Articles Posted in MBTA Claims

In order to have a successful slip and fall case in Massachusetts, negligence must be established.  Negligence is one of three prongs of tort law (the two others being strict liability and intentional wrongs, but more on these in future posts).  Negligence is defined by Black's Law Dictionary (Second Ed.) as "The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm."  But what does that really mean?

The word refers to conduct that is considered objectively unreasonable.  For example, if you slipped and fell on ice in front of a store, and the store-owner had notice that the gutter above his store was leaking water onto the sidewalk and that this water would freeze in the winter, then that store-owner may have acted unreasonably, or negligently, in failing to correct the problem.  It was foreseeable – on the part of the store-owner – that someone would slip and fall on the ice (or maybe he or she even knew of slips and falls in the past and did nothing to correct it). 

Or, let's take the example of an automobile accident.  If a driver is driving erratically and ends up injuring someone, that driver may have been operating his automobile negligently, because he or she could have reasonably foreseen that someone would be injured as a result of his or her unreasonable conduct.

Some slip and fall cases are stronger than others.  Of course, even if your case is not strong, that does NOT mean you do not have a case worth pursuing.  Here are some elements that characterize a strong personal injury case:

1) Good photographs were taken which show the area of the slip and fall accident was negligently maintained;

2) There is an incident report documenting the accident;

Generally in Massachusetts, if you slip and fall at a retail store, the store will refuse to give to you a copy of the incident report.  The insurance adjuster assigned to your claim will also refuse to give to you a copy, even if you have an attorney working the case for you.

Usually, the only way to get your hands on the report is for your attorney to file a lawsuit against the store.  During the discovery phase of the litigation is when the incident report will be forked over by the attorney's representing the store.

Therefore, if you are having trouble getting your hands on the accident report, do not be surprised if the store refused to give it you, prior to litigation.