We have adhered consistently to the principle set forth in McGuiggan, requiring actual or constructive alcohol service or effective control of the alcohol supply, on the ground that it furnishes “practical limits of potential liability.” … If mere control of premises gave rise to a duty of care for social hosts, the difficulties facing judges and juries charged with ascertaining the limits of liability would be manifold.

Although the matter involved an underage host, Justice Botsford, in his concurring opinion, indicates that the SJC also declined “to expand social host liability to apply to situations where an adult who does not furnish alcohol to underage guests nonetheless knowingly makes her home available to them to drink alcohol.”

You can read the full SJC decision at: http://www.socialaw.com/slip.htm?cid=21181&sid=120

However, many people are not aware that their own vehicle may contain a similar devise that can act like a “Black Box” – an “Event Data Recorder (EDR).” An EDR, commonly referred to as an automotive black box, is an electronic devise installed in a motor vehicle to record technical vehicle and occupant information for a brief period of time, usually second before, during, and after a motor vehicle accident. In most cases, the EDR function is integrated into the air bag control unit and cannot be removed by the vehicle owner. The National Highway Traffic Safety Administration (NHTSA) has been using EDRs for years in controlled studies to help monitor and assess how a vehicle’s safety system performed before, during, and after a motor vehicle accident. For instance, EDRs may record (1) pre-crash vehicle dynamics and system status, (2) driver inputs, (3) vehicle crash signature, (4) restraint usage/deployment status, and (5) post-crash data such as the activation of an automatic collision notification (ACN) system. Some EDRs are capable of recording more detailed data than others. Once this data is retrieved, automobile manufactures can use this vital information to help improve their motor vehicle safety systems. NHTSA estimated that about 64 percent of 2005 model passenger vehicles had the devices. By 2005, General Motors, Ford, Isuzu, Mazda, Mitsubishi, Subaru, and Suzuki were all voluntarily equipping all of their vehicles with EDRs, according to NHTSA.

Although EDRs may assist manufactures in improving their motor vehicle safety systems, such EDRs may greatly impact the outcome of legal settlement negotiations or lawsuits. When a motor vehicle is involved in an accident, the EDR can record several critical sensors installed in different areas of the vehicle. For example, the EDR may record data relevant to: the force of impact, vehicle speed, vehicle acceleration/deceleration rate, braking system, airbag system, and passenger restraint system. The answer to some of these factors can play an important roll in determining who is liable for a motor vehicle accident or if an operator’s actions contributed to the accident, which can either be very helpful or harmful to a litigant’s argument.

Even if your vehicle is not equipped with an EDR, some electronic control units (ECU) build into most vehicles, which are responsible for controlling various electrical systems such as the air bag deployment system, anti-lock braking system (ABS), and passenger restraint system, can function similar to EDRs and store critical data when your vehicle has been involved in an accident. For example, one such devise is the vehicle’s power-train control module (PCM), or onboard computer system, which can indicate if restraint devices (vehicle’s airbag or seatbelt pretensioner) were deployed.

It is important to note that although in most cases the EDR function is integrated into the air bag control unit and cannot be removed by the vehicle owner, the EDR and any data stored within is considered private property and belongs to exclusively vehicle owners. Police, insurers, investigators, opposing counsel and others may gain access to the data with owner consent. HOWEVER, without consent, such entities may obtain subpoena and/or court order for the disclosure of the data contained within the EDR. Several court cases across the U.S. indicate courts have allowed the data stored within EDRs to be admitted into evidence. Specifically in Massachusetts, there are several instances that I know of where state police collision reconstruction reports indicate that a search warrant was obtained to remove and gain access to the information contained within EDRs or similar devices. MOREOVER, insurance agencies and adjusters may be able to gain access to the their policyholders’ EDRs and the information contained therein based on a provision in the policy requiring policyholders to cooperate with the insurer.

One think to keep in mind is that EDRs are not 100% reliable. In some instances, the impact can cause the EDRs to suffer electrical damage. Also, if the vehicle’s ignition was in the “on” position for several minutes after a collision, the EDR may overwrite itself. The information contained within the EDR may also be misleading. For example, as discussed above, one sensor the EDRs record is the vehicles speed sensor. However, this data may not necessarily be the actual speed, or forward velocity, of the vehicle, but the speed at which the tires are spinning. Naturally, if a vehicle hydroplanes over a puddle of water, or hits an ice patch moments before impact, the vehicle’s tires may rotate faster when traveling over such road conditions even though the vehicles forward velocity was actually much slower.

If you have been involved in an accident, regardless of fault, you should contact an attorney BEFORE you speak with any auto insurance company, including your own car insurance company, as the alternative potential consequences can be severe and can last a lifetime. A Boston Personal Injury Attorney at The Jacobs Law, LLC can represent you and advise you throughout your legal matter. You can contact us at 800-652-4783 or ContactUs@TheJacobsLaw.com.

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CREDITS:

• http://www.nhtsa.gov

• National Highway Traffic Safety Administration. 2006. Final regulatory evaluation – event data recorders. Table III-1: Estimate of the number of EDRs in light vehicles with a GVWR of 3,855 kilograms (8,500 pounds) or less. July 2006. p. 111-12. Washington, DC: US Department of Transportation.

• http://www.nhtsa.gov/DOT/NHTSA/Rulemaking/Rules/Associated%20Files/EDR_QAs_11Aug2006.pdf

I have recently come across several examples where one’s own words and statements, to one’s own insurance company, have had devastating results. It starts like this:

The insured / policy holder gets into an accident or has his/her vehicle stolen or someone borrows the vehicle and gets into an accident, etc. etc…The policy holder thinks his/her own car insurance company works for the insured / policy holder, so he or she speaks freely with his/her car insurance adjusters, investigators, third-party appraisers and anyone else who will listen SO LONG AS they represent the policy holder’s OWN insurance company. The common thinking is that one’s own insurance company is there to cover YOU, help YOU, pay YOU to fix your car or get medical treatment, because…after all…you pay THEM thousands and thousands of dollars in annual premiums right? In several recent examples, the words and statements of the policy holder himself / herself have resulted in a DENIAL OF INSURANCE COVERAGE under his or her OWN auto insurance policy.

The truth is that even though your car insurance company insures you, it is looking for any and every reason it can use to DENY YOU COVERAGE. These reasons generally include the statement “[insert name of insurance company] has concluded that there has been a violation of the insurance contract” or “a breach of the insurance contract has occurred” or “we have discovered a breach of the insurance policy’s cooperation clauses and covenants of good faith and fair dealing based upon the false information provided”.

A very large portion of the information your auto insurance company uses to deny coverage after a loss is obtained from YOU, the policy holder or your family, friends, and neighbors. Most people think these conversations are innocent and helpful, and they choose to voluntarily answer the investigator’s questions or let the adjuster take a recorded statement. And although almost every car insurance contract / policy in Massachusetts requires the policy holder to cooperate with its own car insurance company’s investigation, you are still entitled to – AND SHOULD ALWAYS – be represented by counsel before and during any such questioning or recorded statements. EVERYTHING YOU SAY can and will be used against you – just like in those police drama shows we all know and love. You may even be mistaken, outright wrong, simply not remember, but your statements will be written in stone and used against you if it provides justification for your auto insurance company to deny you coverage.

Recently, several very nice people have contacted my office because their car insurance company denied coverage under their own car insurance policy and the car insurance company based its denial on something the insured told his/her own insurance company. Each of them now has no coverage beyond the compulsory coverage required in Massachusetts – which means the damage to their vehicle, no matter how expensive, is entirely and solely their responsibility. If you have an auto loan, and your car was totaled, you will be forced to pay that loan yourself even though you have no car and received no insurance coverage for the loss. Of even greater risk is the fact that any claims for personal injury over $20K per person or $40K total per accident, are now the personal responsibility of the insured / policy holder – which puts your house, personal bank accounts and any other assets at risk to satisfy a court judgment or settlement.

IF you have been involved in an accident, regardless of fault, or had your vehicle stolen or vandalized, you should contact an attorney BEFORE you speak with any auto insurance company, including your own car insurance company. You may spend some money on legal fees or maybe nothing at all depending on the matter, but the alternative potential consequences can be severe and can last a lifetime. Do not become the next victim of your own words and statements, hire a Boston Personal Injury Attorney to represent you and advise you throughout the insurance loss investigation process.

Unfortunately, businesses, landlords, and others similarly situated, DO NOT have a legal duty to provide an injured party with a copy of accident reports, surveillance videos, maintenance histories, and other related evidence PRIOR to a personal injury action being filed. Therefore, they typically classify this type of evidence as private and/or for their internal purposes only, and are reluctant to disclose this type of evidence when requested by an injured party or attorney.

However, businesses, landlords, and others similarly situated DO have a legal duty to preserve any relevant evidence if they know or reasonably should know that the evidence might be relevant to a potential personal injury action. To be certain, an injured party should notify any potential litigant to preserve any such evidence that may be relevant to a potential personal injury matter. If a potential litigant fails to preserve such evidence, a judge has the discretion to impose sanctions for the spoliation or destruction of evidence in the underlying action in which the evidence would have been offered.

Remember, though, you most likely have a camera built into your cellphone. Photograph any accident scene and injuries as soon as possible to preserve any evidence, including the conditions of the premises, at the time the personal injury accident occurred. Such evidence may by useful should a spoliation of evidence issue arise.

If you have sustained a personal injury on a premises, you should contact an attorney immediately to protect your interests. Hire a Boston Personal Injury Attorney from The Jacobs Law, LLC to protect your interests and represent you throughout the matter. You can contact us at 800-652-4783 or ContactUs@TheJacobsLaw.com.

• Make sure you have adequate insurance coverage, BOTH Health Insurance and Motor Vehicle/Motorcycle Insurance, including “uninsured/underinsured” coverage. There are many people driving on the road everyday that have no motor vehicle/motorcycle insurance at all. Speak with your insurance agent to make sure you have adequate insurance coverage. Also be aware that in Massachusetts, insurance companies are not required to provide Personal Injury Protection (PIP) coverage in motor vehicle insurance policies covering motorcycles. Therefore, your motorcycle insurance policy will most likely NOT provide PIP coverage to you, the owner, rider or passenger of a motorcycle who suffers injuries as a result of a motorcycle accident. Click here for more information regarding Personal Injury Protection (PIP) coverage in motor vehicle insurance policies covering motorcycles.
  

• Make sure your vehicle has had all recommended maintenance and repairs;
  Drive safely and courteously. Injuries from a vehicle accident are not worth the pain and suffering that can come from bad driving or incidents of road rage. Also, “burnouts”, racing and motorcycle stunts should only be attempted on a closed track so as to not put innocent drivers in jeopardy.

AFTER an Motor Vehicle or Motorcycle Accident Occurs:

• Insist that a report be completed and filed with the police on scene, regardless of how minor the accident seems. It is not uncommon for opposing parties to give false information or change their story of how the accident occurred or who is at fault. Additionally, some minor pains may potentially develop into more serious symptoms or injuries in the first few hours after an accident has occurred;
• Get the name, address, insurance information, vehicle license number, driver’s license number of all those involved in the accident, including passengers. Also sure to verify such information through government issued identification;
• Get the name, address, and phone number of witnesses;
• Record the make, model, year, color and damage of all vehicles involved in the accident;
• Photograph the accident scene as soon as possible. Remember, you most likely have a camera with you at all times as most cellphones have a camera built-in camera;
• Photograph each vehicle involved before it is towed or repaired;
• Photograph all visible injuries as soon as possible;
• Seek medical attention immediately, inform your doctor exactly how the injury occurred, and describe all your injuries and complaints in detail, including any pain, memory problems, headaches, trouble sleeping, and disorientation no matter how minor they may seem at the time;
• DO NOT TALK with anyone except your attorney and treating doctors about the accident or injuries, especially NOT an insurance adjuster or appraiser. Even truthful statements made in an attempt to be helpful can be misinterpreted or intentionally used against you;
• DO NOT SIGN anything without consulting your attorney. Simple documents can contain language and fine print that give up your rights or undermine your interests.

IF you have been involved in an accident, regardless of fault, you should contact an attorney BEFORE you speak with any auto insurance company, including your own car insurance company, as the alternative potential consequences can be severe and can last a lifetime. Don’t become the next victim of your own words and statements, hire an Boston Personal Injury Attorney at The Jacobs Law, LLC to represent you and advise you throughout the matter. You can contact us at 800-652-4783 or ContactUs@TheJacobsLaw.com.

First, and most importantly, there are critical time deadlines in which a victim must notify their insurance company of an accident, as well as time deadlines to file a claim against the wrong-doer and/or the wrong-doer’s insurance company. Failure to meet a time deadline will result in a victim being forever barred in pursuing a claim for damages.

Second, and just as important as the first, victims must take extreme caution when communicating with insurance companies. Lets face it, insurance companies are in the business to make money, not to compensate victims for their loss. Insurance companies hire trained adjusters and seasoned attorneys to limit their liability in having to compensate a victim, sometimes even denying a claim in its entirety. Insurance adjusters may force the victim to make a recorded statement (or complete a claims form) describing the events that have transpired, and the injuries/damages sustained. Unfortunately, although the insurance companies sound like they are trying to help, any statements made can and will be used against the victim by the insurance company in an attempt to limit their liability of having to compensate a victim. This is why attorneys will stress the fact to not talk to any insurance companies or discuss the matter with anyone not authorized by the attorney.

Third, unlike experienced personal injury attorneys that have experience valuing a personal injury claim and knowledge of how other similar matters have settled, laypersons sometimes undervalue their claim, and may think a settlement offer is reasonable, when in fact, it may be much too small. Many laypersons also fail to realize that not only can a victim pursue a claim to recover costs for past medical treatment and pain and suffering, victims may potentially be able to recover the costs for future medial treatment, lost wages, property damage, and other expenses. These additional claims, and their values, can be difficult for a layperson to determine. Insurance adjusters will also force a victim to sign a release in exchange for the settlement funds. Once signed, this release will prevent any additional claims not previously raised from being raised in the future.

Assuming a victim is forced to trial as a result of the insurance company being unwilling to settle, the victim must be able to property and timely file a complaint in the correct court, and pursue extensive, multistage litigation. Unlike attorneys, laypersons may have no knowledge of strict procedural rules and rules of evidence, and being a pro se litigant will be no excuse.

IF you have been involved in an accident, regardless of fault, you should contact an attorney BEFORE you speak with any auto insurance company, including your own car insurance company, as the alternative potential consequences can be severe and can last a lifetime. Don’t become the next victim of your own words and statements, hire an Boston Personal Injury Attorney at The Jacobs Law, LLC to represent you and advise you throughout the matter. You can contact us at 800-652-4783 or ContactUs@TheJacobsLaw.com.

Typically, users post status updates and pictures of their daily life events without ever considering that the same content could potentially have negative effects in the future. However, it has been know that employers and educational institutes utilize social media websites to learn more about their employees and students. For example, employers have been know to fire their employees for making derogatory remarks about their employer or place of employment which they have seen on social media websites. Some employers also take the time to include company policies relating to posting content about the employer on social media websites within their employee handbooks. Educational institutes have also been known to suspended and/or expel students that were caught as a result of pictures posted on social media websites of social gatherings taking place on school grounds that involved the distribution of alcohol, as well as other crimes, which were in violation of school policy and the law.

Likewise, insurance adjusters, prosecutors, and opposing parties utilize social media websites to gain information about their opposition and discover evidence that can be used against their opposition in a litigation matter. For example, insurance adjusters and prosecutors have used photographs and status updates posted on social media websites to undermine an opponent’s argument to prove fraud and liability. Some content posted on social networking websites can also be interpreted differently that what the user intended to convey.

Users should also take note that some content can be accessed and indexed by search engines even when users believe their content is set to private. Content can also remain on a search engine’s cache for the public to view even after it has been deleted. As a result, users should be wary of the content they post on social media websites.

In previous years, property owners’ premises liability for personal injuries sustained as a result of a slip-and-fall on snow and ice on their property significantly depended on whether the snow and ice accumulated naturally or unnaturally. If the snow and ice had accumulated naturally, and absent any existing defects on the premises, property owners would likely not be liable for personal injuries sustained on their property. The reasoning was that property owners had no obligation to remove or apply sand to the snow and ice if it accumulated naturally.

However, in its recent decision, the Massachusetts Supreme Judicial Court in Papadopoulos v. Target Corporation reversed nearly a decade of confusing and conflicting case law, and abolished the need to distinguish between a natural and unnatural accumulation of snow and ice when determining a property owner’s premises liability. In its decision, the Massachusetts Supreme Court stated in relevant part:

“We now will apply to hazard arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to ‘act as a reasonable person under all the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk’…Under this traditional premises liability standard, a fact finder will determine what snow and ice removal efforts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others…The snow removal reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal.”

As a result, property owners will now have to aggressively defend their actions and set forth specific facts to indicate that their actions were reasonable under the circumstances.

It is also important to note that cities and towns in the Commonwealth of Massachusetts are still subject to a general no-liability standard. Massachusetts General Laws, Chapter 84, Section 17 states in its entirety:

“A county, city or town shall not be liable for an injury or damage sustained upon a public way by reason of snow or ice thereon, if the place at which the injury or damage was sustained was at the time of the accident otherwise reasonably safe and convenient for travelers.”

Furthermore, some city and town ordinances set forth guidelines and time-frames for property owners to remove snow and ice from abutting public ways and to take measures to prevent snow and ice from falling from their roofs on people traveling on those ways.

The first snows have come and gone, but soon winter and its weather will be here to stay. Although the Massachusetts Supreme Judicial Court has provided us with some guidance in its decision, a novel question in the field of premises liability may still be in the wind: what constitutes a reasonable effort in removing snow and ice to make one’s property safe for travelers?

In Massachusetts, every auto-insurance policy must provide PIP benefits. PIP Benefits provide reimbursement for medical expenses and related expenses incurred like lost wages, up to a certain amount as a result of a motor-vehicle accident. PIP benefits are referred to as “no-fault” benefits, provided regardless of who is at fault, or more properly, legally responsible for the occurrence of the accident. In the context of auto-insurance, PIP benefits are available to the insured driver, any passenger in the insured’s vehicle, or any pedestrian struck by the insured’s vehicle though the driver’s insurance policy. PIP coverage may also be available through any insurance policy covering any other motor vehicle owned by such person injured or any member of his household. (Please note, PIP coverage is different than Bodily Injury coverage, which is provided by the motor vehicle insurance policy of other vehicle involved in the accident, and which is also the at-fault party).

The amount of PIP benefits available is determined by referring to the driver’s auto insurance policy limits, as well as if the injured party has health insurance. If the victim does not have health insurance or the health insurance company denies coverage, the insured’s PIP coverage will pay up to $8,000 in medical expenses and related expenses. In a case where the victim has health insurance, PIP benefits will pay for the first $2,000 in expenses.

HOWEVER, in Massachusetts, insurance companies are not required to provide PIP coverage in motor vehicle insurance policies covering motorcycles. Therefore, your motorcycle insurance policy will most likely NOT provide PIP coverage to you, the owner, rider or passenger of a motorcycle who suffers injuries as a result of a motorcycle accident. PIP benefits will only provide coverage to a pedestrian struck by a motorcycle.

Furthermore, no person who suffers injury while an operator or a passenger on a motorcycle shall be entitled to recover his damages for such injury through the so-called assigned claims plan or under the PIP coverage of any insurance policy covering any other motor vehicle owned by such person or any member of his household.

To determine your coverage, your motorcycle insurance policy summary will most likely state in clear language and bold print that the coverage provided does not include PIP for owners, operators or guests of motorcycles who suffer bodily injury while operating or riding as a guest upon such vehicles.

Therefore, it is imperative that motorcycle riders make sure they have sufficient health insurance to cover any cost of medical treatment and related expenses that they may incur for injuries sustain as a result of a motorcycle accident, especially where they are the at-fault party.

Moreover, a motorcycle operator should take caution when riding with a passenger, or offering to give someone a ride, as the operator may be personally liable for any injuries their passenger sustains as a result of a motor vehicle accident.

Citing References:

• Massachusetts General Laws, Chapter 90, Section 34A – 34M

• Code of Massachusetts Regulations, 211 CMR 3.00 titled “Motorcycle Insurance”