Gibson Behman PC - 2005 News

2005 News

December 2005 - GIBSON & BEHMAN, P.C. OBTAINS DEFENSE VERDICT IN MASSACHUSETTS WRONGFUL DEATH DRAM SHOP ACTION

On December 21, 2005, Attorneys Scott R. Behman and William P. Antonoff of G&B’s Burlington office obtained a defense verdict on behalf of the Office Bar and Grille in a Massachusetts Dram Shop action tried over a two week period at the Superior Court in Lawrence. The plaintiff had made a multi-million dollar demand prior to trial.

In Estate of Jennifer D’Amour v. Jamie Dennis and JGK Enterprises, LLC d/b/a the Office Bar and Grille, the plaintiff alleged that employees of the Office Bar and Grille negligently served alcohol to an intoxicated patron, co-defendant Jamie Dennis, resulting in the death of Jennifer D’Amour. The plaintiff further alleged that Dennis negligently operated a motor vehicle, but settled with Dennis prior to trial.

On the evening of May 7, 1999, Jamie Dennis was at the Office Bar and Grille to meet co-workers and consumed 4 or 5 Heineken beers between approximately 7 and 10:45 p.m. Thereafter, he consumed either water or a soft drink until leaving at 12:18 a.m. After leaving the Office Bar and Grille, Dennis was traveling on I-93 North in Andover, MA. Just prior to the D’Amour-Dennis motor vehicle accident, Jennifer D’Amour lost control of her vehicle and crashed into the guardrail in the left hand lane. After hitting the guardrail, the D’Amour vehicle came to a stop straddling the first and second travel lanes with its lights out. Shortly thereafter, the vehicle operated by Dennis struck the D’Amour vehicle at a high rate of speed resulting in the death of Jennifer D’Amour. Dennis was not given a breathalyzer and refused a blood test, but numerous police officers and independent witnesses testified that he exhibited signs of intoxication at the accident scene and hospital where he received treatment.

At trial, the Plaintiff was not able to prove that Jamie Dennis was exhibiting signs of intoxication prior to being served his last alcoholic beverage at the Office Bar and Grille. Accordingly, the Plaintiff was unable to prove his case after offering evidence that Dennis exhibited signs of intoxication at the accident scene and the hospital where he was taken for medical treatment following the motor vehicle accident. The defense explained that Dennis may have staggered, had blood shot eyes and/or slurred his speech of as a result of striking his head against the windshield of his vehicle at 65 miles per hour.

This case demonstrates that insurers should not be threatened into paying liquor liability claims solely on the basis of an arrest and/or police investigation indicating the drinker exhibited signs of intoxication at the accident scene absent evidence of obvious and discernable signs of intoxication at the time of last service. Vickowski v. Polish American Citizens Club of Town of Deerfied, Inc., 422 Mass. 606, 610-12 (1999).

December 2005 - Connecticut defense verdict in liquor liability action

Stephanie S. Berry of G&B's Connecticut office obtained a defense verdict following a two-day jury trial in New London Superior Court on behalf of a local, family run restaurant/bar in a personal injury lawsuit that stemmed from a bar fight. The plaintiff's demand throughout the litigation was $50,000, which lowered to $20,000 prior to the commencement of trial. The plaintiff never lowered his demand from $20,000 and at trial, requested the jury award approximately $100,000. The defense filed an offer of judgment in the amount of $5,000 three months prior to trial.

The plaintiff, Kristoffer Aregood, initiated the lawsuit by way of a three-count complaint against four defendants: Caspers Ltd. d/b/a Lyme Tavern Café (hereinafter "the Tavern"), its liquor permittee Franklin McEwen, and two brothers named Thomas Zeimet and Patrick Zeimet (the alleged assailants). The lawsuit stemmed from an altercation that occurred during the early morning hours of July 18, 2003 , in the rear parking lot of the Tavern in Niantic, Connecticut .

The first count alleged the Tavern violated Connecticut 's Dram Shop Act, C.G.S. § 30-102, by serving alcoholic beverages to the co-defendants while they were already intoxicated. The second count was also brought against the Tavern for alleged negligent supervision/security in: (1) failing to have sufficient staff to deal with unruly and/or violent patrons; (2) failing to stop the assault, which continued over a prolonged period of time; and (3) failing to station a staff member in the parking lot at closing time to deter or terminate assaults by one patron on another. The third count was against Thomas Zeimet and Patrick Zeimet for allegedly assaulting the plaintiff.

The most important aspect of the defense of this matter had to do with the fact that the plaintiff and Zeimet brothers had been friendly with each other for many years until they had a "falling out" some five years prior involving an incident wherein the plaintiff allegedly stabbed one of the Zeimet brothers in the arm. The jury believed the Zeimet brothers' testimony that while they were "buzzed" at the Tavern that night, they were not displaying any signs of intoxication. In addition, the Zeimets testified that the plaintiff was the aggressor in the altercation and therefore, the plaintiff's injuries were not caused by any intoxication on the part of the Zeimets.

The trial judge granted Attorney Berry 's oral motion to dismiss the plaintiff's claim for negligent supervision/security at the close of evidence on the grounds that the plaintiff failed to establish the requisite standard of care in such a case. Subsequently, after only an hour of deliberation, the six member jury returned a defense verdict as to the Dram Shop count against the Tavern, as well as to the assault count against the Zeimet brothers. It should be noted that the Zeimets were not represented by their own counsel during the litigation or trial of this matter. No appeal was filed by the plaintiff.

December 2005 - Gibson & Behman holiday party

Gibson & Behman, P.C. recently held its annual Holiday Party at the Marriott Boston Burlington. The event took place on Friday, December 2, 2005, and every office was invited to attend and celebrate the successes of the firm this year. Dinner and dancing was enjoyed by all.

December 2005 - Dan Gibson in Boston Business Journal

October 2005 - Connecticut Legislature Adopts Offer of Compromise

The offer of judgment, or offer of compromise as it is now known in Connecticut , can be an effective tool for the defense in most negligence and contract matters in the State of Connecticut . Offers of judgment by the defendant are controlled by Connecticut General Statutes §§ 52-193 and 52-194. Both of those sections were recently repealed and replaced by Public Act No. 05-275. The changes to the rule were made effective as of October 1, 2005.

The primary modification to the statute was changing the term "offer of judgment" to "offer of compromise." On many levels that change was purely semantic. However, with respect to a defendant's offer of judgment the change will have a meaningful effect. In the past, when an offer of judgment was accepted, the plaintiff could seek costs. The plaintiff was entitled to seek costs because the accepted offer resulted in judgment being entered against the defendant. A significant number of plaintiff's attorneys did not take advantage of that aspect of the offer of judgment rule. However, more sophisticated counsel were aware of the rule and took advantage of the ability to claim costs. In larger cases, where significant costs had been incurred, the claimed costs could be extensive.

The legislature's modification of the rule to make it an offer of compromise ends the ability of a party to seek costs after an offer is accepted. The new offer of compromise essentially creates a formal settlement offer mechanism. Acceptance of the offer will be no different than acceptance of a traditional settlement offer. However, the failure to accept the offer of compromise still carries the same risk as the failure to accept an offer of judgment in the past. If an offer is not accepted, and the net verdict is equal to or less than the offer of compromise plus 8% annual interest from the date of the offer, the plaintiff is prohibited from seeking costs against the defendant despite prevailing at trial. In addition, the plaintiff will be required to pay the defendant's costs accruing after notice of the offer of compromise was provided to the plaintiff, including reasonable attorney's fees not to exceed $350.

The offer of compromise can be a very effective tool on all levels of cases. In particular, cases with a limited value present a great opportunity to use the offer of compromise. An early and reasonable offer of compromise will often pressure the plaintiff to consider settlement in the early stages of litigation. That is particularly true where the value of a case is limited ( e.g. , under $30,000), the plaintiff has fairly significant outstanding medical bills, and the defendant's costs may be fairly high because of the need to employ expert witnesses.

If a thorough analysis of a case is undertaken in the early stages of litigation or pre-litigation, a realistic offer of compromise can often be made very early. The statute bars the plaintiff from filing an offer of compromise prior to 180 days after service of the summons on the defendant. That same restriction does not apply to the defendant, meaning the defendant can file the offer of compromise as early in the litigation as it desires. The only temporal restriction on the defendant is that the offer of compromise must be filed at least thirty days before trial. Be aware that the federal courts will not award costs beyond those statutorily required. The result is that expert witness fees will be limited to appearance fees and reasonable travel costs, as opposed to hourly testimony fees that may be awarded in state court. The federal limitation applies even in diversity suits applying state law.

You should also be aware of other changes to the offer of compromise statute. Specifically, the legislature changed the time for a defendant to accept a plaintiff's offer from 60 days to 30 days and for a plaintiff to accept from 10 days to 60 days. In medical malpractice cases, a plaintiff making an offer of compromise is required to specify all damages then known to the plaintiff or his counsel when the offer is made. In addition, at least sixty days prior to the offer of compromise, the plaintiff must provide the defendant with authorizations for medical records and a disclosure of all standard of care expert witnesses. Finally, the plaintiff is required to file a certification with the Court indicating the plaintiff has provided the defendant with all documentation supporting his or her claim for damages.

G&B Continues Long Association with Cystic Fibrosis Foundation Joey Coakley Memorial Golf Tournament

Gibson & Behman, P.C. was once again a key player in the Cystic Fibrosis Foundation Joey Coakley Memorial Golf Tournament this year. It 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 .

New York, September 2005 - Gibson & Behman, P.C. is pleased to support Brazil Foundation.

In an elegant and festive atmosphere at Cipriani in New York City, Gibson & Behman, P.C. joined Brazil Foundation in celebrating the foundation's Third Annual Gala. The event raised $200,000.

Brazil Foundation is a U.S.-Brazilian philanthropy with headquarters in New York City . Its stated mission is "generating resources for programs that promote social change in Brazil." The Annual Gala is its most important fundraising event the proceeds from which finance dozens of social projects annually in Brazil.

Several members of Gibson & Behman, P.C.'s New York City office joined the 450 guest at the event including, attorney Dirk Haarhoff, Esq., legal assistant Olusegun Oguntola, and foreign legal consultants Thais Nobre, Simone Tatsch and Carolina Widmer. The event specifically helped to raise revenue for Brazil Foundation's projects in the fields of education, health, human rights, education and citizenship in Brazil . Other guests at the Gala included Pedro Litchfinger, President of Pfizer Animal Health, Mr. Fernando Henrique Cardoso, former president of Brazil, and Ms. Donna Hrinak, former US Ambassador to Brazil.

September 2005 - G&B Receives Defense Verdict in Snow and Ice Case against Property Manager Venued in Suffolk County Massachusetts

Linda Hall v. The Hall Company, Inc., et al. , Suffolk County Superior Court, Case No. 2000CV04804.

On January 15, 1999 , the plaintiff slipped and fell on snow and ice that had accumulated on the front steps of her apartment building. The plaintiff alleged that a defective gutter, located over the steps, caused an unnatural accumulation of ice to form on the steps. As a result she suffered a fractured ankle, which required surgery and the insertion of fixation hardware. The plaintiff incurred approximately $16,000.00 in medical bills.

The case was tried before a jury in Suffolk Superior Court over two days. Daniel J. Shanahan, of our Burlington , Massachusetts office, represented the realty trust that owned that property and the management company for the property. The defendants contended that there was no evidence of the existence of any defects on the property, which could have caused an unnatural accumulation of ice to form on the steps. Defense counsel emphasized that at the time of the plaintiff's fall there was an ongoing winter storm event. Both the plaintiff and her roommate testified that there was a mix of snow and freezing rain at the time of the fall. They also testified that the steps appeared freshly shoveled, treated with salt, and that they observed fresh snow/slush on the steps. Both testified that the plaintiff slipped when she stepped down onto the top step. The plaintiff's roommate testified that before the incident she observed water channeling down from the front of the building landing on the bottom steps. The plaintiff's roommate was not sure if she complained about the alleged defective gutter before or after the plaintiff's fall.

The building superintendent, employed by the property manager, testified that there were no defects on the property. He also testified that he never received complaints from any tenants regarding a defective gutter.

After approximately three hours of deliberation, the jury returned with a verdict finding that the defendants were not negligent.

September 2005 - Gibson & Behman Receives Another Defense Verdict in Premises Liability Case

H. Charles Hambelton recently received a defense verdict in a case for National Amusements.

On April 20, 1999, Geraldine Langan was a 58-year-old woman who was employed by Mental Health Resource Plus of Lawrence as an employment coordinator. Her job essentially involved assisting challenged people in obtaining gainful employment. On that day, by previous appointment, Mrs. Langan visited the Showcase Cinemas in South Lawrence . Mrs. Langan entered one building and was told that the person she had the appointment with was in the other building. She left the theater lobby to return to her van to go to the other building. As she was walking down the exterior stairs, a portion of the stairs crumbled under her feet and she fell. Mrs. Langan testified that the step edge was crumbling and uneven. Pieces of the crumbled cement were evident on the step below. It appeared to the plaintiff that this repair had existed for some time. The plaintiff offered photographs that portrayed the stairs in an unflattering light. The plaintiff elicited testimony from an employee of the defendant that there was a crack running across the steps for quite some time before the accident happened and he was concerned that water infiltration would deteriorate the steps.

As a result of the incident, Mrs. Langan suffered a torn rotator cuff. She was also given a 10% permanent impairment to the left upper extremity and a 6% impairment to the whole person by her expert doctor. The plaintiff's demand before trial was $150,000.00.

The defendant argued that the steps were the same steps that she used to enter the building without incident. There was also no evidence that the steps were in a dangerous or defective condition or that the defendant caused, knew, or reasonably should have known of the alleged condition of the steps prior to the accident. There was also testimony during the course of this trial that Mrs. Langan was upset that the person she was meeting with was not at the building she was, and she left in a hurry and very angry.

After a hard fought, three-day trial, the jurors deliberated for less than an hour and delivered a defense verdict. It is unclear whether the plaintiff and her counsel are going to appeal this decision.

April 2005 - Gibson & Behman Wins Appeal at Rhode Island Supreme Court

Facts / Procedural History: This case came before the Supreme Court of Rhode Island pursuant to an appeal by the defendants, J.P. Noonan Transportation and Kenneth Baker (hereinafter referred to as defendants) of the trial justice's grant of a new trial after the jury verdict in favor of the defendants. At the jury trial in Providence Superior Court, the driver of the J.P. Noonan tractor-trailer, Kenneth Baker (Baker), testified he was traveling south on I-95, [which contained two (2) travel lanes in the southbound direction] from Mansfield, Massachusetts to Groton, Connecticut .

Baker testified he was traveling in the left hand lane near the Hopkins Hill ( West Greenwich ) exit, and observed a red pick-up truck traveling approximately six (6) truck lengths in front of him. As Baker passed exit 6A on I-95 south, he noticed the red pick-up truck begin to spin out of control. Baker could not move to the right, as there were vehicles in that lane. He attempted to stop, but he did not have enough time, or distance to do so. In an attempt to avoid a collision with the red pick-up truck, Baker drove the J.P. Noonan tractor-trailer to the left, and into the center median. Baker was successful in avoiding the red truck, but struck the center guardrail causing his truck to jackknife blocking the left lane and part of the right lane of travel on I-95 south. The red pick-up truck also struck the center guardrail about ten to fifteen (10-15) feet ahead of Baker.

After the J.P. Noonan tractor-trailer came to rest, Baker exited his vehicle and walked up to the red pick-up truck, to check on its occupants. Baker had a brief conversation with the operator of the red pick-up truck, Agostinho Almeidi. He then returned to the J.P. Noonan tractor-trailer to check its condition and put out warning triangles. As he was walking to the cab of the tractor-trailer, Maglioli struck the right rear side of the J.P. Noonan trailer. Approximately two (2) to three (3) minutes had elapsed when Maglioli crashed into the trailer.

The jury returned a verdict in favor of the defendants. The Plaintiffs' subsequently filed a Motion for a New Trial based on the jury instructions given by the Court. The Trial Court ordered a new trial, finding error with the sudden emergency instruction and rear-end collision instruction. The Defendants' appealed the decision of the Superior Court to the Supreme Court.

Decision: When a trial justice grants a new trial based on the finding that the jury was charged with an erroneous the Supreme Court uses a denovo review. Cruz v. Johnson, 823 A.2d 1157, 1159-61 (R.I. 2003).

The first issue on appeal was whether the facts of this case warranted a rear-end instruction. The rear-end collision instruction states, when a case includes a claim resulting from a rear-end collision, a prima facie case against the driver of the car in the rear is established and the duty of going forward to rebut the prima facie showing of negligence rests with that party. Nelson v. Grilli, 368 A.2d 1234, 1235 (R.I. 1977). However, if the driver in the rear presents evidence from which reasonable minds could draw different conclusions on the question of negligence, the determination of that issue is left to the finder of fact, and in that instance, the rear-ended driver retains the burden of proof on all issues. Id.

The Supreme Court found that it was error to charge the jury with a rear-end collision instruction because the evidence presented at trial established that the car driven by Maglioli struck the side of the trailer of the J.P. Noonan truck and not the rear. The Court opined that by name and application, a rear-end collision occurs when a vehicle is struck by another vehicle from behind on the lead vehicle's rear-end. The Court held that the facts in this case were undisputed that the tractor-trailer was stopped perpendicular to the roadway, blocking the lane of travel and was struck on the side. However, the Court found that this erroneous instruction was harmless and did not warrant a new trial. Although the rear-end collision instruction was erroneous, the trial justice also correctly charged that that if there was conflicting evidence from which different conclusions as to Maglioli's negligence may be reasonably be drawn, then the presumption that Maglioli was negligent become inoperable and has no further effect. The Supreme Court found that the Plaintiffs' presented sufficient evidence to overcome the rebuttable presumption created by rear-end collision instruction. The Supreme Court found that the error was harmless because the instruction was not so far removed from the facts that it prejudiced the Plaintiffs' case.

The sudden emergency instruction states that individuals confronted with sudden and unexpected events demanding immediate action cannot be held to the same standard of care required of one in no such predicament; the sudden emergency doctrine requires that the jury apply a standard of reasonableness that considers exigent situation when evaluating a party's conduct. Skaling v. Aetna Insurance Co., 742 A.2d 282, 289 (R.I. 1999). In awarding a new trial the trial judge determined that the road conditions did not entitle defendants to this instruction because Baker was able to control the tractor-trailer. The trial justice found that there was a lack of spontaneity in Baker's actions because he was able to move his tractor-trailer off the road, was able to feather the brakes and was able to downshift twice.

The Supreme Court found that the sudden emergency instruction was properly given. The Supreme Court concluded that the sudden emergency instruction was warranted in light of the fact that a tractor-trailer traveling 50 miles per hour which encounters another vehicle approximately 360 feet ahead spinning out of control speaks to the spontaneity of the situation. Furthermore, Baker's decision to downshift gears, feather the brakes and steer the tractor-trailer toward the median could be found by a fact-finder to be a spontaneous reaction to an unforeseen emergency. Therefore, the Supreme Court found that it was error on part of the trial judge to award a new trial on the basis of this instruction.

In conclusion, based on the Supreme Court's denovo review, they concluded that the rear-end collision instruction amounted to harmless error and that the suddenly emergency instruction was correctly given.

The Supreme Court vacated the Order of the Superior Court granting a new trial and remanded the case to the Superior Court with directions to enter judgment in favor of the defendants, J.P. Noonan Transportation, Inc. and Kenneth Baker.

March 2005 - Gibson Fights Insurance Fraud

Governor Mitt Romney has appointed Managing Director Daniel P. Gibson to be a member on the Advisory Insurance Fraud Committee reporting to Insurance Commissioner Bowler. The committee is charged with looking at issues concerning automotive and workers compensation fraud in Massachusetts.

The committee has been funded by a ten ($0.10) cent surcharge on all automotive and workers compensation policies in Massachusetts totaling approximately Four Hundred Thousand ($400,000) Dollars for distribution to agencies fighting insurance fraud. Mr. Gibson brings his experience of more than 23 years in the area representing insurers, self-insurers, and corporations fighting fraud issues not only in the Commonwealth of Massachusetts but also throughout the country.

The committee has had its initial meeting and will continue to look at the best ways to fight the ever-challenging problem of insurance fraud in the Commonwealth of Massachusetts. The committee consists of five members of which Mr. Gibson is one of two Gubernatorial appointments.

Daniel P. Gibson (right) is sworn in to the Governor's Advisory Insurance Fraud Com mittee at the Massachusetts State House by Deputy Director of Gubernatorial Appointments Joel Robbins, on February 28, 2005.

March 2005 - Gibson & Behman Prevails With Summary Judgment on Escalator Case

These matters arose out of the claim that several school children were injured when they fell on the down escalator at the Aquarium MBTA station. The Plaintiffs, children from the Hennigan School, were on a fieldtrip on November 5, 1999 when one of the children fell at the bottom of the escalator, causing a pile-up on the escalator and injuries to several children. The Plaintiffs alleged that the MBTA had a duty of care to keep the escalator reasonably safe for all those lawfully on its premises and breached that duty by failing to ensure that its escalator complied with the Massachusetts Regulations and industry standards and regulations. The Plaintiffs also alleged that the MBTA failed to maintain the escalator. Millar Elevator Service Co., who was in charge of servicing the escalator, was also named a Defendant.

The MBTA and Millar Elevator filed a motion for summary judgment arguing that 1) the Plaintiff's could not prove their prima facie case and 2) the MBTA fulfilled its duty to warn.

A. Plaintiffs failed to prove their Prima Facie case.

First, the MBTA argued that the Plaintiffs could not prove their prima facie case as they failed to demonstrate that the MBTA breached its duty to keep the escalator reasonably safe for those lawfully on its premises by failing to ensure that its escalator complied with the Massachusetts Regulations and industry standards. In support of its argument, the MBTA argued that the record provided no testimony to support the Plaintiff's claim that the MBTA was not in compliance with the Massachusetts Regulations and Industry Standards. Furthermore, the MBTA argued there was no testimony that the escalator was not in proper working condition on the incident date.

In addition, the MBTA argued that the Plaintiffs could not prove their prima facie case as they failed to demonstrate that the MBTA breached its duty of keeping the escalator safe for those lawfully on its premises by failing to maintain the escalator. In the instant matter, the evidence showed that both teachers and students neither noticed nor heard anything unusual while riding the escalator safely to the bottom. Moreover, MBTA employees arriving on scene immediately after the incident testified that no defects were found that could have contributed to the incident. Based on the testimony, the MBTA argued that the Plaintiff's claim of negligence should fail as a matter of law.

B. The MBTA fulfilled its duty to warn.

The MBTA also argued that even though it did not have a duty to warn, the MBTA took precautions to warn those lawfully on its premises of the dangers of escalators. Here, the students were familiar with escalators and could view its moving parts as they traveled down the escalator. In this case, the MBTA argued that the escalator and its potential hazards were open and obvious to the students and teachers and as such, the MBTA had no duty to warn the Plaintiffs. The MBTA further argued that even if the dangers were not open and obvious, the MBTA still fulfilled its duty to warn by placing signs throughout the station and advising visitors of the dangers of the escalator and proper riding instructions. In addition, the MBTA stated it provided signs posting the emergency stop buttons for the escalators.

After oral arguments, Judge Patrick Brady of the Suffolk Superior Court allowed the MBTA's motion stating that there was no admissible evidence to support the Plaintiff's claim of ensnarement or entrapment. All testimony presented by the Plaintiff to support its argument was classified by the judge as hearsay and the MBTA's testimony indicated that no defects were found on the date of loss. Moreover, the judge dismissed the Plaintiff's expert testimony as either irrelevant or not limited to the date of loss. The Plaintiffs have filed a notice of appeal.