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Category Archives: Personal Injury

Massachusetts Consumer Protection – Unfair and Deceptive Trade Practices

If you have ever felt that a business had used unfair or deceptive practices against you for personal gain and thought you had no recourse, you were wrong. Massachusetts and the United States prohibit the use of “unfair or deceptive” practices by a business. Each agency has created various consumer protection laws that seek to hold business accountable for these unfair and deceptive practices. The Federal Trade Commission regulates the wrongdoings at the federal level and the Attorney General’s Office of Consumer Protection regulates the practices at the state level.  Both of these regulatory agencies provide enforcement by the government to stop the practices and by the individual’s suit for damages.

In order to bring a consumer protection action, you must be the victim of unfair and deceptive acts that occur “in the conduct of trade or commerce.” This means that you must have been wronged by a business or a person who regularly sells the goods sold or regularly provides services sought.  Therefore, this does not cover private transactions between individuals. Such as the private sale of a used car or sale of old furniture, unless you can prove that they conduct sales of the like on a regular basis for profit.

An unfair or deceptive trade practice occurs when a seller acts unfairly to or deceives a buyer.  Yes, I know, this is a circular explanation, but the act is violated by simply that.  This means that any action by a business that is unfair or deceptive is unlawful. The statute specifically outlines some practices that are considered unfair or deceptive, such as: false advertising, misrepresentation, or deceptive pricing practices. However, if you have been wronged by a business and it is not clearly within the statute, you may still have a claim for damages if the act was unfair or deceptive.

If you feel that you are the victim of an unfair or deceptive trade practice, you should contact a lawyer who can help you fully analyze your situation. After review, you must deliver a 30-day demand letter to the merchant. This letter describes the harm you have suffered as the result of the merchant’s unfair or deceptive actions, how you want to be compensated or how you want to resolve the matter. The merchant has 30-days to respond to your offer in writing with an offer to settle.  You can find examples of these letters online through various Massachusetts agencies.

If the merchant fails to respond within the timeframe, you can proceed with a claim against the merchant. Also, if the merchant does respond and you feel that their offer is inadequate, you can proceed with filing your claim. Cases involving consumer protection matters are usually heard in the Small Claims Court, the District Court, the Housing Court, or the Superior Court. Please be aware that if the merchant does make an offer to settle and you reject it, if the court find that the original settlement was reasonable, you will be limited to the amount offered and will not be able to collect your attorney fees or costs of brining the lawsuit.

If a court finds that a merchant did not make an offer to settle or made an inadequate offer to settle, the court can grant the following if it finds that you had a valid claim: the court can award actual damages or $25.00, whichever is greater; an attorney fee; costs and fees; and between two to three times the damages if it find that the merchant’s conduct was “willful or knowing.” The whole purpose of the law is to put you in the same position you would be economically, had the merchant not breached the consumer protection law. Getting the two to three times damages only happens if you can prove that the merchant’s actions were “willful or knowing,” which can difficult.

In conclusion, if you have been wronged by a business, you are entitled to compensation. You should gather your evidence and seek the advice of counsel who will be able to organize and prepare you for what will happen next. Also, keep in mind that you may have a claim where a lawyer will represent you without a fee, as the court can grant an attorney fee as part of the judgment.

The Elimination of the “Natural” Accumulation Defense in Massachusetts Slip and Falls

Massachusetts has finally joined the other New England states and eliminated the long-held standard of “natural” and “unnatural” accumulations in determining landowner negligence in slip and falls caused by ice and snow.  In determining landowner negligence, liability would be assessed only by determining whether accumulation of snow and ice was a “natural” or “unnatural.” If the accumulation was a “natural” accumulation, the landowner was not liable for the resulting injury. If the accumulation was an unnatural accumulation, the landowner was responsible for the resulting injury. In Papadopoulos v. Target, 457 Mass. 368 (July 26, 2010), the Massachusetts Supreme Judicial Court abolished the long-held, “archaic” rule. The court ruled that the all landowners have a duty to “act as a reasonable person under all of the circumstances” and completely eliminated the distinction of “natural” and “unnatural” accumulations of snow and ice.

Under the old rule, the landowner had no obligation to remove or warn of “natural” accumulations of snow and Ice.  Now, however, the Supreme Judicial Court concludes that the standard of care in snow and ice cases should be no different than the standard of care owed by a landowner in any other premises liability action. This means that a landowner owes a duty to maintain its premises in a reasonably safe condition given the circumstances.

This decision does not create a new standard of care; rather, it seeks to apply the reasonable person standard to the existing rule. It does not change the need for the plaintiff to prove negligence, nor does it reduce the defense of comparative negligence. The main purpose is to make landowners responsible for making their property reasonably safe for lawful visitors, regardless of the source of danger, and whether the condition was an act of nature or an act of another person.

This makes the rule more uniform. It seeks to apply the same standard whether the condition occurred in rain, snow, summer, fall, whatever. The court states that “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 failing, 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.”

The court will now balance the expense of removing the snow and ice with the likelihood and seriousness of foreseeable harm to visitors, and consider the following:

  1. The amount of foot traffic to be anticipated on the property;
  2. The magnitude of the risk reasonably reared; and
  3. The burden and expense of snow and ice removal.

Although the standard that is applied to snow and ice slips and falls has changed, the rule that is applied to these matters is no different from what would be applied if an accident happened on a landowner’s property any other time.