Massachusetts Premises Liability

Transcription

1 Massachusetts Premises Liability Table of Contents Chapter 1 PREMISES GAS AND FIRE LIABILITY Part I: The Plaintiff s Perspective WARREN F. FITZGERALD, ESQ. Meehan, Boyle & Cohen, P.C., Boston 1.1 INTRODUCTION 1.2 ANALYSIS OF A FIRE CASE Cause and Origin Duty to Prevent Fire Duty to Suppress Fire Part II: The Defense Perspective ROBERT A. CURLEY, JR, ESQ. Curley & Curley, P.C., Boston 1.3 INTRODUCTION 1.4 THE SCENE 1.5 PRESERVATION OF THE EVIDENCE Documentation of the Fire in Progress 1.6 BECOMING EDUCATED IN FIRE SCIENCE Definitions The Elements of a Fire The Elements of an Explosion Identifying Possible Causes Determining Whether the Fire Could Have Been Prevented Checklist for Review of Building Department File 1.7 OBTAINING ACCESS TO THE PREMISES Photographing the Scene

2 1.7.2 Complaint for Discovery 1.8 Identifying Key Personnel Emergency Personnel Owners, Lessors and Other Potential Parties to Litigation Experts 1.9 IDENTIFYING THEORIES OF CAUSE Identifying Exemplars of Products Preserving Damaged Property 1.10 LITIGATION CONSIDERATIONS FOR THE DEFENSE Requests for Production of Documents and Inspection of Premises Deposition Practice Checklist Other Trial Considerations (a) Motion in Limine (b) Motions to Bifurcate EXHIBIT 1A Plaintiffs First Set of Requests for Production of Documents to Defendant EXHIBIT 1B Notice of Taking Deposition EXHIBIT 1C Plaintiffs Interrogatories Propounded to the Defendant EXHIBIT 1D Plaintiffs Interrogatories to be Answered by Defendant EXHIBIT 1E Plaintiffs Request for Production of Documents to Defendant EXHIBIT 1F Plaintiffs Third Request for Production of Documents to Defendant EXHIBIT 1G Plaintiffs Fifth Request for Production of Documents to Defendant EXHIBIT 1H First Request for Production of Documents to Defendant EXHIBIT 1I First Set of Interrogatories of Plaintiff to Defendant EXHIBIT 1J Plaintiff s First Set of Interrogatories to the Defendan EXHIBIT 1K Plaintiff s First Request for Production of Documents to the Defendant

3 EXHIBIT 1L Plaintiff s Interrogatories Propounded to the Defendant EXHIBIT 1M Notice of Taking Deposition EXHIBIT 1N Plaintiff s 30(b)(6) Notice of Deposition EXHIBIT 1O Answer and Jury Claim of Defendant EXHIBIT 1P Defendant s First Set of Interrogatories to the Plaintiff EXHIBIT 1Q Defendant s First Request for Production of Documents to the Plaintiff EXHIBIT 1R Motion in Limine of Defendant to Exclude or Redact Portions of Fire Incident Report EXHIBIT 1S Defendant s Motion in Limine Re: Exclusion of a Specific Report EXHIBIT 1T Motion in Limine of Defendant Re: Evidence of Other Incidents EXHIBIT 1U Defendant s Motion to Bifurcate Trial EXHIBIT 1V Defendant s Request for Additional Voir Dire Questions EXHIBIT 1W Defendant s First Requests for Instructions to the Jury EXHIBIT 1X Defendant s Requests for Instructions Re: Damage EXHIBIT 1Y Defendant s Supplemental Requests for Instructions Re: Duty to Warn EXHIBIT 1Z Defendant s Request for Supplemental Instructions to the Jury EXHIBIT 1AA Defendant s First Requests for Instructions to the Jury Chapter 2 NEGLIGENT SECURITY JEFFREY A. NEWMAN, ESQ. Newman & Beeler, P.C., Boston Part I: Proving Foreseeability 2.1 INTRODUCTION 2.2 PROVING FORESEEABILITY OF CRIME IN NEGLIGENT SECURITY CASES 2.3 ESTABLISHING FORESEEABILITY THROUGH THE EVIDENCE 2.4 CREATING AN INVESTIGATIVE PLAN

4 2.4.1 Prior Incidents of Criminal Activity: Checklist for Investigation Scope of the Investigation Crime Trends Criminal Conviction Records Retaining an Investigator 2.5 HOSPITAL NEGLIGENT SECURITY Identifying All Potential Defendants in a Hospital Setting Psychiatric Wards Locating Past Employees The Hospital Parking Lot Hospital Windows 2.6 HOTEL NEGLIGENT SECURITY Determining Point of Entry into Hotel Comparative Negligence of Hotel Patrons Employee Crime Against Hotel Patrons 2.7 NEGLIGENT HOME SECURITY Investigation of the Home Security Company 2.8 CONCLUSION Part II: Crimes of Violence and Civil Liability 2.9 INTRODUCTION 2.10 THE DUTY OF CARE Duty of a Common Carrier to Protect Its Patrons from Violence (a) The Highest Degree of Care (b) Protecting Passengers from the Violence of the Carrier s Servants Strict Liability Duty Owed by Servers of Alcohol and Social Host Servers of Alcohol (a) The Duty of a Social Host to Protect Guests from Attack by Others Duty Owed by Residential Landlords

5 Duty Owed by Commercial Landlords Housing Authorities as Landlords (a) Test to Determine Whether a Function Is Discretionary (b) Recent Amendments to the Massachusetts Tort Claims Act Duty Owed to Trespassers to Protect Them from Attack Foreseeability Foreseeability of Third-Party Criminal Attacks Prior Criminal Activity Superseding Causes Deterrence 2.11 Common Affirmative Defenses in Negligent Security Cases Comparative Negligence (a) Comparative Negligence as Applied to Attacks Provoked or Instigated by the Plaintiff (b) Comparative Negligence as Applied to Attacks Under Circumstances Where the Plaintiff Had Knowledge or Warning Concerning Potential Danger (c) Disclaimer of Liability (d) Mitigation of Damages 2.12 Conclusion APPENDIX 2A Selected Negligent Security Cases APPENDIX 2B Related Cases and Commentaries APPENDIX 2C Closing Arguments EXHIBIT 2A Defendant s Motion for Summary Judgment EXHIBIT 2B Memorandum of Law in Support of Defendant s Motion for Summary Judgment EXHIBIT 2C Plaintiff s Memorandum in Opposition to Defendant s Motion for Summary Judgment EXHIBIT 2D Police Department s Request for Deposition EXHIBIT 2E Police Department s Motion for a Protective Order

6 EXHIBIT 2F Police Department s Memorandum in Support of Motion for a Protective Order EXHIBIT 2G Freedom of Information Act Request/Public Records Act Request EXHIBIT 2H Freedom of Information Act Request Involving Rape of a Female EXHIBIT 2I Denial of Freedom of Information Act Request Involving Rape of a Female EXHIBIT 2J Police Department s Motion for a Protective Order EXHIBIT 2K Plaintiff s Opposition to the Police Department s Motion for a Protective Order EXHIBIT 2L Plaintiff s Memorandum in Opposition to the Police Department s Motion for a Protective Order EXHIBIT 2M Plaintiff s Proposed Jury Instructions EXHIBIT 2N Plaintiff s G.L. c. 93A Brief EXHIBIT 2O Plaintiff s Opposition and Memorandum in Opposition of Defendant s Motion for J.N.O.V. and for New Trial Chapter 3 WINDOW FALLS MARSHALL A. KAROL, ESQ. Karol & Riley, PA, Boston 3.1 Introduction 3.2 Code of Massachusetts Regulations 3.3 Liability of Manufacturers Manufacturer s Duty Breach of Warranty 3.4 Liability of Landlords Negligence Breach of Warranty Chapter 4 CHILD TRESPASSERS

7 ROBERT W. CASBY, ESQ. Sugarman & Sugarman, P.C., Boston 4.1 INTRODUCTION 4.2 RECOVERY UNDER THE CHILD TRESPASSER STATUTE, G.L. 231, 85Q The Requirement of G.L. c. 231, 85Q(a) The Requirement of G.L. c. 231, 85Q(b) The Requirement of G.L. c. 231, 85Q(c) (a) Comparative Negligence of the Child The Requirement of G.L. c. 231, 85Q(d) The Requirement of G.L. c. 231, 85Q(e) 4.3 JURISDICTIONAL SURVEY Age-Based Categories Condition-Based Categories 4.4 MOVING TRAINS IN RELATION TO THE ATTRACTIVE NUISANCE DOCTRINE Jurisdictions Allowing Child Trespasser Case to Be Brought Against a Moving Train Jurisdictions Holding that Accidents to Child Trespassers Involving Moving Trains Fall Outside the Scope of the Attractive Nuisance Doctrine Moving Trains Outside the Scope of Restatement (Second) of Torts 339 Because Element (c) Cannot Be Satisfied Moving Trains Outside Scope of Restatement (Second) of Torts 339 Because Element (d) Cannot Be Satisfied The Common and Statutory Law on Moving Trains and Section 339 in California APPENDIX 4A Related Cases and Commentaries Chapter 5 LEAD POISONING LIABILITY MARK F. ITZKOWITZ, ESQ. Law Offices of Mark F. Itzkowitz, Boston

8 Part I: The Plaintiff s Perspective MARK F. ITZKOWITZ, ESQ. Law Offices of Mark F. Itzkowitz, Boston 5.1 INTRODUCTION 5.2 LEAD LEVELS CONSTITUTING LEAD POISONING 5.3 LEGISLATIVE RESPONSE 5.4 WARNING TO PLAINTIFF S PRACTITIONERS 5.5 THE PLAINTIFF S THEORIES OF LIABILITY 5.6 PRE-1994 INJURIES 5.7 VIOLATIONS OF THE STATE SANITARY CODE 5.8 THE APPLICABILITY OF STRICT LIABILITY 5.9 PROOF OF LEAD LEVEL 5.10 PUNITIVE DAMAGES 5.11 THE PLAINTIFF S MOTION FOR SUMMARY JUDGMENT 5.12 DAMAGES AND PROXIMATE CAUSE Future Damages 5.13 BREACH OF THE COVENANT OF QUIET ENJOYMENT 5.14 BREACH OF THE WARRANTY OF HABITABILITY 5.15 NEGLIGENCE The Duty to Maintain the Premises in a Safe Condition The Plaintiff s Proof of Breach of the Duty of Care Proximate Cause and Damages 5.16 VIOLATIONS OF THE MASSACHUSETTS CONSUMER COMPLAINT STATUTE 5.17 LOSS OF CONSORTIUM Part II: The Defense Perspective GERALD T. ANGLIO, ESQ. Tommasino & Tommasino, Boston 5.18 Introduction

9 5.19 The Certificate of Inspection 5.20 Identifying the Lead on the Premises as the Lead in the Child 5.21 Studies on the Effects of Lead: Models Useful for the Defense 5.22 Alternative Sources of Lead: The Use of Summary Judgment 5.23 DAUBERT S Effect on Lead Liability 5.24 Effects of Lead That Is Present in the Child s Blood 5.25 Loss of IQ 5.26 Lead in Soil: Evidentiary Value 5.27 Transfer of Lead From Mother to ChilD 5.28 Age of Child as a Factor in Lead Testing APPENDIX 5A Terms and Definitions APPENDIX 5B Checklist of Defenses in Lead Poisoning Cases APPENDIX 5C Checklist of Causes of Symptoms Nonspecific to Lead Poisoning APPENDIX 5D Checklist of Defenses to Damages Claims in Lead Poisoning Cases APPENDIX 5E Checklist for Consideration of Potential Third-Party Defendants APPENDIX 5F Checklist of Discovery Issues in Lead Poisoning Cases APPENDIX 5G Checklist of Defense Concerns in Lead Poisoning Cases APPENDIX 5H Checklist of Settlement Issues for Defense of Lead Poisoning Cases APPENDIX 5I Checklist of Trial Tactics for Defense of Lead Poisoning Cases APPENDIX 5J Recent Housing Court Summaries of Decisions on Summary Judgments APPENDIX 5K Letter of Compliance APPENDIX 5L Report of Inspector EXHIBIT 5A Plaintiff s Motion for Partial Summary Judgment on Liability EXHIBIT 5B Memorandum in Support of Plaintiff s Motion for Partial Summary Judgment EXHIBIT 5C Plaintiff s Request for Jury Instructions

10 EXHIBIT 5D Plaintiff s Trial Brief EXHIBIT 5E Plaintiff s Trial Brief EXHIBIT 5F Plaintiff s Motion in Limine to Admit Lead Inspection Report EXHIBIT 5G Plaintiff s Brief in Support of Admissibility of Lead Inspection Report EXHIBIT 5H Plaintiff s Motion in Limine to Admit Blood Lead Level Results EXHIBIT 5I Plaintiff s Brief in Support of Admissibility of Blood Lead Levels EXHIBIT 5J Motion of Defendant in Support of Motion to Limit Testimony of Psychologist Chapter 6 DRAMSHOP AND SOCIAL HOST LIABILITY JAMES P. PONSETTO, ESQ. Newman & Beeler, P.C., Boston 6.1 OVERVIEW OF SOCIAL HOST LIABILITY Liability of Social Hosts Where Intoxicated Guest Operates a Motor Vehicle and Causes Injury to a Third Person (a) Parents Absent from Party (b) Parents Present, But Did Not Furnish or Serve Alcohol (c) "Permitting" a Party to Drink Versus "Serving the Party" (d) Employer-Host Relationship Distinguished Liability of Social Hosts Where Intoxicated Guest Operates a Motor Vehicle and Causes Injury to Himself or Herself Liability of Social Host Where Intoxicated Guest Causes Injury to a Third Person Other Than as a Result of Operating a Motor Vehicle 6.2 OVERVIEW OF LIABILITY OF TAVERNS, BARS AND COMMERCIAL ESTABLISHMENTS Liability Where Intoxicated Patron Operates a Motor Vehicle and Causes Injury to a Third Person (a) Applicability of Cimino to Liquor Vendors Liability Where Intoxicated Patron Causes Injury to Himself or Herself

11 6.2.3 Liability Where Intoxicated Patron Causes Injury to a Third Person Other Than as a Result of Operating a Motor Vehicle Liability Where Alcoholic Beverages Are Not Served, Furnished, Made Available, Sold or Delivered Special Care Required to Avoid Service of Alcohol to Minors Evidence of Intoxication at the Time of Service Wrongful Death Actions Decedent s Negligence APPENDIX 6A Checklist for Dramshop and Social Host Liability APPENDIX 6B Checklist for Deposition of Companion of Intoxicated Person Chapter 7 SLIP AND FALL ROLAND SEGALINI, JR., ESQ. Segalini & Neville, Waltham 7.1 INTRODUCTION 7.2 THE STANDARD SET BY MOUNSEY v. ELLARD 7.3 COMMUNITY STANDARDS 7.4 TRESPASSERS 7.5 SLIP AND FALL DUE TO DEFECT ON THE PREMISES OF ANOTHER 7.6 TIME ELEMENT IN PLAINTIFF S CASE 7.7 CASE LAW SINCE MOUNSEY 7.8 SNOW AND ICE Notice Requirements in Snow and Ice Cases Summary Judgment Relief 7.9 MUNICIPALITIES 7.10 COMPARATIVE NEGLIGENCE 7.11 CONCLUSION EXHIBIT 7A Motion for Summary Judgment of the Defendant EXHIBIT 7B Defendant s Memorandum in Support of Motion for Summary Judgment

12 EXHIBIT 7C Interrogatories Propounded by the Defendant to Be Answered by the Plaintiff EXHIBIT 7D Defendant s Request for Production of Documents from the Plaintiff Chapter 8 CONSTRUCTION SITE LIABILITY ANTHONY TARRICONE, ESQ. Sarrouf, Tarricone & Flemming, Boston 8.1 Introduction 8.2 Checklist of Construction Site Accidents Giving Rise to Third-Party Liability Claims 8.3 General Theories of Liability Negligence Breach of Warranty 8.4 Potential Defendants and Causes of Action Cause of Action Checklist for Construction Site Litigation 8.5 Liability for Construction Site Injury Claims Vicarious Liability of the General Contractor Liability Based on General Contractor s Retention of Control Application of Corsetti to Recent Massachusetts Cases (a) Dilaveris v. W. T. Rich Co. (b) Cheschi v. Boston Edison Co. (c) Holder v. Gilbane Building Co. 8.6 Landowner Liability 8.7 Proof of Negligence 8.8 Legal Principles Relating to the Evidentiary Use of Codes, Customs, Standards and Regulations Safety Practices Written Standards

13 8.8.3 Safety Statute or Ordinance Massachusetts Regulations Related Cases Checklist for Researching Primary Sources (Standards, Regulations, Codes and Other Documents and Sources) 8.9 Checklist for Obtaining Documents Through Discovery EXHIBIT 8A Answers of Defendant to Second Set of Interrogatories Propounded by the Plaintiff EXHIBIT 8B Interrogatories Propounded by the Defendant to Be Answered Under Oath by the Plaintiff EXHIBIT 8C Third-Party Defendant s Request for Production of Documents to the Plaintiff EXHIBIT 8D Defendant s First Request for Production of Documents to Plaintiff EXHIBIT 8E Defendant s First Set of Interrogatories to Plaintiff EXHIBIT 8F First Set of Interrogatories Propounded by the Third Party to Be Answered by the Third Defendant EXHIBIT 8G Notice of Taking Deposition EXHIBIT 8H Deposition Subpoena EXHIBIT 8I Mass.R.Civ.P. 30(b)(6) Notice of Taking Deposition of the Defendant EXHIBIT 8J Mass.R.Civ.P. 30(b)(6) Notice of Taking Deposition of the Defendant EXHIBIT 8K Four Various Motions in Limine EXHIBIT 8L Defendant s Motion in Limine Requesting the Court to Allow Defendant to Use Diagrams or Photographs Not Yet in Evidence During the Opening Statement EXHIBIT 8M Motion of the Defendant to Preclude from Offering Any Expert Opinions EXHIBIT 8N Motion of the Defendant for a Directed Verdict Made at the Close of the Plaintiff s Evidence EXHIBIT 8O Request of the Defendant for Instructions to the Jury EXHIBIT 8P Motion of the Defendant for a New Trial, or in the Alternative, Remittitur EXHIBIT 8Q Memorandum of Law in Support of the Motion of the Defendant for a New Trial, or in the Alternative, Remittitur

14 Chapter 9 GOVERNMENT ENTITIES MARTIN J. ROONEY Curley & Curley, P.C., Boston 9.1 Introduction 9.2 Scope 9.3 Notice What Must Be Stated in Notice Letter 9.4 Jurisdictional Issues 9.5 Statutory Settlement Cap 9.6 Insurance 9.7 Contract Claims 9.8 Immunity Intentional Torts Discretionary Function Doctrine Public Duties Licensing (a) Inspections Fire and Police Departments 9.9 Direct Assurances of Safety 9.10 Indemnification 9.11 Miscellaneous Liability Notes APPENDIX 9A Motion for Summary Judgment EXHIBIT 9A Defendant s Memorandum of Its Motion for Summary Judgment EXHIBIT 9B Plaintiffs Memorandum in Opposition to Defendant s Motion for Summary Judgment EXHIBIT 9C Memorandum of Defendants in Opposition to Defendant s Motion for Summary Judgment

15 Chapter 10 INSURANCE COVERAGE FOR PREMISES LIABILITY STEVEN L. SCHRECKINGER, ESQ. Palmer & Dodge, LLP, Boston 10.1 PRELIMINARY CONSIDERATIONS: THE IMPORTANCE OF THALER v. AMERICAN INSURANCE COMPANY The Thaler Demand Letter Instances in Which Thaler Does Not Apply 10.2 THE ROLE OF THE PLAINTIFF S LAWYER Checklist for Determining Coverage Notice Notice to Multiple Policies 10.3 THE PREJUDICE REQUIREMENT 10.4 THE DUTY TO DEFEND; STERILITE S BROAD SCOPE Effect of Plaintiff s Theory of the Case on the Duty to Defend The Reservation of Rights and the Duty to Defend 10.5 THE INSURED S RIGHT TO SELECT COUNSEL 10.6 THE DUTY TO INDEMNIFY The Requirement of "Bodily Injury" Loss of Consortium 10.7 OCCURRENCES Intentional Acts Distinguished from Expected or Intended Acts Evidence of Inability to Form Requisite Intent 10.8 COMMONLY LITIGATED EXCLUSIONS IN THE HOMEOWNER S POLICY "Insured vs Insured" Exclusion Automobile Exclusion

16 Pollution Exclusion Business Pursuits Exclusion Exclusions in General 10.9 LIMITS OF LIABILITY HOW MUCH COVERAGE IS AVAILABLE? Consortium Claims Multiple Claimants Stacking Multiple Years of Coverage