Kushner & Marano, P.C., Attorney at Law

Boat and Jet Ski Operators’ Obligations and Liability in MA

2021-07-26T18:23:45Z

While there are specific laws and regulations relative to operating on waterways, as a general rule, operators of watercraft (boats, jet skis, etc.) are subject to the same liability standards as an operator of any motor vehicle. Simply put, the owner or operator of a boat or jet ski may be liable for injuries proximately caused by that owner’s negligence or recklessness. The mere happening of a watercraft accident, however, does not necessarily mean that an owner or operator was negligent or reckless. The ocean is unpredictable and can certainly hide unseen dangers. Notwithstanding, the initial question will be whether the operator was acting reasonably under the circumstances. In other words, whether a reasonable operator would have acted the same under the same or similar circumstances. (i.e. Was he going too fast given the conditions? Should she have been aware of and avoided the reef? Was she operating too close to shore?). These questions may be the subject of expert testimony, common sense or both. Unbeknownst to some watercraft operators, the same standards that apply to operating a motor vehicle under the influence of drugs or alcohol also apply to boats and jet skis. That is, operating a vessel (any watercraft) with a blood alcohol level of .08 or greater, or under the influence of drugs, is against the law. In addition to criminal penalties, violation of any such safety statute is evidence of negligence in a civil matter. Likewise, knowingly getting on or in a vessel that is being operated by an individual who is under the influence may also be negligent. If an accident occurs, a boat operator involved in an accident also has a duty under Massachusetts Law to render such assistance to a victim of the accident as may be practical or necessary in order to save them from any danger caused by the accident. Boating and jet skiing are entertaining and fun. But owners and operators must be aware of the laws and regulations and their duties and obligations. Accidents can occur and people can get seriously injured.

Drunk Driving Accidents: Can a Bar or Restaurant be Held Liable?

2021-07-26T18:23:50Z

There are multiple potential parties who may bear responsibility for injuries arising out of a motor vehicle accident caused by an individual operating under the influence of alcohol. First and foremost, the intoxicated driver will have liability for such damages. However, further investigation should be conducted to determine where that driver was served and/or consumed alcohol.

Massachusetts law is clear that a bar or restaurant that serves alcoholic beverages to one whom they knew or should have known to be intoxicated may be liable for subsequent harm caused to others by the intoxicated patron. Investigation must be undertaken to determine not only where the driver was served but also how many drinks were served andwhether any drinks were served at a time when the bartender or waitperson knew or should have known that the patron was intoxicated. While the number of drinks served and consumed by a patron may be sufficient to prove that the service person knew or should have known that the patron was intoxicated, evidence that the patron was exhibiting signs of intoxication may be even more compelling proof. Credit card receipts can provide information as to the number of drinks consumed but evidence of the patron’s behavior can be bit more difficult to obtain. Locating and interviewing other patrons, including companions of the drunk driver, can make the difference in proving that the establishment that served the alcohol bears some liability for the accident and resulting injuries.

How a Private Lender Can Succeed Against a Borrower’s Claims

2021-07-26T18:23:53Z

Private, or hard money, loans are rarely a problem unless and until the borrower experiences financial issues. A borrower's issues can arise out of the cost overruns, mismanagement, or a downturn in the market, among other things. By their very nature, hard money loans are secured by real estate (or "hard" assets) and are at traditionally lower loan-to-value (LTV) ratios than institutional lenders (since borrower credit worthiness normally excludes lower rate institutional loans). When borrowers find themselves in trouble (and in default under the loan) they often times seek leverage against the lender by filing suit.

In Massachusetts, there are numerous lending statutes which prescribe a myriad of regulations. There are consumer lending and consumer protection statutes (M.G.L. c. 140D, M.G.L. c. 183C and M.G.L. c. 93A) as well as a criminal usury statute (M.G.L. c. 271 s. 49). If private lenders follow the proper procedures, they can avoid liability under these various statutes and provide defenses to prospective claims by borrowers. Borrowers faced with losing their property (and the equity therein) and looking to stave off foreclosure, however, may file suit alleging violations of some or all of these statutory regulations regardless of the precautions taken during underwriting and at the closing table.

Kushner & Marano has been representing private lenders for over a decade in litigation. The first rule of thumb for any private lender is to have proper counsel during the underwriting and closing process. If litigation arises, it is imperative to retain litigation counsel, not just a real estate conveyancing attorney. Although experience trial counsel mounting an aggressive defense is important, a private lender's best defenses are based on its actions prior to litigation.

To protect against a potential violation of M.G.L. c. 271 s. 49 and exposure under the usury statute, any hard money lender should notify the Massachusetts Attorney General’s office of its intent to provide loans which may exceed the interest rates are proscribed by M.G.L. c. 271 s. 49. A simple notice to the AG's office prior to making any such loan can make all the difference as to whether said statute has been violated or not.

While the facts in all cases differ, a lender can help protect itself and provide defenses against alleged violations of the Massachusetts Consumer Credit Cost Disclosure Act (M.G.L. c. 140D) and the Predatory Lending Statute (M.G.L. c. 183C) by refusing to provide loans secured by mortgages on owner-occupied properties and/or the principal dwelling of the borrower. Lenders should ensure that all loans involve extensions of credit primarily for business or commercial purposes. Simply because the lender and the borrower call the loan “commercial” or "for business purposes" does not necessarily mean that it is. In determining whether a loan is for a business or commercial purpose, courts will look at the transaction as a whole and the purpose for which the credit was extended.

The above precautions are by no means a guarantee that a lender will avoid litigation or succeed in a lawsuit. Private, or hard money, lenders must be cautious in all facets of lending, intimately aware of the statutory requirements of such lending in Massachusetts and retain experienced counsel for the purposes of closing the loan and if litigation arises.

Understanding Your Litigation Options with the Common Dog Bite

2021-07-26T18:23:56Z

Massachusetts General Law, Chapter 140, section 155, states in relevant part, that “[i]f any dog shall do damage to either the body or property of any person, the owner or keeper….shall be liable for such damage, unless such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting, or abusing such dog.” Section 155 of Chapter 140 is known as the Massachusetts “Dog Bite Statute”. That nickname, however, is somewhat of a misnomer. In fact, a dog owner may be strictly liable for any injury caused by his or her dog. Kushner& Marano recently settled a case where an unleashed dog caused significant damage to a client’s leg by running full speed into the side of his knee. By virtue of the “Dog Bite Statute”, the owner was strictly liable for the resulting damages. “Strict liability means that the owner (or keeper) of a dog “is liable for injury resulting from an act of the dog without proof that its owner or keeper was negligent or otherwise at fault, or knew, or had reason to know, that the dog had any extraordinary, dangerous propensity, and even without proof that the dog in fact had any such propensity.” Rossi v. Delduca, 344 Mass. 66, (Mass. 1962) Citing, Leone v. Falco, 292 Mass. 299, 300, 198 N.E. 273, 274. Fortunately, most homeowner’s insurance policies provide liability coverage for injuries caused by an owner’s dog. In other words, if you are injured by someone else’s dog, you may be entitled to recovery for your damages from that dog owner’s home owner’s insurance policy. However, dealing with insurance companies in such situations is not simple. It is important to consult with an experienced attorney and retain proper representation in order to obtain maximum results.