The Banana Peel that Led to a Rotator Cuff Surgery

        I know you must be stressed and overwhelmed with it being exam season combined with being in the midst of an ongoing pandemic. I want to remind you that everything will be okay; you will be okay; you will do well on your exams; you will graduate; and you will be well on your way to becoming a successful attorney. Only positive thoughts! I came across a very interesting case, one involving a banana peel! I thought you would be interested too, so give it a read!

In this case, the Plaintiff is a 53-year-old iron worker who was working at a construction site. On one particular occasion, the worker left his work area to get some supplies. On his way to get the supplies, he passed by an elevator that was in the, “up position with someone working on it”. The worker’s attention was drawn towards the mechanic working on the elevator. However, in the meantime, the worker slipped and fell on a banana peel. The Plaintiff suffered a shoulder injury which required a rotator cuff surgery and eventually, a full shoulder replacement. Unfortunately, the Plaintiff’s doctors said that the worker was permanently disabled from iron work.

The Plaintiff’s attorney filed an action against the prime contractor of the premises, claiming that the prime contractor had a duty to maintain the jobsite in a reasonably safe condition and free from all foreseeable hazard. The attorney further claimed that the prime contractor breached his duty by: 

(1) failing to properly maintain the jobsite;

(2) failing to perform proper work and site inspections; 

(3) failing to provide trash receptacles on the jobsite;

(4) allowing workers on the site to throw trash on the ground;

(5) failing to remedy any dangers on the jobsite; 

(6) failing to ensure safe means of ingress and egress to designated work areas; and 

(7) by failing to ensure that work was completed on the jobsite in a reasonably safe manner. 

        Defense argued that it, “did not and should not have had notice of the banana peel on the ground and that the Plaintiff should have been aware of where he was walking.” Eventually, the Plaintiff accepted a settlement totaling 1.6 million.

(Massachusetts Lawyers Weekly, Volume 49, No. 44)

What Are Your Thoughts on This Case? 

No-Contest Clauses in Wills and Trusts

        Wishing you a beautiful start to a new, fresh week in November! Keep going, the semester is coming to an end sooner than you think! To keep you informed about current cases and what has been decided, this week I have a case regarding a will that has a no-contest clause in it. I found it to be very interesting to read because we actually learned all about no-contest clauses in my Wills and Trusts class not too long ago. Everyone, whether you are the Testator of a will or the beneficiary, should be aware of what the no-contest clause necessitates. Happy reading!

Capobianco v. Dischino, 98 Mass. App. Ct. 1101 (2020), is a recent Appeals Court case where the court upheld the enforceability of no-contest clauses in Massachusetts wills and trusts. In this case, a trust beneficiary filed a complaint seeking to remove the trustees, appoint himself as the sole trustee, stop the trustee from depleting trust assets, and request a trust accounting. The trust actually contained a no-contest clause which provides, “If any person attempts to contest or oppose the validity of this agreement, or any of its provisions, commences, continues, or prosecutes any legal proceedings to set this agreement aside, whether directly or indirectly, then that person will forfeit his or her share, cease to have any right or interest in the trust property, and will, for purposes of this agreement, be deemed to have predeceased the settlors.” 

In the states where no-contest clauses are permissible, courts have the ability to forfeit the challenger’s interest in the trust. “A court will often enforce a no-contest clause when a beneficiary challenges the validity of the instrument itself or its substantive provisions. In contrast, courts often decline to enforce a no-contest clause when a beneficiary is seeking an interpretation of the will or trust”. 

In the present case of Capobianco, the beneficiary was unhappy with the way the trustees were handling their duties, exactly why he filed suit. The beneficiary had the option to bring an action for breach of fiduciary duty and seek to remove the trustees, but instead, the beneficiary decided to, “file suit asking the Probate Court to disregard multiple terms of the trust, name him as the sole trustee, appoint him as the sole manager of two LLCs controlled by the trust, and prevent the current trustees from administering the trust while the litigation was pending”. 

The trustees brought a declaratory judgement to enforce the no-contest clause and the court granted such judgement even though the trustees did not have standing because they had no personal interests in the matter while serving as trustees. The court found that the beneficiary triggered the no-contest clause with his lawsuit, “because he sought to disregard the provisions of the trust governing the process for how trustees are appointed and the identity of the successor trustees”. 

The court stated that they will, “construe no-contest clauses narrowly because the law generally disfavors forfeitures. However, in this case, the trust instrument specifically prohibited a beneficiary from serving as the sole trustee of the trust”.

MA Lawyers Weekly Volume 49, No. 43. 

 Do You Think the No-Contest Clause is Fair?

Lawsuit that Arises from an International Ballet Dance Competition

    Wow, first week of November! Just one more month away from the semester’s end. Keep up the hard work! This week, I want to bring to your attention a case involving two insurance companies who were relieved from liability in a tort lawsuit. Happy Reading!

The Defendant is the owner of an international ballet academy. The Defendant worked as an instructor at a Dance Studio which provided ballet lessons. The Plaintiff was a student taking ballet lessons at the Dance Studio. On one occasion, the Defendant convinced the Plaintiff to compete in the World Ballet Competition in Romania in March 2014. This was an event that was co-founded by the Defendant and the Defendant even served as a judge of the Competition.

On the flight to Romania, the Plaintiff claims the Defendant groped her under her clothes and once in Romania, repeatedly raped her in her room and put a drug in her drinks. The Plaintiff also alleged that the Defendant, “took advantage of her vulnerable position traveling in a foreign country where she did not speak the language”. The Plaintiff sued the Defendant in Superior court alleging sexual assault, intentional infliction of emotional distress, false imprisonment, and negligence. The Defendant denied these allegations and in return, filed a counterclaim alleging defamation, tortious interference, and abuse of process. 

The Defendant thereafter brought action against National Casualty (his employer’s insurance company) and Safety Insurance, Co. (his homeowner’s insurance) seeking a, “declaration that they had a duty to defend and indemnify”. National Casualty Insurance argued that it had no duty to defend the Defendant because, “the alleged misconduct fell outside the scope” of the Defendant’s employment duties. Specifically, the World Ballet Competition in Romania was beyond the interest of the Dance Studio the Defendant was an instructor at, and therefore, had no obligation to defend the Defendant for any claims brought against him related in this case. The National Casualty further stated that, “those alleged accidents self-evidently served only the [Defendant’s] interests and therefore, he cannot claim status as an insured party on that basis”. 

Once that attempt failed, the Defendant resorted to his homeowner’s insurance, Safety Insurance, Co.; however, the Defendant’s homeowner’s policy states an exception which prevents coverage of “business pursuits”. The court found that, “it is uncontested that any injuries suffered by [the Defendant’s] alleged acts occurred out of the country on a work-related trip…under these circumstances, regardless of whether [the Defendant’s] alleged actions were motivated by personal or business reasons, any resulting injuries arose out of or in connection with [the Defendant’s] business pursuits, and thus are excluded”. Therefore, both the National Casualty and Safety Insurance, Co. were relieved from liability. 

Massachusetts Lawyer’s Weekly Volume 49, No. 42   

Do You Believe the Right Decision was Made by the Court? 

Home Entry & Probable Cause to Motions for Summary Judgement

          Here we are, embarking on our last week of October 2020! Can you believe we are almost to the end of this semester? You have made it this far, just a few weeks less than two months, and you’ll be down another semester of law school! This week, I have an interesting case for you to read! It’s a civil case about a home entry that took place and an argument over whether the home entry went against the Plaintiff’s constitutional right. Happy Reading!

        This case arises out of a couple of Motions for Summary Judgement that were filed by both the Plaintiff and the Defendant as to the Plaintiff’s claim that the police violated his Fourth Amendment rights by entering his apartment without a warrant and conducting a search. Briefly, a detective (detective 1), employed by the Worcester Police Department, had been investigating the Plaintiff for 15 months and conducted about 12 controlled purchases of cocaine from him through a reliable confidential informant (CI). 

        Thereafter, on August 28, 2014, another detective (detective 2) working for the Worcester Police Department saw a tall, thin man entering the Plaintiff’s vehicle. The police officer testified that in the vehicle, he could see the men engage in conversation, “while fixated on something between them” and observed them, “reaching towards each other”. Based on the detective’s training and experience, “his impression was that he just witnessed a hand-to hand street level drug transaction”. Upon seeing this, the detective informed other police officers of this transaction. A short while after, the tall man exited the vehicle and walked away. 

    The detective went out and approached the tall man to which the tall man, “made a quick throwing gesture behind his back with his right hand”. The detective, upon retrieving the item, saw it was a, “small off-white colored chunk in a small knotted plastic bag, which he believed to be crack cocaine. The detective frisked the tall, thin man and according to the man, he said he purchased a rock of cocaine for $40 with some friends earlier in the day and had intended to smoke it. The man also admitted that when he saw the detective coming towards him, he took it out of his pocket and threw it away.

        Thereafter, detective 2 stopped the Plaintiff’s vehicle which was at an intersection by then, and ordered the Plaintiff to put his car in park and to get out. Officers removed Plaintiff from his car and ordered him to the ground. Plaintiff refused and the officers started searching him. The officers found $40 in his hand, $122.00 in his wallet, and two cell phones. Plaintiff was placed under arrest for distribution of a class B substance. The police provided the Plaintiff his Miranda warnings which the Plaintiff later denied he was ever read. The police said Plaintiff answered affirmatively in response to the warnings and asked Plaintiff where he lived. Plaintiff gave the police his address. Thereafter, the police did a pat down of Plaintiff to which no drugs were detected. The Plaintiff said that the police stripped him down and made him bend over and then cough. The police then took the Plaintiff’s house keys.

        Upon arrival at the Plaintiff’s house, the police did a “protective sweep” of the place to make sure there was no one inside who could destroy the evidence. The police said no drawers were open, furniture wasn’t moved, and mattresses were not lifted. However, Plaintiff claims that his apartment was a mess and drawers were open. The police stated they were in the apartment for only a few minutes and secured the apartment while awaiting a search warrant. Ultimately, however, they did not obtain a search warrant because prior to searching the Plaintiff’s apartment, they saw the Plaintiff’s son leaving in his car and believed that any potential evidence would have been taken with him or destroyed. Plaintiff alleges the police were in his apartment for about 25 minutes, not just a few minutes. The police officers applied to the district court for the issuance of a criminal complaint against the Plaintiff for the distribution of cocaine. The Plaintiff filed a 42 U.S.C. 1983 complaint alleging that he was arrested without probable cause, that his residence was illegally searched, and that he was subjected to an unlawful body cavity search. 

            With regards to the Plaintiff’s Motion for Partial Summary Judgement, the judge ruled, “Although it is a close call, on this record, I find that there is a genuine issue of material fact both as to whether the Defendants had probable cause to believe evidence of a crime could be found inside the apartment and as to whether the entry to the Plaintiff’s apartment was necessary to prevent the imminent loss of such evidence…” Therefore, Plaintiff’s Motion for Partial Summary Judgement was denied. With regards to the Defendant’s Motion for Summary Judgement, the judge ruled that, “Even if a jury were to find that probable cause and exigent circumstances existed such that a warrantless entry into the Plaintiff’s apartment was not violative of the Fourth Amendment, taking the facts in the light most favorable to [Plaintiff], there remains a genuine issue of material fact as to whether the search exceeded the scope of what would have been proper under the circumstances”. Therefore, Defendants’ Motion for Summary Judgement on this claim was also denied. 

Johnson v. City of Worcester, et al., Civil Action Number 17-40103-TSH

Lawyers Weekly Volume 49, No. 38.  

For Those of you who missed Blog Contributor, Eddie Street's Post last week, Check it out here!
https://mslawcommunityblog.blogspot.com/2020/10/1l-legal-writing-courses-dos-and-donts.html

What are Your Thoughts on This Case? Who Do You Think Should Prevail?

1L Legal Writing Course(s): The Do’s and Don’ts

        Law school is a monster of it’s own.  It took time and effort for us to get here, and it will undoubtedly take dedication and persistence for us to leave successfully.  Yet, by all means, while the practice of cramming for our exams back in undergrad, and/or waiting until the last minute to draft an eight page paper for (insert your Major) may have worked in the past, you’ll eventually thank yourself for admitting that you’re faced with something different this semester.

        Now, despite the fact that your new legal writing professor just gave you a seemingly outrageous outline or closed memo assignment, there are ways to navigate through your first semester in order to succeed in your legal writing course.

Rule #1 – Don’t Be Afraid to Start at Ground Zero!  

- I know…you’ve watched “My Cousin Vinny,” and every season of “How To Get Away With Murder,” a thousand times.  As such, you may be under the impression that you already under-stand both criminal and civil procedure, and that you’re ready to litigate.  But, there’s one catch:  You’ve never actually written a legal analysis!  Believe it or not, this is good news.  You’re starting fresh!  For those of you who are intrigued about how to draft an outline for law school, please refer to Sovmya’s previous blog post and commit yourselves to attending Prof. Colby Clement’s academic support sessions on Saturdays.  However, for those of you who have al-ready received your first memorandum assignment, please proceed to the information below.

Rule #2 – Learn the Process!

- This is where you learn how to tread water, before attempting an all-out lap in the pool.  Great analogy? I know!  But in all seriousness, a closed memo is the equivalent of solving a puzzle that you’ve already received the pieces to.  You’re job is to put the pieces together accordingly:

1. Carefully read, evaluate, and understand the facts of your case.

2. Identify the main issue(s) assigned by your professor.

3. Strategically identify the rule of law in each case (which is provided) and compare it to the issue assigned. 

4. Develop a thorough understanding of the task in front of you by conducting a com-pare/contrast approach of the issue assigned, versus the applicable case law.

5. Draft a brief answer based on your general analysis of the cases provided, as they ap-ply to your issue.

6. Expand upon your brief answer by drafting a thorough analysis; and

7. Draft an overall conclusion

Important Note:  Don’t make this harder than it is.  Your professor will give you an idea of what they expect to see in your memo, and most importantly, they’ll be more than willing to answer additional questions regarding your paper.

Important Note #2: DO NOT WAIT UNTIL THE NIGHT BEFORE THE PAPER IS DUE TO WRITE THE PAPER. It is difficult, if not impossible, to get a high grade on a paper if you have not taken the time to read and edit your work. This process requires you to walk away from what you wrote, and put some time between writing and editing. You cannot do this if you write the paper the night before it is due.

Rule #3 – Do the Work!

- We’ve all heard the statement, “you can’t cut corners in law school.”  Well guess what? It’s true!  You’re performance in law school, and legal writing in particular, is a reflection of the effort you put-in.  Believe it or not, this is good news and will set a precedent for how you treat the rest of your courses.  However, it may also serve as a wake-up call.  If you see that you can improve upon the grade you received on your first draft, then by all means attend a Saturday academic support session.  Or, if you’re truly serious about becoming a better writer, then visit the writing lab, and/or drop-in during mentoring hours. Either way, don’t be afraid to ask for help.  Additionally, if you received a phenomenal grade on your first draft, do yourself a favor and at-tend an academic support session.  Knowledge is power, and you’ll be more successful by taking full advantage of the academic support that MSLAW has to offer.

Rule #4 – Have Fun

- It may be hard to crack a smile while writing a memo about a serious civil or criminal matter, but give it try.  Then, internalize the fact that you’re one step closer to becoming a lawyer.    Em-brace the “bumps in the road,” and know that everything you learned today will serve you well in the future.

Blog Contributor,

Eddie Street

2L MSLAW

The Art of Networking and How Important it is to Master!

        Here we are, three months into our Fall 2020 semester! You should be very proud of yourself for working hard to get to where you are today. Good work! Keep going and before you know it, you will have your JD degree in your hand! This week, I want to focus on Networking. It is crucial for attorneys to master the art of networking. And networking starts in law school!

        Attorneys are known for mastering the art of advocating, writing, negotiating, and mediating, among other arts. One essential technique an attorney must practice is the art of networking. What is networking? Networking is the art of communicating, interacting, and connecting with others to grow oneself professionally and to excel to a higher level from where one was before. I like to think of networking as a skill a person should sharpen and learn to get better at as they grow. While some people are born with this skill and are natural charmers, others have to mold themselves and work towards being a person with great networking skills. I’m no professional, but I can tell you what I have learned so far in my life about networking and how it has helped me further my career in the field of law.

        Coming from a science background with a biology major in undergrad, I definitely had to sharpen my networking skills and involve myself in the field of law. The first step I took towards this transition was shadowing a lawyer in his law firm during the summer of 2018. It was such an exciting experience, very engaging, and very fun, even if I was just observing how the firm was run and what cases were being handled. How did I get this set up? Through a friend! It turned out a random guy I met, who is now a great friend of mine, in the library of my undergraduate college was, at the time, switching his career from law to dental, which happened to be the same time I was trying to switch my career from dental to law. So he gave me the contact of his uncle, who is a lawyer, and I gave him the contact of my ex-employer, who is a dentist. I was able to get in touch with his uncle and visit his firm consistently over the summer while my friend took over my dental assisting job with my ex-employer! We were both happy and there’s one word which sums up this whole happy exchange: networking! This is just one example of the power of networking. 

         In order to network, I realized it is important to be confident, possess people skills, be polite, respectful, and not be greedy. When you are seeking an opportunity, try to do it in a way which will benefit others, like what happened between my friend and I – quid pro quo! I’ve learned that in life, nothing will be given to you, you have to seek it out, you have to knock on doors, you have to ask. If you have a goal of wanting an internship by the end of this year, then start networking NOW. Don’t be shy. Ask around, attend conferences, participate in webinars, engage in chats, connect with others online, or get in touch with MSLAW’s career services office. Remember, the something you have to give, while in law school, is free labor! Your quid pro quo is gaining critical experience and building your network. If you try your best, be your best, and do your best, then I have no doubt you will be able to network successfully and get what you’ve wanted.

        Another example of how I used my networking skills was when career fair day happened at MSLAW back in April a couple of years ago. I went into career fair day with one goal in mind: Land a job or an internship at a personal injury or medical malpractice law firm. I was very nervous, walking past the many tables with well-accomplished attorneys standing behind them. Despite how I was feeling on the inside, I made sure to keep a smile on my face and navigate my way through the many tables. I eventually found a firm which specialized in personal injury and medical malpractice. I thought, wow, this is my one chance. I introduced myself to the Attorney, asked about his firm, tried to find some common ground between us so our conversation would continue, I told him about my interest in the fields he’s specializing in, made sure to ask him questions, he handed me his card, and I said thank you and walked off onto the next table. I carried on with the day with that one firm in mind, knowing that I found my target. 

        That same evening, I emailed the attorney thanking him for his time and for explaining to me what his firm specializes in. He replied saying he was impressed with my interest in personal injury and malpractice law and offered me an internship position. I was thrilled and felt so blessed to have such a great opportunity. Just like that, I was able to accomplish my goal of landing an internship! I did not do anything special. What I did was be optimistic, keep a smile on my face, speak up about my interests, listen, remain polite, and thanked the attorney. These were simple actions and I know you are able to do the same, and even better! I want to end by saying that any goal you have in mind, as long as you go about accomplishing it with respect, passion, and focus, it can be attained. Do not doubt yourself, you have what it takes to attain what you want!

Do You Think Networking is Important? Where Have Your Networking Skills Led You? Comment Down Below!

Tips on How to Manage Your Valuable Time!

    Wow, can you believe that it is already October? I hope you have a beautiful week ahead and study hard! This week, I want to share some tips I’ve learned along the way that aid me with managing my time wisely. Hopefully this will be of a help to you. Please feel free comment down below and share with us any methods you practice!

    I used to be terrible at managing my time, throughout high school and college it was difficult for me to balance my school life with my social life. I would constantly be cancelling plans with my friends and pushing aside my social life all for one reason: because I had to study! It was terrible. My time management was poor and I found myself to have been easily distracted. I decided to make a change in that aspect of my life by practicing these five (5) methods below:

1.) Keep a Planner: The summer before starting law school, I purchased a planner and a fun, colorful pack of pens. I decided to start planning out what needed to be done when and even allotted time limits for myself. For example, I would allot 1 hour for workouts, 1 hour for reading, 30 minutes for eating, etc. I found this to be very helpful once I started school because I was able to pace myself with my case readings by allotting a certain time for the readings for each class. 

2.) Take Breaks: I started practicing one of the most crucial aspects to a person’s day: break time! I found that just taking a 5-minute break in between getting work done will refuel your brain and make you feel reenergized and ready to continue with work. I saw a huge difference in my efficiency after I implemented breaks into my schedule. Back in the day, I would just continuously study and be tired and frustrated, and found myself not getting anywhere besides wasting my time. Now all that is in the past!

3.) Start Your Day by Reading the News: I used to almost never read the news, terrible, I know. I just found it to be boring, depressing, and a waste of time. But then I realized that my ignorance of current events made me out dated! It was so silly to avoid the news when there are so many resources out there ready to feed you with information. I started making it a habit to read the news for at least 20 – 30 minutes a day. I found this to be so helpful because not only will it stimulate your brain, but also keep you informed about what is going on around you and in the world. Reading in the morning will help wake-up your brain and be ready for the day. Knowledge truly is power.

4.) Remove Distractions: I used to be guilty of picking up my phone every 10 minutes or so between studies just to scroll through social media and look at pictures and read captions/comments. I realized this was useless and all it did was make me feel bad that I wasn’t in Cancun at the moment and made me lose my valuable time. I started to keep my phone away from me while I studied and the difference is amazing! I’m able to focus more, be more efficient with my work, and started to really grasp contents which I’m sure I wouldn’t have grasped if I had just looked at a picture of a puppy on my phone just a minute ago. What I do is keep my charger on the opposite side of the room from where my study desk is, that way it forces me to keep my phone away from me and keep it charged when I am not using it. I then only get up and go get it during break time or when I am done with the task I wanted to finish within a certain time limit.  

5.) Reward Yourself: I never rewarded myself in the past and therefore, there was nothing to look forward to. I continued to just work and study and have my life revolve around my studies rather than maintaining a balance. It is crucial to make plans that will help you relax. Whether it be grabbing a cup of coffee with a friend, having a spa day, going to the beach, or booking a flight to Spain, do it! You work so hard, you are so driven, so who’s to say you don’t deserve a reward? Book that flight to Bali!

Comment Down Below the Ways You Manage Your Time. What Works for You?

(Your tips may be life-changing for others who read this post.)