By Mary Jane McKenna

This year,Americans facea multitude ofproblems thatare directly tiedto the economyand the manydecisions being

made by legislators both on BeaconHill and on Capitol Hill.The flurryof financial assistance for corpora-tions in both state and federal gov-ernment are beingdone in the hopes ofslowing the economicmeltdown so manycompanies are experiencing at thistime. Somewhere in that mix areconsumers whomay be diverselyaffected by these actions.Their onlyaccess to justice at this crucial andimportant time remains the mem-bers of the trial bar.It is not only important to be a

MATAmember right now, but it isvital that each of us be involved asmuch as possible in the legislativeprocess and be even more diligentin our efforts to make sure that theneeds of the consumer are protect-ed and represented. Every state is

experiencing legislation that will betargeting protection for insuranceand corporate entities, andMassa-chusetts will not be an exception.The rights of consumers cannot besacrificed to make corporations sol-vent. Our role as members of thetrial bar has never been more es-sential on every possible level.MATA offers its members both

visible representation and a strongvoice on Beacon Hill that strives toprotect the rights of their clientsand of consumers everywhere.This

takes tremendous timeand effort on the partof the MATAmemberswho volunteer to

screen the many legislative billsthat are filed each session, writesummaries of bills of interest toMATA andmeet with legislators todiscuss various issues.These MATA volunteers have

also given their time and energy toattending and speaking at hearingson bills, sometimes taking full daysto do so.We need members to jointhese committees to work on alltypes of legislative issues, includingworkers’compensation, auto insur-ance, medical malpractice, products

A Supplement to Massachusetts Lawyers Weekly

‘Consumers first’

PRESIDENT’SMESSAGE

Continued on page 2

By Roger T. Manwaring

Late on awarmAugustnight, a 14-year-old girl and agroup of herfriends trespasson the propertyof a nearbyapartment com-

plex in order to swim in its pool.The

pool, which is closed on the nightthey arrive, is fenced and locked butteenagers often trespass, either byscaling the fence or cutting throughit.The girl, who knows that she can-not swim, enters the shallow end ofthe pool to play a tag-like game withher friends.Although it is lit by floodlights, the

pool has no interior illumination.There is a rope dividing the relativelyflat shallow end from the steeply

sloping deep end. Engrossed in thegame, the girl fails to notice that oth-er swimmers have removed the di-viding rope in order to expand the“playing field.” In the excitement ofthe moment, she steps over the nowunmarked dividing line, slips downthe sloped floor into the deep end,and nearly drowns, sustaining seri-ous, permanent injuries.She sues, claiming that the apart-

By John J. McMaster

The interplaybetween Person-al Injury Protec-tion benefits,Part 2, andMed-ical Paymentsbenefits, Part 6,of the Massa-chusetts Stan-

dardAutomobile Insurance Policy,and an injured person with healthinsurance and medical expenses inexcess of $2,000, has been the subjectof considerable debate over the lastfew years.Given the language in a few court

decisions, the availability and properprocedure for accessing MedPay hasbeen the subject of much confusionand resulting frustration toclaimants. (This article will not dealwith situations in which the injuredperson either has no health insur-ance, or a health plan such as Medi-caid which does pay benefits untilthe full $8,000 in PIP benefits hasbeen exhausted. In those cases, therehas not been much debate that Med-Pay would begin paying after the full

$8,000 in PIP has been exhausted.)The PIP portion of the automobile

policy, Part 2, states,“Wewill pay upto $2,000 of medical expenses for anyinjured person.Wewill also paymed-ical expenses in excess of $2,000 forsuch injured person which will not bepaid by a health plan.Medical ex-penses must be submitted to thehealth plan to determine what thehealth plan will pay before we paybenefits in excess of $2,000 under thisPart.”Therefore, an injured party withhealth insurance must submit thefirst $2,000 in medical expenses to thePIP insurer and then the balance tohis health insurance.Thereafter, PIPwill pay only for medical expenses inexcess of $2,000 which are denied bythe health insurer, although there areexceptions to that practice that arenot relevant to this issue.TheMedical Payments provisions,

Part 6, of the standard MassachusettsAutomobile Insurance policy, sev-enth edition, state in pertinent part,“Under this Part, we will pay reason-able expenses for necessary medicaland funeral services incurred as a re-sult of an accident.”It goes on:“Wewill not pay under this Part for any

expenses that are payable, or wouldhave been payable except for a de-ductible, under the PIP coverage ofthis policy or any other Massachu-setts auto policy.”In Allstate Ins. Co. v. Bearce, 412

Mass. 442 (1992),Allstate paid Bearce$25,000 in MedPay benefits for in-juries received in an auto accident.Bearce then sought underinsuredbenefits fromAllstate. In evaluatingthe amount of benefits due Bearce,Allstate took the position that theywere entitled to an offset of the$25,000 paid in MedPay benefits,claiming that failure to take the offsetwould allow Bearce to receive dupli-cate payments, i.e. Bearce would beallowed to be reimbursed the$25,000 in medical bills throughMedPay, and also be allowed to claimthe same $25,000 as part of his dam-ages in the underinsured claim.The SJC disagreed with Metropoli-

tan and stated that the express lan-guage of the various parts of the pol-icy“clearly reflects the contemplationof the parties that payments underthe medical payments coveragemight properly result in the insured

Continued on page 6

MedPay updateContinued on page 4

Child trespassersand water hazards

Diamond Ball, page 8

February 2009 | Vol. 2, No. 4

By J. Michael Conley

MATAhas been active in providing friend ofthe court briefs over the past year.Recently com-pleted briefs and cases include the following:MATA submitted a brief to the SJC, princi-

pally authored byMichael Harris, in supportof the plaintiffs in the Renzi andMatsuyamacases, which addressed loss-of-chance issuesin cases focusing on failure to timely diagnosecancer.Matsuyama v. Birnbaum, 452Mass. 1;Renzi v. Paredes, 452Mass. 38 (2008).Joe Borsellino co-authoredMATA’s brief in

Coombes v.Florio, 450Mass. 182 (2007) inwhichthe SupremeCourt confirmed that a physiciancould be liable to a third party injured by a patientand a physicianwas negligent in prescribingmedications or warning patients aboutmedica-tions thereby giving rise to the subject accident.MikeNajjar authoredMATA’s amicus brief in

support of the plaintiff in Law v.Griffiths on theissuewhether a trial judge erred in excluding ev-idence ofmedical expense offered pursuant toG.L.c. 233, §79G because the amount actuallypaidwas less than the face value of the bill.Deborah Kohl prepared a brief filed in Jan-

uary focusing on a public employee’s entitle-

ment to accidental disability retirement bene-fits in the face of a changing job description.Foresta v. Contributory Retirement Appeal Board.AdamTroupe co-authored a brief in the

Moss’s Case, 451 Mass. 704 (2008), regardingthe dispute about whether the statutory pri-ma facie presumption would apply to claimsfor double damages under G.L.c. 152, §28.MATA also provided an amicus brief in

support of the prevailing employee in theSellers’s Case, 452 Mass. 802 (2008), address-ing the wage calculation for multiple employ-ment and cases in which the workers’com-pensation trust fund is involved due to anemployer being uninsured.In Iannacchino v. Ford Motor Co., 451Mass.

623 (2008),MATA signed on to an amicusbrief supporting the prevailing plaintiffs onthe question of whether a consumer whopurchases a car with a defective door latch isrequired to wait until the latch fails or until heincurs the cost of repairing it to assert a claimunder Chapter 93A; more generally, whethera consumer who purchased a product with anundisclosed safety defect suffers no“injury”unless or until the defective product causesphysical harm or economic loss.

2 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009

By J. Michael Conley

The more thingschange, the morethey remain thesame.As technologyhas rapidly advancedto facilitate court-room use of digitalimagery and to en-able relatively easycreation or alteration

of images, I have often thought that such de-velopments would increase rather than de-crease the importance of credible verbal testi-mony providing foundation for the image. Inother words, a picture may still be worth 1,000words, but only where the fact-finder believesthat it is what it purports to be.Some judges have reacted to digital technol-

ogy with suspicion and near panic by requiringthe equivalent of foundation testimony from a

photo developer. In reality, the predicate of evi-dence of any imagery, from a photograph to awitness’s blackboard sketch, has been the relia-bility and credibility of the person vouching forthe image in his or her testimony that it fairlyand accurately represents what it is offered todepict.Recently, in Renzi v. Paredes, 452 Mass. 38

(2008)—which, along with its companioncase,Matsuyama v. Birnbaum, has received con-siderable fanfare for other reasons— theSupreme Judicial Court addressed the admissi-bility of digital photographic evidence reaffirm-ing an approach that is sensible,manageableand faithful to established trial practice.“The use of demonstrative aids, including

digital photographs and computer-generatedimages, is now commonplace in our courts. Seegenerally 2 McCormick, Evidence §214 (6th ed.2006).A judge has broad discretion in the ad-mission of such evidence. See Commonwealth v.Nixon, 319 Mass. 495, 536, 66 N.E.2d 814 (1946)

(admission of photographs largely in discretionof trial judge).Authentication is a preliminary question of

fact for the judge to decide. Id. at 537, 66N.E. 2d814.The person testifying as to the substantialsimilarity of the photograph and the originalneed not be the photographer butmay be a per-son familiar with the details pictured. SeeCom-monwealth v.Weichell, 390Mass. 62, 77, 453N.E.2d 1038 (1983), cert. denied, 465U.S. 1032, 104S.Ct. 1298, 79 L.Ed. 2d 698 (1984) (“the best evi-dence rule does not apply to photographs”). Seegenerally H.J.Alperin&L.D.Shubow,Summaryof Basic Law §10.151 (4th ed. 2007).When, as here, the demonstrative photo-

graph is generated as a digital image or videoimage, the judge must determine whether theimage fairly and accurately presents what itpurports to be, whether it is relevant andwhether its probative value outweighs anyprejudice to the other party. See, e.g.,Common-wealth v. Leneski, 66 Mass.App. Ct. 291, 294, 846

N.E. 2d 1195 (2006), quoting Commonwealth v.Harvey, 397 Mass. 351, 359, 491 N.E. 2d 607(1986), and Commonwealth v.Mahoney, 400Mass. 524, 527, 510 N.E. 2d 759 (1987) (“video-tapes are‘on balance, a reliable evidentiary re-source,’ ... and ...‘should be admissible as evi-dence if they are relevant [and] provide a fairrepresentation of that which they purport todepict’... [D]igital images placed and stored in acomputer hard drive and transferred to a com-pact disc are subject to the same rules of evi-dence as videotapes”).See also 2 McCormick, supra (“enhanced

images within category of demonstrative aidsso long as they accurately illustrate what wit-ness has to say”), concerns regarding the com-pleteness or production of the image go to itsweight and not its admissibility. See Common-wealth v. Leneski, supra at 295-296, 846 N.E.2d1195; Renzi v. Birnbaum, 452 Mass. 38, 51-52(2008).Keep it in your trial notebook.

Editor’s note: digital imagery evidence

PRESIDENTMary JaneMcKenna

PRESIDENT-ELECTChris A.Milne

TREASURERKimberly E.Winter

SECRETARYAndrewM.Abraham

IMMEDIATE PAST PRESIDENTPaul F. Leavis

EDITOR-IN-CHIEFJ.Michael Conley, Esq.

PUBLISHER/EDITORJennifer L. Comer

PRINTING AND PRODUCTIONMassachusetts LawyersWeekly

Amicus curiae updateliability and others.In 2009,MATAwill continue its aggressive

legislative agenda and we expect to face a num-ber of issues that threaten the civil justice sys-tem.The more volunteers to assist in this taskthe more we can accomplish together to protectthe rights of all consumers.Tort reform is still a major priority on both

the state and national legislative agendas in2009.The insurance industry will continue itseternal and expensive campaign against the tri-al bar and try to convince the public and legis-lators that they work to protect their clients, nottheir bottom line. Despite declining verdictsand fewer payouts, they will continue to insistthat their ever-rising premiums are necessary.In this year of financial unrest, I am sure we willsee many attempts to curb the rights of clients.The U.S. Chamber of Commerce has a multi-million dollar campaign centered on tort reformthat will be visible in every state in the country.We face a number of challenges in 2009, but I

am confident that we will succeed in our goalsto protect the rights of our clients and to protectthe civil justice system against tort reform.Strength lies in numbers and we are only asstrong as our membership. If you are not aMATAmember at this time, please call theMATA offices and become one today. If you area MATAmember, please consider volunteeringon one of MATA’s many committees to workon the various legislative issues that are of con-cern to the academy.I look forward to working with each of you in

the months to come and to making 2009 a suc-cessful year for all.

Continued from page 1

‘Consumers first’

Peter BizinkauskasCatherine BrownChristopher BrownMichael CoyneJoseph CurranSandra DupuySara Hammond

Matthew LallierRichard MadoreSeanMcElligottDeborahMedowsDaniel PogodaRobert RzeszutekJoan Scanlon

Welcome new members

FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 3

In this issue7 Turning back the hands of

‘T.I.M.E.’byWIlliamO’Donnell andKimberly Miles

8 MATAWomen’s Caucussecond annual wine-tastingbenefitby Lauren Guth Barnes andKristen Johnson Parker

8 MATADiamond Ball

By Timothy C. Kelleher III

Over the last year,many bills were con-sidered by variouscommittees at theState House thatwould have done thefollowing:• eliminated therights of victims ofmedical negligence to

have their cases decided by juries and limitedthe amount of damages they could recover;

• severely restricted the rights of consumers injuredby defective products and eliminated the typesand amount of damages they could recover;

• eliminated joint and several liability;

• expanded legal immunity to certain specialinterest groups;

• granted tort immunity to companies that useleased employees;

• reduced the statute of limitations applicableto certain individuals and entities; and

• eliminated liability for punitive damagesagainst certain individuals and entities.In addition to those bills, thereweremany

other bills pending that would have had a signifi-cant impact on our civil justice system and therights ofMassachusetts citizens. Supporters ofthese bills submittedwrittenmaterials and testi-

fied in favor of them.They invested a great dealof time and effort to convince senators and rep-resentatives at the StateHouse that these billswould be good for the citizens ofMassachusetts.MATAmembersworked diligently to prevent

these bills frombecoming law.Many of ourmem-bers drafted position statements and appeared be-fore legislative committees to testify.They alsometwith legislators and their staffmembers to addressconcerns related to the impact these bills wouldhave had on consumers, injured victims and theirfamilies.MATAwas very successful in getting itsposition across to the decisionmakers, but thathappened only because of the tremendous effort oftheMATAmemberswho volunteered to help.MATAwould like to thankmembers who

helped and recognize them for their efforts. Spe-cial thanks to immediate past President PaulLeavis of Leavis and Rest for his leadership andcommitment toMATA.He not only spent a greatdeal of time dealingwith legislative issues, healso helpedmobilize peoplewhen theywereneededmost. Jennifer Comer and SheilaSweeneywere instrumental in helping to gatherinformation andmobilizeMATAmembers.Mike Najjar of Albert Marcotte LawOffice,

Michael Harris of Crowe &Mulvey,Alan Pierceof Alan S. Pierce &Associates and JohnMorris-sey of Quinn &Morris led the effort in the ar-eas of auto legislation,medical negligence leg-islation and workers’compensation legislation.MATAPresidentMary JaneMcKennaofGal-

lagher&Cavanaugh,LeoBoyle ofMeehan,Boyle,Black&Bogdanow,AndrewAbrahamofBaker&Abraham,Pat Jones andRobertDeLello ofCooleyManion Jones,DougSheff of Sheff LawOffices, JayAngoff of theLawOffices of JayAngoff, JeffCata-lanoofTodd&Weld,FrankRiccio of LawOffice ofFrank J.Riccio,KimWinter ofWhite,Freeman&Winter andAnnetteGonthierKiely ofA.GonthierKiely&Associates also assisted in the effort to re-viewbills andpreparewritten testimony.They ap-pearedbefore committees toprovide verbal testi-monyandattended conferences toprovidetechnical advice and important information tomembers of theMassachusettsHouse andSenate.I have had the privilege of watching these

people testify at hearings and have been atmeetings with themwhere they have explainedthe problems with these bills.They are all suchgreat speakers and advocates for MATA.Theirefforts truly made a difference.MATAwould also like to thank BrianHickey

andAssociates for its efforts on behalf ofMATA.BrianHickey and Jeff Haggerty have providedgreat insight, knowledge and experience in dealingwith the legislative process.Theymonitored rele-vant bills, attended hearings and attendedmeet-ingswith the senators and representatives whowere considering these important issues.Theycontinue to helpMATA in its efforts to convey itsposition at the StateHouse.MATA also appreciates the fact that so many

senators and representatives took the time to

meet with us and carefully considered our po-sitions at the hearings. In my experience, theyhave listened and wanted to know all of theimplications of the various bills.Most of thetime, once they were made aware of the issuesor problems, they responded appropriately.MATA’s Legislation Committeewill continue to

monitor and address proposed legislation this year.The bills described above, however,will be filedagain this year, somewithmodifications. Some ofthe bills will bewritten in such away that onewould not know from the title that the bill hadanything to dowith the civil justice system or that itwould impact, in anymanner whatsoever, thehealth and safety of families. It is likely that thesebills will be appearing on the lists of numerous dif-ferent committees. It is no longer the case that billsthat impact the civil justice system or the healthand safety of families will be heard before the Judi-ciary Committee.Theywill be heard inmany dif-ferent committees as theywere over the last year.Tracking these bills has been a difficult task, butMATAwill continue tomonitor them.Inaddition tospendingagreatdealof timeopposing

bills,MATAmembershavesubmittedwritten testimonyand testified insupportof anumberofbills thatwouldimproveourcivil justice system.Ourmemberswill con-tinue todoso.The following list summarizes someof theproposedbillswhich impact issuespertinent toMATA:House Bill 1649An act granting discretion to the Superior

Legislation Committee update

By Sarah DeanPublic Justice Correspondent

Tobacco companies cannot avoidbeing sued for fraudulently adver-tising that their“light”cigarettesdelivered less tar and cigarettesthat“regular”cigarettes, the U.S.Supreme Court ruled on Decem-ber 15. The Court held 5 to 4 in Al-tria Group, Inc, v. Good that federallaw does not preempt – i.e., wipeout – state lawsuits. Public Justicehad joined in an amici brief au-thored by Georgetown Law Pro-fessor DavidVladeck urging theCourt to rule as it did.The majority decision by Justice

Stevens reaffirms the presumptionagainst preemption of state law.“When addressing questions of ex-press or implied preemption, we be-gin our analysis with the assump-tion that the historic police powers

of the States are not to be supersed-ed by the Federal Act unless thatwas the clear and manifest purposeof Congress,”the Court wrote.“Thus, when the text of a pre-emp-tion clause is susceptible of morethan one plausible reading, courtsordinarily accept the reading thatdisfavors preemption.”Against that background, the

Court rejected the tobacco compa-nies’ argument that federal lawpreempts the plaintiffs’claimsthat, when it promoted and adver-tised Marlboro and CambridgeLights cigarettes as“light”andhaving“lowered tar and nicotine,”Philip Morris violated Maine lawsprohibiting fraudulent misrepre-sentation.The tobacco companies con-

tended that the plaintiffs’claimswere expressly preempted by theFederal Cigarette Labeling and

Advertising Act and that, in addi-tion, preemption was implied bythe“efforts of Congress and the[Federal Trade Commission] for40 years to implement a national,uniform policy of informing thepublic about the health risks ofsmoking.”The Court firmly rejected both ar-

guments, ruling that the federalstatute does not immunize tobaccocompanies for making fraudulentstatements. In regard to impliedpreemption, the Court held that theFTC never had a policy authorizingthe use of“light”or“low tar”as de-scriptive terms, and did not preventthe states from considering the to-bacco companies’use of thoseterms.To read the Supreme Court’s deci-

sion in Atria, or to learn more aboutPublic Justice, go towww.publicjustice.net.

Supreme Court rules smokers’ state lawsuit over‘light’ cigarettes not pre-empted by federal law

Continued on page 12

4 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009

ment complex owed her a duty of reasonablecare and breached that duty by, among otherthings, negligently installing and maintaining adividing rope that could easily be removed.Does she have a case? Perhaps.The greatest

obstacle to the lawsuit may not be that the girlwas trespassing or that she entered the waterknowing she could not swim.Most significantmay be her age as it relates to the obviousnessof the danger posed by the water in the pool.TheChildTrespasser Statute,G.L.c. 231, §85QAlthough she was a trespasser,Massachu-

setts law provides that:Any person whomaintains an artificial con-

dition upon his own land shall be liable forphysical harm to children trespassing thereon if(a) the place where the condition exists is oneupon which the land owner knows or has rea-son to know that children are likely to trespass,(b) the condition is one of which the land own-er knows or has reason to know and which herealizes or should realize will involve an unrea-sonable risk of death or serious bodily harm tosuch children, (c) the children because of theiryouth do not discover the condition or realizethe risk involved in intermeddling with it or incoming within the area made dangerous by it,(d) the utility to the land owner of maintainingthe condition and the burden of eliminatingthe danger are slight as compared with the riskto children involved, and (e) the land ownerfails to exercise reasonable care to eliminate thedanger or otherwise to protect the children.Section 85Qwas enacted in order to“ame-

liorate the harsh effects of the common lawrule upon child plaintiffs.”At common law, alandowner owed a trespassing child only the“duty to refrain fromwillful, wanton, or reck-less disregard for the trespasser’s safety.”Section 85Q imposes a duty of reasonable

care to trespassing children if its conditions aresatisfied.To recover under §85Q, a child tres-passer must satisfy all five of its conditions.Theplaintiff arguably satisfies requirements (a), (b),(d) and (e) of the statute.The defendant apart-ment complex would likely argue, however,that the 14-year-old plaintiff, due to her age,fails to satisfy requirement (c) of §85Q that thedanger posed by the pool be one which theplaintiff, because of her youth, did not discover,or as to which plaintiff did not“realize the risk.”How old is too old to be a“child”protect-

ed by §85Q?Adefense based on subsection (c) of §85Q

raises a number of issues. First, is a 14-year-oldsimply too old to qualify as a“child”for purposesof the child trespasser statute? Not necessarily.BothMassachusetts courts and the Restatementmake clear that a 14-year-old can be a“child”trespasser.To avoid application of §85Q, a defen-dantmust shownot just that a child had someappreciation of the danger posed by a condition,but that she appreciated the full extent of thedanger.The childmust be able to appreciate thedanger to the same extent as an adult. The Re-

statement provides that:The lack of experience and judgment nor-

mal to young children may prevent themfrom realizing that a condition observed bythem is dangerous or, although they realizethat it is dangerous, may prevent them fromappreciating the full extent of the risk…Where a child fully understands the dan-ger, but nevertheless voluntarily encountersthe risk, his actions are not merely negligentbut negate any duty of reasonable care owedby the defendant landowner.The law protects children“from those condi-

tions which, though observable by adults, arelikely not to be observed by children, or whichcontain the risks the full extent of which anadult would realize but which are beyond theimperfect realization of children. It does not ex-tend to those conditions the existence of whichis obvious even to children and the risk ofwhich should be fully realized by them,”Re-statement (Second)Torts §339, comment i. Itdoes not hold a landowner responsible for theharm resulting to children resulting from areckless“spirit of bravado”or in gratifying“some other childish desire ... with as full aperception of the risks which they are runningas though they were adults.”Id.“The resulting test is whether a child of like

age, intelligence, and experience would fullyappreciate the hazard of intermeddling with anartificial condition existing on a piece of prop-erty as intelligently as an adult.”Jackson, 1993WL 818727, *4.The“status of‘child’for purposes of the rule

will vary with the nature of the hazard. It mayrange as high as 16 or 17 years of age.As theage of the child increases, the conditions be-come fewer for which there can be recovery.”Whether a teenager fully appreciates the risk

posed by a given condition is generally a ques-tion of fact to be determined by the jury. In anextreme case, however, a court may rule, as amatter of law, that a particular hazard is so ob-vious that a child of the plaintiff’s age musthave perceived and understood it.Is water so obvious a danger that children

must in all cases understand it, rendering§85Q inapplicable?In arguing that the 14-year-old girl fails to

satisfy subsection (c) of §85Q, the defendantapartment complex would likely assert that,even if a 14-year-old can sometimes be a“child”under §85Q, the dangers posed by bod-ies of water are obvious, as a matter of law, toany child old enough to be allowed a large (the“obvious water hazard rule”).While there issome support for this position, the plaintiff girlcan argue: (1) the obvious water hazard rule isnot applied in Massachusetts; and (2) even ifapplied in Massachusetts, the rule does notgovern her case because the swimming poolconstituted a trap, containing concealed, excep-tionally dangerous conditions not common toswimming pools in general.Courts in many other states apply the obvi-

ous water hazard rule. However, it is not clearthat under Massachusetts law bodies of waterare always deemed obvious to all children.(a) Massachusetts law as to obvious water

hazards.The cases onwhich defendant complex

would probably rely, includingO’Sullivan v.Shaw, 431Mass. 201 (2000); Phachansiri v.City ofLowell, 35Mass.App.Ct. 576 (1993) andDavid-son v.MDC, 1997WL 1368044 (Mass. Super.Dec.26, 1997), do not dictate that, as amatter of law,water hazards are always obvious to children ofall ages and under all circumstances.

O’Sullivan involved an adult guest who doveinto shallow water in a swimming pool. Thecourt ruled for the defendant landowner be-cause the danger of“diving headfirst into theshallow end”of a pool was open and obvious.WhileO’Sullivan does deem a water hazardobvious, it involved diving and an adult plain-tiff. Clearly, diving presents risks very differentfromwading in shallow water.

Davidson also is distinguishable because itinvolved diving into shallow water by a 16-year-old plaintiff. The court held that the plain-tiff could not recover under §85Q because thedanger was obvious and the plaintiff was,therefore, engaged in behavior which a normal16 year-old would not do.More relevant is Phachansiri, in which a 5-

year-old was injured and his 7-year-old brotherwas killed when they slipped into a swimmingpool which had been drained but had filledwith ground water. Considering liability under§85Q, the jury decided that the defendantknew that children were likely to frequent thepool but also decided that the condition of thepool did not pose an unreasonable risk to chil-dren. Holding that the jury’s two answers werenot inconsistent, theAppeals Court noted that:“The jury could have concluded that the dan-

ger of water in a pool is one that could reason-ably be expected to be fully understood and ap-preciated by any child of an age to be allowed atlarge on his own.”35Mass.App.Ct. at 579.In support of this statement, the court quot-

ed comment“j”to Restatement §339.Thus,Phachansiri appears to apply the obvious waterhazard rule. See Rodriguez v.Winiker, 2004Mass.App.Div. 191, 2004WL 2853936, *7(holding that 5-year-old child, under supervi-sion of her mother, was sufficiently aware ofthe danger of falling off retaining wall and not-ing, based on Phachansiri, that“there are manydangers, such as those of fire and water, orfalling from a height, which under ordinaryconditions may reasonably be expected to befully understood and appreciated by any childof an age to be allowed at large”); Feliciano v.Andersen Corp., 1995WL 1146822, *3 (holdingthat whether leaning on window screen was soobviously dangerous that no warning need begiven to child was question of fact, but noting,based on Phachansiri, that“some dangers, suchas fire, water, and great heights, can be fully ap-preciated even by children, and therefore, do

not need a warning”).Although Phachansiri, Rodriguez and Feliciano

seem to refer to a rule of law that water hazardsare always obvious even to children, the 14-year-old girl in our example can make a rea-sonable argument that Massachusetts courtsdo not apply such a rule mechanically.Phachansiri did not rule that water hazards arealways, as a matter of law, obvious to all chil-dren.The court merely held that the jury couldhave found that water in a pool is an obvioushazard, indicating that the determination inany given case is still a question of fact. NeitherRodriguez nor Feliciano actually concerned a wa-ter hazard.Further, inGodsoe v.Maple Park Properties,

Inc., 2007WL 2316468 (D.Mass.Aug. 9, 2007),a case not involving trespass, the court heldthat the shallow depth of a lake, the bottom ofwhich had been graded like a swimming pool,was not obvious as a matter of law to the minorplaintiff. Id. at *4.TheGodsoe court deniedsummary judgment holding that“the condi-tions of the lake and the lake water raise aquestion of whether the water depth was openand obvious…”The Restatement also adopts a case by case

approach. The first paragraph of comment“j”recognizes the obviouswater hazard rule, stating:There are many dangers, such a [sic] those of

fire and water, or of falling from a height,whichunder ordinary conditions may reasonably beexpected to be fully understood and appreciatedby any child of an age to be allowed at large.Tosuch conditions the rule stated in this Sectionordinarily has no application, in the absence ofsome other factor creating a special risk that thechild will not avoid the danger, such as the factthat the condition is so hidden as not to bereadily visible, or a distracting influence whichmakes it likely that the child will not discover orappreciate it. Restatement §339 com.“j”.However, the second paragraph of comment

“j”indicates that the Restatement does notadopt the obvious water hazard rule as a mat-ter of law for children of all ages in all circum-stances:Where, however, the possessor knows that

children too young to appreciate such dangersare likely to trespass on his land, he may still besubject to liability to such children under therule stated.Thus, the applicability of the obvious water

hazard rule in Massachusetts remains some-what unclear.(b)The trap exception to the obvious wa-

ter hazard ruleEven if Massachusetts courts were to rule

apply a rule that, as a matter of law,water haz-ards are obvious, the injured 14-year old girlmight successfully invoke a well-recognizedexception to that rule, arguing that the pool inwhich she almost drowned constituted a trap,because it contained exceptionally dangerousconditions not inherent to pools in general.This exception is recognized by the Restate-

Child trespassers and water hazardsContinued from page 1

FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 5

ment which provides:There are many dangers, such a those of fire

and water, or of falling from a height, whichunder ordinary conditions may reasonably beexpected to be fully understood and appreciat-ed by any child of an age to be allowed at large.To such conditions the rule stated in this Sec-tion ordinarily has no application, in the ab-sence of some other factor creating a specialrisk that the child will not avoid the danger,such as the fact that the condition is so hiddenas not to be readily visible, or a distracting in-fluence which makes it likely that the child willnot discover or appreciate it.Restatement §339, com.“j”.Massachusetts law recognizes such a trap ex-

ception to the open and obvious danger rule(applied inO’Sullivan v. Shaw to the adult whodove into shallow water).The courts have rec-ognized that a landowner may have a duty ofdue care with respect to an otherwise obviousdanger where the circumstances are such thatthe owner should foresee that visitors may bedistracted or otherwise unlikely to notice theobvious condition.Whether a landownershould have foreseen that the plaintiff wouldbe distracted is a question of fact for the jury.Bradshaw, 2005WL 1869170, *2.The circumstances of the plaintiff 14-year-

old’s use of the pool, which arguably shouldhave been foreseen by the defendant apart-ment complex, were such that she was not

aware of the absence of the dividing rope.Asmight be expected of children in a pool, shewas engaged in play and distracted from notic-ing the absence of the rope or appreciating thedangers thereby created.Cases from other jurisdictions recognize the

“trap”exception, often applying it to situationswhere water appeared safe but concealed anabrupt drop into deeper water or where therewas a danger that a child would slip into thewater. InMennetti v. Evans Construction Co.,259 F. 2d 367, 370-71 (3rd Cir. 1958), a minordied after slipping into a rain-filled ditch.Thecourt stated:“The appellees argue that appellant’s minor

decedent must be taken to have realized thehazard involved in the ditch filled with water.The same argument was recently rejected bythe Pennsylvania Supreme Court in the case ofCooper v. City of Reading, 392 Pa. 452, 140A.2d792, 797 (decidedMay 2, 1958).There the citydischarged its storm drainage water into thebed of a former canal, causing a pool to form atthe outlet pipe.The court said that the pool cre-ated an unreasonable risk of harm to child tres-passers by the‘very fact that the pool was de-ceptively shallow at its edges and thereforeinnocent in appearance.’“In the present case, there was evidence that

the water in the ditch was muddy so that itsdepth was deceptive, especially to children ac-customed to playing in the shallow pools

which existed on the tract. Furthermore, theditch was at the low point of slightly highersurrounding lands; it was at a place where ashallow pool of water would naturally gather.In addition, the jury could have found that thegradually sloping ramp leading into the ditchwould tend to give to the pool a deceptive ap-pearance of shallowness.”Similarly, in Simmons v.Whittington, 444 So. 2d

1357 (La.App. 1984), the landowner had installedan above-ground pool which appeared to be uni-form in depth but had then dug out the bottom sothat,while the sides remained at about three-and-one-half foot depth, the pool floor slopedsharply to a deep endmore than 5 feet in depth.Atrespassing child,who knewhe could not swim,went into the pool,was able to stand in the shal-low end, but then stepped off the ledge and sankinto the deeper waters.The court said:“We agree with the trial court that the dan-

gers inherent in this pool were to a substantialdegree hidden from one who had never beforebeen in it.While Michael was aware he couldnot swim, upon first entering the pool he wasable to stand on the bottom.He was obviouslyunaware that the same was not true for the en-tirety of the pool. It appeared to be an above-ground pool of uniform depth and there wereno contrary indications.A child’s carelessnessin entering a pool with which he is unfamiliaris one of the risks against which the pool’sowner has a duty to take precautions.The risk

encountered here is clearly encompassed with-in the duty not to create an unreasonable riskof harm in a neighborhood peopled by inquisi-tive and impulsive youngsters.”Id. at 1361.Also relevant isDavies v. Land O’Lakes Racing

Assoc., 244 Minn. 248 (1955).A child drownedwhen he entered an apparently shallow puddlewhich concealed a drop off into a 6-foot deepexcavation with vertical sides. Rejecting the de-fendant’s contention that liability should not beimposed under Restatement §339 because wa-ter hazards are obvious, the court stated:“It is generally conceded that the ordinary

body of water, even though it be artificial, whileit does involve the risk of death or seriousharm, does not constitute an unreasonable riskthereof because even a child to some extent ap-preciates the risks that are connected with it ...We believe that the circumstances and the

evidence in this case combine to form a suffi-cient basis for the jury’s finding that this partic-ular body of water in its condition on the day inquestion involved more risk than an ordinarywater hazard and amounted to a condition,created by defendants, involving an unreason-able risk of death or serious bodily harm tochildren within the meaning of Restatement,Torts, s 339…“There are… decisions in other jurisdictions

which are in point. In those cases liability has

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recovering a sum in excess of the loss caused byhis accident.”Id. at 448.Meanwhile, in an advisory contained in Divi-

sion of Insurance Bulletin B-90-2, the insurancecommissioner confirmed that“where there ishealth insurance coverage available, ... medicalexpenses over $2,000 are not payable underPIP, so MedPay begins to provide coverage atthat point, not after $8,000 of PIP benefits havebeen exhausted. Barring language in the healthinsurance contract allowing it to defer primarycoverage to MedPay ... after the claimant hassubmitted $2,000 in medical expenses to thePIP carrier, the claimant may submit furthermedical bills to either MedPay or the health in-surer, or both.”Accordingly, the customary practice there-

after was to allow access to MedPay benefits af-ter the first $2,000 in medical expenses werepaid by PIP, even those covered by health in-surance.This was usually done by presentationto the MedPay carrier of a PIP exhaust letter.In 1999, the SJC heardDominguez v. Liberty

Mutual Ins. Co., 429Mass. 112, 706 N.E.2d 647(1999). In this case, the injured party incurred$2,785 in medical expenses and submittedthem to the PIP insurer for payment.The insur-er paid $2,000 in PIP benefits and denied pay-ment of the additional $785 as it exceeded the$2,000.The injured party resubmitted the $785in bills for PIP payments after the inured party’shealth insurer denied payment because themedical providers chosen by the injured partywere outside his network.The SJC upheld theinsurer’s denial of payment of the additional$785 in PIP benefits in part because the statu-tory scheme’s“legitimate purposes of coordi-nating insurance benefits so that costs of auto-mobile insurance may be reduced.”Id. at 118.Although this case did not touch uponMedPay,the theme of“cost control”would become anissue in subsequent MedPay cases.The wrinkle in the MedPay fabric came in

Meijia v. American Casualty Co. 55Mass.App.Ct. 461 (2002). In this case, the insurer paid thefirst $2,000 in medical expenses through PIP.When the parties submitted the balance ofthose medical expenses directly to the insurerunder MedPay, the insurer stated that it firstwanted denials of those bills by the parties’health insurer, and later denied payment whenthose denials were not produced.According tothe decision, the injured parties sought to havethe balance of the bills paid under MedPay toavoid a lien by the health insurer.TheAppealsCourt upheld the insurer’s denial of MedPaybenefits by stating:“Thus, in the matter at hand, after they had

each received $2,000 of PIP benefits for medicalexpenses, the plaintiffs were required to sendtheir bills for additional medical expenses totheir health insurers. If the health insurers re-fused coverage, the plaintiffs were then re-quired to send the bills to the automobile in-surer for consideration under the PIP coverage

of the policy. Only if PIP benefits were notpayable for these expenses, because, for exam-ple, the policyholder had elected to go outsideher health plan to obtain a medical service thatcould have been obtained through her healthplan, would MEDPAY come into play. SeeDominguez v. Liberty Mut. Ins. Co., 429Mass.112, 706 N.E.2d 647 (1999).As the plaintiffsfailed to submit their claims in this fashion, itwas not improper for the defendant to refuse topay them.”Id.At 465.Fundamentally,Meijiawas a decision about

the procedure for obtainingMedPay benefits,and not the scope of the coverage.However,dicta in a footnote led to confusion:“We note that, unlike PIP,MedPay is an op-

tional coverage, the terms of which are not pre-scribed by statute.Thus, the coordination ofbenefits provisions in G.L.c. 90, §34A, that wereconstrued in the Dominguez case do not applyto MedPay coverage.MedPay provides a mean-ingful optional benefit for some consumers be-cause it covers treatment which would not oth-erwise be covered by health insurance or PIP.”Id. at 466, n. 6.Some insurers seized upon this language to

argue that MedPay covered only expenseswhich were not payable by health insurance orPIP.The insurers refused to pay MedPay if themedical bills were paid by the party’s health in-surer, which seemed to counter the holding inBearcewhich allowed for double recovery, con-trary to the insurance commissioner’s policy in-terpretation in Bulletin B-90-2, and lackingsupport in the language of the policy.The reason typically offered for this position

was not only the wording inMeijia, but also thepurported legislative policy of reducing thecosts of automobile insurance as announced inDominguez.This reduced the MedPay benefitsto that of third tier insurer, only accessible aftera denial by a health insurer and an examinationas to whether the denial would allow PIP pay-ment. Accordingly, some insurers were takingthe opposition that the full $8,000 in PIP bene-fits had to be exhausted prior to any paymentsunder MedPay, which was a high hurdle if theinjured party had health insurance.The plaintiff’s bar advanced a different inter-

pretation of MedPay based primarily on thelanguage of the insurance policy, as statedabove, and that the statutory scheme involvingcoordination of benefits between health insur-ance and automobile insurance (G.L.c.90§§34A-Q) regulated only compulsory coverage,such as PIP, and not the optional coverage ofMedPay.That is, since MedPay was optionalcoverage, it was not subject to the PIP/healthinsurance coordination rules other than the re-quirement that the first $2,000 in medical ex-penses be paid by PIP.In a situation in which medical bills in excess

of $2,000 were paid by a health insurer, and thebills were not payable under PIP (in which casethey would be excluded fromMedPay),MedPaycoverage would be available. In other words,

Bearcewas still good law.The latest case touching on this subject is

Metropolitan Property & Casualty Ins. Co. v. BlueCross & Blue Shield Of Mass. Inc., 451 Mass. 389(2008) in which the two insurers sought guid-ance from the SJC on the priority of paymentsfor medical expenses arising from an automo-bile accident after PIP has paid the first $2,000in medical expenses and the health insurer’spolicy contained language making it secondaryto MedPay.In this case, the injured automobile passen-

ger incurred medical expenses in the amount of$5,266.The automobile policy had the standardPIP benefits and $10,000 in optional MedpayCoverage.The bills were submitted to Metro-politan which paid $2,000 in PIP benefits andtold the injured passenger to submit the bal-ance to his health insurer, Blue Cross, for pay-ment. Blue Cross denied the charges based onlanguage in a portion of the health insurancecontract which read“[u]nless otherwise re-quired by law, coverage under this contract willbe secondary when another plan [defined toinclude‘automobile insurance, including med-ical payments coverage’] provides you withcoverage for health care services.”Id.At 390-91.Blue Cross took the position that this lan-

guagemade its insurance secondary toMedPayand sent the charges back toMetropolitan forpayment underMedPay.Metropolitan filed adeclaratory judgment action seeking a determi-nation that it had no obligation to pay anymed-ical expenses after the initial $2,000 in PIP, andtook the position that requiring it to payMedPayunder these circumstances violated the coordi-nation of benefits scheme under G.L.c.90 §34A.The SJC upheld Blue Cross’position and

found that Metropolitan should pay the bal-ance under the MedPay portion of the policy. Inlaying a foundation for its decision, the SJCstated that it looked at the plain language ofthe policy and found that the coordination ofbenefits scheme pertained to compulsory cov-erage only and that allowing deferral to its in-sured’s optional“MedPay benefits does nothingto undermine the legislative goal of controllingthe cost of compulsory insurance.”Id. at 394.The court also rejected Metropolitan’s argu-

ment that if Blue Cross is allowed to deny thebalance of the charges,Metropolitan must paythose bills out of PIP prior to using the MedPaybenefits which allows“an‘end run’around thecoordination of benefits provisions of § 34A.”Id. at 395.In rejecting that argument, the court stated

that“paying medical costs from PIP when thehealth insurer has denied coverage because ofthe existence of MedPay is not only illogical, itis contrary to the legislative intent of § 34A toreduce the cost of compulsory motor vehicleinsurance.”Id.The court supported its decision by quoting

Division of Insurance Bulletin B-90-2, therebyreaffirming the vitality of a document which

has clear language on how the coordination ofbenefits should work between PIP,MedPay andvarious types of health insurance, and whichconcludes with the statement that“theclaimant may submit further medical bills to ei-ther MedPay or the health insurer, or both.”Moreover, the court erased any doubt that

the Bearce decision which allowed payment un-der MedPay for medical expenses beyond the$2,000 in PIP benefits, and double recovery, re-mained good law:“The conclusion that MedPayconstitutes primary coverage accords with thecourt’s holding in Allstate Ins. Co. v. Bearce, 412Mass. 442, 448-449, 589 N.E.2d 1235 (1992),that an automobile insurer must cover medicalexpenses under MedPay even if the injured in-sured has been fully compensated for his in-juries by the liable party or by underinsuredmotorist coverage.”That is, no offset for MedPay payments in an

uninsured or underinsured claim, and no de-nials of MedPay benefits allowed based on athird party recovery in which the bills submit-ted for MedPay have been considered as part ofthe third party claim.However, the SJC endorsed the procedural

requirements outlined in theMeijia decision.Specifically, the SJC stated:“The suggestion in the second quoted sen-

tence that the insured may choose whether toseek coverage from their health insurer,Med-Pay or both, has been rejected by theAppealsCourt in Mejia v. American Cas. Co., 55 Mass.App. Ct. 461, 771 N.E. 2d 811 (2002).”The court concluded in that case that even

when an injured insured has MedPay benefitsavailable, he or she must first submit any healthcare bills above $2,000 to the health insurer forconsideration before the bills may be forwardedto the automobile insurer for payment:“Whether or not the health insurance policy

contains a deferral provision for MedPay, weagree with theAppeals Court in theMejia casethat after collecting $2,000 in medical coverageunder PIP, an insured must submit furthermedical bills to his or her health insuranceprovider for potential coverage. If the health in-surer denies coverage, the insured may thensubmit the bills to the automobile insurer forconsideration under the PIP coverage of thepolicy.”Id. at 466, 771 N.E.2d 811. “If PIP is un-available— a determination that will dependon the health insurer‘s reasons for denyingcoverage— then any available MedPay benefitswill come into play.”Id. n. 10.In essence,Meijia established andMetropoli-

tan reaffirmed the procedure that must be fol-lowed to determine which expenses that arepayable, or would have been payable except fora deductible, under the PIP coverage and aretherefore ineligible for payment under MedPay.Therefore, in order to access MedPay in a situa-tion where an insured has in excess of $2,000 inmedical bills and has private health insurance,any bills in excess of $2,000 must be presentedto the health insurer, denied, re-presented to

6 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009

MedPay updateContinued from page 1

FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 7

the PIP insurer for secondary payment and de-nied, before MedPay will come into play.The ruling inMetropolitan upholds theAp-

peals Court’s actual ruling inMeijia, but de-bunks the position of some automobile insur-ers that the decision required the full $8,000 inPIP benefits to be exhausted prior to reaching

MedPay.One certain aspect of the current MedPay

situation is that will demand significant timeand cost for attorneys and insurers to navigatethe administrative route required by the recentdecisions— to submit medical bills to PIP, sub-mit the balance to the health insurer with a PIPexhaust letter, re-submit the bills to PIP with a

denial from the insurer, submit those bills tothe MedPay carrier with the PIP exhaust letter,health insurance denial, and the PIP re-sub-mission denial.Moreover, the claim procedureand coverage availability (as well as the practi-cal utility of MedPay coverage) may be uncer-tain as claimants, auto insurers, and medical in-surers adapt to theMetropolitan ruling.

John J.McMaster was admitted to the bar in1992.After two years as an assistant district attor-ney inWorcester County, he has focused his prac-tice on personal injury law.McMaster is a solepractitioner in Northborough with a general prac-tice that includes personal injury matters.

Continued from page 6

By William O’Donnelland Kimberly Miles

In our hectic lives, it seems there’s just neverenough time.But when it comes to planning forour financial future, there’s always toomuch“T.I.M.E,”or,Taxes, Inflation,Mistakes and Emer-gencies. Building a nest egg that canwithstandthe test ofT.I.M.E. requires careful planning.Wecan’t changeT.I.M.E., but there are some stepswe can take to helpminimize its ravages.“T”is for taxesThe old saying is that only two things are

certain in life: death and taxes. It’s true, we can’tevade taxes, but some financial products dohave particular tax advantages.

Permanent life insurance,which is purchasedfor death benefit protection, has three distinct taxadvantages: cash value accumulates within thepolicy on a tax-deferred basis; loans taken againstcash value are generally not taxable; and inmostinstances, the death benefit paid to beneficiariesis free from federal income tax.A fixed annuity is another product that puts

the power of tax deferral to work for you.Witha fixed annuity, you will not pay taxes on yourfunds while they are growing, only as youwithdraw them.Withdrawals prior to age 59-and-a-half may be subject to a 10 percent ear-ly withdrawal penalty.“I”is for inflationAlways lurking just around the corner, erod-

ing the buying power of hard-earned dollars, isthe specter of inflation. Even moderate inflationcan have harmful effects on your lifestyle andpurchasing power. For example, in just 15years, a 4 percent inflation rate will almost dou-ble the cost of everything you buy.An option?Place a portion of your portfolio in growth-ori-ented financial products, provided these aresuitable investments for your individual finan-cial solution.There may be risk to your capital,but over the long haul, you may be rewardedwith returns that keep you ahead of inflation.

“M”is for mistakesNobody’s perfect —we all make mistakes.

But financial mistakes can cost us dearly.There’s no foolproof strategy to avoid missteps,but here is an outline of the five most commoninsurance and personal planning errors:

• Failure to plan—Most people don’t puttogether a cohesive plan for reaching their fi-nancial goals. However, with a comprehen-sive and flexible plan, you have a blueprintfor success.

• Insufficient diversification—“Don’t putall your eggs in one basket”is an excellentrule of thumb.True diversification utilizes avariety of different products, asset categoriesand lengths of maturity in an attempt to re-duce risk and raise the potential for a posi-tive return.

• Inadequate life insurance—Failure tocover all income earners with a sufficientamount of life insurance can cause a burdenfor survivors.

• Inadequate disability income insurance—Our income-earning potential is the en-gine that powers our lifestyle. If that enginewere to break down,would our lifestyle suf-fer? Sufficient disability income insurance

could help in that emergency.

• No estate plan—Some people think thatestate planning is just for the wealthy. Notnecessarily true.A proper estate plan canhelp reduce exposure to applicable taxes andprovide heirs with an inheritance.

“E”is for emergenciesUnfortunately, from time to time disaster

strikes and we end up paying the bill.We cando little to prevent death and disability, butthrough sufficient insurance coverage, the fi-nancial damage can be lessened. Life insuranceproceeds can provide beneficiaries with themeans to pay final expenses, defray lost incomeand continue to live in the lifestyle to whichthey are accustomed.Disability income insur-ance covers a portion of your salary (usually 50-60 percent) if you become unable to work dueto disability. Private insurance, such as long-term care insurance andMedicare supplemen-tal insurance,may help fill in the gaps of gov-ernment-sponsored programs.Yes,T.I.M.E.marches on, trying to wreak

havoc on your finances. But you don’t have tosurrender to it.With proper insurance andpersonal planning, you can limit the ravagesofT.I.M.E. in order to retire with a comfort-able nest egg.

Turning back the hands of ‘T.I.M.E.’

MATA’s Affinity PartnersMATA has developed partnerships with the following companies. Their services have been determined to be of the highest

quality and cost beneficial for our members.Their generous support of MATA helps us to complete our mission. Please con-sider using themwhenever possible.More detailed information can be obtained on our website at www.massacademy.com orthrough theMATA office.

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MILES O’DONNELL

8 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009

The Seventh Annual Diamond Ball

FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 9

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Chris A.Milne LawOffices

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10 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009

By Lauren Guth Barnes andKristen Johnson Parker

Approximately one year ago, to broadcast therevitalization of theMATAWomen’s Caucus, thesepages announced the holding of theMATAWomen’s Caucus first annual wine-tasting benefit.We’re nowproud to publicize year two.Please joinus for theMATAWomen’s Caucus“SecondAnnualBenefit toWarm theHeart”onWednesday, Feb. 18.

Over the last 12months, the caucus has held anumber of networking events and receivedtremendous support fromMATAmembers, staffand affinity partners.Co-chair LaurenGuthBarnes is encouraged by the amount of interest:“Itwas our goal to create a forumwithinMATA forthe exchange of knowledge and discussions of is-sues that are particular towomen trial attorneys.This past year was a great start, andwe look for-ward to further fostering an environmentwherewomen attorneys can learn from one another.”On Feb. 18, from 6 to 8 p.m., theMATA

Women’s Caucuswill host its“SecondAnnualBenefit toWarm theHeart”at the offices of Ha-gens Berman Sobol Shapiro in Cambridge.Thisannual wine-tasting benefit is an opportunity forMATAmembers to enjoy finewines, delectablechocolates, goodmusic and great conversation.Member Kristen Johnson Parker reports,“Lastyear’s event was a tremendous success.Webrought together a great group of people, sippedwine, ate chocolate and benefited a veryworthycharity.What could be better?”This year’s event benefits On the Rise, a non-

profit organization supporting the initiative andstrength of women living in crisis or homeless-ness. In a physically and psychologically safe en-vironment, On the Rise builds the relationshipsand provides the tools that eachwoman needs torise to her potential and reach a safe environ-ment.TheWomen’s Caucus is proud to involveOn the Rise for the second year running.

As part of itsmission,On the Rise collects do-nations of casual clothing and personal-sized toi-letries. In connectionwith the benefit,we ask youto start your spring cleaning a little early, clear outthe closets and dressers and donate those clothesto a greater cause.And for those of youwith cabi-nets like ours, full of hotel toiletries fromnightsspent in hotels preparing for depositions, here’syour chance to put them to terrific use!As a result of donations gathered at last

year’s benefit, the MATAWomen’s Caucus pro-vided On the Rise with two carloads of clothingand a suitcase full of toiletries, as well as a sig-nificant monetary donation.We knowwe cando even more this year. Between the souringeconomy and the particularly cold, snowy win-ter Massachusetts has faced this year, thewomen whomOn the Rise supports can useour collective help nowmore than ever.Please join us on Feb. 18.We hope to see all

of you—women,men,MATAmembers andfriends— for an evening of wine, horsd’ouevres, chocolates,music and conversationin support of a terrific charity.Formore information on the benefit or to get

involved in theMATAWomen’s Caucus, pleasecontact Susan Simpson atMATA, e-mail: su-san@massacademy.com or LaurenGuth Barnes atlauren@hbsslaw.com. Formore information onMATA, please visit www.massacademy.com.Ad-ditional information onOn the Rise can be foundat www.ontherise.org.

UpcomingeventsFebruary7-11 AAJWinter Convention, NewOrleans

16 MATAOffice Closed, President’s Day

17 Executive CommitteeMeeting

4-6 p.m., 8 New England Executive Park,

Burlington

18 2nd AnnualWomen’s CaucusWine &

Chocolate Tasting Benefit toWarm the

Heart, 6-8 p.m., Hagens Berman Sobol

Shapiro, Kendall Square, Cambridge

March8 Daylight Savings begins

7-14 MATAMid-Winter Conference

Mayan Riviera

17 Executive CommitteeMeeting

2:30-4 p.m., Citizens Bank, 53 State St., 8th floor

BoardMeeting, 4-6 p.m., Citizens Bank,

53 State St., 8th floor

April9 Passover Begins

10 MATAOffice Closed, Good Friday

12 Easter Sunday

16 Workers’CompDinner, Marriott, Newton

MATAWomen’s Caucus holds second annual wine-tasting benefit

BARNES PARKER

MATA GuardiansThe following firms have committed to giving a percentage of their fees to a MATA

reserve fund to ensure the longevity of the organization and continued ability for MATAto preserve the rights of your clients and succeed in obtaining its mission of keepingMassachusetts families safe.The goal of the Guardians is one year’s budget in reserve.

Baker &AbrahamCooley Manion Jones LLPEpstein, Lipsey & CliffordFeinberg &Alban, PC

LawOffices of John B. FlemmingKaron &Dalimonte

Kazarosian LawOfficesKenney & ConleyLeavis & Rest, PC

Meehan, Boyle, Black & Bogdanow, PCAlan S. Pierce &Associates

Sheff LawOfficesSugarman

If you are interested in participating in this program or would like more

information on program specifics, please contact Jennifer Comer at the MATA office.

We are grateful to each Circle Contrib-utor for demonstrating a continuing com-mitment to MATA’s efforts to preserveand enhance the civil justice system.

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FORGE Consulting, LLC

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Revolutionaries Club

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Alice Braunstein

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FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 11

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12 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009

Court to allocate certain settlement proceedsAllocates proceeds from a personal injury judg-

ment or settlement between the plaintiff and theinsurance company that provided benefits fortreatment of said injury; authorizes the court to re-duce amounts of insurers’liens if said settlementor judgment amount does not sufficiently com-pensate the plaintiff for damages incurred;House Bill 1625An act to prohibit the use of certain liability

waivers as against public policyDefines any agreement,waiver,disclaimer, exclu-

sion or limitation of liability in an employment con-tract or application releasing any third party from li-ability for injuries or death resulting during thescope of employment as void against public policy;prohibits themandatory signing of said documentsby employees or employment applicants;House Bill 1628An act relative to the examination of jurorsEstablishes a pilot programgoverning the voir

dire procedures for selection of jurors in civil andcriminal trials; authorizes the direct oral examinationof the potential jurymembers by a party to the trialor the attorney therefore; authorizes the court to im-pose reasonable limitations on questions presented;House Bill 1651An act providing for the equitable apportion-

ment of certain liensRequires the hospital, health maintenance

organization or medical or dental services cor-poration and the plaintiff in a personal injuryaction to divide costs and expenses incurred inenforcing the liability of the tortfeasor, includ-ing attorneys’fees and court costs;House Bill 913An act relative to liquor legal liability insurance

Prohibits the issuance or renewal of a licensefor the sale of alcohol to be drunk on the prem-ises unless the applicant provides proof of cov-erage under a liquor legal liability policy of atleast $250,000 for a single incident and$500,000 for multiple incidents;Senate Bill 942An act to clarify the charitable purposes of

certain organizationsProhibits use of the fact that a corporation, trust

or association is a charity as a defense to any tort ac-tion; limits liability in said cases to $20,000 if saidtort was committed in the course of charitable activ-ity and said corporation, trust or association earnsmore than 50 percent of its income fromgifts or do-nations; limits liability for organizations establishedprimarily for religious purposes to $20,000;MATAAuto LegislationHouse Bill 1621An act relative to personal injury litigationRegulates adjudication of settlements for

lawsuits against insurers relative to failure topay personal injury benefits; authorizes courtsto assess costs, reasonable attorneys’fees andinterest against insurers for costs accrued up tothe time of payment by the insurers;House Bill 911An act relative to requiring insurance for

taxicabs and commercial vehiclesRequires all commercial vehicles and taxi

cabs charging a fee to passengers to maintainliability insurance policies of at least $100,000for death or injury of any one person or of atleast $300,000 for accidents resulting in deathor injury to more than one person;House Bill 1058An act to protect consumers in the issuance

of automobile insurance policies and bondsProhibits the changing of any coverage, condi-

tion or definition of anymotor vehicle liabilitypolicy or bondwithout the approval of the Com-missioner of Insurance after notice of such pro-posed changes to the public and the FinancialServices Committee prior to a public hearing;House Bill 912An act relative to certainmedical examinationsAmends provisions relative to automobile insur-

ance liability insurance; requires an injured person tosubmit to physical examination by a licensed practi-tioner, selected by the insurer, as often as requiredbut nomore than one every sixmonths; requiressaid examinations to be conducted in a location ac-cessible from the injured person’s residence; failureto comply constitutes a violation of Chapter 176D;House Bill 910An act to repeal no fault motor vehicle insuranceRepeals existing provisions relative to the in-

clusion of personal injury protection in motorvehicle insurance policies and maintenance ofassigned claim plans by motor vehicle insurancecompanies; amends various provisions relatingto coverage under assigned risk plans including,but not limited to, increasing the limits of med-ical payment coverage and providing wage pro-tection coverage thereunder; articulates manda-tory coverage by companies issuing motorvehicle insurance including, but not limited to,medical payment provisions without regard tonegligence or fault and wage protection cover-age; repeals tort threshold requirement;MATAWorkers’Compensation LegislationHouse Bill 1862An act relative to worker’s compensationAmends provisions relative to the payment of

workers’compensation benefits by insurers; re-quires insurers to payworkers’compensation ben-efit allowances toworkers with bodily disfigure-ment in the amount up to 29 times the average

weeklywage in the commonwealth; increasesbenefit allowances for burial expenses from $4,000to $8,000; repeals provisions limiting compensa-tion for workers who are partially incapacitated;authorizes extension of said benefits for the articu-lated cases including, but not limited to,workerswho return towork pursuant to individual writtenrehabilitation plans,workers who are found un-suitable for vocational rehabilitation, andworkerswho return to employment for wages less thantheir pre-injurywages;House Bill 1828An act relative to injured workersAuthorizes administrative judges to deter-

mine the rates for health care services in work-ers’ compensation cases, if the insurer, employ-er and health care service provider cannotagree, or if equity and justice require a rate oth-er than one otherwise provided;House Bill 1826An act relative to impartial medical examinersAmends various provisions relative to themodi-

fication or discontinuation of workers’compensa-tion benefits by employers; amends regulationspertaining to the appointment of impartial physi-cians to examine beneficiary employees and use ofthe reports of impartial physicians to authorizingbenefit changes; authorizes the use of reports asevidence in hearings pertaining to benefit discon-tinuation ormodification; repeals provisions des-ignating reports as binding on all parties; regulatesthe contents ofmedical reports; designates failureto report to impartial physicians for examination assufficient cause for suspension of workers’com-pensation benefitsThe committee welcomes the ongoing par-

ticipation of its members and invites moremembers to become involved. For copies oflegislation, visit the Legislature’s website athttp://www.mass.gov/legis/. For more informa-tion about MATA’s Legislation Committee, visithttp://www.massacademy.com/ma/.MATA thanks the people who gave their time

to address important issues at the StateHouse.

Continued from page 3

Legislation Committee update

MATA’smonthly contribu-tors havemade a tremen-dous commitment toMATAand toAAJ, theAmericanAssociation for Justice, on be-half of their clients and theirprofession. Their dedicationto the preservation of the jurysystemhasmade it possibleforMATAandAAJ to contin-ue to protect consumersagainst tort reformmove-ments that threaten therights of citizens every day.Approximately 80 percent

of each contribution goes di-rectly toMATA to fund itemssuch as the lobbyists, and aportion goes to Lawyers forAction PAC (political actioncommittee) which providessupport to state political leg-islators and candidates. Theremaining 20 percent of themonthly contribution goes to

AAJ’s PAC to support federallegislators and candidates.These contributionsmake it

possible for bothMATAandAAJ to continue and increasetheir political efforts both lo-cally andnationally. It allowsfor both organizations to edu-cate the public andpoliticiansand to directly impact con-sumers via the legislature.We are grateful for the

support our Monthly Con-tributors provide and theirdedication to the rights ofconsumers and victims.

$,1000 card

LeoV. Boyle

Philip J. Crowe Jr.

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Andrew C.Meyer Jr.

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$300 cardDavid R. BikofskyMichael B. BogdanowJohn J. Carroll Jr.RobertW. CasbyDonna R. CorcoranRobert A.DeLelloGerard J. DiSantiFrederic N.HalströmTimothy C. Kelleher IIIPaul F. LeavisMarianne C. LeBlancJodi PetrucelliPeter J. SchneiderW.Thomas SmithValerie A.Yarashus

$200 cardPaul R.AikenMichael R.Hugo

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$150 cardAndrewAbraham

Clyde D. Bergstresser

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Donald Gibson

Ronald Gluck

Annette Gonthier-Kiely

Jonathan Karon

MarshaV. Kazarosian

Alan J. Klevan

Mary JaneMcKenna

Chris A.Milne

Michael Najjar

Andrew D.Nebenzahl

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John B. Flemming

Donald Gibson

Jeffrey A.Gorlick

John R. Keilty

ThomasA. Kiley

RichardA. LalimeMarkA.MacheraAngel MelendezVincent J.Murray Jr.Kathleen O’DonnellGaryW.OrlacchioMichael R. RezendesFrank R. SaiaDeborahM. Santello

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Chris Dodig

Saba B.Hashem

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Judson Pierce

Stephen K. Sugarman

RichardTucker

Robert Zaffrann

$25 CardNeil BurnsClaudineA. CloutierChristopher M.DaileyKaren J. HambletonBarbara M. Senecal

Monthly Contributors 2009

FEBRUARY 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 13

The following is a list of MATA’s benefits and services and amembership application form:

E-mail Listserv— This online forum currently puts over700 attorneys’insights and resources at your fingertips.With aclick of the mouse, you can ask for an expert, a question of lawor experience with a certain mediator, and receive an answerinstantaneously.

Deposition bank—Members have online and phone/faxaccess to over 250,000 expert depositions right from theMATAwebsite.

Case evaluations — Seasoned attorneys evaluate andprovide input on various cases, as requested by individualmembers.

Deposition coaching— This service allows members to meetwith one of our expert coaches to discuss and receive guidance ona particular deposition.

Practice sections—MATA provides necessary resources tomembers practicing in a specific area, such as auto litigation,med-ical negligence, new lawyers and workers’compensation.

Client newsletters— “You& the Law”is a high-quality, affordablepublication developed by a fellow state trial lawyer association,whichhelps educate clients about legal issues. It can be customizedwith yourown personalmessage and firm information.

Mentor service— This service offers new lawyers an opportunityto work with an experienced attorney in their practice area.

Legislative representation— Through our professional lobbyingfirm,MATA initiates,monitors and acts on legislation as it best servesthe interests of consumers. In a typical legislative session,MATA fightsto block 50 to 70 anti-consumer bills, and initiates 20 to 30 pieces ofpro-consumer legislation.

Continuing legal education seminars — Put yourself at the forefrontof trial practice through our educational seminars.Whether you attendin person, online, rent or purchase them on DVD,MATA’s seminars willhelp to give you a competitive edge.

Amicus briefs —MATAmembers can request that an amicus curiaebe filed in support of their case.

Publications— TheMATA Journal offers practical legal articles. E-clips— dailynews clips of interest to the trial bar— are e-mailed daily.Also offered is the MATAMinute, a monthly e-newsletter providing important organization information.

Networking and information exchange— Interact with fellowmembers at key events,including the golf tournament, Diamond Ball andAnnual Dinner, as well as the BermudaConvention in November and the CaribbeanMid-Year Convention in March.MATAalso provides suburban luncheons and monthly social events.

Website —Our website provides access to the MATA calendar and Board of Gover-nors, MATA Journal articles, verdicts, settlements and arbitration awards, depositionsand legal briefs, pertinent news articles, legislative updates,membership listings, CLEDVDs andmaterials, case law research, referral service, links to firms, vendors and otherlegal resources.

Public education and media—MATA focuses its efforts on improving the image ofthe legal profession by increasing the understanding of the role of attorneys and the is-sues that affect clients.

Referral service — This service refers cases to participating member attorneys basedon their area of practice and geographic location.

Affinity partnerships—MATAhas entered into several long-term agreements with ven-dors to provide a variety of services pertinent to your profession. Some of our premier serviceproviders include FORGEConsulting,Citizens Bank Law Firm Banking Program,CatugnoCourt Reporting, Experienced Resolution Resources,Workers’CompRX,LegalTalkNetwork,Robson Forensic, Premier Global Services andTrialSmith. In addition, several companies pro-vide discounts to ourmembers, including professional liability insurance, health insurance,conference calling, video services and computer services.

Meeting space— Space is available at the MATA office for members to utilize,whether it be for a client meeting, section meeting, seminar or deposition.

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been imposed on the possessors of land for thedrowning of children, whether trespassers ornot, caused when they were wading in waterbeds, regarded as safe and to all appearancesinvolving no more than the ordinary risks of abody of water, and then suddenly stepped offinto a deep hole created or maintained by thedefendant.”Coeur d’Alene Lumber Co. v.Thomp-son, 9 Cir., 215 F. 8, L.R.A.1915A, 731 (boyswading in shallow pool of water surrounded bypiles of sawdust on defendant’s land suddenlystep off into deep hole or well); Ide v. City of St.Cloud, 150 Fla. 806, 8 So. 2d 924 (city maintain-ing bathing beach allowed deep hole in lake toremain unguarded);Dinnihan v. Lake OntarioBeach Imp. Co., 8 App.Div. 509, 40 N.Y.S. 764(dangerous hole in bathing beach); City of Altusv. Millikin, 98 Okl. 1, 223 P. 851 (city’s failure toconstruct spillway which caused formation of apond generally shallow but containing a dan-gerous hole where excavations had beenmade); City & County of Denver v. Stutzman, 95Colo. 165, 33 P. 2d 1071 (child wading in Platteriver, generally shallow but in some places knee

deep, stepped into large hold dredged in thebottom of the river by defendant city); Sanchezv. East Contra Costa Irrigation Co., 205 Cal. 515,271 P. 1060 (children playing at edge of irriga-tion canal held to have assumed risk of openand obvious danger incident to canal but not tohave assumed risk of unknown, concealed, andunguarded danger incident to a large siphonconstructed at one point in canal by defen-dant); City of Indianapolis v.Williams, 58 Ind.App. 447, 108 N.E. 387 (child wading in streamrunning through city in which children usuallywaded stepped into a large and deep holecaused by flow of water into stream from sewerconstructed by defendant city).”Id. at 255-58.The 14-year-old plaintiff might argue suc-

cessfully that the dangers of the apartmentcomplex swimming pool were not obvious as amatter of law, and, therefore, that she has satis-fied the requirement of §85Q(c) that, becauseof her youth, she did“not discover the condi-tion or realize the risk involved in intermed-dling with it.”Because the dividing rope hadbeen removed, the pool in which she was in-jured presented risks greater than those of

pools in general and greater than the risksposed by that very pool on earlier occasionswhen the plaintiff may have been in it or whenshe entered the pool on this occasion.The ab-sence of the rope caused the location where thefloor began its slope into the deep end of thepool to be concealed, thereby creating a trap.The absence of the dividing rope arguably

increased the danger to the girl in at least twoways: (1) the rope was not there to warn herthat the slope into deeper water began at thatlocation, a warning she no doubt would haveheeded, as she knew she could not swim and(2) had the rope been present, plaintiff couldhave grabbed it to stop herself from slippinginto the deep water after having stepped ontothe sloping floor.The interplay between the child trespasser

statute, G.L.c. 85Q, and the obvious water haz-ard rule remains less than crystal clear. Likeother determinations as to whether a trespass-ing child noticed and appreciated fully the dan-ger posed by a condition on the defendant’sland, whether §85Q(c) is satisfied where thedanger arises from a body of water is probably

a question of fact for the jury. Even if the courtswere to rule that water is obvious as a matter oflaw, evidence that the water contained any un-usual, exceptional or hidden dangers wouldlikely raise a jury issue as to whether a trap ex-isted, rendering the obvious water hazards ruleinapplicable.When claiming that awater hazardwas not

obvious to a trespassing child, the nature of thehazard should be carefully defined. Instead ofarguing generally that the child did not under-stand the risk posed by a pool full of water, theplaintiff should perhaps define the dangermorenarrowly, as in the hypothetical just discussed, byfocusing on a particular danger (e.g. the absenceof a rope, slope of the floor, etc.) in the design ormaintenance of the pool or other water body.

RogerT. Manwaring is an attorney at Barron &Stadfeld in Boston. He concentrates in civil litiga-tion with an emphasis on legal research and writ-ing. Manwaring is senior researcher for the Barron& Stadfeld Legal Research and Writing Service(www.barronstad.com/research.html), serving at-torneys in private and corporate practice. He can bereached at rtm@barronstad.com.

Child trespassers and water hazardsContinued from page 5

16 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009

Wednesday, February 18th, 6-8 pm

Please join the MATA Women’s Caucus

for:

The Second Annual Benefit to Warm the Heart

Donations:

Location: Hagens Berman Sobol Shapiro LLPOne Main St., Kendall Square, Cambridge

Please bring a donation in the form of casualwomen’s clothing, personal size toiletries, ormonetary contribution.

Please RSVP to Jennifer@massacademy.com

by February 11th

Event: Wine Tasting, Hors d’Oeuvres,Music, and Mingling!

FREE PARKING AVAILABLE IN THE GARAGE AT 101 MAIN STREET!

Charity: On the Rise is an organization that provideslifesaving resources for women in crisis in theGreater Boston Area. On the Rise helps build therelationships and provide the tools that eachwoman needs to rise to her potential.http://www.OnTheRise.org.

Brought to you by the MATA Women’s Caucus