The law of Personal Injury

Q. How does the court go about putting a price tag on damages in wrongful-death cases? Is a case involving the death of a child worth more than a case involving an adult?

A. In Massachusetts, damages for wrongful death fall into two categories: “pain and suffering” and “loss of consortium.” Damages for pain and suffering are intended to compensate the deceased for the pain that they suffered, leading up to the time of their death, insofar as it is causally related to the negligence. Damages for loss of consortium, on the other hand, are intended to compensate the next of kin for the loss of their relationship with the deceased. Although next of kin are not entitled to recover for grief and anguish, they are entitled to recover for the loss of the love, companionship, guidance and support that would have been provided by the deceased. Unlike some other parts of the country, where attorneys can suggest a dollar value to the jury, in Massachusetts jurors assign the dollar value based on the facts that they hear and their personal experiences. Coupling varied juror backgrounds with an infinitely possible combination of facts make generalizations as to the value of a child or adult impossible.

Q. A tenant was injured when he slipped on his stairs and grabbed the railing, which came off in his hand. Can he sue his landlord for having a dangerous railing?

A. A landlord has an obligation to maintain the property in a reasonably safe condition. Landlords are not automatically responsible for broken or loose items, but they need to take reasonable steps to protect tenants, such as inspecting the condition of the property on a regular basis and making repairs when they learn that something is amiss. If the tenant had previously complained that the railing was loose, that would help him show that the landlord had an obligation to fix it. It would also be relevant whether the premises violated any building codes — although the fact that a landlord complied with building codes doesn’t necessarily mean that he can’t be held liable.

Q. I left a bar and was attacked in the parking lot by two men who had been fighting inside over a Yankees-Red Sox game on TV. Can I file a claim against the bar?

A. The owner of a bar or restaurant may, under some circumstances, be responsible for injuries caused by the criminal conduct of a third person — for example, if the owner contributed to the conduct by serving the assailant too many drinks. Also, if a bar has a history of fights or other violent crimes so that the owner is on notice that altercations like this might happen, the owner might have an obligation to try to prevent such occurrences by hiring a “bouncer” or other security personnel, installing lights in the parking lot or taking other safety measures.

Q. A rider on the MBTA was injured when his foot got caught in the door. Where the MBTA is a public agency, what limitations does the law place on suing it? Are there limits on how much the MBTA can be sued for?

A. The MBTA is an agency with a legal status that places it somewhere between a public and private entity. As an illustration, although damages caused by a public agency are often capped, the MBTA has been specifically excluded from this protection. Thus, the MBTA may be held liable for the full amount of damages awarded. Also, unlike the standard three-year deadline for bringing claims against most private entities, the deadline for bringing a claim against the MBTA is only two years. So, if you intend to make a claim against the MBTA, you must do so within two years of the incident.

Q. A 34-year-old woman was involved in a car accident that was clearly the fault of the other driver. Although she wasn’t badly injured, she suffered permanent scarring on her face as a result of the collision. Can she recover damages? What significance would the court place on the fact that the injuries were to her face as opposed to somewhere else on her body?

A. To make a claim for damages in Massachusetts, your injury must satisfy the tort-damage threshold. Some examples of injuries that satisfy the threshold for tort damage are when medical bills exceed $2,000, when a victim suffers serious injury to his eye or hearing, and/or when a victim suffers a broken bone or permanent scarring. The significance of facial scarring is that it is often more valuable from a damages perspective than if the injury were on another part of the victim’s body.

Source: Michael J. Harris practices at Crowe & Mulvey in Boston. He can be contacted at MHarris@CroweandMulvey.com.