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In Massachusetts, “negligence” is defined as a legal duty and a failure to act or omission in violation of that duty results in negligence.  Royal Indem. Co. v. Pittsfield Elec. Co., 293 Mass. 4, 6 (1935); and M.G.L. Ch. 283, §85.  For an action in negligence to lie, a causal connection must be established between a defendant’s negligence and a plaintiff’s injury or damage. Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 742 (1978); Baggs v. Hirschfield, 293 Mass. 1, 3 (1935); Sullivan v. Old Colony St. Ry., 200 Mass. 303, 307-308 (1908). See also Jupin v. Kask, 447 Mass. 141 (2006).

commerce-acts-books-477966-mA recent case reported in Illinois illustrates an analysis of whether or not a duty arises. Roh v. Starbucks Corp No. 16-4033 (7th Cir. 2018).  In 2013 parents, Marcus and Beebe Roh visited a Starbucks store with their 3 year old and five year old sons.  The Starbucks store had commissioned custom free-standing stanchions connected by ropes to direct the flow of customer foot traffic.  The stanchions were not affixed to the floor but were made with heavy concrete bases.  During the Roh’s visit one of the stanchions was knocked to the ground injuring one of their children’s hands.

The injury required the child’s left middle finger to be surgically amputated and a pin to be inserted into another finger.

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It is hard to lose a loved one. In addition to the emotional loss, relatives must deal with the practical considerations of settling the deceased’s affairs. Where death was caused through the fault of another, the decedent’s relatives may also need to quickly decide whether or not to pursue a claim for wrongful death against the party responsible for the death.

commerce-acts-books-477966-mIn a prior blog we discussed the Massachusetts wrongful death statute, M.G.L. c. 229, §2; including who may benefit from a wrongful death claim. A claim for wrongful death does not belong to the decedent or the decedent’s estate. The beneficiaries of a wrongful death claim are relatives of the decedent who may seek “compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice of the decedent.” In Massachusetts, however, an action for wrongful death is not maintained by the beneficiaries; it must be commenced and maintained by the duly appointed personal representative of the decedent’s estate.

A party who wishes to pursue a wrongful death action has two time limits to keep in mind: (1) the deadline by which the wrongful death action must be commenced; and (2) the time limit for petitioning the Probate and Family Court for the appointment of a personal representative of the decedent’s estate.

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Is there a path with ancient tire tracks or what looks like an old a dirt or gravel road or undeveloped right of way near your land?  Perhaps just a simple path through the trees between you and your neighbor’s yard?   Have you or someone else in your neighborhood learned of a plan of land or survey or town map that depicts a road or path but it doesn’t physically exist on the ground?  Maybe the issue came up when a neighbor started arguing with you; claiming a right of way to travel over or on a path through your property, where the path is the boundary between your parcel and his or hers?  Land titles on the North Shore and throughout Massachusetts go back hundreds of years. There are paths and ways, discontinued streets and narrow roads carved between parcels as the developers created subdivisions. It is not uncommon to find sub-division plans where a narrow swath is between lots and never sold or conveyed by the old owner (even after all of the lots have been sold off). In many circumstances this creates a private way, right of way or paper street.

commerce-acts-books-477966-mWhen that occurs: who owns it, who has rights to use the path, and for what purpose? The answers often require a title examination and analysis of Massachusetts case law and statutes.  One law to consider is Massachusetts General Laws Chapter 183 s. 58, also known as the “Derelict Fee Statute”.

The Derelict Fee Statute, enacted in 1971[1], states that,

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According to a study conducted by Mothers Against Drunk Driving, in 2016 there were 119 drunk driving deaths in Massachusetts, which comprised 31 percent of all traffic fatalities in the state. Drunk driving is often thought of as a criminal violation; but alcohol related accidents also open the door to civil liability, and not just for the drunk driver.

commerce-acts-books-477966-mIn Massachusetts, the person(s) who served the alcohol to the drunk driver may be held liable to the injured third party under the legal theory known as “social host liability”.  The common law theory of social host liability was first recognized by Massachusetts courts in McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152 (1986). In McGuiggan, the defendants hosted a party at their home and provided alcohol to their guests. One of the guests became intoxicated and left with the defendants’ son to drive three other guests home. Due to the drunk guest’s negligent driving, the defendants’ son was injured and died. The court in McGuiggan found that the defendants were not liable for the death because there was no evidence that they knew the driver was intoxicated at any time while he was at their home.

However, the court stated it would “recognize a social host’s liability to a person injured by an intoxicated guest’s negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person’s injury.” The court noted that such an inquiry requires consideration of “whether the social host unreasonably created a risk of injury to a person who the social host should reasonably have foreseen might be injured as a result of the guest’s intoxication.”

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Both Chapter 11 and Chapter 13 bankruptcy proceedings allow a debtor to “cram down” or “strip off” a secured lien under certain circumstances.

commerce-acts-books-477966-mThe so-called “cram down” statute for Chapter 11 proceedings is contained in 11 U.S.C.  § 1129(b), which allows a bankruptcy court to approve a debtor’s reorganization plan over the objections of a secured creditor so long as the plan is “fair and equitable.” This includes a reorganization plan that modifies the loan terms of a secured loan to convert a portion or the entire loan amount into unsecured debt.

The ‘”cram down” statute for Chapter 13 proceedings is set forth in 11 U.S.C. Section 506(a):

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Few things sour relations between neighbors as quickly as a boundary dispute. Determining common boundaries or establishing a property line with your neighbor is usually a matter of reviewing record title documents that set forth the metes and bounds of the properties, record plans and tax maps. However, over years of actual use, occupation, improvements, landscaping or fencing, complicated legal issues can arise affecting the ownership of boundaries and causing disputes between or among adjoining land owners. Despite plans and surveys and metes and bounds legal descriptions, ownership of land and the actual boundary line can be challenged in certain circumstances.  This happens with adjoining land owners throughout the North Shore including Danvers, Saugus, Lynn and Peabody.

commerce-acts-books-477966-mFor example, title to land can be acquired (or lost) if the land at issue is used in a particular way for a long time (no less than 20 years) by someone who is not the record owner.  This is known as the legal doctrine of adverse possession.

In Massachusetts title by adverse possession can be acquired by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. A determination of adverse possession is fact driven and each element needs to be proven in court to have clear title through adverse possession. In the Commonwealth of Massachusetts, claims for adverse possession can be brought in the Land Court or the Superior Court in the county where the disputed land is situated. For instance, if the property is here in Lynnfield, an action for adverse possession may be commenced in the Land Court or the Essex County Superior Court.

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Massachusetts automobile insurance policies are complex legal documents with confusing terms and conditions. Understanding what you are covered for, after you are injured in an accident, can be tricky.  Whether you reside in Middlesex County, Essex County, Suffolk or elsewhere in the Commonwealth, knowing which coverages are required, which are optional and what coverage may be best for you, is complicated.  All too often, car owners’ pay the monthly or annual auto insurance premium without thought to the extent of coverage. It only comes into play after an accident, perhaps  driving along Route 1 from Peabody, Danvers and Lynnfield into Boston; or Route 128 to the North Shore Mall. Only after an accident do most of us look at the level of coverage in the auto insurance policy and then it is too late to increase values.  Once the accident occurs you cannot retroactively alter your coverage.

commerce-acts-books-477966-mThe standard form of the Massachusetts auto insurance policy can be found by clicking the following link: here.  In Massachusetts, the standard policy has a section entitled “Compulsory Insurance” coverage and a section entitled “Optional Insurance” coverage.  “Compulsory” means mandatory. You must have them. Mandatory coverages have the following minimum limits:

  Required coverages (types) for Massachusetts auto insurance, and the required minimum limits (dollar amounts) for each coverage.
Required Coverage Required Minimum Limit
Bodily Injury to
$20,000 per person;
$40,000 per accident
Personal Injury
Protection (PIP)
$8,000 per person, per accident
Bodily Injury Caused
by an Uninsured Auto
$20,000 per person;
$40,000 per accident
Damage to Someone
Else’s Property
$5,000 per accident

Be sure to discuss with your insurance agent whether or not your circumstances warrant increasing those limits beyond the minimum requirement.  In addition, when it comes to “Optional” coverages, particularly with respect to coverage for medical bills and treatment related to an auto accident, being pennywise may be foolish.

The above chart shows that Personal Injury Protection “PIP” coverage is mandatory.  PIP covers medical expense costs and lost wages of occupants of the insured vehicle resulting from an accident regardless of who is at fault.  However, PIP coverage only pays up to $8,000.00 and only pays up to $2,000.00 if you have health insurance.  And then, what if your health insurance has a $2000.00 deductible and 20% co-pay?

Medical Payments coverage, or MedPay, is optional.  It is Part 6 of the current Massachusetts Automobile Insurance Policy.  If you have MedPay coverage it will help pay medical expenses in the event of an accident. Like PIP, Med Pay coverage applies regardless of who is at fault.

MedPay coverage can be used after PIP Coverage and health insurance limits are exceeded. Given the small added premium, it is an option most drivers’ should consider.  MedPay also covers out of pocket expenses that may not be covered by your health insurance, such as dental bills, prosthetics, over the counter medical costs and, in worst case scenario, funeral expenses.

In a recent Massachusetts Superior Court case,  DeOliveira v. Liberty Mutual Insurance Company, the insurance company refused to reimburse its insured under her MedPay coverage for medical expenses she paid out of pocket.  The insured sued the insurance company.  The Superior Court Judge denied the insurance company’s motion to dismiss the insured’s claim.  Suffolk Superior Court C.A. No. 17-00218-BLS1.  The Judge in DeOliveira relied upon an earlier case, Kirby v. Liberty Mutual Insurance Co., 89 Mass. App. Ct. 1136 (2016).  In Kirby, the plaintiff was injured in an auto accident.  She had health insurance.  Her auto insurance company paid the first $2,000 in medical expenses under her PIP coverage.  Her health insurer then paid an additional $4,956.67 but placed a lien on her negligence claim against the at-fault driver.  She paid the $4,956.67 back to her health insurance carrier to satisfy the lien and then submitted a claim under her own MedPay coverage for reimbursement of the $4,956.67.  Her auto insurance company refused to reimburse her.  The Appeals Court in Massachusetts affirmed judgment in her favor and ordered her auto insurer to reimburse her under her MedPay coverage.

Optional coverages available to you under your automobile policy may increase your premium payment can but prove invaluable if you need to submit a claim for medical expenses from a car accident. MedPay is just one of the important options every MA licensed driver should consider.

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“The wheels of justice turn slowly, but grind exceedingly fine.” Litigation is often a lengthy process and the old proverb is certainly true for the inundated Massachusetts courts. In 2017 close to 7,000 cases have been filed in the Superior Courts of Essex County and Middlesex County alone. It comes as no surprise that litigation can languish for years before a case is resolved.

commerce-acts-books-477966-mWith the Court backlog and typical litigation delays there are more and more instances where an injured party (Plaintiff in a tort lawsuit) may pass away before the case reaches trial and is resolved at the appellate level. When a tort Plaintiff dies before the case ends, what happens to the personal injury claim? Under Massachusetts statute and common law, certain actions survive the death of the claimant. For example, Massachusetts common law allows contract actions to automatically survive the death of a claimant; however, personal injury claims do not. Personal injury actions are defined as “survival actions” under M.G.L. c. 228 §1, which provides that survival actions include:

“Actions of tort (a) for assault, battery, imprisonment or other damage to the person; (b) for consequential damages arising out of injury to the person and consisting of expenses incurred by a husband, wife, parent or guardian for medical, nursing, hospital or surgical services in connection with or on account of such injury; (c) for goods taken or carried away or converted; or (d) for damage to real or personal property…”

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The average number of years that a person may expect to live has substantially increased over the past 25 years. Also, the life expectancy of a person now is 25 years longer than it was 100 years ago. Decreased infant mortality, improved living conditions, reductions in poverty levels and gains in medical treatment have resulted in increased longevity for humankind, benefiting a broad spectrum of  people of all race, gender and ethnicity.

commerce-acts-books-477966-mReviewing records starting with the 20th century discloses that the world is seeing fewer deaths at older and older ages. The National Institute on Aging report puts this in stark terms: “The 85-and-over population is projected to increase 351 percent between 2010 and 2050, compared to a 188 percent increase for the population aged 65 or older and a 22 percent increase for the population under age 65.”

According to Thomas Perls, a geriatrician at Boston Medical Center and professor at Boston University School of Medicine, “Getting to about 110 is really approaching the limit of the human lifespan,” and the oldest documented human life is 120 years.

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On November 25, 2015 Chapter 141, Acts of 2015, An Act Clearing Titles to Foreclosed Properties, was signed into Massachusetts law by Governor Baker.  Massachusetts Senate Bill 2015 now Chapter 141 of the Acts of 2015 is commonly called the Massachusetts Foreclosure Title Clearing Statute and it became effective on December 31, 2015.  The general purpose of this new law was to alleviate uncertainty in titles to foreclosed properties after the Ibanez decision and establish a deadline by which challenges to them may be raised or forever barred.

commerce-acts-books-477966-mThe Act amended Mass. Gen. Law c. 244 s. 15 to include a three-year time limit for challenging a recorded foreclosure affidavit.  After three years from the date of recording, a foreclosure affidavit shall be conclusive evidence in favor of arm’s length purchasers for value against challenges by foreclosed borrowers who no longer occupy the subject property.  After that the affidavit of sale provides clear title to the arm’s length third party purchaser even if the underlying foreclosure contained certain defects.  In order to have a right to challenge the validity of a foreclosure sale in Massachusetts under the new act, an action (lawsuit) must commence  AND a correct copy of the complaint or pleading asserting the challenge must be recorded in the registry of deeds for the county in which the property lies, all within the three-year period.

The Statute also provided a one-year grace period for borrowers to challenge pre-2016 foreclosures that occurred under mortgagee’s power of sale in Massachusetts. Aggrieved parties who wished to challenge such a foreclosure had from January 1, 2016 through December 31, 2016 to comply with the terms of the new statutory requirements to preserve their challenge or they would be barred from doing so.

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