February2009 | Vol. 2, No. 4 Child and water hazards By Roger T. Manwaring pool, which is closed on the night sloping deep end. Engrossed in the they arrive, is fenced and locked but game, the girl fails to notice that oth- Late on a teenagers often , either by er swimmers have removed the di- warm August scaling the fence or cutting through viding rope in order to expand the night, a 14-year- it.The girl, who knows that she can- “playing field.” In the excitement of old girl and a not swim, enters the shallow end of the moment, she steps over the now group of her the pool to play a tag-like game with unmarked dividing line, slips down friends trespass her friends. the sloped floor into the deep end, on the property Although it is lit by floodlights, the and nearly drowns, sustaining seri- ous, permanent injuries. of a nearby pool has no interior illumination. Diamond Ball, page 8 apartment com- There is a rope dividing the relatively She sues, claiming that the apart- plex in order to swim in its pool.The flat shallow end from the steeply Continued on page 4 ‘Consumers first’

experiencing legislation that will be MedPay update By Mary Jane McKenna targeting protection for This year, and corporate entities, and Massa- By John J. McMaster $8,000 in PIP has been exhausted.) expenses that are payable, or would Americans face chusetts will not be an exception. The PIP portion of the automobile have been payable except for a de- a multitude of The rights of consumers cannot be The interplay policy, Part 2, states,“We will pay up ductible, under the PIP coverage of problems that sacrificed to make corporations sol- between Person- to $2,000 of medical expenses for any this policy or any other Massachu- are directly tied vent. Our role as members of the al Injury Protec- injured person. We will also pay med- setts auto policy.” to the economy trial bar has never been more es- tion benefits, ical expenses in excess of $2,000 for In Allstate Ins. Co. v. Bearce, 412 and the many sential on every possible level. Part 2, and Med- such injured person which will not be Mass. 442 (1992), Allstate paid Bearce decisions being MATA offers its members both ical Payments paid by a health plan. Medical ex- $25,000 in MedPay benefits for in- made by legislators both on Beacon visible representation and a strong benefits, Part 6, penses must be submitted to the juries received in an auto accident. Hill and on Capitol Hill.The flurry voice on Beacon Hill that strives to of the Massa- health plan to determine what the Bearce then sought underinsured of financial assistance for corpora- protect the rights of their clients chusetts Stan- health plan will pay before we pay benefits from Allstate. In evaluating tions in both state and federal gov- and of consumers everywhere.This dard Automobile Insurance Policy, benefits in excess of $2,000 under this the amount of benefits due Bearce, ernment are being takes tremendous time and an injured person with health Part.”Therefore, an injured party with Allstate took the position that they done in the hopes of PRESIDENT’S and effort on the part insurance and medical expenses in health insurance must submit the were entitled to an offset of the slowing the economic of the MATA members excess of $2,000, has been the subject first $2,000 in medical expenses to the $25,000 paid in MedPay benefits, meltdown so many MESSAGE who volunteer to of considerabledebate over the last PIP insurer and then the balance to claiming that failure to take the offset companies are experiencing at this screen the many legislative bills few years. his health insurance.Thereafter, PIP would allow Bearce to receive dupli- time. Somewhere in that mix are that are filed each session, write Given the language in a few court will pay only for medical expenses in cate payments, i.e. Bearce would be consumers who may be diversely summaries of bills of interest to decisions, the availability and proper excess of $2,000 which are denied by allowed to be reimbursed the affected by these actions.Their only MATA and meet with legislators to procedure for accessing MedPay has the health insurer, although there are $25,000 in medical bills through access to justice at this crucial and discuss various issues. been the subject of much confusion exceptions to that practice that are MedPay, and also be allowed to claim important time remains the mem- These MATA volunteers have and resulting frustration to not relevant to this issue. the same $25,000 as part of his dam- bers of the trial bar. also given their time and energy to claimants. (This article will not deal The Medical Payments provisions, ages in the underinsured claim. It is not only important to be a attending and speaking at hearings with situations in which the injured Part 6, of the standard Massachusetts The SJC disagreed with Metropoli- MATA member right now, but it is on bills, sometimes taking full days person either has no health insur- Automobile Insurance policy, sev- tan and stated that the express lan- vital that each of us be involved as to do so. We need members to join ance, or a health plan such as Medi- enth edition, state in pertinent part, guage of the various parts of the pol- much as possible in the legislative these committees to work on all caid which does pay benefits until “Under this Part, we will pay reason- icy“clearly reflects the contemplation process and be even more diligent types of legislative issues, including the full $8,000 in PIP benefits has able expenses for necessary medical of the parties that payments under in our efforts to make sure that the workers’compensation, auto insur- been exhausted. In those cases, there and funeral services incurred as a re- the medical payments coverage needs of the consumer are protect- ance, medical , products has not been much debate that Med- sult of an accident.”It goes on:“We might properly result in the insured ed and represented. Every state is Continued on page 2 Pay would begin paying after the full will not pay under this Part for any Continued on page 6

A Supplement to Massachusetts Lawyers Weekly 2 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009 Editor’s note: digital imagery

By J. MichaelConley photo developer. In reality, the predicate of evi- (admission of photographs largely in discretion N.E. 2d 1195 (2006), quoting Commonwealth v. dence of any imagery, from a photograph to a of trial judge). Harvey, 397 Mass. 351, 359, 491 N.E. 2d 607 The more things witness’s blackboard sketch, has been the relia- Authentication is a preliminary question of (1986), and Commonwealth v. Mahoney, 400 change, the more bility and credibility of the person vouching for fact for the judge to decide. Id. at 537, 66 N.E. 2d Mass. 524, 527, 510 N.E. 2d 759 (1987) (“video- they remain the the image in his or her testimony that it fairly 814.The person testifying as to the substantial tapes are‘on balance, a reliable evidentiary re- same. As technology and accurately represents what it is offered to similarity of the photograph and the original source,’ ... and ...‘should be admissible as evi- has rapidly advanced depict. need not be the photographer but may be a per- dence if they are relevant [and] provide a fair to facilitate court- Recently, in Renzi v. Paredes, 452 Mass. 38 son familiar with the details pictured. See Com- representation of that which they purport to room use of digital (2008) — which, along with its companion monwealth v.Weichell, 390 Mass. 62, 77, 453 N.E. depict’... [D]igital images placed and stored in a imagery and to en- case, Matsuyama v. Birnbaum, has received con- 2d 1038 (1983), cert. denied, 465 U.S. 1032, 104 computer hard drive and transferred to a com- able relatively easy siderable fanfare for other reasons — the S.Ct. 1298, 79 L. Ed. 2d 698 (1984) (“the best evi- pact disc are subject to the same rules of evi- creation or alteration Supreme Judicial Court addressed the admissi- dence rule does not apply to photographs”). See dence as videotapes”). of images, I have often thought that such de- bility of digital photographic evidence reaffirm- generally H.J. Alperin & L.D. Shubow, Summary See also 2 McCormick, supra (“enhanced velopments would increase rather than de- ing an approach that is sensible, manageable of Basic Law §10.151 (4th ed. 2007). images within category of demonstrative aids crease the importance of credible verbal testi- and faithful to established trial practice. When, as here, the demonstrative photo- so long as they accurately illustrate what wit- mony providing foundation for the image. In “The use of demonstrative aids, including graph is generated as a digital image or video ness has to say”), concerns regarding the com- other words, a picture may still be worth 1,000 digital photographs and computer-generated image, the judge must determine whether the pleteness or production of the image go to its words, but only where the fact-finder believes images, is now commonplace in our courts. See image fairly and accurately presents what it weight and not its admissibility. See Common- that it is what it purports to be. generally 2 McCormick, Evidence §214 (6th ed. purports to be, whether it is relevant and wealth v. Leneski, supra at 295-296, 846 N.E.2d Some judges have reacted to digital technol- 2006). A judge has broad discretion in the ad- whether its probative value outweighs any 1195; Renzi v. Birnbaum, 452 Mass. 38, 51-52 ogy with suspicion and near panic by requiring mission of such evidence. See Commonwealth v. prejudice to the other party. See, e.g., Common- (2008). the equivalent of foundation testimony from a Nixon, 319 Mass. 495, 536, 66 N.E.2d 814 (1946) wealth v. Leneski, 66 Mass. App. Ct. 291, 294, 846 Keep it in your trial notebook.

‘Consumers first’ Amicus curiae update

Continued from page 1 By J. MichaelConley ment to accidental disability retirement bene- liability and others. fits in the face of a changing job description. In 2009, MATA will continue its aggressive MATA has been active in providing friend of Foresta v. Contributory Retirement Appeal Board. legislative agenda and we expect to face a num- the court briefs over the past year. Recently com- Adam Troupe co-authored a brief in the ber of issues that threaten the civil justice sys- pleted briefs and cases include the following: Moss’s Case, 451 Mass. 704 (2008), regarding tem. The more volunteers to assist in this task MATA submitted a brief to the SJC, princi- the dispute about whether the statutory pri- the more we can accomplish together to protect pally authored by Michael Harris, in support ma facie presumption would apply to claims the rights of all consumers. of the plaintiffs in the Renzi and Matsuyama for double under G.L.c. 152, §28. reform is still a major priority on both cases, which addressed loss-of-chance issues MATA also provided an amicus brief in the state and national legislative agendas in in cases focusing on failure to timely diagnose support of the prevailing employee in the cancer. 452 Mass. 1; 2009.The insurance industry will continue its Matsuyama v. Birnbaum, Sellers’s Case, 452 Mass. 802 (2008), address- Renzi v. Paredes, 452 Mass. 38 (2008). eternal and expensive campaign against the tri- ing the wage calculation for multiple employ- Joe Borsellino co-authored MATA’s brief in al bar and try to convince the public and legis- ment and cases in which the workers’com- Coombes v. Florio, 450 Mass. 182 (2007) in which PRESIDENT lators that they work to protect their clients, not pensation trust fund is involved due to an the Supreme Court confirmed that a physician Mary Jane McKenna their bottom line. Despite declining verdicts employer being uninsured. could be liable to a third party injured by a patient and fewer payouts, they will continue to insist In Iannacchino v. Ford Motor Co., 451 Mass. and a physician was negligent in prescribing PRESIDENT-ELECT that their ever-rising premiums are necessary. 623 (2008), MATA signed on to an amicus medications or warning patients about medica- brief supporting the prevailing plaintiffs on Chris A. Milne In this year of financial unrest, I am sure we will tions thereby giving rise to the subject accident. the question of whether a consumer who see many attempts to curb the rights of clients. TREASURER Mike Najjar authored MATA’s amicus brief in purchases a car with a defective door latch is The U.S. Chamber of Commerce has a multi- Kimberly E. Winter support of the plaintiff in Law v. Griffiths on the required to wait until the latch fails or until he million dollar campaign centered on tort reform issue whether a trial judge erred in excluding ev- incurs the cost of repairing it to assert a claim that will be visible in every state in the country. SECRETARY idence of medical expense offered pursuant to under Chapter 93A; more generally, whether We face a number of challenges in 2009, but I Andrew M. Abraham G.L.c. 233, §79G because the amount actually a consumer who purchased a product with an am confident that we will succeed in our goals paid was less than the face value of the bill. undisclosed safety defect suffers no“injury” IMMEDIATE PAST PRESIDENT to protect the rights of our clients and to protect Deborah Kohl prepared a brief filed in Jan- unless or until the defective product causes the civil justice system against tort reform. Paul F. Leavis uary focusing on a public employee’s entitle- physical harm or economic loss. Strength lies in numbers and we are only as strong as our membership. If you are not a MATA member at this time, please call the EDITOR-IN-CHIEF MATA offices and become one today. If you are J. Michael Conley, Esq. a MATA member, please consider volunteering Welcome new members on one of MATA’s many committees to work PUBLISHER/EDITOR Peter Bizinkauskas Matthew Lallier on the various legislative issues that are of con- Catherine Brown Richard Madore Jennifer L. Comer cern to the academy. Christopher Brown Sean McElligott I look forward to working with each of you in PRINTING AND PRODUCTION Michael Coyne Deborah Medows the months to come and to making 2009 a suc- Massachusetts Lawyers Weekly Joseph Curran Daniel Pogoda cessful year for all. Sandra Dupuy Robert Rzeszutek Sara Hammond Joan Scanlon FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 3 Legislation Committee update

By Timothy C. Kelleher III fied in favor of them.They invested a great deal lagher & Cavanaugh, Leo Boyle of Meehan, Boyle, meet with us and carefully considered our po- of time and effort to convince senators and rep- Black & Bogdanow,Andrew Abraham of Baker & sitions at the hearings. In my experience, they Over the last year, resentatives at the State House that these bills Abraham, Pat Jones and Robert DeLello of Cooley have listened and wanted to know all of the many bills were con- would be good for the citizens of Massachusetts. Manion Jones, Doug Sheff of Sheff Law Offices, Jay implications of the various bills. Most of the sidered by various MATA members worked diligently to prevent Angoff of the Law Offices of Jay Angoff, Jeff Cata- time, once they were made aware of the issues committees at the these bills from becoming law. Many of our mem- lano ofTodd & Weld, Frank Riccio of Law Office of or problems, they responded appropriately. State House that bers drafted position statements and appeared be- Frank J. Riccio, Kim Winter of White, Freeman & MATA’s Legislation Committee will continue to would have done the fore legislative committees to testify.They also met Winter and Annette Gonthier Kiely of A. Gonthier monitor and address proposed legislation this year. following: with legislators and their staff members to address Kiely & Associates also assisted in the effort to re- The bills described above, however, will be filed • eliminated the concerns related to the impact these bills would view bills and prepare written testimony.They ap- again this year, some with modifications. Some of rights of victims of have had on consumers, injured victims and their peared before committees to provide verbal testi- the bills will be written in such a way that one medical to families. MATA was very successful in getting its mony and attended conferences to provide would not know from the title that the bill had have their cases decided by juries and limited position across to the decision makers, but that technical advice and important information to anything to do with the civil justice system or that it the amount of damages they could recover; happened only because of the tremendous effort of members of the Massachusetts House and Senate. would impact, in any manner whatsoever, the • severely restricted the rights of consumers injured the MATA members who volunteered to help. I have had the privilege of watching these health and safety of families. It is likely that these by defective products and eliminated the types MATA would like to thank members who people testify at hearings and have been at bills will be appearing on the lists of numerous dif- and amount of damages they could recover; helped and recognize them for their efforts. Spe- meetings with them where they have explained ferent committees. It is no longer the case that bills • eliminated joint and several liability; cial thanks to immediate past President Paul the problems with these bills.They are all such that impact the civil justice system or the health • expanded legal immunity to certain special Leavis of Leavis and Rest for his leadership and great speakers and advocates for MATA.Their and safety of families will be heard before the Judi- interest groups; commitment to MATA. He not only spent a great efforts truly made a difference. ciary Committee.They will be heard in many dif- deal of time dealing with legislative issues, he MATA would also like to thank Brian Hickey ferent committees as they were over the last year. • granted tort immunity to companies that use also helped mobilize people when they were and Associates for its efforts on behalf of MATA. Tracking these bills has been a difficult task, but leased employees; needed most. Jennifer Comer and Sheila Brian Hickey and Jeff Haggerty have provided MATA will continue to monitor them. • reduced the applicable Sweeney were instrumental in helping to gather great insight, knowledge and experience in dealing In addition to spending a great deal of time opposing to certain individuals and entities; and information and mobilize MATA members. with the legislative process.They monitored rele- bills, MATA members have submitted written testimony • eliminated liability for punitive damages Mike Najjar of Albert Marcotte Law Office, vant bills, attended hearings and attended meet- and testified in support of a number of bills that would against certain individuals and entities. Michael Harris of Crowe & Mulvey, Alan Pierce ings with the senators and representatives who improve our civil justice system. Our members will con- In addition to those bills, there were many of Alan S. Pierce & Associates and John Morris- were considering these important issues.They tinue to do so.The following list summarizes some of the other bills pending that would have had a signifi- sey of Quinn & Morris led the effort in the ar- continue to help MATA in its efforts to convey its proposed bills which impact issues pertinent to MATA: cant impact on our civil justice system and the eas of auto legislation, medical negligence leg- position at the State House. House Bill 1649 rights of Massachusetts citizens. Supporters of islation and workers’compensation legislation. MATA also appreciates the fact that so many An act granting discretion to the Superior these bills submitted written materials and testi- MATA President Mary Jane McKenna of Gal- senators and representatives took the time to Continued on page 12

Supreme Court rules smokers’ state lawsuit over ‘light’ cigarettes not pre-empted by federal law

In this issue By Sarah Dean of the States are not to be supersed- Advertising Act and that, in addi- Public Justice Correspondent ed by the Federal Act unless that tion, preemption was implied by 7 Turning back the hands of was the clear and manifest purpose the“efforts of Congress and the Tobacco companies cannot avoid ‘T.I.M.E.’ of Congress,”the Court wrote. [Federal Trade Commission] for being sued for fraudulently adver- “Thus, when the text of a pre-emp- 40 years to implement a national, by WIlliam O’Donnell and tising that their“light”cigarettes Kimberly Miles tion clause is susceptible of more uniform policy of informing the delivered less tar and cigarettes than one plausible reading, courts public about the health risks of that“regular”cigarettes, the U.S. ordinarily accept the reading that smoking.” Supreme Court ruled on Decem- disfavors preemption.” The Court firmly rejected both ar- 8 MATA Women’s Caucus ber 15. The Court held 5 to 4 in Al- Against that background, the guments, ruling that the federal second annual wine-tasting tria Group, Inc, v. Good that federal Court rejected the tobacco compa- statute does not immunize tobacco benefit law does not preempt – i.e., wipe nies’ argument that federal law companies for making fraudulent by Lauren Guth Barnes and out – state lawsuits. Public Justice preempts the plaintiffs’claims statements. In regard to implied Kristen Johnson Parker had joined in an amici brief au- that, when it promoted and adver- preemption, the Court held that the thored by Georgetown Law Pro- tised Marlboro and Cambridge FTC never had a policy authorizing fessor DavidVladeck urging the Lights cigarettes as“light”and the use of“light”or“low tar”as de- Court to rule as it did. having“lowered tar and nicotine,” scriptive terms, and did not prevent 8 MATA Diamond Ball The majority decision by Justice Philip Morris violated Maine laws the states from considering the to- Stevens reaffirms the presumption prohibiting fraudulent misrepre- bacco companies’use of those against preemption of state law. sentation. terms. “When addressing questions of ex- The tobacco companies con- To read the Supreme Court’s deci- press or implied preemption, we be- tended that the plaintiffs’claims sion in Atria, or to learn more about gin our analysis with the assump- were expressly preempted by the Public Justice, go to tion that the historic police powers Federal Cigarette Labeling and www.publicjustice.net. 4 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009 Child trespassers and water hazards

Continued from page 1 statement provides that: ous water hazard rule. However, it is not clear not need a warning”). ment complex owed her a duty of reasonable The lack of experience and judgment nor- that under Massachusetts law bodies of water Although Phachansiri, Rodriguez and Feliciano care and breached that duty by, among other mal to young children may prevent them are always deemed obvious to all children. seem to refer to a rule of law that water hazards things, negligently installing and maintaining a from realizing that a condition observed by (a) Massachusetts law as to obvious water are always obvious even to children, the 14- dividing rope that could easily be removed. them is dangerous or, although they realize hazards. year-old girl in our example can make a rea- Does she have a case? Perhaps.The greatest that it is dangerous, may prevent them from The cases on which defendant complex sonable argument that Massachusetts courts obstacle to the lawsuit may not be that the girl appreciating the full extent of the risk would probably rely, including O’Sullivan v. do not apply such a rule mechanically. was trespassing or that she entered the water …Where a child fully understands the dan- Shaw, 431 Mass. 201 (2000); Phachansiri v. City of Phachansiri did not rule that water hazards are knowing she could not swim. Most significant ger, but nevertheless voluntarily encounters Lowell, 35 Mass. App. Ct. 576 (1993) and David- always, as a matter of law, obvious to all chil- may be her age as it relates to the obviousness the risk, his actions are not merely negligent son v. MDC, 1997 WL 1368044 (Mass. Super. Dec. dren. The court merely held that the jury could of the danger posed by the water in the pool. but negate any duty of reasonable care owed 26, 1997), do not dictate that, as a matter of law, have found that water in a pool is an obvious The ChildTrespasser Statute, G.L.c. 231, §85Q by the defendant landowner. water hazards are always obvious to children of hazard, indicating that the determination in Although she was a , Massachu- The law protects children“from those condi- all ages and under all circumstances. any given case is still a question of fact. Neither setts law provides that: tions which, though observable by adults, are O’Sullivan involved an adult guest who dove Rodriguez nor Feliciano actually concerned a wa- Any person who maintains an artificial con- likely not to be observed by children, or which into shallow water in a swimming pool. The ter hazard. dition upon his own land shall be liable for contain the risks the full extent of which an court ruled for the defendant landowner be- Further, in Godsoe v. Maple Park Properties, physical harm to children trespassing thereon if adult would realize but which are beyond the cause the danger of“diving headfirst into the Inc., 2007 WL 2316468 (D. Mass. Aug. 9, 2007), (a) the place where the condition exists is one imperfect realization of children. It does not ex- shallow end”of a pool was open and obvious. a case not involving trespass, the court held upon which the land owner knows or has rea- tend to those conditions the existence of which While O’Sullivan does deem a water hazard that the shallow depth of a lake, the bottom of son to know that children are likely to trespass, is obvious even to children and the risk of obvious, it involved diving and an adult plain- which had been graded like a swimming pool, (b) the condition is one of which the land own- which should be fully realized by them,”Re- tiff. Clearly, diving presents risks very different was not obvious as a matter of law to the minor er knows or has reason to know and which he statement (Second) §339, comment i. It from wading in shallow water. plaintiff. Id. at *4.The Godsoe court denied realizes or should realize will involve an unrea- does not hold a landowner responsible for the Davidson also is distinguishable because it summary judgment holding that“the condi- sonable risk of death or serious bodily harm to harm resulting to children resulting from a involved diving into shallow water by a 16- tions of the lake and the lake water raise a such children, (c) the children because of their reckless“spirit of bravado”or in gratifying year-old plaintiff. The court held that the plain- question of whether the water depth was open youth do not discover the condition or realize “some other childish desire ... with as full a tiff could not recover under §85Q because the and obvious …” the risk involved in intermeddling with it or in perception of the risks which they are running danger was obvious and the plaintiff was, The Restatement also adopts a case by case coming within the area made dangerous by it, as though they were adults.”Id. therefore, engaged in behavior which a normal approach. The first paragraph of comment“j” (d) the utility to the land owner of maintaining “The resulting test is whether a child of like 16 year-old would not do. recognizes the obvious water hazard rule, stating: the condition and the burden of eliminating age, intelligence, and experience would fully More relevant is Phachansiri, in which a 5- There are many dangers, such a [sic] those of the danger are slight as compared with the risk appreciate the hazard of intermeddling with an year-old was injured and his 7-year-old brother fire and water, or of falling from a height, which to children involved, and (e) the land owner artificial condition existing on a piece of prop- was killed when they slipped into a swimming under ordinary conditions may reasonably be fails to exercise reasonable care to eliminate the erty as intelligently as an adult.”Jackson, 1993 pool which had been drained but had filled expected to be fully understood and appreciated danger or otherwise to protect the children. WL 818727, *4. with ground water. Considering liability under by any child of an age to be allowed at large.To Section 85Q was enacted in order to“ame- The“status of‘child’for purposes of the rule §85Q, the jury decided that the defendant such conditions the rule stated in this Section liorate the harsh effects of the will vary with the nature of the hazard. It may knew that children were likely to frequent the ordinarily has no application, in the absence of rule upon child plaintiffs.”At common law, a range as high as 16 or 17 years of age. As the pool but also decided that the condition of the some other factor creating a special risk that the landowner owed a trespassing child only the age of the child increases, the conditions be- pool did not pose an unreasonable risk to chil- child will not avoid the danger, such as the fact “duty to refrain from willful, wanton, or reck- come fewer for which there can be recovery.” dren. Holding that the jury’s two answers were that the condition is so hidden as not to be less disregard for the trespasser’s safety.” Whether a teenager fully appreciates the risk not inconsistent, the Appeals Court noted that: readily visible, or a distracting influence which Section 85Q imposes a duty of reasonable posed by a given condition is generally a ques- “The jury could have concluded that the dan- makes it likely that the child will not discover or care to trespassing children if its conditions are tion of fact to be determined by the jury. In an ger of water in a pool is one that could reason- appreciate it. Restatement §339 com.“j”. satisfied.To recover under §85Q, a child tres- extreme case, however, a court may rule, as a ably be expected to be fully understood and ap- However, the second paragraph of comment passer must satisfy all five of its conditions.The matter of law, that a particular hazard is so ob- preciated by any child of an age to be allowed at “j”indicates that the Restatement does not plaintiff arguably satisfies requirements (a), (b), vious that a child of the plaintiff’s age must large on his own.”35 Mass. App. Ct. at 579. adopt the obvious water hazard rule as a mat- (d) and (e) of the statute.The defendant apart- have perceived and understood it. In support of this statement, the court quot- ter of law for children of all ages in all circum- ment complex would likely argue, however, Is water so obvious a danger that children ed comment“j”to Restatement §339.Thus, stances: that the 14-year-old plaintiff, due to her age, must in all cases understand it, rendering Phachansiri appears to apply the obvious water Where, however, the possessor knows that fails to satisfy requirement (c) of §85Q that the §85Q inapplicable? hazard rule. See Rodriguez v. Winiker, 2004 children too young to appreciate such dangers danger posed by the pool be one which the In arguing that the 14-year-old girl fails to Mass. App. Div. 191, 2004 WL 2853936, *7 are likely to trespass on his land, he may still be plaintiff, because of her youth, did not discover, satisfy subsection (c) of §85Q, the defendant (holding that 5-year-old child, under supervi- subject to liability to such children under the or as to which plaintiff did not“realize the risk.” apartment complex would likely assert that, sion of her mother, was sufficiently aware of rule stated. How old is too old to be a“child”protect- even if a 14-year-old can sometimes be a the danger of falling off retaining wall and not- Thus, the applicability of the obvious water ed by §85Q? “child”under §85Q, the dangers posed by bod- ing, based on Phachansiri, that“there are many hazard rule in Massachusetts remains some- A defense based on subsection (c) of §85Q ies of water are obvious, as a matter of law, to dangers, such as those of fire and water, or what unclear. raises a number of issues. First, is a 14-year-old any child old enough to be allowed a large (the falling from a height, which under ordinary (b) The trap exceptionto the obvious wa- simply too old to qualify as a“child”for purposes “obvious water hazard rule”). While there is conditions may reasonably be expected to be ter hazard rule of the child trespasser statute? Not necessarily. some support for this position, the plaintiff girl fully understood and appreciated by any child Even if Massachusetts courts were to rule Both Massachusetts courts and the Restatement can argue: (1) the obvious water hazard rule is of an age to be allowed at large”); Feliciano v. apply a rule that, as a matter of law, water haz- make clear that a 14-year-old can be a“child” not applied in Massachusetts; and (2) even if Andersen Corp., 1995 WL 1146822, *3 (holding ards are obvious, the injured 14-year old girl trespasser.To avoid application of §85Q, a defen- applied in Massachusetts, the rule does not that whether leaning on window screen was so might successfully invoke a well-recognized dant must show not just that a child had some govern her case because the swimming pool obviously dangerous that no warning need be exception to that rule, arguing that the pool in appreciation of the danger posed by a condition, constituted a trap, containing concealed, excep- given to child was question of fact, but noting, which she almost drowned constituted a trap, but that she appreciated the full extent of the tionally dangerous conditions not common to based on Phachansiri, that“some dangers, such because it contained exceptionally dangerous danger.The child must be able to appreciate the swimming pools in general. as fire, water, and great heights, can be fully ap- conditions not inherent to pools in general. danger to the same extent as an adult. The Re- Courts in many other states apply the obvi- preciated even by children, and therefore, do This exception is recognized by the Restate- FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 5 ment which provides: aware of the absence of the dividing rope. As which existed on the tract. Furthermore, the encountered here is clearly encompassed with- There are many dangers, such a those of fire might be expected of children in a pool, she ditch was at the low point of slightly higher in the duty not to create an unreasonable risk and water, or of falling from a height, which was engaged in play and distracted from notic- surrounding lands; it was at a place where a of harm in a neighborhood peopled by inquisi- under ordinary conditions may reasonably be ing the absence of the rope or appreciating the shallow pool of water would naturally gather. tive and impulsive youngsters.” expected to be fully understood and appreciat- dangers thereby created. In addition, the jury could have found that the Id. at 1361. ed by any child of an age to be allowed at large. Cases from other jurisdictions recognize the gradually sloping ramp leading into the ditch Also relevant is Davies v. Land O’Lakes Racing To such conditions the rule stated in this Sec- “trap”exception, often applying it to situations would tend to give to the pool a deceptive ap- Assoc., 244 Minn. 248 (1955). A child drowned tion ordinarily has no application, in the ab- where water appeared safe but concealed an pearance of shallowness.” when he entered an apparently shallow puddle sence of some other factor creating a special abrupt drop into deeper water or where there Similarly, in Simmons v.Whittington, 444 So. 2d which concealed a drop off into a 6-foot deep risk that the child will not avoid the danger, was a danger that a child would slip into the 1357 (La.App. 1984), the landowner had installed excavation with vertical sides. Rejecting the de- such as the fact that the condition is so hidden water. In Mennetti v. Evans Construction Co., an above-ground pool which appeared to be uni- fendant’s contention that liability should not be as not to be readily visible, or a distracting in- 259 F. 2d 367, 370-71 (3rd Cir. 1958), a minor form in depth but had then dug out the bottom so imposed under Restatement §339 because wa- fluence which makes it likely that the child will died after slipping into a rain-filled ditch.The that, while the sides remained at about three- ter hazards are obvious, the court stated: not discover or appreciate it. court stated: and-one-half foot depth, the pool floor sloped “It is generally conceded that the ordinary Restatement §339, com.“j”. “The appellees argue that appellant’s minor sharply to a deep end more than 5 feet in depth. A body of water, even though it be artificial, while Massachusetts law recognizes such a trap ex- decedent must be taken to have realized the trespassing child, who knew he could not swim, it does involve the risk of death or serious ception to the open and obvious danger rule hazard involved in the ditch filled with water. went into the pool, was able to stand in the shal- harm, does not constitute an unreasonable risk (applied in O’Sullivan v. Shaw to the adult who The same argument was recently rejected by low end, but then stepped off the ledge and sank thereof because even a child to some extent ap- dove into shallow water).The courts have rec- the Pennsylvania Supreme Court in the case of into the deeper waters.The court said: preciates the risks that are connected with it ... ognized that a landowner may have a duty of Cooper v. City of Reading, 392 Pa. 452, 140 A.2d “We agree with the trial court that the dan- We believe that the circumstances and the due care with respect to an otherwise obvious 792, 797 (decided May 2, 1958).There the city gers inherent in this pool were to a substantial evidence in this case combine to form a suffi- danger where the circumstances are such that discharged its storm drainage water into the degree hidden from one who had never before cient basis for the jury’s finding that this partic- the owner should foresee that visitors may be bed of a former canal, causing a pool to form at been in it. While Michael was aware he could ular body of water in its condition on the day in distracted or otherwise unlikely to notice the the outlet pipe.The court said that the pool cre- not swim, upon first entering the pool he was question involved more risk than an ordinary obvious condition. Whether a landowner ated an unreasonable risk of harm to child tres- able to stand on the bottom. He was obviously water hazard and amounted to a condition, should have foreseen that the plaintiff would passers by the‘very fact that the pool was de- unaware that the same was not true for the en- created by defendants, involving an unreason- be distracted is a question of fact for the jury. ceptively shallow at its edges and therefore tirety of the pool. It appeared to be an above- able risk of death or serious bodily harm to Bradshaw, 2005 WL 1869170, *2. innocent in appearance.’ ground pool of uniform depth and there were children within the meaning of Restatement, The circumstances of the plaintiff 14-year- “In the present case, there was evidence that no contrary indications. A child’s carelessness Torts, s 339 … old’s use of the pool, which arguably should the water in the ditch was muddy so that its in entering a pool with which he is unfamiliar “There are … decisions in other jurisdictions have been foreseen by the defendant apart- depth was deceptive, especially to children ac- is one of the risks against which the pool’s which are in point. In those cases liability has ment complex, were such that she was not customed to playing in the shallow pools owner has a duty to take precautions.The risk Continued on page 15

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With Massachusetts Lawyers Weekly’s Judge Center, you can walk into court armed with How to subscribe: evaluations, comments and advice from other The Judge Center is an online resource. attorneys who appeared before the judge. To subscribe, go to www.judgecenter.com. And because the Judge Center is a comprehensive Your subscription includes unlimited online resource devoted to Massachusetts judges, it web access to the Judge is loaded with valuable information. Center for only $250 a year. H9Z437 6 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009 MedPay update of the policy. Only if PIP benefits were not Bearce was still good law. has clear language on how the coordination of Continued from page 1 payable for these expenses, because, for exam- The latest case touching on this subject is benefits should work between PIP,MedPay and recovering a sum in excess of the loss caused by ple, the policyholder had elected to go outside Metropolitan Property & Casualty Ins. Co. v. Blue various types of health insurance, and which his accident.”Id. at 448. her health plan to obtain a medical service that Cross & Blue Shield Of Mass. Inc., 451 Mass. 389 concludes with the statement that“the Meanwhile, in an advisory contained in Divi- could have been obtained through her health (2008) in which the two insurers sought guid- claimant may submit further medical bills to ei- sion of Insurance Bulletin B-90-2, the insurance plan, would MEDPAY come into play. See ance from the SJC on the priority of payments ther MedPay or the health insurer, or both.” commissioner confirmed that“where there is Dominguez v. Liberty Mut. Ins. Co., 429 Mass. for medical expenses arising from an automo- Moreover, the court erased any doubt that health insurance coverage available, ... medical 112, 706 N.E.2d 647 (1999). As the plaintiffs bile accident after PIP has paid the first $2,000 the Bearce decision which allowed payment un- expenses over $2,000 are not payable under failed to submit their claims in this fashion, it in medical expenses and the health insurer’s der MedPay for medical expenses beyond the PIP,so MedPay begins to provide coverage at was not improper for the defendant to refuse to policy contained language making it secondary $2,000 in PIP benefits, and double recovery, re- that point, not after $8,000 of PIP benefits have pay them.”Id. At 465. to MedPay. mained good law:“The conclusion that MedPay been exhausted. Barring language in the health Fundamentally, Meijia was a decision about In this case, the injured automobile passen- constitutes primary coverage accords with the insurance allowing it to defer primary the procedure for obtaining MedPay benefits, ger incurred medical expenses in the amount of court’s holding in Allstate Ins. Co. v. Bearce, 412 coverage to MedPay ... after the claimant has and not the scope of the coverage. However, $5,266.The automobile policy had the standard Mass. 442, 448-449, 589 N.E.2d 1235 (1992), submitted $2,000 in medical expenses to the dicta in a footnote led to confusion: PIP benefits and $10,000 in optional Medpay that an automobile insurer must cover medical PIP carrier, the claimant may submit further “We note that, unlike PIP,MedPay is an op- Coverage.The bills were submitted to Metro- expenses under MedPay even if the injured in- medical bills to either MedPay or the health in- tional coverage, the terms of which are not pre- politan which paid $2,000 in PIP benefits and sured has been fully compensated for his in- surer, or both.” scribed by statute.Thus, the coordination of told the injured passenger to submit the bal- juries by the liable party or by underinsured Accordingly, the customary practice there- benefits provisions in G.L.c. 90, §34A, that were ance to his health insurer, Blue Cross, for pay- motorist coverage.” after was to allow access to MedPay benefits af- construed in the Dominguez case do not apply ment. Blue Cross denied the charges based on That is, no offset for MedPay payments in an ter the first $2,000 in medical expenses were to MedPay coverage. MedPay provides a mean- language in a portion of the health insurance uninsured or underinsured claim, and no de- paid by PIP,even those covered by health in- ingful optional benefit for some consumers be- contract which read“[u]nless otherwise re- nials of MedPay benefits allowed based on a surance. This was usually done by presentation cause it covers treatment which would not oth- quired by law, coverage under this contract will third party recovery in which the bills submit- to the MedPay carrier of a PIP exhaust letter. erwise be covered by health insurance or PIP.” be secondary when another plan [defined to ted for MedPay have been considered as part of In 1999, the SJC heard Dominguez v. Liberty Id. at 466, n. 6. include‘automobile insurance, including med- the third party claim. Mutual Ins. Co., 429 Mass. 112, 706 N.E.2d 647 Some insurers seized upon this language to ical payments coverage’] provides you with However, the SJC endorsed the procedural (1999). In this case, the injured party incurred argue that MedPay covered only expenses coverage for health care services.”Id. At 390-91. requirements outlined in the Meijia decision. $2,785 in medical expenses and submitted which were not payable by health insurance or Blue Cross took the position that this lan- Specifically, the SJC stated: them to the PIP insurer for payment.The insur- PIP.The insurers refused to pay MedPay if the “The suggestion in the second quoted sen- er paid $2,000 in PIP benefits and denied pay- guage made its insurance secondary to MedPay medical bills were paid by the party’s health in- tence that the insured may choose whether to ment of the additional $785 as it exceeded the and sent the charges back to Metropolitan for surer, which seemed to counter the holding in seek coverage from their health insurer, Med- $2,000.The injured party resubmitted the $785 payment under MedPay. Metropolitan filed a Bearce which allowed for double recovery, con- Pay or both, has been rejected by the Appeals in bills for PIP payments after the inured party’s declaratory judgment action seeking a determi- trary to the insurance commissioner’s policy in- Court in Mejia v. American Cas. Co., health insurer denied payment because the nation that it had no obligation to pay any med- 55 Mass. terpretation in Bulletin B-90-2, and lacking .” medical providers chosen by the injured party ical expenses after the initial $2,000 in PIP,and App. Ct. 461, 771 N.E. 2d 811 (2002) support in the language of the policy. The court concluded in that case that even were outside his network.The SJC upheld the took the position that requiring it to pay MedPay The reason typically offered for this position when an injured insured has MedPay benefits insurer’s denial of payment of the additional under these circumstances violated the coordi- was not only the wording in Meijia, but also the available, he or she must first submit any health $785 in PIP benefits in part because the statu- nation of benefits scheme under G.L.c.90 §34A. purported legislative policy of reducing the care bills above $2,000 to the health insurer for tory scheme’s“legitimate purposes of coordi- The SJC upheld Blue Cross’position and costs of automobile insurance as announced in consideration before the bills may be forwarded nating insurance benefits so that costs of auto- found that Metropolitan should pay the bal- Dominguez.This reduced the MedPay benefits to the automobile insurer for payment: mobile insurance may be reduced.”Id. at 118. ance under the MedPay portion of the policy. In to that of third tier insurer, only accessible after “Whether or not the health insurance policy Although this case did not touch upon MedPay, laying a foundation for its decision, the SJC a denial by a health insurer and an examination contains a deferral provision for MedPay, we the theme of“cost control”would become an stated that it looked at the plain language of as to whether the denial would allow PIP pay- agree with the Appeals Court in the Mejia case issue in subsequent MedPay cases. ment. Accordingly, some insurers were taking the policy and found that the coordination of that after collecting $2,000 in medical coverage The wrinkle in the MedPay fabric came in the opposition that the full $8,000 in PIP bene- benefits scheme pertained to compulsory cov- under PIP,an insured must submit further Meijia v. American Casualty Co. 55 Mass. App. fits had to be exhausted prior to any payments erage only and that allowing deferral to its in- medical bills to his or her health insurance Ct. 461 (2002). In this case, the insurer paid the under MedPay, which was a high hurdle if the sured’s optional“MedPay benefits does nothing provider for potential coverage. If the health in- first $2,000 in medical expenses through PIP. injured party had health insurance. to undermine the legislative goal of controlling surer denies coverage, the insured may then When the parties submitted the balance of the cost of compulsory insurance.”Id. at 394. those medical expenses directly to the insurer The plaintiff’s bar advanced a different inter- submit the bills to the automobile insurer for The court also rejected Metropolitan’s argu- under MedPay, the insurer stated that it first pretation of MedPay based primarily on the consideration under the PIP coverage of the ment that if Blue Cross is allowed to deny the wanted denials of those bills by the parties’ language of the insurance policy, as stated policy.”Id. at 466, 771 N.E.2d 811. “If PIP is un- health insurer, and later denied payment when above, and that the statutory scheme involving balance of the charges, Metropolitan must pay available — a determination that will depend those denials were not produced. According to coordination of benefits between health insur- those bills out of PIP prior to using the MedPay on the health insurer‘s reasons for denying the decision, the injured parties sought to have ance and automobile insurance (G.L.c.90 benefits which allows“an‘end run’around the coverage — then any available MedPay benefits the balance of the bills paid under MedPay to §§34A-Q) regulated only compulsory coverage, coordination of benefits provisions of § 34A.” will come into play.”Id. n. 10. avoid a lien by the health insurer.The Appeals such as PIP,and not the optional coverage of Id. at 395. In essence, Meijia established and Metropoli- Court upheld the insurer’s denial of MedPay MedPay.That is, since MedPay was optional In rejecting that argument, the court stated tan reaffirmed the procedure that must be fol- benefits by stating: coverage, it was not subject to the PIP/health that“paying medical costs from PIP when the lowed to determine which expenses that are “Thus, in the matter at hand, after they had insurance coordination rules other than the re- health insurer has denied coverage because of payable, or would have been payable except for each received $2,000 of PIP benefits for medical quirement that the first $2,000 in medical ex- the existence of MedPay is not only illogical, it a deductible, under the PIP coverage and are expenses, the plaintiffs were required to send penses be paid by PIP. is contrary to the legislative intent of § 34A to therefore ineligible for payment under MedPay. their bills for additional medical expenses to In a situation in which medical bills in excess reduce the cost of compulsory motor vehicle Therefore, in order to access MedPay in a situa- their health insurers. If the health insurers re- of $2,000 were paid by a health insurer, and the insurance.”Id. tion where an insured has in excess of $2,000 in fused coverage, the plaintiffs were then re- bills were not payable under PIP (in which case The court supported its decision by quoting medical bills and has private health insurance, quired to send the bills to the automobile in- they would be excluded from MedPay), MedPay Division of Insurance Bulletin B-90-2, thereby any bills in excess of $2,000 must be presented surer for consideration under the PIP coverage coverage would be available. In other words, reaffirming the vitality of a document which to the health insurer, denied, re-presented to FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 7 Turning back the hands of ‘T.I.M.E.’

By William O’Donnell Permanent life insurance, which is purchased “M”is for mistakes could help in that emergency. and Kimberly Miles for death benefit protection, has three distinct tax Nobody’s perfect — we all make mistakes. • No plan — Some people think that advantages: cash value accumulates within the But financial mistakes can cost us dearly. estate planning is just for the wealthy. Not policy on a tax-deferred basis; loans taken against There’s no foolproof strategy to avoid missteps, necessarily true. A proper estate plan can cash value are generally not taxable; and in most but here is an outline of the five most common help reduce exposure to applicable taxes and instances, the death benefit paid to beneficiaries insurance and personal planning errors: provide heirs with an inheritance. is free from federal income tax. • Failure to plan — Most people don’t put “E”is for emergencies A fixed annuity is another product that puts together a cohesive plan for reaching their fi- Unfortunately, from time to time disaster the power of tax deferral to work for you. With nancial goals. However, with a comprehen- strikes and we end up paying the bill. We can a fixed annuity, you will not pay taxes on your sive and flexible plan, you have a blueprint do little to prevent death and disability, but funds while they are growing, only as you for success. through sufficient insurance coverage, the fi- withdraw them. Withdrawals prior to age 59- • Insufficient diversification —“Don’t put nancial damage can be lessened. Life insurance and-a-half may be subject to a 10 percent ear- MILES O’DONNELL all your eggs in one basket”is an excellent proceeds can provide beneficiaries with the ly withdrawal penalty. rule of thumb.True diversification utilizes a means to pay final expenses, defray lost income “I”is for inflation variety of different products, asset categories and continue to live in the lifestyle to which In our hectic lives, it seems there’s just never Always lurking just around the corner, erod- and lengths of maturity in an attempt to re- they are accustomed. Disability income insur- enough time. But when it comes to planning for ing the buying power of hard-earned dollars, is duce risk and raise the potential for a posi- ance covers a portion of your salary (usually 50- our financial future, there’s always too much the specter of inflation. Even moderate inflation tive return. 60 percent) if you become unable to work due “T.I.M.E,”or,Taxes,Inflation, Mistakes and Emer- can have harmful effects on your lifestyle and to disability. Private insurance, such as long- • Inadequate life insurance — Failure to gencies. Building a nest egg that can withstand purchasing power. For example, in just 15 term care insurance and Medicare supplemen- cover all income earners with a sufficient the test of T.I.M.E. requires careful planning. We years, a 4 percent inflation rate will almost dou- tal insurance, may help fill in the gaps of gov- can’t change T.I.M.E., but there are some steps ble the cost of everything you buy. An option? amount of life insurance can cause a burden ernment-sponsored programs. we can take to help minimize its ravages. Place a portion of your portfolio in growth-ori- for survivors. Yes,T.I.M.E. marches on, trying to wreak “T”is for taxes ented financial products, provided these are • Inadequate disability income insurance havoc on your finances. But you don’t have to The old saying is that only two things are suitable investments for your individual finan- — Our income-earning potential is the en- surrender to it. With proper insurance and certain in life: death and taxes. It’s true, we can’t cial solution.There may be risk to your capital, gine that powers our lifestyle. If that engine personal planning, you can limit the ravages evade taxes, but some financial products do but over the long haul, you may be rewarded were to break down, would our lifestyle suf- of T.I.M.E. in order to retire with a comfort- have particular tax advantages. with returns that keep you ahead of inflation. fer? Sufficient disability income insurance able nest egg.

Continued from page 6 MedPay. denial from the insurer, submit those bills to the PIP insurer for secondary payment and de- One certain aspect of the current MedPay the MedPay carrier with the PIP exhaust letter, John J. McMaster was admitted to the bar in nied, before MedPay will come into play. situation is that will demand significant time health insurance denial, and the PIP re-sub- 1992. After two years as an assistant district attor- The ruling in Metropolitan upholds the Ap- and cost for attorneys and insurers to navigate mission denial. Moreover, the claim procedure ney in Worcester County, he has focused his prac- peals Court’s actual ruling in Meijia, but de- the administrative route required by the recent and coverage availability (as well as the practi- tice on personal injury law. McMaster is a sole bunks the position of some automobile insur- decisions — to submit medical bills to PIP,sub- cal utility of MedPay coverage) may be uncer- practitioner in Northborough with a general prac- ers that the decision required the full $8,000 in mit the balance to the health insurer with a PIP tain as claimants, auto insurers, and medical in- tice that includes personal injury matters. PIP benefits to be exhausted prior to reaching exhaust letter, re-submit the bills to PIP with a surers adapt to the Metropolitan ruling.

MATA’s Affinity Partners

MATA has developed partnerships with the following companies. Their services have been determined to be of the highest quality and cost beneficial for our members.Their generous support of MATA helps us to complete our mission. Please con- sider using them whenever possible. More detailed information can be obtained on our website at www.massacademy.com or through the MATA office.

ADP TotalSource Forge Consulting Northeast Business Machines Catugno Court Reporting Harvey Medical Productions Premiere Global Services & Sten-tel Transcription Margolis & Bloom Robson Forensic Charter Oak Mediator TrialSmith Citizens Bank NY Life Insurance Company West Group 8 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009 The Seventh Annual Diamond Ball FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 9

Sponsored by Cooley Manion Jones, LLP Karon & Dalimonte Mary Jane McKenna, Esq. Shalhoub & Orlacchio Alliance Print Crowe & Mulvey, LLP Kenney & Conley, PC Meehan, Boyle, Black & Bogdanow, PC Sheff Law Offices Alan S. Pierce & Associates Crowe Paradis HoldingCompany Kriendler & Kriendler, LLP NewYork Life Sugarman Annette Gonthier Kiely & Associates, PC Dane Shulman & Associates Law offices of Epstein, Lipsey & Clifford, PC Parker Scheer, LLP Swartz & Swartz Baker & Abraham, PC Fitzgerald Dispute Resolution, LLC Law Offices of Frank J. Riccio, PC Quinn & Morris Thornton & Naumes, LLP Chris A. Milne Law Offices Forge Consulting, LLC Leavis & Rest, PC Rezendes & Trezise Citizens Bank Halstrom Law Offices, PC Lubin & Meyer, PC Sarrouf Corso, LLP 10 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009 MATA Women’s Caucus holds second annual wine-tasting benefit

ByLauren Guth Barnes and Over the last 12 months, the caucus has held a As part of its mission, On the Rise collects do- Kristen Johnson Parker number of networking events and received nations of casual clothing and personal-sized toi- tremendous support from MATA members, staff letries. In connection with the benefit, we ask you Approximately one year ago, to broadcast the and affinity partners. Co-chair Lauren Guth to start your spring cleaning a little early, clear out revitalization of the MATA Women’s Caucus, these Barnes is encouraged by the amount of interest:“It the closets and dressers and donate those clothes pages announced the holding of the MATA was our goal to create a forum within MATA for to a greater cause. And for those of you with cabi- Women’s Caucus first annual wine-tasting benefit. the exchange of knowledge and discussions of is- nets like ours, full of hotel toiletries from nights We’re now proud to publicize year two. Please join sues that are particular to women trial attorneys. spent in hotels preparing for depositions, here’s us for the MATA Women’s Caucus“Second Annual This past year was a great start, and we look for- your chance to put them to terrific use! BARNES PARKER Benefit to Warm the Heart”on Wednesday, Feb. 18. ward to further fostering an environment where As a result of donations gathered at last women attorneys can learn from one another.” year’s benefit, the MATA Women’s Caucus pro- On Feb. 18, from 6 to 8 p.m., the MATA vided On the Rise with two carloads of clothing Women’s Caucus will host its“Second Annual and a suitcase full of toiletries, as well as a sig- Benefit to Warm the Heart”at the offices of Ha- nificant monetary donation. We know we can gens Berman Sobol Shapiro in Cambridge.This do even more this year. Between the souring annual wine-tasting benefit is an opportunity for economy and the particularly cold, snowy win- MATA members to enjoy fine wines, delectable ter Massachusetts has faced this year, the Upcoming chocolates, good music and great conversation. women whom On the Rise supports can use Member Kristen Johnson Parker reports,“Last our collective help now more than ever. year’s event was a tremendous success. We Please join us on Feb. 18. We hope to see all brought together a great group of people, sipped of you — women, men, MATA members and wine, ate chocolate and benefited a very worthy friends — for an evening of wine, hors events charity. What could be better?” d’ouevres, chocolates, music and conversation This year’s event benefits On the Rise, a non- in support of a terrific charity. profit organization supporting the initiative and For more information on the benefit or to get strength of women living in crisis or homeless- involved in the MATA Women’s Caucus, please February ness. In a physically and psychologically safe en- contact Susan Simpson at MATA, e-mail: su- vironment, On the Rise builds the relationships [email protected] or Lauren Guth Barnes at and provides the tools that each woman needs to [email protected]. For more information on 7-11 AAJ Winter Convention, New Orleans rise to her potential and reach a safe environ- MATA, please visit www.massacademy.com. Ad- 16 MATA Office Closed, President’s Day ment. The Women’s Caucus is proud to involve ditional information on On the Rise can be found On the Rise for the second year running. at www.ontherise.org. 17 Executive Committee Meeting 4-6 p.m., 8 New England Executive Park, Burlington 18 2nd Annual Women’s Caucus Wine & Chocolate Tasting Benefit to Warm the MATA Guardians

Heart, 6-8 p.m., Hagens Berman Sobol The following firms have committed to giving a percentage of their fees to a MATA Shapiro, Kendall Square, Cambridge reserve fund to ensure the longevity of the organization and continued ability for MATA to preserve the rights of your clients and succeed in obtaining its mission of keeping Massachusetts families safe.The goal of the Guardians is one year’s budget in reserve. March Baker & Abraham 8 Daylight Savings begins Cooley Manion Jones LLP 7-14 MATA Mid-Winter Conference Epstein, Lipsey & Clifford Mayan Riviera Feinberg & Alban, PC 17 Executive Committee Meeting Law Offices of John B. Flemming 2:30-4 p.m., Citizens Bank, 53 State St., 8th floor Karon & Dalimonte Kazarosian Law Offices Board Meeting, 4-6 p.m., Citizens Bank, Kenney & Conley 53 State St., 8th floor Leavis & Rest, PC Meehan, Boyle, Black & Bogdanow, PC April Alan S. Pierce & Associates Sheff Law Offices 9 Passover Begins Sugarman 10 MATA Office Closed, Good Friday 12 Easter Sunday If you are interested in participating in this program or would like more 16 Workers’ Comp Dinner, Marriott, Newton information on program specifics, please contact Jennifer Comer at the MATA office. FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 11 Thanks to our Commonwealth Circle Contributors

We are grateful to each Circle Contrib- Clyde Bergstresser Ronald E. Gluck Jodi M. Petrucelli Thomas J. Lynch utor for demonstrating a continuing com- Bruce A. Bierhans Annette Gonthier-Kiely Richard J. Rafferty Jr. Robert J. Marchand mitment to MATA’s efforts to preserve and enhance the civil justice system. David R. Bikofsky Jeffery A. Gorlick Michael R. Rezendes Joan McDonough Leslie E. Bloomenthal Lawrence E. Hardoon Frank J. Riccio Charles A. Moegelin Michael Najjar Liberty Club ($15,000 - $25,000) Michael B. Bogdanow T. Mark Herlihy Robson ForensicInc. Gerald A. Palmer LeoV. Boyle Alice Braunstein John D. Hislop III Robert M. Rosen Jeffrey Petrucelly Phillip J. Crowe MarcL. Breakstone Martha Howe Lloyd C. Rosenberg Judson L. Pierce FORGE Consulting, LLC James E. Bryne Michael R. Hugo Steven P.Sabra Stephen K. Sugarman Patrick T. Jones Dennis J. Calcagno Richard G. Jusseme Deborah M. Santello Richard T.Tucker Andrew C. Meyer Thomas L. Campoli Jonathan A. Karon Frank R. Saia Kimberly Winter Michael E. Mone Gerard B. Carney MarshaV. Kazarosian Steven H. Schafer Douglas K. Sheff Robert W. Casby John A. Keilty Peter J. Schneider Minutemen Club ($1 - $500) Neil Sugarman Jeffrey N. Catalano Timothy C. Kelleher III Earlon Seeley Neil Burns Scott J. Clifford Paul F. Kenney Richard G. Shalhoub Christopher M. Daily Patriots Club ($5,000 - $10,000) Sherrill Cline Thomas M. Kiley W.Thomas Smith Robert A. DiTusa Catuogno Court Reporing Services J. Michael Conley Richard A. Lalime Gerald W. Sousa Richard K. Donohue & STEN-TEL Transcription Services Kathy Jo Cook Francis Larkin John St. Andre Jr. Christopher W. Driscoll Citizens Bank Donna R. Corcoran Marianne C. LeBlanc John J. Stobierski Neil R. Driscoll Joseph J. Cariglia Walter A. Costello Jr. Bruce S. Lipsey James A. Swartz Karen J. Hambleton John J. Carroll Jr. James T. Dangora Sr. Francis J. Lynch Thomson-West Mark W. Helwig David P.Dwork Robert A. DeLello William P.MacDonald William H.Troupe Thomas F. Healy FredericN. Halstrom John L. Diaz Mark A. Machera Edwin L. Wallace Robert H. Glotzer Paul E. Leavis John DiBartolo Angel Melendez Paul F. Wynn John P.Riordan Alan S. Pierce Simon Dixon Chris A. Milne GregoryV. Roach Joel H. Schwartz Joseph R. Donohue James T. Morris Colonials Club ($500 - $1,000) Neil J. Roach Jeffrey T. Scuteri William J. Doyle Jr. Thomas P.Mulvey Jr. Paul L. Cummings Martin B. Schneider ValerieA.Yarashus Paul J. Driscoll Vincent J. Murray Jr. Chris Dodig Barbara M. Senecal Peter L. Eleey Michael Najjar Barry A. Feinstein Frank J. Shealey Revolutionaries Club Robert J. Feinberg Robert M. Nathan Daniel Finbury Edward J. Spence ($1,000 - $5,000) Norman J. Fine Andrew D. Nebenzahl Marvin H. Greenberg Ronald Stoia Andrew M. Abraham John B. Flemming Kathleen M. O’Donnell Saba B. Hashem Stephen D. Walsh Paul R. Aiken Michael A. Foglia Gary W. Orlacchio Thomas G. Horgan Timothy H. White Steven M. Ballin Donald Gibson Michael J. Princi William F. Looney Robert Zaffran

For the first time, the leading trial lawyers in Massachusetts reveal their secrets for handling trials in today’s changed environment.

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weekly wage in the commonwealth; increases benefit allowances for burial expenses from $4,000 Legislation Committee update to $8,000; repeals provisions limiting compensa- tion for workers who are partially incapacitated; Prohibits the issuance or renewal of a license tion or definition of any motor vehicle liability authorizes extension of said benefits for the articu- Continued from page 3 for the sale of alcohol to be drunk on the prem- policy or bond without the approval of the Com- lated cases including, but not limited to, workers Court to allocate certain settlement proceeds ises unless the applicant provides proof of cov- missioner of Insurance after notice of such pro- who return to work pursuant to individual written Allocates proceeds from a personal injury judg- erage under a liquor legal liability policy of at posed changes to the public and the Financial rehabilitation plans, workers who are found un- ment or settlement between the plaintiff and the least $250,000 for a single incident and Services Committee prior to a public hearing; suitable for vocational rehabilitation, and workers insurance company that provided benefits for $500,000 for multiple incidents; House Bill 912 who return to employment for wages less than treatment of said injury; authorizes the court to re- Senate Bill 942 An act relative to certain medical examinations their pre-injury wages; duce amounts of insurers’liens if said settlement An act to clarify the charitable purposes of Amends provisions relative to automobile insur- House Bill 1828 or judgment amount does not sufficiently com- certain organizations ance liability insurance; requires an injured person to An act relative to injured workers pensate the plaintiff for damages incurred; Prohibits use of the fact that a corporation, trust submit to physical examination by a licensed practi- Authorizes administrative judges to deter- mine the rates for health care services in work- House Bill 1625 or association is a charity as a defense to any tort ac- tioner, selected by the insurer, as often as required ers’ compensation cases, if the insurer, employ- An act to prohibit the use of certain liability tion; limits liability in said cases to $20,000 if said but no more than one every six months; requires er and health care service provider cannot waivers as against public policy tort was committed in the course of charitable activ- said examinations to be conducted in a location ac- agree, or if equity and justice require a rate oth- Defines any agreement, waiver, disclaimer, exclu- ity and said corporation, trust or association earns cessible from the injured person’s residence; failure er than one otherwise provided; sion or limitation of liability in an employment con- more than 50 percent of its income from gifts or do- to comply constitutes a violation of Chapter 176D; tract or application releasing any third party from li- House Bill 1826 nations; limits liability for organizations established House Bill 910 An act relative to impartial medical examiners ability for injuries or death resulting during the primarily for religious purposes to $20,000; An act to repeal no fault motor vehicle insurance scope of employment as void against public policy; Amends various provisions relative to the modi- MATA AutoLegislation Repeals existing provisions relative to the in- fication or discontinuation of workers’compensa- prohibits the mandatory signing of said documents House Bill 1621 clusion of personal injury protection in motor tion benefits by employers; amends regulations by employees or employment applicants; An act relative to personal injury litigation vehicle insurance policies and maintenance of pertaining to the appointment of impartial physi- House Bill 1628 Regulates adjudication of settlements for assigned claim plans by motor vehicle insurance cians to examine beneficiary employees and use of An act relative to the examination of jurors lawsuits against insurers relative to failure to companies; amends various provisions relating the reports of impartial physicians to authorizing Establishes a pilot program governing the voir pay personal injury benefits; authorizes courts to coverage under assigned risk plans including, benefit changes; authorizes the use of reports as dire procedures for selection of jurors in civil and to assess costs, reasonable attorneys’fees and but not limited to, increasing the limits of med- evidence in hearings pertaining to benefit discon- criminal trials; authorizes the direct oral examination interest against insurers for costs accrued up to ical payment coverage and providing wage pro- tinuation or modification; repeals provisions des- of the potential jury members by a party to the trial the time of payment by the insurers; tection coverage thereunder; articulates manda- ignating reports as binding on all parties; regulates or the attorney therefore; authorizes the court to im- House Bill 911 tory coverage by companies issuing motor the contents of medical reports; designates failure pose reasonable limitations on questions presented; An act relative to requiring insurance for vehicle insurance including, but not limited to, to report to impartial physicians for examination as House Bill 1651 taxicabs and commercial vehicles medical payment provisions without regard to sufficient cause for suspension of workers’com- An act providing for the equitable apportion- Requires all commercial vehicles and taxi negligence or fault and wage protection cover- pensation benefits ment of certain liens cabs charging a fee to passengers to maintain age; repeals tort threshold requirement; The committee welcomes the ongoing par- Requires the hospital, health maintenance liability insurance policies of at least $100,000 MATA Workers’ Compensation Legislation ticipation of its members and invites more organization or medical or dental services cor- for death or injury of any one person or of at House Bill 1862 members to become involved. For copies of poration and the plaintiff in a personal injury least $300,000 for accidents resulting in death An act relative to worker’s compensation legislation, visit the Legislature’s website at action to divide costs and expenses incurred in or injury to more than one person; Amends provisions relative to the payment of http://www.mass.gov/legis/. For more informa- enforcing the liability of the tortfeasor, includ- House Bill 1058 workers’compensation benefits by insurers; re- tion about MATA’s Legislation Committee, visit ing attorneys’fees and court costs; An act to protect consumers in the issuance quires insurers to pay workers’compensation ben- http://www.massacademy.com/ma/. House Bill 913 of automobile insurance policies and bonds efit allowances to workers with bodily disfigure- MATA thanks the people who gave their time An act relative to liquor legal liability insurance Prohibits the changing of any coverage, condi- ment in the amount up to 29 times the average to address important issues at the State House.

$150 card Kimberly E. Winter Richard G. Shalhoub Monthly Contributors 2009 Andrew Abraham Paul F. Wynn John J. St. Andre Jr. Clyde D. Bergstresser MATA’s monthly contribu- AAJ’s PAC to support federal $500 card Alice Braunstein $100 Card $50 Card tors have made a tremen- legislators and candidates. Douglas K. Sheff Chris Dodig dous commitment to MATA These contributions make it Marc Breakstone Steven M. Ballin Kathy Jo Cook Bruce A. Bierhans Saba B. Hashem and to AAJ, the American possible for both MATA and $300 card J. Michael Conley James E. Byrne Martha Howe Association for Justice, on be- AAJ to continue and increase David R. Bikofsky Walter A. Costello Jr. Jeffrey N. Catalano Richard Jussaume half of their clients and their their political efforts both lo- Michael B. Bogdanow Simon Dixon James T. Dangora Sr. William J. Keller profession. Their dedication cally and nationally. It allows John J. Carroll Jr. Paul Driscoll John L. Diaz Francis J. Larkin to the preservation of the jury for both organizations to edu- Robert W. Casby system has made it possible cate the public and politicians Donna R. Corcoran Norman J. Fine William J. Doyle Jr. Bruce S. Lipsey for MATA and AAJ to contin- and to directly impact con- Robert A. DeLello Donald Gibson Peter L. Eleey Robert R. Marchand ue to protect consumers sumers via the legislature. Gerard J. DiSanti Ronald Gluck John B. Flemming Charles B. Moegelin against tort reform move- We are grateful for the Frederic N. Halström Annette Gonthier-Kiely Donald Gibson Robert M. Nathan ments that threaten the support our Monthly Con- Timothy C. Kelleher III Jonathan Karon Jeffrey A. Gorlick Jeffrey Petrucelly rights of citizens every day. tributors provide and their Paul F. Leavis MarshaV. Kazarosian John R. Keilty Approximately 80 percent dedication to the rights of Judson Pierce Alan J. Klevan Thomas A. Kiley of each contribution goes di- consumers and victims. Marianne C. LeBlanc Stephen K. Sugarman Mary Jane McKenna Richard A. Lalime rectly to MATA to fund items Jodi Petrucelli Richard Tucker Chris A. Milne Mark A. Machera such as the lobbyists, and a $,1000 card Peter J. Schneider Robert Zaffrann Angel Melendez portion goes to Lawyers for LeoV. Boyle W.Thomas Smith Michael Najjar Andrew D. Nebenzahl Vincent J. Murray Jr. Action PAC (political action Philip J. Crowe Jr. ValerieA.Yarashus $25 Card Richard J. Rafferty Jr. Kathleen O’Donnell committee) which provides Patrick T. Jones Neil Burns $200 card Frank J. Riccio Gary W. Orlacchio Claudine A. Cloutier support to state political leg- Andrew C. Meyer Jr. islators and candidates. The Paul R. Aiken Lloyd C. Rosenberg Michael R. Rezendes Christopher M. Dailey Michael E. Mone remaining 20 percent of the Michael R. Hugo Leonard A. Simon Frank R. Saia Karen J. Hambleton Neil Sugarman monthly contribution goes to Alan S. Pierce Edwin L. Wallace Deborah M. Santello Barbara M. Senecal FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 13 Membership application now available LICATION The following is a list of MATA’s benefits and services and a BERSHIP APP membership application form: MEM TA E-mail Listserv— This online forum currently puts over : I want to join MA ed accordingly) Membership 30 and are prorat 700 attorneys’insights and resources at your fingertips. With a l year July 1–June (dues are for fisca click of the mouse, you can ask for an expert, a question of law ne year $50 practice less than o or experience with a certain mediator, and receive an answer Ì Admitted to 0 ce 1-5 years $11 instantaneously. Ì Admitted to practi 5 ce 5-9 years $22 Deposition bank — Members have online and phone/fax Ì Admitted to practi access to over 250,000 expert depositions right from the MATA + years $475 tted to practice 10 website. Ì Admi Ì aralegal $40 Case evaluations — Seasoned attorneys evaluate and P provide input on various cases, as requested by individual Ì Government $65 members. Ì Students Free Deposition coaching — This service allows members to meet Ì Affiliates $165 with one of our expert coaches to discuss and receive guidance on ______a particular deposition. ______Name:______Practice sections — MATA provides necessary resources to ______ol: ______members practicing in a specific area, such as auto litigation, med- Firm/court/scho ______ical negligence, new lawyers and workers’compensation. ______Address: ______Fax: ____ Client newsletters — “You & the Law”is a high-quality, affordable ______Telephone: ______publication developed by a fellow state trial lawyer association, which ______helps educate clients about legal issues. It can be customized with your -mail:______E ______own personal message and firm information. ______me address: ______Ho ______Mentor service — This service offers new lawyers an opportunity phone:______Tele ______to work with an experienced attorney in their practice area. ______e bar: ______Return to: of admittance to th Date MATA Legislative representation — Through our professional lobbying ecutive Park 8 New England Ex firm, MATA initiates, monitors and acts on legislation as it best serves ENCLOSED Suite 160 Ì SA Ì CHECK Ì M/C VI ton, MA 0180_3______the interests of consumers. In a typical legislative session, MATA fights Ì AMEX Bur_li_n_g______40 ______(781) 425-50 to block 50 to 70 anti-consumer bills, and initiates 20 to 30 pieces of ______) _____ Credit Card #: 1)_4_2_5_-_5_0_4_4__(_fa_x___ pro-consumer legislation. ______(_7_8______assacademy.com ______susan@m ____ Exp. date: ______e_m_y_._c_o_m______w__w_w_._massacad Continuing legal education seminars — Put yourself at the forefront ______of trial practice through our educational seminars. Whether you attend Security #:______in person, online, rent or purchase them on DVD, MATA’s seminars will help to give you a competitive edge.

Amicus briefs — MATA members can request that an amicus curiae Public education and media — MATA focuses its efforts on improving the image of be filed in support of their case. the legal profession by increasing the understanding of the role of attorneys and the is- Publications — The MATA Journal offers practical legal articles. E-clips — daily sues that affect clients. news clips of interest to the trial bar — are e-mailed daily. Also offered is the MATA Referral service — This service refers cases to participating member attorneys based Minute, a monthly e-newsletter providing important organization information. on their area of practice and geographic location. Networking and information exchange — Interact with fellow members at key events, Affinity partnerships — MATA has entered into several long-term agreements with ven- including the golf tournament, Diamond Ball and Annual Dinner, as well as the Bermuda dors to provide a variety of services pertinent to your profession. Some of our premier service Convention in November and the Caribbean Mid-Year Convention in March. MATA providers include FORGE Consulting, Citizens Bank Law Firm Banking Program, Catugno also provides suburban luncheons and monthly social events. Court Reporting, Experienced Resolution Resources, Workers’Comp RX, Legal Talk Network, Robson Forensic, Premier Global Services and TrialSmith. In addition, several companies pro- Website — Our website provides access to the MATA calendar and Board of Gover- vide discounts to our members, including professional liability insurance, health insurance, nors, MATA Journal articles, verdicts, settlements and arbitration awards, depositions conference calling, video services and computer services. and legal briefs, pertinent news articles, legislative updates, membership listings, CLE DVDs and materials, case law research, referral service, links to firms, vendors and other Meeting space — Space is available at the MATA office for members to utilize, legal resources. whether it be for a client meeting, section meeting, seminar or deposition. 14 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009

Mayan Riviera Mayan RivierKaARAS March 7-14, 2009 TOURS Ideally located on a white sand beach in the Mayan Riviera, the Iberostar Tucan is literally ONLY immersed in 28 acres of jungle with stone pathways winding through tropical gardens. $1,879 Magnificent beach with turquoise water, five star accommodations, five restaurants per person based on with all inclusive meals, drinks and snacks... a fabulous kids camp, great double occupancy plus 15% tax and service entertainment, convenient and excellent golf, the wonderful Mexican town of for this incredible travel package! Playa del Carmen, world class diving and snorkeling and archaeological site seeing? We are returning to the Mayan Riviera and the Iberostar Tucan... our most popular destination ever. Space is limited so be sure to reserve early. This will sell out and you won’t want to miss the fun!

 Seven nights deluxe accommodations at the five star Iberostar Tucan  Round-trip airfare between Boston and Cancun  All meals and imported and domestic drinks  Round-trip transfers REGISTRATION FEE:  Free tennis, sailing, kayaking, and windsurfing $75 for Members  Fitness center with spa services available $150 for Non-Members $25 Activity Fee  Lucy’s Club fee included on your billing  Nightly entertainment . . . and so much more!

508-480-8300  FAX 978-443-9027  800-840-3441 e-mail: [email protected] RESERVATION APPLICATION Mail to: KARAS TOURS, P.O. Box 508, Sudbury, MA 01776 Count me in! Enclosed please find my check for $200 per person for the MATA Winter Seminar trip to the Mayan Riviera in March for the following: ( ) Single ( ) Double

Name:______Telephone-Day: ______PLEASE INCLUDE FIRST AND LAST NAME OF EACH TRAVELER Address:______Telephone-Evening:______

City:______State:_____ Zip Code:______Fax:______

Since Mexico is an approved destination, travel and accommodations may be tax deductible. Please consult your tax advisor. Departure tax is currently $110.00 and is additional. PASSPORTS REQUIRED .... NAMES MUST MATCH PASSPORT Prices subject to fuel surcharge.

FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 15 Child trespassers and water hazards

Continued from page 5 deep, stepped into large hold dredged in the pools in general and greater than the risks a question of fact for the jury. Even if the courts been imposed on the possessors of land for the bottom of the river by defendant city); Sanchez posed by that very pool on earlier occasions were to rule that water is obvious as a matter of drowning of children, whether trespassers or v. East Contra Costa Irrigation Co., 205 Cal. 515, when the plaintiff may have been in it or when law, evidence that the water contained any un- not, caused when they were wading in water 271 P.1060 (children playing at edge of irriga- she entered the pool on this occasion.The ab- usual, exceptional or hidden dangers would beds, regarded as safe and to all appearances tion canal held to have assumed risk of open sence of the rope caused the location where the likely raise a jury issue as to whether a trap ex- involving no more than the ordinary risks of a and obvious danger incident to canal but not to floor began its slope into the deep end of the isted, rendering the obvious water hazards rule body of water, and then suddenly stepped off have assumed risk of unknown, concealed, and pool to be concealed, thereby creating a trap. inapplicable. into a deep hole created or maintained by the unguarded danger incident to a large siphon The absence of the dividing rope arguably When claiming that a water hazard was not defendant.”Coeur d’Alene Lumber Co. v.Thomp- constructed at one point in canal by defen- increased the danger to the girl in at least two obvious to a trespassing child, the nature of the son, 9 Cir., 215 F. 8, L.R.A.1915A, 731 (boys dant); City of Indianapolis v. Williams, 58 Ind. ways: (1) the rope was not there to warn her hazard should be carefully defined. Instead of wading in shallow pool of water surrounded by App. 447, 108 N.E. 387 (child wading in stream that the slope into deeper water began at that arguing generally that the child did not under- piles of sawdust on defendant’s land suddenly running through city in which children usually location, a warning she no doubt would have stand the risk posed by a pool full of water, the step off into deep hole or well); Ide v. City of St. waded stepped into a large and deep hole heeded, as she knew she could not swim and plaintiff should perhaps define the danger more Cloud, 150 Fla. 806, 8 So. 2d 924 (city maintain- caused by flow of water into stream from sewer (2) had the rope been present, plaintiff could narrowly, as in the hypothetical just discussed, by ing bathing beach allowed deep hole in lake to constructed by defendant city).”Id. at 255-58. have grabbed it to stop herself from slipping focusing on a particular danger (e.g. the absence remain unguarded); Dinnihan v. Lake Ontario The 14-year-old plaintiff might argue suc- into the deep water after having stepped onto of a rope, slope of the floor, etc.) in the design or Beach Imp. Co., 8 App. Div. 509, 40 N.Y.S. 764 cessfully that the dangers of the apartment the sloping floor. maintenance of the pool or other water body. (dangerous hole in bathing beach); City of Altus complex swimming pool were not obvious as a The interplay between the child trespasser Roger T. Manwaring is an attorney at Barron & v. Millikin, 98 Okl. 1, 223 P.851 (city’s failure to matter of law, and, therefore, that she has satis- statute, G.L.c. 85Q, and the obvious water haz- Stadfeld in Boston. He concentrates in civil litiga- construct spillway which caused formation of a fied the requirement of §85Q(c) that, because ard rule remains less than crystal clear. Like tion with an emphasis on legal research and writ- pond generally shallow but containing a dan- of her youth, she did“not discover the condi- other determinations as to whether a trespass- ing. Manwaring is senior researcher for the Barron gerous hole where excavations had been tion or realize the risk involved in intermed- ing child noticed and appreciated fully the dan- & Stadfeld Legal Research and Writing Service made); City & County of Denver v. Stutzman,95 dling with it.”Because the dividing rope had ger posed by a condition on the defendant’s (www.barronstad.com/research.html), serving at- Colo. 165, 33 P.2d 1071 (child wading in Platte been removed, the pool in which she was in- land, whether §85Q(c) is satisfied where the torneys in private and corporate practice. He can be river, generally shallow but in some places knee jured presented risks greater than those of danger arises from a body of water is probably reached at [email protected].

ADR/EXPERT &LEGAL SERVICES

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ALTERNATIVE DISPUTE RESOLUTION To be listed in the Expert & Legal Services Directory, ATTORNEY Boston Law ON THE MERITS PATRICIA A. BARBALUNGA Collaborative, LLC please call Michelle Cerulli at Law•Mediation/Arbitration•Consulting•Training Arbitrations & Mediations Arbitration/Mediation 99 Summer Street, Suite 1600, Boston (800) 444-5297 x 12213 or (413) 443-1505 617-439-4700 or visit our web site: www.BostonLawCollaborative.com Retired Judge (617) 218-8213 James W. Dolan DOLAN CONNLY To be listed in the 50 Redfield Street ADR Directory, David Hoffman, Esq. Dorchester, MA 02122 please call Sophie Besl at Immediate Past Chair, Tel: (617) 265-3100 (800) 444-5297 x 12134 or The Pleasant Alternative to Court ABA Section of Dispute Resolution Fax: (617) 265-3101 (Mediations also held in www.pbarbalunga.com Wellesley, Newton and Concord) [email protected] (617) 218-8134

16 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009

Please join the MATA Women’s Caucus for: The Second Annual Benefit to Warm the Heart Wednesday, February 18th, 6-8 pm

Event: Wine Tasting, Hors d’Oeuvres, Music, and Mingling!

Location: Hagens Berman Sobol Shapiro LLP One Main St., Kendall Square, Cambridge

FREE PARKING AVAILABLE IN THE GARAGE AT 101 MAIN STREET!

Donations: Please bring a donation in the form of casual women’s clothing, personal size toiletries, or monetary contribution.

Charity: On the Rise is an organization that provides lifesaving resources for women in crisis in the Greater Boston Area. On the Rise helps build the relationships and provide the tools that each woman needs to rise to her potential. http://www.OnTheRise.org.

Please RSVP to [email protected] by February 11th

Brought to you by the MATA Women’s Caucus