Bollards: Are you safe? Was there even a time when you never heard about vehicles plowing into buildings? If a driver crashes into a building, how in hell is the building owner responsible?
Hingham, Massachusetts. November, 2022. A car drives full speed into the Apple Store, killing one man, injuring over 20 others. Within days, Apple and the owners of the shopping area face a lawsuit. People scratch their heads.
In a prior case a Chicopee, Massachusetts convenience store saw an SUV plow into the place at 71 miles per hour, killing a customer and injuring an employee. Internal documents disclosed that the convenience store chain saw 485 “car strikes” in a 20 year period.
What does the law say? Certainly liability rests against the driver. Forget “oh it was an accident”. The driver faces liability for failing to operate in control at all times. But what about owners of commercial premises in high traffic areas? What if they knew cars tended to crash into buildings more and more in our era?
Here’s the transcript:
00:00:00:00 – 00:00:15:06
Hi, I’m Laney Law and I’m attorney Andrew Myers. What’s with all these cars crashing into buildings lately? Today we’re looking at two cases.
00:00:15:09 – 00:00:40:10
These yellow structures are called bollards. There are large steel uprights structures filled with cement and anchored into the ground with more cement below. There are structures that are designed to prevent vehicles from driving into buildings. Now, I know that for those of you that are not inclined, a bollard in your context is one of those things they use to tie a ship up to the dock.
00:00:40:13 – 00:01:10:03
But no, in the architectural world, these are structures that are designed to help stop loss, death or worse, to buildings and people inside of them. Now, the word bollard comes from Alley Bowl. That is an oak tree trunk. And in case you think that this is some newfangled kind of an idea, because, you know, until recent years, whoever heard of a vehicle driving into a building, buildings don’t move, vehicles do.
00:01:10:07 – 00:01:36:24
But in case you think this is some kind of a new fangled thing, there were bollards. Generally oak trees or the stumps of oak trees in front of old buildings in England. Way back in the 1700s. So let’s come back into this era and let’s take a look at a couple of cases. So yeah, that is true. You hear more stories about cars bashing into buildings more and more lately.
00:01:37:00 – 00:02:01:06
But on today’s episode of About the Law, we have a special guest and he can you introduce them? Yes. We are lucky to have a guy with us this morning who knows all about Massachusetts. He’s a lifelong resident of Massachusetts and a former well known radio announcer, a newsman and Greater Boston and elsewhere, Doug Cope. Welcome. Thank you.
00:02:01:06 – 00:02:26:15
Thank you very much. Thank you. Interesting topic we’re going to discuss today. Yeah. Thanks for being with us. One of the reasons we wanted to have you with us is a, you’re very articulate, but B, we’re going to talk about that incident in Hingham where a car smashed into the Apple store and I believe someone was killed. And, you know, as a newsman, Doug, can you tell us about that case?
00:02:26:18 – 00:02:49:14
Yeah, and it did happen in Hingham, Massachusetts, which is a town I lived in for many years. So I’m very familiar where this happened. This was last November 21st at a place called the Derby Street Shop. It’s a large shopping center with a number of stores in Hingham. It’s right off Route three, a very popular area, a big shopping area.
00:02:49:16 – 00:03:19:09
And back on November 21st, there was a gentleman named Bradley Rhine. He was from Hingham, and he was driving through the parking lot at the Derby Street shops, when all of a sudden, according to him, his foot got stuck underneath the accelerator of his. He was driving a Toyota forerunner, an SUV, a large SUV is what got stuck into the accelerator.
00:03:19:11 – 00:03:38:19
And as a result, as he was going through the parking lot, his vehicle accelerated quickly to what later was estimated about 60 miles an hour. Wow. Doug, can I just stop you there for a second? Yeah. I don’t know why. I’m sure you don’t know why we’re hearing about all these things lately, but how does somebody foot get stuck on the accelerator or any idea?
00:03:38:25 – 00:04:10:23
Well, you know, those things have happened in the past. You know, it’s unusual. It doesn’t happen very often, but it does happen. Sure. It’s something that people are questioning. But that’s what he has said right from the start. So his vehicle accelerated to a very high rate of speed. And as a result, as he’s going through the parking lot because of that, is he’s going right straight toward what was a restaurant.
00:04:10:23 – 00:04:37:07
And next to that restaurant, an Apple store, a large Apple’s store with Apple computers, phones, etc., which usually is very busy. And that store has a large glass front in front of it and a large sidewalk area in front of it. But at the time last November, there were no bollards to protect the front of it. Bollards being the topic of this of this program today.
00:04:37:13 – 00:05:03:10
Yeah. I’m looking at the picture that you are showing us right now and there are nice pretty steel bollards. They look pretty strong and they might have stopped an accident like this. Why do you think they didn’t have them then. Well there were no bollards anywhere in that shopping area at the time last November. And of course this accident prompted the placement of those steel bollards in front of the store.
00:05:03:10 – 00:05:33:07
Now, as a result of his high rate of speed, he veered slightly to the left and crashed right into the glass front of the Apple store, which was crowded at the time as a result. Also, there was a gentleman from New Jersey, Kevin Bradley from Wayne, New Jersey, who was killed in this accident. He was he was a worker actually from New Jersey.
00:05:33:13 – 00:06:10:18
They were doing some renovations at this store that he was one of those directing the operation of those renovations. He was killed in this accident. And there were 22 other people who were injured in this accident. Most of them pinned up to the pin, to the back wall of the store by this vehicle that had careened careened into the store at the at the time, Bradley Ryan was 53 years old, from Hingham, was charged with reckless operation of a motor vehicle.
00:06:10:21 – 00:06:32:08
Later, there was a Plymouth County grand jury that upped the charges, if you will. Yeah, they did. They bring the charge up to second degree murder, not first degree murder. Now, I’m just curious about that, because first degree murder is malice aforethought. That would have meant that he got up in the morning and said, I’m going to do this.
00:06:32:08 – 00:06:53:03
And he, you know, planned it and he went right straight into the store. Second degree is doesn’t have that malice aforethought, doesn’t have that level of intent, but it is still a criminal offense and it still means that he had some level of intent. Well, his attorney, they are claiming, of course, that this was a terrible accident.
00:06:53:03 – 00:07:27:09
Right. There was no intent and a review following the accident did show there were there was no sign of alcohol or drugs in Bradley Ryan system, a well, also, their attorney is also claiming that a full investigation of the vehicle has not been done. Apparently, they did do you know, they did get into the black box, if you will, that’s in the vehicle and determined from that the vehicle was not malfunctioning in any way.
00:07:27:11 – 00:07:54:27
But his attorney is still claiming they haven’t done a full investigation of the vehicle and the potential for that contributing to the cause of the accident. But along with the second degree murder charge, he’s also charged with 18 counts of aggravated assault and battery with a dangerous weapon, meaning the vehicle. Right. And four counts of assault and battery with a dangerous weapon.
00:07:54:29 – 00:08:18:00
Yeah, 18 counts of aggravated assault, four counts of assault battery. So there are a number of charges that he’s been arraigned on those charges. I’m not sure if he’s still being held. I know initially is initial arraignment. He did make bail. So I’m not sure what his current status is. I think he was he was confined. He had a yellow ankle bracelet on.
00:08:18:01 – 00:08:55:04
Right. And I believe he was confined to his own home. Interestingly, the assault and battery charges are called intentional torts or intentional. There’s some level of intent there in the criminal system. It’s not as heightened as a first degree murder charge would be. But I think the thing we’re more interested in in this show, we do we look at civil law is in addition to what you just told us about the second degree murder and the assault and battery is that there’s I mean, obviously he’s liable and there’s no question about that.
00:08:55:06 – 00:09:20:12
But the store would have some liability. And I think that shocked a lot of people when attorney Doug Scharf, who’s a well-known attorney in the greater Boston area, when he filed a lawsuit right away. And as an area resident, what was your response to that when that lawsuit, the civil lawsuit, was filed right away? Well, I know there have been civil lawsuits against Apple, against the owners of the Derby Street shops and against Bradley Wright.
00:09:20:12 – 00:09:46:28
They’re all civil lawsuits pending. I mean, it is surprising that no bollards were placed there beforehand. However, in the town of Hingham, and I gather I lived there for many years, I don’t think there are bollards in front of any store right that right side of town. I don’t know if some towns have them as requirements for businesses and others do not.
00:09:47:01 – 00:10:14:23
But yeah, it’s it’s too bad that after the fact it’s too bad that they were reactive versus proactive. Well, going back a number of years, I mean, you were in the news business for many, many, many years. And going back a number, we’re not going to say how many years would going back that far, how often as a reporter, you know, a number of years ago, did you really see stories about cars or vehicles crashing into buildings?
00:10:14:25 – 00:10:41:02
Yeah, it was not a typical thing. And it just seems that these days, every week, you pretty much hear about a vehicle either crashing into a building or someone’s home. Sometimes I don’t want to say quite often, but sometimes there’s a a medical situation, a medical emergency with a driver that causes that driver to lose control or whatever.
00:10:41:04 – 00:11:12:14
But yeah, it seems like now there’s a there’s a lot more instances. There was just another one last week, and I don’t remember the town that crashed rated it, you know, somebody’s front porch and took out their phone. I saw that. I saw that in the news. I can’t recall it this second where it was either. But I want to take a look at a case in Massachusetts, since the one you’ve been talking about at the Apple stores pending and will be for some time as we as we talk today, I want to talk about a case that went through in Chickpea where there was a fatality.
00:11:12:14 – 00:11:38:08
There was a woman who was going into the convenience store in Chickpea and an elderly guy, 81 years old, came down Front Street and Chickpea and just barreled right into the parking lot at 71 miles an hour, slammed right into the front of that store. And it instantly killed a 43 year old woman in the store and injured one other person.
00:11:38:12 – 00:12:04:17
You know, it’s horrible that that happened. There were not as many people in that store in Chickpea as there were in the Apple Store. But this happened some time ago. When did its way all the way up to the appellate courts in Massachusetts. And at that time, you know, the store, Cumberland Farms, was sued and they said, wait a minute, this just doesn’t happen.
00:12:04:19 – 00:12:31:26
This type of thing doesn’t happen. How can we possibly be held liable for this? Well, in civil lawsuits, there’s a thing called discovery, which means that we spend most of our time sending out interrogatories, asking questions, sending out requests for production of documents and getting documents, doing depositions of anyone who has any knowledge. And one of the things that they found out about that Cumberland Farms at that time, they had about 600 stores.
00:12:31:26 – 00:13:10:13
They had about 6500 employees in a 20 year period. There had been 485 vehicle strikes against Cumberland Farms stores and Cumberland Farms stores. As you know, Dog, they’re usually in very heavily traveled areas. They’re on main streets, front streets, just off highways at the end of exit ramps and things like that. So the case went to trial and this young woman’s husband and her other survivors said, look, Cumberland Farms should have known about this with all of these accidents and injuries.
00:13:10:15 – 00:13:27:12
There was actually a fellow at Cumberland Farms that his job was to go around to stores when there was property damage. You know, somebody would hit a store and break a window. And his job was to go around and find out what happened and see if there was any insurance on the driver that they could fix the store.
00:13:27:15 – 00:14:04:14
And he said, wait a minute, there’s more. This is an employee for Cumberland Farms. He said, wait a minute. These things are happening more and more. Something more serious is going to happen. And so they did actually, Cumberland Farms start a bollard program and they they put bollards at a lot of the convenience stores around New England, primarily, I think in Massachusetts and southern New Hampshire and it was just a program that was starting and they did it only at stores that had either had vehicle strikes or there was a high volume of traffic.
00:14:04:14 – 00:14:27:22
I think they they set a income level of how much traffic they’d had at those stores. So Cumberland Farms was in the process of doing that. As you pointed out earlier, at that time when this accident happened, there were no state statutes, there were no ordinances, there were no laws. So Cumberland Farms was fully in compliance with any and all laws.
00:14:27:25 – 00:14:48:12
The town of Kickapoo, you’d actually know, was probably a city then, wasn’t it? It is a city, yes. The city of Jacob actually knew that this particular store was a threat and they were doing a downtown revitalization and they were going to get rid of the entrance that came right straight in from Front Street into the Cumberland Farms.
00:14:48:14 – 00:15:13:02
There were two other entrances that came in at an angle. So people had to come in and stop and make a right hand turn so they would have slowed down. But the City of Chickpea itself was going to stop this entrance and barricaded in their downtown revitalization project. They went to Cumberland Farms and said, Hey, look, we want you to close down this entrance and Cumberland Farms didn’t do it.
00:15:13:02 – 00:15:45:11
They just figured, well, we have a bottling program out there. The City of Chickpea is going to get rid of it anyhow. So Cumberland Farms did nothing. They did absolutely nothing. So this 43 year old woman was killed. Very sad. I mean, she’s married. She had a teenage daughter. Great job, too. She was the financial manager at the then Springfield Civic Center making $79,000 a year, which back then that’s pretty good money.
00:15:45:13 – 00:16:13:07
So Cumberland Farms had quite a case on their hands. And I guess the difference from the Apple Store is, is that, you know, now these things have happened more and more and more. Well, so Cumberland Farms argued several things. One, that well, these prior accidents, strikes were not similar to this one. There was a rule in the law called substantial similarity.
00:16:13:09 – 00:16:38:29
If you’re going to cite facts or often experts going to come in and say we did something wrong. The other incidents that you’re talking about have to be substantially similar to this one. Cumberland Farms said, you know, these were not substantially similar. They never should have been admitted. And the judge made a mistake by letting them in, in relevancy in the law.
00:16:39:00 – 00:17:08:20
One of the items that a judge considers when he considers whether or not evidence goes in is whether evidence is probative or whether it’s prejudicial. So it is the probative value of the evidence outweigh the prejudicial impact. So in this case, the judge said, well, this is very probative and any prejudicial value can be argued by Cumberland Farms, his attorneys.
00:17:08:20 – 00:17:39:19
So that case went on and on and on. I see a couple of differences between the Apple Store and Cumberland Farms, don’t you? Well, yeah. I mean, Cumberland Farms is a convenience store, right? So you want it to be convenient, meaning. Right. You want to have parking spaces right up by the door. Right. We’re in high traffic areas because you rely on a traffic passing by your store to people say, oh, yeah, I’m going to go and get a cup of coffee.
00:17:39:21 – 00:18:05:08
But, you know, since since you since we’ve talked about this case or I have noticed that Cumberland Farms at least are not here that I pass by, they all, all of them have bollards in front of them now. And and that makes sense because again, it’s high traffic areas. The cars are very close to the doors and windows and fronts of the buildings.
00:18:05:08 – 00:18:29:13
When people drive up to get something. So the the possibility of a of a potential accident, you know, would increase just by, you know, just by the nature of these stores, you know, what their purpose is and where they’re located. Yeah, exactly. I mean, in our preparation for this show and reading the case I just talked about, I’ve noticed the same thing that now Cumberland Farms has it pretty much all of their stores.
00:18:29:13 – 00:18:56:16
There’s one across the street from our office that we’re in right now, and they have bollards right in front of the place. And I’ve noticed that they have them, as you just said, pretty much all of the stores a difference and a distinction that I see. That’s something lawyers always say, Well, this case is distinguished from that case because in the case of Cumberland Farms, as you say, most of those stores are convenience stores.
00:18:56:16 – 00:19:22:06
They’re right on the main street, They’re in the traffic. They’re right in highly traveled areas, near shopping malls, near interstates, whereas in my experience, Doug, and you’re down in Hingham and I’m up here in the Merrimack Valley and Southern New Hampshire, things are a little bit different. When I got my iPhone right here, I’ve been to two different I’ve been to two different stores, Apple stores, to get my iPhone.
00:19:22:08 – 00:19:41:03
And they’re both in malls. Both of the Apple stores that I’ve been to are in malls. And, you know, they’re way deep in the center of our mall. There have been cases of cars driving into the ends of malls, but so there’s really no possibility. And so I’m just wondering, I know there’s an Apple store in downtown Boston.
00:19:41:03 – 00:20:12:25
I believe it’s Newbury Street. And, you know, the traffic is going crossways. They’d have to make a right angle, too. So I guess that it would be less known to Apple managers that this is a possibility at their stores. I mean, Cumberland Farms had this, you know, internal report showing 485 car strikes in a 20 year period, whereas I’m wondering if Apple would and I’m sure this is coming out now in the discovery phase of the lawsuit, but I’m wondering if they would have that type of evidence.
00:20:12:27 – 00:20:39:12
Well, it’s funny that you mention shopping malls in the greater Boston area. Yes, there are still shopping malls, but a lot of them have closed or have been torn down. So that in favor of open air shopping areas. Right. Such as the Darby Street shops. Sure. So there are more Apple stores now that I would say are exposed to the elements, if you will.
00:20:39:14 – 00:21:03:08
And they like to have just like the one at Darby Street shops, large glass fronts, you know, so you can see all the activity that’s going on there, you know, just to make it extra dangerous. Yeah, well, sure. Oh, that’s their you know, that’s their M.O. That’s like, Yeah, that’s right. You walk you walk by these mall stores and you see what do they call these?
00:21:03:08 – 00:21:23:24
They don’t call them experts. They have a name for them. I forget now, but they have the wizards that come out and ask me, would you say, Yeah, yeah. Well, if you ever go to the Apple store, you gets sucked in by these guys, like, come on in. Yeah, they’re standing there with their little clipboards, with their little with their little tablets, just waiting for you to go.
00:21:23:26 – 00:21:45:04
Yeah, Yeah. So I’m just wondering if, you know, I’m sure as we speak at this time and we can update this later discovery is going on and that the attorneys that are involved in the litigation with the Apple Store are now asking those questions. Was there some kind of a program? Were they thinking about before this accident in Hingham?
00:21:45:07 – 00:22:15:09
Were they keeping track of the type of traffic that was outside of these stores? I mean, I would really like to know that, and I’m sure it’ll come out. But so the whole touchstone with Apple would be whether they knew or should have known of the danger, because Cumberland Farms said, well, we did know of the danger at some of the higher trafficked stores or the stores where there was a lot of business and the chickpeas store just was not one of them.
00:22:15:09 – 00:22:38:24
So, I mean, well, the Apple Store, of course, you’re in a you’re in a shopping area, the Apple store in Hingham is in a large shopping area. There’s a large center parking lot and the stores are around the center parking lot. So it’s not on a main street. It’s not on a thoroughfare where you have traffic lights and accelerating traffic.
00:22:38:26 – 00:23:01:20
Well, except in this one case where you did. Right. But the way the parking lot is configured, there are lanes in the parking lot that, yes, conceivably, if your foot got stuck out of the accelerator and you had a big enough vehicle with a powerful enough engine, theoretically you could get up to 60 miles an hour just within that parking lot.
00:23:01:20 – 00:23:34:12
Sure. And conceivably crash into a store, although the chances of that happening are very low. Now, Also, Hingham is a very historical town, was founded in 1630. It is very proud of its historical heritage. Sure, as a result, there are some people in town that kind of would object to placing things such as bollards, which are kind of an unnatural thing in front of any building in town.
00:23:34:13 – 00:24:07:22
Even though obviously this shopping center is not exactly historical, it was built the historical glass building around 2000 versus, you know, 1630. So there is also some some opposition about how bollards make things look and perhaps give the impression of danger, you know, that something dangerous could happen and that’s why the bollards are there, so they be incorporated architecturally.
00:24:07:24 – 00:24:26:25
I wish I had done some research, but in the back of my mind, a town that you and I are both familiar with, Portsmouth, don’t they have some granite posts here and there? I may be wrong about that possible. Can you? I’m thinking about downtown Portsmouth, downtown Newburyport. Some of those also historic towns. What about one of your favorites?
00:24:26:25 – 00:24:53:00
Marblehead. Can’t some Marblehead know they wouldn’t let you do anything in Marblehead? Probably. But I mean, wouldn’t there be a way and I understand and I’ve I’ve actually heard more about historical concerns. Wouldn’t there be a way to think of some kind of granite posts and make them look like a hitching posed for a horse or something like that?
00:24:53:03 – 00:25:33:09
Yeah, you do that and sure enough, horses might show up. Oh, well, at least they wouldn’t be going as fast if. Yeah, right, right. But again, this was a modern shopping area, so you would think that again, to be proactive versus reactive would be something that obviously would be preferable in this case. And and perhaps other businesses, other companies will learn from this case and perhaps we will see more protective bollards in front of any number of businesses, especially one like the Apple Store, which again, was a glass entirely glass front.
00:25:33:15 – 00:25:57:05
Right. You know, there’s no there’s no brick in front of it. For instance, there’s no superstructure that, you know, that might prevent something from crashing into it. It’s all glass and all, you know, made to look like the way they want it to look. Right. Some kind of a corporate look that Apple has. They just have this look, especially in the malls, that it’s just glass from top to bottom, from side to side.
00:25:57:08 – 00:26:30:12
I’m just going back to thinking about Portsmouth and Hingham and Newburyport and other towns like that in historical Massachusetts and New Hampshire. And I’m thinking there’s a difference between the historical areas downtown in Portsmouth and Newburyport. And I mean, there are historical districts in Portsmouth that just, you know, and you can’t do anything as well it should be you can’t do anything down there without the commission saying it’s okay, as opposed to right down the street, maybe a mile away on Route one A, where your radio station was.
00:26:30:12 – 00:26:56:28
You know, there’s strip malls and shopping centers, and now they’re two different they’re two different things. And so zoning and other historical regulations could certainly be different. I mean, I, I can’t see putting a bright yellow, shiny radioactive bollard in downtown Hingham any more than I could in Portsmouth or Newburyport. But, I mean, look where it’s more appropriate.
00:26:56:28 – 00:27:28:18
I mean, zoning is different from one block to the next to the next. Why can’t there be bollards in a shopping area in Hingham? I don’t think that’s going to really besmirch the town, is it? And well, yeah, that’s yeah, I was just going to say there’s also more creative ways to make the bollards. I mean in Manchester they in near the alley they have these metal sculptures of just cats which are like it’s silly, but you could do like paint the bollards like they don’t have to be the radioactive ugly.
00:27:28:18 – 00:27:59:00
Yeah. Oh right. That’s true. And on our rail trail here in southern New Hampshire, some of the bollards are actually painted to look like birch trees. Now, I’m not suggesting that. I’m not suggesting that that could really work in Hingham or Portsmouth, but. Well, of course, a lot of these also downstate historical areas have very old winding streets where, you know, if you still have traffic on some of these old winding streets, it is going pretty slowly.
00:27:59:03 – 00:28:26:17
Right. So, you know, the the chance of having somebody drive, for instance, 60 miles an hour on one of these very narrow, winding streets where originally there were cows meandering. Right. The cow parts of Boston are now. Yes. So we talked a lot. Go ahead. I’m sorry. I was like Milk Street in downtown Boston, which connects ultimately to the common, you know, the cows were meandering through there, you know, many years ago.
00:28:26:17 – 00:28:54:03
So you don’t you don’t have the need for bollards because the traffic is less. But again, in a in a in a modern shopping area, why not? Yeah, exactly. I agree with you. So we talked about the Apple store. We’ve talked about the old Cumberland Farms case. Why don’t we find out what happened in that case? Why don’t we find out now what happened in that Cumberland Farms case?
00:28:54:05 – 00:29:25:27
The case is Dubuque versus Cumberland Farms. After a nine day trial in Hampton County, Massachusetts, Superior Court, the jury returned a verdict of $32 million in favor of Dubuque survivors. Cumberland Farms obviously not happy with that, objected and through a court process known as remitted or that judgment was reduced to $20 million. Now, that case went up on appeal to the Massachusetts Court of Appeal.
00:29:25:29 – 00:29:59:00
That court saw no problem with the objections by Cumberland Farms to allowing that report in that indicated there had been 485 prior car strikes that Cumberland Farms what the appeals court said that if there were any problem, the judge took care of it with a curative instruction to the jury, which told the jury they could either take or leave the report and take a look at whether those prior reports were substantially similar enough to consider in the present case.
00:29:59:03 – 00:30:26:04
As a side note, that store is no longer owned by Cumberland Farms. They sold it. It is now operated as a Shell station into a Massachusetts, complete with white bollards all around that. Thank you so much for joining us today. We really appreciate having you on. Thank you guys so much for watching today’s episode. Be sure to like, comment and subscribe to our channel.
00:30:26:04 – 00:30:58:07
Yes, Thank you very much for joining us, Doug. And don’t forget out there in in radio and in TV land, please like and subscribe and share with your friends. Thank you. Thank you. You have been watching about the law, a production of the law offices of Andrew de Myers in Methuen in the Merrimack Valley of Massachusetts and Derry, New Hampshire.
00:30:58:09 – 00:31:25:20
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