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Strict Liability in New Jersey

Strict Liability in New JerseyThough it’s possible to bring a personal injury claim for the intentional or reckless acts of another person, in practice the vast majority of claims for damages are based on a legal theory of negligence, where the defendant’s conduct simply didn’t meet the standard expected by a reasonable person. There are situations, however, where a person may be found liable without the need to show negligence—these types of claims fall under a legal concept known as “strict liability.”

As a general rule, strict liability offenses are statutory in nature. That means that the legislature has enacted a written law establishing liability for the specific act. The concept of strict liability is commonly applied to activities that are considered so inherently dangerous that anyone engaging in them must assume all potential liability for injuries resulting from the activity. Accordingly, there’s typically no measure of diligence or care that such a person can employ to avoid liability. Most strict liability statutes have two requirements to establish responsibility for losses:

  • That the defendant was engaged in the activity described in the statute
  • That the plaintiff suffered injury as a result of the defendant’s engagement in the activity described therein

There are, however, two potential defenses to a claim of strict liability—contributory negligence and assumption of risk.

  • An assertion of contributory negligence alleges that the injured party contributed to his or her own injury. Depending on the degree to which the plaintiff contributed to the accident, and the jurisdiction, contributory negligence may absolve a defendant of liability.
  • Assumption of risk holds that there are certain activities that require that anyone engaged in them assume some of the risk of potential injury.

The types of activities commonly addressed in strict liability statutes include such things as owning or harboring wild animals, transporting or manufacturing explosives or fireworks, or working with hazardous chemicals.

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At the Law Offices of Gregg A. Wisotsky, I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

The Timeline in a Personal Injury Lawsuit—Part One

The Timeline in a Personal Injury Lawsuit Part OneWhen the carelessness or negligence of another person causes you to suffer loss, either through personal injury or property damage, you have a right to pursue monetary compensation (known as “damages”). Often, you need the compensation soon, as you may be unable to work or to afford the costs of medical care. Unfortunately, recovering full and fair compensation for personal injury is a process that can take time. In this series, we’ll take a look at the steps along the way to trial.

Commencing a Personal Injury Action

A personal injury lawsuit starts when you file a complaint. The complaint tells the court what happened, as well as what you need to be made whole. The complaint must be filed in the appropriate court and all defendants must be properly served with a copy of the complaint. The complaint should be filed as soon as practicable after the accident, as memories can fade and witnesses can disappear. When you file the complaint, your attorney can use the power of the court to compel witnesses to testify, and to obtain other relevant evidence. You must file the lawsuit within a specific period of time set forth by statute, known as the “statute of limitations.” In New Jersey, the statute of limitations for personal injury is two years from the date of injury or discovery of injury, whichever is later.

Once the complaint is filed, the defendants have a specified period of time—usually 30 days—to file an answer to the complaint. If a defendant fails to do so, you can pursue a default judgment.

The Discovery Period

If the complaint and answer have been filed in a timely manner, the judge will typically schedule a first meeting with the parties. The function of this meeting is to allow the judge to learn a bit about the case, to determine the likelihood of a settlement, and to establish rules and a timeline for discovery. Discovery is a legal term that refers to the gathering of evidence. It’s typically done in three ways:

  • Depositions—Oral examination of witnesses, transcribed by court reporters
  • Interrogatories—Written questions submitted by one side, which typically must be responded to in writing
  • Requests for production of documents

Contact the Law Offices of Gregg A. Wisotsky

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Determining If Your Injury is Work-Related—Part Two

Determining If Your Injury is Work Related Part TwoTo qualify for workers’ compensation benefits in New Jersey, you must meet two requirements: you must prove that you suffered an injury and that the injury happened during the normal course of your employment. In an earlier blog, we addressed whether you can seek workers’ compensation benefits for injuries suffered on a break or while traveling. What your rights when you are injured at company event, or as a consequence of misconduct?

Injuries Incurred at a Company Event

If your employer sponsors an event—a ropes course, indoor mountain climbing, tennis or golf, for example—and you suffer an injury at the outing, can you file a workers’ compensation claim? In most instances, you’ll meet the test to recover benefits through a workers’ compensation claim. There are exceptions, however. For example, if you were engaging in some activity that was inherently dangerous and not endorsed or supported by the company—suppose you were staging golf cart races and yours turned over—your employer probably wouldn’t be responsible, unless the company provided alcohol and you were inebriated at the time.

Injuries Caused by Your Negligence or Carelessness

What if you were hurt while engaging in some type of activity or conduct that is clearly in violation of workplace safety rules? In most instances, you would still have a right to pursue workers’ compensation claims, because workers’ compensation laws are customarily no-fault laws—your right to benefits isn’t based on who is at fault, but only if you were injured and it was in the course of your employment. There are some exceptions to this rule—you can’t recover for self-inflicted injuries, but you can often recover if your job aggravates a pre-existing condition.

Contact Me

At the Law Offices of Gregg A. Wisotsky, I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted

Determining If Your Injury is Work-Related, Part One

Determining If Your Injury is Work Related Part OneUnder New Jersey law, you must meet two requirements to successfully recover workers’ compensation benefits in New Jersey: you must demonstrate that you were injured and that the injury occurred during the performance of normal duties of the job. Often, it’s not an issue. For example, if you are hurt when a machine malfunctioned at work or you slipped and fell while doing your job, if you can show injury resulting from repetitive stress or motion at work, or an illness caused by exposure to a toxic substance that led to an illness, you should qualify for benefits. But there are times when you’re hurt at a work-related function or while on the premises of your employer where the answer may not be so clear.

Injuries Suffered While on a Break

There are laws that require your employer to allow you to take periodic breaks, including meal breaks. What happens if you slip on the floor at the company cafeteria? Is it any different if you fall and hurt yourself at while at an offsite restaurant? Not surprisingly, “it depends.”

If you choose to leave your place of employment to get something to eat, any injuries you suffer on the way to, from or at the restaurant will generally not be covered under a workers’ compensation claim. However, if you were getting food for a company luncheon or your boss asked you to pick him up some lunch, you may successfully argue that you were on a work-related task when you were hurt.

If, on the other hand, the injury occurs at a dining facility on company property, you will probably have a valid workers’ compensation claim.

Injuries Suffered during Company-Related Travel

Injuries suffered on your drive to or from work are generally not covered, unless deviated from your normal route to perform some work-related task. For example, if your supervisor asks you to pick up donuts for the office, and you are hurt in a motor vehicle accident while on your way to or from the donut shop, you may have a claim.

If you are on a business trip and suffer an injury, you will probably be able to recover workers’ compensation, unless your employer can show that the activity you were engaged in had nothing to do with work or the trip. For example, if you are injured in a brawl at a nightclub while on a business trip, your employer will probably be able to successfully argue that you were involved in a personal activity (unless you were entertaining clients at the time).

Contact the Law Offices of Gregg A. Wisotsky

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Recovering Medical Costs after a Car Accident in New Jersey

after a Car Accident

In the aftermath of a motor vehicle accident, one of the first things you often worry about is how your medical bills will be paid. There are a couple ways this can be handled in New Jersey, depending on the type of automobile insurance policy you purchase.

In New Jersey, no-fault motor vehicle insurance is optional. If you choose no-fault coverage, you look to your own insurance provider to recover for any losses suffered in a collision. Your insurer will typically seek reimbursement of any amounts paid out from the at-fault party’s insurer, under a legal proceeding known as subrogation. But your insurer will reimburse you for all medical and other losses related to the accident.

But in New Jersey, though, unlike many other states with no-fault laws, you have the choice—you can select no-fault coverage or you can obtain a "traditional" policy of automobile insurance. If you opt for the traditional policy, you still have the right to sue the other party or the other party’s insurance provider directly.

In addition, there’s a provision in the New Jersey law that permits an injured motorist to file a personal injury claim directly against an at-fault driver or that driver’s insurance provider. If you can show that you suffered “serious injury” –defined under the statute to involve “dismemberment, significant disfigurement or scarring, displaced fractures, or the loss of a fetus—you will not be limited to pursuing a claim with your insurance carrier, but may file a civil lawsuit against the wrongdoer and/or his insurance company.

Contact Attorney Gregg A. Wisotsky

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

New Jersey Statute of Limitations on Personal Injury

Limitations on Personal Injury

When you’ve suffered injury because of someone else’s wrongful act, whether it’s the failure to perform according to the terms of a contract, or a lawsuit for injuries sustained in an accident, you have to file a claim for damages within a specific period of time or it will be barred. This rule, known as the statute of limitations, serves a number of purposes. It ensures that evidence doesn’t get lost and that witnesses don’t forget what they saw or heard. It also prevents a person from living for a long period of time with a potential claim hanging over his or her head.

The statute of limitations can vary from jurisdiction to jurisdiction and are typically different for various types of lawsuits. In New Jersey, the statute of limitations for personal injury—the time in which you must file your complaint— is "two years after the cause of any such action shall have accrued." The statute covers cases involving injury and/or death, although the clock for filing a claim for a wrongful death does not start until the actual date of death.

There are, however, situations where your injury may not be readily apparent, or where symptoms don’t become apparent for months or even years. What happens then?

New Jersey, like many other states, applies the discovery rule with respect to when the statute of limitations starts to run on a personal injury claim. Under that rule, the clock does not start to move on the statute of limitations until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered the injury. Accordingly, if your injury took some time to develop or was not apparent through reasonable observation, you will have two years from the date that you first became aware of the injury.

Contact My Office

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact the Law Offices of Gregg A. Wisotsky online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

The Most Dangerous Products on the Market

Dangerous Products

The U.S. Consumer Product Safety Commission annually reports on those items that cause the most injury. Here are a few of the most dangerous products on the market, items that could get you killed or seriously injured.

  • Playground equipment—The Centers for Disease Control report that nearly 250,000 people (mostly children) suffer some type of injury on swings, slides and other playground equipment every year, and more than10 die from their injuries.
  • Power tools—Approximately 200,000 people are hurt by power saws, nail guns and other power tools every year and more than 30 are killed.
  • Pools and hot tubs—More than 500 people die every year from drowning or other injuries sustained in a pool or hot tub. Officials say hypothermia is also a serious risk.
  • Household chemicals—Paint, fertilizer and cleaning products are the primary culprits here, causing an average of 66 deaths a year.
  • All-terrain vehicles—Nearly 200 people are killed on three and four wheelers every year, most of them under the age of 18.
  • Beds—Safety officials say that more than 400,000 people are hurt in bed-related accidents every year. An additional274 people die in bed-related accidents.

Rugs, carpet or other types of flooring—An astonishing number of people—nearly 1,000—die in accidents every year caused by dangerous or defective flooring. Almost a million are injured.

Contact Me

At the Law Offices of Gregg A. Wisotsky, I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Establishing Causation in a Personal Injury Action

Personal Injury Action

If you have been hurt because of the wrongful act of another person, you will most likely file a lawsuit alleging negligence. In a classic negligence action, one of the key elements that you must prove is “causation,” i.e., that the defendant’s breach of duty of care “caused” your injuries. Under the common law of negligence, two different types of causation have evolved-actual, or “but for” cause, and proximate cause. To successfully prosecute a personal injury claim, you must show the existence of both types of causation.

Actual (“But For”) Cause

Actual cause is pretty much as the name suggests – it asks the question “did the defendant’s negligence “actually” cause the accident and ensuing injury. In other words, if the defendant had not breached the duty of care, would the injured party have been hurt. If the answer is no, then you have established actual cause. For example, if a homeowner fails to repair a pothole in the sidewalk and you trip on the pothole, there’s actual cause for any injuries you suffer.

Proximate Cause

Proximate cause can be much more difficult to determine. Essentially, proximate cause looks at the specific injury and asks if it was reasonably foreseeable, based on the defendant’s actions. In the example above, let’s assume you tripped on the pothole and fell onto a wasp’s nest. The wasps swarmed out, traveled down the block and stung your neighbor 50 times. That neighbor went into anaphylactic shock and was hospitalized for two weeks, causing him to miss a trip to the Super Bowl, for which he’d already purchased tickets, at $2,000 per ticket. The neighbor would probably be unsuccessful in an attempt to recover the costs of the trip from you because there was no proximate cause.

Contact Me

At the Law Offices of Gregg A. Wisotsky, I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Watch Out for Products with Button Batteries

Button Batteries

When was the last time you put one of those big, clunky D-sized batteries in any kind of a product? Instead, you probably put a wafer or "button" battery in your remote control, camera, key fob, hearing aid or other product. But these batteries can pose a serious health risk, especially to children who may do what children do with lots of things—put them in their mouths.

According to published reports, over 3,000 small children required emergency care last year after swallowing a button battery. Medical professionals warn that ingesting a battery of any kind can have serious consequences, from suffocation to choking, even causing death. Furthermore, because batteries carry an electrical current, they can cause a chemical reaction with liquids, including saliva, resulting in serious internal burns. The small batteries can also become lodged in a nasal passage or an ear.

Warning Signs that Your Child May Have Swallowed a Battery

Here are some telltale signs that your child has ingested a button battery:

  • Excessive drooling
  • Hoarseness
  • Vomiting, gagging or any difficulty swallowing
  • Complaints of chest or abdominal pain
  • Sudden crying
  • Bloody saliva or stools

Doctors advise against giving your child anything to eat or drink if you suspect that the child has swallowed a battery. Don’t try the Heimlich, either—take the child to an emergency medical facility as soon as possible.

Contact the Law Offices of Gregg A. Wisotsky

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

The Standard of Care in a Negligence Lawsuit

negligence-action

When you suffer a needless injury because of the careless acts of another person, there are a number of different legal theories that may be used to pursue compensation for your losses. In most instances, however, your claim will be based on an allegation of “negligence.” Negligence is a legal term, with specific elements that must be proven in court:

  • You must show that the defendant breached an accepted “standard of care”
  • You must show a causal link between the defendant’s conduct and your injury
  • You must show that you suffered actual losses as a result of the accident

The Standard of Care

As the common law of negligence has evolved, the courts have established and reinforced the concept that everyone has a duty, in everything they do, to exercise a certain level of care. Whether you are behind the wheel of a motor vehicle, maintaining steps or stairs, designing or operating a power tool, or manufacturing a consumer product, it is expected that you will exercise a certain minimal level of care, so as not to pose an unreasonable risk to others. The standard in New Jersey, as in other states, is fairly general – you must act as a “reasonable person” would.

Some states have narrowed that definition a little, holding that a reasonable person is an “average person of ordinary prudence.” The ultimate determination of whether a defendant breached a duty of care rests with the jury, though. Juries are tasked with determining the facts in a case, and whether or not the defendant acted reasonably is considered an issue of fact.

Click here to learn about causation in a personal injury lawsuit.

Contact the Law Offices of Gregg A. Wisotsky

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

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