Costa v. Boston Red Sox, 61 Mass.App.Ct. 299 (2004).
Shumway, Giguere & Fox, P.C. represented the Boston Red Sox in this notable case, both in the trial court as well as on appeal, the underlying facts of which are described in the first paragraph of the opinion from the Massachusetts Appeals Court:
"On a September evening in 1998, the plaintiff and three companions attended a Boston Red Sox baseball game at Fenway Park. They arrived late, at the top of the fifth inning. The plaintiff took her seat in an unscreened area in the upper box section on the first base line, more or less behind the Red Sox dugout. Several players from the visiting team, the Detroit Tigers, batted before their side was retired. In the bottom of the fifth, the first batter for the Red Sox was Darren Lewis. On a count of one ball and two strikes, Lewis hit a line drive foul ball into the stands along the first base line. The ball struck the
plaintiff in the face, causing severe, permanent injuries. She had been in the ballpark no more than ten minutes when she was hurt."
Shumway, Giguere & Fox, P.C. drafted and prosecuted a motion for summary judgment which was allowed by a justice of the Superior Court. The judgment of dismissal was appealed, and the Appeals Court affirmed, even though the Plaintiff claimed not to be a baseball fan and as a result, was ignorant of the dangers associated with thrown balls and bats. Adopting the appellate argument we advanced on behalf of the Red Sox, the Appeals Court held:
"Viewing the present case through the lens of the defendant's duty, we are persuaded that the potential for a foul ball to enter the stands and injure a spectator who is seated in an unscreened area is, as matter of law, sufficiently obvious that the defendant reasonably could conclude that a person of ordinary intelligence would perceive the risk and need no additional warning. Even someone of limited personal experience with the sport of baseball reasonably may be assumed to know that a central feature of the game is that batters will forcefully hit balls that may go astray from their intended direction. We therefore hold that the defendant had no duty to warn the plaintiff of the obvious danger of a foul ball being hit into the stands."
Shumway, Giguere & Fox, P.C. was proud to have secured this win during the season in which the Red Sox organization earned its first World Series victory in 86 years.
Case 1, United States District Court, Boston, 2011.
Plaintiff jumped from a pedestrian overpass while attempting to catch a football, believing he would land harmlessly in a snow bank. Instead, he landed on a paved walkway some 20 feet below, experiencing catastrophic injuries, including loss of spleen and nerve damage resulting in claw hand. Medical expenses in excess of $100,000. Theory of liability was that overpass should have been fenced. Evidence indicated plaintiff was intoxicated when he jumped, and that he failed to adequately look for hazards before he jumped. With the discovery deadline about to expire, and the depositions of the plaintiff and his witness about to take place, Shumway, Giguere & Fox, P.C. negotiated settlement for $20,000.
Case 2, Plymouth Superior Court, 2011.
Plaintiff alleged he was caused to stumble and fall at a skating rink after he was struck in the leg with a folding table by a skating club volunteer as she was breaking it down. As a result of the fall, the Plaintiff experienced a leg fracture which required surgical treatment, and while recovering from surgery, he suffered a pulmonary embolism which required lifetime blood thinner therapy. His medical expenses were approximately $60,000. The volunteer denied striking the plaintiff and there were no other witnesses to corroborate or contradict either side's version of events. A tactical decision was made to avoid portraying the plaintiff as a liar, but instead, to show that he must have been mistaken in concluding the table caused him to fall. Settlement demand was $650,000. No offer was presented. After deliberating for less than 10 minutes, the jury returned a verdict for the defendant skating club.
Case 3, Middlesex Superior Court, 2011.
In this post-Papadopoulos case, plaintiff was injured as he left a tailgating party to attend a football game at the venue. While walking through one of the venue's parking lots he encountered a patch of ice, which caused him to fall, resulting in a right leg and ankle fracture. The defense objective was to demonstrate that the alleged ice condition had not been in existence long enough to constitute constructive notice to the venue. Through depositions and interrogatories, it was established that neither the plaintiff nor his witnesses had any knowledge about how long the ice had existed or even how it had come into existence. Accordingly, the issue was perfectly teed up for summary disposition, and the case was dismissed via summary judgment, thereby protecting client resources from the time and expenses associated with a jury trial.
Case 4, Norfolk Superior Court, 2010.
This case went to trial within weeks of the Papadopoulos decision by which the Supreme Judicial Court abolished the "unnatural accumulation" defense in snow an ice cases, and is believed to be the first such case tried to a jury after this tectonic shift in premises liability law. Plaintiff had attended a football game at the venue. Upon exiting the building she allegedly slipped and fell on ice and packed snow in the parking lot, fracturing her tibia. The fracture did not heal, and required five surgeries, including a complex procedure at special surgical hospital. She was rated at 14% permanent partial disability. Medical expenses were $375,000, lost wages $125,000. Because the case had been litigated on an "unnatural accumulation" theory right up until the time of trial, the defense was required to quickly pivot to the new "reasonable care" standard. In furtherance of this adjustment, it was decided that special emphasis should be placed upon the massive maintenance and public safety operations undertaken by venue for this event. Snow and ice management was of particular interest, as the venue had experienced heavy snows for several days leading up to the event, and a fleet of plows and sanders had worked around the clock to make the lots safe. In the end, the jury agreed that the venue had exercised reasonable care in the circumstances and returned a verdict of no negligence.
Case 5, Norfolk Superior Court, 2010.
The second of two snow and ice cases to be tried in rapid succession after Papadopoulos, this litigation arose out of a fall on ice at the venue's parking lot. Plaintiff had traveled to the venue on a charter bus and was deposited in a venue lot from which he went to the to watch a football game. Upon exiting the building he allegedly slipped and fell on ice in the vicinity of the bus lot, fracturing his tibia/fibula. Treatment included surgery for open reduction, internal fixation. Medical expenses were $26,000, and the plaintiff, an electrician, lost $95,000 in wages while recovering from his injuries. The evidence was undisputed that the venue's plowing contractor had mounted a vigorous response to the two day storm preceding the game, and plaintiff was unable to establish how long the alleged ice condition had been in existence before he came upon it. Evidence was also presented showing that plaintiff could have availed himself of venue guest services to avoid the ice and safely find his way back to his bus. The jury found no negligence.
Case 6, Norfolk Superior Court, 2011.
68 year old man fell in a parking lot during snow storm, as a result of which he experienced a closed head injury, including fractured skull, subdural hematoma, permanent loss of the sense of smell and incurred in excess of $26,000 in medical expenses. He alleged the property owner and its plowing contractor were negligent in clearing the lot during the storm. Defense of property owner involved the successful deployment of the so-called "storm rule" which has not yet been adopted in Massachusetts, but which provides that as a practical matter it is not possible to maintain a parking lot free of snow during an ongoing storm. Settled for $20,000, split evenly between owner and plowing contractor.
Case 7, Norfolk Superior Court / Wrentham District Court, 2011.
After suffering a head injury, allegedly as a result of being struck in the head by a fragment of a fireworks rocket, Plaintiff sued the venue for negligence. Because the pyrotechnics professionals had agreed to indemnify the venue and related entities and to name these entities as additional insureds under its own insurance policy, the defense was successfully tendered off to the vendor.
Case 8, Norfolk Superior Court, 2011.
Plaintiff allegedly tripped and fell upon temporary flooring laid down for a home show event. The home show promoter, pursuant to a license agreement with the venue, contracted to defend and indemnify as well as provide additional insured coverage. Home show's insurer accepted tender of the defense.
Case 9, Middlesex Superior Court, 2010.
Wrongful death claim on behalf of teenager who died from injuries received during cheer leading practice. Complex litigation involving the gym, the coaches, and the national entities which sponsor cheer competitions and activities across the U.S. Shumway, Giguere & Fox, P.C. represented the national entities in the trial court and on appeal. Defense required special attention to the intricacies of relatively obscure pleading and practice rules. After a series of procedural missteps by plaintiff prosecuting the litigation, case was successfully dismissed before trial. Dismissal upheld on appeal.
Case 10, Suffolk Superior Court, 2015.
Claim of TBI arising from motor vehicle accident with permanent disability. Claimant tenured language teacher required to take disability retirement due to speech and language impairments, chronic disabling headaches, vertigo and photo sensitivity. Clear liability. Negative past medical history. Seven figure demand. Neuropsych evaluation demonstrated no evidence of TBI, strongly suggesting complaints unrelated to accident. Certain medical records also ruled out TBI. With focus on the complex medical issues, and resistance to claimant's attempts to postpone trial date after experiencing defeat in several pre-trial motions, the case was eventually positioned for settlement at a fraction of specials.
Case 11, US District Court, Boston, 2015.
55 year old male triathlete perished from drowning while participating in National Championship Triathlon in Burlington VT. Wrongful death suit against sanctioning entity for alleged failure to manage swimming event. Claimant signed a release and waiver agreement which also indemnified the entity. Summary judgment on indemnity clause allowed in part. Issues of first impression in Massachusetts law were presented, as to enforceability of indemnity agreements in wrongful death actions. Enforcement of indemnity agreement prosecuted in Probate Court in context of estate administration, which led eventually to capitulation by plaintiff, with both a stipulation of dismissal of all claims and payment by the estate to entity for defense costs. An outstanding result, and a real "reversal of fortune" outcome.
Case 12, Middlesex Superior Court, Woburn, 2015.
39 year old male participant in multi-leg relay race experienced catastrophic injuries when struck by a pizza delivery vehicle while passing through intersection. Multiple surgeries, coma, medical expenses in excess of $750,000. Claim against race organizer for alleged failure to lay out a safe course and arrange for police detail to manage traffic through intersection. Claimant signed release and waiver agreement with indemnity obligation. Partial summary judgment allowed enforcing indemnity agreement. Discovery showed that claimant had been provided with details about course layout and potential traffic issues well before race but had not read same until day of race. Evidence also showed that he had run out into the intersection without first letting traffic pass. Indemnity exposure was critical in leveraging settlement at mediation. Claim settled for fraction of specials.
In addition to the above, Shumway, Giguere & Fox, P.C. has achieved outstanding results on behalf of its clients through mediation and direct settlement negotiations. Examples include:
- Venue sued for use of unreasonable force in ejecting patron, plaintiff alleged shoulder injury requiring surgery, permanent disability, emotional distress, $38,000 in medical expenses, $100,000 in lost wages. Settled at mediation for $45,000.
- Plaintiff assaulted by allegedly intoxicated guest while attending sporting event resulting in facial fracture, daily debilitating, paralyzing headaches, loss of sensation side of face, and double / blurry vision. Case settled though direct negotiation for $10,000.
- Patron knocked forward and down several rows of seats after being struck by another patron who himself had been knocked forward in a domino effect by some unidentified third party, claims of residual shoulder complaints. Settled through direct negotiation for $5,000.
Whether your needs are liability assessment, analysis of coverage and excess liability exposure, insurance and indemnification issues, settlement negotiation, mediation, arbitration, trials and appeals, Shumway Giguere & Fox, P.C. has the experience and assets to provide the right solution.
For information about other practice areas, including defense of auto, homeowner, commercial and professional liability claims, please contact us at
Shumway, Giguere & Fox, P.C.
Nineteen Cedar St.
Worcester, MA 01609