N.J.A.C. 13:19-10.2 Point Accumulation; period of suspension
(a) The Director shall, except for good cause, suspend a person's license to operate a motor vehicle and/or motorized bicycle in accordance with the following schedule:
POINTS ACCUMULATED PERIOD OF SUSPENSION
12 to 15 points in a period of two years or less; 30 days
16 to 18 points in a period of two years or less; 60 days
19 to 21 points in a period of two years or less; 90 days
22 to 24 points in a period of two years or less; 120 days
25 to 27 points in a period of two years or less; 150 days
28 or more points in a period of two years or less; not less than 180 days
15 to 18 points in a period greater than two years; 30 days
19 to 22 points in a period greater than two years; 60 days
23 to 26 points in a period greater than two years; 90 days
27 to 30 points in a period greater than two years; 120 days
31 to 35 points in a period greater than two years; 150 days
36 or more points in a period greater than two years; not less than 180 days
12 to 14 points in a period greater than two years; 30 days
(b) For good cause shown, the Director may in his discretion permit a person to attend a driver improvement course of the Division of Motor Vehicles in total or partial satisfaction of a period of suspension imposed under (a) above. In exercising his discretion, the Director shall consider the person's driving record prior warnings or driver improvement school attendance maturity and any other aggravating or mitigating factor.
Wednesday, October 29, 2008
DRIVER PROGRAMS N.J.A.C. 13:19-10.3
Driver Improvement Program
Motorists who accumulate between 12 and 14 points in a 24-month period will
receive a Notice of Scheduled Suspension by mail from the MVC.
Upon receiving the notice, a motorist can do one of the following:
• Attend a New Jersey Driver Improvement Program
• Request a hearing
• Surrender his/her driver license for the suspension period
The MVC Chief Administrator or an administrative law judge will determine if
driving privileges should be suspended for a motorist who is granted a hearing.
A motorist who successfully completes a Driver Improvement Program will have
three points removed from his/her record (N.J.S.A. 39:5-30.9). The class fee is
$100 (N.J.A.C. 13:19-10.3(c). After completion of a Driver Improvement Program
or after restoration of a motorist’s driving privilege, he/she will be in a probationary
period for one year. Any violations that occur during this probationary period will
result in a scheduled suspension of the motorist’s driving privileges.
Motorists who accumulate between 12 and 14 points in a 24-month period will
receive a Notice of Scheduled Suspension by mail from the MVC.
Upon receiving the notice, a motorist can do one of the following:
• Attend a New Jersey Driver Improvement Program
• Request a hearing
• Surrender his/her driver license for the suspension period
The MVC Chief Administrator or an administrative law judge will determine if
driving privileges should be suspended for a motorist who is granted a hearing.
A motorist who successfully completes a Driver Improvement Program will have
three points removed from his/her record (N.J.S.A. 39:5-30.9). The class fee is
$100 (N.J.A.C. 13:19-10.3(c). After completion of a Driver Improvement Program
or after restoration of a motorist’s driving privilege, he/she will be in a probationary
period for one year. Any violations that occur during this probationary period will
result in a scheduled suspension of the motorist’s driving privileges.
N.J.A.C. 13:19-10.4 Notice to drivers
N.J.A.C. 13:19-10.4 Notice to drivers
(a) Whenever a person accumulates 6 or more points, the Division shall send an official notice advising the motorist of such status.
(b) Whenever a person who is licensed on a probationary basis in accordance with N.J.S.A. 39:3-10b is first convicted of a motor vehicle violation requiring the assessment of points against the individual's driving record under N.J.A.C. 13:19-10.1 the Division shall send an official notice advising the motorist of the status of the driving record.
(a) Whenever a person accumulates 6 or more points, the Division shall send an official notice advising the motorist of such status.
(b) Whenever a person who is licensed on a probationary basis in accordance with N.J.S.A. 39:3-10b is first convicted of a motor vehicle violation requiring the assessment of points against the individual's driving record under N.J.A.C. 13:19-10.1 the Division shall send an official notice advising the motorist of the status of the driving record.
Estate Planning to Protect Kids
GOT KIDS? ESTATE PLANNING IS RECOMMENDED
If you have minor children and do not have a will, one author wrote you are doing them a great disservice bordering on child neglect. If you do not name a guardian for your minor children think of the worst relative you have and that's who will get the kids. Makes you shudder, doesn't it?
We've finished the graduation season and kids have started college. Do you have a recent high school grad? Is your son or daughter over 18 and heading off to college? Did you remember that your child is now an adult and your control over them is limited? For example, if your daughter becomes ill while at school and is admitted to the hospital or student health center, you are NOT legally entitled to know about it-or about her condition; even if you are paying for everything.
So, here's the plan. Have your college son or daughter prepare a HIPAA authorization form. This allows your child to name the parents as the persons to discuss health care matters with medical personnel. Without it, you cannot legally learn anything. It's something that most parents never think about.
It may also be prudent for your child to execute the basic documents listed above, including the Durable Power or Attorney and Advance Directives. Once a child turns 18, your legal connection is irrevocably changed.
REAL ESTATE
Do you own real estate? How is it titled? Is it a survivorship deed? Have you considered a transfer on death deed? Some states permit those and they work very well. Do you have a second home? Is it outside your home state? What are the laws in that state regarding the inheritance of property? Schedule an appointment with your attorney.
If you have minor children and do not have a will, one author wrote you are doing them a great disservice bordering on child neglect. If you do not name a guardian for your minor children think of the worst relative you have and that's who will get the kids. Makes you shudder, doesn't it?
We've finished the graduation season and kids have started college. Do you have a recent high school grad? Is your son or daughter over 18 and heading off to college? Did you remember that your child is now an adult and your control over them is limited? For example, if your daughter becomes ill while at school and is admitted to the hospital or student health center, you are NOT legally entitled to know about it-or about her condition; even if you are paying for everything.
So, here's the plan. Have your college son or daughter prepare a HIPAA authorization form. This allows your child to name the parents as the persons to discuss health care matters with medical personnel. Without it, you cannot legally learn anything. It's something that most parents never think about.
It may also be prudent for your child to execute the basic documents listed above, including the Durable Power or Attorney and Advance Directives. Once a child turns 18, your legal connection is irrevocably changed.
REAL ESTATE
Do you own real estate? How is it titled? Is it a survivorship deed? Have you considered a transfer on death deed? Some states permit those and they work very well. Do you have a second home? Is it outside your home state? What are the laws in that state regarding the inheritance of property? Schedule an appointment with your attorney.
What is Probate?
What is Probate?
by Kenneth A. Vercammen, Esq.
Probate is the process where after death the instructions of the Will are carried out. Will is admitted to “Probate” in the County Surrogate. Some people refer to the Surrogate as the Will Clerk. Upon the death of the testator or testatrix (maker of the Will), the probate procedure can begin. This is the legal process which establishes the genuineness of the Will. It is done by the Surrogate in the county where the testator or testatrix resided at the time of death.
The probate application must contain the following information:
1. the applicant's residence;?
2. the name, domicile and date of death of the decedent;?
3. the names and addresses of the decedent's spouse, heirs (those entitled to take under the laws of interstate succession), and any person named to serve as Executor;?
4. the ages of any minor heirs; and?
5. the names of the testator's children when the Will was made and the names of children born and adopted after the Will was made, or their children, if any.
To minimize time spent in the Surrogate, it is recommended, and in some counties required, that before an Executor submits the Will for probate the executor’s attorney or executor send the Court:
1) a "data sheet" (referred to in some counties as an "information sheet" or a "fact sheet") containing the information needed by the Surrogate to complete the application;
2) a copy of the Will; and
3) a copy of the death certificate.
FILING A PROBATE APPLICATION Upon the death of a person, a probate proceeding may be commenced by offering the decedent's (the dead person's ) last Will for probate in the Surrogate's Court of the county in which the decedent was domiciled at death. R. 4:80-1(a). Generally, the Executor nominated in the Will brings the proceeding by filing a verified application with the Court.
When the applicant files the original Will for probate, the applicant must also file a death certificate (and original with a raised seal). A filing fee of approximately $150 must be paid. Once the Will, application and death certificate are filed, the Surrogate will review the papers, and if there are no irregularities or objections, admit the Will to probate. Although New Jersey law prohibits admission of a Will to probate within 10 days of the testator's death, an applicant may submit the application prior to expiration of the 10-day period. If the Will is filed after the 10-day waiting period, many Courts will issue a judgment for probate contemporaneously with the filing of the probate papers.
Qualifying the Executor
Once the Will is admitted to probate, the Court will issue letters testamentary to an Executor who has properly qualified to serve. An Executor named in a Will qualifies to serve by filing a form affidavit in which the Executor agrees to perform his or her duties. The nominated Executor must also provide a power of attorney to the Surrogate empowering the Surrogate to accept service of process of claims against the estate. Once the Executor qualifies, the Court then issues letters testamentary.
Mailing Probate Notices
After a Will is admitted to probate, the Executor’s Attorney or Executor must mail within 60 days a notice of probate to the decedent's spouse, heirs and all beneficiaries under the Will. The notice of probate should contain the executor's name and address, place and date that the Will was probated, and an offer to furnish a copy of the Will upon request. Within 10 days of mailing the notice the Executor’s Attorney or Executor should file proof of service of the notice with the Surrogate's Court. Once notice of probate has been sent and proof of mailing has been filed the probate process is essentially completed.
Completing the probate process should cause only minimal delay, perhaps a few weeks, in administering a decedent's affairs. The cost of admitting a Will to probate should be limited. Unlike in some other states, the Surrogate's filing fee in New Jersey is the same regardless of the size of the estate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer pg. 14 ( July/August 1992)
How do I begin the probate procedure?
The Executor or personal representative can be appointed and the Will admitted to probate in most cases by going to the Surrogate's Court with the original Will, certified death certificate, and, if the Will is not self-proven, at least one of the witnesses who signed the Will must prove the signature on the Will.
How is an administrator appointed when there is no Will?
When there is no Will, an administrator, administratrix or personal representative is appointed by the Surrogate's Court. The surviving spouse has the first right to apply for the position of administrator; however, any heir of the decedent may be appointed. When one of several heirs seeks to be appointed administrator, all other heirs must renounce their right to be appointed administrator. In most cases, a surety bond must be furnished to cover the value of the real and personal property in the estate.
What kind of information should I collect?
The decedent's personal representative should make a list of all of the next of kin of the person who died, along with their degree of relationship, addresses and ages.
What if the Will is not properly executed?
The Surrogate will advise the personal representative as to the proper procedure in order to allow the Will to be admitted to probate. This procedure normally involves a formal hearing before a Judge of the Superior Court.
How soon must state inheritance taxes be paid?
State inheritance tax returns must be filed and the tax paid within eight (8) months after decedent's death to avoid interest.
Are unpaid inheritance taxes a lien on property?
Yes, to sell real estate, you Will need to obtain "tax waivers" from the New Jersey State Transfer Inheritance 'Tax Bureau, and the waivers must be filed with the County Clerk in the county where the land is located. Land held by husband and wife as "tenants by the entirety" need not be reported and may be transferred without a waiver. Other property may be subject to a lien for unpaid inheritance taxes such as bank accounts and certificates of deposit.
How about federal estate taxes?
In 2008 there is no federal tax due unless the estate exceeds $2,000,000. However, there is a New Jersey Estate tax for estates over $675,000.
There is also an unlimited federal marital deduction, which means unlimited amounts of property can be transferred between spouses without estate of gift taxes.
How many Surrogate's Certificates ("Shorts") Will I need?
A list of all of the assets of the estate should also be prepared to help determine the number of Surrogate's Certificates that must be issued by the probate clerk in the Surrogate's Office.
When is the Will admitted to probate?
After all the proper forms are filed with the probate clerk, the clerk will prepare a judgment which admits the Will to probate. The Surrogate then signs the judgment and issues "Letters Testamentary."
What are Surrogate's Certificates used for?
Surrogate's Certificates act as evidence of the authority of the personal representative ( Executor, Administrator, Trustee ) to act. These certificates are necessary to accomplish certain tasks such as transferring stocks, closing bank accounts, etc.
Is it necessary to send copies of the Will to the beneficiaries?
From the time the Will is probated, the Executer has 60 days to mail all beneficiaries a notice that they can be provided with a copy of the Will, along with a notice giving the specific date and place the Will was entered into probate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer
Basically, what is the Executor/Administrator required to do?
The Executor or Administrator is, in general, required to collect and safeguard all of the assets of the estate and eventually to pay the debts of the decedent, as well as any taxes due, and be able to provide an accounting of his actions to the beneficiaries or heirs. An Executor or Administrator must obtain the necessary legal documents, called either LETTERS TESTAMENTARY (for an Executor) or LETTERS OF ADMINISTRATION (for an Administrator), are obtained through the Surrogate in the county in which the DECEDENT (the deceased person) resided at the time of death.
The duties of the personal representative include:
* - finding the Will and having it PROBATED. Probate is the legal procedure used to establish the validity of a Will.?* - locating and protecting the assets of the estate.?* - finding and notifying the heirs.?* - paying the debts, expenses, and taxes of the estate from the assets of the estate.?* - complying with the requirements of state and federal law.?* - distributing property to the heirs after all proper procedures have been followed.
Is an attorney necessary in estate administration?
As a practical matter, it is very difficulty for a nonlawyer to correctly follow the required procedures in administering an estate without the assistance of an attorney. The personal representative selects the attorney for the estate. You may wish to call your attorney to give you further advice as to specific duties and obligations.
Where does the Executor/Administrator obtain the funds to pay debts?
The Executor may, in most cases, withdraw up to one-half of the funds in the decedent's New Jersey bank accounts. Generally, the Executor should open an estate checking account which can be used to receive and disburse funds.
Am I entitled to compensation for acting as Executor or Administrator?
An Executor or Administrator is entitled to corpus commissions of 5% of the first $200,000.00 of estate assets subject to administration, 3-1/2% on the excess over $200,000.00 up to $1,000,000.00 and 2% or such other percentage as the Court may determine on the excess over $1,000,000.00.
If there is more than one Executor or Administrator, an additional 1% corpus commission may be allowed by the Court for each additional Executor or Administrator.
In addition to corpus commissions, an Executor or Administrator is entitled to income commissions of 6% of income earned on estate corpus during the administration of the estate.
What do I do about a safe deposit box in the name of the decedent ?
Individuals generally keep their Will in their safe deposit box. The personal representative is permitted to remove the original Will, as well as a deed to a cemetery plot and certain life insurance policies from the decedent's safe deposit box before probate without a representative of the Inheritance Tax Bureau present.
How do I handle joint bank accounts or certificates of deposit?
Certain bank accounts and certificates may be owned with rights of survivorship, which means that upon the death of one party to the account, the surviving party (or parties) become the sole owner (or owners). If the decedent maintained such an account, the survivor Will be able to withdraw on-half of the funds in the account by giving the bank a Death Certificate and without the need to provide anything from the Surrogate. The other half will not be released until a tax waiver is issued by the New Jersey Transfer Inheritance Tax Bureau, normally after the tax is paid and the return is filed.
Is all this paperwork necessary even on small estates?
There is a procedure whereby the assets of small estates can be transferred to the surviving spouse without the necessity of administration. The spouse files an affidavit stating, among other things, that the decedent had no Will and that all of the real and personal assets of the decedent do not exceed $10,000.
How do I prove that legacies were paid?
The Executor has a duty to pay the legacies or distribute shares as provided for under the Will; however, when he /she does so, he/she must take a Release and Refunding Bond from the person taking the share. The Refunding Bond is then forwarded to the Surrogate for filing and recording.
What if there is no Will?
If the decedent dies without a Will (intestate), there is a statute which determines to whom the decedent's property is to be distributed according to the degree of family relationship.
by Kenneth A. Vercammen, Esq.
Probate is the process where after death the instructions of the Will are carried out. Will is admitted to “Probate” in the County Surrogate. Some people refer to the Surrogate as the Will Clerk. Upon the death of the testator or testatrix (maker of the Will), the probate procedure can begin. This is the legal process which establishes the genuineness of the Will. It is done by the Surrogate in the county where the testator or testatrix resided at the time of death.
The probate application must contain the following information:
1. the applicant's residence;?
2. the name, domicile and date of death of the decedent;?
3. the names and addresses of the decedent's spouse, heirs (those entitled to take under the laws of interstate succession), and any person named to serve as Executor;?
4. the ages of any minor heirs; and?
5. the names of the testator's children when the Will was made and the names of children born and adopted after the Will was made, or their children, if any.
To minimize time spent in the Surrogate, it is recommended, and in some counties required, that before an Executor submits the Will for probate the executor’s attorney or executor send the Court:
1) a "data sheet" (referred to in some counties as an "information sheet" or a "fact sheet") containing the information needed by the Surrogate to complete the application;
2) a copy of the Will; and
3) a copy of the death certificate.
FILING A PROBATE APPLICATION Upon the death of a person, a probate proceeding may be commenced by offering the decedent's (the dead person's ) last Will for probate in the Surrogate's Court of the county in which the decedent was domiciled at death. R. 4:80-1(a). Generally, the Executor nominated in the Will brings the proceeding by filing a verified application with the Court.
When the applicant files the original Will for probate, the applicant must also file a death certificate (and original with a raised seal). A filing fee of approximately $150 must be paid. Once the Will, application and death certificate are filed, the Surrogate will review the papers, and if there are no irregularities or objections, admit the Will to probate. Although New Jersey law prohibits admission of a Will to probate within 10 days of the testator's death, an applicant may submit the application prior to expiration of the 10-day period. If the Will is filed after the 10-day waiting period, many Courts will issue a judgment for probate contemporaneously with the filing of the probate papers.
Qualifying the Executor
Once the Will is admitted to probate, the Court will issue letters testamentary to an Executor who has properly qualified to serve. An Executor named in a Will qualifies to serve by filing a form affidavit in which the Executor agrees to perform his or her duties. The nominated Executor must also provide a power of attorney to the Surrogate empowering the Surrogate to accept service of process of claims against the estate. Once the Executor qualifies, the Court then issues letters testamentary.
Mailing Probate Notices
After a Will is admitted to probate, the Executor’s Attorney or Executor must mail within 60 days a notice of probate to the decedent's spouse, heirs and all beneficiaries under the Will. The notice of probate should contain the executor's name and address, place and date that the Will was probated, and an offer to furnish a copy of the Will upon request. Within 10 days of mailing the notice the Executor’s Attorney or Executor should file proof of service of the notice with the Surrogate's Court. Once notice of probate has been sent and proof of mailing has been filed the probate process is essentially completed.
Completing the probate process should cause only minimal delay, perhaps a few weeks, in administering a decedent's affairs. The cost of admitting a Will to probate should be limited. Unlike in some other states, the Surrogate's filing fee in New Jersey is the same regardless of the size of the estate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer pg. 14 ( July/August 1992)
How do I begin the probate procedure?
The Executor or personal representative can be appointed and the Will admitted to probate in most cases by going to the Surrogate's Court with the original Will, certified death certificate, and, if the Will is not self-proven, at least one of the witnesses who signed the Will must prove the signature on the Will.
How is an administrator appointed when there is no Will?
When there is no Will, an administrator, administratrix or personal representative is appointed by the Surrogate's Court. The surviving spouse has the first right to apply for the position of administrator; however, any heir of the decedent may be appointed. When one of several heirs seeks to be appointed administrator, all other heirs must renounce their right to be appointed administrator. In most cases, a surety bond must be furnished to cover the value of the real and personal property in the estate.
What kind of information should I collect?
The decedent's personal representative should make a list of all of the next of kin of the person who died, along with their degree of relationship, addresses and ages.
What if the Will is not properly executed?
The Surrogate will advise the personal representative as to the proper procedure in order to allow the Will to be admitted to probate. This procedure normally involves a formal hearing before a Judge of the Superior Court.
How soon must state inheritance taxes be paid?
State inheritance tax returns must be filed and the tax paid within eight (8) months after decedent's death to avoid interest.
Are unpaid inheritance taxes a lien on property?
Yes, to sell real estate, you Will need to obtain "tax waivers" from the New Jersey State Transfer Inheritance 'Tax Bureau, and the waivers must be filed with the County Clerk in the county where the land is located. Land held by husband and wife as "tenants by the entirety" need not be reported and may be transferred without a waiver. Other property may be subject to a lien for unpaid inheritance taxes such as bank accounts and certificates of deposit.
How about federal estate taxes?
In 2008 there is no federal tax due unless the estate exceeds $2,000,000. However, there is a New Jersey Estate tax for estates over $675,000.
There is also an unlimited federal marital deduction, which means unlimited amounts of property can be transferred between spouses without estate of gift taxes.
How many Surrogate's Certificates ("Shorts") Will I need?
A list of all of the assets of the estate should also be prepared to help determine the number of Surrogate's Certificates that must be issued by the probate clerk in the Surrogate's Office.
When is the Will admitted to probate?
After all the proper forms are filed with the probate clerk, the clerk will prepare a judgment which admits the Will to probate. The Surrogate then signs the judgment and issues "Letters Testamentary."
What are Surrogate's Certificates used for?
Surrogate's Certificates act as evidence of the authority of the personal representative ( Executor, Administrator, Trustee ) to act. These certificates are necessary to accomplish certain tasks such as transferring stocks, closing bank accounts, etc.
Is it necessary to send copies of the Will to the beneficiaries?
From the time the Will is probated, the Executer has 60 days to mail all beneficiaries a notice that they can be provided with a copy of the Will, along with a notice giving the specific date and place the Will was entered into probate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer
Basically, what is the Executor/Administrator required to do?
The Executor or Administrator is, in general, required to collect and safeguard all of the assets of the estate and eventually to pay the debts of the decedent, as well as any taxes due, and be able to provide an accounting of his actions to the beneficiaries or heirs. An Executor or Administrator must obtain the necessary legal documents, called either LETTERS TESTAMENTARY (for an Executor) or LETTERS OF ADMINISTRATION (for an Administrator), are obtained through the Surrogate in the county in which the DECEDENT (the deceased person) resided at the time of death.
The duties of the personal representative include:
* - finding the Will and having it PROBATED. Probate is the legal procedure used to establish the validity of a Will.?* - locating and protecting the assets of the estate.?* - finding and notifying the heirs.?* - paying the debts, expenses, and taxes of the estate from the assets of the estate.?* - complying with the requirements of state and federal law.?* - distributing property to the heirs after all proper procedures have been followed.
Is an attorney necessary in estate administration?
As a practical matter, it is very difficulty for a nonlawyer to correctly follow the required procedures in administering an estate without the assistance of an attorney. The personal representative selects the attorney for the estate. You may wish to call your attorney to give you further advice as to specific duties and obligations.
Where does the Executor/Administrator obtain the funds to pay debts?
The Executor may, in most cases, withdraw up to one-half of the funds in the decedent's New Jersey bank accounts. Generally, the Executor should open an estate checking account which can be used to receive and disburse funds.
Am I entitled to compensation for acting as Executor or Administrator?
An Executor or Administrator is entitled to corpus commissions of 5% of the first $200,000.00 of estate assets subject to administration, 3-1/2% on the excess over $200,000.00 up to $1,000,000.00 and 2% or such other percentage as the Court may determine on the excess over $1,000,000.00.
If there is more than one Executor or Administrator, an additional 1% corpus commission may be allowed by the Court for each additional Executor or Administrator.
In addition to corpus commissions, an Executor or Administrator is entitled to income commissions of 6% of income earned on estate corpus during the administration of the estate.
What do I do about a safe deposit box in the name of the decedent ?
Individuals generally keep their Will in their safe deposit box. The personal representative is permitted to remove the original Will, as well as a deed to a cemetery plot and certain life insurance policies from the decedent's safe deposit box before probate without a representative of the Inheritance Tax Bureau present.
How do I handle joint bank accounts or certificates of deposit?
Certain bank accounts and certificates may be owned with rights of survivorship, which means that upon the death of one party to the account, the surviving party (or parties) become the sole owner (or owners). If the decedent maintained such an account, the survivor Will be able to withdraw on-half of the funds in the account by giving the bank a Death Certificate and without the need to provide anything from the Surrogate. The other half will not be released until a tax waiver is issued by the New Jersey Transfer Inheritance Tax Bureau, normally after the tax is paid and the return is filed.
Is all this paperwork necessary even on small estates?
There is a procedure whereby the assets of small estates can be transferred to the surviving spouse without the necessity of administration. The spouse files an affidavit stating, among other things, that the decedent had no Will and that all of the real and personal assets of the decedent do not exceed $10,000.
How do I prove that legacies were paid?
The Executor has a duty to pay the legacies or distribute shares as provided for under the Will; however, when he /she does so, he/she must take a Release and Refunding Bond from the person taking the share. The Refunding Bond is then forwarded to the Surrogate for filing and recording.
What if there is no Will?
If the decedent dies without a Will (intestate), there is a statute which determines to whom the decedent's property is to be distributed according to the degree of family relationship.
HURT AT WORK? Don't Get Mad. Get Justice!
When the Workers' Compensation Act was passed many years ago it was probably the first true "no fault" law in this State. With some very narrow exceptions, the question of negligence (fault) is not an issue if a worker is hurt on the job. Whether or not the employer is at fault has no impact on the worth of a case. In cases involving injuries suffered in connection with employment, your lawyer will represent you without payment in advance.
If a worker is injured on the job, the worker has three basic rights:
(1) the right to medical treatment;
(2) the right to receive payment (temporary disability) for lost time; and
(3) the right to receive payment for any after-effects of the injury if the after-effects are found to be permanent (partial permanent disability).
If you are injured, you should immediately report the accident. Make sure an accident report is filled out and write down the names of all witnesses.
When a worker is injured on the job, the employer or the employer's insurance company are obligated to furnish and pay for medical treatment. However, in New Jersey, the employer has the right to select the doctors who will provide that treatment, since it's the employer or its insurance company who is responsible for payment of medical expenses. It follows that if the worker does not go to the authorized treating doctor, then the employer will generally not be responsible for payment of the medical expenses. When an employee is hurt on the job, the employee is entitled to receive temporary disability benefits of 70% of wages up to an amount set by the State. For example, the maximum amount for an injury in 1997 is $496 per week. These benefits are payable on a retroactive basis if the employee is out at least seven (7) days and the treating doctor certifies that the employee cannot work.
In general, temporary disability benefits will continue to be paid so long as the workers' treating doctor certifies that the employee cannot work.
When medical treatment is completed and the employee is able to return to work, there may be a basis for payment to the employee of benefits for the after-effects of the injury. This is called partial permanent disability and is based on a schedule which utilizes a system of assigning value to each part of the body on a scale of 1% to 100%.
Generally, the issue of partial permanent disability is resolved by filing a claim in the Division of Workers' Compensation. A lawyer who represents a claimant before the Division of Workers' Compensation may not charge any fee in advance. An Administrative Law Judge who hears the case will set the fee (never more than 20%) and if there is no recovery, an attorney will not be allowed a fee.
Finally, disposition of a claim in the Division of Workers' Compensation will not always operate to end a claim. There are rights and obligations on the part of both the employer and the employee.
Since an employee is not obligated to pay a fee in a workers' compensation case unless awarded by the Court, it would make sense for the employee to immediately consult an attorney to protect his/her rights.
The employee should also be aware of the fact that there are time limits regarding the reporting of accidents. The safest approach is, of course, to report a work related accident immediately, even if it seems relatively minor at the time. Failure to report an accident can cause delays in receiving temporary disability and other benefits.
When you meet with a worker's compensation attorney, the following information will be requested from you:
1. Name, address and telephone number.
2. Name, address and telephone number of employer.
3. Name, address and telephone number of any union the client is a member of , along with full details of any union benefits that may have been received or to which the client has a right. (There may be a union benefit plan which provides the employee with payments for drugs and medical bills in addition to workers' compensation benefits.)
4. The job title the client held when injured, along with the client's educational background and previous employment history.
5. The nature of the employer's business.
6. Your Social Security number.
7. Your sex, age, and marital status at the time of the accident.
8. The name of the employer's worker's compensation insurance carrier or indication of whether the employer is self-insured.
9. The exact details of how you gave notice of the accident to the employer or whether the facts and circumstances are such that the employer must have had knowledge.
10. The exact place where the accident occurred and the date and time of the occurrence.
11. A full description in your own handwriting of how the accident occurred or to the exposures if an occupational disease case.
12. Your wages or earnings and whether on time or piece-work basis, the rate per hour, or the weekly wage.
13. The date when you stopped work and the date of return to work.
14. A statement of past and present complaints, as well as a description of all body parts affected by the accident. Explain any emotional complaints since the accident to investigate the question of neuro-psychiatric disability.
15. The compensation paid for temporary or permanent disability must be ascertained.
16. Full details as to medical aid required and whether it was requested from the employer. If the medical treatment was furnished by the employer, all dates of treatment should be inventoried. If the employer refused to furnish the treatment, indicate in detail all requests made to the employer for treatment, as well as obtaining the names and addresses of all doctors who furnished the treatment.
17. Be certain you have the names and addresses of all physicians and hospitals who rendered medical treatment since the accident, including but not limited to the injuries arising from the accident. Attempt to obtain the amount of all physician's bills and prepare a file for paid and unpaid bills.
If you are receiving medical treatment from a doctor of your choice or if the employer has refused to render medical treatment, the attorney must give written notification to the employer and its insurance carrier of all the details concerning your injuries and accident and the name and address of the doctor by whom he is being treated or the name and address of the doctor who is going to be treating him. The attorney must clearly indicate in the letter that this is a formal request pursuant to Title 34 for the employer/respondent to furnish medical treatment by the doctor chosen by the petitioner or, alternatively, that the respondent should immediately provide the name and address of a doctor that it wants to treat the petitioner. In Worker's Compensation, the respondent controls the choice of doctor.
18. Any Blue Cross, Blue Shield, or major medical plans which cover you, as well as identification numbers, since it may be possible to obtain payment for medical bills from these plans, if the employer/worker's compensation refuses to make payment. See Workers' Compensation (ICLE 1983).
If you are injured while working, we recommend you immediately speak with an experienced attorney.
Christina Bruschetta - "Criminal Article Blog Editor"
If a worker is injured on the job, the worker has three basic rights:
(1) the right to medical treatment;
(2) the right to receive payment (temporary disability) for lost time; and
(3) the right to receive payment for any after-effects of the injury if the after-effects are found to be permanent (partial permanent disability).
If you are injured, you should immediately report the accident. Make sure an accident report is filled out and write down the names of all witnesses.
When a worker is injured on the job, the employer or the employer's insurance company are obligated to furnish and pay for medical treatment. However, in New Jersey, the employer has the right to select the doctors who will provide that treatment, since it's the employer or its insurance company who is responsible for payment of medical expenses. It follows that if the worker does not go to the authorized treating doctor, then the employer will generally not be responsible for payment of the medical expenses. When an employee is hurt on the job, the employee is entitled to receive temporary disability benefits of 70% of wages up to an amount set by the State. For example, the maximum amount for an injury in 1997 is $496 per week. These benefits are payable on a retroactive basis if the employee is out at least seven (7) days and the treating doctor certifies that the employee cannot work.
In general, temporary disability benefits will continue to be paid so long as the workers' treating doctor certifies that the employee cannot work.
When medical treatment is completed and the employee is able to return to work, there may be a basis for payment to the employee of benefits for the after-effects of the injury. This is called partial permanent disability and is based on a schedule which utilizes a system of assigning value to each part of the body on a scale of 1% to 100%.
Generally, the issue of partial permanent disability is resolved by filing a claim in the Division of Workers' Compensation. A lawyer who represents a claimant before the Division of Workers' Compensation may not charge any fee in advance. An Administrative Law Judge who hears the case will set the fee (never more than 20%) and if there is no recovery, an attorney will not be allowed a fee.
Finally, disposition of a claim in the Division of Workers' Compensation will not always operate to end a claim. There are rights and obligations on the part of both the employer and the employee.
Since an employee is not obligated to pay a fee in a workers' compensation case unless awarded by the Court, it would make sense for the employee to immediately consult an attorney to protect his/her rights.
The employee should also be aware of the fact that there are time limits regarding the reporting of accidents. The safest approach is, of course, to report a work related accident immediately, even if it seems relatively minor at the time. Failure to report an accident can cause delays in receiving temporary disability and other benefits.
When you meet with a worker's compensation attorney, the following information will be requested from you:
1. Name, address and telephone number.
2. Name, address and telephone number of employer.
3. Name, address and telephone number of any union the client is a member of , along with full details of any union benefits that may have been received or to which the client has a right. (There may be a union benefit plan which provides the employee with payments for drugs and medical bills in addition to workers' compensation benefits.)
4. The job title the client held when injured, along with the client's educational background and previous employment history.
5. The nature of the employer's business.
6. Your Social Security number.
7. Your sex, age, and marital status at the time of the accident.
8. The name of the employer's worker's compensation insurance carrier or indication of whether the employer is self-insured.
9. The exact details of how you gave notice of the accident to the employer or whether the facts and circumstances are such that the employer must have had knowledge.
10. The exact place where the accident occurred and the date and time of the occurrence.
11. A full description in your own handwriting of how the accident occurred or to the exposures if an occupational disease case.
12. Your wages or earnings and whether on time or piece-work basis, the rate per hour, or the weekly wage.
13. The date when you stopped work and the date of return to work.
14. A statement of past and present complaints, as well as a description of all body parts affected by the accident. Explain any emotional complaints since the accident to investigate the question of neuro-psychiatric disability.
15. The compensation paid for temporary or permanent disability must be ascertained.
16. Full details as to medical aid required and whether it was requested from the employer. If the medical treatment was furnished by the employer, all dates of treatment should be inventoried. If the employer refused to furnish the treatment, indicate in detail all requests made to the employer for treatment, as well as obtaining the names and addresses of all doctors who furnished the treatment.
17. Be certain you have the names and addresses of all physicians and hospitals who rendered medical treatment since the accident, including but not limited to the injuries arising from the accident. Attempt to obtain the amount of all physician's bills and prepare a file for paid and unpaid bills.
If you are receiving medical treatment from a doctor of your choice or if the employer has refused to render medical treatment, the attorney must give written notification to the employer and its insurance carrier of all the details concerning your injuries and accident and the name and address of the doctor by whom he is being treated or the name and address of the doctor who is going to be treating him. The attorney must clearly indicate in the letter that this is a formal request pursuant to Title 34 for the employer/respondent to furnish medical treatment by the doctor chosen by the petitioner or, alternatively, that the respondent should immediately provide the name and address of a doctor that it wants to treat the petitioner. In Worker's Compensation, the respondent controls the choice of doctor.
18. Any Blue Cross, Blue Shield, or major medical plans which cover you, as well as identification numbers, since it may be possible to obtain payment for medical bills from these plans, if the employer/worker's compensation refuses to make payment. See Workers' Compensation (ICLE 1983).
If you are injured while working, we recommend you immediately speak with an experienced attorney.
Christina Bruschetta - "Criminal Article Blog Editor"
Trip and Fall on Defective Steps
Edited by Kenneth Vercammen, Esq. Sometimes persons are injured when they trip and fall on defective steps. No one plans on being injured. Speak with a personal injury attorney immediately to retain all your rights. The stores, apartments and other public places are responsible for the maintenance of their premises which are used by the public. It is the duty of the place to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon.
It is further the duty of the stores, apartments and other public places to properly and adequately inspect, maintain and keep the library premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the store, be caused to fall down If the stores, apartments or other public places did not perform their duty to plaintiff to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury.
The following information is taken from the old model jury charges dealing with fall downs by store customers:
INVITEE - DEFINED AND GENERAL DUTY OWED
An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner (or occupier). He/She enters by invitation, expressed or implied. The owner (or occupier) of the land (or premises) who by invitation, expressed or implied, induced persons to come upon his/her premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitee's safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover.
BUSINESS INVITEE FALL DOWNS:
The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.
Notes:
(1) Business Invitee: The duty owed to a "business invitee" is no different than the duty owed to other "invitees."
(2) Construction Defects, Intrinsic and Foreign Substances: The rules dealt with in this section and subsequent sections apply mainly to those cases where injury is caused by transitory conditions, such as falls due to foreign substances or defects resulting from wear and tear or other deterioration of premises which were originally constructed properly.
Where a hazardous condition is due to defective construction or construction not in accord with applicable standards it is not necessary to prove that the owner or occupier had actual knowledge of the defect or would have become aware of the defect had he/she personally made an inspection. In such cases the owner is liable for failing to provide a safe place for the use of the invitee.
Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a risk due to the intrinsic quality of the material used (calling it an "intrinsic substance" case) and a risk due to a foreign substance or extra-normal condition of the premises. There the case was submitted to the jury on the theory that the terrazzo floor was peculiarly liable to become slipper when wet by water and that defendant should have taken precautions against said risk. The court appears to reject defendant's contention that there be notice, direct or mputed by proof of adequate opportunity to discover the defective condition. 17 N.J. at 389.
It may be possible to reconcile this position with the requirement of constructive notice of an unsafe condition by saying that an owner of premises is chargeable with knowledge of such hazards in construction as a reasonable inspection by an appropriate expert would reveal. See: Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying that a proprietor is required to have superior knowledge of the dangers incident to facilities furnished to invitees.
Alternatively, one can view these cases as within the category of defective or hazardous conditions created by defendant or by an independent contractor for which defendant would be liable (see introductory note above).
Cases:
Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky, slimy substance in self-service cafeteria which inferably fell to the floor as an incident of defendant's mode of operation).
Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated).
Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store).
Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on smooth stairway in railroad station).
Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389 (App. Div. 1960) (fall over low wire fence separating grass plot from sidewalk).
Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App. Div.
1959) (fall over bumper block in parking lot).
Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day).
Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App. Div. 1958) (inadequate lighting of parking lot of supermarket, fall over unknown object).
Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobby by workmen of independent contractor).
Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions.
Cases:
Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton)
NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiff's injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiff's injury that in the exercise of reasonable care the owner (or occupier) should have discovered its existence and corrected it.
Cases:
Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
Notes:
(1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendant's mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).
(2) An employee's knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963).
NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT
If the jury members find that the land (or premises) was not in a reasonably safe condition and that the owner (or occupier) or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for the jury members also to find that the owner (or occupier) had actual or constructive notice of the particular unsafe condition.
Cases:
Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967)(slip and fall on greasy stairway caused by sawdust tracked onto the steps by defendant's employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in self-service market on wet floor near vegetable bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbach's, Inc., 14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966).
BURDEN OF GOING FORWARD
In Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966), the court held that where string beans are sold from bins on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendant's employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary (made periodic inspections and clean-up) in order to protect a customer against the risk of injury likely to be generated by defendant's mode of operation. Presumably, however, the burden of proof remains on plaintiff to prove lack of reasonable care on defendant's part. If defendant fails to produce evidence of reasonable care, the jury may infer that the fault was probably his. See also: Bozza, supra, 42 N.J. at 359.
Whether or not defendant has furnished an invitee with a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee the jury members may find that an owner (or occupier) of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If the jury members find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by the jury members in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard.
DISTRACTION OR FORGETFULNESS OF INVITEE
Even if the jury members find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiff's attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it.
Thus, even where a hazardous condition is obvious the jury members must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent the jury members may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance which would distract or divert the mind or attention of a reasonably prudent person.
Note:
In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee of a subcontractor was killed when a plank comprising a catwalk over a deep trench up-ended causing him to fall. The court held that even if the decedent had appreciated the danger that fact by itself would not have barred recovery. The court said if the danger was one which due care would not have avoided, due care might, nevertheless, require notice of warning unless the danger was known or obvious. If the danger was created by a breach of defendant's duty of care, that negligence would not be dissipated merely because the decedent knew of the danger.Negligence would remain, but decedent's knowledge would affect the issue of contributory negligence. The issue would remain whether decedent acted as a reasonably prudent person in view of the known risk, either by incurring the known risk (by staying on the job), or by the manner in which he proceeded in the face of that risk.
In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966), affirmed o.b., 50 N.J. 250 (1967), the employee of a roofing contractor, while carrying hot tar, tripped over a guide wire supporting an air conditioning tower on a roof. The court held that even if plaintiff had observed the wires or if they were so obvious that he/she should have observed them, the question remained whether, considering the hazard and the work of the employee, he/she was entitled to more than mere knowledge of the existence of the wires or whether he/she was entitled to a warning by having the wires flagged or painted in a contrasting color. This was a fact for the jury to determine. The jury must also determine whether defendant had reason to expect that the employee's attention would have been distracted as he/she worked or that he/she would forget the location of a known hazard or fail to protect himself against it. The court also held the plaintiff's knowledge of the danger would not alone bar his/her recovery, but this knowledge goes to the issue of contributory negligence.
In Ferrie v. D'Arc, 31 N.J. 92, 95 (1959), the court held that there was no reasonable excuse for plaintiff's forgetfulness or inattention to the fact that a railing was temporarily absent from her porch, as she undertook to throw bones to her dog, and fell to the ground because of the absence of a railing she customarily leaned upon. The court held: "When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is obvious condition which contains a risk of injury to guilty of contributory negligence as a matter of law, unless some diversion of the type referred to above is shown to have existed at the time."
The following discussion in 2 Harper & James, Torts, §27.13, pp. 1489 et seq., (1956), cited with approval in Zentz v. Toop, supra, 92 N.J. Super. at 112, may be helpful in understanding the principles involved in the above charges:
Once an occupier has learned of dangerous conditions on his/her premises, a serious question arises as to whether he/she may--as a matter of law under all circumstances--discharge all further duty to his/her invitees by simply giving them "a warning adequate to enable them to avoid the harm." A good many authorities, including the Restatement, take the position that he/she may. But this proposition is a highly doubtful one both on principle and authority. The alternative would be a requirement of due care to make the conditions reasonably safe--a requirement which might well be satisfied by warning or obviousness in any given case, but which would not be so satisfied invariably.
* * *
1. Defendant's duty. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things safely if he/she is fully aware of their presence at the time. And if they have no unusual features and are in a place where he/she would naturally look for them, he/she may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). * * *
On the other hand, the fact that a condition is obvious--i.e., it would be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds or some emergency, and in possession of his/her facilities, is told to "watch his/her step" or "step up" at the appropriate time. When this is the case, the warning satisfies the requirement of due care and is incompatible with defendant's negligence. Here again, plaintiff's recovery would be prevented by thatfact no matter how careful he/she was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations.
In the second line of cases the condition of danger is suchthat it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his/her knowledge is not likely to be a protection against danger. It is in these situations that the bit of the Restatement's "adequate warning" rule is felt. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such precaution is still unreasonably great. And the books are full of cases in which defendants, owing such a duty, are held liable for creating or maintaining a perfectly obvious danger of which plaintiffs are fully aware. The Restatement, however, would deny liability here because the occupier need not invite visitors, and if he/she does, he/she may condition the invitation on any terms he/she chooses, so long as there is full disclosure of them. If the invitee wishes to come on those terms, he/she assumes the risk.
The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessor's duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable inspection and give warning of hidden perils. . . But this should not be conclusive. Reasonable expectations may raise duties, but they should not always limit them. The gist of the matter is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb.
So far as authority goes, the orthodox theory is getting to be a pretty feeble reed for defendants to lean on. It is still frequently stated, though often by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken with tradition and held defendant liable to an invitee in spite of his/her knowledge of the danger, when the danger was great enough and could have been feasibly remedied. Other cases stress either the reasonable assumption of safety which the invitee may make or the likelihood that his/her attention will be distracted, in order to cut down the notion of what is obvious or the adequacy of warning. And the latter is often a jury question even under the Restatement rule. It is not surprising, then, that relatively few decisions have depended on the Restatement rule alone for denying liability.
2. Contributory Negligence. . . But there are several situations in which a plaintiff will not be barred by contributory negligence although he/she encountered a known danger. . . For another, it is not necessarily negligent for a plaintiff knowingly and deliberately to encounter a danger which it is negligent for defendant to maintain. Thus a traveler may knowingly use a defective sidewalk, or a tenant a defective common stairway, without being negligent if the use was reasonable under all the circumstances.
CONCLUSION These situations show that the invitee will not always be barred by his/her self-exposure to known dangers on the premises.
It is further the duty of the stores, apartments and other public places to properly and adequately inspect, maintain and keep the library premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the store, be caused to fall down If the stores, apartments or other public places did not perform their duty to plaintiff to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury.
The following information is taken from the old model jury charges dealing with fall downs by store customers:
INVITEE - DEFINED AND GENERAL DUTY OWED
An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner (or occupier). He/She enters by invitation, expressed or implied. The owner (or occupier) of the land (or premises) who by invitation, expressed or implied, induced persons to come upon his/her premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitee's safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover.
BUSINESS INVITEE FALL DOWNS:
The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.
Notes:
(1) Business Invitee: The duty owed to a "business invitee" is no different than the duty owed to other "invitees."
(2) Construction Defects, Intrinsic and Foreign Substances: The rules dealt with in this section and subsequent sections apply mainly to those cases where injury is caused by transitory conditions, such as falls due to foreign substances or defects resulting from wear and tear or other deterioration of premises which were originally constructed properly.
Where a hazardous condition is due to defective construction or construction not in accord with applicable standards it is not necessary to prove that the owner or occupier had actual knowledge of the defect or would have become aware of the defect had he/she personally made an inspection. In such cases the owner is liable for failing to provide a safe place for the use of the invitee.
Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a risk due to the intrinsic quality of the material used (calling it an "intrinsic substance" case) and a risk due to a foreign substance or extra-normal condition of the premises. There the case was submitted to the jury on the theory that the terrazzo floor was peculiarly liable to become slipper when wet by water and that defendant should have taken precautions against said risk. The court appears to reject defendant's contention that there be notice, direct or mputed by proof of adequate opportunity to discover the defective condition. 17 N.J. at 389.
It may be possible to reconcile this position with the requirement of constructive notice of an unsafe condition by saying that an owner of premises is chargeable with knowledge of such hazards in construction as a reasonable inspection by an appropriate expert would reveal. See: Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying that a proprietor is required to have superior knowledge of the dangers incident to facilities furnished to invitees.
Alternatively, one can view these cases as within the category of defective or hazardous conditions created by defendant or by an independent contractor for which defendant would be liable (see introductory note above).
Cases:
Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky, slimy substance in self-service cafeteria which inferably fell to the floor as an incident of defendant's mode of operation).
Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated).
Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store).
Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on smooth stairway in railroad station).
Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389 (App. Div. 1960) (fall over low wire fence separating grass plot from sidewalk).
Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App. Div.
1959) (fall over bumper block in parking lot).
Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day).
Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App. Div. 1958) (inadequate lighting of parking lot of supermarket, fall over unknown object).
Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobby by workmen of independent contractor).
Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions.
Cases:
Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton)
NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiff's injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiff's injury that in the exercise of reasonable care the owner (or occupier) should have discovered its existence and corrected it.
Cases:
Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
Notes:
(1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendant's mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).
(2) An employee's knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963).
NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT
If the jury members find that the land (or premises) was not in a reasonably safe condition and that the owner (or occupier) or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for the jury members also to find that the owner (or occupier) had actual or constructive notice of the particular unsafe condition.
Cases:
Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967)(slip and fall on greasy stairway caused by sawdust tracked onto the steps by defendant's employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in self-service market on wet floor near vegetable bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbach's, Inc., 14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966).
BURDEN OF GOING FORWARD
In Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966), the court held that where string beans are sold from bins on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendant's employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary (made periodic inspections and clean-up) in order to protect a customer against the risk of injury likely to be generated by defendant's mode of operation. Presumably, however, the burden of proof remains on plaintiff to prove lack of reasonable care on defendant's part. If defendant fails to produce evidence of reasonable care, the jury may infer that the fault was probably his. See also: Bozza, supra, 42 N.J. at 359.
Whether or not defendant has furnished an invitee with a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee the jury members may find that an owner (or occupier) of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If the jury members find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by the jury members in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard.
DISTRACTION OR FORGETFULNESS OF INVITEE
Even if the jury members find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiff's attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it.
Thus, even where a hazardous condition is obvious the jury members must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent the jury members may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance which would distract or divert the mind or attention of a reasonably prudent person.
Note:
In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee of a subcontractor was killed when a plank comprising a catwalk over a deep trench up-ended causing him to fall. The court held that even if the decedent had appreciated the danger that fact by itself would not have barred recovery. The court said if the danger was one which due care would not have avoided, due care might, nevertheless, require notice of warning unless the danger was known or obvious. If the danger was created by a breach of defendant's duty of care, that negligence would not be dissipated merely because the decedent knew of the danger.Negligence would remain, but decedent's knowledge would affect the issue of contributory negligence. The issue would remain whether decedent acted as a reasonably prudent person in view of the known risk, either by incurring the known risk (by staying on the job), or by the manner in which he proceeded in the face of that risk.
In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966), affirmed o.b., 50 N.J. 250 (1967), the employee of a roofing contractor, while carrying hot tar, tripped over a guide wire supporting an air conditioning tower on a roof. The court held that even if plaintiff had observed the wires or if they were so obvious that he/she should have observed them, the question remained whether, considering the hazard and the work of the employee, he/she was entitled to more than mere knowledge of the existence of the wires or whether he/she was entitled to a warning by having the wires flagged or painted in a contrasting color. This was a fact for the jury to determine. The jury must also determine whether defendant had reason to expect that the employee's attention would have been distracted as he/she worked or that he/she would forget the location of a known hazard or fail to protect himself against it. The court also held the plaintiff's knowledge of the danger would not alone bar his/her recovery, but this knowledge goes to the issue of contributory negligence.
In Ferrie v. D'Arc, 31 N.J. 92, 95 (1959), the court held that there was no reasonable excuse for plaintiff's forgetfulness or inattention to the fact that a railing was temporarily absent from her porch, as she undertook to throw bones to her dog, and fell to the ground because of the absence of a railing she customarily leaned upon. The court held: "When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is obvious condition which contains a risk of injury to guilty of contributory negligence as a matter of law, unless some diversion of the type referred to above is shown to have existed at the time."
The following discussion in 2 Harper & James, Torts, §27.13, pp. 1489 et seq., (1956), cited with approval in Zentz v. Toop, supra, 92 N.J. Super. at 112, may be helpful in understanding the principles involved in the above charges:
Once an occupier has learned of dangerous conditions on his/her premises, a serious question arises as to whether he/she may--as a matter of law under all circumstances--discharge all further duty to his/her invitees by simply giving them "a warning adequate to enable them to avoid the harm." A good many authorities, including the Restatement, take the position that he/she may. But this proposition is a highly doubtful one both on principle and authority. The alternative would be a requirement of due care to make the conditions reasonably safe--a requirement which might well be satisfied by warning or obviousness in any given case, but which would not be so satisfied invariably.
* * *
1. Defendant's duty. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things safely if he/she is fully aware of their presence at the time. And if they have no unusual features and are in a place where he/she would naturally look for them, he/she may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). * * *
On the other hand, the fact that a condition is obvious--i.e., it would be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds or some emergency, and in possession of his/her facilities, is told to "watch his/her step" or "step up" at the appropriate time. When this is the case, the warning satisfies the requirement of due care and is incompatible with defendant's negligence. Here again, plaintiff's recovery would be prevented by thatfact no matter how careful he/she was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations.
In the second line of cases the condition of danger is suchthat it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his/her knowledge is not likely to be a protection against danger. It is in these situations that the bit of the Restatement's "adequate warning" rule is felt. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such precaution is still unreasonably great. And the books are full of cases in which defendants, owing such a duty, are held liable for creating or maintaining a perfectly obvious danger of which plaintiffs are fully aware. The Restatement, however, would deny liability here because the occupier need not invite visitors, and if he/she does, he/she may condition the invitation on any terms he/she chooses, so long as there is full disclosure of them. If the invitee wishes to come on those terms, he/she assumes the risk.
The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessor's duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable inspection and give warning of hidden perils. . . But this should not be conclusive. Reasonable expectations may raise duties, but they should not always limit them. The gist of the matter is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb.
So far as authority goes, the orthodox theory is getting to be a pretty feeble reed for defendants to lean on. It is still frequently stated, though often by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken with tradition and held defendant liable to an invitee in spite of his/her knowledge of the danger, when the danger was great enough and could have been feasibly remedied. Other cases stress either the reasonable assumption of safety which the invitee may make or the likelihood that his/her attention will be distracted, in order to cut down the notion of what is obvious or the adequacy of warning. And the latter is often a jury question even under the Restatement rule. It is not surprising, then, that relatively few decisions have depended on the Restatement rule alone for denying liability.
2. Contributory Negligence. . . But there are several situations in which a plaintiff will not be barred by contributory negligence although he/she encountered a known danger. . . For another, it is not necessarily negligent for a plaintiff knowingly and deliberately to encounter a danger which it is negligent for defendant to maintain. Thus a traveler may knowingly use a defective sidewalk, or a tenant a defective common stairway, without being negligent if the use was reasonable under all the circumstances.
CONCLUSION These situations show that the invitee will not always be barred by his/her self-exposure to known dangers on the premises.
Trip and Fall on Defective Stairs
Edited by Kenneth Vercammen, Esq. Sometimes persons are injured when they trip and fall on defective stairs. No one plans on being injured. Speak with a personal injury attorney immediately to retain all your rights. The stores, apartments and other public places are responsible for the maintenance of their premises which are used by the public. It is the duty of the place to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon.
It is further the duty of the stores, apartments and other public places to properly and adequately inspect, maintain and keep the library premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the store, be caused to fall down If the stores, apartments or other public places did not perform their duty to plaintiff to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury.
The following information is taken from the old model jury charges dealing with fall downs by store customers:
INVITEE - DEFINED AND GENERAL DUTY OWED
An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner (or occupier). He/She enters by invitation, expressed or implied. The owner (or occupier) of the land (or premises) who by invitation, expressed or implied, induced persons to come upon his/her premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitee's safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover.
BUSINESS INVITEE FALL DOWNS:
The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.
Notes:
(1) Business Invitee: The duty owed to a "business invitee" is no different than the duty owed to other "invitees."
(2) Construction Defects, Intrinsic and Foreign Substances: The rules dealt with in this section and subsequent sections apply mainly to those cases where injury is caused by transitory conditions, such as falls due to foreign substances or defects resulting from wear and tear or other deterioration of premises which were originally constructed properly.
Where a hazardous condition is due to defective construction or construction not in accord with applicable standards it is not necessary to prove that the owner or occupier had actual knowledge of the defect or would have become aware of the defect had he/she personally made an inspection. In such cases the owner is liable for failing to provide a safe place for the use of the invitee.
Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a risk due to the intrinsic quality of the material used (calling it an "intrinsic substance" case) and a risk due to a foreign substance or extra-normal condition of the premises. There the case was submitted to the jury on the theory that the terrazzo floor was peculiarly liable to become slipper when wet by water and that defendant should have taken precautions against said risk. The court appears to reject defendant's contention that there be notice, direct or mputed by proof of adequate opportunity to discover the defective condition. 17 N.J. at 389.
It may be possible to reconcile this position with the requirement of constructive notice of an unsafe condition by saying that an owner of premises is chargeable with knowledge of such hazards in construction as a reasonable inspection by an appropriate expert would reveal. See: Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying that a proprietor is required to have superior knowledge of the dangers incident to facilities furnished to invitees.
Alternatively, one can view these cases as within the category of defective or hazardous conditions created by defendant or by an independent contractor for which defendant would be liable (see introductory note above).
Cases:
Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky, slimy substance in self-service cafeteria which inferably fell to the floor as an incident of defendant's mode of operation).
Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated).
Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store).
Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on smooth stairway in railroad station).
Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389 (App. Div. 1960) (fall over low wire fence separating grass plot from sidewalk).
Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App. Div.
1959) (fall over bumper block in parking lot).
Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day).
Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App. Div. 1958) (inadequate lighting of parking lot of supermarket, fall over unknown object).
Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobby by workmen of independent contractor).
Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions.
Cases:
Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton)
NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiff's injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiff's injury that in the exercise of reasonable care the owner (or occupier) should have discovered its existence and corrected it.
Cases:
Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
Notes:
(1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendant's mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).
(2) An employee's knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963).
NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT
If the jury members find that the land (or premises) was not in a reasonably safe condition and that the owner (or occupier) or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for the jury members also to find that the owner (or occupier) had actual or constructive notice of the particular unsafe condition.
Cases:
Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967)(slip and fall on greasy stairway caused by sawdust tracked onto the steps by defendant's employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in self-service market on wet floor near vegetable bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbach's, Inc., 14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966).
BURDEN OF GOING FORWARD
In Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966), the court held that where string beans are sold from bins on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendant's employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary (made periodic inspections and clean-up) in order to protect a customer against the risk of injury likely to be generated by defendant's mode of operation. Presumably, however, the burden of proof remains on plaintiff to prove lack of reasonable care on defendant's part. If defendant fails to produce evidence of reasonable care, the jury may infer that the fault was probably his. See also: Bozza, supra, 42 N.J. at 359.
Whether or not defendant has furnished an invitee with a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee the jury members may find that an owner (or occupier) of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If the jury members find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by the jury members in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard.
DISTRACTION OR FORGETFULNESS OF INVITEE
Even if the jury members find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiff's attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it.
Thus, even where a hazardous condition is obvious the jury members must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent the jury members may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance which would distract or divert the mind or attention of a reasonably prudent person.
Note:
In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee of a subcontractor was killed when a plank comprising a catwalk over a deep trench up-ended causing him to fall. The court held that even if the decedent had appreciated the danger that fact by itself would not have barred recovery. The court said if the danger was one which due care would not have avoided, due care might, nevertheless, require notice of warning unless the danger was known or obvious. If the danger was created by a breach of defendant's duty of care, that negligence would not be dissipated merely because the decedent knew of the danger.Negligence would remain, but decedent's knowledge would affect the issue of contributory negligence. The issue would remain whether decedent acted as a reasonably prudent person in view of the known risk, either by incurring the known risk (by staying on the job), or by the manner in which he proceeded in the face of that risk.
In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966), affirmed o.b., 50 N.J. 250 (1967), the employee of a roofing contractor, while carrying hot tar, tripped over a guide wire supporting an air conditioning tower on a roof. The court held that even if plaintiff had observed the wires or if they were so obvious that he/she should have observed them, the question remained whether, considering the hazard and the work of the employee, he/she was entitled to more than mere knowledge of the existence of the wires or whether he/she was entitled to a warning by having the wires flagged or painted in a contrasting color. This was a fact for the jury to determine. The jury must also determine whether defendant had reason to expect that the employee's attention would have been distracted as he/she worked or that he/she would forget the location of a known hazard or fail to protect himself against it. The court also held the plaintiff's knowledge of the danger would not alone bar his/her recovery, but this knowledge goes to the issue of contributory negligence.
In Ferrie v. D'Arc, 31 N.J. 92, 95 (1959), the court held that there was no reasonable excuse for plaintiff's forgetfulness or inattention to the fact that a railing was temporarily absent from her porch, as she undertook to throw bones to her dog, and fell to the ground because of the absence of a railing she customarily leaned upon. The court held: "When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is obvious condition which contains a risk of injury to guilty of contributory negligence as a matter of law, unless some diversion of the type referred to above is shown to have existed at the time."
The following discussion in 2 Harper & James, Torts, §27.13, pp. 1489 et seq., (1956), cited with approval in Zentz v. Toop, supra, 92 N.J. Super. at 112, may be helpful in understanding the principles involved in the above charges:
Once an occupier has learned of dangerous conditions on his/her premises, a serious question arises as to whether he/she may--as a matter of law under all circumstances--discharge all further duty to his/her invitees by simply giving them "a warning adequate to enable them to avoid the harm." A good many authorities, including the Restatement, take the position that he/she may. But this proposition is a highly doubtful one both on principle and authority. The alternative would be a requirement of due care to make the conditions reasonably safe--a requirement which might well be satisfied by warning or obviousness in any given case, but which would not be so satisfied invariably.
* * *
1. Defendant's duty. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things safely if he/she is fully aware of their presence at the time. And if they have no unusual features and are in a place where he/she would naturally look for them, he/she may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). * * *
On the other hand, the fact that a condition is obvious--i.e., it would be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds or some emergency, and in possession of his/her facilities, is told to "watch his/her step" or "step up" at the appropriate time. When this is the case, the warning satisfies the requirement of due care and is incompatible with defendant's negligence. Here again, plaintiff's recovery would be prevented by thatfact no matter how careful he/she was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations.
In the second line of cases the condition of danger is suchthat it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his/her knowledge is not likely to be a protection against danger. It is in these situations that the bit of the Restatement's "adequate warning" rule is felt. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such precaution is still unreasonably great. And the books are full of cases in which defendants, owing such a duty, are held liable for creating or maintaining a perfectly obvious danger of which plaintiffs are fully aware. The Restatement, however, would deny liability here because the occupier need not invite visitors, and if he/she does, he/she may condition the invitation on any terms he/she chooses, so long as there is full disclosure of them. If the invitee wishes to come on those terms, he/she assumes the risk.
The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessor's duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable inspection and give warning of hidden perils. . . But this should not be conclusive. Reasonable expectations may raise duties, but they should not always limit them. The gist of the matter is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb.
So far as authority goes, the orthodox theory is getting to be a pretty feeble reed for defendants to lean on. It is still frequently stated, though often by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken with tradition and held defendant liable to an invitee in spite of his/her knowledge of the danger, when the danger was great enough and could have been feasibly remedied. Other cases stress either the reasonable assumption of safety which the invitee may make or the likelihood that his/her attention will be distracted, in order to cut down the notion of what is obvious or the adequacy of warning. And the latter is often a jury question even under the Restatement rule. It is not surprising, then, that relatively few decisions have depended on the Restatement rule alone for denying liability.
2. Contributory Negligence. . . But there are several situations in which a plaintiff will not be barred by contributory negligence although he/she encountered a known danger. . . For another, it is not necessarily negligent for a plaintiff knowingly and deliberately to encounter a danger which it is negligent for defendant to maintain. Thus a traveler may knowingly use a defective sidewalk, or a tenant a defective common stairway, without being negligent if the use was reasonable under all the circumstances.
CONCLUSION These situations show that the invitee will not always be barred by his/her self-exposure to known dangers on the premises.
It is further the duty of the stores, apartments and other public places to properly and adequately inspect, maintain and keep the library premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the store, be caused to fall down If the stores, apartments or other public places did not perform their duty to plaintiff to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury.
The following information is taken from the old model jury charges dealing with fall downs by store customers:
INVITEE - DEFINED AND GENERAL DUTY OWED
An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner (or occupier). He/She enters by invitation, expressed or implied. The owner (or occupier) of the land (or premises) who by invitation, expressed or implied, induced persons to come upon his/her premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitee's safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover.
BUSINESS INVITEE FALL DOWNS:
The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.
Notes:
(1) Business Invitee: The duty owed to a "business invitee" is no different than the duty owed to other "invitees."
(2) Construction Defects, Intrinsic and Foreign Substances: The rules dealt with in this section and subsequent sections apply mainly to those cases where injury is caused by transitory conditions, such as falls due to foreign substances or defects resulting from wear and tear or other deterioration of premises which were originally constructed properly.
Where a hazardous condition is due to defective construction or construction not in accord with applicable standards it is not necessary to prove that the owner or occupier had actual knowledge of the defect or would have become aware of the defect had he/she personally made an inspection. In such cases the owner is liable for failing to provide a safe place for the use of the invitee.
Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a risk due to the intrinsic quality of the material used (calling it an "intrinsic substance" case) and a risk due to a foreign substance or extra-normal condition of the premises. There the case was submitted to the jury on the theory that the terrazzo floor was peculiarly liable to become slipper when wet by water and that defendant should have taken precautions against said risk. The court appears to reject defendant's contention that there be notice, direct or mputed by proof of adequate opportunity to discover the defective condition. 17 N.J. at 389.
It may be possible to reconcile this position with the requirement of constructive notice of an unsafe condition by saying that an owner of premises is chargeable with knowledge of such hazards in construction as a reasonable inspection by an appropriate expert would reveal. See: Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying that a proprietor is required to have superior knowledge of the dangers incident to facilities furnished to invitees.
Alternatively, one can view these cases as within the category of defective or hazardous conditions created by defendant or by an independent contractor for which defendant would be liable (see introductory note above).
Cases:
Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky, slimy substance in self-service cafeteria which inferably fell to the floor as an incident of defendant's mode of operation).
Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated).
Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store).
Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on smooth stairway in railroad station).
Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389 (App. Div. 1960) (fall over low wire fence separating grass plot from sidewalk).
Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App. Div.
1959) (fall over bumper block in parking lot).
Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day).
Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App. Div. 1958) (inadequate lighting of parking lot of supermarket, fall over unknown object).
Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobby by workmen of independent contractor).
Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions.
Cases:
Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton)
NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiff's injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiff's injury that in the exercise of reasonable care the owner (or occupier) should have discovered its existence and corrected it.
Cases:
Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
Notes:
(1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendant's mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).
(2) An employee's knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963).
NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT
If the jury members find that the land (or premises) was not in a reasonably safe condition and that the owner (or occupier) or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for the jury members also to find that the owner (or occupier) had actual or constructive notice of the particular unsafe condition.
Cases:
Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967)(slip and fall on greasy stairway caused by sawdust tracked onto the steps by defendant's employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in self-service market on wet floor near vegetable bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbach's, Inc., 14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966).
BURDEN OF GOING FORWARD
In Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966), the court held that where string beans are sold from bins on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendant's employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary (made periodic inspections and clean-up) in order to protect a customer against the risk of injury likely to be generated by defendant's mode of operation. Presumably, however, the burden of proof remains on plaintiff to prove lack of reasonable care on defendant's part. If defendant fails to produce evidence of reasonable care, the jury may infer that the fault was probably his. See also: Bozza, supra, 42 N.J. at 359.
Whether or not defendant has furnished an invitee with a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee the jury members may find that an owner (or occupier) of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If the jury members find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by the jury members in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard.
DISTRACTION OR FORGETFULNESS OF INVITEE
Even if the jury members find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiff's attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it.
Thus, even where a hazardous condition is obvious the jury members must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent the jury members may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance which would distract or divert the mind or attention of a reasonably prudent person.
Note:
In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee of a subcontractor was killed when a plank comprising a catwalk over a deep trench up-ended causing him to fall. The court held that even if the decedent had appreciated the danger that fact by itself would not have barred recovery. The court said if the danger was one which due care would not have avoided, due care might, nevertheless, require notice of warning unless the danger was known or obvious. If the danger was created by a breach of defendant's duty of care, that negligence would not be dissipated merely because the decedent knew of the danger.Negligence would remain, but decedent's knowledge would affect the issue of contributory negligence. The issue would remain whether decedent acted as a reasonably prudent person in view of the known risk, either by incurring the known risk (by staying on the job), or by the manner in which he proceeded in the face of that risk.
In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966), affirmed o.b., 50 N.J. 250 (1967), the employee of a roofing contractor, while carrying hot tar, tripped over a guide wire supporting an air conditioning tower on a roof. The court held that even if plaintiff had observed the wires or if they were so obvious that he/she should have observed them, the question remained whether, considering the hazard and the work of the employee, he/she was entitled to more than mere knowledge of the existence of the wires or whether he/she was entitled to a warning by having the wires flagged or painted in a contrasting color. This was a fact for the jury to determine. The jury must also determine whether defendant had reason to expect that the employee's attention would have been distracted as he/she worked or that he/she would forget the location of a known hazard or fail to protect himself against it. The court also held the plaintiff's knowledge of the danger would not alone bar his/her recovery, but this knowledge goes to the issue of contributory negligence.
In Ferrie v. D'Arc, 31 N.J. 92, 95 (1959), the court held that there was no reasonable excuse for plaintiff's forgetfulness or inattention to the fact that a railing was temporarily absent from her porch, as she undertook to throw bones to her dog, and fell to the ground because of the absence of a railing she customarily leaned upon. The court held: "When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is obvious condition which contains a risk of injury to guilty of contributory negligence as a matter of law, unless some diversion of the type referred to above is shown to have existed at the time."
The following discussion in 2 Harper & James, Torts, §27.13, pp. 1489 et seq., (1956), cited with approval in Zentz v. Toop, supra, 92 N.J. Super. at 112, may be helpful in understanding the principles involved in the above charges:
Once an occupier has learned of dangerous conditions on his/her premises, a serious question arises as to whether he/she may--as a matter of law under all circumstances--discharge all further duty to his/her invitees by simply giving them "a warning adequate to enable them to avoid the harm." A good many authorities, including the Restatement, take the position that he/she may. But this proposition is a highly doubtful one both on principle and authority. The alternative would be a requirement of due care to make the conditions reasonably safe--a requirement which might well be satisfied by warning or obviousness in any given case, but which would not be so satisfied invariably.
* * *
1. Defendant's duty. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things safely if he/she is fully aware of their presence at the time. And if they have no unusual features and are in a place where he/she would naturally look for them, he/she may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). * * *
On the other hand, the fact that a condition is obvious--i.e., it would be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds or some emergency, and in possession of his/her facilities, is told to "watch his/her step" or "step up" at the appropriate time. When this is the case, the warning satisfies the requirement of due care and is incompatible with defendant's negligence. Here again, plaintiff's recovery would be prevented by thatfact no matter how careful he/she was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations.
In the second line of cases the condition of danger is suchthat it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his/her knowledge is not likely to be a protection against danger. It is in these situations that the bit of the Restatement's "adequate warning" rule is felt. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such precaution is still unreasonably great. And the books are full of cases in which defendants, owing such a duty, are held liable for creating or maintaining a perfectly obvious danger of which plaintiffs are fully aware. The Restatement, however, would deny liability here because the occupier need not invite visitors, and if he/she does, he/she may condition the invitation on any terms he/she chooses, so long as there is full disclosure of them. If the invitee wishes to come on those terms, he/she assumes the risk.
The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessor's duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable inspection and give warning of hidden perils. . . But this should not be conclusive. Reasonable expectations may raise duties, but they should not always limit them. The gist of the matter is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb.
So far as authority goes, the orthodox theory is getting to be a pretty feeble reed for defendants to lean on. It is still frequently stated, though often by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken with tradition and held defendant liable to an invitee in spite of his/her knowledge of the danger, when the danger was great enough and could have been feasibly remedied. Other cases stress either the reasonable assumption of safety which the invitee may make or the likelihood that his/her attention will be distracted, in order to cut down the notion of what is obvious or the adequacy of warning. And the latter is often a jury question even under the Restatement rule. It is not surprising, then, that relatively few decisions have depended on the Restatement rule alone for denying liability.
2. Contributory Negligence. . . But there are several situations in which a plaintiff will not be barred by contributory negligence although he/she encountered a known danger. . . For another, it is not necessarily negligent for a plaintiff knowingly and deliberately to encounter a danger which it is negligent for defendant to maintain. Thus a traveler may knowingly use a defective sidewalk, or a tenant a defective common stairway, without being negligent if the use was reasonable under all the circumstances.
CONCLUSION These situations show that the invitee will not always be barred by his/her self-exposure to known dangers on the premises.
Monday, October 27, 2008
Victims of Criminal Activities
Edited by Kenneth Vercammen
Many people are injured when attacked on a business property, when the property owner fails to provide adequate security. Injured persons may be able to recover damages plus payment of medical bills. The New Jersey Supreme Court in Kuzmicz v. Ivy Hill Park Apartments, 147 N.J. 510. (1997) recently reviewed liability for injuries suffered by people attacked. The duty of landowners for injuries that occur on their premises, the analysis no longer relies exclusively on the status of the injured party. Instead "[t]he issue is whether, 'in light of the actual relationship between the parties under all of the surrounding circumstances,' the imposition of a duty on the landowner is 'fair and just.'" Brett v. Great Am. Recreation, 144 N.J. 479, 509 (1996) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438 (1993)). For off-premises liability, the issue is substantially the same. In both contexts, however, the analysis is fact-sensitive. Hopkins, supra, 132 N.J. at 439. Ultimately, the determination of the existence of a duty is a question of fairness and public policy. Snyder v. American Ass'n of Blood Banks, 144 N.J. 269, 292 (1996); Crawn v. Campo, 136 N.J. 494, 501 (1994); Dunphy v. Gregor, 136 N.J. 99, 108 (1994); Kelly v. Gwinnell, 96 N.J. 538, 544 (1984); Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962). Foreseeability of injury to another is important, but not dispositive. Snyder, supra, 144 N.J. at 292; Carter Lincoln-Mercury v. EMOR Group, 135 N.J. 182, 194 (1994). Fairness, not foreseeability alone, is the test. Relevant to the determination of the fairness of the imposition of a duty on a landowner is the nature of the risk, the relationship of the parties, the opportunity to exercise care, and the effect on the public of the imposition of the duty. Dunphy, supra, 136 N.J. at 108; Hopkins, supra, 132 N.J. at 439; Goldberg, supra, 38 N.J. at 583.
Landlord liable to Tenant Consistent with that analysis, the Court has found a landlord liable to a tenant for damages resulting from a burglary when the landlord failed to replace a broken dead-bolt lock on the tenant's apartment. See Braitman v. Overlook Terrace Corp., 68 N.J. 368 (1975). The apartment house was in an area where break-ins were common, and the landlord had assured the tenant that it would repair the lock. Id. at 371-73. Furthermore, a regulation of the Department of Community Affairs required the landlord to furnish a working lock. Id. at 383-84. In that context, the Court held, "[a] residential tenant can recover damages from his landlord upon proper proof that the latter unreasonably enhanced the risk of loss due to theft by failing to supply adequate locks to safeguard the tenant's premises after suitable notice of the defect." Id. at 383. The Court likewise have imposed liability on a landlord who provides inadequate security for common areas of rental premises for the failure to prevent a criminal assault on a tenant. See Trentacost v. Brussel, 82 N.J. 214 (1980). In Trentacost, the apartment was in a high crime area. Id. at 218-19. Burglars and other unauthorized persons previously had broken into the building. Id. at 219. Contrary to an administrative regulation, the landlord had not installed a lock on the front entrance. Id. at 222. On those facts, the Court held that "[b]y failing to do anything to arrest or even reduce the risk of criminal harm to his tenants, the landlord effectively and unreasonably enhanced that risk." Ibid. The Court relied in part on the implied covenant of habitability in the lease and stated that "[t]he 'premises' which the landlord must secure necessarily encompass the common areas of multiple dwellings." Id. at 228. In both Braitman and Trentacost, the criminal act resulting in the imposition of liability on the landlord occurred in the apartment house. Supermarket Liability Similarly, the Court has held that the owner of a supermarket may be liable to a customer who is mugged at night in the market's parking lot. See Butler v. Acme Markets, Inc., 89 N.J. 270 (1982). In Butler, unknown to the customer, seven muggings had occurred in the lot during the preceding year, five in the evenings during the four months preceding the attack in question. Id. at 274. To combat the muggings, the market had hired off-duty policeman. Ibid. At the time of the attack, however, the only guard was inside the market; no one was on duty in the parking lot. Id. at 275. In that setting, the Court held that the market had a duty to protect the customer from foreseeable criminal activity. Id. at 284. Uniting Braitman, Trentacost, and Butler is the premise that landlords and business owners should be liable for foreseeable injuries that occur on their premises. The underlying rationale is that they are in the best position to control the risk of harm. See Butler, supra, 89 N.J. at 284. Ownership or control of the premises, for example, enables a party to prevent the harm. Accord Steinmetz v. Stockton City Chamber of Commerce, 214 Cal. Rptr. 405, 408 (Ct. App. 1985) (reasoning that duty is grounded in possession of premises and right to control and manage premises); LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W. 2d 563, 565 (Tex. Ct. App. 1988) (holding that duty to provide protection arises from defendant's power of control). Usually there is no liability in off - premise assault. Courts from other states likewise have refused to impose liability on commercial landowners for off-premises murder or assault. See, e.g., Steinmetz, supra, 214 Cal. Rptr. at 408 (declining to impose liability because of difficulty in defining scope of any duty owed by landowner off premises and not controlled by him); Wofford v. Kennedy's 2nd St. Co., 649 S.W. 2d 912, 914 (Mo. Ct. App. 1983) (declining to impose liability on tavern owner for injuries suffered by patron assaulted on adjacent public street because otherwise "line which would cut off the landowner's liability becomes nearly impossible to draw"). Generally, a possessor of land is not liable for off-premises injuries merely because those injuries are foreseeable. See, e.g., MacGrath v. Levin Properties, 256 N.J. Super. 247 (App. Div. 1992), certif. denied, 130 N.J. 19 (1992); Simpson v. Big Bear Stores Co., 652 N.E.2d 702, 705 (Ohio 1995); see generally Restatement (Second) of Torts § 314A comment c (1965) (indicating possessor of land is not under duty to person endangered or injured when one has ceased to be an invitee). That general rule protects an abutting property owner from liability for injuries that occur on a public way. See Restatement (Second) of Torts § 349 (1965); see also MacGrath, supra, 256 N.J. Super. at 251-52 (noting court follows Restatement § 349 unless exception applies). Sidewalk Fall down Liability A narrow exception imposes liability on commercial landowners for injuries to pedestrians on abutting sidewalks. See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981). The duty to maintain the sidewalks flows from the economic benefit that a commercial landowner receives from the abutting sidewalk and from the landowner's ability to control the risk of injury. Id. at 158; Davis v. Pecoreno, 69 N.J. 1, 8 (1975) (holding gas station owner liable for injury caused by packed snow and ice on abutting sidewalk because "traffic was directly beneficial to his business and enured to his economic benefit"). Several decisions of the Appellate Division delineate the appropriate limits of a commercial property owner's liability for off-premises injuries. Critical to those decisions is the premise that a landowner's liability may extend beyond the premises for activities that directly benefit the landowner. Thus, the owner of a shopping center was not liable to a woman who fell on a dirt path leading from the shopping center to a parking lot. See Chimiente v. Adam Corp., 221 N.J. Super. 580 (1987). In Chimiente, sidewalks provided a safe alternative route. Id. at 584. The dirt path conferred no direct economic benefit on the shopping center. Ibid. Similarly, a shopping center on Route 22 was not liable to a customer who was struck by a car while crossing the highway. See MacGrath, supra, 256 N.J. Super. at 250-51, 253. A restaurant that provided parking on the opposite side of the street, however, had a duty to provide safe passage from the lot to the restaurant. See Warrington v. Bird, 204 N.J. Super. 611 (1985), certif. denied, 103 N.J. 473 (1986). The restaurant knew that its patrons would cross the street, and derived a direct economic benefit from their use of the path. Id. at 617. Finally, a caterer was found liable for the death of a business invitee who was killed crossing a county highway after parking her car in a lot the caterer knew or should have known the invitee would use. See Mulraney v. Auletto's Catering, 293 N.J. Super. 315, certif. denied, _ N.J. _ (1996). Prominent among the reasons for the imposition of liability was the proposition that the use of the lot furthered the caterer's economic interest. Id. at 321. Critical to the imposition of liability is a direct economic benefit to the commercial landowner from the path taken by the injured party and the absence of an alternative route. Courts from other states likewise have concluded that a landowner does not owe a duty to protect people from criminal activity on adjacent premises that the landowner does not own or control. See, e.g., Donnell v. California W. Sch. of Law, 246 Cal. Rptr. 199, 201 (Ct. App. 1988) (holding law school not liable merely because it took no action to remedy dangerous condition on adjoining property); Steinmetz, supra, 214 Cal. Rptr. at 408-09 (holding tenant in industrial park not liable to business invitee who was mugged a block away from tenant's premises but within park); National Property Investors, II, Ltd. v. Attardo, 639 So.2d 691 (Fla. Dist. Ct. App. 1994) (holding no duty for store owner to protect customer from assault in apartment premises when assailant followed customer from convenience store to apartment house across street); Simpson, supra, 652 N.E.2d 702 (holding supermarket owner's duty to warn or protect business invitees from foreseeable criminal activity extends to premises in possession and control of owner and therefore owner not liable for injuries suffered by patron attacked in common area of shopping center). Southland Corp. v. Superior Court, 250 Cal. Rptr. 57 (Ct. App. 1988), is consistent with that premise. In Southland, three assailants attacked a customer from a convenience store in a parking lot ten feet away from the store's property line. 250 Cal. Rptr. at 58. The customer sued the lessee and sub-lessee, who were the franchisor and franchisee of the store. Id. at 59. The master lease provided that the store could use the adjacent lot for parking, and the injured customer believed that the store controlled the lot. Id. at 58 n.1, 59. Many customers parked in the lot. Id. at 58. The lessees did not erect a fence or do anything else to discourage the customers from using the lot. Id. at 59. Denying summary judgment for the lessee and sub-lessee, the court relied on the fact that the store controlled the lot and "realized a significant commercial benefit from their customers' use of the lot . . . ." Id. at 62-63. Absent a landlord's control of an adjacent lot or realization of "a significant commercial benefit" from tenants' use of the lot, the landlord does not owe a duty to warn tenants of the risk of criminal assault on the lot. See Ibid. Conclusion There is a possibility of imposing on a landlord a duty to pay a tenant for injuries sustained in a criminal attack on its property to help compensate the tenant. In appropriate circumstances, property owners may be liable if they negligently conduct activities that expose others to foreseeable criminal attacks. Contact a Civil Trial Attorney to discuss your rights.
Many people are injured when attacked on a business property, when the property owner fails to provide adequate security. Injured persons may be able to recover damages plus payment of medical bills. The New Jersey Supreme Court in Kuzmicz v. Ivy Hill Park Apartments, 147 N.J. 510. (1997) recently reviewed liability for injuries suffered by people attacked. The duty of landowners for injuries that occur on their premises, the analysis no longer relies exclusively on the status of the injured party. Instead "[t]he issue is whether, 'in light of the actual relationship between the parties under all of the surrounding circumstances,' the imposition of a duty on the landowner is 'fair and just.'" Brett v. Great Am. Recreation, 144 N.J. 479, 509 (1996) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438 (1993)). For off-premises liability, the issue is substantially the same. In both contexts, however, the analysis is fact-sensitive. Hopkins, supra, 132 N.J. at 439. Ultimately, the determination of the existence of a duty is a question of fairness and public policy. Snyder v. American Ass'n of Blood Banks, 144 N.J. 269, 292 (1996); Crawn v. Campo, 136 N.J. 494, 501 (1994); Dunphy v. Gregor, 136 N.J. 99, 108 (1994); Kelly v. Gwinnell, 96 N.J. 538, 544 (1984); Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962). Foreseeability of injury to another is important, but not dispositive. Snyder, supra, 144 N.J. at 292; Carter Lincoln-Mercury v. EMOR Group, 135 N.J. 182, 194 (1994). Fairness, not foreseeability alone, is the test. Relevant to the determination of the fairness of the imposition of a duty on a landowner is the nature of the risk, the relationship of the parties, the opportunity to exercise care, and the effect on the public of the imposition of the duty. Dunphy, supra, 136 N.J. at 108; Hopkins, supra, 132 N.J. at 439; Goldberg, supra, 38 N.J. at 583.
Landlord liable to Tenant Consistent with that analysis, the Court has found a landlord liable to a tenant for damages resulting from a burglary when the landlord failed to replace a broken dead-bolt lock on the tenant's apartment. See Braitman v. Overlook Terrace Corp., 68 N.J. 368 (1975). The apartment house was in an area where break-ins were common, and the landlord had assured the tenant that it would repair the lock. Id. at 371-73. Furthermore, a regulation of the Department of Community Affairs required the landlord to furnish a working lock. Id. at 383-84. In that context, the Court held, "[a] residential tenant can recover damages from his landlord upon proper proof that the latter unreasonably enhanced the risk of loss due to theft by failing to supply adequate locks to safeguard the tenant's premises after suitable notice of the defect." Id. at 383. The Court likewise have imposed liability on a landlord who provides inadequate security for common areas of rental premises for the failure to prevent a criminal assault on a tenant. See Trentacost v. Brussel, 82 N.J. 214 (1980). In Trentacost, the apartment was in a high crime area. Id. at 218-19. Burglars and other unauthorized persons previously had broken into the building. Id. at 219. Contrary to an administrative regulation, the landlord had not installed a lock on the front entrance. Id. at 222. On those facts, the Court held that "[b]y failing to do anything to arrest or even reduce the risk of criminal harm to his tenants, the landlord effectively and unreasonably enhanced that risk." Ibid. The Court relied in part on the implied covenant of habitability in the lease and stated that "[t]he 'premises' which the landlord must secure necessarily encompass the common areas of multiple dwellings." Id. at 228. In both Braitman and Trentacost, the criminal act resulting in the imposition of liability on the landlord occurred in the apartment house. Supermarket Liability Similarly, the Court has held that the owner of a supermarket may be liable to a customer who is mugged at night in the market's parking lot. See Butler v. Acme Markets, Inc., 89 N.J. 270 (1982). In Butler, unknown to the customer, seven muggings had occurred in the lot during the preceding year, five in the evenings during the four months preceding the attack in question. Id. at 274. To combat the muggings, the market had hired off-duty policeman. Ibid. At the time of the attack, however, the only guard was inside the market; no one was on duty in the parking lot. Id. at 275. In that setting, the Court held that the market had a duty to protect the customer from foreseeable criminal activity. Id. at 284. Uniting Braitman, Trentacost, and Butler is the premise that landlords and business owners should be liable for foreseeable injuries that occur on their premises. The underlying rationale is that they are in the best position to control the risk of harm. See Butler, supra, 89 N.J. at 284. Ownership or control of the premises, for example, enables a party to prevent the harm. Accord Steinmetz v. Stockton City Chamber of Commerce, 214 Cal. Rptr. 405, 408 (Ct. App. 1985) (reasoning that duty is grounded in possession of premises and right to control and manage premises); LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W. 2d 563, 565 (Tex. Ct. App. 1988) (holding that duty to provide protection arises from defendant's power of control). Usually there is no liability in off - premise assault. Courts from other states likewise have refused to impose liability on commercial landowners for off-premises murder or assault. See, e.g., Steinmetz, supra, 214 Cal. Rptr. at 408 (declining to impose liability because of difficulty in defining scope of any duty owed by landowner off premises and not controlled by him); Wofford v. Kennedy's 2nd St. Co., 649 S.W. 2d 912, 914 (Mo. Ct. App. 1983) (declining to impose liability on tavern owner for injuries suffered by patron assaulted on adjacent public street because otherwise "line which would cut off the landowner's liability becomes nearly impossible to draw"). Generally, a possessor of land is not liable for off-premises injuries merely because those injuries are foreseeable. See, e.g., MacGrath v. Levin Properties, 256 N.J. Super. 247 (App. Div. 1992), certif. denied, 130 N.J. 19 (1992); Simpson v. Big Bear Stores Co., 652 N.E.2d 702, 705 (Ohio 1995); see generally Restatement (Second) of Torts § 314A comment c (1965) (indicating possessor of land is not under duty to person endangered or injured when one has ceased to be an invitee). That general rule protects an abutting property owner from liability for injuries that occur on a public way. See Restatement (Second) of Torts § 349 (1965); see also MacGrath, supra, 256 N.J. Super. at 251-52 (noting court follows Restatement § 349 unless exception applies). Sidewalk Fall down Liability A narrow exception imposes liability on commercial landowners for injuries to pedestrians on abutting sidewalks. See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981). The duty to maintain the sidewalks flows from the economic benefit that a commercial landowner receives from the abutting sidewalk and from the landowner's ability to control the risk of injury. Id. at 158; Davis v. Pecoreno, 69 N.J. 1, 8 (1975) (holding gas station owner liable for injury caused by packed snow and ice on abutting sidewalk because "traffic was directly beneficial to his business and enured to his economic benefit"). Several decisions of the Appellate Division delineate the appropriate limits of a commercial property owner's liability for off-premises injuries. Critical to those decisions is the premise that a landowner's liability may extend beyond the premises for activities that directly benefit the landowner. Thus, the owner of a shopping center was not liable to a woman who fell on a dirt path leading from the shopping center to a parking lot. See Chimiente v. Adam Corp., 221 N.J. Super. 580 (1987). In Chimiente, sidewalks provided a safe alternative route. Id. at 584. The dirt path conferred no direct economic benefit on the shopping center. Ibid. Similarly, a shopping center on Route 22 was not liable to a customer who was struck by a car while crossing the highway. See MacGrath, supra, 256 N.J. Super. at 250-51, 253. A restaurant that provided parking on the opposite side of the street, however, had a duty to provide safe passage from the lot to the restaurant. See Warrington v. Bird, 204 N.J. Super. 611 (1985), certif. denied, 103 N.J. 473 (1986). The restaurant knew that its patrons would cross the street, and derived a direct economic benefit from their use of the path. Id. at 617. Finally, a caterer was found liable for the death of a business invitee who was killed crossing a county highway after parking her car in a lot the caterer knew or should have known the invitee would use. See Mulraney v. Auletto's Catering, 293 N.J. Super. 315, certif. denied, _ N.J. _ (1996). Prominent among the reasons for the imposition of liability was the proposition that the use of the lot furthered the caterer's economic interest. Id. at 321. Critical to the imposition of liability is a direct economic benefit to the commercial landowner from the path taken by the injured party and the absence of an alternative route. Courts from other states likewise have concluded that a landowner does not owe a duty to protect people from criminal activity on adjacent premises that the landowner does not own or control. See, e.g., Donnell v. California W. Sch. of Law, 246 Cal. Rptr. 199, 201 (Ct. App. 1988) (holding law school not liable merely because it took no action to remedy dangerous condition on adjoining property); Steinmetz, supra, 214 Cal. Rptr. at 408-09 (holding tenant in industrial park not liable to business invitee who was mugged a block away from tenant's premises but within park); National Property Investors, II, Ltd. v. Attardo, 639 So.2d 691 (Fla. Dist. Ct. App. 1994) (holding no duty for store owner to protect customer from assault in apartment premises when assailant followed customer from convenience store to apartment house across street); Simpson, supra, 652 N.E.2d 702 (holding supermarket owner's duty to warn or protect business invitees from foreseeable criminal activity extends to premises in possession and control of owner and therefore owner not liable for injuries suffered by patron attacked in common area of shopping center). Southland Corp. v. Superior Court, 250 Cal. Rptr. 57 (Ct. App. 1988), is consistent with that premise. In Southland, three assailants attacked a customer from a convenience store in a parking lot ten feet away from the store's property line. 250 Cal. Rptr. at 58. The customer sued the lessee and sub-lessee, who were the franchisor and franchisee of the store. Id. at 59. The master lease provided that the store could use the adjacent lot for parking, and the injured customer believed that the store controlled the lot. Id. at 58 n.1, 59. Many customers parked in the lot. Id. at 58. The lessees did not erect a fence or do anything else to discourage the customers from using the lot. Id. at 59. Denying summary judgment for the lessee and sub-lessee, the court relied on the fact that the store controlled the lot and "realized a significant commercial benefit from their customers' use of the lot . . . ." Id. at 62-63. Absent a landlord's control of an adjacent lot or realization of "a significant commercial benefit" from tenants' use of the lot, the landlord does not owe a duty to warn tenants of the risk of criminal assault on the lot. See Ibid. Conclusion There is a possibility of imposing on a landlord a duty to pay a tenant for injuries sustained in a criminal attack on its property to help compensate the tenant. In appropriate circumstances, property owners may be liable if they negligently conduct activities that expose others to foreseeable criminal attacks. Contact a Civil Trial Attorney to discuss your rights.
Sports Law
If You Have a Sports Injury Claim, Don't Delay
If you've been in an accident and are considering making a claim, call a lawyer promptly, as there are time limits for making claims. These time limits (called "statutes of limitations") have harsh results if not followed. Recently, a woman who was hurt in a car accident made a claim one day after the statue of limitations for injury actions passed. Despite this minor violation, a court dismissed her claim, and she could not recover for her injuries and losses. In addition, a "Notice of Claim" must be served on a Public Entity within 90 days.
What happens in a Personal Injury Sports Claim:
We will not handle a case unless there is bona fide negligence. You must have a serious permanent injury.
AT THE ACCIDENT SCENE
1. Stop . . . do not leave the scene of the accident.
CALL THE AMBULANCE, tell them where the accident occurred and (ask for medical help if needed).
2. Notify the property manager or owner, if possible. Insist they observe where you fell. For example, if you fall on debris at an ice skating, notify the manager.
3. Get names and addresses of all witnesses
Witnesses will be a tremendous help to you in any subsequent court action if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down the license plate numbers of their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses' names to anyone but the police, your attorney or your insurance company.
4. While waiting for ambulance, write down- Accident Information
Date __ Time __
Location __
Weather __
Road conditions __
Damage __
5. Summary of accident __
6. Diagram of accident location
7. Call an ambulance. If you have any reason to suspect you were injured in the accident, go to a hospital immediately or see a physician promptly. You'll want it on record that you sought treatment right away, not in a week or so.
8. Write down name of Police Officers, Department and Badge Number, Ambulance crew, etc.
9. Do not assign or accept blame for the accident.
- The scene of the accident is not the place to determine fault. Discuss the accident only with the ambulance and medical personnel, your attorney and with representatives of your insurance company. Give the other party only your name and address.
- Be cooperative with the police.
10. Have immediate photos taken of accident site.
11. Call a personal injury attorney immediately, not a real estate attorney.
Call Kenneth A. Vercammen- Trial Attorney
Attorney At Law
(732) 572-0500
When you need help the most, we will be ready to help you.
12. Never give a signed statement to the claims adjuster representing the property owner's insurance company. The same goes for a phone recording. They may be used against you in court to deny your claim. Speak with your personal injury attorney first.
IF YOU HAVE BEEN INJURED DUE TO NEGLIGENCE IN A SPORTS INJURY
It is important that you --
1. DO NOT discuss your case with anyone except your doctors and attorney.
2. DO NOT make any statements or give out any information.
3. DO NOT sign any statements, reports, forms or papers of any kinds, .
4. DO NOT appear at police or other hearings without first consulting with your attorney.
INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to appear at any hearings.
5. Refer to your attorney anyone who asks you to sign anything or to make any statement or report or who seeks information concerning your case.
6. Direct your doctor and other treatment providers not to furnish or disclose any information concerning your case to any entity other than your insurance company without YOU AND YOUR ATTORNEY'S WRITTEN PERMISSION.
7. You may have insurance coverage such as Blue Cross, Blue Shield or Major Medical which require prompt attention. However, be sure to have your treatment providers send bills immediately to all of your insurance companies.
8. Notify your attorney promptly of any new developments. Small things may be important. Keep your attorney informed.
9. Maintain accurate records of all information and data pertaining to your case.
10. If you or any witnesses should move, be sure to notify your attorney of the new address.
Financial Recovery if injured while falling down
1. Kenneth Vercammen Helps Injured persons
A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant. In other words, they have been injured as a result of an accident, and now wish to prosecute a claim against a negligent property owner and its insurance company. As the attorney of record, I will be bringing this action for the injured person. Therefore, I request that all clients do as much as possible to cooperate and help in every way. The purpose of this article is to describe the procedure that we may follow and give you sufficient instructions to enable you to assist us in this undertaking. Needless to say, helping us is just another way of helping yourself.
2. Clients should provide my office with the following
1. Any bills
2. All Hospital or doctor records in your possession
3. Photos of scars, cuts, bruises
4. Photos of damage to your clothes and property
5. Photos of accident site
6. Major Med Card
7. Paystub if lost time from work
3. Attorney- Client Confidential Relationship
First, I want to thank our clients for giving me the opportunity to assist them in their case. I am a legal professional and I have great pride and confidence in the legal services that I perform for clients during our relationship as attorney-client. If you have concerns about your case, please call my office. (732) 572-0500
We feel that this case is extremely important not only to you, but to this office as well. This is not simply a matter of obtaining just compensation for you, although that is very important; we take professional pride in guiding our clients carefully through difficult times to a satisfactory conclusion of their cases.
4. Submission of Bills to Major Medical Second
5. Diary
We want you to keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort you put into your employment, what activities you engage in after work, etc. In other words, we need you to describe the changes in your working life, your playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook. Remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family, friends, and co-workers.
Keep a diary of all matters concerning this accident-no matter how trivial you think it may be. You should include notes on the treatments you receive, therapy, casts, appliances, hospitalization, change of doctors, change of medication, symptoms, recurrence, setbacks, disabilities and inconveniences. If you have any doubt about the propriety of including some particular information, please call the office and let us assist you.
6. Record expenses
You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times.
From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date.
Your attorney will keep track of your legal expenses, which may include costs of filing, service of complaint, investigation, reports, depositions, witness fees, hospital/ medical records, etc.
7. Investigation and Filing of Complaint
Procedurally, the following events occur in most personal injury cases. First, your attorney must complete the investigation. This will involve the collection of information from your physician, your employer, and our investigator. We will need your doctors to provide us with copies of all bills, medical records and possibly a medical report.
When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement. If the insurance company will not make an adequate offer, then a Complaint and Case Information Statement is prepared by your attorney. It is filed in the Superior Court, Law Division. Your attorney then will prepare a summons and have the defendants personally served with the Summons and Complaint. The defendant, through their insurance company, must file an "Answer" within 35 days.
8. Interrogatory Questions and Discovery
The Answer is followed by a request for written interrogatories. These are questions that must be answered by each party. The Superior Court has set up certain "Form A" Interrogatory Questions which are contained in the Rules of Court. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question. The deposition is just as important as the trial itself. In the event you are deposed during the course of this action, you will receive detailed instructions as to the procedure and will be required to watch a videotape. After taking depositions, the case will be set down for an Arbitration. If the parties do not settle after the Arbitration, the case will be given a trial call date.
Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.
9. Doctor/ Treatment
It will help your case to tell us and your doctors about any injury or medical problems before or after your accident. Good cases can be lost by the injured person concealing or forgetting an earlier or later injury or medical problem. Insurance companies keep a record of any and all claims against any insurance company. The insurance company is sure to find out if you have ever made a previous claim.
Tell your doctors all of your complaints. The doctor's records can only be as complete as what you have given. Keep track of all prescriptions and medicines taken and the bills. Also save all bottles or containers of medicine.
10. Bills
Retain all bills which relate to your damages, including medical expenses, hospital expenses, drugs and medicines, therapy, appliances, and anything needed to assist in your recovery. If possible, pay these bills by check or money order, so that a complete record may be kept. If this is not possible, be certain to obtain a complete receipt with the bill heading on it, to indicate where the receipt came from and the party issuing it.
11. Evidence
Be certain to keep anything that comes into your possession which might be used as evidence in your case, such as shoes, clothing, glasses, photographs, defective machinery, defective parts, foreign substances which may have been a factor in your accident, etc. Be sure to let the office know that you have these items in your possession.
12. Photographs
Take photographs of all motor vehicles, accident site, etc., that may be connected--directly or indirectly--with your accident. Again, be sure to let the office know that you have such photographs.
.i.13. Keep your attorney advised
Keep this office advised at all times with respect to changes in address, important changes in medical treatment, termination of treatment, termination of employment, resumption of employment, or any other unusual change in your life.
i.14. Lost wages
Keep a complete record of all lost wages. Obtain a statement from your company outlining the time you have lost, the rate of salary you are paid, the hours you work per week, your average weekly salary, and any losses suffered as a result of this accident. Where possible, also obtain other types of evidence such as ledger sheets, copies of time cards, canceled checks, check stubs, vouchers, pay slips, etc.
.i.15. New information
In the event that any new information concerning the evidence in this case comes to your attention, report this to the attorney immediately. This is particularly true in the case of witnesses who have heretofore been unavailable.
16. Do not discuss the case
The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.
Obviously, we cannot stress too strongly that you DO NOT discuss this matter with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.
17. Questioning
If any person approaches you with respect to this accident without your attorney's permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorney's office.
18. Investigation by Defendant Insurance Company
Permit us to reiterate at this time that the opposition's insurance company will in all probability have a team of lawyers and investigators working diligently to counter your claim. During the course of their investigation, it is quite possible that they may attempt to contact you through various (and sometimes, devious) methods. Please do not make their jobs any easier for them by answering their questions.
We cannot emphasize too strongly that you should refrain at all times from discussing this matter with anyone--and that includes your employer, your relatives, your neighbors, and even your friends. Of course, there are exceptions to this rule.
If there are friends or neighbors or relatives who know all of the facts and circumstances surrounding the accident and can be of assistance to you, then they should be referred to this office so that their natural sympathy can be channeled into an effective asset for you.
Insurance companies pay money to claimants when they are satisfied there are both liability and damages that support a recovery. They can be expected to thoroughly investigate the facts of the accident and any past injuries or claims. The insurance company will obtain copies of all of the claimant's past medical records.
19. Surveillance by Insurance Companies
Remember at all times that you may be under surveillance and, therefore, subject to being photographed or filmed by the adverse party. Be advised that there are cases where photographs and films have been introduced in court showing claimants who were allegedly in serious condition participating in activities which they alleged they were unable to do. You do not have to live in fear of being photographed, of course, if your cause is a just one.
However, when carrying on your usual activities, keep in mind at all times that you are subject to investigation. If you have been seriously injured, do not do anything that will jeopardize your case during the course of your daily life. You should always follow your doctor's advice. If you have to do things which cause you pain, this can usually be explained to the full satisfaction of any court or jury.
There are cases where the insurance agent has attempted to discredit a personal injury plaintiff by taking movies of the claimant engaged in various physical activities. In one case, large rocks weighing over one hundred pounds were placed at the door of the garage during the night so that claimant would have to be forced to remove the rocks in order to drive to work. This, of course, was filmed and used to discredit the plaintiff's claim in court.
20. The value of a case depends on the Permanent Injury, medical treatment and doctor's reports
Undoubtedly, you have questions as to how much your case is worth. We are going to be frank: The fact of the matter is there can be no answer to this question until we have completed the investigation in your case. Once we complete our investigation, of course, we can make a determination as to the amount of the defendant's liability, if any, and even at that we will only be at a starting point. After that, we must obtain all necessary information concerning your lost wages, your disability, your partial disability, your life changes, and your prognosis. You may rest assured of one thing, however, and that is the fact that your case will not be settled below its true value, that is the fair compensation for the injuries you have received. You may also rest assured that no settlement agreement will be entered into without your consent.
Conclusion
We appreciate that this is a great deal of information to absorb. We also appreciate that our requests for client's assistance have been numerous. However, we are certain that our clients appreciate having this information from the outset. Each request and bit of information given here represents an important part in recovering full value for your injury. Therefore, we respectfully request your full cooperation. If you have questions or concerns regarding these instructions, we encourage you to feel free to contact the office at any time.
If you've been in an accident and are considering making a claim, call a lawyer promptly, as there are time limits for making claims. These time limits (called "statutes of limitations") have harsh results if not followed. Recently, a woman who was hurt in a car accident made a claim one day after the statue of limitations for injury actions passed. Despite this minor violation, a court dismissed her claim, and she could not recover for her injuries and losses. In addition, a "Notice of Claim" must be served on a Public Entity within 90 days.
What happens in a Personal Injury Sports Claim:
We will not handle a case unless there is bona fide negligence. You must have a serious permanent injury.
AT THE ACCIDENT SCENE
1. Stop . . . do not leave the scene of the accident.
CALL THE AMBULANCE, tell them where the accident occurred and (ask for medical help if needed).
2. Notify the property manager or owner, if possible. Insist they observe where you fell. For example, if you fall on debris at an ice skating, notify the manager.
3. Get names and addresses of all witnesses
Witnesses will be a tremendous help to you in any subsequent court action if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down the license plate numbers of their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses' names to anyone but the police, your attorney or your insurance company.
4. While waiting for ambulance, write down- Accident Information
Date __ Time __
Location __
Weather __
Road conditions __
Damage __
5. Summary of accident __
6. Diagram of accident location
7. Call an ambulance. If you have any reason to suspect you were injured in the accident, go to a hospital immediately or see a physician promptly. You'll want it on record that you sought treatment right away, not in a week or so.
8. Write down name of Police Officers, Department and Badge Number, Ambulance crew, etc.
9. Do not assign or accept blame for the accident.
- The scene of the accident is not the place to determine fault. Discuss the accident only with the ambulance and medical personnel, your attorney and with representatives of your insurance company. Give the other party only your name and address.
- Be cooperative with the police.
10. Have immediate photos taken of accident site.
11. Call a personal injury attorney immediately, not a real estate attorney.
Call Kenneth A. Vercammen- Trial Attorney
Attorney At Law
(732) 572-0500
When you need help the most, we will be ready to help you.
12. Never give a signed statement to the claims adjuster representing the property owner's insurance company. The same goes for a phone recording. They may be used against you in court to deny your claim. Speak with your personal injury attorney first.
IF YOU HAVE BEEN INJURED DUE TO NEGLIGENCE IN A SPORTS INJURY
It is important that you --
1. DO NOT discuss your case with anyone except your doctors and attorney.
2. DO NOT make any statements or give out any information.
3. DO NOT sign any statements, reports, forms or papers of any kinds, .
4. DO NOT appear at police or other hearings without first consulting with your attorney.
INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to appear at any hearings.
5. Refer to your attorney anyone who asks you to sign anything or to make any statement or report or who seeks information concerning your case.
6. Direct your doctor and other treatment providers not to furnish or disclose any information concerning your case to any entity other than your insurance company without YOU AND YOUR ATTORNEY'S WRITTEN PERMISSION.
7. You may have insurance coverage such as Blue Cross, Blue Shield or Major Medical which require prompt attention. However, be sure to have your treatment providers send bills immediately to all of your insurance companies.
8. Notify your attorney promptly of any new developments. Small things may be important. Keep your attorney informed.
9. Maintain accurate records of all information and data pertaining to your case.
10. If you or any witnesses should move, be sure to notify your attorney of the new address.
Financial Recovery if injured while falling down
1. Kenneth Vercammen Helps Injured persons
A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant. In other words, they have been injured as a result of an accident, and now wish to prosecute a claim against a negligent property owner and its insurance company. As the attorney of record, I will be bringing this action for the injured person. Therefore, I request that all clients do as much as possible to cooperate and help in every way. The purpose of this article is to describe the procedure that we may follow and give you sufficient instructions to enable you to assist us in this undertaking. Needless to say, helping us is just another way of helping yourself.
2. Clients should provide my office with the following
1. Any bills
2. All Hospital or doctor records in your possession
3. Photos of scars, cuts, bruises
4. Photos of damage to your clothes and property
5. Photos of accident site
6. Major Med Card
7. Paystub if lost time from work
3. Attorney- Client Confidential Relationship
First, I want to thank our clients for giving me the opportunity to assist them in their case. I am a legal professional and I have great pride and confidence in the legal services that I perform for clients during our relationship as attorney-client. If you have concerns about your case, please call my office. (732) 572-0500
We feel that this case is extremely important not only to you, but to this office as well. This is not simply a matter of obtaining just compensation for you, although that is very important; we take professional pride in guiding our clients carefully through difficult times to a satisfactory conclusion of their cases.
4. Submission of Bills to Major Medical Second
5. Diary
We want you to keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort you put into your employment, what activities you engage in after work, etc. In other words, we need you to describe the changes in your working life, your playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook. Remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family, friends, and co-workers.
Keep a diary of all matters concerning this accident-no matter how trivial you think it may be. You should include notes on the treatments you receive, therapy, casts, appliances, hospitalization, change of doctors, change of medication, symptoms, recurrence, setbacks, disabilities and inconveniences. If you have any doubt about the propriety of including some particular information, please call the office and let us assist you.
6. Record expenses
You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times.
From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date.
Your attorney will keep track of your legal expenses, which may include costs of filing, service of complaint, investigation, reports, depositions, witness fees, hospital/ medical records, etc.
7. Investigation and Filing of Complaint
Procedurally, the following events occur in most personal injury cases. First, your attorney must complete the investigation. This will involve the collection of information from your physician, your employer, and our investigator. We will need your doctors to provide us with copies of all bills, medical records and possibly a medical report.
When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement. If the insurance company will not make an adequate offer, then a Complaint and Case Information Statement is prepared by your attorney. It is filed in the Superior Court, Law Division. Your attorney then will prepare a summons and have the defendants personally served with the Summons and Complaint. The defendant, through their insurance company, must file an "Answer" within 35 days.
8. Interrogatory Questions and Discovery
The Answer is followed by a request for written interrogatories. These are questions that must be answered by each party. The Superior Court has set up certain "Form A" Interrogatory Questions which are contained in the Rules of Court. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question. The deposition is just as important as the trial itself. In the event you are deposed during the course of this action, you will receive detailed instructions as to the procedure and will be required to watch a videotape. After taking depositions, the case will be set down for an Arbitration. If the parties do not settle after the Arbitration, the case will be given a trial call date.
Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.
9. Doctor/ Treatment
It will help your case to tell us and your doctors about any injury or medical problems before or after your accident. Good cases can be lost by the injured person concealing or forgetting an earlier or later injury or medical problem. Insurance companies keep a record of any and all claims against any insurance company. The insurance company is sure to find out if you have ever made a previous claim.
Tell your doctors all of your complaints. The doctor's records can only be as complete as what you have given. Keep track of all prescriptions and medicines taken and the bills. Also save all bottles or containers of medicine.
10. Bills
Retain all bills which relate to your damages, including medical expenses, hospital expenses, drugs and medicines, therapy, appliances, and anything needed to assist in your recovery. If possible, pay these bills by check or money order, so that a complete record may be kept. If this is not possible, be certain to obtain a complete receipt with the bill heading on it, to indicate where the receipt came from and the party issuing it.
11. Evidence
Be certain to keep anything that comes into your possession which might be used as evidence in your case, such as shoes, clothing, glasses, photographs, defective machinery, defective parts, foreign substances which may have been a factor in your accident, etc. Be sure to let the office know that you have these items in your possession.
12. Photographs
Take photographs of all motor vehicles, accident site, etc., that may be connected--directly or indirectly--with your accident. Again, be sure to let the office know that you have such photographs.
.i.13. Keep your attorney advised
Keep this office advised at all times with respect to changes in address, important changes in medical treatment, termination of treatment, termination of employment, resumption of employment, or any other unusual change in your life.
i.14. Lost wages
Keep a complete record of all lost wages. Obtain a statement from your company outlining the time you have lost, the rate of salary you are paid, the hours you work per week, your average weekly salary, and any losses suffered as a result of this accident. Where possible, also obtain other types of evidence such as ledger sheets, copies of time cards, canceled checks, check stubs, vouchers, pay slips, etc.
.i.15. New information
In the event that any new information concerning the evidence in this case comes to your attention, report this to the attorney immediately. This is particularly true in the case of witnesses who have heretofore been unavailable.
16. Do not discuss the case
The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.
Obviously, we cannot stress too strongly that you DO NOT discuss this matter with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.
17. Questioning
If any person approaches you with respect to this accident without your attorney's permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorney's office.
18. Investigation by Defendant Insurance Company
Permit us to reiterate at this time that the opposition's insurance company will in all probability have a team of lawyers and investigators working diligently to counter your claim. During the course of their investigation, it is quite possible that they may attempt to contact you through various (and sometimes, devious) methods. Please do not make their jobs any easier for them by answering their questions.
We cannot emphasize too strongly that you should refrain at all times from discussing this matter with anyone--and that includes your employer, your relatives, your neighbors, and even your friends. Of course, there are exceptions to this rule.
If there are friends or neighbors or relatives who know all of the facts and circumstances surrounding the accident and can be of assistance to you, then they should be referred to this office so that their natural sympathy can be channeled into an effective asset for you.
Insurance companies pay money to claimants when they are satisfied there are both liability and damages that support a recovery. They can be expected to thoroughly investigate the facts of the accident and any past injuries or claims. The insurance company will obtain copies of all of the claimant's past medical records.
19. Surveillance by Insurance Companies
Remember at all times that you may be under surveillance and, therefore, subject to being photographed or filmed by the adverse party. Be advised that there are cases where photographs and films have been introduced in court showing claimants who were allegedly in serious condition participating in activities which they alleged they were unable to do. You do not have to live in fear of being photographed, of course, if your cause is a just one.
However, when carrying on your usual activities, keep in mind at all times that you are subject to investigation. If you have been seriously injured, do not do anything that will jeopardize your case during the course of your daily life. You should always follow your doctor's advice. If you have to do things which cause you pain, this can usually be explained to the full satisfaction of any court or jury.
There are cases where the insurance agent has attempted to discredit a personal injury plaintiff by taking movies of the claimant engaged in various physical activities. In one case, large rocks weighing over one hundred pounds were placed at the door of the garage during the night so that claimant would have to be forced to remove the rocks in order to drive to work. This, of course, was filmed and used to discredit the plaintiff's claim in court.
20. The value of a case depends on the Permanent Injury, medical treatment and doctor's reports
Undoubtedly, you have questions as to how much your case is worth. We are going to be frank: The fact of the matter is there can be no answer to this question until we have completed the investigation in your case. Once we complete our investigation, of course, we can make a determination as to the amount of the defendant's liability, if any, and even at that we will only be at a starting point. After that, we must obtain all necessary information concerning your lost wages, your disability, your partial disability, your life changes, and your prognosis. You may rest assured of one thing, however, and that is the fact that your case will not be settled below its true value, that is the fair compensation for the injuries you have received. You may also rest assured that no settlement agreement will be entered into without your consent.
Conclusion
We appreciate that this is a great deal of information to absorb. We also appreciate that our requests for client's assistance have been numerous. However, we are certain that our clients appreciate having this information from the outset. Each request and bit of information given here represents an important part in recovering full value for your injury. Therefore, we respectfully request your full cooperation. If you have questions or concerns regarding these instructions, we encourage you to feel free to contact the office at any time.
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