Tuesday, July 27, 2010

Snow and ice in July

The SJC has released a decision changing the way liability is measured for clearing snow and ice on real property. The longstanding rule in Massachusetts, in which a property owner is not liable in tort for failing to remove a natural accumulation of snow and ice, was unique in this country, and was referred to as the "Massachusetts rule." There has been a distinction between natural and unnatural accumulations of snow, as well a distinctions between duty to different types of parties, such as tenants, invitees, licensees and trespassers.
Now in keeping with common and statutory law across the country, property owners are now responsible for removal of unsafe conditions.
"We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to "act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk." Young v. Garwacki, 380 Mass. 162... This introduces no special burden on property owners. If a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a railing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger..."
To read the case, look for Papadopoulos vs. Target Corporation.

Thursday, July 22, 2010

Serving Self-Represented Litigants Guide Provides Welcome Permission to Help

The Trial Court's new Serving the Self-Represented Litigant: A Guide By and For Massachusetts Court Staff does a great job of explaining what court staff may and may not do. Often court employees had been so leery of providing legal advice that they were reluctant to provide much guidance at all, particularly to the self-represented. This publication provides specific guidance on what is and isn't OK, and should free staff to answer some basic questions, particularly about forms. It says, for example:

"Providing court forms and instructions on how to fill out those forms is an important part of the job of court staff...Court staff may answer questions about how to complete court forms, including where to write particular types of information, and may explain what unfamiliar legal terms mean.Court staff also can check forms for completeness and provide information about specific problems on the form and how to resolve them."

That stands in marked contrast to activities that are not permissible for court staff, such as "Advising a court user whether to bring a particular case or problem before the court, Suggesting which of several procedures or options a court user should follow, " and the like.

This understanding of the important role of court staff is exciting and should improve the interaction for both the self-represented litigant and the staff person who is now free to provide the reasonable assistance needed.

Thursday, July 08, 2010

Fall River Law Library on the Move

The Fall River Law Library is closed for the move to the new Fall River Justice Center at 186 South Main Street in Fall River. The library will re-open in the new location on July 26. In the meantime, nearby libraries in Taunton and New Bedford are open and happy to serve you!

Wednesday, July 07, 2010

Lead Paint Rules Tightened; Training Deadline Eased

Yesterday, amendments (75 FR 24802-24819) to the EPA's Lead Renovation Repair and Painting Program regulations (40 CFR 745) went into effect. These amendments close the "opt-out" provision, which had allowed homeowners to opt out of new safety requirements if there were no children under 6 or pregnant women in the home. There is no longer an opt-out option, and all pre-1978 homes are now covered.

The regulations also have strict training and certification requirements, but the EPA has eased the training deadline somewhat. In a press release yesterday, the agency said:
"Because of concern that contractors in some areas may be having difficulty accessing training classes, EPA recently announced that it is providing renovation firms and workers additional time to obtain training and certifications to comply with the new lead rules. EPA will not take enforcement action for violations of the rule’s firm certification requirement until October 1, 2010, and will not enforce certification requirements against individual renovation workers if they apply to enroll in certified renovator classes by September 30, 2010 and complete the training by December 31, 2010."

See our Law About Lead Poisoning and Control for more information on state and federal requirements.

Alcohol Sales Can Begin at 10 on Sundays

A provision of the Massachusetts state budget passed at the end of June (H4800) amended MGL c.138, s.33 and s.33B to allow liquor sales at restaurants to begin at 10 a.m. on Sundays, effective immediately. Previously, sales were generally prohibited before noon, although s.33B did allow sales to begin at 11 with permission of the town. According to the Boston Globe, "[Phantom Gourmet's Dave] Andelman said the law will spark a booming brunch culture and especially help restaurants near Fenway Park and Gillette Stadium before 1 p.m. games."

Arizona also just passed amended their law regarding liquor sales on Sundays, but in their case, the new law (HB2123) allows sales to begin at 6 a.m., rather than 10 a.m. According to a news report, sports bars are among those happiest with the change. "It's amazing that when we open at 9 a.m. (in August), we'll be able to serve alcohol," said Doug Collins, owner and operator of The Tavern on Mill. "Once you get into football season, some games start early, so you have people in here waiting for the 10 o'clock hour to strike."

Thursday, July 01, 2010

Public's Right to Free Access to Court Decisions

From Nash v. Lathrop, 142 Mass. 29 (1886):

"The decisions and opinions of the justices are the authorized expositions and interpretations of the laws which are binding upon all the citizens. They declare the unwritten law, and construe and declare the meaning of the statutes. Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices. Such opinions stand, upon principle, on substantially the same footing as the statutes enacted by the Legislature.

"It can hardly be contended that it would be within the constitutional power of the Legislature to enact that the statutes and opinions should not be made known to the public. It is its duty to provide for promulgating them..."

Update, Postponed: Older Oil Burners Must be Upgraded to Prevent Leaks

A law enacted over a year ago (St. 2008, c.453) requires homeowners with oil burners installed before 1990 to make a small change to their systems to prevent leaks. Originally, the law was to take effect July 1, 2010. On June 24, 2010, the law was amended, so that while insurance coverage requirements are still effective July 1, 2010, the requirements for homeowners don't take effect until September 30, 2011.

According to the Mass. DEP, under the Homeowner Oil Heating System Upgrade and Insurance Law,  "Owners of 1- to 4-unit residences that are heated with oil must already have or install an oil safety valve or an oil supply line with a protective sleeve...  Installation of these devices must be performed by a licensed oil burner technician."  "It is important to note that heating oil systems installed on or after January 1, 1990 most likely are already in compliance because state fire codes implemented these requirements on new installations at that time."

The good news is that the law also requires insurers who offer homeowner's insurance to also offer coverage for oil leaks to those who have certified that they have made the repairs or are exempt from the requirement.

More information, including a diagram of necessary repairs, is available at the Mass. Department of Environmental Protection site.

New Lead Paint Regulations

The Division of Occupational Safety has filed amendments to 455 CMR 22 to become effective July 9, 2010. "These amendments, which establish safety standards for renovation, repair and painting work that disturbs lead paint in target housing and child-occupied facilities built before 1978, parallel similar federal EPA requirements that became effective on April 22, 2010 under the “Renovation, Repair and Painting Rule” (RRP Rule), 40 CFR 745.80 – 745.92...   At this time, EPA has the exclusive authority to administer and enforce the RRP Rule.  DOS will be filing an application shortly with EPA, seeking authorization to administer and enforce the lead safety standards for renovation, repair and painting work set forth in 454 CMR 22.00, in lieu of the federal standard being enforced by EPA in Massachusetts.  DOS will request that this authorization be approved as close as possible to July 9, 2010, to coincide with the effective date of the amendments to 454 CMR 22.00."

More information on lead paint regulation is available at Mass. Law About Lead Poisoning and Control.