Legal Briefs

Construction vehicle strikes, kills bicyclist

Cyclists can take a variety of safety precautions when they hit the road, but as one multi-million-dollar settlement shows, sometimes there is no protection against the actions of others.

While in a crosswalk at an intersection, a woman was patiently straddling her bike and waiting for a red light to turn green when suddenly, and without warning, she was run over and killed by a construction vehicle called a "boom lift" that had come barreling down the street.

The boom-lift operator was in a basket 36 feet behind the front of the lift, in a position that created a blind zone, and had not even noticed the cyclist in his path as he attempted to make a right turn.

The deceased cyclist's estate sued the owner of the boom lift and the boom-lift manufacturer, arguing that the operator was "grossly negligent" and that safety precautions — such as audible beeper alarms or the use of a spotter — would have prevented the cyclist's sudden death.

The defendants pointed fingers at each other. It was not until the first day of the trial, plaintiff's attorneys Burton A. Nadler and Jeffrey P. Petrucelly of Boston report, that the parties were able to settle the case for $4.03 million with the help of a trial judge.

 

Informant fails to prove romantic tryst with cop

Confidential informants are expected to get their stories straight when working for the police. Maybe one "C.I." should have been mindful of that expectation before she accused a police officer with whom she was working of engaging in an inappropriate relationship with her.

The informant, who was seeking a restraining order against the officer whom she allegedly dated for a year, claimed the couple "went out here and there" and had dined together at restaurants "plenty of times." But when asked specifically in court where they had gone, the informant could not recall a single restaurant or occasion.

The officer, on the other hand, vehemently testified that he "never had a cup of coffee, dinner, shared a movie, hotel, absolutely no sexual intercourse, absolutely never in my life" with his former partner in crime-fighting.

In the end, the informant's bid for a restraining order went nowhere because she failed to prove that she had shared a substantive dating relationship with the officer — a prerequisite to a restraining order under Massachusetts law.

According to the officer's lawyer, Brian E. Simoneau of Framingham, the verdict for his client was subsequently upheld by the Appeals Court.

 

Woman claims injury after elevator 'crash'

A woman claiming to have survived a ride in a free-falling elevator in Boston received a $1.1 million settlement check for her injuries, even though others said the incident never happened.

While taking the elevator from the fifth floor to the lobby of a building in downtown Boston, the female plaintiff said, she and another passenger felt the elevator go into a free fall and crash into the lobby.

Alleging a brain injury from the fall, the plaintiff was unsure if she lost consciousness; she claimed to have had amnesic gaps before and after the impact.

The woman sued the building manager, the elevator maintenance company and the elevator-installation company, saying poor installation allowed dust and debris to enter the hydraulic fluid and adversely affect the down-portion of the valves.

The plaintiff, who was represented by Andrew M. Abraham and Paul K. Baker of Boston, also argued that the maintenance company should have recognized the problem and corrected it.

But the defendants claimed that the accident did not happen and could not have happened; they argued that if the elevator was in a free fall, the safety system would have stopped it.

The defendants also questioned the plaintiff's injuries, noting that she went to dinner after the crash, reported to work the next day and did not seek medical treatment until 12 days later. They also argued that any issues the plaintiff had were related to pre-existing psychological problems she was treating at the time of the accident.

 

Family gets $1.75M in shaken-baby suit

Infants cannot communicate verbally, but a $1.75 million settlement in a case of shaken-baby syndrome demonstrates that sometimes evidence speaks louder than words.

An 11-week-old infant was brought by ambulance to a hospital emergency room after suffering seizures while in the care of her home-based day-care provider. She was diagnosed as suffering from shaken-baby syndrome, which caused bleeding in her brain and the seizures.

The baby remained hospitalized in intensive care for several weeks before being released to her parents.

The injuries caused a permanent impairment of the baby's intellectual and cognitive functioning. She will likely need some level of supervision for the rest of her life.

The baby's parents sued the day-care provider and her employer for battery and negligence.

But the day-care provider denied ever shaking the baby and suggested that the injuries were inflicted prior to the infant's arrival for day care. The day-care provider was never criminally prosecuted, and there were no witnesses to support the claim that the day-care provider had shaken the baby.

Further complicating the case for the plaintiff was the presence of older bleeds to the brain that were of indeterminate age and cause.

Nevertheless, the plaintiff's Worcester attorneys — William E. Bernstein, Richard T. Tucker and Sean C. Murray — were able to secure the $1.75 million settlement, the bulk of which was structured to be paid to a "special needs trust" so as to provide lifetime income for the child.

 

Passenger free to fly with $400K verdict

In a post-9/11 world, most frequent travelers have become accustomed to waiting in long security checkpoint lines and possibly even being questioned by authorities, but when an American Airlines passenger was removed from a flight because of his appearance, the matter went straight from the jetway to the courtroom.

The passenger claimed he was removed from a flight because the airline mistakenly believed he was of Arab, Middle Eastern or South Asian descent.

The passenger was, in fact, born in Portugal and had grown up in Fall River.

Despite the fact that the passenger was questioned and cleared by the Massachusetts State Police — and despite being a frequent flier with the airline — the airline still refused to book him on another flight and could not provide an adequate explanation for its decision.

According to the passenger's attorneys, David S. Godkin and Darleen Cantelo of Boston, and Michael T. Kirkpatrick of Washington, D.C., the civil rights case against the airline ended smoothly for their client, as a U.S. District Court jury awarded the passenger $400,000.

 

Hockey player iced for off-rink conduct

A minor-league hockey player partying with teammates in Boston found himself on thin ice with police — and a Suffolk County jury — after assaulting a woman at a Boston nightclub.

The 37-year-old victim, who was at the club with her friends, claimed she was pinched on the buttocks two times by the 25-year-old hockey player. The woman was so incensed she threw a glass of water on the jock.

Later, as the woman was exiting the ladies' room, she was confronted by the hockey player, who, according to the woman, grabbed, dragged and punched her, and then he kicked her when she fell down before he fled the scene.

Boston police soon caught up with the young man, who pleaded guilty to criminal charges stemming from the assault.

At the woman's civil trial seeking money damages, the hockey player claimed that, although he pushed the plaintiff, he did not punch or kick her. He also claimed his face was cut when ice from the glass hit him.

But the jury was not swayed and instead awarded the woman $100,000 for her injuries.

Marianne C. LeBlanc and Gabriel H. Teninbaum of Boston, the woman's attorneys, said that their client was humiliated by the incident and had nightmares about it. The woman also reportedly sustained bruises on her face, body and back, and she reported neck and hip pain.

 

Injured driver hits insurer's 'Stop' sign

Eyewitnesses to an accident deflated the chances of a man trying to get his insurance company to pay for injuries he sustained while street-racing his car in Lynn.

The plaintiff motorist, who fractured his skull after losing control of his car and crashing into a tree on Western Avenue in Lynn, brought an out-of-court claim before an arbitrator, alleging he was cut off by an unidentified motorist. The plaintiff testified that he was not speeding or racing another car at the time of the accident.

But several witnesses had a different story to tell.

Western Avenue has a single lane of travel in each direction, and one eyewitness testified that he saw the plaintiff's Honda Civic pass his car at a high rate of speed and traveling in the wrong lane. According to the witness, the plaintiff lost control of his car and struck a tree and then a large rock. The plaintiff had been ejected from his car.

Another eyewitness testified she saw the plaintiff's car stopped a half-mile from the accident location. The plaintiff was racing his tires and then sped off with another Honda close by. That witness testified that the plaintiff was racing the other car.

One of the individuals who testified claimed she saw the plaintiff's Honda Civic and another Honda Civic approaching her car at a high rate of speed. The witness testified that she stopped her car at a red traffic light, but the plaintiff and the driver of the other Honda, who both had their hazard lights on, did not stop.

In a ruling for the defendant insurance company, which was represented by James F. Murray of Saugus, the arbitrator found that the plaintiff was more than 50 percent at fault for the accident and did not award coverage.

 

Man ditches boat, caught in law's net

A charter-boat owner who discarded his old wooden vessel for a newer model was ordered to publicly apologize for illegally sinking the vessel off the coast of Gloucester.

Thomas W. Lukegord Jr., 47, also was sentenced to serve a year of probation and to pay $3,928 in fines and restitution. Under an agreement with prosecutors, he pleaded guilty to one misdemeanor count of violating the 108-year-old Refuse Act.

Lukegord, of Gloucester, bought a 30-foot boat he named Jilly in 2000 to replace his aging 62-foot vessel named Nicole Renee, prosecutors said in court filings.

Rather than pay approximately $10,000 to properly dispose of the Nicole Renee, Lukegord used the Jilly to tow the boat out to sea. He intended to tow the Nicole Renee to deeper waters, but a storm hit, so he sank it in 100 feet of water off Wingaersheek Beach in Gloucester, according to prosecutors.

Lukegord had removed fuel and other hazardous materials before sinking it in commercial fishing waters, in violation of the Refuse Act.

As part of the plea deal that was approved by U.S. Magistrate Judge Judith G. Dein, Lukegord was also forced to write a public apology in the Gloucester Daily Times and the Standard-Times of New Bedford — newspapers serving the two largest fishing ports in the region.

A portion of the fine will go to the people who reported the sinking.

The Nicole Renee will remain at the bottom of the sea because authorities say it would be too expensive to remove and likely would break apart in the process.

 

Shuttle-bus mishap nets woman $500K

A Middlesex County jury awarded more than $500,000 to a 43-year-old woman who suffered head injuries when part of a shuttle-bus ceiling fell on her head.

The woman, who had been a passenger on an Alamo Rent-A-Car shuttle bus to the airport in Phoenix, claimed she lost consciousness when a portion of the ceiling fell, but she regained consciousness as the bus reached its drop-off location.

Emergency medical technicians arrived, but the plaintiff decided, against medical advice, to return to Boston without going to the hospital.

On returning to Boston, the plaintiff made an appointment for an MRI because of neck pain from a prior automobile accident. She continued to suffer from severe headaches and sought treatment at a hospital where head X-rays and a CT scan were negative.

She also developed severe stuttering and memory difficulties and was referred to a psychiatrist, who diagnosed her with conversion disorder, a condition in which underlying psychological distress produces unexplained physical symptoms.

The plaintiff later brought a claim against the Alamo rental-car company, claiming its negligence caused her to suffer from a mild traumatic brain injury.

At trial, she presented experts who testified that she suffered from significant, permanent impairments and would be unable to return to her previous employment.

However, the rental-car company seized on the plaintiff's earlier diagnosis of a conversion disorder and presented medical experts who testified that her unexplained injuries were exaggerated or were more likely caused by the conversion disorder than the alleged brain injury.

But a key admission from a psychiatrist hired by the defendants for trial may have been the turning point, according to the plaintiffs' lawyers, Jonathan A. Karon and John A. Dalimonte, both of Boston.

The lawyers recalled that the psychiatrist admitted that he had treated patients with both a conversion disorder and a mild traumatic brain injury. He testified that the unexplained symptoms improve and the patient is left with the recognized symptoms of a mild traumatic brain injury.

At the end of trial, the jury awarded the plaintiff a total of $559,326 — $300,000 for the plaintiff and $60,000 for each of her two children.

 

In items in which out-of-court settlements have been reported, names and locations may not be available due to the confidential nature of the agreements.