By statute, negligence on the part of the plaintiff will not bar an action for negligence if the plaintiff's negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought. G.L. c. 231, §85. Hence, if the plaintiff's negligence is 50% and the defendant's is 50%, the plaintiff recovers. However, the plaintiff's damages are diminished in proportion to the amount of her negligence. The combined negligence of all parties must total 100%.
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Assumption of the risk, as a defense to negligence, has been abolished by statute. G.L. c. 231, §85. However, "a landowner's duty to protect lawful visitors against dangerous conditions on his property ordinarily does not extend to dangers that would be obvious to persons of average intelligence." O'Sullivan v. Shaw, 431 Mass. 201, 204 (2000). The "open and obvious doctrine" has been applied to many contexts: Barnett v. City of Lynn, 433 Mass. 662, 666 (2001) (danger of sledding down snow-covered exterior stairs leading to a well-traveled road would be open and obvious even to an eleven or twelve year old); Moylan v. Stop 'N Shop Companies, Inc., 2001 WL 262661 (Mass.Super. 2001) (trip and fall on parking lot curb); Mathews v. Tage Inn, 64 Mass.App.Ct. 1109 (2005) (danger of sitting on luggage rack located in hotel closet open and obvious).
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Joint tortfeasors are two or more wrongdoers who negligently contribute to the personal injury of another by their several acts. Elias v. Unisys Corp., 410 Mass. 479, 480 (1991). The litmus test consists of concurrent negligence and inseparable damages. Restatement, Second, Torts § 433A.
By statute, a joint tortfeasor who has paid more than his pro rata share of the common liability may bring a claim for contribution from the other joint tortfeasor. G.L. c. 231B, §1. He may only recover the amount paid by him in excess of his pro rata share. Id. An insurance company is subrogated to the right of contribution of its insured. Id.
A release given to one tortfeasor does not release the other joint tortfeasor. The tortfeasor who is not named in the release may reduce the claim against himself to the extent of any amount stipulated by the release, or to the extent of the amount of consideration paid for it, whichever is greater. G.L. c. 231, §§4(a), 4(b).
There is no right of contribution unless the potential contributor is directly liable to the injured person. For example, if the injured person is barred from recovering from the potential contributor, the latter is not liable for contribution to the other tortfeasors. Panagakos v. Walsh, 434 Mass. 353, 354-355, 749 N.E.2d 670 (2001) (contribution claim brought by tavern against companion of decedent adult underage drinker in wrongful death action was precluded by absence of duty on part of companion to prevent decedent from suffering consequences of his self-inflicted intoxication).
Where the plaintiff settles with one joint tortfeasor, but proceeds to trial against the other, the comparative negligence statute does not allow the jury to consider the negligence of the parties which settled out of the case. Shantigar Foundation v. Bear Mountain Builders, 441 Mass. 131, 137 (2004).
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Pursuant to the doctrine of respondeat superior, a principal is liable for the torts of his agent committed within the scope of the agent's employment. Restatement, Second, Agency § 219 (1958). Kavanagh v. Trustees of Boston University, 440 Mass. 195, 198, 795 N.E.2d 1170, 1174 (2003). Conduct of an agent is within the scope of employment if it is of the kind he is employed to perform; if it occurs substantially within the authorized time and space limits; and if it is motivated, at least in part, by a purpose to serve the employer. The fact that the predominant motive of the agent is to benefit himself does not prevent the act from coming within the scope of employment as long as the act is otherwise within the purview of his authority. See Wang Laboratories, Inc. v. Business Incentives, Inc., 398 Mass. 854, 859-860 (1986).
Of special interest are those cases where the alleged tortfeasor was hired to do a job which contemplates the use of force, as for example, a barroom bouncer, Thompson v. Beliauskas, 341 Mass. 95, 98, 167 N.E.2d 163, 165 (1960), or one hired during a labor dispute to insure continuation of the employer's business. Suckney v. Bert P. Williams, Inc., 355 Mass. 62, 64-65, 242 N.E.2d 416, 417-418 (1968). In these instances, the Restatement of Agency imposes liability on the master if the servant's act "was not unexpectable in view of the duties of the servant." Restatement, second, Agency § 245 (1958).
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The negligence of a parent is not imputed to his child in actions to recover for injury to the person or property of an infant. G.L. c. 231, §85D. ("In all actions to recover damages for injury to the person or property of an infant, the negligence of the parent or other custodian of the infant shall not be imputed to the infant from the fact of such parenthood or custodianship.")
By statute, parents of a child under 18 and over 7 years of age shall be liable up to $5,000.00 in a civil action for any willful act committed by such child which results in injury or death or damage to the property of another or to cemetery property unless the parent does not have custody of the child by reason of a decree of court. G.L. c. 231, §85G.
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The negligence of one spouse is not imputed to the other unless there is a relationship of agency in addition to the marital relationship. Feaver v. Railway Express Agency, 324 Mass. 165, 168, 85 N.E.2d 322, 324 (1949).
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In 1976, the Supreme Judicial Court abrogated the common law doctrine of interspousal immunity in the context of suits arising out of motor vehicle accidents. Lewis v. Lewis, 370 Mass. 619, 630, 351 N.E.2d 526, 532 (1976). See also Brown v. Brown, 381 Mass. 231, 409 N.E.2d 717 (1980) (wife could maintain action against husband for negligence in maintenance of real estate owned by both as tenants by the entirety.)
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The Court has also abolished absolute parental immunity. In a case in which a three year old daughter sued her mother for personal injuries arising from the mother's negligence in protecting the child from a pizza machine in the family business, the court eliminated entirely the absolute immunity of a parent from an action by his or her minor child. Stamboulis v. Stamboulis, 401 Mass. 762, 765, 519 N.E.2d 1299, 1301. (1988).
Although not decided on the grounds of immunity, a recent case has held that a mother is not liable for injuries sustained by her unborn child as a result of a motor vehicle accident. In Remy v. MacDonald, the Supreme Judicial Court held that a mother did not owe a duty of care to her unborn fetus. Remy v.MacDonald, 440 Mass. 675, 677 (2004). Therefore, a mother could not be held liable to a child, born alive, who sustained injuries before birth due to the mother's alleged negligence in connection with an automobile accident. Id. at p. 682.
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There is no authority for extending immunity to brothers and sisters when actions are brought between them, whether they are adults or infants. Restatement, Second, Torts §895H and I.
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Pursuant to G.L. c. 152, §26, an injury is compensable under the Workers' Compensation Act if it "aris[es] out of and in the course of his employment." An "'injury arises out of employment if it is attributable to the 'nature, conditions, obligations or incidents of the employment; in other words, (to) employment looked at in any of its aspects.'" Walter A. Zerofski's Case, 385 Mass. 590, 592 (1982).
Pursuant to G.L. c. 152, §24: "[a]n employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury that is compensable under this chapter."
Intentional acts are also subject to the exclusivity provision of G.L. c. 152, § 24. See Doe v. Purity Supreme, Inc., 422 Mass. 563 (1996). In fact, "a suit for an intentional tort in the course of the employment relationship is barred by the exclusivity provision of the Workmen's Compensation Act." Anzalone v. Mass. Bay Transportation Authority, 403 Mass. 119, 124 (1988). A suit for an intentional tort, however, may be brought against a co-employee without being barred by the exclusivity provision of the Workmen's Compensation Act if the intentional tort was "in no way within the scope of employment furthering the interests of the employer." O'Connell v. Chasdi, 400 Mass. 686, 690-691 (1987).
"The co-employee immunity rule under G.L. c. 152 involves the same 'course of employment' standard that determines whether an employee is acting within the course of employment and thus is entitled to workers' compensation." Mulford v. Mangano, 418 Mass. 407, 409 (1994). In determining the 'course of employment', Massachusetts cases have "implicitly rejected" narrowing the range of employment to an employee's "scope of employment." Id. at 410. To further define this standard, the Massachusetts Supreme Judicial Court stated that "[w]hile an employee may have more than one motive for performing an act, as long as one significant purpose is related to the employment the employee will be considered to be acting in the course of her employment." Id. at 412.
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Pursuant to the workers' compensation act, an injured employee may being an action against a person other than the employer if his injury was caused under circumstances creating a legal liability in such third party. G.L. c. 152, §15. Either the employee or the insurer may file an action against a negligent third party. However, the insurer is entitled to recover the sum that it paid to the employee. If the damages awarded in a third party action exceed the amount paid out by the insurer, then the employee may retain the excess. Id. See also Rhode v. Beacon Sales Co., 416 Mass. 14, 19, 616 N.E.2d 103, 106 (1993) ("Until an 'excess' recovery exists, the entire recovery is for the insurer.").
In the absence of an agreement by a workers' compensation insurer to compromise its statutory lien, the insurer is entitled to reimbursement of its lien from settlement proceeds received from a third party, and the trial judge does not have authority to require a compromise of the lien in distribution of the proceeds.
Attorney's Liens. By statute, an attorney has a lien for his reasonable fees and expenses upon the proceeds derived from the suit. G.L. c. 221, §50. The lien arises upon the commencement of suit or other court proceeding or upon the attorney's notice of appearance. Id.
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In 1971, upon prodding by the Supreme Judicial Court, the legislature substantially limited the defense of charitable immunity. By statute, the defense of charitable immunity was abrogated entirely as to torts arising out of a charity's commercial activities and a ceiling of $20,000 exclusive of interest and costs was placed on recovery for torts arising out of "any activity carried on to accomplish directly the charitable purposes of such corporation." G.L. c. 231, §85K.
Hospitals enjoy the protection of Section 85K, even where there is a charge, e.g., for emergency room service. Harlow v. Chin, 405 Mass. 697, 715-716, 545 N.E.2d 602, 612-613 (1989).
Liability under the Massachusetts law relating to unfair and deceptive practices (G.L. c. 93A) is not subject to the $20,000 charitable immunity cap. Linkage Corp. v. Trustees of Boston University, 425 Mass. 1, 22-28, 679 N.E.2d 191, 206-210 (1997).
In 1987, the Legislature enacted another statute which provides that a person "who serves without compensation, other than reimbursement for actual expenses, as an officer, director or trustee of any nonprofit charitable organization . . . shall [not] be liable for any civil damages as a result of any acts or omissions relating solely to the performance of his duties as an officer, director or trustee." There is no immunity, however, for acts or omissions which are "intentionally designed to harm or to any grossly negligent acts or omissions which result in harm to the person." This statute provides no immunity from liability "for acts or omissions arising out of activities primarily commercial in nature even though carried on to obtain revenue to be used for charitable purposes, nor for any cause of action arising out of such person's operation of an automobile." G.L. c. 231, §85W.
The charitable immunity cap does not apply to damages awarded in connection with claim of unlawful retaliation in employment context. Ayash v. Dana-Farber Cancer Institute, 443 Mass. 367, 822 N.E.2d 667 (2005).
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There is no duty at common law to aid a person in distress or to render assistance to a stranger who is injured or in danger. However, once a person voluntarily acts to protect or assist the injured or imperiled person, he must exercise reasonable care and may be held liable for worsening the injuries or position of the person in distress. See Mullins v. Pine Manor College, 389 Mass. 47, 53, 449 N.E.2d 331, 335 (1983).
Massachusetts has enacted several Good Samaritan statutes, granting immunity from liability for any negligent conduct by physicians, nurses, and others voluntarily providing emergency care to injured persons. The chief statute protects physicians, physician assistants and nurses who render emergency care or treatment in good faith, as a volunteer and without fee and other than in the ordinary course of his practice, from civil liability in a suit for damages as a result of his acts or omissions. G.L. c. 112, §12B.
Physicians, dentists, and hospitals may not be held liable for damages for failure to obtain the consent of a parent or guardian of a minor to emergency examination and treatment, including blood transfusions, when delay in treatment will endanger the life, limb, or mental well-being of the patient. G.L. c. 112, §12F.
A certified emergency medical technician or a police officer or firefighter who in the performance of his duties and in good faith renders emergency first aid or transportation to an injured person or to a person incapacitated by illness is given an exemption from personal liability for acts resulting from rendering such aid or transporting such person to a hospital or other safe place; nor is such a person liable to a hospital for expenses if he caused such person to be admitted under emergency circumstances. G.L. c.111C, §21.
Finally, a person who attempts to provide assistance to a victim of a crime will only be held liable if in doing so, his acts or omissions constitute willful, wanton or reckless conduct. G.L. c. 258C, §13.
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In a tort action to recover for personal injuries caused by a defendant, a plaintiff may recover for the following: (1) physical and mental pain and suffering, including fright, shock, humiliation, and emotional distress; (2) impairment of earning capacity; (3) the reasonable cost of necessary medical treatment, hospital care, nursing care, and related expenses; (4) physical disability; (5) disfigurement; and (6) other expenses incurred because of the injury.
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A tortfeasor will be held liable for the combined effects of the harmful results of his wrongful act and a pre-existing disease or condition. Varelakis v. Etterman, 4 Mass.App.Ct. 841, 842, 354 N.E.2d 886, 887 (1976).
If a defendant's conduct aggravates a pre-existing condition, the defendant will be held liable for the entire resulting condition, i.e., the present injury and the aggravation. Pierce v. Nawn, 5 Mass.App.Ct. 224, 225-226, 361 N.E.2d 414, 414-415 (1977).
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Massachusetts courts permit recovery for intentional and reckless infliction of emotional distress without a bodily injury. Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976). "A successful negligent infliction of emotional distress claim...must do more than allege 'mere upset, dismay, humiliation, grief and anger.'" See Sullivan v. Boston Gas Co., 414 Mass. 129, 137 (1993). The plaintiffs must "corroborate their mental distress claims with enough objective evidence of harm to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial." Id. at 137-138.
Symptoms such as depression, cramps, shortness of breath, nightmares, uncontrollable crying spells, stomach pain, headaches, loss of concentration, loss of sexual relationship, and anxiety have been deemed sufficient to provide the "objective evidence" required to proceed on a negligent infliction of emotion distress claim. See Kelly v. Brigham & Women's Hosp., 51 Mass.App. Ct. 297 (2001); Bresnahan v. McAuliffe, 47 Mass.App.Ct. 278, 282 (1999); Homesavers Council of Greenfield Gardens v. Sanchez, 70 Mass.App.Ct. 453, 459-460 (2007) ("terrifying and intolerable" threat to evict tenant could cause emotional distress). A plaintiff crying on the witness stand was deemed insufficient "objective manifestation" of emotional distress. See Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 412-413 (2002).
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In Massachusetts, punitive damages are not recoverable unless specially authorized or recognized. Pursuant to the wrongful death statute, damages are awarded on a compensatory basis and punitive damages are recoverable additionally only if the death was caused "by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant." G.L. c. 229, §2.
The Consumer Protection Act provides for punitive damages up to treble the amount of actual damage (in addition to compensatory damages) "if the court finds that the use or employment of the act or practice was a willful or knowing violation . . . or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated [the Act]." G.L. c. 93A, §9.
There are other statutory provisions which provide for punitive damages: Chapter 242, §7, the tree cut statute, allows for treble damages. To recover treble damages, the plaintiffs must prove that the defendant knew that he was upon the plaintiffs' land when the trees were cut.
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The right of recovery for loss of consortium is an independent claim and does not derive from the negligence claim of the other spouse. Duffee v. Boston Elevated Ry., 191 Mass 563, 564, 77 N.E. 1036, 1036 (1906). But see Corrigan v. General Electric Co., 406 Mass. 478, 479-481, 548 N.E.2d 1238, 1239-1240 (1990) (finding by Industrial Accident Board that husband had not sustained claimed injury bars wife's action for loss of consortium). The amount of damages for loss of consortium should not be reduced by the negligence of the other spouse under a formula of comparative negligence. Feltch v. General Rental Co., 383 Mass 603, 606-610, 421 N.E.2d 67, 70-72 (1981).
The Legislature has also established a parent's right to damages for the loss of a child's consortium. G.L. c. 231, §85X.
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By statute, "[a]ny person against whom a claim or suit for damages on account of bodily injury, property damage, or death is made, or if such person is insured against loss by reason of his liability to pay such damages the insurer of such person may advance money to, or pay bills incurred by or on behalf of, such claimant, or plaintiff, as the case may be, without affecting the question of liability for such damages, and evidence of such payments shall not be admissible at the trial of such suit on the issue of liability or to mitigate damages; but if, in such case, there shall be a judgment in favor of the plaintiff for money damages, the presiding judge of the court in which the judgment is entered shall, upon motion of the defendant, credit upon such judgment the amount of such payments." G.L. c. 231, §140B.
When making a payment, the insurer must inform the claimant in writing of the statute of limitations applicable to his claim. Id. Moreover, no settlement or partial payment made under a liability insurance policy of a claim against any person insured thereunder shall be construed as an admission of liability by such person. G.L. c. 231, §140C.
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Federal statutes and regulations (including the Health Insurance Portability and Accountability Act or "HIPAA") govern the release of medical records. See 45 CFR 164 et. seq.
In Massachusetts, a state "Patients' Rights Statute" also restricts release of sensitive records, including, but not limited to, those relating to alcohol or drug abuse, and AIDS information. G.L. c. 111, §70E. Records may be made available where the plaintiff has put his condition at issue in the case. See, e.g., G.L. c. 233, §20B(c) (which allows disclosure of records "in any proceeding, except one involving child custody, adoption or adoption consent, in which the plaintiff introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interest of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected.")
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Two factors are controlling in determining the effect of an agreement purporting to operate as a release: (1) whether the injured party has received full satisfaction; and (2) whether the parties intended that the release be in full satisfaction of the injured party's claim, thus releasing all successive tortfeasors from liability. Prosser on Torts (4th Ed.1971) at 304.
A general release, in broad terms, is to be given effect, even if the parties did not have in mind all the wrongs which existed at the time of the release. Naukeag Inn, Inc. v. Rideout, 351 Mass. 353, 220 N.E.2d 916 (1966). See also Eck v. Godbout, 444 Mass. 724 (2005) (holding that the fact that general release references specific matter that gave rise to release does not restrict scope of release).
For a general release to be given effect, even against claims for which both parties were ignorant at the time, it must be supported by consideration. Sloan v. Burrows, 357 Mass 412, 258 N.E.2d 303 (1970).
If part of the claim is to be excluded from the scope of the Release, such exclusions should be stated. Schuster v. Baskin, 354 Mass. 137, 236 N.E.2d 205 (1968)
However, the Supreme Judicial Court has held that where a Release discharged a physician from liability for "all injuries," that broad language did not include injuries which might have arisen from care and treatment other than that which was the subject of the original claim and settlement. Leblanc v. Friedman, 438 Mass. 592 (2003).
If a release is obtained by false representations, it is voidable. Joseph v. Tata, 339 Mass. 600, 161 N.E.2d 763 (1959).
By statute, a release given to one of several joint tortfeasors does not release all of them unless its terms provide otherwise. G.L. c. 231B, §4.
Settlement between a plaintiff and a tortfeasor does not necessarily extinguish the subrogation rights of the plaintiff's insurer. Liberty Mutual Ins. Co. v. Nat'l Consolidated Warehouses, Inc., 34 Mass.App.Ct. 293 (1993) (release executed by plaintiff explicitly reserved insurer's rights); Travelers Ins. Co. v. Cremin, 2002 Mass.App.Div. 21 (2002).
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Pursuant to statute, the trial court may review and approve a minor settlement arising out of personal injury. The trial court may make such orders and take such action as it deems necessary to effectuate the settlement including but not limited to: the appointment of a guardian, the appointment of a guardian ad litem, and/or the holding of an evidentiary hearing. G.L. c. 231, §140C ½.
With respect to a pre-suit settlement, any party to a settlement of a claim of a minor or incompetent person, when such claim is not in suit, may initiate an action by filing a complaint and petition for settlement approval for the purpose of seeking the court's approval of the settlement under this section. Id.
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Indemnity is triggered whenever one person (A), through no fault of his own, is required to respond in damages for the tort of another person (B), though both A and B are liable to the third person. In the case of indemnity established by contract, language establishing the indemnity must be unequivocal. New Bedford Gas & Edison Light Co. v. Maritime Terminal Inc., 380 Mass. 734, 735-737, 405 N.E.2d 653, 654-655 (1980).
The court has found valid an express indemnity clause rescuing the indemnitee from paying damages even when it is negligent. Kelly v. Dimeo, Inc., 31 Mass.App.Ct. 626, 629, 581 N.E.2d 1316, 1318 (1991).
However, a statute declares void indemnity provisions in construction contracts which require a subcontractor to indemnify any party for personal injury or property damage not caused by the subcontractor or its employees, agents or subcontractors. G.L. c. 149, 29C.
An indemnity clause which limits the subcontractor's obligation to indemnify to injury resulting from its negligence or act or omission to the fullest extent permitted by law is valid. Callahan v. A.J. Welch Equipment Corp., 36 Mass.App.Ct. 608, 612, 634 N.E.2d 134, 137 (1994).
Where a contract provides for indemnity only to the extent caused by the negligence of the indemnitor, courts will allow proportional indemnification. North American Site Developers Inc. v. MRP Site Development, Inc., 63 Mass.App.Ct. 529 (2005).
If the negligence of the indemnitor is wholly attributable to its employee, the plaintiff, then no indemnity is owed because the indemnitee will benefit from a reduction in the award based upon the plaintiff's contributory negligence. Rush v. Norfolk Electric Co., 70 Mass.App.Ct. 373 (2007).
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In Massachusetts, "evidence of post accident safety improvements is not admissible to prove negligence." Martel v. Massachusetts Bay Transportation Authority, 403 Mass. 1, 4, 525 N.E.2d 662, 664 (1988).
Evidence of subsequent remedial measures will be excluded only as it relates to the issue of the defendant's negligence. Blake v. Springfield Street Railway Co., 6 Mass.App.Ct. 553, 557, 379 N.E.2d 1112, 1115 (1978).
Such evidence may be admissible, in the judge's discretion and subject to limiting instructions, on a variety of other issues: the defendant's ownership of the premises (Perkins v. Rice, 187 Mass. 28, 30, 72 N.E. 323, 324 (1904)); control of the premises (Finn v. Peters, 340 Mass. 662, 625, 165 N.E.2d 896, 898 (1960)); a duty to repair the premises (Readman v. Conway, 126 Mass. 374, 377 (1879)); the feasibility of making improvements or taking preventative measures (Simmons v. Monarch Machine Tool Co., Inc., 413 Mass. 205, 214, 596 N.E.2d 318, 324 (1992)); the feasibility of giving adequate warnings (Fiorentino v. A.E. Staley Mfg. Co., 11 Mass.App.Ct. 428, 438, 416 N.E.2d 998, 1005 (1981)); or awareness of a dangerous condition at the time of the accident (Reardon v. Country Club at Coonamessett, Inc., 353 Mass. 702, 704, 234 N.E.2d 881, 883 (1968)).
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