- $900,000 for officer injured at poorly planned road paving detail
- $400,000 for officer struck by heavy machinery at utility detail
- $325,000 for officer injured by negligent heroin addict during overdose rescue
Congratulations to Attorney Zachary M. Ballin for being named a Super Lawyer’s Rising Star for 2018. This is his second year in a row named to the list. It is an honor to be named among the Rising Stars, which includes no more than 2.5% of the state’s attorneys. Here are some of Attorney Ballin’s recent results:
Around 7:30 pm, wearing only his underwear, Raymond Bishop is high on mushrooms and out of control at his family home. Raymond’s parents call the police and go through the house collecting car keys; however, there is still a set of keys in his mother’s Jeep. Raymond runs outside and past the responding police officer, Andrew Force.
Raymond enters the unlocked Jeep through the front passenger door, crawls over to the driver’s seat, and starts the engine. He puts the car in reverse and accelerates down the driveway, catching Officer Force with the opened passenger door. The force of the impact pins Officer Force’s right shoulder in between the door and the side of a trailer on the Bishops’ property. Raymond backs out of the driveway, across the road, and into the woods, dislodging large rocks and ripping out several tree stumps along the way. The Jeep finally comes to rest atop a stone wall. Raymond is arrested and later found guilty of reckless operation, operating under the influence, and resisting arrest.
As for Officer Force, along with a traumatic hematoma to his right forearm, he sustains a right shoulder labrum tear, which requires surgical repair, physical therapy, and steroid injections. In all, Officer Force’s injuries keep him out of work for nine months.
We submitted a claim for Officer Force’s damages against Raymond with the Bishops’ auto insurer, which, in turn, denied the claim. The insurer’s investigation revealed that Raymond’s parents verbally forbid him from driving. Therefore, the denial was based on Raymond’s non-permissive use of his parents’ Jeep. We sent our own private investigator to the Bishops’ home and our investigator secured an interview with Raymond’s mother.
As it turns out, the question whether Raymond had permission to drive the Jeep was not as simple as the Bishops’ insurer made it seem. Raymond’s mother told our investigator that Raymond had permission to use the family vehicles at any time. She added that the insurer’s investigator had framed his questions in such a way that she had to answer differently than she intended. For example, she was asked if Raymond was in the right frame of mind to drive. And she was asked if she specifically gave Raymond permission to drive. The answer to those questions clearly was ‘no’.
We considered our options: 1) File a lawsuit and secure a judgment against Raymond. Then, to collect on the judgment, file a second lawsuit against the Bishops’ auto insurer, which would turn on whether we could convince a jury that Raymond’s use of the Jeep was permissive; or 2) Drop the claim against Raymond and pursue an Uninsured claim with Officer Force’s own auto insurer. In addition to the time and risk inherent with litigation, there were practical money considerations. Given the amount of the Town’s Ch. 41 lien against third-party recoveries and the anticipated costs of lengthy litigation, Officer Force would likely clear more money from a first-party claim against his own auto insurance than he might get years in the future through litigation against Raymond and the Bishops’ insurer.
Officer Force ultimately decided to drop the claim against Raymond and we obtained a $100,000 policy limit settlement with his auto insurer under his coverage for injuries caused by Uninsured autos. Fortunately, Officer Force had this Uninsured coverage. It is very important that our public safety officers understand that their personal auto insurance policies protect them as pedestrians, when traveling in someone else’s vehicle, or even while in a police cruiser. CLICK HERE to learn more.
– Jared Ballin, Esq.
In order to protect the privacy of the injured police officer and witnesses, all names have been changed. Any resemblance to names of real persons, past or present, is merely coincidental and not intended. The injured officer agreed to have this article published in order that public safety officers around the Commonwealth be better educated about their legal rights to compensation when injured on duty.
In some cases we handle, seemingly clear instances of negligence escalate into complex legal battles as defendants and insurers look for any way to avoid compensating an injured police officer. The case of Jessica Rondinelli vs. Emma Wiley and JMRS Restaurant, Inc., Essex Superior Court Civil Action No. 2016CV01298 was no different.
On a Saturday night one recent summer, a nineteen-year-old girl walked into a Salem bar owned by JMRS Restaurant, where the underage girl was a regular. She ordered three Long Island iced teas, shots of tequila, and two sangrias. Under cross examination the bar’s manager admitted this was the equivalent of serving her three-quarters of a liquor bottle. We also discovered the bar admitted at least nine other underage kids that night. As closing time approached, the intoxicated girl repeatedly pushed and argued with another underage kid over the course of five minutes before smacking him, smashing a glass on the floor, and storming out of the bar. On her way out, she pushed a second underage kid. Once outside, she fought with two more underage customers from the bar, which finally called the police to stop the disturbance.
Salem officers arrived while the bar ejected its customers onto the street who formed an eager crowd. As police gained control of the intoxicated girl, the crowd cajoled her to resist. While cuffed and seated in the cruiser she lunged and bit into the officer’s ear, growled, and shook her head. The officer pried the girl off, but a piece of the officer’s ear was lost.
We filed suit on behalf of the injured officer against the girl and the bar which got her intoxicated. The bar tried to get the case thrown out of court on a motion for summary judgment. The bar argued there was no need for a trial. The bar urged the Court to conclude as a matter of law it is only responsible for harm caused by an overserved customer to the general public, arguing responding officers are excluded from that group. Further, the bar stated that since it is supposed to call the police to respond to such an event, it should not be held liable for injury to an officer during that response. We argued when the bar chose to overserve a patron to the point a disturbance was created, then it was responsible to anyone, including police, who respond to stop the disturbance and save others from getting hurt. The Court agreed that Massachusetts statutes and case law confirm a person or business who create a dangerous situation can be liable for injuries to responding police officers who are there to rescue people from a dangerous situation which the person or business created. The judge ruled in our favor upholding the officer’s right to make a claim against the bar for her injuries.
Massachusetts statutes and case law interpreting them make clear that Massachusetts officers do not lose rights to pursue compensation for their injuries by putting on a badge. Officers and emergency responders are empowered to make claims against responsible third parties by our legislature when they are injured on the job. This law applies equally in Massachusetts to professional rescuers like police officers and firefighters who are hurt helping end dangerous situations people and businesses create.
When a bar chooses to break the law over-serving a teenager who then injures a responding cop instead of a customer, there is no free pass just because the bar calls the police to stop the disturbance. As for the bar’s claim that the injury to the police officer by the biting teenager was not foreseeable, the Court agreed with us. The Court stated “…that the risk of an intoxicated patron injuring another, or a rescuer, in a fight, is foreseeable as drunken brawls are anything but uncommon”. Winning this legal battle was one major component that lead to a significant settlement for the injured officer who is grateful to have this case successfully resolved.
- Zachary M. Ballin, Esq.
This case involves an all-too familiar scenario – the police are forced to handle a disturbed and out-of-control individual resulting in an injured officer.
Drivers swerve around a young man walking around in a busy tunnel. Shirtless and covered in soot, the young man is in obvious need of help. A passing officer puts his lights on and parks in the travel lane, protecting the man from oncoming traffic. The officer tries to move the young man to safety. The young man refuses.
Additional officers respond and after some cajoling, the young man briefly sits on the curb. Officer Sampson stands between the young man and passing vehicles. Suddenly, the young man jumps up and punches Officer Sampson in the mouth, splitting Officer Sampson’s upper lip. Knocked unconscious, Officer Sampson lands hard on the pavement. Officer Sampson awakes in a pool of his own blood. Nevertheless, Officer Sampson immediately joins the struggle to control the young man. Officer Sampson’s use of pepper spray ultimately forces the young man to relent.
Officer Sampson recovered from his physical injuries and returned to duty. He was later honored by his department. The young man was found not criminally responsible for his assault on Officer Sampson due to a lack of mental capacity.
It is clear PTSD affects first responders at a significant rate. Officer Sampson became increasingly fearful after learning a fellow officer and personal friend of his was violently injured in near identical circumstances nearly a year-to-the-day from his own attack. Officer Sampson showed classic signs of PTSD including recurrent nightmares and sudden mood changes like unexplained rage.
The ensuing legal battle was complicated and centered around the question of whether an individual who was not criminally responsible for his actions owed any duty to the officer he attacked and whether he could be held civilly responsible. In addition, the insurance company that insured the young man initially refused to pay the claim, arguing that the young man intentionally injured the officer.
Critical to this case was taking the young man’s father through a detailed deposition. The father testified that his son had gone off his medication three days prior to the attack. Arguing this case then became a delicate balance between showing two things: First, that the young man had sufficient understanding of his actions in negligently failing to take his medication; and second, that the young man negligently failed to use care in dealing with Officer Sampson, albeit without the capacity to understand the consequences of punching him. In the end, we were successful and recovered the maximum available insurance for Officer Sampson and his family, $300,000.
It is an honor and privilege to represent those who protect and serve, and we have worked with officers over the years who have suffered PTSD. If you or anyone you know may be dealing with such symptoms, please seek support. There are many resources available.
- Zachary M. Ballin, Esq.
In order to protect the privacy of the injured officer and witnesses, all names have been changed. Any resemblance to names of real persons, past or present, is merely coincidental and not intended. The injured officer agreed to have this article published in order that police officers around the Commonwealth be better educated about PTSD and their legal rights to compensation when injured.
Randall Jones spends the day drinking and gambling at the casino. Just after midnight, Mr. Jones starts his drive home on a local highway. Without warning, Mr. Jones suddenly attempts a left-hand turn directly across the path of a vehicle travelling toward him from the opposite direction with a green light. Mr. Jones crashes into the oncoming vehicle. That vehicle happened to be a police cruiser responding to an emergency.
Additional police respond. They test Mr. Jones’ Blood Alcohol Content. Mr. Jones’ BAC is over twice the legal limit. Mr. Jones is arrested on charges for Operating Under the Influence of alcohol as well as OUI of drugs. Apparently, Mr. Jones had also been taking prescription medication, which carried a warning for drowsiness side effects.
The officer driving the cruiser sustained injuries to his back and right arm. Following the crash, the officer was unable to work for two months and had nearly three months of physical therapy. The officer’s greatest concern was this crash may have affected his back where he previously had surgery. Fortunately, the collision did not affect the officer’s prior back surgery. Even if that were the case, though, the officer would have been entitled to fair compensation for any exacerbation of that pre-existing condition. While many people worry that hurting the same body part previously injured may not be compensable, the law is clear – you are entitled to compensation for however a prior injury is made worse.
By forcefully arguing the extreme danger the drunk driver posed to the community, I was able to obtain a $47,000 settlement for the officer from Mr. Jones’ insurance company. The settlement amount was significant enough to repay all the officer’s lost wages, including missed overtime and details, plus more.
- Attorney Richard Miller
Attorney Richard Miller is a principal at Ballin & Associates. He began at Ballin & Associates as a law clerk while attending law school and joined the firm in 1992. He has represented clients in all types of personal injury claims and has litigated cases in both District and Superior Courts.
A police officer injured on duty can make a valuable claim against a negligent third party, even when the current injury involves a body part injured or operated on in the past or has been chronically problematic. It is not unusual for an officer to re-injure a back, shoulder, knee, wrist, or ankle during an incident on duty. Many officers have dealt with lower back pain and received treatment off and on over the years, only to have it aggravated in a new cruiser collision or in a struggle with a suspect. All of these injured officers have valuable claims which they can make against the wrongdoer from the new incident. These claims compensate the injured officer for losses which include lost overtime and detail pay, pain and suffering, and scarring.
We have successfully represented officers with prior injuries, including: an officer who required surgery for a knee after chasing a suspect through a mall, even though the officer suffered prior knee injuries; an officer who injured his back in a cruiser accident, even though he was then under the care of a neurosurgeon for his lower back; an officer who ruptured an Achilles tendon chasing a suspect, when the officer already suffered from a strained Achilles tendon; and an officer who developed the symptoms of multiple sclerosis, which had been dormant prior to his fall on a wet slippery floor.
The law protecting citizens in Massachusetts which provides for the compensation of conditions which are aggravated does not differentiate between employment categories. The law applies with equal vigor to police officers injured on duty, as it would to any other employee injured at work. Ever since the seminal case of Wallace v. Ludwig 292 Mass 251 (1935), the law in Massachusetts has been that a negligent actor is liable for the aggravation of pre-existing conditions, regardless of how bad the condition was in the past or was at the time of the new incident. In Massachusetts, it is well established the Defendant is liable for all the damages sustained by an injured officer even if that officer was “more susceptible to the particular form of injury” and even if the injuries would have been less severe if the trauma was inflicted on some other person. Webber v. Old Colony St. Ry. Co., 210 Mass. 432, 442 (1912).
Many lawyers are troubled by the pre-existing condition. We are not. If anything, it helps us prove how the recent trauma resulted in the current injured condition.
It is critical to a successful case that the injured officer:
- Attorney Steven Ballin
The author, Steven Ballin, is an attorney and founder of the law firm, Ballin & Associates, LLC, which specializes in representing injured officers and their families. Attorney Ballin has practiced in the field of personal injury law for over 35 years and along with other attorneys in his firm, has successfully represented injured police officers in over 200 departments throughout Massachusetts. Attorney Ballin is available for free and confidential consultation and case review. He can be reached by telephone at 508-543-3700, or by e-mail at SBallin@PoliceInjury.com. Copyright, Steven M. Ballin, 2018
During the morning of August 23, 2013, a gas delivery driver for Acme Propane was driving a box truck loaded with propane cylinders. It was a dry, clear day. He drove past orange safety signs alerting him that he was approaching a work zone then drove over two orange cones. He drove off the road and smashed straight into the back of a parked vehicle within the work zone, totaling it. Initially, the police cited him for his negligence. Sitting inside that parked vehicle was Officer Rogers. The officer’s non-belted body was whipped backward and forward, causing nearly a year’s worth of disabling back pain requiring injections and intensive therapy to return him to duty. During that time, a defense was mounted by the truck driver and his employer, a national company, that wrenched layers of complication onto what first appeared to be a cut and dry case.
After the crash, the truck driver was transported by ambulance to the hospital. In the ambulance and at the hospital, he reported he had an unexpected coughing fit, then passed out before the crash. If this was true, it would be a complete defense to any case against him and his employer under the sudden incapacitation doctrine, and Officer Rogers could not recover a penny. The hospital doctors diagnosed the truck driver with pneumonia causing vasovagal syncope, which confirms he coughed so hard he passed out. The truck driver’s doctor corroborated this diagnosis when he followed up. The medical report of these diagnoses was sent to the police department which had cited the truck driver. The department rescinded the citation. Undeterred, we sued the truck driver and the gas company.
Discovery focused on proving the lie. Critical to this case, as with so many, were photographs taken at the scene by responding officers capturing small skid marks left just behind the rear tires of the gas truck. This raised the specter that the driver had attempted to stop just prior to striking Officer Roger’s car rather than being unconscious during the crash. However, the possibility remained that the marks were made by the immediate deceleration of the truck upon impact with a stopped car. Next, we confirmed with Officer Rogers and an auxiliary officer who was first on scene that the truck driver made no mention of losing consciousness prior to the crash. Further, the truck driver himself, after traversing a couple hundred feet while unconscious in a truck filled with gas cylinders, made no inquiry as to any harm he had done and expressed no concern.
Finally, the geometry of the roadway proved crucial. Through several data points, we discredited the truck driver’s account of losing consciousness prior to impact. Since there was a left-hand bend in the road prior to the crash scene, and the truck made a flush impact with the back of the parked car, it was clear the gas truck navigated that left turn and then straightened out before impact. Had he passed out at some point during the turn, as he initially claimed, he would have ended up in the woods instead. This point proved sufficient to convince the parties involved that our case would ultimately prevail, regardless of what the truck driver claimed, and what the doctors believed.
After lengthy litigation proceedings this case resolved at mediation for $300,000.00. This completely compensated Officer Rogers for every penny of overtime and detail pay he missed while he was out of work and more. It was a privilege working with Officer Rogers to reach a just result for his case.
- Zachary M. Ballin, Esq.
Congratulations to Attorney Zachary Ballin for being named a Super Lawyer’s Rising Star for 2017. It is an honor to be named among the Rising Stars which includes no more than 2.5% of the state’s attorneys. Here are some of Attorney Ballin’s recent results:
Erica DiMaio suddenly veers over double yellow lines on Main Street. Three eyewitnesses watch in horror as Ms. DiMaio violently crashes head on into a police cruiser operated by Officer Avery.
The Fire Department is already on scene by the time Officer Avery comes to. He wakes up to the sounds of firefighters using a reciprocating saw to detach the mangled driver door from the cruiser. Freed from the cruiser, Officer Avery is taken by helicopter to the hospital where he would remain for over two weeks.
Officer Avery’s injuries were numerous: concussion, fractured left arm and leg, five fractured ribs, and multiple lacerations. The left arm fracture required three procedures, including a surgery to implant permanent hardware. His road to recovery included extensive therapy. Despite continuing symptoms in his arms and legs, Officer Avery worked diligently with his therapists to regain strength and motion. Just shy of nine months after the crash, Officer Avery was cleared for a return to work. Officer Avery surprised everyone. He pushed his doctors to clear his return long before many thought he would be medically able. Officer Avery’s doctors and therapists documented his dedicated efforts towards his own recovery as well as his desire to return to work.
We met Officer Avery while he was still in the hospital. He expressed his good fortune to have survived this horrendous crash. However, he stressed about how he would support his family. As a ‘special’ officer, Officer Avery works part time for his municipality. Not only was he too injured to work as a police officer, he could not resume his regular occupation.
We decided to feature Officer Avery’s case not just for the monetary result, but also to inform special, reserve and part time officers of certain injury-on-duty benefits, which may be available to them. Like many police officers and firefighters working on a ‘special’, reserve or part time designation, Officer Avery relied on a second, regular occupation to support his family.
Many special officers and part time officers are unaware that Massachusetts law provides protection for special officers like Mr. Avery who are unable to work their regular occupation because of an injury-on-duty. In most circumstances, M.G.L. Chapter 32 §85H affords compensation equivalent to the average weekly pay of a first-year public safety officer while the officer is unable to work their regular occupation because of the injured-on-duty. We have found several municipalities to be unaware of this provision. This municipality was no exception.
We worked with Officer Avery’s municipality to ensure these benefits were made available to Officer Avery for the entire period he was unable to work his regular occupation. These injury-on-duty benefits helped Officer Avery survive financially while he was out of work rehabbing from his injuries. As for Officer Avery’s injury claim against Ms. DiMaio, we secured a ‘policy limit’ settlement with her insurance company for $500,000 after holding steadfast in our refusal to accept anything less. And we did all this without ever filing a lawsuit.
If you are a reserve, special or part time officer injured-on-duty and cannot return to your regular occupation, like Officer Avery, you too may be able to make a claim for full and fair compensation and receive full injury-on-duty wage benefits while you recover from your injuries.
– Jared N. Ballin, Esq. & Steven M. Ballin, Esq.
A contractor’s bucket truck is missing a piece of safety equipment – a fiberglass guard that keeps debris away from the hand controls in the bucket. Nevertheless, the contractor lends the bucket truck to a tree-cutting company.
A lifetime arborist has a working interview with the tree cutting company, which requires him to use the bucket truck to prune trees. After a sixty-mile drive to the worksite, he points out the missing control guard. The worker is given an ultimatum: go up in the bucket truck or go home. Hoping to secure a full-time job so he can support his family, he grabs his chainsaw and gets in the bucket truck.
While pruning a tree, a branch falls from a neighboring tree and lands on the controls. The bucket immediately starts to move and takes a path towards the tree he is working on. With his chainsaw in his right hand, the worker fights with his left to free the branch and regain control of the bucket. The bucket easily snaps through a branch and careens toward the trunk of the tree, smashing the worker’s left wrist in the process. Over the coming months, the worker required surgery to repair his wrist. The worker attempted a return to his trade, but he was unable to safely operate a chainsaw. He soon came to realize he could no longer work up in the trees.
I filed a lawsuit on the worker’s behalf against the contractor. The contractor claimed the whereabouts of the bucket truck were unknown as it been sold about six months after the incident. The contractor also claimed to have no clue whether the control guard was missing or, for that matter, what a control guard even was. That said, the contractor blamed the tree-cutting company for using the bucket truck without the control guard in place. As for the worker, the contractor blamed him for the same reason. The contractor even went as far to say that the control guard would not have protected the worker anyway.
Suffice it to say, the contractor was shocked to see photographs our private investigator took of the “missing” bucket truck, which the contractor sold six months after the incident. Sure enough, the control guard was still missing. Even worse, imagine the contractor’s shock when we discovered a letter it and the tree-cutting company signed ten days before this incident. This letter acknowledged, in part, that the control guard was missing.
Undeterred, the contractor testified during the trial that it did not know the control guard was missing and that it never read the letter. As to the letter, the contractor claimed that it was actually written years after the incident and then back-dated. In the end, the jury saw the simple truth - the contractor knew its bucket truck was missing the control guard, but lent it out anyway to a company that lifts workers high in the air with chainsaws.
After years of persistent, dogged litigation, the jury delivered the highest verdict Bristol County has seen for a non-death case in years: $385,000 including $10,000 for the worker’s wife’s loss of consortium claim.
- Zachary M. Ballin, Esq.