Congratulations to our newest associate Michael Stefanilo, Jr. whose article “If You Can Play...You Can Play” was published by the Sports Lawyer Journal in April of 2013. Click here to read the article. For more information on Mr. Stefanilo, please click here.
IMPORTANT NEW INFORMATION & DECEMBER DEADLINE
Brody, Hardoon, Perkins & Kesten, LLP's Ethics Practice is pleased to provide you with the following important new information from the State Ethics Commission about its new online training program for municipal employees, together with a reminder about the requirement to distribute to all employees by December 31 a copy of the Commission's Summary of the Conflict of Interest Law for Municipal Employees. We hope you find this information helpful. Specific facts and circumstances require individualized legal analysis. Feel free to contact attorney Judy Levenson at Jlevenson@bhpklaw.com with general questions or to discuss possible legal assistance with particular issues.
BHPK ETHICS LAW ALERT
IMPORTANT NEW INFORMATION and
REMINDER Re: DECEMBER 31, 2012 DEADLINE
1. NEW: Mandatory Online Training Program for Municipal Employees
December 10, 2012 - State Ethics Commission will release new online training program on conflict of interest law for all municipal employees. The Program will be available on the Commission’s website (www.mass.gov/ethics), and the Commission also will send a link to access the new program to municipalities’ designated liaisons to the Ethics Commission.
Municipal Employers must notify all their employees who did not complete the online program in 2012 that they must do so by April 5, 2013. Employees who completed the online training in 2012 will not be required to complete the program again until April 2015.
Municipal employees and officials (both elected and appointed) must provide evidence to the Employer upon completion of the online training program (e.g., print the completion certificate at the end on the online program). Employees and officials should also retain a copy of their completion certificate for their own files.
See Ethics Commission’s e-mail Notice to All Municipalities about availability of new online program after December 10, 2012 (copy attached).
2. REMINDER: DECEMBER 31 DEADLINE to Distribute Summaries of the Conflict of Interest Law for Municipal Employees
Before December 31, 2012 - Employers must distribute to all current employees/officials a copy of the Commission’s Summary of the Conflict of Interest Law for Municipal Employees available on the Commission’s website at http://www.mass.gov/ethics/education-and-training-resources/implementation-procedures/municipal-employee-summary.html.) Copies also are available in Spanish (http://www.mass.gov/ethics/education-and-training-resources/implementation-procedures/municipales-empleados-resumen.html) and in Portuguese (http://www.mass.gov/ethics/education-and-training-resources/implementation-procedures/municipal-funcionarios-resumo.html).
Municipal employees/officials must provide the Employer with a written acknowledgement of receipt within 10 business days of receiving the Summary.
3. RESOURCE: A quick reference BHPK Summary of Ethics Law Requirements Regarding Mandatory Education and Training, which outlines both municipal employers’ and employees’/officials’ responsibilities, is attached for your convenience.
Questions? Contact attorney Judy Levenson at Jlevenson@bhpklaw.com or 617/880-7100, or contact your Municipal/School Counsel. Specific facts and circumstances require individualized legal analysis. Feel free to contact us about possible legal assistance with particular issues.
NOTICE: This Ethics Alert has been prepared by Brody, Hardoon, Perkins & Kesten, LLP to provide information about developments in the law. It is not intended to provide legal advice for any particular matter or situation and shall not be considered to create an attorney-client relationship.
1. Ethics Commission Notice to All Municipalities Regarding New Conflict of Interest Law Online Training Program
2. BHPK Quick Reference Summary of Ethics Law Requirements Regarding Mandatory Education and Training
No Reasonable Expectation of Privacy in Work Emails
A dispute arose when the Plaintiff's municipal employer reviewed emails sent by the Plaintiff over the Town's email system. In its review, the Town discovered emails sent by the Plaintiff of a highly personal and intimate nature to a second person. The Plaintiff argued that because the Town's email policy was never adopted by his Union and because employee emails were stored on a third party server, he had a reasonable expectation of privacy in emails sent over the Town's email system. The Plaintiff brought a claim for the violation of M.G.L. c. 214, §1B, for breach of privacy.
A Superior Court Judge ruled however, that the Plaintiff had no reasonable expectation of privacy in those emails. In his ruling the Court noted that, "[s]ignificantly, the defendant did not require plaintiff, as in the case of an urinalysis or personal property search to disclose any personal information about himself. Rather the Plaintiff voluntarily communicated the alleged [personal and intimate] comments over the [Town's] email system." Citation omitted. The case is important as it preserves the right of employers to review emails sent by employees on the employer's email system even if the employer's email policy is not adopted by its employee unions and most likely even if the employer does not have a written email policy. It is advisable for all employers to have a written email policy that specifically states that employees should not consider emails sent and received on the employers email system to be confidential. If you are an employer and do not have a written email policy attorneys at Brody, Hardoon, Perkins & Kesten, can assist in the drafting of the policy.
The briefs in the case were written by attorneys Deborah Ecker, Deidre Regan and Peter Montgomery.
Email as Public Records - Content Over Form
There is much confusion among government employees about whether emails are considered to be public records. And if so, how long emails must be retained and the extent that a municipality must go, to retrieve emails in order to respond to public records requests and requests for those emails during litigation. The simple answer is that some emails are public records and some are not. What matters is the content of the email. The public records law does not distinguish between the form of a document whether it be an email, a memorandum or some other type of recorded communication. Under the public records law, it is substance over form and not vice versa.
Emails are treated like any other document generated by municipal employees and are subject to the same retention schedules as any other document.
The Secretary of the Commonwealth's Public Record's Division has recently condensed the retention schedules for municipalities from 28 to 25. All municipal employees responsible for records management should have copies of these retention schedules. The public records law requires that each municipality have an email policy that includes an email retention policy and identifies an employee responsible for the management of public records, including emails.
The good news is that as applied to emails, the public records law is not as onerous as most believe. If there is a request for emails and the content of the emails requested are considered to be public records, the municipality must produce those emails that are "reasonably accessible," barring a court order. Caution though, if the email could have been previously destroyed pursuant to the retention schedules prior to the request, the fact that it was not destroyed does not serve as a basis not to produce it if it exists at the time the request is made. The Public Records Division appears to be following the guidance of the federal courts which looks to whether the emails or other type record are "reasonably accessible." "Reasonable accessibility" in most cases does not require the retention of a technical expert to recover emails that have been double deleted or removed from the server in some other manner.
While this area of the public records law will continue to evolve, the Commonwealth of Massachusetts Secretary of the Commonwealth, Public Records Division website, includes a guide to public records law and its expectations for the retention and production of emails as the Division responsible for compliance with the public records law at www.sec.state.ma.us/pre/preidx.htm. All municipalities should familiarize themselves with these guidelines.
Investigative Conferences at the MCAD are Back
The Massachusetts Commission Against Discrimination ("MCAD") recently announced that for all cases filed after January 1, 2011, a mandatory investigative conference will be held. The MCAD requires that all parties, not just their attorneys, attend the investigative conference typically held shortly after the respondent has filed its position statement.
The MCAD had formerly required such investigative conferences, but abolished those conferences over two years ago, replacing them with written information requests. Now the conferences are back and it does not appear that they are replacing those written information requests. Parties will now have to attend the mandatory investigative conference and respond to written discovery requests before a probable cause determination is issued. This is not necessarily a positive development for the parties who must attend and pay their attorneys attend these investigative conferences.
Court Rules on "Reasonable Fees" for Cumis Counsel
RESERVATION OF RIGHTS AND THE RIGHT OF THE INSURED TO SELECT HIS OWN COUNSEL AND HAVE ITS INSURER PAY A "REASONABLE FEE"
Forty years ago, the Massachusetts Supreme Judicial Court ruled that whenever an insurer reserves its rights to deny coverage, the insured is permitted to reject the insurer's choice of panel counsel, and can choose its own defense lawyer. Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 257 N.E.2d 774 (1970). The insured's counsel is paid by the insurer under its policy and is entitled to "reasonable attorney's fees." See also Magoun v Liberty Mut. Ins. Co. 346 Mass. 677 (1964). Since Three Sons, no Massachusetts appellate court has explained how to calculate "reasonable attorney's fees." Insurers usually insist on paying the rates set for panel counsel, routinely prompting disputes with the insureds' counsel, who are used to charging higher rates. The Massachusetts Appeals Court has just decided that the panel counsel rate is not necessarily the "reasonable" fee to pay a reservation-of-rights attorney hired by the insured.
In Northern Security Insurance Company, Inc. v. R.H. Realty Trust (Mass Appeals Ct. (2/8/11), the Massachusetts Appeals Court addressed the issue of an insurer's obligation to pay reasonable attorney's fees to its insured's personal counsel when a reservation of rights had been issued.
The defendants were residential landlords, and had been sued by the plaintiffs for personal injuries allegedly caused by mold at the rental property. The landlords' insurer, Northern Security, defended under reservation, stating that the defendants were only covered for one of the counts in the Complaint. In response, the defendants opted to retain personal counsel. Counsel chose, based on his prior relationship with the defendants, to reduce his normal hourly rate of $350 per hour to $225.
During the course of the litigation, personal counsel provided status reports to the insurer and forwarded legal bills at the rate of $225 per hour, beginning in April of 2002. Northern Security did not respond to the initial bill for over a year, and then paid the insured's counsel at the insurer's panel counsel rate of $150 per hour. Personal counsel ultimately succeeded in negotiating a settlement of the mold claim in October of 2003 that was, according to the Appeals Court, very favorable to the insureds and Northern Security. In June of 2004, the insureds' counsel sent a G.L. c. 176D/ c. 93A "bad faith" letter to the insurer, demanding payment of the difference between its rate of $225 and the insurer's rate of $150. In response, the insurer filed a declaratory action, asking the trial court to determine what constituted reasonable attorney's fees. Personal counsel then counterclaimed for breach of contract and bad faith, and sought judgment on the pleadings that $225 per hour was a reasonable fee, given market rates for someone of personal counsel's experience and abilities.
The motion judge ruled that "$225.00 per hour is per se reasonable as an hourly fee for an attorney in the Boston Metropolitan area." Counsel then sent another c. 93A demand letter to the insurer, offering to settle for the amount the judge deemed to be the minimum fee due. The insurer never responded, and counsel supplemented its counterclaim with an additional 93A violation for failure to respond to its demand letter. At trial the Court ruled that the fair and reasonable rate for the attorney who represented the insureds was actually $350 per hour, and ordered the insurer to pay that amount. The Court also found that the insurer violated chapter 93A by failing to pay counsel $225 per hour after the motion judge's ruling, and by then failing to respond to the second c. 93A demand letter. The Court also awarded the insureds' attorneys fees on their successful c. 93 claim for unpaid attorney's fees.
On appeal, the Appeals Court held that the motion judge was correct when he determined that $225 per hour was a reasonable attorney's fee. The insurer argued that $150 should be considered reasonable because it was the rate accepted by panel attorneys; but the Appeals Court found that the definition of a reasonable fee should be based on market rates, rather than panel rates. The Court noted that an expert witness opined that not only was the rate of $225 per hour "extremely reasonable," but "remarkable," given counsel's abilities and reputation and his customary fee of $385 per hour for such cases. The Appeals Court also upheld the finding that the insurer had violated chapter 93A by unnecessarily and unreasonably delaying payment and refusing to negotiate with counsel. Lastly, the Appeals Court reversed the trial judge's determination that $350 per hour was the appropriate fee, concluding that because counsel had chosen to charge his client only $225 per hour, the insurer should not be forced to pay more than the insured would ever have been billed.
This decision is now the law in Massachusetts, although more than likely Northern Security will ask the Supreme Judicial Court to agree to review the Appeals Court decision. At this point, insurers should assume that every time they reserve their rights, the insured will hire personal counsel to defend the case, and will insist on reimbursement at counsel's standard rate. There are grounds to argue that a reasonable rate for reservation-of-rights counsel falls somewhere between the rates paid to panel counsel and the retail rate counsel charges the insured, and insurers should attempt to negotiate a compromise rate. If you have any questions about this case, please feel free to give us a call at BHPK.
BHPK LAWYER DONOHUE AWARDED PRO BONO ATTORNEY AWARD
Thomas R. Donohue of Brody Hardoon Perkins & Kesten LLP received the Pro Bono Attorney Award from the Middlesex County District Attorney's 209A Pro Bono Assistance Program (MDAO) at its Annual Awards Ceremony on December 9, 2010. His representation of domestic violence victims, who otherwise would not have legal counsel at their court hearings for a restraining order, was noted. In addition to Tom, other attorneys from BHPK are participating in this program and have successfully obt
LAW COMPLICATES EVIDENCE OF MEDICAL DAMAGES
In the most important case in decades to rule on the admissibility of medical bills to prove damages, Law v. Griffith, slip op., July 20, 2010, the Supreme Judicial Court held that bills for medical care were presumptively evidence of the value of that care and that a defendant may not rebut or impeach that evidence by proving that the care provider took pennies on the dollar, but that such bills could be impeached with evidence that most insurers pay pennies on the dollar for the same services.
The plaintiff in the Law case was injured in an auto accident and required surgery and physical therapy. Pursuant to G.L. c. 233, § 79G, she sought to introduce the bills that were generated for the treatments she received. Those bills totaled $112,269.94. But the plaintiff was a participant in Mass Health, the state's Medicaid program, and she had not paid any of the bills, Medicaid had. But Medicaid only paid $16,387.14, less than 15% of the bill, and the hospital wrote off the rest. The trial judge allowed a defense motion to exclude the bills as evidence. The parties then agreed to a stipulation, which went into evidence, that the services paid on the plaintiff's behalf were $16,387.14. The jury returned a general verdict for the plaintiff in the amount of $48,500, roughly triple the amount of the stipulated medical expenses actually paid by Medicaid. The plaintiff appealed.
In the appeal, the defense argued that if the bills have to go in, then the amounts actually paid should go in too and that the jury can then decide, based on this competing evidence, what the actual 'value' of the services was for purposes of assessing damages. But because that evidence would necessarily disclose to the jury that a third party insurer had paid the bills, the SJC held that it would effectively trump the collateral source rule. The collateral source rule holds that a tort defendant is liable for all of the plaintiff's damages, even if the plaintiff has already received compensation for some of those damages from a collateral source, typically his own insurer. The theory behind the rule is that if one buys his own insurance and is injured by another, the party causing the injury should not benefit from the contract of insurance belonging to the party injured.
The Court fashioned a puzzling way out. It held that a defendant could impeach the value of the services rendered not by reference to what was actually paid, but rather through evidence of the basic range of payments third party payers typically reimburse care providers for similar services. Such testimony could presumably come only from an expert in medical insurance compensation and the Court suggested that the trial court might want to instruct the jury not to think about whether the plaintiff in the case at bar had medical insurance, even though we all live in the first state ever to mandate such coverage for all citizens.
For now, here is what practitioners must consider. If you represent a tort defendant in a personal injury action and the medical bills are extensive, it may be worth considering expert testimony on the range of payments that insurers typically pay for such services. No litigant has ever presented such testimony but experts on this topic will surely emerge as a result of this decision. The Law case subsequently settled.
FAMILY OF CRAIGSLIST MURDER VICTIM SPEAKS OUT
On the day the case against Craigslist killer Phillip Markof’s criminal prosecution was formally dismissed because of his death by suicide, Brody, Hardoon, Perkins & Kesten, LLP called a press conference to give Carmen Guzman, the mother of murder victim Julissa Brisman, an opportunity to speak about her daughter and her murder prior to attending a memorial service for victims of homicide at Boston’s Garden of Peace. At an event attended by local and national print and television media, Ms. Guzman talked about her daughter and the impact of her murder on the family. The event empowered Julissa’s family by enabling them to have the public forum they would have had at a criminal trial and ensured that the focus of the day was on the victim rather than her murderer.
BHPK ALERT: NEW ETHICS REGULATIONS
The State Ethics Commission is expected to vote on proposed ethics regulations at the Commission’s regular monthly meeting in October. The new regulations implement important changes to the State Conflict of Interest Law enacted in 2009. We will report on the regulations once they are finalized and issued. In the meantime, be certain to check with us before taking action under the new law and regulations.
REMINDER OF ONGOING OBLIGATIONS UNDER THE NEW LAW:
You may want to look at our BHPK Alerts issued in December 2009 and January 2010 for a reminder about ongoing requirements under the new ethics law. For example, The City or Town Clerk must distribute to all current employees each year between September 15 and December 15, a summary of the conflict of interest law for municipal employees, Massachusetts General Laws Chapter 268A, as posted on the website of the State Ethics Commission. New employees must receive the summaries within 30 days of the date on which they begin employment and in each subsequent year, between September 15 and December 15.
Each municipal employee must sign a written acknowledgement that (s)he has received the summary and provide it to the City or Town Clerk within ten (10) business days of receipt of the summary.
If you have questions, please contact our Ethics Practice at Jlevenson@bhpklaw.com or call Judy Levenson at 617/880-7100.
BHPK ATTORNEY DJUNA PERKINS RELEASES STATEMENT ON BEHALF OF FAMILY OF JULISSA BRISMAN, VICTIM OF CRAIGSLIST KILLER
Following the suicide of Craigslist killer Phillip Markoff, BHPK attorney
released a statement on behalf of the family of Julissa Brisman, the young woman he murdered. Speaking for the family, Perkins expressed their reaction to the suicide and their hope of finding some means of obtaining justice for Julissa and honoring her memory. Perkins provided commentary on the familys behalf to numerous local and national media outlets, and asked the U.S. Attorneys office to investigate the conduct of the dealer who sold the gun that killed Julissa. To hear Perkinss comments on the Joy Behar Show, click here. To read the statement, click here.
The family of Julissa Brisman is shocked and dismayed by the news of Phillip Markoff's suicide. Their grief for Julissa is as fresh today as the day over a year ago when Markoff took Julissa away from them. The long-awaited criminal prosecution was their only opportunity to confront him, and now he has taken that away as well.
With the criminal prosecution foreclosed, the family will be exploring other avenues to seek justice for Julissa and help ensure that others do not suffer from such devastating, unnecessary violence. For example, the family has asked the United States Attorney in New Hampshire to investigate the conduct of the State Line Gun Shop. Markoff bought the gun he used to kill Julissa using a driver's license that belonged to someone else. The family hopes that the U.S. Attorney's office will focus its energies on this investigation now that the criminal prosecution has been foreclosed.
The family is not available for interviews at this time, and requests privacy as they continue to absorb this news. Please direct all inquiries to my attention.
One Exeter Plaza
Boston, MA 02116
GENNARI V. READING PUBLIC SCHOOLS
The Massachusetts Appeals Court recently held that a school principal was not immune from suit in a case brought by a first-grader who fell during recess. The boy and his classmates were running around in a concrete courtyard, when one of the boy's friends pushed him, either by accident or by design. The boy fell and face-planted onto a concrete bench, cutting his face badly. The boy's parents sued claiming that the school principal, knowing that first graders romp around during recess, should not have held recess in an area with concrete benches.
The principal filed a Motion for Summary Judgment, arguing that she was immune from suit pursuant to the Massachusetts Tort Claims Act, Mass. Gen. Laws c. 258 § 10(b) (discretionary function exemption) and § 10(j) (public duty rule). She argued that the decision to hold recess in the courtyard was an exercise of her discretion, for which she could be liable. She further argued that the child who pushed the boy, whether on purpose or by accident, was the 'original' condition that caused the accident. The Superior Court denied the principal's motion and she appealed.
Mass. Gen. Laws c. 258 § 10(j) precludes liability for "any claim based upon an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortuous conduct of a third person, which is not originally caused by the public employer..." The Appeals Court wrote that in some circumstances, a public employer's affirmative act can serve as the "original cause" even when the harm is started by a third person. The question of originality is whether the public employer's act "materially contributed to creating the specific condition or situation that resulted in the harm." In this case, the Court determined that even though the conduct of another student pushing or falling into the plaintiff was a more immediate cause of the injury, the principal's decision to hold recess in the courtyard, with protruding bench-walls represented, materially contributed to the condition or situation that caused the harm.
Neither could the principal catch a break under Mass. Gen. Laws c. 258 § 10(b). That statute precludes liability for "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee..." For purposes of the statute, discretionary conduct must involve policy making or planning and not merely an ad hoc determination. The school principal argued that her decision to hold recess in the courtyard was discretionary. Though an indoor space was available, she thought it better that the children get some fresh air. The Appeals Court concluded that having recess was a policy, but that the decision where to have it was merely an ad hoc choice based upon the situation confronting the principal at the time. The Appeals Court affirmed and the case was remanded for trial.
The lesson from this case is that the immunity provided by G.L. c. 258 § 10(j) is limited to situations where the plaintiff argues that the public official should have done something to prevent some harm that was caused by someone else. Here, the plaintiff was not arguing that the principal should have prevented the accident. Rather, the plaintiff argued that the principal should have held recess elsewhere - a location where an accident of this type, which was bound to happen, would be less likely to result in serious injury.
A recent Supreme Judicial Court case makes clear that the Massachusetts Maternity Leave Act (MMLA), M.G.L. c. 149, 105D, only provides protection for up to eight weeks of maternity leave. While the case, Global NAPS, Inc. v. Awiszus, et al was a legal malpractice case, the plaintiff in the underlying case alleged that her employer terminated her in violation of the MMLA while she was on maternity leave. The plaintiff had taken more than eight weeks of leave when she was terminated.
The MMLA provides that a female employee who satisfies certain preliminary conditions including having completed her employers initial probationary period or, if there is no such probationary period has been employed full time by the same employer for at least three consecutive months, shall be restored to her previous or similar, position with the same status, pay, length of service and seniority as the date of her leave when she is absent from work for a period not exceeding eight weeks for the purpose of giving birth. In Global NAPS, Inc., the Court makes clear that female employees are not afforded the protection of the MMLA once they are absent from employment for more than eight weeks. While an employee may have other rights that protect her from termination if she is allowed to extend her leave beyond the eight weeks, the MMLA does not afford such protection.
As a practical matter, the SJCs decision effects only those females who work for small employers , those with less than fifty employees because the Family Medical Leave Act, the FMLA, provides protection to employees who take up to twelve weeks of leave due to a medical condition which may include the birth of a child. The FMLA however, only applies to employers of fifty or more employees. Those females who work for employers with less than fifty employees should be aware that if they are not afforded additional benefits beyond the eight week period either under a collective bargaining agreement or written employment policy or contract are not afforded job protection if their maternity leave exceeds eight weeks.
After lengthy debates and numerous revisions, the Massachusetts Legislature has come to terms on a bill that will hopefully energize and reorganize economic development in the Commonwealth.
While the new bill contains changes that will impact a variety of economic sectors, it changes existing laws regarding actions brought in small claims court. In fact, the changes specified below apply as of August 1 st, 2010. Sections 21 through 25 of Massachusetts General Law Chapter 218, which govern the procedures of small claims actions, formerly restricted the dollar amount of a plaintiffs claim to $2,000. In an effort alleviate the heavily burdened trial courts and afford citizens of the Commonwealth additional avenues to settle relatively small claims, the new bill will increase the upper limit to $7,000.
In addition to increasing the claims limit, or perhaps because of the increase, the new bill also contains provisions for determining the dollar amount of entry fees associated with bringing a claim. Previously, entry fees were set at $20 for claims under $500 and $30 for claims over $500. Due to the increase in the claims limit, the filing fees have been adjusted accordingly into a tiered system. The new guidelines call for an entry fee of $30 for claims of $500 or less, $40 for claims greater than $500 but less than or equal to $2,000, $90 for claims greater than $2,000 but less than or equal to $5,000, and $140 for claims greater than $5,000. This tiered system is partially intended to control the volume of claims filed by corporations seeking to acquire consumer debt.
Remaining unchanged is the $10 surcharge associated with all small claims actions, paid in addition to the entry fee by the plaintiff, and applied toward the Massachusetts General Fund.
Massachusetts defendants have routinely filed, and often prevailed on, summary judgment motions in cases involving slip and falls on snow and ice. That will not continue.
On July 26, the common-law rule of natural accumulation melted away. Under what is known as the "Massachusetts Rule," a property owner was not liable for failing to remove a natural accumulation of snow and ice. The landscape changed dramatically with the issuance of the decision in Papadopoulos v. Target Corp., SJC-10529 (7/26/10).
Plaintiff Papadopoulos was injured when he slipped and fell on a patch of ice in a mall parking lot after leaving a department store. He sued the store and the contractor retained to remove snow and ice from the lot. The trial court concluded that the ice that caused the plaintiff's fall was a "natural accumulation" and allowed summary judgment for the defendants. The plaintiff appealed and the Appeals Court affirmed the judgment.
The Supreme Judicial Court granted further appellate review, and, after reviewing the law in this area over the last century, the Court concluded that the distinction between natural and unnatural accumulations of snow and ice was a "relic of abandoned landlord-tenant law" which "has sown confusion and conflict in our case law." It abolished the distinction. What is reasonably expected of a property owner will depend on the property use and the amount of foot traffic expected.
The ruling is retroactive, which will affect pending claims. Given the number of slip and falls on snow and ice in Massachusetts and the laissez faire attitude of property owners who relied on the law protecting them from liability, we expect an onslaught of personal injury cases.
BHPK partner Rick Brody’s work as a “mediator’s mediator” was highlighted in Massachusetts Lawyer’s Weekly’s Hearsay column, 33 M.L.W. 1356 (Feb. 14, 2005). Brody represented Arlington mediator Ericka Gray in a personal injury case in which she was the plaintiff. The case was resolved through mediation, and the column outlined the insights Gray gained from experiencing the process from the client’s perspective. Gray also highlighted her lawyer’s work, saying Brody’s “calming influence…helped procure an effective settlement after one session.”
BHPK partners Richard Brody, Laurence E. Hardoon, Sam Perkins, Lenny Kesten, and Jocelyn Sedney were recently named “Super Lawyers” for the year 2004 by the publishers of Boston Magazine and Law and Politics magazine.
Boston's Power Matrix
Brody, Hardoon, Perkins and Kesten was featured in Massachusetts Lawyers Weekly’s article, “Boston’s Power Matrix,” 33 M.L.W. 620 (November 8, 2004). The article particularly hailed the “terrific no-pretense reputations” of partners Sam Perkins and Rick Brody.
The Battling Buddhists: a Bitter Feud Between Two Monks Divides a Community and Its Temple -- Literally
BHPK partner Rick Brody’s representation of a Buddhist monk and his followers was featured in Boston Magazine’s November, 2004 article, “The Battling Buddhists: a Bitter Feud Between Two Monks Divides a Community and Its Temple -- Literally.” The article can be found by clicking on “archives” at www.bostonmagazine.com.
Rick Brody and Laurence E. Hardoon recently obtained a substantial settlement for a young woman who had been molested by a counselor at camp when she was twelve and thirteen years old. The camp also agreed to revamp its child abuse prevention policies.
Rethinking the Fresh Complaint Rule in Sexual Assault Cases: A Response to Commonwealth v. Montanez.
BHPK associate authored an article in the Summer, 2004 issue of Massachusetts Law Review titled, “Rethinking the Fresh Complaint Rule in Sexual Assault Cases: A Response to Commonwealth v. Montanez.” The article can be found at 89 Mass. L. Rev. 2 (Summer 2004).
$2.3 million from the Roman Catholic Archdiocese of Boston
BHPK Partner Laurence E. Hardoon secured awards totaling $2.3 million from the Roman Catholic Archdiocese of Boston on behalf of thirteen victims of clergy sex abuse.
$1.79 million award in one of Massachusetts Lawyers Weekly's Top Jury Verdicts for 2003
BHPK Partners Rick Brody and Lenny Kesten won a $1.79 million award in one of Massachusetts Lawyers Weekly’s Top Jury Verdicts for 2003 on behalf of a pedestrian struck by a bus. Click here to read the full article.
$2.5 million award for a mentally ill teenager
BHPK Partners Lenny Kesten and Jocelyn Sedney won a $2.5 million award for a mentally ill teenager whose counselor engaged in a sexual relationship with her and made her pregnant. The case received significant coverage in the media and was the subject of two Boston Globe columns.
The Boy Who Cried Rape
BHPK Partner Laurence E. Hardoon was featured in “The Boy Who Cried Rape,” Boston magazine, November, 2002. The article told the story of a Groton School student who exposed sexual abuse at the school. Now represented by Mr. Hardoon, the student is suing the school for negligence.
Massachusetts' top jury verdicts of 2001
BHPK Partner Lenny Kesten earned one of Massachusetts’ top jury verdicts of 2001 on behalf of a client. “Top Jury Verdicts of 2001: Employer’s ‘Terror Campaign’ Led to Civil Rights Verdict,” Massachusetts Lawyers Weekly, January 14, 2002.
Click here to read the full article.
Lawyers of the Year 2001
Recalling a Lawyer's Worst Nightmare
Partner Lenny Kesten and associate Tom Campbell were featured in the November, 2001 issue of Boston magazine. The article, titled “Injustice for All,” described their representation of a police officer injured in a shootout with a parolee. Kesten and Campbell were also featured in a Massachusetts Lawyers Weekly article about the case: “Recalling a Lawyer’s Worst Nightmare” Massachusetts Lawyers Weekly, June 4, 2001.
Click here to read the full article.
Boston Lawyer Looks Back on an Eventful 1999
Having tried six cases with favorable verdicts for his clients, partner Lenny Kesten was the subject of “Boston Lawyer Looks Back on an Eventful 1999,” Massachusetts Lawyers Weekly, January 24, 2000.
Click here to read the full article.
Selected Trial Verdicts and Decisions
The First Circuit Court of Appeals ruled in an issue of first impression that a family who accused the Town and more than two-dozen police officers cannot recover for negligent supervision absent a finding of liability against any individual employee.
The plaintiffs and their minor children sued the town and the officers, claiming they conspired to deprive them of their civil rights and tried to drive them out of town over a 13 year period. At the bifurcated trials, although most of the claims were time-barred, the judge allowed testimony about incidents from a decade before.
In the first trial against the town and seven officers, the jury rejected nearly all of the plaintiffs’ claims, including the civil rights conspiracy. The lone federal claim on which the plaintiffs succeeded was a 2004 false arrest allegation involving one of the minor children. The jury found that the Town was liable for deliberate indifference in supervision of the officers and was negligent in supervision. The jury awarded $15,000.00 for the false arrest and awarded substantial damages for improper supervision.
On appeal, the First Circuit reversed the finding of false arrest because the jury instructions were incorrect and ordered a new trial. The Court also vacated the negligent supervision claim, ruling that there is no supervisory negligence claim against municipalities for generalized, unspecified wrongs. Any supervisory negligence has to be connected to a specific, underlying tort. Finally, the Court vacated the "Monell" deliberate indifference claim and ordered a new trial on that claim against the town only on the question of its liability for the 2004 incident
RESULT: Reversal of bulk of Plaintiffs’ $600,000 Verdict against Town and Police Officers.
Court: First Circuit Court of Appeals
BHPK Counsel: Leonard H. Kesten, Jeremy Silverfine and Deidre Brennan Regan
Breaking Up Should Never Be This Hard to Do
This case arises from the fallout after the termination of a personal relationship that ultimately led to plaintiff’s arrest on charges of criminal harassment and witness intimidation. The defendant police officers were involved in a lengthy investigation of the plaintiff that ended with his arrest. The plaintiff’s fundamental complaint was that the arrest warrant should not have been sought and that the officers did not have probable cause to arrest him. He moved for partial summary judgment in his favor, and the defendants cross-moved.
The Court found in favor of the defendants, ruling that the officers were entitled to qualified immunity. The evidence was substantial as to criminal harassment and it was objectively reasonable for the officers to conclude that probable cause existed to charge the plaintiff for that crime. As for witness intimidation, the warrant application expressly indicated that the plaintiff’s ex-girlfriend had been providing information in the police investigation and that she was reluctant to continue to do so in the wake of plaintiff’s conduct.
BHPK Prevails in a Hostile Work Environment Case
In Crisp v. Watertown, Ms. Crisp, a first year special education teacher, filed a lawsuit claiming that her contract to teach was not renewed because she complained that she was being sexually harassed not only by the School Resource Police Officer, but also by the Vice Principal and another special education teacher who she claimed created a hostile work environment by gossiping about an alleged relationship she was having with the School Resource Officer. Specifically, Ms. Crisp claimed that the special education teacher defamed her by telling another teacher that Ms. Crisp and the School Resource Officer were having sex in a middle school classroom. Ms. Crisp, not able to recognize her own shortcomings, also claimed that her contract to teach was not renewed because she reported that the School Resource Officer, with whom she had been friends was inappropriate with several of the female middle school students.
After a three week trial, the jury found in favor of the Watertown School Department and the individual defendants on the sexual harassment claims as well as Ms. Crisp’s claim that she was retaliated against for having reported that the School Resource Officer was engaged in inappropriate behavior with the female middle school students. The Jury did find that the individual special education teacher did make the statement that Ms. Crisp was having sex in the classroom with the School Resource Officer and found that statement to be defamatory. The jury only awarded the Ms. Crisp $500.
BHPK Attorney Prevails in Age and Disability Discrimination Claim
Claimant Price was employed with the Town as the Parks and Recreation Service Coordinator for 20 hours per week, as well as the Assistant Town Accountant for 16 hours per week. On February 13, 2008, he slipped and fell in the Town’s parking lot, and exacerbated a previous back injury. On March 3, 2008, the Board of Selectman discussed cutting his hours in the Parks and Recreation Department to 8 hours per week. Price decided to voluntarily resign effective March 31, 2008 from both positions with the Town. He filed his Charge of Discrimination pursuant to Massachusetts and Federal laws prohibiting age and disability discrimination based upon age and disability discrimination.
During the Fall of 2007, several events occurred which resulted in a reduction of the responsibilities required for Price’s position as the Parks and Recreational Services Coordinator. The Town had been using community preservation funds for park improvements that were administered by Price. However, the Town learned that it was no longer allowed to use these funds for park improvements Cutting of the grass on the Town Common, Town Hall and various grassed traffic islands, which was also administered by Price, was taken over by the Highway Department. The summer camp program was also run by Price for the Town. However, the school department offered to take this over. This resulted in a superior camp program being offered to the children, with experienced people, at no cost to the Town.
On March 3, 2008, in light of the above changes which resulted in a reduction of responsibilities for Price’s position, the Board of Selectman discussed reducing Price’s hours solely for his position as Coordinator. The reduction in hours was planned to begin in June of 2008, with 10 hours allotted for the position during the Summer and 8 hours during the Winter. Price’s hours in the accounting department were not affected at all.
RESULT: The MCAD rejected Mr. Price’s claims of age and disability discrimination.
BHPK Counsel: Kristin Harris
Two police officers arrested the plaintiff for shooting his neighbor’s dog. They charged him with cruelty to animals and unlawfully killing an animal. Following his acquittal on these charges, the plaintiff brought a civil rights complaint against the two police officers, alleging claims for false arrest and malicious prosecution.
The plaintiff lost at trial on his claims against the officers. He appealed, arguing the court erred in admitting a photograph of the dog. He claimed the photo’s admission violated FRE 403 because its probative value was substantially outweighed by its prejudicial effect, and it distracted the jury from the main issues.
The First Circuit affirmed the trial court's admission of the photo of the dog. The Court held that the photo was probative where, among other things, the plaintiff had characterized the dog as “vicious,” '”bloodthirsty,” and looking like a wolf or a coyote and had testified that he shot the dog to protect himself, his dog, and his livestock.
BHPK represented a Town sued by Cellco Partnership for denying Cellco’s application for a special permit to place a wireless telecommunications facility at a location that would have made the cell tower visible from the town’s historic district. Cellco claimed the Planning Board’s denial of its special permit violated the Telecommunications Act of 1996.
RESULT: The Court granted the Town’s Motion for Summary Judgment finding that substantial evidence existed to support the Planning Board’s finding that the tower had a negative visual impact on the historic green.
BHPK Counsel: Deborah Ecker and Leonard H. Kesten
Wrongful Discharge, Handicap Discrimination
BHPK represented a town sued by an employee who was terminated after numerous staff members complained about his behavior. The employee had a history of outbursts in his relations with staff and had been sent to anger management training, but claimed he was fired because the Selectmen hated him and/or because he was handicapped because of Post Traumatic Stress Disorder.
RESULT: Jury verdict for the town.
BHPK Counsel: Leonard H. Kesten
BHPK Defeats Claim of Excessive Force With Pepper Spray
A belligerent motorist arrested for OUI sued police for excessive force when they used pepper spray to subdue him when he kicked a holding cell door open. Representing the police, BHPK argued police, who required assistance from a second town to subdue the motorist, used reasonable force.
RESULT: Verdict for the police.
BHPK Counsel: Leonard H. Kesten
BHPK Wins $2.2 Million in Breach of Trust Case
BHPK represented three brothers who sued a fourth brother for misappropriating trust assets over a twenty-year period.
RESULT: $2.2 million award for plaintiffs.
BHPK Counsel: Laurence E. Hardoon
BHPK Defeats Racial Profiling Claim
An African-American DEA agent stopped by police for driving with an expired inspection sticker sued the police, accusing them of racial profiling and claiming they stopped him because he was African-American. On behalf of the police, BHPK argued that the stop was appropriate and not race-related where police stopped the agent only after they discovered his registration had been suspended.
RESULT: Verdict for the police.
BHPK Counsel: Leonard H. Kesten
BHPK Wins Substantial Settlement for Student Raped in College Dorm
BHPK represented a college student raped in her dorm room, BHPK negotiated a large financial settlement for the student. In addition, the university agreed to make significant changes to security equipment and procedures, and established a hotline for rape victims.
RESULT: Substantial award for student and crime prevention measures
BHPK Counsel: Richard E. Brody
BHPK Defeats Wrongful Termination Claim
A reserve police officer sued his department for breach of contract after he was terminated for dishonesty. Representing the department, BHPK argued termination was appropriate.
RESULT: Verdict for the department.
BHPK Counsel: Leonard H. Kesten
BHPK Wins $635,000 in Psychotherapy Malpractice Case
BHPK represented a woman and her family in a lawsuit against a psychologist who engaged in non-therapeutic treatment methods.
RESULT: $635,000 award for the plaintiffs.
BHPK Counsel: Laurence E. Hardoon
BHPK Wins $208,000 in Defamation Case Against Attorney for British Nanny Louise Woodward
BHPK represented a state trooper who sued a female Boston lawyer after she claimed he had fondled her breast and asked her for sex during a drunk driving arrest. The woman made the claim after receiving the trooper’s incident report. The report included an incriminating statement the female lawyer denied making during the arrest about her client, British nanny Louise Woodward, who was convicted for the murder of 18-month-old Matthew Eappen. The female attorney’s allegations of sexual misconduct received international publicity.
RESULT: Verdict and judgment for trooper of $208,000.
BHPK Counsel: Leonard H. Kesten
BHPK Secures $75,000 - $875,000 for Clergy Sexual Abuse Victims
BHPK has represented scores of individual victims who were sexually molested between 1966 and 1990 by clergy members, securing individual awards of between $75,000 and $875,000 for each victim.
BHPK Counsel: Laurence E. Hardoon
BHPK Prevents Web Site Theft
A disgruntled web site consultant for a public relations firm represented by BHPK took control of the firm’s web site and associated email system. The consultant sent falsified email messages and posted defamatory materials in an attempt to destroy the business of the public relations firm.
RESULT: BHPK successfully blocked the consultant from misappropriating the site.
BHPK Counsel: Samuel Perkins and Thomas P. Campbell
BHPK Defeats Retaliatory Discharge Claim
Two teachers who participated in a sexual misconduct investigation of a third teacher filed complaints with the Massachusetts Commission Against Discrimination claiming the School Department retaliated against them for their involvement. BHPK filed a comprehensive position statement on behalf of the School Department setting forth the details of the underlying investigation and stating that it took no adverse job action against either teacher because of their participation in the investigation.
RESULT: One claimant voluntarily dismissed her complaint with no payment on behalf of the school district. The Massachusetts Commission Against Discrimination found no probable cause supporting the claim of the second teacher.
BHPK Counsel: Maria DeLuzio
BHPK Wins $4.85 Million for Clients Harassed by Landlord<
An employee filed criminal charges against his employer, who was also his landlord. In retaliation, the employer orchestrated a terror campaign against the man, his wife and their two children. Represented by BHPK, the employee sued the employer. On appeal, the First Circuit Court of Appeals recognized the jury’s verdict as the largest award of its kind in the country.
RESULT: $4.85 million award for the plaintiffs
BHPK Counsel: Leonard H. Kesten
BHPK Defeats Claim of Excessive Force for Police Use of Canine During Arrest
A motorist who failed to stop for police crashed his car and continued to flee on foot. A police officer and his canine partner, “Shadow,” chased the man. After issuing three warnings, the officer released the dog, who caught the man by biting his leg in the “bite and hold” method. The man sued the police, claiming the police used excessive force by allowing the dog to bite him.
RESULT: After a jury returned verdicts in favor of the motorist, BHPK appealed on behalf of the police. On appeal, the First Circuit Court of Appeals reversed, holding that the police officer was entitled to qualified immunity for releasing the police dog trained in the “bite and hold” method.
BHPK Counsel: Leonard H. Kesten and Deidre Brennan Regan
BHPK Wins Settlement for Women Harassed for Their Sexual Orientation
Two women were harassed on the job by a supervisor because of their sexual orientation. The harassment forced them to leave their jobs. BHPK represented the women in a suit against the employer and supervisor.
RESULT: Six figure financial settlement for the plaintiffs.
BHPK Counsel: Richard E. Brody
BHPK Convinces MCAD that School Took Appropriate Action to Remedy Racial Harassment
African-American high school student called racial epithets by fellow students filed complaint with Massachusetts Commission Against Discrimination claiming the school had failed to remedy the situation. Representing the school, BHPK argued the school had acted appropriately by providing counseling to the student and taking other measures to punish the offenders and prevent future harassment.
RESULT: Judgment for the school.
BHPK Counsel: Jocelyn M. Sedney
BHPK Secures $610,000 Against College for Negligent Security
BHPK represented a college student raped in her college dorm room by an intruder who gained access through an inadequately secured window.
RESULT: $610,000 award for plaintiff.
BHPK Counsel: Laurence E. Hardoon
BHPK Wins Settlement for Victim of Anti-Palestinian Discrimination
BHPK represented a Palestinian national who sued his employer when he was demeaned, threatened and vilified at work by co-workers and the general manager because of his ethnicity.
RESULT: Large settlement for plaintiff.
BHPK Counsel: Samuel Perkins
Published Decisions Involving BHPK Cases
- Wilson v. Town of Mendon, 294 F.3d 1(1st Cir. 2002)
- Larch v. Mansfield Mun. Elec. Dept., 272 F.3d 63 (1st Cir. 2001)
- Kemper Ins. Companies v. Federal Express Corp., 252 F.3d 509 (1st Cir. 2001)
- Udemba v. Nicoli, 237 F.3d 8 (1st Cir. 2001)
- Logue v. Dore, 103 F.3d 1040 (1st Cir. 1997)
- Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449 (1st Cir. 1996)
- Fontneau v. Town of Sandwich, __ F. Supp. 2d __, 2003 WL 1216918 (D. Mass. 2003)
- Boston & Maine Corp. v. Town of Ayer, 206 F. Supp. 2d 128 (D. Mass. 2002)
- Mandel v. Town of Orleans, 233 F. Supp. 2d 147 (D. Mass. 2002)
- Russell v. Town of Reading, 208 F.R.D. 24 (D. Mass. 2002)
- Davignon v. Clemmey, 176 F. Supp. 2d 77 (D. Mass. 2001)
- Ciulla v. Rigny, 89 F. Supp. 2d 97 (D. Mass. 2000)
- Clauson v. Town of West Springfield, 46 Fed. R. Serv. 3d 69 (D. Mass. 2000)
- Lemire v. Silva, 104 F. Supp. 2d 80 (D. Mass. 2000)
- Cellco Partnership v. Town of Douglas, 81 F. Supp. 2d 170 (D. Mass. 1999)
- Howes v. Hitchcock, 66 F. Supp. 2d 203 (D. Mass. 1999)
- Leisure Time Cruise Corp. v. Town of Barnstable, 62 F. Supp. 2d 202 (D. Mass. 1999)
- Welch v. Paicos, 66 F. Supp. 2d 138 (D. Mass. 1999)
- Welch v. Paicos, 26 F.Supp. 244 (D. Mass. 1998)
- Brayton v. Monson Public Schools, 950 F. Supp. 33 (D. Mass. 1997)
- LaSota v. Topsfield, 979 F. Supp. 45 (D. Mass. 1997)
- Budnick v. Ajay Investigative and Security Services, 1996 WL 288921 (D. Mass. 1996)
- Budnick v. Baybanks, 921 F. Supp. 30 (D. Mass. 1996)
- Landry v. Mier, 921 F. Supp. 880 (D. Mass. 1996)