Gibson Behman PC

2007 News

GIBSON & BEHMAN OBTAINS A DEFENSE VERDICT FOR THE MBTA

Scott R. Behman, managing partner, recently obtained a defense verdict for MBTA in an assault case at Suffolk Superior Court. The plaintiff alleged that he was assaulted by two males on October 11, 2002, and as a result landed on the train’s third rail. Due to his fall onto the third rail, the plaintiff sustained burns to his shoulder, right hand, buttocks and head. The plaintiff filed a complaint against MBTA alleging negligent security and failure to warn as to the third rail. In a Motion for Summary Judgment the plaintiff’s failure to warn allegation was dismissed. The negligent security claim went to trial.

The Plaintiff claimed medical damages in excess of $400,000 and made a lost wage and diminished earning capacity claim. The plaintiff originally demanded over one million dollars. Subsequently the plaintiff demanded $750,000. The MBTA offered $25,000 to settle the case, which the Plaintiff rejected.

The case was tried in Suffolk Superior Court and lasted six days. At trial, defense counsel had substantial evidence that the Plaintiff was the instigator and gained access into the train station under false pretenses as he claimed he was injured and had no money for the train. Once the Plaintiff was allowed into the train station he proceeded immediately up to the platform asking “where are they?” and posturing for an altercation. The evidence established that the Plaintiff used racial epithets towards one of the alleged assailants, an African-American male. The Plaintiff also struck a young girl who was accompanying the young African-American male.

Defense counsel called several witness to testify on behalf of the MBTA including MBTA police officers, inspectors and a toll collector. All of these individuals testified about the security procedures in place at the time of the incident. The Plaintiff failed to establish that the incident was caused by the negligence of the MBTA. After reviewing all of the evidence, the jury found in favor of the MBTA. The Plaintiff has filed a notice of appeal.

GIBSON & BEHMAN WIN MOTION FOR SUMMARY JUDGMENT

Brian T. Dougan, Esquire, of Gibson & Behman, P.C.’s Providence, Rhode Island office recently won a Motion For Summary Judgment on behalf of U-Haul Co. regarding an out of state rental agency’s liability for actions of its lessee in Rhode Island.

Facts: This case arises out of an incident which occurred on May 26, 2003 in the Plaintiff’s driveway in Providence, Rhode Island. On or about May 26, 2003, co-defendant, Craig Iannucci, leased a U-Haul vehicle in Connecticut from U-Haul of Connecticut. The U-Haul vehicle was loaded by and under the direction of Mr. Iannucci. Mr. Iannucci drove the U-Haul vehicle to Providence, Rhode Island and parked the U-Haul vehicle in the Plaintiff’s driveway. As Mr. Iannucci lifted the back gate of the U-Haul vehicle to unload his belongings, Mr. Iannucci’s bed frame, which he placed in the U-Haul vehicle, fell out of the vehicle and struck his sister, the Plaintiff, in the head.

U-Haul’s Argument: Attorney Dougan argued that there are only two statutes that impose vicarious liability on a vehicle’s owner for the negligence of the vehicle’s driver. Neither statute applies here. R.I. Gen. Laws § 31-34-4 (“for hire motor vehicles” statute) holds a vehicle owner liable for the negligence of the operator of the vehicle where (1) the owner of the for hire vehicle gives permission to another to operate the vehicle and (2) the owner is a party who files proof of financial responsibility with the State of Rhode Island or who is required to file proof of financial responsibility. Only Rhode Island vehicle rental companies are required to provide proof of financial responsibility. Neither defendant is a Rhode Island vehicle rental company.

R.I. Gen. Laws § 31-33-6 (“vehicle owner” statute) imposes vicarious liability on the owner of a motor vehicle by making the operator the “agent” of the owner. The vehicle owner statute only imposes liability when accidents occur on Rhode Island public roads. Here, the accident occurred on private property.

Under R.I. Gen. Laws § 31-34-4, any person who violates the statute “shall be guilty of a misdemeanor.” To extend the application of this statute to foreign rental companies would subject those who fail to file proof of financial responsibility in Rhode Island to criminal penalties, and as a general rule, criminal laws do not operate beyond their territorial limits. Fratus v. Amerco, 575 A.2d 989, 992 (R.I. 1990). Thus, a foreign rental agency is not required to submit proof of financial responsibility in Rhode Island and cannot be held liable under R.I. Gen. Laws § 31-34-4 for the alleged negligence of the lessee of one of its vehicles in Rhode Island. Fratus, 575 A.2d at 992; Lopes v. Phillips, 680 A.2d 65, 68 (R.I. 1996).

In Lopes, the lessee leased a motor vehicle in Massachusetts. Lopes, 680 A.2d at 66. The lessee operated the motor vehicle in Providence, Rhode Island and negligently struck Mr. Lopes’ vehicle. Id. The Court held that the car rental company could not be held liable for the alleged negligent acts of its lessee in Rhode Island because the vehicle was not leased in Rhode Island. Id. at 66-68. Neither the rental company, nor its vehicle had any relationship to Rhode Island, except that the lessee, of her own volition, had driven the vehicle into the state. Id. at 68.

The Court in Lopes relied heavily on Fratus v. Amerco, 575 A.2d 989 (R.I. 1990). In Fratus, the Court found that R.I. Gen. Laws § 31-34-4 could not be applied extraterritorially to an out of state bailment. Id. at 992. In Fratus, the Court reasoned that the duty to file proof of financial responsibility was limited to owners of vehicles that were registered in Rhode Island or that were required to be registered in Rhode Island. Id. at 993. The Lopes Court, applying the standard set forth in Fratus, concluded that, as a matter of law, a rental car company situated in Massachusetts that was not required to file proof of financial responsibility in Rhode Island could not be held vicariously liable for the alleged negligent acts of the driver of one of its vehicles in Rhode Island. Lopes, 680 A.2d at 68.

Like the defendant in Lopes, U-Haul neither files, nor is required to file, proof of financial responsibility in Rhode Island, as U-Haul is a foreign rental company. Similar to the lessee in Lopes, the lessee here, Craig Iannucci, leased the vehicle out of state and is the only alleged negligent party. In this case, neither U-Haul nor the rented vehicle had any connection to Rhode Island except that Mr. Iannucci drove the vehicle into the State. The U-Haul and its contents were under the sole control and direction of Mr. Iannucci, and any alleged negligence is on his part. Plaintiff asserts that Mr. Iannucci failed to properly load cargo into the U-Haul vehicle, negligently operated the U-Haul vehicle and negligently failed to secure the area around the vehicle prior to unloading its cargo. Like the Court in Lopes, this Court should find that U-Haul is not vicariously liable for the alleged negligent acts of Craig Iannucci in Rhode Island because U-Haul is a foreign rental company.

The Rhode Island “vehicle owner” statute is clear – where an accident takes place outside of Rhode Island or on a private road, R.I. Gen. Laws § 31-33-6 does not impose liability. Pettine v. Tuplin, 46 A.2d 42 (R. I. 1946) (the vicarious liability statute applicable to a general vehicle owner does not apply where the accident occurred on a private drive); Pescosolido v. Crugnale, 171 A.2d 443 (R. I. 1961) (the vicarious liability statute does not apply where the accident happened at a service station because it is not on a public highway). R.I. Gen. Laws § 31-33-6 only imposes vicarious liability on a vehicle owner if an accident occurs on a “public highway” in the state of Rhode Island; a “public highway” is defined as one “dedicated to the use of the public and not a private way used by the public merely by invitation of the owner.” Pettine, 46 A.2d at 44. Thus, vicarious liability will not be imposed on a vehicle owner where an accident occurs on a private road in Rhode Island.

Therefore, U-Haul is not liable under the Rhode Island vehicle owner statute and summary judgment is appropriate.

Plaintiff’s Argument: The Plaintiff argued that since there is no vicarious liability for out of state rental agencies under Rhode Island law, that this Court should apply the law of where the car was rented, Connecticut. Connecticut law imposes vicarious liability upon lessors for out of state accidents. The Plaintiff points to the decision by the Rhode Island Supreme Court in Victoria v. Smythe, 703 A.2d 619 (R.I. 1997) which held that an out of state rental agency, incorporated in Florida, would be held vicariously liable for the actions of its lessee in Rhode Island and that Florida law should apply because Florida has the most significant interest in the case. Furthermore, the Rhode Island Supreme Court opined that Florida had the better rule of law by finding out of State rental agencies vicariously liable for that actions of its lessees.

Decision: Judge Hurst agreed with Attorney Dougan’s assertion that that R.I. Gen. Law § 31-34-4 (“for hire motor vehicles” statute) and R.I. Gen. Law § 31-33-6 (“vehicle owner” statute) did not apply to this case. Judge Hurst also found the Plaintiff’s argument that Connecticut law should apply to be unpersuasive because this was a Rhode Island Plaintiff, the alleged tortfeasor is a Rhode Island resident and the accident occurred in Rhode Island and therefore, it was Rhode Island which had the most significant interest in this case. Because Rhode Island had the most significant interest and its laws hold that out of state rental agencies are not vicariously liable for the acts of its lessees U-Haul’s Motion For Summary Judgment was granted by Judge Hurst thereby dismissing U-Haul from this case.

THOMAS HOLLOWAY PASSES MASSACHUSETTS INSURANCE EXAMINATIONS

We are pleased to announce that attorney Thomas J. Holloway, Director of G&B's business law practice, recently completed and passed the Massachusetts life, accident and health producer's insurance examinations. While he does not intend to actively engage in the insurance agency practice, he does intend to become licensed and use it in a manner similar to his Certified Public Accountant license. Representing a number of small to medium size companies at different stages of their business lives, corporate counsel often serve in the role of advisor. As part of that role, we are often asked by our clients to help assess various risks and mitigate potential exposure they may have. Having a greater understanding of insurance and the various products in the marketplace, Mr. Holloway will be in a better position to serve his clients.

Connecticut Upholds Qualified Privilege for Employment References Solicited with Employee’s Consent

The Connecticut Supreme Court has announced its first decision affirmatively protecting the ability of employers to provide negative references for current or former employees upon solicitation by a prospective employer. The decision in Miron v. University of New Haven Police Department brings Connecticut law into agreement with the Restatement (Second) of Torts and numerous other jurisdictions that provide a qualified privilege for solicited employer references.

The Miron case is the result of two isolated incidents that occurred while Ms. Miron sought employment with a municipal police force following a period of employment with the University of New Haven’s police department. In April, 2000, Ms. Miron applied for a position with the Glastonbury police department, authorizing, as part of that application, the department’s contact with her then-supervisors at the University of New Haven, David Sweet and Henry Starkel. Following negative statements by Sweet and Starkel during an interview regarding Ms. Miron’s absence from work and behavior during medical leave, and further negative evaluation of Ms. Miron’s leadership abilities and police skills in a written employment questionnaire completed by Mr. Sweet, the Glastonbury police department rejected her application.

In June, 2000, Ms. Miron submitted a separate application for a position with the Enfield police department, again consenting to a background investigation consisting of an interview with and questionnaire to be completed by her then-employer. Again, David Sweet was interviewed and completed the questionnaire, and, again, he provided negative references, this time in regard to Ms. Miron’s attitude and performance. The Enfield police department, however, hired Ms. Miron in spite of these negative evaluations, only to terminate her employment after approximately eight weeks of training.

Ms. Miron subsequently brought suit alleging (1) defamation and tortious interference with business expectancy as to David Sweet based upon her application to the Glastonbury police department; (2) defamation and tortious interference with business expectancy as to David Sweet and Richard Montefusco based upon her discharge from the Enfield police department; and (3) intentional infliction of emotional distress by Montefusco.

On appeal, Ms. Miron argued that Connecticut General Statutes §§ 31-128e and 31-128f, of the personnel files act, precluded application of a qualified privilege to negative statements made as part of an employment reference as a result of the employee’s inability to review and correct such statements by virtue of the fact that they are not contained in a personnel file. The Court, however, rejected this argument, finding that there was no support “for the proposition that the legislature intended therein to place any limit on the scope of an employee’s consent to an employment reference…”

Further, the Court rejected Ms. Miron’s second argument that the finding of a qualified privilege for negative employer references was inconsistent with the Connecticut blacklisting statute (Connecticut General Statutes § 31-51). The Court noted that the statute itself provides that “the provisions of this section shall not be construed so as to prohibit any person… from giving a truthful statement of facts concerning a present or former employee…” The Court also determined that Ms. Miron’s claim necessarily failed under the blacklisting statute because of the requirement of proof that an employer acted “with the intent and for the purpose of preventing such employee… from engaging in or securing employment from any other person…”, which burden was not met by Ms. Miron.

The Connecticut Supreme Court ultimately found it appropriate “to recognize a qualified privilege for the employment references of current or former employers that were solicited with the employee’s consent,” in keeping with the Restatement (Second) of Torts. The Court found this decision to be consistent with relevant precedent, including application of qualified privilege protection for “statements made in the employment setting regarding the qualifications and fitness of an employee” and “communications between managers regarding the review of an employee’s job performance and the preparation of documents regarding an employee’s termination”. Additionally, the Court indicated that its decision would substantiate the integrity of employment references to the benefit of employees, “who stand to benefit from the credibility of positive recommendations”, and prospective employers. As a final policy matter, the Court stated that the application of a qualified privilege to employment references would counter what it described as “a culture of silence” in which employers increasingly adopt “no comment” policies.

So, what does this mean for employers in the State of Connecticut?
It is clear that, as a result of Miron, employers are now protected by a qualified privilege for employment references of current or former employers that were solicited with the employee’s consent. It is clear that these statements are protected by the qualified privilege even if untrue, so long as they are made in good faith. Further, it is clear that this qualified privilege is destroyed when a current or former employer acts with malice or other “improper or unjustifiable motives” in supplying a negative reference.
There remains, however, some grey area in the law. It is unclear whether this qualified privilege attaches to negative references, even those made in good faith, when such references were solicited without the employee’s consent. It is also unclear whether the qualified privilege applies to defamatory, but true, statements made in bad faith.
Least clear, however, is whether this qualified privilege is enough, without its outer bounds clearly defined, to counter the current “culture of silence”.

CHRISTOPHER CIFRA PROVIDES SEMINAR TO VERMONT CLAIMS ASSOCIATION

Due to his and G&B’s experience and expertise in the area of liquor liability, Christopher Cifra was asked to give a presentation to the Vermont Claims Association. The seminar entitled “Beyond Happy Hour,” was attended by approximately 50 members of the Vermont Claims Association. The seminar was approved by the states of New Hampshire and Vermont for two credit hours towards adjustors’ licenses. The seminar was a discussion of dram shop liability and subrogation potentials in Vermont, New Hampshire and Massachusetts. The feed back was excellent and the adjustors enjoyed the legal update concerning dram shop and insurance first party law.

G&B’s Boston Office Wins a Defense Verdict in Massachusetts Premises Liability Case

Deawn Takahashi of G&B’s Boston office recently obtained a defense verdict on behalf of a land owner and lessee campground against claims of negligent maintenance. The Plaintiff was injured on July 2, 2003, shortly after her arrival at the subject campground. She fell when crossing from a concrete slab onto grass on her particular campsite. She sustained a twisted ankle, a contusion to her knee, and a laceration to her forehead which required 13 sutures. She would later develop bursitis in her knee and would undergo a bursectomy as well as lengthy treatment. Her medical bills were originally alleged to be approximately $30,000.00.

The Plaintiff maintained that the Defendants negligently maintained the subject campsite and that, as a result, there was a concealed drop of 4-6” from the concrete to the soil beneath the plush green grass. Her demand was for $100,000.00.

The trial spanned two days in Wareham District Court in front of a seven-member jury. Attorney Takahashi maintained that there was no proof of the alleged concealed drop and that the Plaintiff had merely lost her footing resulting in her fall. The Director of Operations for the campground testified regarding the excellent daily maintenance of the campground as well as annual safety inspections and his own inspection of the alleged concealed drop on the day of the Plaintiff’s fall. Further, the Plaintiff and her daughter, a nurse, were confronted with prior inconsistent statements that the height of the grass was a mere 2”, prior injuries and symptoms affecting the Plaintiff’s knee, and the facts leading up to the Plaintiff’s fall. Ultimately, the jury was cautioned that the campground only has a duty to keep the premises reasonably safe, that there was no proof of the alleged condition, no proof that the Defendants’ caused it, and no proof that they had any prior notice of its existence.

The judge dismissed the claims against the land owner as the Plaintiff had failed to show the owner had any control of the property or any involvement in the maintenance. The jury was therefore asked to determine the claims against the campground only. After less than half an hour, the jury returned a verdict finding no negligence on the part of the campground.

G&B’s New Hampshire Office Obtains Defense Verdict in Products Liability Case for Product Distributor

Kevin O’Neill and Arthur Maravelis of G&B’s New Hampshire and Burlington offices respectively recently obtained a defense verdict after a four day jury trial in Superior Court in New Hampshire. The plaintiff was injured on April 8, 2004, while working on a moulder as a moulder operator for the Batesville Casting Company. As he was working, he claims that a portion of the clamp on the moulder’s spindle came loose at a very high speed, was ejected from the moulder and struck his leg, causing a severely comminuted compound fracture of his right tibia resulting in a 7% whole person permanent impairment with a leg length discrepancy, resulting in approximately $150,000.00 in medical bills and $40,000.00 in lost wages. The plaintiff sued the defendant distributor on theories of negligence as well as strict product liability under New Hampshire law.

Attorneys O’Neill and Maravelis tried the case and argued throughout that the product was not unreasonably dangerous and that there was no defect in the subject moulder. While Gibson & Behman acknowledged that the plaintiff had done nothing wrong, it asserted that it would be inappropriate to hold the product distributor liable for an accident which it claimed was brought about by the failure to properly maintain the moulder which had been at Batesville Casket Company for approximately 18 years prior to the incident in question.

It was significant that the defense was able to show that prior to the accident there was a similar incident where the clamp fell from the spindle. On that occasion the machine was not on and no one was injured. However, upon noticing this, the plaintiff and a co-worker attempted to repair the machine themselves without reporting the incident to maintenance or any other professionals. Further, neither the plaintiff nor his co-worker ever consulted the parts manual in their repair prior to the subject incident. In fact, it was later determined that they failed to properly reinstall the clamp and consequently the incident occurred on April 8, 2004.

After a four day trial, the jury returned a verdict in favor of the product distributor, finding that they were not negligent and also finding them not liable on any of the strict liability counts.

GIBSON & BEHMAN RAISES MONEY FOR CYSTIC FIBROSIS

On Monday, August 20, 2007, Gibson & Behman participated for the 20th year in the Joey Coakley Pro-Am Golf Tournament for the benefit of cystic fibrosis. The tournament was a terrific success and helped raise $125,000. The money will be used to help fund research to find a cure for cystic fibrosis. Many of the firm’s clients and attorneys attended this great event. The event which is held at the Charles River and Woodland country clubs in Newton, Massachusetts attracts some of the best golf professionals from throughout New England. Each threesome is assigned a golf professional. The tournament is followed by a live auction at which Gibson & Behman, along with other sponsors donate may of the prizes.

G&B’s Vermont office wins “zero liability” judgment in Vermont construction case

Kevin O’Neill of G&B’s New Hampshire office recently won defendant’s verdict for Hawksworth, Bibb Incorporated, a structural engineering firm located in Williston, VT.

Judge Development, a commercial real estate firm, had sought an $824,000 demand against Hawksworth, Bibb in connection with a 1996 construction project in the Greater Burlington, Vermont area.

At issue was a two-level parking deck adjacent to a Barnes & Noble book store built by Judge Development. Hawksworth, Bibb was retained by Judge Development to prepare structural design specifications for the parking deck. Hawksworth, Bibb determined that the upper level of the parking deck called for an asphalt surface on top of concrete. Drawings prepared by Hawksworth, Bibb did not call for a water-resistant barrier between the concrete and asphalt layers.

In 2002, six years after it was built, the upper level of the parking deck showed premature signs of deterioration. A consultant retained by Judge Development determined that a protective barrier should have been placed between the concrete and asphalt layers, in turn precipitating the commercial development firm’s suit against Hawksworth, Bibb for $824,000 to substantially renovate the parking deck.

Chemical analysis experts retained by G&B testified during the three-day trial that the lack of a barrier between the concrete and asphalt was not cause for the deck’s early deterioration. It was subsequently determined that concrete poured during the 1996 project contained an excess of water, thereby causing the material to break down prematurely.

In less than one hour, jurors in the Superior Court of Chittenden County, Vermont came back with a defendant’s verdict in the case brought against Hawksworth, Bibb by Judge Development.

MASSACHUSETTS APPEALS COURT REDEFINES “SOCIAL HOST” LIABILITY

In the case of Dube v. Lanphear, the Massachusetts Court of Appeals redefined the standard of liability in a social host setting. In the case of Dube, the plaintiff sustained various physical injuries when the motor vehicle that he was operating was struck by a vehicle driven by Ravindra Bhoge in the wrong direction on the southbound portion of Route 95 in Wakefield. The driver had earlier that evening consumed a number of alcoholic drinks at a bar in the company of three friends. The plaintiff commenced an action against the three friends alleging they were social hosts and that, knowing that Bhoge was intoxicated and intended to drive home, they negligently permitted him to continue to drink and were consequently liable for the damages that their friend caused. The defendants filed a motion for summary judgment in the Superior Court which was allowed. The Appeals Court affirmed that allowance.

Facts which were looked at by the Appeals Court were that for approximately a year and a half prior to the night in question, Bhoge and the three defendants met regularly on Fridays after work for drinks at nearby bars or taverns. Over that period, these friends had developed an informal system of rotating payments with each person taking turns paying the bill for that night. On the evening of the accident, February 9, 2001, Lanphear was scheduled to pay the bill. At approximately 9:30 p.m., Lanphear paid the bill which included four or five hand-poured rum and coke drinks served in fifteen-ounce glasses that had been ordered and consumed by Bhoge. After Lanphear paid, Bhoge and Goodwin each ordered and drank another rum and coke as well as larger than normal shots of Crown Royal whiskey. Around 9:45 p.m., Bhoge headed toward the exit, leaving his coat behind despite the particularly cold weather. Lanphear asked where Bhoge was going, to which Bhoge replied by gesturing toward his cellular telephone, apparently indicating that he was going outside to make or receive a call. When he failed to return after some time, Goodwin looked outside and observed Bhoge’s car still in the parking lot. The defendants assumed that he was still using his cellular telephone. At about 10:30 p.m., 45 minutes after Bhoge left the bar, the defendants departed. Lanphear and Carroll exited first and observed Bhoge seated in the driver’s seat of his vehicle, but allegedly did not notice anything unusual in his demeanor or his response after they waved to him. Goodwin then came out carrying Bhoge’s coat, opened the passenger door of Bhoge’s vehicle to give the coat to him and asked if he was okay and received an affirmative response. Goodwin allegedly observed nothing that indicated that Bhoge was impaired, and left with Bhoge remaining in his car.

Under Massachusetts law, the social host doctrine recognizes “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 its 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.” McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 162 (1986). The plaintiff must show that the social host knew or reasonably should have known that the intoxicated guest might presently operate a motor vehicle. The Supreme Judicial Court has limited application of the social host doctrine to circumstances in which the host possesses actual control over the liquor supply.

In the Dube case, the plaintiff argued that each of the three defendants were “hosts” and that their group was essentially “a drinking club.” The Superior Court judge stated that the defendants could not be deemed social hosts because they did not regulate the liquor supply. Although they could refuse to continue to pay for Bhoge’s drinks, they could not require that he be “shut off” by the bar; relinquish his drinks; or be ejected from the premises. The Superior Court judge felt that those powers were vested exclusively in the liquor licensee. The Appeals Court agreed with this analysis. The Appeals Court elaborated: “a true host in a practical sense owns or provides the liquor served to guests, and consequently is in a position to cut off that supply in the event that he observes that a guest is becoming intoxicated. Failure to do so subjects such a host to liability for foreseeable damages related to the guest’s drinking.”

G&B’S CONNECTICUT OFFICE PREVAILS IN NEGLIGENT MAINTENANCE CASE

Attorneys Elycia Solimene and Dominic Secondo of G&B’s Connecticut office recently obtained a defense verdict in the case of Nichols vs. Martha Tillman & Raymond Tillman, which was tried in the Litchfield Superior Court. The plaintiff alleged that the defendants were negligent in their maintenance of a deck on which mold had grown. The deck was attached to an apartment rented to the plaintiff by the defendants. The only access to the deck was through the subject apartment. The plaintiff alleged that the defendants retained possession and control of the deck because it was outside and that the defendants were therefore responsible for the maintenance and inspection of the deck.

The plaintiff claimed to have injured her knee when she slipped on a patch of mold on her deckand that the injuries suffered were permanent.The plaintiff was assigned a 5% permanent partial disability to her knee. On cross, the plaintiff had to concede that she did not see a doctor until 11 months after her alleged injury. In addition, the plaintiff was subjected to significant impeachment because she claimed a substantial permanency but denied that a prior injuries to her other knee and her neck, both of which were much more substantial, did not contribute at all to her permanent injuries.

During the trial, defense counsel was able to attack the plaintiff’s credibility by showing that she retained possession and control over the deck which was clearly part of the demised premises through an oral rental agreement. Her credibility was further attacKed through her medical records which showed her limited medical treatment commencing one year after this incident. The jury deliberated for 30 minutes and found that the plaintiff retained possession and control of the deck thereby entering a defense verdict.

G&B’S BURLINGTON OFFICE OBTAINS DEFENSE VERDICT IN THANKSGIVING EVE ASSAULT AT PUB

Attorneys Scott Behman and Daniel Shanahan of G&B’s Burlington office recently obtained a defense verdict after a four day jury trial in Essex Superior Court in a claim for personal injuries resulting from an assault that occurred in a local Andover tavern. In Magane v. Park Street Pub, Inc., the plaintiff alleged that the defendant pub negligently failed to provide adequate security and overserved alcohol to the patron who assaulted the plaintiff.

Late during the evening before Thanksgiving 2002, the plaintiff was with a group of men and women at the Park Street Pub in Andover, Massachusetts. The group had been at another establishment in Andover before arriving at the defendant pub. Shortly after midnight, one of the men was apparently behaving inappropriately toward one of the women in the group. The plaintiff attempted to intervene and words were exchanged between the plaintiff and this other patron, who was a member of this group. Without warning, the patron assaulted the plaintiff, striking him in the face with a beer bottle and yelling homophobic slurs. An off-duty firefighter/EMT assisted the plaintiff into the restroom and waited for police and an ambulance. The plaintiff was transported to Lawrence General Hospital where his facial lacerations were sutured.

The plaintiff claimed that he suffered permanent facial scarring and disfigurement and incurred medical expenses and lost wages. He also claimed that he developed headaches and suffered from severe depression and anxiety as a result of the assault, including that he was “outed” as a homosexual as a result. The plaintiff introduced medical records and bills, including records from a treating psychiatrist, which treatment was aggressively discredited during cross-examination.

The plaintiff initially filed a criminal complaint against his assailant, who later pleaded guilty to assault and battery with a dangerous weapon and was ordered to serve probation and pay restitution. Shortly thereafter, the plaintiff filed a civil complaint against his assailant, as well as the first establishment and the Park Street Pub. The plaintiff settled his claims against the two co-defendants and proceeded to trial against the pub.

The plaintiff called numerous witnesses during the course of the week-long trial, most of whom had witnessed the events immediately preceding and following the assault, including the plaintiff and the assailant. Attorneys Behman and Shanahan successfully cross-examined the plaintiff’s witnesses to establish that there was nothing the pub could have done to have prevented the assault. The trial judge granted the defendant’s motion for a directed verdict on the plaintiff’s claim for negligent security, but allowed the claim for overservice of alcohol to go to the jury.

The defense asserted that there was no evidence to support the plaintiff’s claim that his assailant was visibly and obviously intoxicated prior to last service at the pub. The plaintiff offered evidence that his assailant had been consuming martinis earlier in the evening at the pub, and was showing signs of intoxication at another establishment prior to returning to the pub and in the moments immediately preceding the assault. The defense offered evidence through cross-examination of several of the plaintiff’s witnesses that the plaintiff was the aggressor and instigated the altercation.

During the course of litigation, the plaintiff settled with the co-defendants for a total of $25,000.00. The plaintiff’s demand was $75,000.00 at the start of trial. No offer for settlement was made. After five hours of deliberation, the jury returned a verdict for the defendant, finding the defendant 49% negligent, and the plaintiff 51% negligent.

G&B’S CONNECTICUT OFFICE MOVES TO MIDDLETOWN

Gibson & Behman is happy to announce that its Connecticut office has moved from Madison to Middletown. Middletown is truly in the center of the state, giving its associates greater ease of access to all the Connecticut courts. This is a great opportunity for the Connecticut office to grow and develop in its new space and city. Feel free to stop by and visit.

MASSACHUSETTS SUPREME JUDICIAL COURT ADOPTS “MODE OF OPERATION” RULE IN SELF-SERVICE RETAIL SLIP AND FALL CASES

In the case of Sheehan v. Roche Brothers Supermarkets, Inc., the Massachusetts Supreme Judicial Court adopted what is known as the “mode of operation” rule. That rule, which has already been adopted in approximately half of the other states, essentially says that if a retail store owner chooses to “merchandise” or display its products, particularly produce, in such a way that it is predictable that customers will spill or drop some of that product on the floor when they are self-serving, then such an owner is already on notice that such spillage or dropping will occur. Accordingly, someone who slips and falls upon such spilled or dropped product is relieved of the burden of having to prove either that a store employee was responsible for the spill or dropping or that the product had been on the floor for such a length of time that the store’s employees should have discovered it and remedied it before someone slipped and fell.

As set forth, this is not the rule which will be adopted in every slip and fall case. It will only be utilized by the Courts in cases where the retail store owner chooses to display its merchandise in a certain manner. What the “mode of operation” rule is intended to be applied to are situations such as where green beans are displayed loosely and customers are expected to package them themselves and, in the process, drop some on the floor. Another example of an applicable situation would be where in store shucking of corn on the cob by customers is allowed and, predictably, silk and husks wind up on the floor.

The Supreme Judicial Court’s adoption of this rule was foreshadowed in the 1987 case of Gilhooley v. Star Market, where the Court had indicated that, in an appropriate case, it would adopt the “mode of operation” rule. There is also a Massachusetts Appellate Division case where a store owner was deemed to be on notice of the likelihood of spillage from a self-service salad bar.

The “mode of operation” rule is not a rule of strict liability. The plaintiff still has to prove that there was a self-service “mode of operation” and that the defendant did not take reasonable measures or precautions to prevent the accident from happening. This is still a tough burden for a plaintiff as most retail stores have adopted reasonable policies and procedures to prevent items from being spilled on the floor, and in the event they are, provisions are in place for their immediate clean up. Although plaintiffs’ lawyers might state that this case is a major victory for plaintiffs, practically speaking, it is not a radical change of the law.

G&B’S RHODE ISLAND OFFICE SUCCESSFUL IN WORKERS’ COMPENSATION TRIAL

Brian Dougan of G&B’s Rhode Island office achieved a substantial Trial win in the Rhode Island Workers’ Compensation Court. The claimant was alleging that on June 13, 2006, he was moving a rock onto a lift when he felt soreness in his groin area, which has continued to get worse and will require hernia surgery. The claimant’s petition was for weekly benefits from November 18, 2006 through the present, medical payments, counsel fee and filing fee. On February 12, 2007, the claimant’s petition for benefits was denied by the Court at the pre-trial conference and the claimant filed a timely appeal which necessitated this trial.

In order to overcome the court’s pre-trial ruling and secure benefits, the claimant has the burden of proving that his alleged injury arose out of and in the course of employment and that he has a disability which prevents him from performing his job duties. Woods v. Safeway System, 101 R.I. 343 (1966).

The claimant testified that his groin/hernia injury occurred on June 13, 2006 while he was moving a rock onto a lift. However, on cross examination the claimant admitted that he did not report the injury at the time it occurred, despite the fact that the claimant’s supervisor, Franklin Arts, was present at the alleged injury site. The claimant continued to work for Earth Scape until November 2006, when he was laid off by Mr. Arts due to lack of work.

The claimant did tell Mr. Arts about the injury in July 2006. He said the injury occurred three months earlier, not in June as the claimant now alleges. Moreover, the Rhode Island Hospital notes from August 17, 2006, state that the claimant was injured five months prior, which would be March 2006, but in March 2006, Earth Scape, Inc. was closed for the season.

After the claimant was laid off from work in November, 2006, he filed for and received unemployment benefits from the Department of Labor & Training. The claimant collected unemployment benefits from November 18, 2006, through January 2007. The claimant admitted on cross examination that he signed the unemployment forms which stated that he was willing and physically able to work. This is strong evidence that he was not injured and not disabled from working.

Attorney Dougan then admitted into evidence the complete records of the Department of Labor & Training. Testimony was also heard from Franklin Arts, President of Earth Scape, who testified he was on the jobsite on the day of the alleged injury and no injury was ever reported nor did he witness any injury. He further testified that from the date of the alleged injury, June 13, 2006, the claimant never missed a day of work and was never physically limited in his job duties.

Judge Rotundi found in favor of Earth Scape, Inc. and denied the claimant’s petition for benefits. Judge Rotundi found that the inconsistency of the medical records, the failure to report the injury immediately and the fact that he was collecting unemployment was enough evidence to find for the employer and that the claimant had not carried his burden. The claimant’s petition was denied and dismissed with prejudice.

GIBSON & BEHMAN OBTAINS DEFENSE VERDICT IN SLIP AND FALL CASE

Attorneys H. Charles Hambelton and Christopher Cifra of G&B’s Burlington office recently triumphed in the case of Richards v. Roche Brothers Supermarkets, Inc., tried for a week in Norfolk Superior Court. The plaintiff alleged that the defendant was negligent in its maintenance of a sidewalk. There was both a gap and a height differential between two slabs on the sidewalk which the plaintiff alleged that she tripped on and fractured her elbow, jaw and sternum. As a result, the plaintiff had over $65,000 in medical specials and was claiming in excess of $100,000 in lost wages and loss of earning capacity. The plaintiff’s demand prior to the start of trial was $650,000. During the course of a week long trial, the plaintiff called both a neurologist and an engineer as experts.

During the trial, defense counsel was able to show, through the plaintiff’s medical history and records, that the plaintiff was uncertain whether she actually tripped or had fainted, causing her to fall. The plaintiff’s pre- and post-accident medical records demonstrated that the plaintiff had certain medical conditions which caused her to suffer episodes of lightheadedness and imbalance.

Although the jury found that a defect existed and, therefore, that the defendant was negligent, the jury found that the plaintiff had not proven that the defect actually caused her to fall. Particularly helpful to this result was the concession by plaintiff’s neurology expert on cross-examination that this was an “unexplained fall.”

Gibson & Behman’s Burlington Office Obtains Successful Result for City of Springfield, MA Property Owner

Attorneys Brandon H. Moss, Thomas J. Holloway, and Arthur E. Maravelis of G&B’s Burlington Office recently obtained a successful result in which the Hampden County Superior Court declared that a trash fee established for Fiscal Year 2007 under Executive Order #8-11-04 amounted to an illegal tax, and for that reason was declared null and void. Under Executive Order #8-11-04, the Springfield Finance Control Board previously established a $90 per City-provided container trash fee for each residential and commercial property owner, with limited exemptions and discounts.

In addition to declaring that the Fiscal Year 2007 trash fee established under Executive Order #8-11-04 was illegal, the Court’s February 12, 2007, final judgment permanently enjoined the City of Springfield and the Springfield Finance Control Board from collecting any fee assessed pursuant to Executive Order #8-11-04. As a practical matter, the final judgment relieves Springfield property owners from what would have been an onerous, illegal tax for the collection of trash for Fiscal Year 2007. Further, the Court’s final judgment requires that any amounts previously paid by the City’s property owners either be refunded or applied to the new trash fee that was enacted for Fiscal Year 2008.

In October 2006, G&B’s Burlington Office filed suit on behalf of ten taxpayers, including State Representative Cheryl Coakley-Rivera, against the City of Springfield and Springfield Finance Control Board, contending that Executive Order #8-11-04 created an illegal tax for the collection of trash in contravention of the Massachusetts Constitution and the case of Emerson College v. Boston, 391 Mass. 415 (1984) and its progeny. Under Massachusetts law, municipalities are not specifically empowered to levy, assess or collect taxes such as for the so-called trash fee established by Executive Order #8-11-04. Of particular concern was that under the trash fee established by Executive Order #8-11-04: (1) the payer was not benefited in a manner not shared by other members of society; (2) the payer lacked the option of not utilizing the governmental service of non-bulky solid waste collection and thereby avoiding the charge; and (3) the trash fee was collected to generally raise revenues.

In November 2006, the Court issued a preliminary injunction that (1) prohibited the City of Springfield from collecting or attempting to collect the trash fee; (2) required the Springfield Finance Control Board to notify all individuals and entities charged the trash fee that the Executive Order was suspended and not to make payment unless a future court order was issued to the contrary; (3) preliminarily enjoined the City of Springfield from placing a lien on any property for failure to pay the trash fee; (4) required the City of Springfield to segregate and deposit any payments made thus far from the fee into an interest-bearing account; and (5) required the City Auditor to account for any payments received thus far from the trash fee and to provide a written accounting of the same to the court by December 4, 2006. After the Court issued its preliminary injunction, the Springfield Finance Control Board enacted a new trash fee for Fiscal Year 2008 that departed from the coercive provisions of Executive Order #8-11-04 that were deemed illegal by the Court in its decision to issue a preliminary injunction.

GIBSON AND BEHMAN PREVAILS ON SUMMARY JUDGMENT IN DOG BITE CASE

Brian T. Dougan of G&B’s Rhode Island office recently prevailed on a summary judgment motion on behalf of a landlord in a dog bite case. The plaintiff brought a case in the Third District Court of Rhode Island naming Sandlewood Associates, Inc. and Michael J. O’Connor as defendants. The plaintiff alleges that on March 3, 2003, a pit-bull dog owned by Michael O’Connor attacked and bit him inside Sandlewood Associates, where Mr. O’Conner was renting an apartment. Mr. O’Conner invited the plaintiff into his apartment and allowed his pit-bull dog out of its cage; as the plaintiff was interacting with the dog, the dog attacked the plaintiff causing permanent facial injuries.

Premise liability law in Rhode Island imposes an affirmative duty upon owners and possessors of property to exercise reasonable care for the safety of persons reasonably expected to be on the premises. Cutroneo v. F.W. Woolworth Co., 315 A.2d 56 (R.I. 1974).

R.I.G.L. Section 4-13-17 imposes the same liability upon the harborer or keeper of a dog as is imposed by an owner. However, it does not impose liability for the acts of a dog committed within the enclosure of the owner or keeper of the dog beyond the common law liability, which requires proof of knowledge of a vicious propensity. Oldham v. Hussey, 27 R.I. 366 (1905).

The Rhode Island Supreme Court has held that the first step in imposing liability for a dog bite which occurred within the enclosure of the owner’s home is to establish that the keeper or harborer knew of the dog’s presence on the premises. Shayna L. Ferrara v. Michael Marra, 823 A.2d 1134 (R.I. 2003).

Sandlewood Associates’ first knowledge that a dog bite occurred on its premises was when they received correspondence from the plaintiff’s attorney apprising them of this event a few months after this incident. Prior to this correspondence, Sandlewood was not aware that Mr. O’Conner had a dog living with him in the apartment building. In fact, it was against Mr. O’Conner’s lease to have a dog on the premises. If Sandlewood Apartments had knowledge about the dog being on the premises, Mr. O’Conner would have been asked to get rid of the dog or would be in violation of his lease and forced to vacate the premises.

The plaintiff testified at his deposition that he did not know how long Mr. O’Conner had owned the dog. Furthermore, the plaintiff testified that he did not know if the apartment complex owners knew that Mr. O’Conner had a dog living in his apartment.

In Monteriero v. Silver Lake I, 813 A.2d 978 (R.I. 2003), the Rhode Island Supreme Court held that if damages are suffered within the owners enclosed space, the law dictates that the plaintiff must prove that the defendant knew about the dog’s vicious propensities (this is commonly referred to as the one bite rule).

In this case, there is no evidence that Mr. O’Conner’s dog has ever bitten before and no evidence that Mr. O’Conner’s dog has ever shown dangerous or vicious propensities. Therefore, Sandlewood Associates, Inc. did not breach its duty of care owed to the plaintiff and the plaintiff’s claim has no merit.

The plaintiff’s counsel argued that there were issues of fact in this case, namely regarding if the plaintiff’s dog had ever bitten before, and he cited a police report which states that the plaintiff’s dog was in an altercation. Plaintiff’s counsel further attempted to argue that a landlord could not just ignore the fact that an animal was on its premises and pretend that they did not know of its presence.

The Judge granted Sandlewood’s Motion for Summary Judgment finding that there were no issues of material fact and that Sandlewood was entitled to judgment as a matter of law. In particular, the Judge found that Sandlewood had no notice that the dog was on the premises and no notice that the dog had any vicious propensities.

GIBSON & BEHMAN’S BURLINGTON OFFICE WINS SUMMARY JUDGMENT ON RAPE AND NEGLIGENT SERVICE OF ALCOHOL

Scott Behman, Sharmili Das and Daniel J. Gibson of G&B’s Burlington office recently prevailed on a summary judgment motion regarding negligent service of alcohol. The plaintiff was an employee of the Lyons Group and on November 16, 2004, she attended an employee event at Kings. While at Kings, the plaintiff claimed that she consumed four glasses of wine and that she was intoxicated. After leaving Kings, the plaintiff was put in a cab by her coworker to go to South Station. The plaintiff got on the wrong train and claims that she was raped by an employee of the Commuter Rail. The plaintiff filed a Complaint against Lyons Group, Ltd. alleging it was negligent for failing to provide the plaintiff with a ride to her house as it was foreseeable that she could have been raped while going home.

In our Summary Judgment Motion, we argued that it was not foreseeable as a matter of law that the plaintiff would be raped. In the last several years the case law has supported our position. In fact in Carol L. Westerback v. Harold LeClair, 50 Mass. App. Ct. 144 (2000), the Appeals Court granted summary judgment in favor of the defendant on the grounds that the rape was not reasonably foreseeable. Specifically the Court stated:

There is nothing in evidence in this case to suggest that the rape of the plaintiff by a predator was reasonably foreseeable,…unless one can draw the inference simply from the general vulnerability of drunks, that they will likely be targeted by criminals—or perhaps muggers or, as here, a rapist…There must be limits to the scope or definition of reasonable foreseeability based on considerations of policy and pragmatic judgment. Id. at 148.

This decision was reaffirmed by the Superior Court in August of 2006, in Bjorgolfsson v. Destination Boston Hotel, Inc., where the plaintiff left the Beantown Pub and was subsequently raped at Nine Zero by one of its employees.

The Court allowed the Motion for Summary Judgment on the grounds that the rape was not reasonably foreseeable and found in favor of the Lyons Group, Ltd.

CLARIFICATION OF THE STANDARD APPLICABLE TO SERVICE OF ALCOHOL TO UNDERAGE, ADULT PATRONS BY COMMERCIAL ESTABLISHMENTS

In 1996, the Supreme Judicial Court (“SJC”) decided the matter of Tobin v. Norwood Country Club, Inc., 422 Mass. 126 (1996). In that case, the Norwood Country Club provided a private function room for a family reunion of one of its employees. A seventeen year old went to this reunion as the date of a teenage member of the family. The girl, as well as her date and other teenagers, consumed numerous alcoholic beverages throughout the evening. The girl left the party on foot and proceeded to walk along the breakdown lane of the highway. At some point, she crossed into the center of the highway where she was struck by a passing vehicle. Her blood alcohol level, taken two hours after the accident, was .229. She died of her injuries two days later. The Plaintiffs, presumably the girl’s parents, sued the Club on behalf of the girl’s estate and individually.

The Court found that “the Club owed the [girl] a duty of care to refrain from making alcohol available to her, an act that unreasonably increased the risk of harm to her. … The duty is breached when the establishment knew or reasonably should have known that it was furnishing alcohol to minors.” Id. at 135. Minors “are thought to be peculiarly susceptible to the effects of alcohol and less able to make decisions about what amount of alcohol they may safely consume in various situations.” Id. at 136. The court held that the Plaintiffs were entitled to judgment. The girl’s own contributory negligence was considered and used to reduce the judgment for the Plaintiffs.

The Tobin decision has been frequently cited and followed by subsequent cases. However, one question left open by the Tobin decision was not addressed until now – what is the legal responsibility of a licensed commercial establishment for injuries sustained by an adult, but underage, patron as a consequence of that establishment’s furnishing alcoholic beverages to such patron? This question was recently answered by the court in Nunez v. Carrabba’s Italian Grill, Inc. and Saugus Concessions, Inc. d/b/a The Palace, Docket Number 2006-SJC-09724.

In Nunez, the Plaintiff, 18 years old, had gone to Carrabba’s Italian Grill, Inc. (“Carrabba’s”) where he had previously worked. He ate dinner and was served six alcoholic beverages by a high school friend who was bartending there. The plaintiff then proceeded to the Palace, for which he had a plastic bracelet which was reserved for patrons over the age of 21. He consumed one or two alcoholic drinks which were served to him by the bartender whom he knew from his prior work for the club. While driving home later that night, the Plaintiff accelerated through a green light and was struck in the intersection by a vehicle which failed to stop for the red light governing the traffic on the cross-road. The Plaintiff was thrown from his vehicle and sustained serious injures. His blood alcohol level later that night was .13.

The Plaintiff argued that the Defendants were negligent in serving him alcohol. The Defendants asserted that they had not engaged in willful, wanton, or reckless conduct as required by G.L. c. 231, §85T. The Plaintiff responded that said statute was not applicable to an underage, adult drinker.

The Court agreed with the lower court’s decision that the evidence did not support willful, wanton, or reckless disregard on the part of the Defendants for whether the Plaintiff was intoxicated. Therefore, the Defendants were granted summary judgment as to that count. The Court concluded that the duty of care owed to the deceased in Tobin was equally applicable to individuals between the ages of eighteen and twenty-one years who are served alcohol. The Court relied upon the fact that the legislature established the drinking age at twenty-one indicating that the concerns about underage drinkers persisted until that time. The Court held that the Plaintiff only had to establish negligence on the part of the Defendants, “that [they] served him alcoholic beverages knowing, or having reason to know, that he was under twenty-one years of age and, as a consequence, he was injured.”

The Nunez decision makes it clear that commercial establishments need to be ever vigilant when serving alcoholic beverages. The legislature has set the drinking age at twenty-one and the law holds vendors to a higher standard when anyone under that age is served.

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