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If you have ever signed up for a gym or health club, chances are you also signed a liability waiver, waiving your ability to later bring a claim against the facility if you got hurt due to the facility’s negligence. According to WFAA Channel 8, several customers injured at a trampoline park in Texas are finding it difficult to recover any compensation for their injuries. The trampoline park asserted the legal defense that because these customers signed liability waivers, the customers’ claims against it are limited. Signing waivers and releases are considered contractual in nature, and generally upheld by Massachusetts Courts. A few examples of this are the cases Lee v. Allied Sports Assocs., and Sharon v. City of Newton. However, there are exceptions to their validity.

According to M.G.L. ch. 93, §80, “No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller or any assignee or transferee of the health club services contract any claim or defense arising out of the health club services contract or the buyer’s activities at the health club.” While many gym or health clubs continue to have these waivers embedded into their contracts, liability waivers that bar you from bringing such claims against health club services are actually unenforceable.

In the landlord-tenant context, waivers for the landlord’s failure to provide for the tenant “…water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service to any occupant of such building or part thereof…” or landlord’s other wrongful acts are unenforceable pursuant to M.G.L ch. 186, §14. This statute explicitly states “Any waiver of this provision in any lease or other rental agreement…shall be void and unenforceable.”

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You might find yourself facing an uphill battle against the government when trying to recover compensation due to the negligent act of a public employee. Many states have laws that limit the amount an injured person can recover and even whether an injured person could recover at all. According to New England Cable News, several people have tripped over the historic old bricks of that cover Boston City Hall Plaza, suffering injuries such as broken bones, concussions, and damage to the jaw, lips, and knees. When they tried to file claims against the government, their claims were rejected by the city due to a state law that grants the city sovereign immunity from ordinary negligence.

Keep in mind however that there are nuances to the broad doctrine of sovereign immunity. In Massachusetts, the state legislature carved out an exception for personal injury claims against public employers in the form of the Massachusetts Tort Claims Act. M.G.L. c. 258, §1 defines Public employer as, “commonwealth and any county, city, town, educational collaborative, or district, including the Massachusetts Department of Transportation, the Massachusetts Bay Transportation Authority, any duly constituted regional transit authority and the Massachusetts Turnpike Authority and any public health district or joint district or regional health district or regional health board….”

An injured person in Massachusetts can then sue the government pursuant to M.G.L. c. 258, § 2, for the, “…injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers…shall not be liable for…any amount in excess of $100,000….” If you were hurt on a government property and received bills from medical providers that exceed $100,000, you might only be able to recover the $100,000. The exception to this cap on recovery is for very serious bodily injury claims against the Massachusetts Bay Transportation Authority (“MBTA”). M.G.L. c. 258, §1 defines “serious bodily injury” as, “bodily injury which results in a permanent disfigurement, or loss or impairment of a bodily function, limb or organ, or death. So, if you suffered permanent disfigurement or loss of a bodily function, then your damages can go beyond the $100,000 cap.

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12725353_m-300x210If you’ve been in a car crash, stay calm do not leave the scene of the crash until it is appropriate to do so, and you have had time to assess the situation. In a crash where someone has been injured or killed, you may face criminal penalties for leaving the scene before the proper authorities arrive. According to M.G.L. c. 90, § 24, “[W]hoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property… shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both.” If this crash resulted in the death of a person, the driver involved may be, “…punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars….”

Follow these 6 steps after the car crash:

  1. Exchange information.
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gettyimages-52212197_wide-86123ab2adf0f3ee0b7fea6f0865a1f9fbbd2be7-s800-c85-300x169Over 25% of serious nursing home abuse cases go unreported to the police according to the Office of the Inspector General in the Department of Health and Human Services; despite laws requiring that serious nursing home abuse cases must be reported to the police.

Here in Massachusetts, on February 8, 2016, an elderly resident of the Woodbriar Health Center fell off her bed according to Boston Globe. Although she sustained no injuries and was shortly after placed back on her bed with the assistance of the nursing home workers, a physician ordered that the resident be checked on every two hours for signs of medical issues until the next day. But by 5:30 a.m. the next morning, this elderly resident was found dead in bed. After an investigation by the Massachusetts Department of Public Health into this death, it was found that no evidence of the checks was ever carried out. Following the investigation, the Department issued a letter to Woodbriar stating, “There was no evidence to indicate that following the fall, the facility’s policies and procedures regarding neurological checks were reviewed, and that all staff were trained on assessing and documenting a resident’s status following a fall….” This facility was already under fire by the Department for another resident’s death that took place just days before. In the first incident, an elderly resident fell and dislocated a hip when he was supposed to be assisted in walking but received no aid. Woodbriar Health Center now faces fines as high as $10,000 a day until safety is restored.

Horror stories like these unfortunately are not uncommon, and according to the National Center on Elder Abuse have been acknowledged as a widespread concern since the 1970s. To address these issues of abuse and to protect the interests of nursing home residents, Congress established the State Long Term Care Ombudsman Program in the Older Americans Act Amendments of 1978. According to the National Center on Elder Abuse, in 2014, about 7.6% of the complaints submitted to Ombudsman programs concerned abuse, gross neglect, and exploitation. In general, elderly who experienced abuse have a 300% higher risk of death.

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Man-lift-accident-300x149You see man lifts at construction sites, malls, scaling the sides of tall buildings in order to wash the windows. WFSB News reported that a tree worker in Ledyard, Connecticut, sustained serious injuries and was hospitalized when the orange man lift he was using suddenly tipped over into a family home that was nearby. That man lift was extended to its maximum length before the entire truck it was attached to flipped over.

In Massachusetts, operators of mechanically powered machines that have temporary elevator cars or are used for hoisting building materials are required to obtain a license or temporary permit to operate. Pursuant to M.G.L. c. 146, § 53, anyone who will operate derricks, cableways, machinery used for discharging cargoes, and temporary elevator cars used on excavation work or used for hoisting building material, when the motive power to operate such machinery is mechanical and other than steam, including but not limited to excavators, backhoes, front end loaders, uniloaders, skid loader, skid steer loaders, compact loaders or similar devices, lattice cranes, derricks, cranes with or without wire rope; all fork lifts, powered industrial lift trucks, overhead hoists (underhung), overhead cranes, underhung cranes, monorail cranes, lifting devices, cableways, and powered platforms, or any other equipment that has the minimum capability of hoisting the load higher than 10 feet, and either the capability of lifting loads greater than 500 pounds or the capacity of the bucket exceeds 1/4 cubic yards must hold a license from the Department of Safety.

To receive a license to operate, a person must take and pass the hoisting operator examination, which tests the operator’s knowledge of the machinery as well as safety practices. To learn more about operating licenses, visit Hoisting License and Operators FAQs. Pursuant to M.G.L. c. 146, § 54A, whoever violates § 53, which necessitates licenses for operators, shall be fined not less than five hundred dollars ($500) and not more than three thousand dollars ($3000). Under this statute, any person that allows an unlicensed person to operate a hoisting machine shall be fined not less than one thousand dollars ($1000) and not more than three thousand dollars ($3000), or by imprisonment for not more than three (3) months, or both.

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accident-construction1-300x1561,000 construction workers are killed every year due to accident on the job. The Occupational Safety and Health Administration (OSHA) attribute the bulk of these accidents to the “fatal four.” The fatal four are falls, electrocution, workers being struck by objects, and workers getting caught between objects on the job. Falls are the most common of the final four that result in death of workers. In 2015 364 out of 937 construction site deaths were a result of a workers falling. This correlated with the most common OSHA violation given being lack of fall protection. This violation states that an employer must provide guardrails, harness, and ropes to protect their employees from failing from heights 6 feet or higher. Although these rules are in place, they are still violated which leads to workers being hurt on the job.

When an employee is injured, on the job, they can bring forth a workers compensation claim against their employer to help pay for medical bills and lost wages. A worker’s compensation claim is one of no fault, which means there is no need to prove who caused the injury. A worker’s compensation claim substitutes as a law suit against your employer. This means that an employee may not bring suit against their employer for pain and suffering after they have filed for worker’s compensation. If an employee has a worker’s compensation claim against their employer, then they must bring their lawsuit against a third party (not their employer) whose negligence caused their injury.

Architects, engineers, general contractors, or a supplier of materials are some of the third parties that an employee might be able to bring a civil suit against, as long as this third party caused the employee’s injury. If a claim is brought against the third party, then the employee must show that this third party had a duty to act in a reasonable and safe manner, that they failed to perform that duty, and as a result of their failure the employee was injured.

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Researchers from the Boston University School of Medicine recently published the findings from their study of 202 donated brains of former football players in the Journal of the American Medical Association (“JAMA”). The study examined former National Football (“NFL”) Players and found that 110 out of the 111 brains exhibited

(“CTE”). CTE is a disease found in the brain of individuals who have suffered repeated blows to the head. What was remarkable about this study was that the CTE afflicted not only NFL players but high school football players as well! Out of the 202 deceased football players’ brains (NFL, college and high school players combined), 88% of them had CTE. Mild levels of CTE were detected in 3 out of 11 of the high school football players.  Currently, CTE can only be diagnosed after death, but there are signs that can point to an individual having CTE. Some typical symptoms of CTE, according to Centers for Disease Control and Prevention (“CDC”), are decline of recent memory and executive function, depression, impulsivity, aggressiveness, anger, irritability, suicidal behavior, and dementia. Although there are various symptoms to spot CTE, these symptoms usually do not appear until many years after the initial trauma.

Auto racing associations have also been looking at the effect that crashes have on the  drivers’ brains. In 2014, NASCAR, IMSA, and IndyCar mandated a concussion test for all drivers before their race season began. This test measured each driver’s neurocognitive functions in order to compare them to scans taken after the driver were involved significant collisions. This preseason concussion test had previously helped driver Dale Earnhardt Jr. in 2012 when he sustained two concussions in the span of 6 weeks. In a USA Today article, Earnhardt reported that the preseason testing had allowed his doctors to pinpoint exactly what type of brain injury he had suffered and bettered helped them address it.

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CuBJknCWIAEC3Ee-300x225In 2014, 59 cyclists died after being struck by large trucks, according to a study conducted by the National Highway Traffic Safety Administration. One of the most recent truck accidents involving a cyclist occurred in Porter Square, Cambridge on October 5, 2016. 60-year-old, Bernard Lavins was cycling when he was struck and killed by an 18 wheeler truck. In a WBUR article, a cyclist at the scene of the crash stated even though bikers follow the rules of the road they are still not noticed. Truckers not being able to see cyclist, because of their large “blind spots” is a common reason why truckers hit cyclist.

Crashes like this have encouraged the U.S. transportation safety board to urge regulators to make it mandatory that trucks be equipped with side guards. Side guards, which are currently required on all trucks in Canada and Japan, cover the gaps between the wheels of trucks. The initiative to require side guards on trucks was a result of two crashes that killed one cyclist and severely injured the other, in Montreal, occurring in the same week. Both crashes, reported in the Globe, occurred when the cyclist fell under side of the truck.

Crashes, like the ones in Montreal, have led New York City and Boston to implement ordinances hat require trucks to be equipped with side guards. In 2015, Mayor De Blasio of New York signed a bill making side guards mandatory on all trucks by 2024. This bill was signed in hopes that sideguards on trucks in New York will have the same effect they did when they were implemented in the UK. A study, conducted by The National Transportation Systems Center (“NTSC”), showed that in the UK accidents dropped 61% after side guards were installed on trucks. The NTSC study also stated that the cost to install side guards on current trucks could be as low as $600, which is cheaper than the UK price of $847. This cost could also decrease if trucks were built with side guards already installed.

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engraving-of-boston-harbor-300x192On July 11, 2017 around 1:45 a.m. in the morning, a fire broke out and engulfed a 65-foot catamaran in Falmouth, Massachusetts, according to CBS Boston. The flames quickly consumed the entire boat, and left a woman on-board with severe burns. Boating accidents like this are unfortunately far from uncommon.

Massachusetts has a state law governing boating accidents.  M.G.L. c. 90B, § 1, defines “boating accident” as “…an occurrence in which a waterborne vessel subject to this chapter is involved, whether or not there has been any actual collision, and which results in damage by or to such vessel or its equipment, or by or to an object or person being towed, pushed or propelled by such vessel, or in which there is an injury to any person, loss of life, or disappearance of any person under circumstances which indicate the possibility of death or injury or disappearance of a vessel other than by theft.”

One common cause of boating accidents is the operation of a vessel under the influence of alcoholic or narcotics. M.G.L. c. 90B, § 8 prohibits the operation of any vessel on the waters of Massachusetts while the operator is under the influence intoxicating liquor, marijuana, narcotic drugs, depressant or stimulant substances, or glue vapors. According this statute, violators will face either a fine of not less than $100 nor more than $1000, imprisonment for not more than 2.5 years, or both. The violator may additional have his or her boating license revoked or suspended.

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FabNFree-Free-Vintage-Brain-Graphic-256x300The Centers for Disease Control (CDC) reports that approximately 2.8 million Americans suffer a traumatic brain injury (TBI) every year. Out of these 2.8 million, the CDC states: 50,000 die; 282,000 are hospitalized; and 1.365 million, nearly 80 percent, are treated and released from an emergency department.  Looking at this CDC’s report reveals the stark reality of the impact of TBIs:

“Traumatic brain injury (TBI) is a major cause of death and disability in the United States. TBIs contribute to about 30 percent of all injury deaths. Every day, 153 people in the United States die from injuries that include TBI. Those who survive a TBI can face effects that last a few days or the rest of their lives. Effects of TBI can include impaired thinking or memory, movement, sensation (e.g., vision or hearing), or emotional functioning (e.g., personality changes, depression). These issues not only affect individuals but can have lasting effects on families and communities.”

The brain, although protected by the skull, is extremely sensitive. According to Mayo Clinic, the brain has the consistency of gelatin, and is cushioned from everyday jolts and bumps by cerebrospinal fluid inside the skull. A concussion is defined as “…a type of traumatic brain injury that is caused by a blow to the head or body, a fall, or another injury that jars or shakes the brain inside the skull. Although there may be cuts or bruises on the head or face, there may be no other visible signs of a brain injury.” These blows cause the brain to slide back and forth forcefully against the inner walls of the skull. Symptoms of a concussion may include, headaches, pressure in the head, temporary loss of consciousness, confusion, memory loss, dizziness, ringing in the ears, nausea, slurred speech, delayed response, appearing dazed, and fatigue.