In addition to obtaining six figure and seven figure results for its clients in many of its settlements and trials, Driscoll & Gibson has also been responsible for significant changes in the law of the Commonwealth of Massachusetts. Here are some of our accomplishments:
Santos v. Lumbermens Mutual Casualty Co., 408 Mass. 70 (1990)—In a case involving the tragic death of a four year old boy, who was run over and killed while riding a three wheel “big wheel” tricycle, Paul Driscoll convinced the Supreme Judicial Court of Massachusetts to declare that, under the language of the Massachusetts Personal Automobile Insurance Policy then in effect, three separate “persons” were entitled to be compensated—the boy’s estate, the boy’s father, and the boy’s mother—thereby tripling the amount of the recovery. The Supreme Judicial Court rejected the contention of Lumbermens Mutual Casualty Company that, because one administrator brings an action under the wrongful death statute in behalf of all those parties entitled to be compensated, only one “person” can be considered “injured” under its automobile insurance policy. As a direct response to Paul’s appellate victory, the Insurance Commissioner of Massachusetts subsequently changed the policy definition of “injured person” in Massachusetts automobile insurance policies to prohibit such a multiplier effect with respect to future wrongful death claims.
Judge v. Carrai, 77 Mass. App. Ct. 803 (2010)—Don Gibson successfully persuaded the Appeals Court of Massachusetts to expand the duty of a property owner to guests injured on the property owner’s premises in the property owner’s presence. In this case, a guest was struck in the head by a batted ball while she was seated on a deck in the back yard. Although property owners are generally not responsible for the acts of third parties, here the defendant property owners owned the ball and the bat, had the ability to control their use, and knew their use created a risk to persons on the deck, including the fact that one batted ball had already landed on the roof. As a result of Don’s oral argument and brief, the Appeals Court adopted Section 318 of the Restatement (Second) of Torts:
If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from conducting himself as to create an unreasonable risk of bodily harm to them, if the actor(a) knows or has reason to know that he has the ability to control the third person, and
(b) knows or should know of the necessity and opportunity for exercising such control.