Ask Your Attorney

UNINSURED EMPLOYERS

Massachusetts law requires that every employer provide worker’s compensation coverage insurance for the benefit of their employees. Those employers who do not have worker’s compensation insurance (or qualify as a self-insurer) are referred to as “uninsured employers.”

Uninsured employers are at risk for facing significant financial exposure should an employee get injured on the job. The consequences can be harsh. The law provides for both civil and criminal penalties. In fact, state regulators can shut down a business for failing to have workers compensation coverage. Although Massachusetts has a Workers’ Compensation Trust Fund to protect injured workers, uninsured employers can still face a civil lawsuit from injured workers and will be prevented from raising certain legal defenses.

Whether you are an injured worker or an uninsured employer, hiring an experienced attorney familiar with workers’ compensation law is essential in order to protect your rights.

HURT AT WORK – CLAIM DENIED

If you were injured (or become ill) at work, you may be eligible for worker’s compensation benefits. Your benefits will depend on the nature of the injury and resulting disability from work. In Massachusetts, injured workers are eligible to receive benefits, to include medical expenses, based upon the degree of incapacity, typically defined as total incapacity or partial incapacity. Injured workers are often confronted with the real possibility that they may not be able to return to their former occupation and may have a lasting impairment – or a permanent and total incapacity from gainful employment.

When you are injured on the job, it’s in your best interest to have an attorney on your side who fully understands the laws pertaining to worker’s compensation. We have a long history of successfully handing workers’ comp cases and we will put our experience to work for you.

INJURED ON THE JOB?

Workers’ compensation claims are often complex and are based upon a variety of factors. These include the nature of the injury, the extent of the disability, and the injured worker’s ability to return to his or her job.

If you are disabled from work and have been denied workers’ compensation benefits, put Mort Shuman’s expert legal team to work for you. Injured workers are entitled to payment of their lost wages and necessary medical expenses. In some instances, vocational training is also available. The insurance company is not on your side.

Attorney Shuman has been successfully handling workers’ compensation claims for over 5 decades.

UNFRIENDLY DOGS

Owners are legally responsible for the behavior of their pets. In Massachusetts, we have a strict liability statute. Therefore, in most dog-bite cases, the dog’s owner (or keeper) can be held responsible for any harm caused by a dog attack. This includes compensation for pain and suffering, medical bills, and lost wages.

If you have been the victim of a dog bite or other animal attack, Mort Shuman will fight for your legal rights.

RISKY BUSINESS – BEWARE OF THE WOLF

If you have been injured in a motor vehicle, slip and fall or work related accident, don’t let the insurance company victimize you for a second time. An insurance claim adjuster may act friendly and treat you well. They may actually let you believe they are on your side and offer you a cash settlement; one that is in their best interests – not yours. It can take several months, even longer, to properly document and evaluate a personal injury claim. A proper settlement takes into consideration the full nature and extent of one’s injuries and potential damages. Some injuries can take a long time to heal and their consequences may not be known for quite a while. We have all heard the expression, “Beware of the wolf in sheep’s clothing.”

Before accepting any settlement offers, you should consult with an experienced personal injury lawyer. Handling a case on your own may actually cost you in the long run. The Law Offices of Morton J. Shuman has a proven track record of successfully handling personal injury claims.

FALLING EXPECTATIONS

Accidents happen. Tripping and falling, slipping and falling, everyone is susceptible, especially the elderly. When an accident occurs, it is important to determine if someone might be legally responsible. Property owners, both commercial and residential, are generally responsible for unsafe conditions. In other words, they have an obligation to maintain their property in a reasonable safe condition. Similarly, we all also have an obligation to avoid accidents by carefully watching where we are walking and paying attention to our surroundings. Each case depends on whether or not the property owner acted with sufficient care to avoid an accident, as well as whether the injured person also acted in a careful manner. These are factors that a lawyer can help slip-and-fall victims clarify when assessing the merits of the case.

If you have been injured as a result of a slip and fall accident that is due to the negligence of a property owner, you may be entitled to compensation. Attorney Morton J. Shuman and his staff have the knowledge and experience to help determine whether you have a viable case.

SLIP AND FALL

If you have been injured as the result of slipping or falling on someone else’s property (including a business establishment), you should obtain legal representation prior to filing an insurance claim. Even if you decide not to file a claim, you should at least consult with an attorney experienced in the law of premises liability in order to learn your rights.

Over the past decade, the law in Massachusetts has undergone a number of changes that have helped to eliminate several obstacles to bringing a successful claim.

PRODUCT LIABILITY

Dangerous and defective products cause thousands of injuries every year. These include consumer goods running the gamut from children’s toys to hygiene products, electronics, and vehicles. Unsafe tools used in the trades and defective equipment utilized in the manufacturing process can also harm workers.

If you have been injured due to a defective product, Attorney Morton J. Shuman and his team will get you results.

ONE OR THE OTHER, OR BOTH

Generally speaking, criminal law is separate from civil law. While the former is designed to maintain peace and security among the general public, and those guilty of violating criminal laws are punished by society, the latter regulates relationships between individuals, families, and corporations, and successful legal action usually results in monetary remedies. Yet, there are instances in which criminal and civil law intersect. For instance, those charged with assault and battery will likely be criminally charged. At the same time, attacking an individual may be a “tort” (wrongdoing) that may ultimately involve payment of personal injury damages to the victim. Even if an injurious action involves criminal arrest, those suffering injury due to another’s wrongdoing should consult with an attorney.

HINT: While prosecutors must prove their cases “beyond a reasonable doubt,” lawyers for plaintiffs in civil cases need only show by a “preponderance of the evidence” (anything greater than 50 percent) that defendants are responsible.

RISKY BUSINESS

You may have heard of the many injuries that occur in professional baseball parks as a result of foul balls and flying bats. Each of the people injured by these inherent risks in a sense agrees to waive liability by accepting a ticket that outlines the dangers of attending a game. Waivers of liability are quite common, especially with respect to recreational activities, because some sports have been found to be inherently dangerous. In such instances, participants in the sport are said to have voluntarily waived their right to recover damages in the event that they were to suffer personal injury. However, the validity and binding effects of a release or waiver of liability may be challenged when circumstances warrant.

HINT: Waiver law is based on state law.

BITING COMMENTARY

Approximately 4.5 million dog bites occur in this country annually, according to the Centers for Disease Control and Prevention. More than half the states have “dog-bite statutes” that hold dog owners liable if their canines cause injury whether or not the dog owners had reason to believe their dogs were dangerous. Most laws cover all kinds of dog-inflicted injuries, not solely dog bites. In other states, the “one-bite rule” makes dog owners legally responsible for an injury if they knew the dog was likely to cause that type of injury. Bite victims must prove that the owner knew the dog was dangerous. If the injury occurred because the owner was negligent in controlling the dog, the owner is liable.

HINT: The “one-bite rule,” which is relevant the first time a canine attacks a human being, shields the owner of a domestic animal from civil liability to the first victim of each of his or her animals.
OBVIOUSLY

In order for plaintiffs to win their negligence cases, they must prove that the defendant’s negligence caused their injuries. In some cases, the attempt to establish this link involves the presentation of “circumstantial” evidence. On the other hand, some negligence cases reveal the defendant’s negligence to be so inextricably linked to the plaintiff’s injuries that it is obvious to all. In such cases, the Latin phrase “res ipsa loquitur” (“the thing speaks for itself”) applies. That is, the court can assume that an accident occurred due to someone other than the plaintiff’s own negligence, the defendant owed the plaintiff a “duty of care,” and the defendant “breached” that duty by acting negligently or carelessly.

HINT: The “res ipsa loquitur” originally stems from a case in which a plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse.

PRODUCT LIABILITY

Strict liability is a special set of rules that allows people who are injured by defective or unexpectedly dangerous products to win compensation from the manufacturer or seller of the product. Strict liability applies whether or not the maker or seller of the product was actually negligent. The ruling is that those who have been injured by a consumer product are entitled to compensation from the manufacturer or from the business that sold or rented the product, whether or not they sold or rented it directly to the consumer. Strict liability operates against a non-manufacturer who rented or sold a product only if it is in the business of regularly renting or selling those particular kinds of products.

HINT: Strict liability wrongs do not depend on the degree of carefulness by the defendant.

ASSIGNING LIABILITY

In some cases, there is more to an accident than an unfortunate set of circumstances. Many cases of bodily injury and property damage result from the negligence or recklessness of one of the parties involved. When the person responsible fails to take full and immediate responsibility for his or her actions, it behooves the victim to turn to a lawyer to make sure that he or she recovers all that the law allows. While this course of action may not be applicable in cases of minor injury, it is certainly so in cases where the victim suffers a real injury or major property damage, or incurs other meaningful expenses. A consultation with an attorney is then appropriate.

P.S. Never admit to guilt at the scene of an accident.​

FOR WHAT IT’S WORTH

If you are injured in an accident, you must be compensated by the liable party for such things as medical expenses, lost income, pain and suffering, permanent disability, emotional damages, damaged property, etc. To that end, the insurance adjuster for the liable party adds up the total medical expenses (medical special damages, or “specials”) and uses that figure to calculate how much to compensate you for pain, suffering, and other non-monetary losses (“general” damages). The special damages are multiplied by a factor of 1.5 or 2 when the injuries are relatively minor, and up to 5 or 10 in serious cases. That total is then added to lost income, and the number forms the basis from which negotiations begin.

HINT: Calculating how much your injuries are worth is equal parts science and experience.

COMING TO A RESOLUTION

Civil lawsuits that arise from accidents and injuries are often resolved early in the litigation process through a negotiated settlement between the plaintiff and defendant, when parties agree to settle the case. This resolution between opposing parties can take place from the time the lawsuit is filed up to when the case has been tried but before the jury reaches a verdict. A settlement consists of an agreement by the plaintiff to give up the right to pursue any further legal action in connection with the accident or injury in return for monetary compensation from the defendant or insurance company. The final decision of whether or not to accept a settlement offer rests solely with the plaintiff.

HINT: The ability of a plaintiff to successfully negotiate a settlement to a civil case involving accident or injury is directly related to the strength of his or her case.

A SORRY SITUATION

Lawyers often give their clients advice not to admit to guilt. A recent study by a law professor at the University of Missouri indicates, however, that when defendants admit to their guilt with full apologies, they are more likely to settle their lawsuits quickly. This was the finding of a study involving nearly 150 people between ages twenty-one and seventy. Each was presented with the hypothetical situation in which the subject had been injured in a collision with a bicyclist and had been offered a settlement that covered only his or her medical costs. Without an apology, only 52 percent accepted the limited settlement offer, but the percentage jumped to 73 percent when a full apology was presented.

HINT: The lesson provided to potential plaintiffs by the study mentioned above is that they should consult with a lawyer before weighing any settlement offers.

DAMAGES

Those who suffer physical harm as the result of negligent actions by others are legally required to be restored to their pre-injury condition. Both economic (out-of-pocket) and non-economic (loss of physical and mental well-being) losses are restored through monetary compensation. The term “general damages” refers to such non-economic losses as “pain and suffering.” The value placed upon such loss is largely left to the discretion of the jury. “Special damages,” on the other hand, are damages awarded for such compensable harms as medical expenses and lost wages. These can easily be quantified with the aid of bills, pay stubs, etc. Thus, it is important for plaintiffs to keep a full accounting of their losses so that they might receive compensation.

​HINT: Nominal damages may be awarded to plaintiffs if they can establish the defendants’ liability but are unable to prove any actual damages.

ABUSING THE PROCESS

When a person misuses the judicial process in order to achieve an improper goal, this misuse of the court system is a tort that is referred to as “abuse of process.” This is not to be confused with the tort known as “malicious prosecution” that is predicated on the plaintiff having no justification for filing a lawsuit. In abuse of process, the lawsuit is justified, but one party uses the court’s power to achieve an impermissible result. For example, someone may file a lawsuit, then start harassing the defendant with court motions and procedures in an attempt to force the defendant into settling the case rather than using court motions and procedures for the purposes they are intended to achieve.

HINT: A tort is a “wrongdoing.”

SUING FOR MALPRACTICE

When a patient has reason to believe that he or she was harmed by a doctor or other medical professional who failed to competently perform his or her medical duties, there may be grounds for filing a medical malpractice lawsuit. To prove such a case, the patient must first establish that a doctor-patient relationship existed. In order to hold the physician liable for medical malpractice, the patient must also show that the doctor deviated from the appropriate medical standard of care. In addition, the patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Finally, the patient must show that the injury caused by the doctor’s negligence led to specific damages.

HINT: In accordance with the “duty of informed consent,” physicians have a duty to warn patients of known risks of a procedure or course of treatment.

THIRD-PARTY LAWSUIT

If you were to be injured on the job, workers’ compensation laws are designed to handle your claims. These laws are strict liability, which means that you need not establish fault and/or negligence on the part of your employer in order to collect benefits, as long as the injury/illness was incurred in the course of employment. Because workers’ compensation law imposes strict liability on employers, it is the exclusive remedy for an employee’s injuries/illnesses arising out of the course of employment. However, if a third party (such as a delivery service) were to be responsible for a condition that caused you to slip, you might have a claim against that company. An experienced attorney can help you pursue a third-party lawsuit.

HINT: If a delivery person were to be struck and seriously injured by a drunk driver, on his work route, the delivery person is entitled to collect worker’s compensation benefits and pursue a personal injury claim against the drunk driver and his insurance company.

CONTRIBUTORY NEGLIGENCE

Would-be plaintiffs in personal injury cases who point to the negligence of others as the cause of their injury might want to examine their own behavior before they initiate legal action. The notion of liability revolves around the simple fact that most accidents happen because someone was careless or negligent. To this carelessness, the law applies the basic rule that the person who is less careful than the other involved in an accident must pay damages. However, even careless individuals may not necessarily be liable to someone injured by their carelessness. The concept of “contributory negligence,” which refers to conduct that creates an unreasonable risk to oneself, may be used as a defense to a negligence claim.

HINT: “Comparative negligence approach” weighs each party’s negligence when determining damages.

WHAT IS YOUR CASE WORTH?

If you have suffered injury due to the (in)action(s) of someone else, it is in your best interests to rebuff any offer to settle the claim before consulting with a lawyer. This advice is predicated on the fact that you may not be aware of the full extent of your injuries or what therapy you might eventually need. Nor are you likely to fully appreciate the long-term impact of your injury. You may also be compensated for the “pain and suffering” that you experience as a result of your injury. Moreover, you cannot know with any certainty how much income you might stand to lose. It’s never a good idea to begin negotiating a settlement without knowing all the facts.

HINT: The extent to which a person is at fault is the primary factor determining how much an insurance company is willing to pay the injured party.

HOLDING CHILDREN TO A REASONABLE STANDARD

When a child commits a negligent act that leads to significant injury or property damage, some may wonder if the child can be held to the same legal standard that applies to adults. When differentiating an accident from a negligent act, adults are held to a “standard of care” that is required in a given situation. That is, if a person acts in a manner other than how a “reasonable person” would act in the same situation, the individual would be held liable for any resultant injuries. However, children are not expected to act as a reasonable adult would act. Instead, a child’s actions are compared with the conduct of other children of the same age, experience, and intelligence. In some jurisdictions, however, courts apply the adult standard of care to children who engage in certain adult activities, such as snowmobiling.

HINT: The exception to this altered duty of care for minors involves situations in which the child is carrying out an adult activity, such as driving a vehicle.

DEFENDANT’S RESPONSE

Have you ever asked yourself what you would do if you were to find yourself on the receiving end of a civil complaint? If not, you should know that defendants in civil suits typically have no more than 20 days after receiving the complaint to file a response. Unless the plaintiff’s lawyer provides extra time to respond (“extension of time”), defendants should proceed quickly. Failure to file a response within the allotted time can result in serious consequences such as having the court deem the plaintiff as winner by default. The simplest response to a complaint is called an “answer,” which denies the most important factual allegations and legal theories of the complaint.

HINT: In their answers to complaints, defendants in civil cases must respond to every claim the plaintiff makes.

MAKING YOUR CLAIM

When evaluating a workers’ compensation claim, it is important to understand that, in order for a work injury to be compensable, it must “arise out of and in the course of employment.” In order to fully justify a claim and avoid misinterpretation of the circumstances surrounding it, it is best that an injured employee notify his or her employer within a prescribed time after the injury or the onset of the initial symptoms. This notification should be made in writing on a special form. In the event the employer refuses to provide benefits, it is in the worker’s best interests to consult with a lawyer, who can then request a hearing before the state board or commission of workers’ compensation.

HINT: Employers are likely to question workers’ compensation claims for injuries that they perceive to have occurred outside the parameters of employment, such as on work breaks, traveling to and from work, and performing personal errands.

INJURIOUS FALLS

While we may find the classic banana-peel pratfall performed on stage to be comical, there’s nothing funny about a real-life “slip-and-fall” accident. These mishaps can be more than just minor incidents for those who land on hard surfaces and suffer fractures, sprains, and strains. Once these injuries are medically addressed, a consultation with an attorney may be warranted to explore the legal concept of “premises liability.” This legal theory holds property owners liable for accidents and injuries that occur on that property. The fundamental question surrounding a slip-and-fall accident involves whether the conditions were unreasonably dangerous. It may also have to be determined what duty or responsibility a property owner owes to another on the basis of that person’s status.

HINT: Under premises liability law, it is necessary to determine if the plaintiff was an “invitee,” a “licensee,” or a “trespasser.”

BLOOD FROM A STONE

One of the most important aspects to be discussed with an attorney when contemplating filing a civil lawsuit is the matter of collection. Even if a plaintiff’s case ticks all the boxes (meeting the standards of proving that a defendant had a duty to the plaintiff, that the defendant breached that duty with regard to the plaintiff, that the defendant caused the plaintiff’s injury, and that the injury can be remedied by money damages), the question still remains as to whether the plaintiff can collect if he or she wins. While most reputable individuals and businesses will pay any damages they owe, those that are insolvent, go bankrupt, or disappear will be of no value to a winning plaintiff.

HINT: The court will not collect money from defendants who owe damages to plaintiffs.

PRIVILEGED INFORMATION

In order for attorneys to represent their clients to the best of their abilities, it is essential that those in need of legal assistance be absolutely truthful and forthcoming. If a client withholds information from his or her lawyer or misrepresents facts, the chances of achieving a successful outcome in the courtroom are greatly diminished. With this in mind, the “attorney-client privilege” rule helps to encourage clients to candidly share information with their lawyers, thereby enabling their lawyers to provide the most effective representation. Under the rule, which preserves the confidentiality of communications between lawyers and clients, lawyers may not divulge their clients’ secrets. Nor may others force them to reveal privileged information.

HINT: Attorney-client privilege remains in effect even after the attorney-client relationship ends and even after the client dies.

NOT SO CLEAR-CUT CASE

At the scene of a vehicular crash, it may seem obvious to an injured party that the other driver was at fault, but the other driver’s insurance company may not see things quite the same way. The insurance company is likely to firmly deny the liability of the insured because it stands to lose the most. By saying that the policyholder was not to blame for the accident, the insurance company may hope that the accident victim takes its word at face value or will drop his or her claim in frustration. At this point, those harmed as the result of vehicular accidents should realize that they need an experienced lawyer on their side to evaluate their cases.

HINT: It is never a good idea for those involved in crashes with other vehicles to talk about who was at fault. Instead, the police should be summoned to write up a report of the accident.

ENOUGH BLAME TO GO AROUND

In exchange for workers’ compensation, beneficiaries agree to give up their right to sue their employers for the tort of negligence. However, this compensation bargain does not prevent injured workers from filing a liability insurance claim against anyone else outside the business who may have been even partly responsible for the accident. In the event that a worker files both a workers’ compensation claim and a private liability insurance claim, the workers’ compensation system automatically has a lien against any compensation recovered from the liable outside person or business (known as the “third party”). This means that any damages recovered from the third party must be repaid to workers’ compensation for money it paid for medical bills or lost wages.

HINT: Prior to the implementation of workers’ compensation, injured workers had to prove that employers were negligent in order to gain any compensation for lost wages and medical bills.

DETERMINING CAUSE OF DEATH

When the cause of a person’s death is unknown or suspicious, the family of the deceased may want to request an “autopsy” in an effort to help establish the cause of death. An autopsy, which means “see for yourself,” is a medical procedure that involves a thorough examination of the corpse by a pathologist. While the prospect of having this procedure performed on the deceased may be abhorrent to surviving family members, it may prove beneficial to them and society. Even if the autopsy is not required by law as part of a criminal investigation, the deceased’s family may order one performed as part of an effort to establish a direct line of causation in a wrongful death lawsuit.

​HINT: An autopsy can often prove helpful in answering the outstanding questions about how a defendant’s negligence caused the death (or failed to prevent it), depending on the circumstances.

WHAT IS YOUR CASE WORTH?

If you have suffered injury due to the (in)action(s) of someone else, it is in your best interests to rebuff any offer to settle the claim before consulting with a lawyer. This advice is predicated on the fact that you may not be aware of the full extent of your injuries or what therapy you might eventually need. Nor are you likely to fully appreciate the long-term impact of your injury. You may also be compensated for the “pain and suffering” that you experience as a result of your injury. Moreover, you cannot know with any certainty how much income you might stand to lose. It’s never a good idea to begin negotiating a settlement without knowing all the facts.

HINT: The extent to which a person is at fault is the primary factor determining how much an insurance company is willing to pay the injured party.

ACTING REASONABLY

When those who are injured as a result of someone else’s actions go to court, they must prove that the person they deem to be responsible for their injuries failed to act with “reasonable care.” That is, each of us has a legal responsibility to act with a judicious amount of care in order to avoid injuring others. This concept is based on the “reasonable person” standard, which a judge or jury must apply when deciding what a “reasonable prudent person” would have done by way of exercising “ordinary care” under the same circumstances. A person who fails to use reasonable care under the circumstances, either by action or inaction, is considered to be negligent.

​HINT: In a personal injury lawsuit, the first step toward proving that another person was negligent involves establishing that he or she had a “duty of care” (the responsibility one person has to avoid causing harm to another) in the situation that gave rise to the injury.

INSULT TO INJURY?

It’s difficult enough to be forced out of work by a job-related injury without facing a challenge to a workers’ compensation claim. To help the process along and better ensure the likelihood of collecting the benefits due them, those injured on the job should make sure that their employers have filed a workers’ compensation report and given the injured worker a copy. In anticipation of a possible denial of claims that leads to an appeal, injured workers should also have copies of everything in their workers’ compensation files and their medical records. All medical reports should be answered completely and include how the injury is related to employment, a full diagnosis, the course of treatment, and any permanent/partial disability rating.

HINT: Workers filing workers’ compensation claims should save “notice of decision” letters and note the name of the judge and how many days they have to appeal.

WHOM ARE YOU TRYING TO FOOL?

Although the old adage “A man who is his own lawyer has a fool for his client” needs little explanation, it’s helpful to point out that the law allows an individual to represent him- or herself in most judicial proceedings. This is called acting “pro se” (Latin meaning “for oneself”). However, as much as many books and websites may seem to distill procedures revolving around wills, divorce, and other legal matters down to a simple, easy-to-follow formula, legal rules can be complex and arcane. All it takes is a single oversight or mistake by a person who is more interested in saving money than getting a desired legal outcome for an important legal matter to go wrong.

​HINT: In most civil cases, a lawyer will represent a plaintiff on a “contingent fee” basis, meaning the attorney agrees to get paid by taking a percentage of the award as a fee for services. If the client loses, the attorney receives nothing.

INTENTIONAL OR NEGLIGENT BEHAVIOR?

When someone is injured as a consequence of someone else’s behavior, it is important that the would-be plaintiff carefully examine the facts with an attorney before filing a civil lawsuit. Because liability for intentional torts (wrongdoings) is not covered by insurance policies, it must be determined whether or not the tort was intentional. If the defendant intentionally inflicted harm that caused injury, the damages would come from the defendant’s own pocket if he or she were to be found guilty. If the court finds that the defendant’s carelessness or negligence was responsible for the plaintiff’s injuries, the defendant’s insurance policy would be more likely to cover the damages. The deeper the pockets, the higher the likelihood of payment.

HINT: Many insurance companies specifically exclude intentional torts from their liability insurance policies because the possibility of being indemnified (compensated) for paying for damages is close to zero.

PURSUING A THIRD-PARTY CLAIM

Those injured on the job by someone other than their employer may be entitled to bring a “third-party claim” in addition to receiving worker’s compensation benefits. That is to say that an injured worker can pursue both cases simultaneously. A third-party claim is a lawsuit filed in civil court, rather than before the workers’ compensation commission. The filing of a third-party action does not replace, or alter, the benefits under workers’ compensation. Moreover, the compensation available in third-party civil cases also differs in amount and kind from the limited statutory benefits under the workers’ compensation system, in that the injured worker can recover compensation for pain and suffering and future lost wages.

HINT: A successful third-party action can greatly increase the monetary recovery for a person injured on the job.

A TORT IS NOT NECESSARILY A PIECE OF CAKE

There are many kinds of personal injury cases, which also go by the name “tort” cases (the French word for “wrong”). Staying with this terminology, the person doing the wrong is known as the “tortfeasor,” or defendant. In injury cases based on tortfeasor negligence, the defendant is charged with failing to exercise the care for the safety of another that a prudent person would ordinarily use. There are other types of injury cases that involve more than mere negligence. These include an injury that was caused intentionally, such as an assault. In any injury case, the common thread is the concept of fault, which must be proven before the injured party can obtain a legal remedy or judgment.

HINT: Plaintiffs in personal injury cases must prove “proximate cause,” which shows that the defendant’s negligent behavior was directly related to the plaintiff’s injuries.

PAIN AND SUFFERING

Compensation paid on a personal injury claim generally includes payment for actual medical bills and lost wages, as well as a certain amount for “pain and suffering.” This category not only includes the physical pain and discomfort that the claimant has currently endured, but also the damaging effects that the injured party is likely to suffer in the future as a consequence of the defendant’s negligence. In addition, the claimant may seek compensation for the mental pain and suffering (including anger, depression, loss of appetite, lack of energy, sexual dysfunction, mood swings, and/or sleep disturbances) that has been experienced as a result of the injury, including the mental pain and suffering that is likely to be endured into the future.

HINT: Because pain and suffering cannot be as readily quantified as medical bills and lost wages, there may be a good deal of leeway when it comes to deciding on an amount that would provide adequate compensation.

THE CONSEQUENCES OF DEFIANCE

Anyone who is openly disobedient or discourteous or insults the dignity or authority of the court is said to be in “contempt of court.” When a judge observes behavior that is considered detrimental to the court’s ability to administer justice, he or she typically has a good deal of discretion in deciding who will be punished and the type of contempt. “Civil contempt” usually involves someone’s failure to comply with a court order, in which case the judge is likely to use sanctions that force the non-compliant party to fulfill the court order that had previously been ignored. “Criminal contempt” charges are punitive, meaning that they are intended to prevent future acts of contempt.

HINT: Civil contempt sanctions are largely imposed to re-establish the rights of the party who was wronged by the failure to satisfy the court’s order or to move an underlying proceeding along.

THIRD-PARTY LIABILITY

Generally speaking, state-mandated workers’ compensation insurance is designed to compensate employees for work-related injuries regardless of who was at fault for the injury. Because workers’ comp benefits act as a type of insurance, workers are precluded from suing their employers for the injuries covered. However, this compensation bargain does not prevent injured employees from filing a liability insurance claim against anyone else outside the business who may have been even partly responsible for the accident. If it should occur that an employee were to file both a workers’ compensation claim and a private liability insurance claim, the workers’ compensation system would automatically have a lien against any compensation recovered from the liable “third party.”

HINT: Workers’ comp does not allow injured employees to sue their employers, with notable exceptions: when the employer does not carry workers’ comp insurance, when the injury results from the employer’s gross negligence, or in cases of employer assault.

WHO’S TAKING THE FALL FOR YOUR INJURIES?

If you fell and hurt yourself on a neighbor’s property as a result of his or her negligence, would you sue? Some people would shrug off their injuries, not wanting to disrupt cordial neighborly relations. However, not wanting to “rock the boat” may leave injured people drowning in medical bills and lost wages. The fact is that most people do not know the full extent of their injuries or how long they might last. Nor are they aware of how expensive medical treatment or the recuperation process might be. If you are seriously hurt due to the negligence of someone else, you are entitled to compensation for your injuries. That is why property owners purchase homeowners’ insurance with liability coverage.

HINT: Without a lawyer to represent your legal interests, you would be negotiating in the blind with an experienced insurance agent if you were to entertain and accept an immediate settlement offer for your injuries.

BEYOND RUDE

The rudeness that seems to be so much in evidence in politics, in social media, and on TV seems to be spilling over into many individuals’ personal lives. Some of this offensive conduct may be so reprehensible that it causes emotional distress in those who are on the receiving end of bullying and tormenting conduct. Fortunately, there is a remedy available to those who are victims of the “intentional infliction of emotional distress.” As a general matter, if the offensive conduct is extreme or outrageous; intentionally or recklessly causes emotional harm; and results in severe emotional (and possible bodily harm), the person acting in the extreme and outrageous manner is liable for the resulting serious emotional distress and bodily harm.

HINT: Parents of children who are subjected to cruel online bullying may be able to take their cases to court.

IT DOES NOT PAY TO WAIT

Those considering filing a civil lawsuit in hopes of holding someone liable for the loss or harm inflicted upon them should discuss the issue with an attorney as soon as they are able. All states have “statutes of limitations” that impose a time limit within which affected parties must take action to enforce their rights or seek redress after damage or injury. These limitation periods, which vary in accordance with the type of case, are imposed to encourage possible legal action before facts fade from memory, people move on, and evidence gets lost. With this in mind, individuals injured by others have every reason to seek an attorney’s counsel before the statute of limitations on their case runs out.

HINT: There are criminal matters (including murder) for which there is no statute of limitation.

A MEASURED APPROACH

A defendant who is found liable in a personal injury case will be directed to pay damages, which are usually measured in terms of monetary compensation. However, the very nature of pain and suffering makes it difficult to measure in a dollar amount. This broad concept includes both the physical pain associated with the injury as well as the recovery for mental suffering associated with bodily disfigurement. On top of these elements is the loss of enjoyment in relation to life. In the case of an avid recreational athlete, for instance, the loss of a limb would be an exceedingly significant loss. An experienced attorney must put a price on such a loss and secure it for his or her client.

HINT: Victims of negligence and wrongdoing are advised to keep a journal in which they record their personal thoughts about the tribulations resulting from their injuries.

LIVING VICARIOUSLY

Even though a person may have not caused an injury, the legal doctrine of “vicarious liability” may assign him or her liability for an injury to a person on the basis of his or her legal relationship to the person who did cause the injury. For example, if an employee were to cause injury to someone as a consequence of acting negligently, the responsibility could be passed to the employer. For this to happen, the negligent act must have been committed during the course of employment. A parent could also be held liable for the negligent act of a child. Both of these cases are concerned with the “law of agency,” which makes one party the legal agent of another.

HINT: The legal doctrine of vicarious liability also goes by the name “imputed negligence.”

LET’S NOT GET PERSONAL

If you were to suffer harm at the home of a friend that left you seriously injured, you might be leery of suing for damages because you might feel that doing so would have a financial impact on your friend and your relationship. However, there is no need to have such misgivings. Your friend likely has purchased homeowner’s insurance that provides coverage for bodily injury and property damage sustained by others for which the homeowner or covered residents in their household are legally responsible. Up to the policy limits, the policy will also cover lawsuits that may result from the accident. At this point, recovering damages related to the injury is more of a business matter than a personal one.

P.S. Whenever you sustain injury due to an accident, resist the urge to make any determinations or declarations about your health until you have had your injuries assessed by a medical professional.

PERSONAL JURISDICTION

When deciding where a case will be heard, “subject matter jurisdiction” is quite definitive in referencing whether a court can hear a case on a particular matter. “Personal jurisdiction,” which refers to whether a court has power over the plaintiff, has a broader interpretation. An evaluation must be made concerning whether the courts in that state have a vested interest in the person being served and also have the right to make binding decisions over that person. Simply being physically present, having a domicile/business in the state, and having the consent of the person being served are fairly straightforward criteria. A court can also have personal jurisdiction if the person has “minimum contacts” with a state where a court resides.

P.S. “Minimum contacts” is a fairly general term that calls for a court to decide that the plaintiff had enough interaction with a state to justify having personal jurisdiction over him or her.

MEDICAL MALPRACTICE

If a patient is harmed due to a medical practitioner’s negligence, the patient may sue for medical malpractice. Fortunately, hospitals, doctors, and nurses only make mistakes in a small number of cases. However, there are some instances in which medical malpractice claims are more common. Perhaps the largest number of medical malpractice complaints revolve around misdiagnosis or delayed diagnosis, which may cause the patient to miss treatment opportunities. In order to prove such claims, it’s important to compare the (in)actions of the treating doctor with how other competent doctors (within the same specialty) would have handled the case. If a reasonably skilled and competent physician would not have made a similar error, the treating doctor may be liable for malpractice.

HINT: A 2016 study by Johns Hopkins patient safety experts calculated that more than 250,000 deaths per year were due to medical error in the United States, making it the third leading cause of death in the country.

COLLECTING A MONEY JUDGMENT

Once plaintiffs win their civil cases, they can expect to receive payment of a money judgment forthwith. If not, the plaintiff should send a copy of the judgment to the defendant with a letter demanding payment. If the judgment amount is considerable, the plaintiff may want to consider allowing the defendant to pay in installments. If the defendant refuses to pay, the plaintiff may return to court and request a court order of execution entitling a law enforcement official to attach property belonging to the defendant or to garnish wages. This action is facilitated by the fact that the court requires that defendants fill out a form listing all of their assets at the time the judgment is entered against them.

HINT: Although the court will try to help plaintiffs collect the money judgments owed them, it cannot guarantee payment.

DEGREES OF NEGLIGENCE

When it comes to assessing the injury inflicted by one person upon another, it is helpful to know the differences between “negligence”; “gross negligence”; and “willful, wanton, reckless conduct” on behalf of the person being held liable. Ordinary negligence involves holding a person accountable to the “reasonable person” standard, which requires conduct that is in line with what a reasonably careful person would (or would not) do under similar circumstances. Gross negligence, which goes a step further, has been described as a heedless and palpable violation of legal duty to the rights of others. Willful, wanton, reckless conduct involves a knowing or intentional disregard of an unreasonable risk associated with a high degree of probability of causing substantial harm.

HINT: The plaintiff’s attorney’s ability to hold the defendant accountable to a different level of negligence may result in a higher damages award.

RIGHTING A WRONG

When a person causes someone else’s death through negligence or intentional harm, a “wrongful death” lawsuit may be brought against the responsible party. This claim is usually filed by a representative of the deceased’s estate on behalf of surviving family members and other affected parties. Proving such a claim involves the plaintiffs meeting the same burden of proof the victim would have had to meet had the victim lived. If the suit proves to be successful, the plaintiffs may receive compensation for the deceased person’s pre-death pain and suffering, the medical costs that the deceased victim incurred as a result of the injury prior to death, funeral and burial costs, loss of the deceased person’s expected income, and other losses.

Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted “pecuniary injuries” as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. When you have a personal injury case, you want expert legal representation and advice. In the areas around Natick, Marlboro and Milford, MA, turn to MORTON J. SHUMAN, ATTORNEY AT LAW. For more information, please call 508-879-4040. We are located at 855 Worcester Rd. (Rt. 9). We Get Results!
HINT: A spouse may bring a wrongful death action on behalf of his or her deceased spouse, and parents of minors may bring a wrongful death action if one of their children is killed. Minors can collect compensation for the death of their parents.