Gibson Behman PC

2006 News

GIBSON & BEHMAN HAS ATTORNEY ADMITTED IN THE VIRGIN ISLANDS AND OPENS OFFICE

On December 15, 2006, Attorney Brian T. Dougan was sworn into the Superior Court of the Virgin Islands and the District Court of the Virgin Islands. Attorney Dougan will be heading up Gibson & Behman’s litigation team in the Virgin Islands.

Attorney Dougan has been associated with Gibson & Behman, P.C. for four years as Director of its Providence, Rhode Island Office. The majority of Attorney Dougan’s work is in the area of civil litigation and he has impressive trial wins for insurers in the area of premises liability, products liability and motor vehicle accidents.

Gibson & Behman. P.C. has opened its first Law Office in the Virgin Islands at the Marketplace Building, 18-38 Estate Enighed, St. John, Virgin Islands. Opening up an office on the island of St. John will allow Gibson & Behman to expand its Virgin Island practice and better serve its current island clients.

GIBSON & BEHMAN’S CONNECTICUT OFFICE PREVAILS AT TEMPORARY INJUNCTION HEARING

Ted Heiser of G&B’s Connecticut office recently prevailed at a temporary injunction hearing wherein the plaintiff was attempting to stop the sale of a particular unit in Savin Park condominiums. The plaintiff also claimed that he was entitled to attorneys fees because the condo association’s conduct was a willful and wanton violation of his rights.

Savin Park Condo Association was attempting to sell unit 36 and the plaintiff objected to the sale, claiming it was a portion of the common area and therefore required unanimous consent of the other condo owners. The plaintiff originally objected to the sale because the Association owns unit 36 and rents it out, and the plaintiff theorized that said ownership made the unit a common area, though it is listed in the Association’s Declaration as a living unit. The Association had previously attempted to make unit 36 a common area but failed. The Court noted that this attempt shows that the Association was aware of unit 36’s designation as a living unit, as was the plaintiff, who was a member of the Association’s board. The Court also found that there was no prohibition in the Association’s Declaration prohibiting it from owning a unit and then selling said unit.

The Court found that the plaintiff did not meet his burden of proof that unit 36 had become a common area and therefore the Association did not need unanimous consent to sell the unit. The Court also denied the plaintiff’s claims for injunctive relief and attorney’s fees and entered the judgment with costs.

GIBSON & BEHMAN'S NEW YORK OFFICE WINS PREMISES LIABILITY CASE

Attorney Sharon Portnof Russ of G&B’s New York Office recently obtained a defense verdict in a premises liability case in which the plaintiff claimed that he slipped and fell as a result of the negligence of The Chalet Restaurant, in Roslyn, New York. The plaintiff alleged injuries which included a fracture to the left distal tibia with open reduction and internal fixation and spiral fractures to the distal tibia, mid-shaft of the fibula and the ankle. Plaintiff claimed over $45,000.00 in medical expenses.

At the time of the incident, the plaintiff was using a hand truck to deliver cases of beer to the defendant when he allegedly slipped on a wet floor located inside the establishment, within the restaurant’s entry foyer and between the front door and second door entrance to the premises. Plaintiff claimed that the defendant’s employee removed a weather floor mat from the area and mopped the area immediately prior to plaintiff’s fall, and failed to place any warning signs in the area.

The defendant’s employee testified that it was his general practice to mop and sweep the restaurant between 1:00 pm and 2:00 pm. He further testified that on the day in question, he finished cleaning the restaurant at about 2:00 pm. Significantly, Ms. Russ convinced the jury, through the testimony of the employee and the restaurant owner, that the weather mat was in place and that the incident did not occur as the plaintiff alleged.

The case was tried in the Supreme Court of New York, County of Nassau. The jury deliberated for less than thirty minutes before returning a verdict in favor of Salata Rest. Corp. d/b/a The Chalet Restaurant and Tap Room, with a finding that the plaintiff failed to prove that the defendant was negligent.

GIBSON & BEHMAN SPONSORS TEAM IN PELHAM FRITZ BASKETBALL LEAGUE

We are pleased to announce that our firm is sponsoring a Pro-Am basketball team, called The Suns. The team is a member of the Pelham Fritz Basketball League. The Pelham Fritz Basketball League showcases older basketball stars—ex-NCAA Division 1 standouts, playground legends, Rucker Pros, and former NBA greats—all of whom still play a very competitive game of “hoops.”

Gibson & Behman is happy to sponsor the team as we have a commitment to helping communities grow and prosper. The Pelham Fritz League is a charitable organization. Since it’s inception in 1998, the Pelham Fritz Basketball League’s Scholarship Fund has awarded scholarships to deserving high school seniors who have achieved academic excellence and demonstrated dedication to community service. Through the continuing efforts of League members and their sponsors, young men and women have been granted opportunities to pursue academic goals and achievements.

Our team, The Suns, consists of the following competitive players:

Mike Moses	St. John’s Star Guard
Alex Middleton	Iona Star Center
Kevin Williams	St. John’s Star Guard NBA NJ Nets & Milwaukee Bucks
Steve Berrt	Iona Star Guard NBA Atlanta Hawks
Toney Hardgrave	Iona Star Guard
Gene Smith	Georgetown Star Guard
Al Eford	Massachusetts Star Center
Clark Elie	City College Star Guard Rucker Pro. Big Brother of NBA Star Mario Elie.
Eugene Poston	Manhattan Comm. Star Guard Rucker Pro
Corky Latin assassin	International Pro Guard Puerto Rico.
Ken Bantam	NBA NY knicks, Rucker Pro
Larry House	Rucker Pro Center
Wes caria	International Pro Guard/Forward
Smitty The Truth	Rucker Pro Guard/Small Forward.
Carpenter	Rucker Pro Guard/Small Forward.
Richard Salters Riffle man	Rucker Pro Guard

Games are played continuously, at 8:30 a.m., 10:30 a.m., 12:30 p.m. and 2:30 p.m. every Sunday. All games are played at the Harlem Square Garden, located at 127th Street between Park and Madison Avenue, second floor of the school.

Feel free to watch our team, the Suns, annihilate the competition.

DATE	TIME	TEAM/GAME VISITOR/HOME
1/7/07	8:30 a.m.	Knicks vs. Bulls
	10:30 a.m.	Magic vs. Celtics
	12:30 p.m.	Kings vs. Suns
	2:30 p.m.	Lakers vs. Warriors

1/14/07	8:30 a.m.	Kings vs. Warriors
	10:30 a.m.	Knicks vs. Magic
	12:30 p.m.	Lakers vs. Suns
	12:30 p.m.	Bulls vs. Celtics

1/21/07	8:30 a.m.	Knicks vs. Celtics
	10:30 a.m.	Kings vs. Lakers
	12:30 p.m.	Magic vs. Bulls
	2: 30 p.m.	Warriors vs. Suns

1/28/07	8:30 a.m.	Bulls vs. Suns
	10:30 a.m.	Magic vs. Lakers
	12:30 p.m.	Knicks vs. Warriors
	2:30 p.m.	Kings vs. Celtics

G&B FLORIDA TEAM OVERCOMES THE “COMMON [BUILDING] CODE” IN NEGLIGENCE TRIAL

Attorney Kevin O’Neill of G&B’s Florida office recently had a favorable verdict where the jury found the plaintiff to be 98% negligent in a slip and fall at a restaurant. The plaintiffs, a morbidly obese woman and her husband, alleged that she fell down a two-step area in an insured’s restaurant during a weekly backgammon tournament.

Plaintiffs alleged that the step-down area was unsafe, defective and violated several local building and fire code provisions. She and her husband had also testified extensively regarding her problematic right femur multiple fracture injury, difficult course of recovery and ultimate wheelchair-bound limited lifestyle. While there was no denying a serious leg injury from her fall, G&B defended by adamantly maintaining that the stair area was safe, that plaintiff’s comparative fault in encountering an open and obvious condition caused her to fall, that her clearly deficient compliance with rehabilitation protocols by not losing significant weight caused her complications and that the insured restaurant was simply not responsible for her wheelchair bound outcome. Plaintiffs had demanded damages of $969,000, including $56,000 for past medical bills, $60,000 for future medical bills, $100,000 for loss of consortium and approximately $753,000 for pain and suffering.

After considering all the evidence, the jury determined that plaintiff was only entitled to damages totaling $156,000 and then entered a finding that she was 98% comparatively negligent for falling down the steps. As such, despite a formal Demand for Judgment of $750,000 and their final settlement demand at mediation before trial of $350,000, plaintiffs recovered a judgment of $3,120 and court costs.

Dance Club Not Liable to Exotic Dancer in Negligent Security Case

Scott Behman and Daniel Shanahan of G&B’s Burlington office recently obtained a defense verdict after a jury trial in Middlesex Superior Court in a claim for personal injuries resulting from an assault that occurred in a Massachusetts tavern.

On a late Friday night in September 2001, the plaintiff and her two companions arrived at Shooter’s Sports Bar in Dracut, Massachusetts. On weekend nights, Shooter’s employed a disc jockey that provided a dance club-type atmosphere. The plaintiff claimed that while on the dance floor she observed another female patron enter the establishment, who immediately began staring at her in an intimidating manner. The plaintiff approached the woman and exchanged words, ending with the patron spitting her gum at the plaintiff. Approximately thirty minutes later, while dancing on the dance floor with her boyfriend, the plaintiff incidentally bumped into another couple, one of whom was the woman the plaintiff encountered earlier in the evening. Within seconds, the woman made a swiping motion with her hand across the Plaintiff’s face and immediately exited the dance floor area. The plaintiff and her companion quickly realized that she had been seriously cut on her cheek with a razor blade-type weapon. Security personnel quickly responded and escorted the plaintiff outside. A detail police officer employed by Shooter’s called dispatch for rescue personnel. The plaintiff was taken by ambulance to a nearby hospital where she was attended to by an on-call plastic surgeon.

At the time of the incident, the plaintiff was employed as an exotic dancer, earning approximately $2,000 per week, paid entirely in cash tips. The plaintiff claimed that as a result of her facial injury, subsequent scarring and emotional damages, she was unable to work for approximately seven months and upon her return and could only work a part-time schedule of three days a week. The plaintiff calculated her lost income, including periods of total and partial incapacity, at approximately $350,000. The plaintiff also claimed that at the time of the incident she had a job offer to go to Florida for a photo shoot with Penthouse Magazine, an opportunity that was lost due to the facial scarring. The Plaintiff claimed that an appearance in Penthouse would have increased her potential earnings by as much as five times, for the rest of her professional life, for an alleged loss of earning capacity exceeding $6,000,000.

The plaintiff claimed that Shooter’s was negligent in failing to provide reasonable security measures to protect her from the assault by one of its patrons. The plaintiff retained a security consultant who testified at trial that Shooter’s failed to properly instruct and train its security personnel. He testified that Shooter’s should have hired a private consulting firm to properly train its manager and staff in proper tavern/night club security. He testified that Shooter’s failed to provide written instructions to its employees and that it lacked a security action plan. He also testified that Shooter’s security personnel should have worn brightly colored attire to be plainly visible to patrons, providing a deterrence to potential altercations inside the establishment. He also stated that Shooter’s should have employed female security personnel to perform pat frisks and pocketbook checks of the women patrons entering the club. According to the expert, had Shooter’s performed the above, the assault should have been avoided. During cross-examination, defense counsel highlighted the fact that the security consultant had no experience in managing a restaurant or tavern, and failed to provide the names of any area establishments that hired private security consulting firms or provided more security measures than Shooter’s did on the night of the incident.

The defense asserted that Shooter’s took reasonable steps and precautions to protect its patrons from the criminal acts of other patrons, and that its security measures on the night of the incident were more than adequate. The defense pointed to the fact that on the night of the incident, Shooter’s employed six security personnel equipped with two-way radios, two of which were always positioned around the dance floor area, and a detail police officer. Shooter’s management instructed its bartenders and the disc jockey to turn on all house lights and request security assistance if any behavior or conduct was observed that may lead to an altercation, acting as a second tier of security within the club. Shooter’s also had a security camera and infrared/bar code ID scanner at the main entrance. Shooter’s also positioned two security personnel at the main door, checking identification and employing a “wand” to screen possible weapons as patrons entered the establishment. Shooter’s provided evidence that Plaintiff failed to notify any of Shooter’s security personnel of the earlier encounter with her eventual assailant, and that the assault on the dance floor occurred without any warning, in a matter of seconds. The defense provided evidence that the Plaintiff’s scar was well healed and did not require any further treatment. It also provided evidence that the Plaintiff never filed income taxes and failed to provide any evidence to corroborate her lost income claim.

The case was tried before a jury over three days in Middlesex Superior Court, Lowell, Massachusetts beginning on November 29, 2006. The plaintiff’s initial demand exceeded $6,000,000. At the close of discovery and at the final pretrial conference, the plaintiff lowered her demand to $500,000. After the first day of trial, including part of the direct examination of the plaintiff, the defendant offered $6,000, which plaintiff rejected. The offer was withdrawn during the start of the second day of trial. After approximately one hour of deliberation, the jury returned with a defense verdict finding that Shooter’s was not negligent.

Connecticut Small Claims Court Moves to Centralized Adminstration

The Connecticut Judicial Branch has recently centralized the administration of the Small Claims Courts due to budgetary constraints and lack of space. The purpose of the change was to allow the Judicial Branch to handle small claims matters more efficiently and provide more consistent service to the public. However, the centralization has been the source of some confusion in that hearing dates are now assigned 90 to 120 days after filing the complaint. Prior to the centralization, the hearing dates were assigned 30 to 60 days after filing the complaint. Although the small claims court is centralized, the hearings and/or trials are still held in the geographic area in which the claim arose. We assume that the kinks in the administration will be worked out and hearing dates will return to the prior schedule. Nonetheless, for the foreseeable future, you can expect a two to three month delay in receiving hearing dates.

Gibson & Behman’s Burlington Office Obtains Order Prohibiting City of Springfield, MA and Springfield Finance Control Boardfrom Collecting and Enforcing Trash Collection Fee

Attorneys Brandon H. Moss and Thomas J. Holloway of G&B’s Burlington Office won a huge victory as they obtained a preliminary injunction from the Hampden Superior Court preventing the City of Springfield, MA and the Springfield Finance Control Board from further collecting or attempting to collect the so-called $90 per container trash fee against property owners.

Ten taxpayers, including State Representative Cheryl Coakley-Rivera, filed suit on October 30th claiming that this measure, designed to raise $4.5 million, was an improper tax and not a fee. At issue is a June 27, 2006, Executive Order issued by the Board establishing a $90 annual fee for each city-provided automated trash container, with limited exemptions and discounts for this so-called trash fee. The Board was originally established to assist the City with balancing its budget. The distinction between a tax and a fee is significant because cities and towns in the Commonwealth of Massachusetts do not have the power to levy, assess or collect taxes such as the trash fee.

The first installment of the bills for this so-called $90 per container trash fee was mailed on November 1. Associate Justice Constance M. Sweeney wrote, “I find that the plaintiffs proved that the city’s trash collection fee is substantially a tax rather than a fee.” The opinion further states, “Is the $90 trash fee an illegal tax? For Fiscal Year 2007 there is no question that it is a tax.” The injunction: (1) prohibits the city from collecting or attempting to collect the trash fee; (2) requires the Board notify all individuals and entities charged the trash fee that the Executive Order is suspended and not to make payment unless a future court order is issued to the contrary; (3) preliminarily enjoins the City from placing a lien on any property for failure to pay the trash fee; (4) requires the City to segregate and deposit any payments made thus far from the fee into an interest-bearing account; and (5) requires the City Auditor to account for any payments received thus far from the trash fee and to provide a written accounting of the same to the court by December 4, 2006.

To date, the City of Springfield has not taken any action to appeal the Court’s preliminary injunction.

GIBSON & BEHMAN’S BURLINGTON OFFICE WINS AT ARBITRATION

Attorney Arthur E. Maravelis of Gibson & Behman’s Burlington Office represented Security Insurance of Hartford against an action brought by Harleysville Worcester Insurance seeking approximately $90,000.00 in damages suffered by a neighboring business as a result of a fire that occurred at Security Insurance Company of Hartford’s insured, Nandee’s Restaurant. The facts of the case indicated that a fire had occurred at Nandee’s Restaurant and as a consequence the neighboring business, Zimmans, suffered $90,000.000 in fire related damages.

At arbitration, Attorney Maravelis, on behalf of Nandee’s Restaurant and the insurance carrier, asserted that the mere occurrence of the fire was not sufficient to hold Nandee’s or its insurer responsible for the damages suffered by a neighboring business, and that the plaintiff bore the burden of proving that it was some act of negligence on behalf of Nandee’s that caused the fire at its restaurant and which subsequently caused the damages to the plaintiff. The arbitrators agreed with this position and found that the plaintiff had failed to establish any negligence on Nandee’s manner.

As such, although the fire occurred at Nandee’s and even though the plaintiff’s innocent business was nearby and damaged, the arbitration panel ruled in favor of the defendant, Nandee’s, ruling that the plaintiff had failed to carry its burden to establish any negligence on behalf of Nandee’s manner.

GIBSON & BEHMAN’S BURLINGTON OFFICE WINS PREMISES LIABILITY CASE

Attorney H. Charles Hambelton of G&B’s Burlington Office recently obtained a defense verdict in a premises liability case involving a slip and fall injury that occurred at Sudbury Farm Supermarkets located in Needham, Massachusetts. The plaintiff, an elderly woman, had alleged that the Roche Brothers as well as the co-defendant, J.T. Falcone & Sons, Inc., the contractor performing work at the jobsite, were negligent and that their negligence caused her to fall and injure herself. The plaintiff suffered a fractured hip which required surgical intervention, and had over $50,000.00 in medical bills.

At the time of the incident, the supermarket was undergoing repaving operations and the supermarket had retained J.T. Falcone to perform the repaving operations in its parking lot. As a consequence of the repaving operations a key was created which resulted in an indentation in the pavement which was approximately 2” wide and 2” deep. There was evidence that plywood had been placed over the key to allow patrons to either walk over the key or walk on the plywood to and from the store.

The plaintiff alleged that upon exiting the store she walked on the plywood and fell and broke her hip. Significantly, Attorney Hambelton was able to persuade the jury that while the plaintiff believed she was walking on the wood, she did not know why she fell or what caused her to fall and, as such, he argued that not only was Sudbury Farms not negligent, but that the plaintiff had failed to carry her burden of proof that the negligence, if any, proximately caused her to fall and injure herself. The jury deliberated for over a day before returning a verdict in favor of Sudbury Farm Supermarkets, finding that the plaintiff did not carry her burden and had not proved that her injuries were proximately caused by the negligence of Sudbury Farm Supermarkets.

Gibson & Behman to represent father of American Idol star in $10 million libel suit

G&B has been retained by the father of American Idol star Fantasia Barrino in a $10 million libel lawsuit against a prominent book publisher, charging that damaging untruths were made in the book Fantasia – Life is Not a Fairy Tale.

Mark S. Grodberg, Managing Director of G&B’s Manhattan office, filed suit in United States District Court, Southern District of New York on behalf of Joseph Barrino, father of Fantasia Barrino. The suit seeks monetary damages to “vindicate and restore the reputation of plaintiff Joseph Barrino, who was defamed by false, exaggerated, sensational, intentional and malicious untruths written and published” in what was termed a “non-fiction” biography titled Fantasia – Life is Not a Fairy Tale, first printed in September 2005. The book has subsequently been made into a Lifetime television movie as well.

Mr. Barrino is a truck driver residing in Greensboro, North Carolina. The suit charges that Simon & Schuster publishing in New York, Addie Collins, Fantasia’s grandmother and a “ghostwriter” and agent of the publisher, were principal sources for information contained in the book. The suit charges that the biography contains untruths which have damaged the plaintiff’s reputation in his community.

The suit points to specific untrue claims made in the book, including that Mr. Barrino was unable to financially support his family; that he was angry and resentful of the music industry; that he failed to pay band members; that he sacrificed his children’s schooling to pursue musical careers for them; and that he asks Fantasia for financial assistance when she comes home.

Kendall Minter, counsel to Mr. Barrino and of counsel to G&B, is an attorney who specializes in entertainment law. He said “the unfortunate publication of Fantasia’s life story by Simon & Schuster seeks to capitalize on her American Idol success through disparaging certain members of her family. The lawsuit seeks to redress these wrongs and restore the integrity of the family members.”

The suit charges that the acts of the defendants were malicious and without justification, done in disregard of the plaintiff’s rights.

September 2006 - G&B PREVAILS ON BEHALF OF FORMER EMPLOYEE AGAINST WHOM NON-COMPETE AGREEMENT WAS SOUGHT TO BE ENFORCED

Theodore W. Heiser of G&B’s Connecticut office recently prevailed in an arbitration where a company was attempting to enforce a non-compete clause in an agreement signed by a former employee. Matthew Forcier was an engineer for Quality Engineering & Software Technology, LLC (“Quest”). While employed by Quest, he signed an employment agreement that included a non-competition clause. In April 2006, Mr. Forcier left Quest and took a job as a temporary engineer contract laborer at Pratt & Whitney in Middletown, Connecticut. His employer was Apollo Professional Solutions, Inc. (“Apollo”). Quest filed an arbitration demand against Mr. Forcier alleging that his employment with Apollo violated the non-compete agreement.

Quest contended that the employment contract contained a valid, enforceable covenant not to compete. Under the controlling law of Michigan, the covenant is reasonable. Forcier, a mechanical engineer, who worked at Pratt & Whitney while employed by Quest, has continued to work at Pratt & Whitney through his present employer Apollo. He provides virtually the same engineering services through Apollo that he provided while he was at Quest. Because the functions he performs are virtually similar, Apollo is a functional competitor.

G&B argued that the non-compete was not enforceable under the present circumstances. First, Apollo and Quest are not competitors. Second, there was no projectable interest at stake with Mr. Forcier’s present employer. Pratt & Whitney contracts for outside labor services in two separate ways: (1) it outsources through companies like Quest or (2) it procures temporary contract labor through companies like Apollo. Apollo is on a list, pursuant to a vendor agreement with Pratt & Whitney, which contains only nine approved vendors. The nine approved vendors are the only competitors to Apollo because they provide the same services as Apollo. Quest is not on that list. When work is outsourced by Pratt &Whitney, services are performed through “work packages” or Statements of Work. Quest is eligible to perform outsourced work, and Apollo is not. No evidence was offered of misuse of trade secrets or confidential information, which is the expressed reason for the noncompetition clause. Under Michigan law, mere competition is not a protectable interest. Finally, Quest’s past practice showed that it had no valid concern that Mr. Forcier would disclose any trade secrets.

The arbitrator determined that:

The noncompetition covenant which Forcier signed is reasonable if the purpose of the covenant is violated. Both the geographical and temporal restrictions are valid under Michigan law. Bristol Window and Door, Inc. v. Hoogenstyn, 250 Mich. App. 478 (2002). Having signed the contract, Forcier would be bound by its limitations, which prohibit him from providing trade secrets or confidential information to a competitor. The argument that he would be unable to work as an aerospace engineer has no merit. He is qualified to work as a mechanical engineer for any company which does not compete with Quest, and there are many such companies both within and outside the geographical restriction.

However, the arbitrator agreed with G&B that Apollo and Quest are not competitors. He noted that: “Apollo is not eligible to perform the work which Quest performs; Quest is not eligible to perform the work which Apollo performs…[t]herefore, the noncompetition clause cannot protect Quest from ‘competition’ by Apollo or its employees, because Quest is simply ineligible to perform any of the work, whether at Pratt & Whitney or elsewhere, that Apollo performs by winning successful bids.”

The arbitrator also determined that “[t]he evidence did not support a finding that Quest was seeking to protect any enforceable business interests.” Quest cited the purpose of its nocompete provisions as protecting “the inevitable disclosure of the Company’s trade secrets and confidential information.” However, the arbitrator found that no evidence was presented to support that contention that Mr. Forcier was in possession of protectable business information or that his present employment would lead to the disclosure of confidential information.

Quest also filed suit in the Connecticut Superior Court against Apollo alleging that Apollo tortiously interfered with Forcier’s contract with Quest despite knowledge of the non-compete provision. Based on the arbitrator’s conclusion that the non-compete agreement was not applicable to the situation, it is expected that Quest will withdraw that action. Attorney Heiser represented Mr. Forcier in the arbitration and Apollo in the Superior Court action.

September 2006 - GIBSON AND BEHMAN OBTAIN DEFENSE VERDICT IN MOTOR VEHICLE ACCIDENT

Brian T. Dougan of G&B’s Providence office obtained a directed verdict in the Providence Superior Court. This case arose out of a motor vehicle accident which occurred on November 30, 2001, on Westminister Street in Providence, Rhode Island. The Plaintiff claimed that her motor vehicle was rear-ended by a motor vehicle owned by the Defendant Peter Taylor, and that immediately after the accident Mr. Taylor fled the scene. The Plaintiff testified that she was struck by a red motor vehicle, however, she was unable to give any other details about the red motor vehicle. The Plaintiff, in bringing this lawsuit against Mr. Taylor, was relying on a piece of paper given to her after the accident by an unidentified witness who the Plaintiff alleges wrote down the license plate number and gave it to her.

However, Mr. Taylor maintains that his red motor vehicle, which was allegedly involved in this accident, was stored away at his Mattapoisett, Massachusetts summer home on the day of the alleged incident. Mr. Taylor has stated that the car in question was locked in his summer house garage and that he and his wife are the only people who have access to the automobile keys and that the keys are kept in his regular house, located in Arlington, Massachusetts. Mr. Taylor further stated that when he stores the car in Mattapoisett, he always takes the battery out of the car and many times puts the car up on blocks in order to save the tires.

Furthermore, Mr. Taylor was working on the day of the accident and not only did he testify to this fact but the Defense introduced his employment records in to evidence for November 30, 2001, which support Mr. Taylor’s assertion that he was at work during the time of the alleged accident.

During trial as the Plaintiff attempted to testify about the piece of paper and the license plate number which was written on the piece of paper, Defense Counsel objected on the basis that the piece of paper and her testimony regarding the piece of paper was inadmissible hearsay. The Judge removed the jury from the courtroom and held an evidentiary hearing on the issue.

Attorney Dougan argued that R.I. R. Evid. 802, the "hearsay rule", provides a general prohibition against the admissibility of hearsay, except where statements fall under a firmly rooted exception. McKenna v. St. Joseph Hosp., 557 A.2d 854 (1989). Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. R.I. R. Evid. 801(c), State v. Mann, 889 A.2d 164 (2005). In this case, because a statement (the piece of paper) is being made by someone other than the declarant (unknown individual) and the statement is being offered to prove the truth of the matter asserted (that it contains a license plate number) the piece of paper and any oral testimony is inadmissible hearsay.

However, Plaintiff’s counsel argued that, although this may be hearsay, the statement fell under a firmly rooted exception to the hearsay rule and that hearsay exceptions contain particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to their reliability. McKenna v. St. Joseph Hosp., 557 A.2d 854 (1989).

The Judge stated that there was no doubt that the piece of paper which allegedly contained the license plate number was hearsay, but the question was whether the hearsay fell under one of the exceptions to the hearsay rule. The Plaintiff argued that this testimony fell under the present sense impression exception or in the alternative the excited utterance exception to the hearsay rule.

Present sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. R.I. R. Evid. 803(1) Rhode Island courts have held that to qualify as a present sense impression, the statement must be made while the event is occurring or with only a slight lapse of time. State v. Creighton, 462 A.2d 980 (R.I.1983). The rationale for the present sense impression exception is that the contempraneity of the event and statement negative the likelihood of deliberate or conscious misrepresentation.

A statement comes under the excited utterance exception to the hearsay rule when a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. In contrast to the present sense impression exception, to qualify as an excited utterance, much more time can pass so long as the trial justice is satisfied that the declarant was still laboring under the stress of the nervous excitement when he or she spoke and had no time to reflect on what he would say. In Re Daniel, 456 A.2d 258 (R.I.1983). The Plaintiff failed to introduce any evidence which would support the fact that the man gave her the piece of paper while excited or under the stress of the situation.

The Judge ruled that this piece of paper given to the Plaintiff was inadmissible hearsay and that no exceptions to the hearsay rule applied.

After the close of the Plaintiff’s case, Gibson & Behman moved for a directed verdict on the grounds that there is no evidence upon which a reasonable jury could find the Defendant was guilty of any negligent action.

The Judge agreed with Attorney Dougan’s arguments and found that the Plaintiff had no way to link Mr. Taylor’s red car to the red car that struck her. The Judge then granted our Motion For A Directed Verdict.

September 2006 - Gibson & Behman Burlington employees hit the pavement for Lexi-Skye Alden and The Jimmy Fund

Employees of G&B’s Burlington office took on “One Day. One Mission. One Walk”, on Sunday, September 17, 2006, to benefit The Jimmy Fund. They walked 13.1 miles along the famous Boston Marathon route. It was a worthwhile cause and one that will be in our hearts forever.

Our Burlington team consisted of Scott R. Behman, Christopher p. Cifra, Christopher m. Bova, Jordan S. Rattray, Nancy Jones, Janet Modesto, Ashley Langill and of course, the proud grandmother of Lexi-Skye, Alice Whitcomb.

Lexi-Skye’s team raised more than $10,000.00 for The Jimmy fund.

September 2006 - Tavern Not Liable to Intoxicated Patron Who Was Raped After Leaving Premises

A Superior Court judge recently allowed a defendant tavern’s motion for summary judgment where an intoxicated patron was raped after leaving the premises. In the case of Doe v. Destination Boston Hotel, Inc., Suffolk Superior Court Civil Action No. 05-1353, the plaintiff, Jane Doe, alleged that on April 9, 2004, she was assaulted and raped in a guestroom at a Boston hotel. Prior to the alleged sexual assault, the plaintiff was at a pub located next to the hotel, where she alleged that she was negligently served alcohol after she was visibly intoxicated. The pub moved for summary judgment as to the plaintiff’s claim for negligence and respondeat superior.

Viewing the facts in the light most favorable to the plaintiff, the summary judgment record reflected that on April 9, 2004, the plaintiff went alone to the defendant pub, arriving at approximately 11:00 p.m. She drank two glasses of wine at home before her arrival. At the pub, she met the general manager, who allegedley provided the plaintiff with free drinks throughout the evening. The plaintiff could not remember how many glasses of wine she drank at the pub, but testified that her glass was constantly full. The plaintiff believed that the pub’s general manager filled her glass with red wine throughout the night.

The plaintiff and general manager played pool in the pub for over one hour, during which time the plaintiff began to feel more intoxicated. After using the women’s restroom, the plaintiff decided to leave the pub because she knew she was intoxicated and wanted to avoid the general manager, who at some point expressed a sexual interest in her. She had trouble walking out of the bar and was too intoxicated to notice if there were any bouncers or security guards outside of the pub when she left. The plaintiff attempted to drive herself home but became concerned that she was too intoxicated to drive and returned to her same parking spot outside the pub. The plaintiff opened her door and, while still sitting in the driver’s seat with her seatbelt on, vomited. After a short period of time, individuals surrounded the plaintiff’s vehicle, including employees from the pub and co-defendant hotel. A pub employee suggested that the plaintiff stay the night at the hotel. The plaintiff contended that she refused, and since she did not know the people assisting her, did not feel safe and called 911. However, before police could arrive, the plaintiff was carried across the alley to the hotel lobby. It is not clear whether it was employees of the hotel or pub, or both, who helped carry the plaintiff into the lobby. However, once the plaintiff was inside the hotel, the pub’s employees left. The plaintiff was checked in by a hotel employee and wheeled up to a room on a luggage cart. The plaintiff contends that after she was brought into the room by the hotel employee, she was sexually assaulted and raped.

For the purposes of the summary judgment motion, the court found that the direct evidence alone, was enough for the plaintiff to establish that the pub negligently served her alcohol after she showed signs of visible intoxication. The court also found that the plaintiff’s clearly intoxicated state, her prior attempt to drive her vehicle, her call to 911 for police assistance, and her vomiting, triggered a duty on the part of the pub to take reasonable steps to prevent foreseeable harm to the plaintiff, which included ensuring that she did not again attempt to drive her vehicle, wander off alone or unattended into nearby city streets, or become unconscious. The pub should have taken reasonable steps to prevent foreseeable harm by calling the police themselves, or waiting for the response to the plaintiff’s 911 call before suggesting that the plaintiff be moved into the hotel.

Despite the above, the court found that the pub’s breach of its duties was not the proximate cause of the plaintiff’s injuries. Generally, the intervening act of a third party is a superceding cause that breaks the chain of causation when the original actor could not have foreseen the occurrence of such an act. There is no Massachusetts appellate decisions that have held that a tavern owner may be found liable for an intoxicated patron’s injuries that were caused by a criminal act perpetrated off the tavern premises by individuals with no connection to the tavern. There were no facts to suggest that the pub could have reasonably foreseen a harm to the plaintiff, of the general character she suffered, even considering her highly intoxicated state. Nor did the evidence reflect that the pub had reason to believe that the hotel’s employees who were with the plaintiff posed a physical threat to her. Nothing suggested that the pub was on notice that the hotel employed dangerous individuals, was unsafe or unsecure, or was known for any sort of violent or criminal activity. No one from the pub had any reason to believe that that the hotel’s employees intended to be violent towards the plaintiff or harm her in any way. Accordingly, the pub’s motion for summary judgment was allowed.

September 2006 - G&B RAISES $100,000 FOR CYSTIC FIBROSIS FOUNDATION JOEY COAKLEY MEMORIAL GOLF TOURNAMENT

September 2006- Gibson & Behman, P.C. was once again a key player in the Cystic Fibrosis Foundation Joey Coakley Memorial Golf Tournament this year, raising over $100,000. This is one of the few Pro Am tournaments in New England and raises money to find a cure for Cystic Fibrosis research. The tournament is held in the third week of August at both the Charles River and Woodland Country Clubs.

The tournament was started in 1975 by Gael Coakley after his son, Joey Coakley, died of the disease. President and Managing Director, Daniel P. Gibson 's, family has been touched by Cystic Fibrosis. His niece suffers from the disease, but due to the amazing strides in research, she is a flourishing paralegal in Boston, Massachusetts .

Gibson & Behman has been involved in the tournament for approximately twenty years as a platinum sponsor, and remains one of the primary sponsors of the event. To date, Gibson & Behman has raised over $1,000,000.00 dollars for cystic fibrosis research. Cystic Fibrosis is a genetic disease affecting approximately 30,000 children and adults in the United States .

September 2006 - PLAINTIFF’S INTOXICATION AS THE PRINCIPLE CAUSE OF HARM RENDERS ALLEGED DEFECTS OF STAIRWAY TOO REMOTE TO CONSTITUTE A PROXIMATE CAUSE OF INJURY

The New York Supreme Court, Appellate Division, First Department recently ruled that plaintiff’s intoxication may well be the principal cause of his harm and rendered the alleged defects of a stairway too remote to constitute a proximate cause of his injuries.

In the McNally v Sabban, which was venued in the Supreme Court of the State of New York, Bronx County, plaintiff Thomas J. McNally was injured when he apparently fell down the common stairway of a multi-family residential building owned by the defendants. Plaintiff was a tenant of the building. On the morning of June 14, 2002, plaintiff was found lying unconscious at the foot of the stairs. It was uncontested that plaintiff was highly intoxicated when he fell.

Plaintiff commenced suit against defendants, alleging that there were numerous statutory or code violations in the stairway of the building. Plaintiff’s expert affirmed that the code violations included defects in door openings, headroom, lack of hand rail, risers, treads, stair geometry, possible roof leak and an improper location of a light switch. In particular, the expert asserted that defendants’ failure to provide handrails in the staircase caused the accident.

Defendants submitted testimony of other tenants in the building demonstrating that plaintiff had a drinking problem. Furthermore, the hospital records showed that he was probably extremely intoxicated at the time of the accident.

Defendants moved for summary judgment arguing that there was no admissible evidence to prove that the statutory or code violations in the stairway were the proximate cause of plaintiff’s injuries.

The Supreme Court of the State of New York, Bronx County, denied the motion, holding that plaintiff had raised questions of fact relating to the issue of causation. The Appellate Division, First Department, reversed and granted summary judgment dismissing the Complaint.

On the appeal, the defendants asserted that it was plaintiff’s ultimate burden to prove that defendants’ negligence caused plaintiff’s injuries. Moreover, defendants properly asserted that because plaintiff could not recall how the accident happened, plaintiff can only resort to sheer speculation in asserting that defendants’ negligence was the proximate cause of his injuries.

The Appellate Division held that “[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury.” Lynn v. Lynn, 216 A.D.2d 194, 195 (1995), quoting Ingersoll v. Liberty Bank, 278 N.Y. 1, 7 (1938); see also Bernstein v. City of New York, 69 N.Y.2d 1020, 1021-1022 (1987). Even when there is no requirement for the plaintiff to exclude every other possible cause other than a defendant’s breach of duty, “the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation.” Lynn v. Lynn, 216 A.D.2d at 195-196.

In Kane v. Estia Greek Rest., Inc., 4 A.D.2d 189, 190 (2004), a similar case to McNally, summary judgment was granted to the defendant on the basis that “absent an explication of facts explaining the accident, the verdict would rest on only speculation.” Further, the Appellate Division determined that even if an expert alludes to potential defects on a stairway, the plaintiff still must establish that the slip and fall was connected to the supposed defect. (Id.)

In McNally, no one witnessed plaintiff’s fall, but the record was replete with evidence of plaintiff’s drinking history and recurring falls. Further, there was no evidence that any alleged code violations caused plaintiff to fall. As such, the Appellate Division determined that there was no triable issue as to causation, as plaintiff’s own testimony that he had no recollection of how the accident occurred is, under the circumstance of the case, sufficient to find for defendants as a matter of law. (Birman v. Birman, 8 A.D.3d 219 [2004])

Plaintiff attempted to argue that his intoxication was pertinent only on the issue of comparative negligence, whoever, the Court found this argument to be without merit, as plaintiff’s intoxication may well have been the principal cause of his harm and rendered the alleged defects of the stairway too remote to constitute a proximate cause of his injuries.

Cleary, this decision by the Appellate Division is extremely useful in defending any actions where plaintiff was intoxicated at the time of his injury and provides defense counsel with a good basis for a summary judgment motion

September 2006 - G&B Wins Maine Insurance Dispute

Attorneys Kevin O’Neill and Thomas M. Tang successfully defended a contribution claim brought by an insurer who had settled with an injured patron. Pursuant to the recent Special Arbitration Forum held on August 8, 2006, the insurer for the Olive Garden Restaurant in Augusta, Maine, asserted that it had settled a personal injury claim for payment of $55,000 for a slip and fall accident that was allegedly caused by deficient snow removal services rendered by Green Acres Landscaping at its insured’s premises. National Grange Mutual Insurance Company insured Green Acres Landscaping. The Olive Garden’s insurer essentially sought contribution for the settlement payment and an additional claim of $2,167 for legal fees arising from the incident. It maintained that Green Acres landscaping had failed to properly treat the Olive Garden parking lot pursuant to a snow removal contract. In support, Olive Garden presented a copy of the contract from the prior season, photographs of the accident scene and a weather report.

In response, Attorney O’Neill and Attorney Tang argued on behalf of Green Acres Landscaping that it had reasonably maintained the parking lot in response to adverse weather conditions. Furthermore, a comprehensive weather report for the date and time of the accident indicated only “trace” snowfall and no service was required by the parties’ contract until 2” snow accumulation. The photographs also depicted minimal snowfall. Lastly, it was argued that the Olive Garden insurer failed to produce a service contract applicable to the accident date. Absent an applicable contract, the Olive Garden as premises operator had a non-delegable duty to maintain its premises and the snow removal services of Green Acres Landscaping were reasonable under the circumstances. An affidavit of the owner of Green Acres Landscaping was submitted in support of the Defendant’s position.

The insurance arbitration panel ruled in favor of Green Acres Landscaping and denied the subrogation request. The arbitration panel concluded that the Olive Garden indeed failed to present an applicable binding contract in support of its claim and that the snow removal services were reasonable under the circumstances.

EVIDENCE OF PRIOR SERVICE TO INTOXICATED PATRONS AND “CULTURE OF INTOXICATION” DEEMED INADMISSIBLE IN NEW JERSEY

The New Jersey Supreme Court recently ruled that prior evidence of occasional over-serving of patrons, and a general “culture of intoxication” was inadmissible as propensity evidence, unless that practice was one which was consistently followed. The court also ruled on several additional points of law meriting a new trial due to the prejudice against the defendants.

In Verni v. Harry M. Stevens. Inc., et al., N.J. Super. App. Div. A-3951-04T2 and A-3966-04T3 (August 3, 2006), the Appellate Division of New Jersey’s Superior Court found that the admission of evidence of testimony suggesting that the beer vendor (Harry M. Stevens, Inc., hereinafter H.M.S.) had a policy of serving intoxicated patrons was inadmissible, and so prejudiced the jury that a new trial was proper.

In Verni, two individuals had consumed several beers prior to attending a New York Giants football game. The two individuals had several more beers while inside Giants Stadium, and had patronized two “go-go bars” after leaving the Stadium. Furthermore, the intoxicated defendant claimed that H.M.S.’ employees had served him four beers at a time, in violation of the stadium’s two-beer-per-customer policy. The plaintiffs introduced expert evidence that alleged it was H.M.S.’ policy to “serve visibly intoxicated people” and that service would only be denied to patrons who exhibited “signs of extreme intoxication” (emphasis added). Other evidence was produced indicating that when a beer vendor was asked to serve a visibly intoxicated person, that they merely check for the person’s identification, and not exceed the two-beer limit. Finally, undercover “spotters” were permitted to testify that on several occasions, violations of the alcohol policies included serving more than the two-beer limit, and in one instance, allowing a customer to pour his own beer.

The New Jersey Supreme Court found this testimony of prior violations of the alcohol code and police officers’ testimony of the “culture of intoxication” at Giants Stadium was improper and unduly prejudiced the jury against H.M.S. The court held that introduction of evidence as to past violations of the alcohol policies unfairly imputed a propensity of H.M.S. to serve intoxicated patrons and to serve more than the two-beer maximum. The court also held that H.M.S.’ past violations did not constitute a “habit” of violation, since no witnesses adduced the number of patrons served in violation, the servers who had violated the code, or whether the violations “represented a sufficient number of instances to warrant a finding of habit or routine practice.”

The court also found that the jury failed to make a distinction between a “loss of enjoyment of normal activities” and a “loss of enjoyment of years taken from catastrophic injury” in regards to the two-year old plaintiff. The Court found that it was inappropriate to merge the two doctrines since damages relating to the “loss of enjoyment of years” claim involve incalculable levels of compensation and since the claim was designed as a “plea to unbridled emotion that [was] not designed to produce a damage award free from passion.”

The court also addressed the issue of contribution of damages and motions for summary judgment against parties which had previously settled with the plaintiffs (and thus dismissed from the action). The court found that summary judgment motions filed against previously-settled defendants were improper and denied the non-settling defendants justice in contribution since the summary judgment motions “[bespoke] of a lack of true adversity that is an underpinning of our judicial system.”

Lastly, the court reviewed the admissibility of evidence against the plaintiffs in a cross-motion claiming that the parents improperly restrained the child plaintiff prior to the accident. The Court found that the parents had moved the child to a regular lap belt after the two-year-old had soiled her car seat, which was the type of ordinary care expected of a parent to their child, and that such evidence was correctly barred.

G&B’s Burlington Office Wins Premises Liability Case

Attorney Christopher M. Bova of G&B’s Burlington office recently obtained a defense verdict in a premise liability case involving an alleged fall at the Roche Brothers Supermarket in Quincy, Massachusetts.

The Plaintiff alleged that on June 29, 2002, while entering the supermarket’s foyer area, she was struck in the head by a fast moving door while retrieving a shopping cart. The Plaintiff sustained a fractured wrist, eye hematoma and concussion resulting in severe and disabling headaches and dizziness. Since the onset of the case, Gibson & Behman denied that Roche Brothers was negligent and countered that the Plaintiff failed to use reasonable care for her own safety.

At trial, the Plaintiff argued that Roche Brothers created an unreasonably dangerous condition by allowing shopping carts to congregate within its foyer area and more specifically, nearby doors that opened into a public area. The Plaintiff further argued that Roche Brothers personnel failed to take notice of the dangerous carts and collect said carts prior to the Plaintiff’s fall. On cross-examination, however, the Plaintiff admitted she was aware of the doors; how the doors opened into the foyer area and that she was not paying attention to the doors at the time of her fall. During its case in chief, Roche Brothers argued that it took all reasonable precautions by placing safety railing near opening doors and providing warning decals notifying customers of the doors.

After the parties’ closing arguments, the jury deliberated for approximately thirty minutes before ultimately returning with a defense verdict.

Michael Capuano Joins Gibson & Behman, P.C. as Intern

July 2006- Michael Capuano, son of US Congressman Michael Capuano of the Massachusetts Eighth District, is currently interning at G&B’s Burlington office.

Capuano, who enters his final year at Suffolk Law School in the fall, will work in the Burlington office through the end of August, returning as needed throughout the course of the year. In his capacity as intern, Capuano, who did his undergraduate work at Harvard College, is primarily responsible for research, drafting status letters and assisting with clients.

“Since I am leaning toward a career in civil litigation, Gibson & Behman is the best choice for me to conduct my internship,” said Capuano of the firm that is recognized for its proven litigation track record. “Having an opportunity to work with so many fine litigation attorneys is a privilege and an honor.”

A resident of Somerville, Capuano is Director of Alumni Affairs for the Student Bar Association at Suffolk Law School. He has volunteered his time on several political campaigns, most recently for gubernatorial candidate Deval Patrick at the state Democratic Convention in Worcester. He has also worked, along with his father, on the campaign to re-elect US Congresswoman Shelley Berkley of Nevada.

“Michael’s aptitude, attitude and desire to assist have made him a valuable addition to the firm this summer,” said Daniel Gibson, Managing Director and co-founder. “We look forward to having him do additional work with us in the future and are certain he will have a successful career as an attorney.”

G&B Prevails at trial of plaintiff’s claim that defendant failed to provide proper safety equipment pursuant to Labor Law Section 240(1)

June 2006- Mark S. Grodberg, the Managing Director of G&B’s New York City office obtained a defense verdict in a trial in Kings County Supreme Court for the State of New York involving a Labor Law claim based on absolute liability, pursuant to Labor Law section 240(1).

Originally, plaintiff’s claims also included negligence, Labor Law sections 200 (the codification of common law negligence under the Labor Law) and 241(6) (alleged violations of the New York City Administrative Code.). At trial, Mr. Grodberg successfully argues that each of the plaintiff’s claims, other than 240(1), must be dismissed based on a lack of sufficient evidence to support a prima facie case. The Court agreed, dismissed those claims and limited the trial to the issues presented by Labor Law section 240(1). The liability portion of the trial lasted five days.

The plaintiff was an employee of L&Z Restoration Corp. (the General Contractor). He alleged that he was injured while working on scaffolding and repairing the brickwork on a building owned by Southgate Owners Corp. (the “Defendant” or “Southgate”). Specifically, he alleged that the scaffolding tipped causing him to fall and leave him dangling, suspended by a rope, for approximately 1 hour until the Fire Department rescued him from the 15th Floor. This matter received significant media attention as the event was photographed and an article was published by the New York Post at the time of the accident.

The statutory and case law addressing the protection of laborers on scaffolding or other elevated related safety devices in New York is often extremely difficult to overcome because of the legislature’s intent, based on public policy, to extend liability to the employer and/or owner rather than the employee despite any actual supervision or control over the worksite.

In that regard, Labor Law section 240 imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards. Breach of the statutory duty must be the proximate cause of the injury. This section specifically applies to scaffolding which is to be so constructed, placed and operated as to give proper protection to a person employed.

The defense contended that Southgate, through its contractor, L&Z Restoration Corp., had provided all the proper equipment and that the accident was caused by human error and not as a result of any negligence by Southgate. With that stated, plaintiff’s counsel argued that plaintiff need not prove negligence on the part of Southgate, as Labor Law section 240(1) is based on absolute liability; plaintiff argued that he was required only to prove that defendant violated the statute as a result of L&Z’s employee’s human error.

After only 45 minutes of deliberation, the jury returned a verdict finding that Southgate had satisfied its duty to provide the proper safety equipment and, therefore, had not violated the statute despite the fact that the scaffold did tip, resulting in the plaintiff hanging from a safety harness. Zdzislaw Rebacz v. Southgate Owners Corp. Index no. 28116/03

PRIOR ACCIDENT TESTIMONY HELD INADMISSIBLE IN MASSACHUSETTS

The Massachusetts Supreme Judicial Court recently had occasion to review the admissibility of evidence of prior incidents.

In Crivello v. All Pak Machinery Systems, SJC-90525 (May 16, 2006), the Supreme Judicial Court concluded that the trial judge in a products liability action had not committed error when he excluded evidence offered by the plaintiff of prior incidents involving the defendant’s machine. Reaffirming its own 1940 holding in Robitaille v. Netoco Community Theatres, 305 Mass. 265, 268, the Court stated that for evidence of prior incidents to be admissible, there must be “substantial identity in the circumstances…and the danger of unfairness, confusion or undue expenditure of time in the trial on collateral issues reasonably seem small.”

Since Robitaille is a case often cited in motions in limine, having its principles recently reconfirmed by the Supreme Judicial Court should prove useful.

The Court in Crivello also upheld the exclusion of evidence of prior incidents because it was proffered to establish notice of a defective and dangerous machine, but there was no showing that the manufacturer had knowledge of the prior incidents.

G&B Attorney Runs Half Marathon for Cystic Fibrosis Foundation

On May 7, 2006, Attorney Sharon Russ of G&B’s Long Island, New York Office ran the Long Island Half Marathon to raise money to help support the mission of the Cystic Fibrosis Foundation. Cystic Fibrosis is a genetic disease which affects approximately 30,000 children and adults in the United States and often leads to chronic and life-threatening lung infections. Currently there is no cure, but Cystic-Fibrosis Foundation-supported scientists are making great strides toward developing new CF medications and strategies for therapies. To date, Gibson & Behman, P.C. has raised over $1,000,000.00 dollars for cystic fibrosis research.

Gibson & Behman Obtains Defense Verdict In Rear-End Collision

Attorneys Scott Behman and Sharmili P. Das of G&B’s Burlington office recently obtained a defense verdict in a case involving a public transportation bus that rear-ended the plaintiff’s vehicle.

The Plaintiff alleges that on January 15, 2000, while he was at an intersection on Massachusetts Avenue in Arlington, Massachusetts, he was rear-ended by a bus. Since the onset of the case Gibson & Behman denied that the operator of the bus was negligent as the bus skidded on black ice. Under Massachusetts law mere skidding is not evidence of negligence.

The plaintiff sustained some soft tissue injuries which resolved in March of 2000. However, approximately three years later the plaintiff underwent an MRI which revealed that he had a herniated disc at L4-L5 and as a result underwent a diskectomy. The plaintiff alleged that his herniation and all other problems related to the disc were caused by the incident of January 15, 2000. Prior to the trial, the plaintiff’s medical expert provided a report in which he opined that the herniation may have been casually related to the accident. However, on cross examination, the plaintiff’s expert was provided with several medical records prior to the incident which clearly indicates that the plaintiff had ongoing back and disc problems for several years. After being confronted with new information and records, plaintiff’s expert recanted his prior opinion and admitted on the stand that since he was not provided with all of the plaintiff’s medical records he could not provide an opinion as to whether or not the disc herniation was related to the accident.

On cross examination it was apparent that the plaintiff chose to provide the expert with only portions of his medical records and ignored any issue regarding prior injuries. After the cross examination of the plaintiff’s expert, the plaintiff had no evidence that the herniated disc was causally related to the incident.

After the parties’ closings, the jury was out approximately two hours and ultimately came back with a defense verdict.

G&B Prevails on Behalf of Porthole Restaurant on Negligent Security Claim Following a Sudden and Unexpected Assault Outside the Restaurant

Scott Behman and Daniel Shanahan of G&B’s Burlington office obtained a defense verdict in a six-day trial in Essex Superior Court involving a negligent security case. The plaintiff had made a $350,000 demand prior to trial.

During the late Sunday evening hours of a long holiday weekend in November 2002, the plaintiff and his companion were assaulted by unnamed assailants as they exited the Porthole Restaurant & Pub in Lynn, Massachusetts. As a result of the assault, the plaintiff suffered a fractured jaw requiring surgery as well as an alleged exacerbation of his underlying psychosis (schizo-affective disorder). Because of the plaintiff’s underlying mental illness, his parents brought claims against the Porthole for loss of consortium.

The plaintiff alleged that the Porthole was negligent for failing to provide adequate security in the form of security staff at the door and in the parking lot at closing time. The plaintiff retained a security consultant who testified at trial that the Porthole’s security policies and procedures were inadequate. During cross-examination, defense counsel highlighted the fact that the security consultant had no experience in managing a restaurant or tavern, and never provided the names of any family-owned restaurants that he supposedly provided security consulting services and training.

The plaintiff’s treating psychiatrist also testified regarding the effect the assault had on his underlying mental illness. However, on cross-examination the psychiatrist admitted that the plaintiff had returned to his pre-assault baseline within six to seven months after the assault, not years afterward as claimed by the plaintiff.

The defense asserted that the security employed by the Porthole on the night of the incident was reasonable and the assault was sudden and unexpected. Anticipating a better than average Sunday night crowd, the Porthole’s manager provided additional security that evening. The defense presented evidence that the assault occurred within seconds after the plaintiff and his companion left the restaurant, which prompted an immediate response from the Porthole’s security staff. The assailants eventually fled by car and were never apprehended.

After a week of hearing the evidence and approximately two hours of deliberation, the jury returned with a verdict finding that the Porthole was not negligent.

Gibson & Behman Presents at Las Vegas Night Club Conference

Sharmili Das of G&B’s Burlington office recently led a seminar/discussion session, “How to Protect Your Assets,” at the Nightclub & Bar/Beverage Retailer Convention and Trade Show, held in Las Vegas.

Das represented the Massachusetts Licensed Beverage Association, who sponsored the seminar. Her presentation provided educational information for bar and tavern owners nationally on the steps they can take to protect themselves in the event of a legal action taken against them.

Das addressed bar and tavern owners about simple, inexpensive and effective strategies through which these owners can protect their business and personal assets. Specifically, she discussed the importance of being properly incorporated and maintaining separating accounts. She further discussed the difference between owning and leasing the premises upon which a bar or tavern is situated. Owners, she said, should place the property in a real estate trust. Tenants should properly review their lease as many have provisions regarding rent increase, insurance and taxes which are passed on to the tenant.

“One claim or incident could put a bar owner of out business and imperil personal assets,” she cautioned, urging proper incorporation and insurance. She spoke further of the need for adequate liquor insurance and appropriate assault and battery coverage. “Often times, owners of bars and taverns do not realize the various ways in which they put their personal and business assets at risk,” she said, adding, “We hope that the information at this seminar will be of help to the industry.”

Attendees came from all across the United States; most were owners of taverns and bars, and some were from Massachusetts. Gibson & Behman is general counsel to the Massachusetts Licensed Beverage Association, which recently joined forces with the Irish Vintners’ Association.

March 2006 - Gibson & Behman obtains a "Lack of probable cause" finding from Massachusetts Commission Against Discrimination

Sharmili Das of G&B’s Burlington office recently prevailed at a hearing in front of the Massachusetts Commission Against Discrimination (MCAD). On March 21, 2005, the Complainant filed a claim at the MCAD alleging that employees of a nightclub where she worked in Massachusetts sexually harassed her. Specifically, the Complainant alleged that the Defendant nightclub engaged repeatedly in sexual harassment and that she was forced to work in a hostile environment. Moreover, she claimed that she advised the nightclub that she was being harassed and despite her complaints the nightclub did not investigate the matter and forced her to continue to work in a hostile environment. Thereafter the Complainant was terminated and she alleges that she was terminated for claiming she was sexually harassed.

Through the MCAD proceeding, the Defendant was able to establish that the Complainant was actually terminated for processing the credit card of a person whose name did not match the license presented with it. Specifically, it was established that the Complainant actually charged the credit card of a minor who showed an identification of a person over the age of twenty-one. The Complainant knew that the drinks were being bought by and served to a minor and continued to serve them. Later on that evening, the minor involved became very sick and an ambulance was called. As a result of the Complainant’s action, the Defendant was cited by the licensing board for service to a minor and was issued a violation. The Defendant night club terminated the Complainant for this incident. It was only after the Complainant was terminated that she first alleged that she was sexually harassed while employed by the night club.

After a hearing before the MCAD, the investigator determined that there was a “lack of probable cause” to find that the Defendant engaged in sexual harassment and recommended that the case be dismissed. The Defendant nightclub is pleased with this outcome and maintains its good reputation in the community.

February 2006 - G&B PREVAILS ON APPEAL OF BAD FAITH SUIT AGAINST QBE INSURANCE CORPORATION IN MARYLAND COURT OF SPECIAL APPEALS

The Maryland Court of Special Appeals affirmed the decision of the Circuit Court for Charles County, Maryland granting summary judgment to QBE Insurance Corporation based on the application of an assault and battery exclusion. The appeal was handled by Ted Heiser.

The matter arose out of an alleged assault on Alex McKenzie by an employee of QBE’s insured, Mixers, on December 15, 2002. McKenzie alleged that he exited Mixers and was followed into the parking lot by Edward L. Smith, an employee of Mixers. McKenzie’s complaint against Mixers alleged fours counts: assault; negligent hiring and supervision; intentional infliction of emotional distress; and loss of consortium. QBE disclaimed both the defense and indemnity of this claim based on an assault and battery exclusion contained QBE’s policy. The assault and battery exclusion provided in relevant part as follows:

This insurance does not apply to actions and proceedings to recover damages for “bodily injury” “property damage” or “personal and advertising injury” arising [f]rom the following and the Company is under no duty to defend or to indemnify an insured in any action or proceeding alleging such damages:

1. Assault and Battery or any act or omission in connection with the prevention or suppression of such acts;

2. Harmful or offensive contact between or among two or more persons;

3. Apprehension of harmful or offensive contact between or among two or more person; or

4. Threats by words or deeds.

The exclusion applied to assaults and batteries committed by any person, including “the insured, his officers, employees, agents or servants.” The exclusion also explicitly applies to claims for negligence in the “hiring, supervision, retention or control of any person, whether or not an officer, employee, agent or servant of the insured.” Finally, the exclusion applies as well to claims of “[e]motional distress or for loss of society, services, consortium and/or income.”

Mixers’ parent company, RPH, Inc., filed a declaratory judgment action against QBE alleging that the insurer was obligated to provide a defense and to indemnify Mixers and its employees in McKenzie’s suit.

The policy also contained an Expected or Intended Injury Exclusion, which excluded coverage for injury arising out of expected or intended act. However, that exclusion contained an exception for injury arising out of the use of reasonable force. On appeal, the plaintiff contended that the reasonable force exception to the Expected or Intended Injury Exclusion created coverage for any injury arising out of the use of assault and battery. The plaintiff further contended that the exception conflicted with the Assault and Battery Exclusion and made the policy ambiguous on its face.

We argued that the plaintiff’s contention was meritless because the “reasonable force” exception only applied to the Expected or Intended Injury exclusion, not to the entire policy or any of the other exclusions. Although the Expected or Intended Injury exclusion did not apply to the underlying assault, the Assault and Battery Exclusion clearly excluded that assault from coverage by the policy. The Court of Special Appeals agreed and ruled that the Assault and Battery Exclusion stood alone from the Expected or Intended Injury clause and that each exclusion or endorsement in the policy was cumulative. Therefore, although one exclusion may allow an act to be covered, a second exclusion can exclude coverage for the same act.

The Court of Special Appeals affirmed the lower court’s decision. However, the matter was remanded for further proceedings because the lower court failed to specifically declare the rights of the parties under the policy. The Court of Special Appeals directed the lower court to issue a declaration consistent with its opinion.

RPH, Inc, et al. v. QBE Insurance Corporation, et al.
In the Court of Special Appeals of Maryland
No. 00448
September Term, 2005
Filed: February 15, 2006

February 2006 - Defense Verdict in Trip and Fall Over Tent Stake

On February 8, 2006, Daniel Shanahan of G&B’s Burlington office obtained a defense verdict in a three-day trial in Essex Superior Court involving a trip-and-fall accident. The plaintiff had made a $300,000 demand prior to trial; the defendant made no offer for settlement.

The plaintiff rented a 20 foot by 20 foot canopy from the defendant, Carlo Bacci d/b/a Fun City Amusements, for an 80th birthday party. The defendant installed the canopy on Saturday, August 3, 2002, with the party scheduled for Sunday, August 4th. On Sunday morning the plaintiff, alone in her backyard, was walking around the canopy when her foot became trapped underneath one of the stakes used to support the canopy. She fell forward landing on her hyper-extended arm, seriously fracturing her forearm. The plaintiff underwent surgery in which a plate was inserted to stabilize the fracture. One of the screws later broke and the hardware was surgically removed in August 2005. The plaintiff incurred medical bills totaling $34,000, and lost wages in the amount of $14,000.

The plaintiff alleged that Mr. Bacci negligently installed the canopy because the stakes used to support the canopy were installed at an extreme angle, increasing a “trap hazard”. The plaintiff offered expert testimony that industry standards recommended installing the stakes vertically, for maximum stability and decreasing the risk of injury.

The defense asserted that there was no evidence that Mr. Bacci failed to exercise due care in his installation of the canopy. The defense emphasized that the instructions provided by the manufacturer of the canopy made no mention of stake installation angle or safety in general. The defense further asserted the condition of the stake was open and obvious and that the plaintiff was aware of the presence of the stakes before she fell. The plaintiff’s testimony at trial conflicted with prior deposition testimony as to the identity of the stake that caused her fall. The plaintiff was effectively impeached through her deposition transcript and use of trial exhibits. The defense also offered a narrative report from his medical expert stating that the plaintiff had recovered well from surgery with full range of motion and no limitations with regard to her employment as a bartender.

After three days of evidence and approximately one hour of deliberation, the jury returned with a verdict finding that Carlo Bacci was not negligent.

January 2006 - Dismissal of Workers' Compensation Claim Affirmed by Connecticut Appellate Court

Ted Heiser of G&B’s Connecticut office recently prevailed in an appeal from the Connecticut Compensation Review Board to the Connecticut Appellate Court. Heyward Sellers v. Work Force One, Inc. involved application of res judicata and collateral estoppel.

The plaintiff, Heyward Sellers, appealed the affirmation by the Workers’ Compensation Review Board of the dismissal of his claim for workers’ compensation benefits. Mr. Sellers originally suffered wrist and shoulder injuries while self-employed in 1995. In 1997, while still self-employed, Mr. Sellers suffered an injury when an auto part fell on his head. That claim was accepted by his workers’ compensation carrier. After becoming employed by Work Force One, Inc. in 1998, he filed another workers’ compensation claim for increased pain in his wrist along with depression and other conditions. Mr. Sellers claimed that as a result of the increased pain in his wrist he suffered from depression and sexual dysfunction and was treated for both. The Commissioner denied payment for the treatment for Mr. Sellers’ depression and sexual dysfunction because he did not prove that his physical injuries caused these conditions. Mr. Sellers subsequently filed another workers’ compensation claim in 2003 claiming depression as his alleged injury. The subsequent claim was the subject of this appeal. The Commissioner held that the depression claim was barred based on res judicata and collateral estoppel along with the fact that Mr. Sellers did not work for Work Force One, Inc. on his alleged date of injury. Mr. Sellers then appealed this decision to the Workers’ Compensation Review Board and when it affirmed the Commissioner’s original ruling, he took his argument to the Appellate Court.

Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit as long as the issue has been fully and fairly litigated. Res judicata prevents a party from reasserting a claim that has already been addressed and decided upon. The respondents argued that collateral estoppel barred consideration of the claimant’s claims related to the issues of depression and sexual dysfunction because those issues were previously fully and fairly litigated. The doctrine of res judicata barred the claimant’s claims for compensation for his depression and sexual dysfunction because those claims were extinguished by the Commissioner after his 1998 claim. Finally, Mr. Sellers was not employed by the insured on his alleged date of loss.

The Appellate Court affirmed the decision of the Workers’ Compensation Review Board that the plaintiff’s claim is precluded based on res judicata and collateral estoppel. The Appellate Court’s decision can be found at Heyward Sellers v. Work Force One, et al.., 92 Conn. App. 683, 2005 Conn. App. LEXIS 526 (2005).

January 2006 - Defense Verdict in Alleged Rear-End Collision

On January 12, 2006, Attorney Thomas M. Tang of G&B’s Boston office obtained a defense verdict in a one-day trail in Lawrence District Court involving a multi-vehicle accident. Attorney Tang was assisted by Attorney Deawn C. Takahashi, also of the Boston office.

In May of 2002, the Defendants were involved in a three-car accident during stop-and-go traffic. The four Plaintiffs in the case alleged that they were in a fourth vehicle in front of the three-car accident that was also struck during the collision. Each of the Plaintiffs alleged soft tissue injuries as a result of their alleged involvement in the multi-car accident. The Plaintiffs claimed total medical bills of approximately $15,256.00 for treatment at a chiropractic facility where one of the Plaintiffs had worked for some time prior to the accident.

Defense counsel maintained that at no time did any of the Defendants’ vehicles come into contact with the Plaintiffs’ vehicle. There was no property damage to the Plaintiffs’ vehicle and no one recalled the Plaintiffs’ vehicle being involved in the collision. The Police Report did not include any reference to the Plaintiffs or their alleged involvement in the accident.

On cross-examination by Attorney Tang, the Plaintiffs’ claims of injuries were each discredited as he impeached them with their prior deposition testimony and written answers to discovery. Attorney Tang also provided a strong closing argument through which he persuaded the jury that the Plaintiffs had not proven that they were involved in the accident, let alone that his client, the driver of the vehicle directly behind the Plaintiffs, had acted negligently in causing any such collision.

After one full day of trial in which the four Plaintiffs and the three Defendants each testified, the jury deliberated for approximately forty-five minutes before returning a defense verdict.

January 2006 - Defense Verdict in Slip-and-Fall in Supermarket

On January 20, 2006, Attorney H. Charles Hambelton of G&B’s Burlington office obtained a defense verdict on behalf of Roche Brothers Supermarket in a slip-and-fall case tried over a three-day period in Norfolk Superior Court in Dedham, Massachusetts.

The plaintiff alleged he slipped and fell on a “small wet spot” inside a Roche Brothers supermarket in Millis, Massachusetts. As a result of the fall, the plaintiff landed directly on his knee, shattering the kneecap. The plaintiff underwent surgery to repair the kneecap, and twenty-five percent of the kneecap was removed. The plaintiff incurred medical bills in excess of $14,000, and claimed six months of lost wages in the delay of opening his own business.

The defense asserted that there was no evidence that Roche Brothers’ employees caused the presence of the foreign substance, knew of the presence of the foreign substance or should have known but failed to timely warn or cure the condition. On cross-examination by Attorney Hambelton, the plaintiff testified that he was unable to identify the substance and had no evidence as to the length of time the substance was present before his fall. Attorney Hambelton also effectively, through cross-examination, discredited the plaintiff’s claim for lost wages for the delay in opening his business, arguing to the jury that such evidence presented by the plaintiff was speculative.

After three days of evidence and approximately thirty minutes of deliberation, the jury returned with a verdict finding that Roche Brothers was not negligent.

2005 News Archive