September 16, 2010

Should a Drunk Driver Who Killed in an Auto Accident be Charged with Murder?

The trial of Andrew Gallo is beginning this week in California. Gallo, 23, is the man who caused the accident which killed Angels pitcher, Nick Adenhart, along with two other people. Along with the obvious DUI charges, the California prosecutor has charged Gallo with three counts of second degree murder. It is uncommon for a drunk driver to be charged with murder rather than vehicular manslaughter, manslaughter, or other lesser offenses. The reason it is uncommon is because murder is an "intent" crime meaning that the death of the other person was not accidental but was instead an intended result. Drunk drivers, rarely if ever, intend to kill even though they are aware that it is a danger if they drive drunk.

But prosecutors are playing it tough with Gallo. Their stance may be due to the publicity of the case because Gallo killed a major league baseball player, but prosecutors also point to the fact that at the time of the accident Gallo's blood alcohol level was three times the legal limit. Also, Gallo is not a first time offender. Gallo was arrested for DUI in 2006 and signed papers indicating that he was aware that he could kill someone if he drives drunk.

Prosecutors in Orange County have been actively pursuing murder charges in cases like this rather than manslaughter. As the crackdown on drunk driving continues across the Country it is important to watch decisions like this. A jury is never sympathetic to a drunk driver and most of the public, even though not based on legal grounds, believe that a drunk driver who kills should in fact be charged with murder.

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September 12, 2010

Doctor Involved in the Death of a Patient Following Abortion Set for Trial

Three years ago, a 22 year old Cape Cod woman, Laura Hope Smith, died following an abortion procedure. The estate of Ms. Smith is represented by a Boston medical malpractice attorney and there will surely be a civil lawsuit for her wrongful death. What makes this case interesting is that the Commonwealth of Massachusetts is charging the obstetrician, Dr. Rapin Osathanondh, with manslaughter.

Medical malpractice, generally, is a civil action between the injured party and the doctor who failed to treat the patient with the necessary care. If the plaintiff can prove that the doctor was negligent, he or she may collect personal injury damages. In this case, the care offered to Ms. Smith was so far below the necessary standard of care that the Commonwealth of Massachusetts believe it was criminal behavior and have charged the doctor with felony manslaughter. The prosecutors allege that Dr. Osathanondh's negligence was "willful, wanton, and reckless."

The board (of medicine) said Osathanondh did not have any means of monitoring Smith's heart, and did not have oxygen or a functioning blood pressure cuff in the room during Smith's abortion. The board also alleged that he "failed to adhere to basic cardiac life support protocol" and did not call 911 in a timely manner.

Osathanondh was also accused of deceiving staff members by claiming he gave Smith oxygen during the procedure and by saying that Smith was monitored by a pulse oximeter during her procedure. Neither step was taken, the board said.

Dr. Osathanondh, or his insurance company, will most likely pay the Estate of Ms. Smith for her unfortunate loss. It is quite uncommon for doctors to be charged with criminal cases in addition to the civil lawsuit by the family, so this will be very interesting to follow. To add another twist to this case, the defense must be careful to select jurors who will listen to the facts of the case and not find Dr. Osathanondh guilty of manslaughter because he performs abortions.

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September 8, 2010

Mistakes in Police Report Following Auto Accident

It is quite common for my clients to complain that there are a lot of mistakes in the police report from a car accident and that the report is in error. Minor mistakes in accident reports are quite common and usually do not warrant concern. If the report has minor typographical errors or has your wrong birth date or license plate, etc., it is not a problem worth concerning yourself. Personal injury attorneys and insurance companies are both accustomed to dealing with inaccurate police reports.

scpst1_t300.jpgIf, however, you feel that the accident description does not accurately reflect the facts of the crash, or if the report fails to acknowledge passengers in your vehicle, it may be worth contacting the responding officer to fix the mistakes. Police officers will rarely make assumptions about how an accident occurred unless they were an eyewitness to the crash. Rather, they will talk to both drivers and and summarize their statements in the report. It is for this reason that police often do not give out citations after an accident. Unless the officer actually witnessed a driver speeding, he or she is unlikely to cite the driver for speeding even if the damage suggests excessive speed.

In general, police reports are only a starting point for investigating an auto accident and are most useful to identify all the involved parties and insurance companies. The statements are, essentially, inadmissible at trial, and are less important than detailed statements or depositions.

Therefore, to make a long story short, do not let an inaccurate police report cause you too much unrest. Only if there is a fatal or damaging flaw in the report should you take the effort to contact the reporting officer. He or she will not change the initial report anyway and will only add your subsequent statement as an attachment to the original report.

Of course, all cases are unique and you should raise any question or concern with your car accident lawyer right away.

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September 6, 2010

Royalty Dispute Ends in Eminem's Favor and It Could Have a Huge Impact on the Recording Industry

A Federal Court in California has ruled in favor of Eminem, by stating that digital downloads from Itunes.com do not qualify as purchases, but are rather "licensed" by the "buyer". The import of this decision is that there is a dramatic difference between record sale royalties and license agreement royalties.

A recording contract generally pays royalties between 7% and 20% to an artist, depending on their popularity and ability to generate sales, for each album and/or single sold. The same recording contract might allow for 50% of royalties for the licensing of a song, such as to a TV show, commercial, or movie.

As a result of this ruling, artists such as Eminem, will now receive the much higher licensing royalty percentage than the lower record sales royalty. It could mean hundreds of thousands of dollars for artists as popular as Eminem. Even for much smaller artists this is a major decision since Itunes is becoming the leader in music sales while CDs begin to disappear.

Rest assured, however, that record label attorneys are running to their keyboard to make appropriate amendments and soon recording contracts will have a special "licensing" provision for Itunes which brings the royalty down to the intended amount of royalty for record sales. Nevertheless, this decision is a boon to recording artists currently working on a contract who have no such provision.

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September 3, 2010

Hurricane Earl and Storm Related Accidents

Another hurricane is upon us and as a lifelong Rhode Islander, I like you, am skeptical that this storm will amount to much, and here's to hoping that it doesn't. That said, it is going to be a very difficult weekend for driving and rain is expected to reach several inches in some parts of the state. Please be careful when driving and only drive if absolutely necessary.

If you are in an accident related to the storm, be sure to contact our office right away. Weather and storm related auto accidents have several unique problems that require investigation to determine who is at fault for the car accident and who is responsible for paying. During storms: cars can become disabled in the middle of roads, cars hydroplane and drift on the water, and most of all, visibility is extremely poor. These factors lead to a heavy increase in the frequency of auto accidents.

While Earl is not a name that often strikes fear, we must prepare for the worst. Be safe everyone!

August 30, 2010

Rollover Auto Accident, Post-Collision Fires and Product Liability

It has been a tough year for the auto industry. This year alone Toyota, Ford, and GM have recalled over 15 million vehicles for various safety related issues! Technological breakthroughs might helps sell new cars, but the single most important characteristic of a vehicle is it's safety record.

It is important to understand that if you or a family member have been seriously injured or killed in an auto accident that resulted in a rollover or post-collision fire, that you may be able to pursue a product liability claim in addition to the at-fault driver's auto insurance. if the vehicle's design either caused the accident (i.e. the sudden acceleration accidents caused by Toyota's) or made the injuries worse (i.e. bursting into flames after impact) then you may be able to seek damages against the manufacturer.

Rollover Accidents

Every car designer will accept that at a bare minimum a car on pavement should never flip over. The introduction of SUVs in the past few decades, however, showed that top heavy vehicles may, in fact, rollover in certain collisions. If a car rolls over, an investigation may be warranted to determine if a flawed design made the vehicle unstable. In addition, since it is well known that a vehicle might rollover in certain accidents, car manufacturers need to prepare for the possibility. That means that the roof should be able to withstand a certain amount of pressure without collapsing and crushing the occupants inside. Doors, windows, and safety glass should be designed in such a way as to limit or reduce vehicle ejection (being thrown from the car).

Safety Device Failure

We rely on seatbelts and air bags to save us from serious harm in an accident and even if a car is nine years old we expect that these safety devices will work. If a seat belt fails or an airbag fails to deploy it may be caused by faulty design or installation. Without these safety devices in place, a relatively minor accident can become extremely serious.

Post Collision Fires

Vehicles igniting into flames after an accident is not a very common occurrence following the disastrous Pinto and the massive lawsuits that Ford faced. If you recall, the Ford Pinto had a gas tank dangerously close to the rear bumper which caused Pintos to burst into flames after a simple rear-end accident. Today, designers are very aware of the need to protect and insulate the gas tank from impact. However, modern cars have complex gas combustion engines and fuel lines criss-cross up and down the length of the car. Inappropriate positioning of any of these lines or the breach of a line in a simple accident might cause a preventable post-accident fire.

It is important that you hire an attorney who is familiar with product liability cases and who can see potential cases when a car accident has caused very serious injury. If you feel the vehicle you were in failed to keep its occupants safe, do not hire an attorney who stops short at the auto insurance policy.

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August 25, 2010

Personal Injury Attorney Joseph Lamy Will Also Handle Your Property Damage Claim

A surprisingly large number of personal injury and auto accident attorneys will only handle the personal injury portion of a claim and not handle the property damage to your car. I do not understand this procedure and I assure you that I will personally handle your entire auto accident claim including property damage.

Property damage refers to the entire process of repairing your vehicle, acquiring rental cars, towing, and resolving total losses, if applicable. It is an important part of an auto accident and needs prompt attention to make sure you are not without a car for long and that your family car is quickly and efficiently repaired.

I feel that car accident attorneys, such as myself, have a duty to represent you for the entire claim. Here are several reasons why:

  • It is inappropriate for you to speak with the opposing insurance company even if it is only about the property damage.
  • It takes quite a few phone calls to organize all of the parties involved... insurance companies, auto bodies, rental car companies, property adjusters, etc. This is not work that you should have to do while recovering from a serious personal injury!
  • If your property damage is not dealt with in a satisfactory way, it must be resolved through litigation and only an attorney can prepare for that possibility.

It is always important to hire a personal injury attorney when hurt in an auto accident. In return for his or her services you are going to give up 1/3 of your total settlement. That is a good deal of money and you should be sure that your attorney is going to handle your ENTIRE case!

Do not hire an attorney or law firm that asks you to handle all the headaches and sacrifice all the time necessary to resolve a property damage claim. If you are hurt following an auto accident, your only concern should be recovering, not calling an auto body to find out when your car will finally be fixed!

Remember - I used to work for an auto insurance company and I know how the entire process works. If you have been injured in a Rhode Island or Massachusetts accident, let my office make the process as smooth and comfortable as possible!

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August 23, 2010

Understanding Probation and Probation Violations in Rhode Island

A convicted person in Rhode Island may find themselves on probation in one of two ways: 1) as part of a suspended sentence; or, 2) under straight probation. In either case, the person convicted is not required to serve prison time. Probation may be either supervised or non-supervised. Supervised probation requires frequent reporting to a probation officer who will keep tabs on your life and work status and/or whether you are complying with court ordered rehab, if applicable.

Probation as Part of a Suspended Sentence

If given a suspended sentence, the judge will impose a length of time to be served, but order that the imprisonment is waived while the defendant is on probation. The suspended sentence might also require some time to be served in jail followed by a period of probation. If the probation is completed successfully, meaning that you have not violated probation (more below) then the sentence is completed. If probation is violated the defendant can be forced to serve the remainder of the suspended sentence.

Straight Probation

Straight probation is more common for lesser crimes and misdemeanors than it is for felonies. Straight probation works essentially the same as it does under a suspended sentence, but in this case there is no underlying amount of time to be served. If a person violates a straight probation agreement, he or she will not be jailed to serve the remainder of a suspended sentence. Instead, a violator of straight probation, will be jailed for an amount of time determined at a violation hearing. A violator may be forced to serve the maximum sentence for the crime committed.

Violation of Probation

When someone is placed on probation (regardless of form) they are told to "keep the peace" and be of good behavior. Unfortunately, and this is an area of much contention, a person does not need to commit another crime to be found as a violator of probation. Merely failing to keep the peace is enough to be considered a violator of probation and placed back in jail. The violation becomes a second separate charge in addition to any charges that may arise from the incident in which the Attorney General believes the defendant violated the terms of probation.

Your criminal defense attorney will represent you at a probation violation hearing which is held in front of a Judge. Both sides will have an opportunity to address whether you have kept your terms of probation. Again, "keep the peace" and "good behavior" are vague and it does not take much evidence for a Judge to determine that a persons actions were not "good behavior."

Because the Judge believes that you have already violated your probation, he or she is VERY unlikely to allow bail. Therefore, these are very serious charges because it requires jail time pending the resolution of the underlying charges.

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August 19, 2010

Is Rhode Island #1 for Drunk Driving Auto Accident Fatalities?

Democratic candidate for Attorney General, Steven Archambault, stated during a debate last night that he has a "four-point" plan for dealing with the drunk driving problem in Rhode Island. Archambault is calling for stiffer penalties particularly for second and third offenders or those whose blood alcohol level is very high. The increased penalties mean that those convicted of DUI in RI could face longer prison sentences or longer suspensions of their license.

Archambault, rightfully, commented that this State should not be at the top of the Country for alcohol related auto accident deaths. His statement led the Providence Journal to investigate the accuracy of the statement, and to his credit, Rhode Island ranks very high in drunk driving related auto fatalities. In fact, Rhode Island ranks fifth in the Nation for auto accident fatalities caused by a driver with a blood alcohol level over the legal limit of .08.

Rhode Island suffered 69 driving fatalities in 2008 (the year of the PROJO report) of which thirty-eight were caused by a legally drunk driver. That is nearly forty percent of all auto fatalities! While our rank has bounced around over the years, it is always quite high and in the top 10. For 2003 and 2004, Rhode Island had the worst record for alcohol related auto fatalities. A dubious distinction to be sure!

I will be curious to see if the other Attorney General candidates will take a similar tough stance against DUI given these statistics.

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August 16, 2010

Artists are you Considering a Manager? Here's What to Know About a Management Contract

A band manager hears a song on the internet or catches your act at a local club and approaches you promising recording contracts and headline performances in front of 15000 screaming fans... it's a seductive offer and you consider giving a percentage of your earnings to this person. Is it an offer you can't refuse or an offer you should run from?

I have reviewed countless management contracts and, interestingly, they all vary quite a bit. I am more than happy to review any management contract before you sign and I will give my fair unbiased opinion. In the meantime, here are a few important things to look for.

Obtain the manager's resume and credentials

This may seem obvious, but many artists fail to ask enough questions about a potential manager's background. Has he ever worked with a successful artist, or are you the guinea pig? Does he or she actually have effective contacts in the music industry? Is he or she familiar with your kind of music - this is essential because a highly successful hip-hop manager might be unable to do anything for a rock band if he has the wrong contacts and is unfamiliar with your genre. Is he or she making promises that can be kept?

Never, ever, ever, sign power of attorney

There is absolutely no reason to sign over power of attorney to a band manager. None. I recently read a contract offer for a very talented artist and the manager was requesting power of attorney over all contracts and bank accounts affiliated with the artist and her music. I can't say it enough - there is no reason to agree to this. Do not allow a manager to take over your career and make binding decisions with which you may disagree.

Let's Talk Money

This is probably the area which creates the most need for negotiation. What percentage is fair? Should he or she only take a percentage of work that they produce? Gross v. net? and so on...

Here are some considerations. The average percentage is 10-20% for a manager. At the higher end, the manager should have a great resume and be able to open very lucrative doors. Anything over 20%, is in my opinion excessive. It is also very helpful if you sign a contract in which the manager only receives a percentage profit on work that he or she creates. In other words, if the manager books a paying show, then he or she is entitled to profit. If you contact a venue directly or license your song to a video game entirely on your won without the effort of the manager, why should he or she profit?

Some managers will not take a percentage and instead will work for a fee. These agreements may be appropriate if you have every confidence that the manager can keep his promises. Otherwise, you may lose money on the deal.

In addition, always look to sign a contract where the manager takes a percentage of the net profits and not gross profits. The music industry can have a lot of overhead costs... equipment, road crews, merchandise manufacturing costs, recording time in the studio, etc. The manager should share in these costs by taking only a percentage of the net profits and not the gross profits.

So is it a Good Idea?

Absolutely, if it is the right manager with the right contract. There are hundreds of thousands of bands and artists who sound much like you across the Country and across the Globe. A good manager can open doors that would be otherwise impenetrable and might just be the key to success. That said, a manager should never be a hindrance or a step backward and that is why you have to do your homework.

If you are considering hiring a band manager, or have already been contacted by one, contact my office right away so that we can review the proposed agreement. A few hours with a lawyer by your side could save thousands of dollars in the future and might prevent a horrible contract.

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August 12, 2010

Should We Review and Give Grades to the Criminal Justice System

The criminal justice system in this Country is a mess, to which no one can reasonably deny. America has more prisoners than any other Country in the World, including dictatorships, Communist Governments, and all of the western world. Nearly 47 million Americans have a criminal record which stigmatizes them in the community and makes it very difficult to obtain quality employment.

There are a number of reasons why this is the case. For one, penalties in this Country for drug possession are obscene. A person arrested for possessing cocaine, without any intent of selling it, should not face a lifetime in prison. Another cause for the high rate of prisoners, can be seen in our Rhode Island system. Probation and Bail Violators face automatic prison stays, at least until the underlying case can be resolved. In Rhode Island, you do not need to break a law to be a probation violator. If you are in the wrong place at the wrong time and fail "to keep the peace" in the eyes of the police and attorney general, then you are a probation violator and are going to jail.

Clearly, there is no easy solution. I did come across, an interesting opinion piece in the New York Times, however. Lawyer and writer, Amy Bach, proposed a "Justice Index" to evaluate and score how well the criminal courts are working. Considering that we grade schools, hospitals, and other public services, it seems reasonable to grade the criminal justice system as well.

Some of the standards for grading quality she proposes are: average bail amounts; the percentage of accused who plead guilty without an attorney; percentage of certain cases which are dismissed; the nature and quality of legal protections (i.e. State law regarding the use of certain evidence); and effect on crime reduction.

I can see benefit in this system if poor results would generate legislative and judicial changes for the better. It is unreasonable to believe that the scores would influence where people choose to live or how they act in the community. Nevertheless, it is an interesting idea.

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August 9, 2010

Multiple Vehicle Rear-end Accidents

Picture several cars stopped at a red light when a driver, not paying attention, rear-ends the car stopped at the back of the line. That driver is hit so hard that he or she is forced into the car immediately in front of him or her causing a three car accident. On occasion, the initial impact is so severe that the chain reaction can reach four cars!

A potential client called the office this morning facing this scenario. He was stopped at a red light behind another car when he was rear-ended. The impact of the rear-end accident forced him into the car directly in front of him operated by a woman. The client was taken to the emergency room for observation and suffered whiplash injuries, namely cervical strain/sprain and a lumbar strain. He asked if I would represent him for his personal injuries, and then he asked if the woman he struck could sue him?

He was concerned that because it was his car that caused the damage to the front vehicle that he would be held responsible. This is absolutely untrue! If the driver in the middle of a rear-end pile up was safely stopped before the initial impact and was then forced into the car in front of him, he is not responsible for any damages caused. The driver at the back of the chain reaction is responsible for all damages.

This is a very different scenario than if you rear-end a vehicle and then are struck from behind by another driver not paying attention. In that case you will be responsible (at least 50%) for the damages (both property and injury) to the persons in the front vehicle. The person at the end of the chain may be partially responsible for the damage to the front vehicle and will be responsible for the rear-end damage to your vehicle (as well as 50% of any injury damages). You will be responsible for the damage to the front end of your vehicle.

These types of car crashes can be difficult to sort out and it is important to speak with an experienced personal injury attorney if you are in the middle of a multi-car pile-up. Only the person at the front of the line has nothing to worry about!

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August 5, 2010

Entertainment Lawyer Joseph Lamy may be Retained on Contingency Fee Basis

I speak with musicians and artists almost every day to try and help them along the path to rock and pop stardom, but the fact is that many up and coming artists are struggling to make it and, therefore, can not afford legal fees of an entertainment lawyer. I always keep my fees as low as possible to help people gain access to the legal help they need, but it is not always enough.

If you are a band, singer, or musician, on the brink of stardom, you should know that I can be retained on a contingency fee basis. You may be familiar with contingency fees in personal injury cases. The attorney will not paid or compensated until you are compensated. In the case of personal injury the compensation comes from a settlement or jury verdict, in the case of entertainment law, the compensation comes from advances on recording agreements, or other contractual payments. The percentage is lower than that typically used in personal injury cases. Under such an agreement, I will review all contracts, negotiate favorable terms, use my contacts to help further your career, and ensure that your best interest is protected.

If you have been offered a recording contract, production agreement, licensing agreement, or any other contract in the music industry, it is imperative that you have an entertainment attorney review any document before you sign. Just this morning I spent an hour speaking to a client who asked me to review a recording contract only to find that there were a number of problems and unjust provisions. No matter how badly you want to make it big, you absolutely can not blindly sign a contract. The music industry is extremely complex and record labels and producers are not looking out for your best interest. An experienced entertainment lawyer, such as myself, familiar with the complex language of the music industry is your best option.

It is also worth noting that the contract language surrounding the music industry is universal. Therefore, even though I am a licensed attorney in Rhode Island and Massachusetts, I can represent artists across the country. I have represented musicians from Denver, Salt Lake City, and California, in addition to many Rhode Island and Massachusetts acts.

Don't sign your dreams away and make a contractual mistake you'll live to regret. Contact my office right away for a free consultation. My efforts may cost you little to know money.

August 2, 2010

Fair Sentencing Act Passes Congress

The Federal System has long maintained extremely disparate punishments for crack cocaine possession as opposed to powder cocaine possession offenses. This week the House of Representatives has passed the Fair Sentencing Act and it is expected to eventually become law.

The original Controlled Substances Act (21 USC 841) established minimum sentences for crack offenders that are 100 times more harsh than sentences for powder cocaine offenders, even with the same weight of drugs involved. In practice, that meant that a person facing sentencing for 5 grams of crack cocaine, a minimum 5 years, was facing the same sentence as a person carrying 500 grams of powder cocaine.

While no apparent reasoning exists for the disparity, recent claims that the current sentencing guidelines are racist have forced legislators to review their drug sentencing guidelines. White drug users are much more likely to be arrested for powder cocaine possession, whereas African-American drug users are more likely to be arrested for crack cocaine possession. As a result, black convicts faced much more strict sentences than their white counterparts for essentially the same crime.

The United States Supreme Court even ruled in Kimbrough v. U.S., that judges could sentence defendants below the sentencing guidelines for crack offenses. The new bill will reduce the disparity from 100 to 1 to approximately 18 to 1. It is a minor victory in reducing the sentencing disparities for crack possession versus cocaine possession.

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July 30, 2010

When is a Dog Owner Responsible for A Dog Bite?

A dog bite can range from a minor scratch to a fatal mauling. No matter how serious the severity of the dog bite, any animal attack can be a traumatic experience. The law surrounding dog bites and negligence may be unclear and some may wonder how you can be compensated for an animal attack.

Rhode Island State Law is quite clear on the matter. If a dog bite occurs outside of a pet's enclosure (i.e. outside the home in a public park or on a sidewalk) then the owner of the pet is strictly liable for any and all injury that the dog causes. Strict liability means that the circumstances as to why the attack occurred are irrelevant - the owner is always responsible!

If the attack occurred inside the home (the pet's enclosure) then the homeowner is not necessarily liable. This may be a surprise to many people who think that a homeowner is obligated to control his pet at all times. However, if the pet is inside his enclosure and the owner has no reason to believe that the pet is a danger to anyone (i.e. the dog is not a pit bull, akita, or other dangerous breed, and the dog has never attacked anyone in the past) then the owner is not liable for the attack. If, however, the dog is a dangerous breed, or if the dog has bitten a victim in the past, then the homeowner is on notice that the dog is dangerous and is responsible for any injury suffered no matter where it occurs.

Massachusetts, also has very favorable laws for victims of dog bites. The owner of a dog is strictly liable for any attack on a person unless that person was teasing, tormenting, or otherwise harassing the animal.

In Massachusetts, the law also says that a child under 7 can not be responsible for tormenting or teasing the dog. Therefore, in Mass, a homeowner is always responsible for injuries inflicted on a child under 7. Tragically, children are the most common victims of dog bites. This may be attributed to the fact that children are on the same height level as dogs and because children do not yet understand the danger that some dogs may present.

The vast majority of homeowner's policies will cover dog bite attacks and pay the customary personal injury debts including: medical bills, lost wages, and pain and suffering.

The amount paid to a victim for pain and suffering also includes compensation for scarring which is, unfortunately, a common result of a dog bite. The value of a scar depends on many variables, including but not limited to, the location on the body and the severity and length of the scar.

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