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.

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:

• inform medical providers, such as emergency room and primary care physicians, about the prior condition;
• describe how the condition is different now than it was before the new injury. For example:  the degree of the pain, how long it lasts, where it is located, how often it appears, the last time it bothered the officer prior to the new incident, etc.; and
• consult with us early on (We work on a contingent fee basis. This means the injured officer pays for our legal services and expenses at the end of the case and pays nothing in the off chance we are unable to collect money on their claim).

Our lives are changing and becoming ever more interconnected through the now ever-present camera.  Yet the basic fundamentals and needs of our everyday lives are unchanged.  While safety and protection will never cease to top the list of our necessities, there are those who wish to sensationalize any individual incident involving an officer into an indictment of all those who surround us in every minute of our lives ready to lay down the ultimate sacrifice to save someone else.  Blue lives do matter if you value your own.

​At Ballin & Associates it is our privilege to work day in and day out to represent the rights of those who protect and serve.  We wish now to highlight the heroic acts common to their profession, but all too often glossed over or ignored by the press.

On March 12, 2016, after a long night of drinking heavily, Erik McBeth gets into his car and onto the LeeRoy Selmon Expressway in Tampa, Florida.  Erik McBeth is driving on the wrong side of the road.  While most of Tampa’s residents are sound asleep at home, Hillsboro County Deputy John Kotfila patrols the Selmon Expressway.  Deputy Kotfila sees an SUV barreling towards a car directly in front of his cruiser.  There are no guidelines for this situation.  There is no training.  There is only the character of the person behind the badge.

Sarah Geren is driving the car in front of Deputy Kotfila.  Her boyfriend is in the front passenger seat.  She desperately flashes her lights at the SUV.  Then, at the last moment a cruiser speeds in front of her.  The cruiser swerves into the deadly path of the SUV, crashes into it, knocks it aside, and saves Sarah Geren’s life.  Deputy Kotfila, a third generation police officer and a Falmouth, Massachusetts native, will forever be remembered for this incredible, selfless act.

What causes a person, born like any of the rest of us, to grow up and one day act at a moment’s notice to take the place of a stranger knowing it means certain death?  Please take a moment to reflect on what it means to wear a badge.  We are grateful for all those who do.

*This article is the first installment in our Mass Heroes series.  Nominations for Mass Heroes can be submitted via email byclicking here.

– Zachary M. Ballin, Esq.

This past December, the Massachusetts Supreme Judicial Court approved a statute that expands the time limit to bring lawsuits for child sex abuse.
This case arose out of a lawsuit by a woman who had been sexually abused by her uncle for many years when she was a child during the 1970’s. In the late 1980’s, she came to understand that she had been sexually abused, and that the sexual abuse had caused her serious, permanent mental injuries. She sued the uncle for civil damages in 2012, but a lower court judge dismissed the case, because the statute of limitations, which was three years at that time, had expired back in the early 1990’s.

In 2014, the Mass. legislature changed the law, extending the statute of limitations for civil lawsuits for child sex abuse from three years to 35 years, in recognition of the fact that victims of child sexual abuse often do not realize that they had been abused until many years after the abuse has ended.

The question in this case was whether the change in the law was retroactive – did the change in the law “revive” the woman’s claim against her uncle, even though her case had already been dismissed by the lower court?

The Supreme Judicial Court said yes, the new law was retroactive, and the woman could now re-open the civil lawsuit against her uncle. It was constitutional for the Legislature to make this change in the law retroactive, because “there is a strong interest and a well-established community consensus in favor of protecting children from abuse.”
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– Paul Johnson, Esq.

Nurses enjoy an extremely high level of trust and respect, which is well-deserved. Unfortunately, this level of respect does not prevent nurses from having one of the highest rates of on-the-job injuries resulting from assaults.

One study published in 2014 found that about one-third of the nursing staff at a big city hospital had been physically assaulted within the past year. The study found that many of the injuries are caused by patients or their family members who are under the influence of alcohol or drugs, or who are undergoing withdrawal from alcohol or drugs. Just a few weeks ago, in September of 2015, one of the nation’s largest hospitals, the Bergen Regional Medical Center in New Jersey, was cited and fined by the federal Occupational Safety and Health Administration (OSHA) for failing to have adequate procedures in place to protect its employees, after eight separate attacks by violent patients within a three month period.

Nurses who are injured as a result of workplace attacks by patients have the right to be compensated for their injuries. Like all employees, nurses, who are assaulted and injured on the job, have the right to make a claim for workers compensation, just as they would with any other on-the-job injury.

In addition, it may be possible to pursue a claim against the patient or the family member who assaulted the nurse. In one reported case in Massachusetts, a visiting nurse recovered $145,000 from the husband of a patient after the husband assaulted the visiting nurse. The same legal principles that allowed this visiting nurse to recover would also allow a hospital-based nurse to recover for an assault.

Our firm has extensive experience in obtaining compensation for first responders such as police officers and fire fighters who are assaulted in the line of duty. The issues involved in obtaining a recovery for police officers and fire fighters in these situations are similar to the issues involved in obtaining a recovery for a nurse who has been the target of an on-the-job assault. If you know of a nurse who has been injured in an assault while at work, please have him or her contact us for an evaluation of the situation to determine whether we may be able to assist them in obtaining fair compensation for their injuries.

​– Paul Johnson, Esq.

Someone rear-ends you.  Now what?  You spend the next couple of months getting your neck and back taken care of by a couple different physicians.  Along the way you do not consider making a claim against The Other Guy’s Insurance Company, Inc. or calling a lawyer.  After all, you ‘don’t want to hurt the other driver, it wasn’t intentional’.  Or maybe you are just ‘not the type of person to make an insurance claim’.  But did you know that whether you make a claim or not, The Other Guy’s Insurance Company surcharges the other driver?  And what’s more is that they set aside money for future payment to you for a claim they assume you will make.  This is called setting a “reserve”.  You see, The Other Guy’s Insurance Company knows that it may owe you money.  So, they estimate a dollar amount equal to your harms and losses and they set that money aside for you.  If you make a successful claim, they give it to you.  If you do not make a claim, they give it to themselves and consider it profit.


We represent people harmed from all sorts of incidents: car crashes, house fires, defective products… the list goes on.  One thing that never changes, though, is that these people are worse off after their incident than they were before.  The idea behind an insurance company setting reserves and paying money for claims is to help get injured people back to where they were before their incidents.  There is nothing wrong with claiming money from a fund of money that an insurance company has reserved for you.  That is the reason why insurance companies pool our premium dollars into one, giant fund: To make you whole again.
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– Zachary M. Ballin, Esq.

Our clients often ask whether they will have to pay income taxes on the amounts we recover for them when they have been injured.  The answer is no.  Personal injury settlements and verdicts based on physical injuries are non-taxable.  The idea is that people receiving money from settlements and verdicts are not gaining anything as compared to how they were before they were injured.  The recovery is recognized by the IRS as a best attempt at making the person whole again.  Because of this, the IRS does not consider the recovery to be “taxable income”.

If the claim arises out of a physical injury to some part of your body, the entire settlement or verdict is non-taxable, even if it includes compensation for items like mental or emotional distress, medical bills, lost wages, and loss of future earning capacity.

Amounts recovered in some other kinds of lawsuits, like employment discrimination or wrongful termination, can be considered taxable income that must be reported to the IRS.  But any settlement or verdict that is based on a physical injury is non-taxable.

There is one exception to this rule.  If you took a medical expense deduction for any of the medical bills you incurred as result of the injury, then you have to report taxable income equal to the amount of the medical expense deduction you had previously taken. Click here for an IRS publication that covers this topic.

​– Paul Johnson, Esq.

FAQ: Should I increase the limits on all cars which I own?

Yes, we recommend you do and here is why.  Assume you own and insure two cars in your name. One car is insured with increased optional limits for Uninsured and Underinsured Motorist Coverages of $250,000 per person.  Your other car is only insured for the minimum $20,000 per person for each of these coverages.  Now assume you are injured by an Uninsured or Underinsured motorist while you drive the car with the minimum $20,000 per person limit.  You will be prevented from making a claim against the higher $250,000 limit on your other car.  In this example, you could only make a claim against the $20,000 of Uninsured or Underinsured Auto coverage on the car you were operating.

We first wrote about the different Parts of car insurance policies in our article Got “Full” Coverage.  Most people are surprised to learn that Uninsured and Underinsured coverages even exist under Parts 3 and 12 of their Massachusetts personal auto insurance policies.  This article is part of a recurring series about these little known Parts.  There are many complexities and nuances to fully understanding these coverages.  Email us with your own auto insurance questions – if you are not sure about something, chances are it may be a “Full” Coverage FAQ” to be answered in an upcoming issue.

​​- Steven M. Ballin, Esq.

A new bill signed into law by Governor Patrick this past August will not only permit Massachusetts lawyers to question jurors during the selection process, but also will allow attorneys to suggest a specific dollar amount for the jury’s verdict.

When prospective jurors are brought into a court room, they go through a process known as “voir dire” in which they are asked a series of questions about the case to identify conflicts of interest and remove biased jurors.  Up until now, it was the judge who asked all the questions and many judges did not dig too deep.  Often judges asked just enough questions to eliminate only the most obvious conflicts of interest – do you know the parties, or the lawyers, or any of the witnesses?

Now attorneys will get to ask the questions.  We know that there are some people in the jury pool who mistakenly believe that if they award any damages at all, insurance companies will raise rates across the board.  We know that some people think police officers and firefighters who are injured on the job should not be able to recover damages, because that is just part of their jobs.  We now have the ability to ask the right questions during voir dire to identify jurors who may be biased, and keep them off the jury.  The end result will be a better, fairer jury trial.

The new law also allows us to suggest a specific dollar amount to the jury for their verdict on damages.  Juries have great difficulty putting a dollar figure on things like pain, fear about the future, and losing the ability to do things someone used to be able to do.  We now have the ability to give juries guidance on translating these losses into a specific dollar amount.  Lawyers in most states have been able to do these things for years.  These two changes will help us as we work to bring just and fair compensation to our clients.

 - Paul Johnson, Esq.