Personal Injury

The Different Legal Theories in Product Liability Claims

March 5, 2019 by gwisotsky Leave a Comment

When you purchase consumer goods, you expect that the designers, manufacturers and distributors of the product have taken your safety into consideration. Unfortunately, that’s not always the case. There’s a lot of pressure to be the first to bring a new product to the market and that often results in short cuts, including the failure to properly test the goods.

When you have been hurt because of the malfunction of or your exposure to a dangerous or defective product, there are a number of legal theories upon which you can bring a claim:

Negligence—Most personal injury claims are based on allegations of negligence. To prove negligence, you must show that the at-fault party breached the duty of care (did not act as a reasonable person would), the breach caused an accident, and you suffered actual loss because of the accident.
Misrepresentation—There are two types of misrepresentation (also known as fraud): criminal fraud and tortious fraud. A product liability claim may be based on a theory of tortious misrepresentation. That typically involves false or misleading information on or related to the product. For example, a manufacturer or distributor may intentionally or carelessly make representations about the use of the product that are not true. If, upon reliance on those false statements, you suffer injury, you may have a claim for tortious misrepresentation.
Breach of warranty—The manufacturer may make express warranties about the quality of the product. In addition, there are certain implied warranties relating to products, including an implied warranty of merchantability, and an implied warranty of fitness for a particular purpose
Strict liability—Under a theory of strict liability, there’s no need to demonstrate negligence or carelessness by the designer, manufacturer or distributor of a product. Strict liability is typically imposed by statute.

In New Jersey, all potential product liability claims are covered by the New Jersey Product Liability Act.

Contact Attorney Gregg A. Wisotsky—Partner at Javerbaum, Wurgaft Hicks Kahn Wikstrom & Sinins, PC

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.

Looking for Potential Defendants in a Personal Injury Lawsuit

August 4, 2018 by gwisotsky Leave a Comment

Looking for Potential Defendants in a Personal Injury Lawsuit When you’ve been hurt by the careless or wrongful act of another person, you have a right to seek compensation for your losses. But what if that person is what the law considers “judgment proof”? For example, what if you were injured by a person who has no insurance and who has no assets. You may be able to get a verdict, but have little hope of ever collecting on that judgment.

One option is to look for other potentially responsible parties. Let’s look at some situations where that might apply:

The person who caused your injuries was working at the time of the accident—Under the concept of respondeat superior, if a person causes injury while in the course of his or her employment, his employer may potentially have some liability. For example, if you were injured in a motor vehicle accident by someone who was on a work-related errand, that person’s employer may have responsibility.
You were hurt by someone in a borrowed motor vehicle—Under the law of most states, insurance (and often liability as well) attaches to the owner of the vehicle, as well as the driver.
Your injuries were caused by a minor—Most minors don’t have the resources to satisfy a personal injury judgment. However, their parents can have potential liability, under two different theories. If the parents knew of the child’s propensity to drive carelessly, for example, they could be responsible for negligently entrusting the family car to the minor. Additionally, if the parents sent the child on an errand, the concept of vicarious liability (similar to respondeat superior) may be used to bring an action against the parents.
Your injuries were the result of a dangerous or defective product—In a product liability claim, you can hold anyone in the chain of distribution responsible for negligent design, manufacture or marketing of a product.
You can demonstrate third-party liability—It might be the failure of a municipality to maintain a roadway or the failure of a subcontractor to properly train or monitor employees. If you can show a breach of the duty of care, a causal link and actual loss, you can bring a lawsuit to recover damages.

Contact Gregg A. Wisotsky, Esq. Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC

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

Liability for Supermarket and Mall Injury Claims in New Jersey

April 29, 2018 by gwisotsky Leave a Comment

In New Jersey, as in other states, owners of commercial property have a duty to reasonably monitor and maintain commercial premises in ways that minimize the risk of injury to anyone legally on the property. That duty extends to entities that maintain control over the premises, such as commercial tenants in malls and supermarkets.

Under the law, any party that exercises control over real property must reasonably monitor the premises the duty is not absolute. In addition, the action required need only be reasonable. ‒ There’s no requirement that the safety of legal visitors be guaranteed. However, if an owner, landlord or tenant knows (or reasonably should know) of a dangerous condition, there are three permissible responses:

Remedy the situation so that it no longer poses a risk of injury
Provide reasonable warning of the risk of injury associated with the dangerous or defective property condition
Close off access to the part of the property with the dangerous or defective condition

A New Jersey Supreme Court ruling has extended potential liability beyond the borders of a defendant’s property. In a case involving Wal-Mart, the retail giant was sued by an independent contractor who fell on loose gravel on the property next to Wal-Mart, but who was under contract with Wal-Mart at the time of the accident. The worker suffered the injury on adjacent property but was on the adjacent property only because he had to leave Wal-Mart property to do his job.

Contact Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

At the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, we offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

The Different Types of Expert Witnesses in a Car Accident Claim

March 14, 2018 by gwisotsky Leave a Comment

When another driver runs a stop sign or otherwise acts carelessly and you suffer an injury as a result, it can often seem like an open and shut case. But in most instances, it’s critical to the success of your claim that you bring in expert witnesses. Here are some of the expert witnesses who can be instrumental in conveying all the necessary information to a judge and jury.

Accident Reconstruction Specialists

An accident reconstruction specialist, usually an engineer, will typically visit the scene of the crash, looking for evidence that allows him or her to determine exactly how the accident happened. This expert will measure skid marks, look for gouges or abnormalities in the pavement or roadway and examine the damage done to both vehicles. In many instances, this expert can then prepare a graphic or even an animation that shows the jury what happened.

Medical Expert

The medical expert will review all medical records and typically conduct a medical examination, identifying all the injuries sustained because of the crash. This expert will testify regarding both the injuries already suffered and the short- and long-term consequences of those injuries. He or she will tell the judge and jury what medical issues you can expect to experience in the future, as well as what types of medical treatment will be necessary, and for how long.

Financial or Economics Expert

This expert will help the judge and jury understand the full financial impact of the accident on you. The economics expert will calculate lost wages, unreimbursed medical expenses, the value of any pain and suffering, loss of companionship or consortium, property damage and any other costs incurred as a result of the accident.

Contact the law officesof Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Rise in Highway Death Toll Tied to Cheap Gas

January 6, 2018 by gwisotsky Leave a Comment

Rise in Highway Death Toll Tied to Cheap Gas

Motor vehicle safety advocates say that 2015 saw the largest increase in highway traffic fatalities in 50 years. The reason, they say, is the availability of cheap gas throughout the year.

Authorities at the National Highway Traffic Safety Administration (NHTSA) have long known that there’s a direct correlation between the price of gas and the number of deaths on the nation’s roadways. Officials say its simple mathematics. When gas prices go down, people have an increased incentive to drive and will change their driving habits. Many families will choose to drive while on vacation, rather than fly, and people will be more inclined to go out for entertainment — to a movie, show, game or just to dinner.

If the accident rate remains the same — it’s been essentially the same for the past few decades — then more people spending more time on the road will necessarily lead to more accidents, injuries and fatalities. In a study conducted at South Dakota State University, researchers found that statistics corroborated the relationship between the price of gas and the volume of traffic accidents. Professor Guangqing Chi, looking at data from the NHTSA from the past 20 years, estimated that, if gas prices stayed at or below $2 for the whole year, the death toll would increase by as many as 9,000 people. Though the numbers were not that high, they were significant. NHTSA reports show that more than 35,000 people were killed in motor vehicle accidents in 2015, up more than 5,000 from the prior year, a climb of approximately 17%.

Oh, and there’s even worse news for younger drivers. Authorities say that teenagers are likely to make up the largest percentage of increase in injuries and fatalities, as the reduced cost of gas more directly affects them. Adults with jobs and other responsibilities are less likely to change their driving habits simply because gas prices go down.

Contact Our Office

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Slips and Falls on Snow and Ice in New Jersey

December 27, 2017 by gwisotsky Leave a Comment

If you live in New Jersey, ice and snow are a part of your life in the winter months. A fresh snowfall can be a beautiful sight, a winter wonderland, but it can also pose a significant risk. Far too many people suffer needless injury in New Jersey winters when property owners fail to take reasonable steps to remove snow and ice from sidewalks, steps and parking lots.

Under New Jersey law, the owner of real property has a duty to monitor and maintain the premises in such way that it minimizes the risk of injury to anyone legally on the property. That duty can also extend to anyone who exercises control over the property, such as a property manager, landlord or tenant. It’s not an absolute duty — the exercise of care must only be reasonable.

When it comes to snow and ice on residential or commercial property in New Jersey, there are generally different standards based on the type of property. With a single-family private residence, there’s typically no duty to remove snow or ice or to warn about any risks associated with snow, ice or freezing rain. Why? Because most people don’t enter single family residential property for commercial purposes or to engage in activity that will provide a financial benefit to the homeowner. However, if the homeowner runs a business out of the home or if the homeowner takes action that makes the condition worse (pouring hot water on icy steps, for example), there can be liability.

With commercial property, you must typically show that the property owner either knew or should have known of the potential risk of injury due to ice, snow or other winter weather conditions and that the property owner failed to take reasonable steps to remedy the problem or warn potential visitors. There is an exception to this rule — if the nature of the business was such that the dangerous condition was reasonably foreseeable, there is no requirement that the property owner have actual notice of the risk.

Contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

The Timeline in a Personal Injury Lawsuit – Part Two

November 15, 2017 by gwisotsky Leave a Comment

So you’ve filed your personal injury lawsuit, you’ve had your initial conference with the judge and you’ve completed discovery. There are still several steps to complete before a trial can begin.

The Motion Phase of a Personal Injury Lawsuit

Trials can be expensive and time-consuming, so there’s an incentive on everyone’s part to resolve as many issues as possible prior to opening arguments. One of the ways that a court can streamline the trial process, or avoid it entirely, is through pretrial motions. There are two specific types of pretrial motions — dispositive motions and evidentiary motions.

Dispositive Motions

A dispositive motion seeks to preclude the need to resolve some or all of the issues being contested. Such a motion may be filed by the plaintiff (party bringing the lawsuit) or by the defendant. When the plaintiff files a dispositive motion, it’s essentially arguing that the discovery process has produced no evidence to support a viable defense. If the court agrees, the court may issue summary judgment (immediate relief) in favor of the plaintiff.

The defendant can also move to dismiss some or all of the allegations in a complaint. Similarly, the defendant will attempt to show the court that the plaintiff has failed to produce evidence to support a claim. The court may dismiss some claims and allow others to go forward.

Evidentiary Motions

During the discovery process, the rules of evidence are not as rigorously enforced. This is because there’s no possibility of unfairly affecting a jury’s decision with inadmissible evidence, since jurors are not present. However, evidence that may be disclosed during discovery may not be admissible in court—it may be opinion, it may be hearsay, it may be speculation. If that evidence is heard by jurors, it can taint the outcome. Accordingly, the court wants to make determinations of admissibility before trial, so that the rulings aren’t made in the presence of the jury.

Contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

Strict Liability in New Jersey

October 5, 2017 by gwisotsky Leave a Comment

Strict Liability in New Jersey

Though 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 use 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 because 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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The Timeline in a Personal Injury Lawsuit – Part One

September 19, 2017 by gwisotsky Leave a Comment

The Timeline in a Personal Injury Lawsuit Part One

When 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 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 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 — 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, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

New Jersey Statute of Limitations on Personal Injury

May 8, 2017 by gwisotsky Leave a Comment

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 several 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 clear, 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.

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The Different Legal Theories in Product Liability Claims

Contact Attorney Gregg A. Wisotsky—Partner at Javerbaum, Wurgaft Hicks Kahn Wikstrom & Sinins, PC

Looking for Potential Defendants in a Personal Injury Lawsuit

Liability for Supermarket and Mall Injury Claims in New Jersey

Contact Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

The Different Types of Expert Witnesses in a Car Accident Claim

Accident Reconstruction Specialists

Medical Expert

Financial or Economics Expert

Contact the law officesof Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

Rise in Highway Death Toll Tied to Cheap Gas

Contact Our Office

Slips and Falls on Snow and Ice in New Jersey

Contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

The Timeline in a Personal Injury Lawsuit – Part Two

The Motion Phase of a Personal Injury Lawsuit

Dispositive Motions

Evidentiary Motions

Contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

Strict Liability in New Jersey

Contact Us

The Timeline in a Personal Injury Lawsuit – Part One

Commencing a Personal Injury Action

The Discovery Period

Contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

New Jersey Statute of Limitations on Personal Injury

Contact Our Office

Contact Us