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Announcing Bruce Bierhans as President, CEO and Board Co-Chair

Cape Parents: Are You Liable for Your Live In Childs' "Beer Party"?

Well...the economy is lousy, and your children are living at home into their 20's (thirties even?).  When they have a party at home where alcohol is served, are you liable if someone leaves the party and is injured, or injures or kills another? A recent Superior Court decision has limited potential liability in some respects, but may have enlarged it in others.

As reported in Massachusetts Lawyers Weekly, in Ryan v. Jones, Judge Gary V. Inge ruled that a parent that was out of state when her 26 year old daughter hosted a BYOB party at their home, could not be held liable under a negligence or social host theory. But, the judge also ruled that there may be liability when a social host exercises "control" over the alcohol, whether the host purchases the alcohol or not.

The defendants lived together in Billerica. When her mother was away in Maine, the daughter invited friends over for a BYOB party. When mom left, she took some wine with her, but left behind a bottle of vodka. The daughter bought a 6 or 12 pack of beer and told her friends to bring their own. Plaintiff Ryan was drinking at home when he received the invite. When he arrived, he saw guests adding the vodka to their drinks, even adding Klonopin to the drinks.  An argument ensued between Ryan and another guest, and Ryan was struck in the eye with a beer bottle and was hit in the mouth. His eye injury required surgery. Ryan sued the guest attacker, as well as mother and daughter.

The court ruled that  "For a social host to be liable for harm caused by a third party, there must be some type of control over the alcohol giving rise to a duty on the host's behalf. The mother had no such control over the alcohol that her adult daughter's friends drank, and, for this reason, she cannot be held liable for the plaintiff's injuries." The court further ruled that the daughter was in fact, the host, and could be held liable.

So: a) If parent buys the alcohol, they may be held liable; b) If parents don't buy the alcohol, but exercise "control" over the alcohol, they may be held liable; c) If parents bought the alcohol, but aren't at home, they're probably not liable...unless they know about the party and let it go on, particularly if minors might be present??

Best advice: Don't let the kids have the party.

Bruce

Community Health Centers DO Work!!!!

One of the great things about being an experienced lawyer is that organizations in your community ask you to become involved in activities that benefit the community. Over the years, I have truly been fortunate to have been able to help many local non profits in the arts and human services.

Perhaps my most challenging, as well as most rewarding experience has been that of serving as President and Chairman of Outer Cape Health Services for the past two years. During that time, we have experienced the redevelopment of our PTown facility, the renovation of our Wellfleet facility, the opening of a pharmacy in Wellfleet, opening of a new clinic in Harwich, and an expansion of all patient services. We have also enhanced our essential relationships with Beth Israel Deaconess (BIDMC) and Cape Cod Hospital, both of which have new, talented CEO's.

I often find that many people don't understand the full extent of services provided by CHC's to their respective  communities. Below is an excellent piece from today's Cape Cod Times, co authored by some health center CEO's, including our own Sally Deane.

Bruce

Community health centers work

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The following was submitted by Heidi Nelson, CEO of Duffy Health Center; Karen Gardner, CEO/executive director of the Community Health Center of Cape Cod; Sally Deane, CEO/executive director of Outer Cape Health Services; David Reidy, executive director of the Mid-Upper Cape Community Health Center and the Ellen Jones Community Dental Center; and Cynthia Mitchell, executive director of Island Health Care on Martha's Vineyard.

Patients receiving their annual check-ups at one of the Cape and Islands' five community health centers may be hundreds of miles from the halls of the U.S. Congress, but the way lawmakers decide the future of federal health care spending will likely have an immediate impact on their future.

Despite Sen. John Kerry's efforts, the recent failure of the deficit-cutting supercommittee means that once again lawmakers will be scrutinizing every federal program to stave off $1.2 trillion in automatic spending cuts that now have been triggered. This could include cuts to state Medicaid funds and cost-effective programs like community health centers.

Many residents who live in communities served by health centers are worried about what these changes will mean in tough economic times. They are low-income families, elderly or disabled Americans and children, many of whom depend on Medicaid as their source of affordable health coverage and their local community health center for access to primary and preventive health care.

On the Cape and Islands we serve more than 46,000 residents, providing nearly 200,000 visits each year. We have seen firsthand how health centers are a win across the board for patients, states, the federal government and communities. Community health centers are recognized as among the most successful federal health programs ever created, with thousands of studies documenting their quality care, ability to keep costs down for Medicaid and other insurers, and role in creating jobs in economically challenged communities.

Here in Massachusetts, health centers represent the largest primary care network in the state, serving nearly 800,000 people. Equally compelling, Massachusetts health centers care for 30 percent of the commonwealth's Medicaid patients at a cost of only 1.3 percent of total state Medicaid spending.

As the states and Congress grapple with how to mend the nation's health care system, we are proud of the fact that community health centers remain ahead of the curve, providing a time-tested, comprehensive approach to health care that saves money and improves health. According to a recent study by the George Washington University, health centers generate annual savings of $24 billion ($1,263 per person) as a result of reducing the rate of preventable hospitalizations, inpatient days and emergency room use across the health system. They also bring economic benefits to our communities, generating more than 10,000 jobs in Massachusetts and nearly 200,000 across the country.

Disruptive changes to Medicaid, as well as potential cuts to health centers, could not come at a worse time. Health centers are already stretching their budgets to care for more of the working poor, who are struggling to keep their jobs and health insurance, or have already lost one or both. What's more, harmful changes to Medicaid could also increase the costs borne by taxpayers as patients lose a regular source of primary care and turn to expensive emergency rooms as their only option for health care.

Likewise, Congress should be wary of deficit-cutting proposals that shift costs and provide more flexibility to states — but also run the risk of weakening the provision of basic medical care for which community health centers were created.

Yes, we must address the growing national debt as a nation. But now is the time to be thoughtful about investing our limited resources where they will do the most good. We cannot afford to break or endanger what is working well. Community health centers are proven local solutions for improving the health of millions of Americans while significantly reducing costs across our health system.

Isn't that the goal in the first place?

OUI's and Social Justice

A recent Boston Globe Spotlight report indicated that when defense lawyers try OUI cases before judges, rather than juries, the acquittal rate is over 85%. When tried before juries, the acquittal rate statewide is about 50%.

What does this tell us? Of course, as the article points out, there are acquittals that are unjustified, if not downright obscene in some cases. I have represented families of individuals that have been killed or severely injured as the result of drunk driving. As with all things, there is a likely reform needed here that  gives responsible judges the fact finding discretion they need, but does not handcuff them in making decisions.

I think the 50% jury acquittal rate also tells us something else. On many occasions, I have represented the wife or husband that went out to dinner, shared a bottle of wine, and were stopped on the way home. Depending upon weight, that individual may, or may not blow the .08 warranting per se intoxication in Massachusetts. Are all of these persons deserving of losing the thousands of dollars that accompany such a charge, along with the months of inconvenience; perhaps even the loss of a job? Have we criminalized the social cocktail or romantic evening out with our spouse or friends? I think people are troubled by this which is why the acquittal rate by juries still hovers around 50%. It's the"on any given day, that could be me" theory.

Another thought. In Massachusetts, for many years now, plaintiffs' in personal injury cases only have a 20% chance of winning at trial. In Barnstable County, it's closer to 10%. Are 9 out of every 10 cases lousy or frivilous cases? I'm aware of a couple of recent cases in Barnstable where plaintiffs hit in rear end collisions lost their cases. Should we reform our jury system to create a more level playing field for injured victims?

It is my hope that the Globe article does not create the hysteria that results in attempted reform that further criminalizes acceptable social behavior. That is not to say that the system does not need some fixing to insure safety on our roads from those that should not be driving. In politics these days, everyone seems to be on the far right or the far left. Whatever happened to a moderate approach? It will be interesting to watch this unfold.

Bruce

Strippers, Golden Bananas, Independent Contractors and Employees

" "This drive now would take Mr. Winthrop (and his Puritan Founders) past the defendant's business establishment, named The Golden Banana" which promises on it's website "gorgeous totally nude dancers". Once he and his fellow Puritans got over their culture shock, the issue in this case would strike them as rather obvious: strippers dancing at a strip club are performing within the usual course of business of the club.... As such, under Massachusetts law, the strippers, a/k/a exotic dancers are employees".

Above are the words of Judge Welch, a fine judge that I have tried before, who sits mostly on the north shore.

The issue of employee or independent contractor comes across my desk almost daily. Statute (MGL ch. 149, Section 148B(a)) and case law now recognize the "three prong test":

a) is the worker free from the "control" of the employer

b) are the services performed "outside" of the employers usual course of business;

c) is the individual customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

All three prongs must be met to establish a worker as an independent contractor rather than an employee.

In the case, Judge Welch granted Summary Judgment on the issue of their classification as employees.

Wrongful designation of employee status can result in substantial penalties under the Massachusetts Wage Act. So...if you are an employer, Puritan or liberal free thinker, beware of what lawyers are now commonly referring to as the "strippers rule". You could be left with your pants down.

Bruce