Legal Briefs

Video helps case of amnesia-victim

On a winter evening, a woman was knocked unconscious when she was hit by a car on Route 133 in Andover. Due to retrograde amnesia, she was unable to remember anything about the incident, during which she sustained multiple fractures.

The driver claimed that she was traveling at the speed limit and never saw the pedestrian until after the accident. The driver also claimed that the pedestrian walked into the side of the car and was outside of the crosswalk.

In investigating the scene, the pedestrian’s lawyers, Andrew M. Abraham and Paul K. Baker, learned that a nearby building had surveillance, which was handed over to the police.

The Boston-based lawyers contacted an out-of-state forensic video expert who was able to break down the surveillance video into half-second snapshots and turn it into a PowerPoint presentation, which showed the pedestrian was visible at the crosswalk just before the incident.

At the scene, the expert made a series of calculations, determining that the car was traveling 46.79 mph in a 30 mph zone. He further calculated the speed of the six vehicles ahead of the defendant’s car and found that the driver was traveling 50 percent faster than the average.

The expert was also able to demonstrate that the pedestrian was standing in the middle of the crosswalk for about five seconds before being hit and that the driver had an unobstructed view of the crosswalk for about 250 feet.

Abraham and Baker reported that, based on the expert’s testimony, the insurance company agreed to mediation and the pedestrian received a settlement of $1.15 million.

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Chimney work ends in poisoning death

What began as simple maintenance work on a fireplace turned into a tragedy for one family, resulting in a $245,000 settlement.

The defendant, a licensed plumber, was enlisted to install a gas fireplace insert into the chimney in a family’s basement.

The fireplace was located at the base of a chimney that had two flues. However, the flues were not separated, as required by the state building code. Instead, there was an opening at the end of the respective flues that provided access from one flue to the other. Although the non-compliant condition was easily observable by the plumber, the project was started anyway.

To properly install the fireplace insert, the plumber removed the damper, which provided direct access to the fireplace and living space for any fumes that might build up in the left flue. In addition, installation of the appliance required that a small round flue run up the chimney and out the top, and the top of the fireplace was required to be capped with a rain guard.

One night, as the father was sleeping in the basement, a build-up of fumes occurred in the flue. With a blockage created by squirrels that made a very thick and compact nest within the flue, the fumes could not escape out the top of the chimney and instead entered the living space.

The next day, police were called to the house when the son was unable to wake his father. The father was taken to the hospital and was pronounced dead from carbon monoxide poisoning.

The plumber said that the insert was properly installed, citing the report of the local inspector who certified the installation the day after the father’s death.

In obtaining the settlement, however, Gregg J. Pasquale and Ann Marie Maguire of Taunton, the plaintiff’s attorneys, maintained that the installation of the unit was negligent.

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Quiet walk leads to grave decision

To many mere mortals, a graveyard would hardly seem to be a place of recreation. But a decision by a Berkshire Superior Court judge suggests that a cemetery may be as much about living life as honoring the dead.

Judge Daniel A. Ford ruled that a state law called the Recreational Use Statute renders the city of North Adams immune from liability in the case of a woman who was injured while visiting a city-owned cemetery.

The woman, who was injured after falling into a pothole, said in a pretrial interview that she was in the cemetery to talk a walk and exercise.

Citing a law about the Recreational Use Statute, the judge said that “if strolling in a park to see flowers is recreational, I see no reason why walking in a cemetery to get exercise and view grave sites should not be considered recreational as well.”

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Buskers no longer singing the blues

Several Provincetown street performers who were fighting a local crackdown on troubadours are singing a happy tune after a Boston attorney brought their case to center stage.

Boston attorney Marc L. LaCasse first became aware of the issue when a friend was playing on the town’s ever-crowded Commercial Street. The musician was approached by three police officers who said he was violating a local ordinance because he was audible 50 feet away. The busker unplugged his guitar from his amplifier, but the softer sounds resulted in smaller crowds for the music and fewer tips for the musician.

When LaCasse learned that P-Town mainstay Marcia Mello, a Delta blues singer/guitarist, had also been targeted and had been issued $150 worth of citations, the lawyer decided to take on her case along with his friend’s.

LaCasse said that a citizen initiative had been enacted in 2007, amending the town bylaws to state that unnecessarily loud, excessive or unusual noise should not be audible at a distance of more than 50 feet. But, said LaCasse, the bylaw does not define the terms “unnecessarily loud, excessive or unusual.”

LaCasse threatened a lawsuit that would challenge the ordinance — a tactic used successfully by Boston buskers in 2004.

LaCasse has since been promised by town officials that the bylaw will be amended.