if their blood alcohol concentration (BAC) is over than .08. However, in some cases, a lower BAC may cause the driver to experience an impairment, especially if the person consumed drugs while drinking. In cases where the driver was under the legal drinking age, a BAC over .02 automatically results in an arrest. Although an OUI is helpful to plaintiffs in civil claims, it is not an automatic means to recovery. Neither is an OUI conviction necessary to pursue a personal injury lawsuit. Accident victims should contact an attorney to ensure that their case is appropriately prepared and presented to a judge or jury. The failure to adequately prepare a case may result in a dismissal or inadequate recovery.

Recovering after a Massachusetts drunk driving accident is critical in the process to attempt to make a plaintiff or their family “whole again.” Mainly because these accidents tend to result in severe personal injuries and property damage. For instance, according to a recent news report, a 78-year-old man, with a history of drunken driving, caused an accident that resulted in the death of a man in a wheelchair. Witnesses explained that they saw the driver run over the man in the wheelchair, then reverse, and run over him again. The driver then got out of his car and tried to leave the scene of the accident. Police indicated that the driver had four previous drunken driving charges, but had an active, valid license. The driver’s license was most recently reinstated in 1999 after being suspended for 18 months following his fourth drunk driving conviction. Further, his license was suspended three other times because he failed to take a chemical breath test and for reckless driving.

August 7, 2020

Comparative Negligence in Massachusetts Motorcycle Accident Cases

by The Law Offices of Barry Feinstein & Affiliates P.C.

Massachusetts car accidents, especially those involving motorcycles, can have long-lasting and potentially fatal consequences. After an accident, victims and their families must understand how Massachusetts procedural and substantive rules will impact their claim to recovery. One of the most critical rules that may affect an injury victim’s claim to compensation is the state’s comparative negligence statute.

Historically, most states followed the contributory negligence theory, which acts as a defense to liability in a car accident or other injury lawsuit. Under the original theory, plaintiffs were not entitled to compensation if the defendant in the case could prove that the plaintiff contributed in any way to their own injuries. In addressing the inherent unfairness of this statute, Massachusetts lawmakers moved towards comparative negligence. Comparative negligence is a modern alternative to contributory negligence.

Comparative negligence allows the trier of fact to evaluate all evidence that each party presents and assign fault on a percentage basis. Massachusetts’s modified comparative negligence rule allows plaintiffs to recover as long as their portion of responsibility was less than 51 percent. In situations where a plaintiff is more than 51 percent responsible, they generally cannot recover. Further, it is important to note that under this rule, a plaintiff’s damages are reduced by their percentage of fault.

July 21, 2020

Determining Fault and Apportioning Liability in Massachusetts Car Accidents

by The Law Offices of Barry Feinstein & Affiliates P.C.

When a motorist, passenger, or bystander suffers injuries in a Massachusetts car accident, determining fault and apportioning liability is a crucial part of the recovery process. Massachusetts is a no-fault state, which means that an accident victim’s insurance company will cover a portion of their medical bills, lost wages, and other expenses, regardless of who is at fault. However, these benefits do not cover expenses related to pain and suffering, loss of consortium and companionship, or loss of earning capacity damages.

Although a Massachusetts injury victim’s insurance company is generally supposed to pay or reimburse victims for their accident-related medical expenses, victims often suffer substantial damages that insurance will not cover. Under certain circumstances, a motorist may file a personal injury lawsuit against another driver when they meet the statutory threshold. Under Massachusetts law, motorists who wish to sue another driver for their injuries must establish that either their “reasonable and necessary” medical expenses are over $2,000, they suffered broken bones or a loss of hearing or vision, they suffered a partial or complete loss of a body part, or serious disfigurement, or death.

If a Massachusetts car accident victim meets the tort threshold, they must then establish fault before they can recover. The state follows a “modified comparative negligence” system to determine and allocate damages. Car accident victims can recover for their injuries if they are less than 51% at-fault for the accident. If a judge or jury determines that the victim was more than 51% at fault, they will be barred from recovery.

July 14, 2020

Defective Furniture Claims in Massachusetts

by The Law Offices of Barry Feinstein & Affiliates P.C.

Recently, Consumer Reports (CR), a nonprofit organization that provides research and reviews to improve products, issued a report that Ikea, a popular furniture retailer, is facing a class-action lawsuit. The lawsuit alleges that the company advertised and sold millions of dressers that they knew were inherently dangerous and prone to tipping over. Further, the complaint states that the retailer did not appropriately notify consumers or issue refunds for the dresser after they were recalled in 2016. The class-action lawsuit highlights the serious dangers and injuries that Massachusetts consumers may face because of defective products.

Statistics by CR indicate that someone in the United States suffers injuries less than every half hour because of an appliance or furniture tip-over. Further, dresser tip-overs account for over 200 deaths in the past twenty years. Many of these victims were under six-years-old. The above-referenced lawsuit was filed on behalf of a family who purchased the dressers before the recall. When the family tried to return the dressers in 2018, the store denied their attempt. The lawsuit claims that other families experienced similar denials. The class-action lawsuit seeks to redress consumers who purchased defective dressers and compel the retailer to remove the dressers from the homes of customers. Several consumer protection groups wrote to Ikea, stating that they did not do enough to notify parents about their dressers’ risks or make it easy to return or remedy defective products.

Many consumers are not aware that the furniture industry operates under a “voluntary tip-over” testing standard. The testing evaluates whether a dresser that measures higher than 30 inches can stay upright with 50 pounds hanging from an open drawer. However, because testing is not mandatory, manufacturers are not required to conduct the test or meet that standard. Research into these accidents reveals that close to half of these accidents occur when children are left alone in a room. CR advises that consumers refrain from putting televisions on top of dressers, citing reports that the majority of tip-over fatalities involved televisions and dressers tipping over. The most effective way to prevent these accidents is to secure dressers to the wall. However, this is not always possible for consumers, and manufacturers should provide the public with safer products and a way to affix dressers to walls.