We set aside one day every year to give thanks, but here at Law Offices of Gregg A. Wisotsky, we are thankful throughout the year for the relationships that we have built with our clients. We value your trust and your confidence, and we are committed to helping you achieve your goals.
We hope that this holiday gives you a chance to reflect on treasured memories and cherished relationships. Happy Thanksgiving!
By: Sherry L. Foley, Esq.
The Appellate Division in Sackman v New Jersey Manufacturers Ins Co., on April 26, 2016, sanctioned the plaintiff’s appellate attorney pursuant to Rule 2:9-9. That rule is designed to deter the improper prosecution and defense of an appeal. It’s purpose is to prevent the misuse of judicial resources that result from such improprieties. Not to be confused with Rule 1:4-8 or the Frivolous Action Statute, Rule 2:9-9 is meant to deal with violations of appellate procedural rules rather than spurious appeals.
The court in Sackman felt compelled to censure and sanction appellate counsel personally because the brief he submitted “displayed an utter indifference to the standards of professional competence a tribunal is entitled to expect from an attorney admitted to practice law in this State.” Sackman, supra, slip op. at 27. The brief lacked “any effort by counsel to cite and discuss, in a professionally reasonable manner, relevant legal authority” as it pertained to points raised in his brief. Ibid.
Among counsel’s transgressions, he failed to cite the relevant standard of review; he failed to analyze case law as it applied to the facts at bar. He failed to provide any case law in support of some of his positions and instead filled pages with nothing more than his unsupported assertions. Labelling the brief “shoddy” and “unprofessional”, the court cited to State v. Hild, 148 N.J. Super. 294 (App.Div. 1977) wherein the court had addressed and condemned similar “shoddy” workmanship. “The absence of any reference to the law, as here, suggests as well a regrettable indifference on the part of the brief writer not only to the rules but to the interest of the client as well.” Id. at 296.
Reaffirming its commitment to the professional standards expressed in Hild, the court set forth three rules that every attorney practicing before the court must adhere to. First, be familiar with the record below. Second, research and analyze pertinent legal authority as it applies to the pertinent facts on appeal. Third, briefs must reflect that the first two rules were performed in a “diligent and professional manner.” Sackman at 30.
The court emphasized that this type of professional behavior is not only to be expected from the courts but from your clients as well. The monetary sanction imposed was not substantial–the attorney’s firm was to issue a check payable to the Treasurer of the State of New Jersey in the amount of $200.00—but the client lost and, based on the opinion, may have an ethical complaint against the attorney. The moral of this case is hire experienced appeal counsel to handle your appeals. From this point forward, briefs submitted to the appellate courts of New Jersey will be strictly scrutinized for compliance with the Sackman standards.
One of the most widely recognized images of Superstorm Sandy’s devastation was that of a Seaside Heights’ roller coaster sitting partially submerged in the Atlantic Ocean. Roller coasters are intertwined with boardwalks which are iconic images of New Jersey.
But while roller coasters can be a fun and safe way to satisfy thrill seekers in the Garden State and beyond, accidents have happened in the past. Now new information coming from a study by the American Academy of Neurology is linking these rides with a type of brain injury. According to the study, the big coasters can cause subdural hematoma characterized by chronic headaches. The A.D.A.M. Medical Encyclopedia defines subdural hematoma as “a collection of blood on the surface of the brain.”
The question becomes, what type of legal remedies are available for people in New Jersey who suffer from subdural hematoma or coaster injuries in general? New Jersey has the Carnival-Amusement Rides Safety Act (CARSA) which imposes a number of regulations upon amusement park owners/operators, but also can affect suits for these types of injuries.
First, to bring a personal injury law suit against an amusement park operator, CARSA mandates that the injured person has to give a written report to the operator with all of the details of the accident within 90 days. (N.J.S.A. 5:3-37). There are ways to have this time limit extended. (N.J.S.A. 5:3-38).
However, if the operator does not have the written report requirement posted “conspicuously” in English and in at least five different locations, it may not be a prerequisite for a suit.
In order to succeed in a personal injury suit, the plaintiff must prove that the owner/operator violated the standard of care that he owed to the plaintiff.
In a coaster accident case in the 1950s, the standard of care owed to patrons of roller coasters was articulated as “care commensurate with the reasonably foreseeable risk of harm, such as would be reasonable in light of the apparent risk.” Kahalili v. Rosecliff Realty, 26 N.J. 595, 603 (1958).
A plaintiff can also add in a claim that the owner/operator did not follow regulations in CARSA that, if followed, would have prevented the injury from occurring.
Another avenue for compensation can be found through a products liability law suit in which a plaintiff alleges a claim of a defect in the ride. This can be through claims of manufacturing defects, design defects or a failure to warn. These suits are typically brought against the ride manufacturers rather than the owner/operators.
As more information becomes available on the link between subdural hematoma and roller coasters, new legal precedents may arise. Until then, the aforementioned traditional legal framework for injuries occurring on roller coasters in New Jersey will apply.