Kenneth Vercammen (732) 572-0500

2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee, GP on Personal Injury and lectured at the ABA Annual Meeting attended by 10,000 attorneys and professionals.

New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Wednesday, September 27, 2017

RULE 4:44. Proceedings To Approve Settlements


 RULE 4:44. Proceedings To Approve Settlements 
4:44-1. Venue; Filing 
Actions brought in the Superior Court on behalf of a minor or mentally incapacitated person, instituted without process, for the purpose of obtaining the court's approval of a settlement shall be brought in any county in which the venue might be laid under R. 4:3-2, and in such actions in the Superior Court, the papers shall, unless the court otherwise orders, be filed with the deputy clerk of the Superior Court in the county of venue before the hearing on the application for approval. 
Note: Source-R.R. 4:56A(a)(b); amended July 26, 1984 to be effective September 10, 1984; amended July 13, 1994 to be effective September 1, 1994; amended June 28, 1996 to be effective September 1, 1996; amended July 12, 2002 to be effective September 3, 2002. 
4:44-2. Medical Testimony 
Medical testimony as to the injuries of a minor or mentally incapacitated person given in proceedings to obtain the approval of a settlement shall be that of the attending or consulting physician and may be submitted by affidavit unless the court, for good cause shown, permits the testimony of other medical experts or in its discretion requires the physician's personal appearance. 
Note: Source-R.R. 4:56A(c); amended July 13, 1994 to be effective September 1, 1994; amended July 12, 2002 to be effective September 3, 2002. 
4:44-3. Hearing; Order; Expenses 

All proceedings to enter a judgment to consummate a settlement in matters involving minors and mentally incapacitated persons shall be heard by the court without a jury. The court shall determine whether the settlement is fair and reasonable as to its amount and terms. In the case of a structured settlement providing for deferral of all or part of the proceeds thereof, the court shall also satisfy itself, based on the financial security of the obligor or surety and such other relevant facts as may be adduced, of the reasonable certainty that all future payments will be made as proposed by the settlement. If the court approves the settlement it shall enter an order reciting the action taken and directing the appropriate judgment in accordance with R. 4:48A, whose provisions shall also apply to deferred payments under structured settlements. The court, on the request of the claimant or the claimant's attorney or on its own motion, may approve the expenses incident to the litigation, including attorney's fees. If the fees of the attorney representing the guardian ad litem are to be paid by the defendant, the defendant shall upon the court's request make available to it defendant's complete file in the action. 

Sunday, September 3, 2017

Experts Not mandatory in NJ Elevator/Escalator Injury WENDY LAZARUS v. PORT AUTHORITY OF NEW YORK & NEW JERSEz

Experts Not mandatory  in NJ Elevator/Escalator Injury WENDY LAZARUS v. PORT AUTHORITY OF NEW YORK & NEW JERSE

December 29, 2014
 
Before Judges Hayden and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5670-11.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0PER CURIAM
Plaintiff Wendy Lazarus appeals from the August 9, 2013 Law Division order granting summary judgment to defendants Port Authority of New York and New Jersey (Port Authority) and Schindler Elevator Corporation (Schindler), and dismissing plaintiff's personal injury complaint. On appeal, plaintiff contends that she did not need an expert witness as she had demonstrated a prima facie case of negligence under the doctrine of res ipsa loquitur. After reviewing the facts and applicable legal principles, we reverse and remand for further proceedings.
Viewed in the light favorable to the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the facts reveal that on December 29, 2010, plaintiff was on her way to work when she entered an elevator at the Pavonia-Newport PATH train station. At the time the elevator doors were open, the floor appeared level with the platform, and no one was in the elevator. As she put her leg into the open elevator, the elevator abruptly rose three to four inches above the platform level, causing plaintiff to fall forward onto her hands and knees. The doors closed immediately. Plaintiff reported the incident to a security worker at the station and later that afternoon made a formal report. Plaintiff went to a hospital after work due to knee pain, where she learned that she had a fractured patella.
On November 2, 2011, plaintiff filed a civil complaint against the defendants, alleging that the Port Authority was liable as the owner and operator of the facility and that Schindler was liable as the maintenance company for negligently maintaining the elevator. Defendants' maintenance records show that prior to the event, the elevator in question had recurring problems. Specifically, in the month before her accident, on November 30 and December 6, 2010, repair technicians addressed issues with the elevator. Plaintiff also argued that about twelve hours prior to her accident, technicians were called to "troubleshoot [the] controller and valve" on the elevator in response to a reported problem. The technician returned the elevator to service less than an hour before plaintiff entered it.
After discovery ended, defendants filed a motion for summary judgment dismissing the case contending that plaintiff's expert's report should be stricken as a net opinion, and that the doctrine of res ipsa loquitur did not apply in the case. After hearing oral argument, the trial judge granted defendants' motion. The trial judge first struck plaintiff's expert's report as a net opinion. The trial court then concluded that, without an expert opinion establishing negligence, summary judgment was appropriate because "the common knowledge of lay jurors is incapable of assessing negligence of both defendants" and thus, "there [was] no basis for a reasonable jury to find in favor of the plaintiff[.]"
The trial court also found that plaintiff could not proceed under a theory of res ipsa loquitur since an expert's testimony was still required to determine whether defendants were negligent in maintaining and operating the elevator. The trial court reasoned that the mechanics of how elevators work was a complex issue that jurors could not understand without the assistance of expert testimony. This appeal followed.
On appeal, plaintiff's sole contention is that the trial court erred in granting summary judgment as expert testimony was not required for plaintiff to proceed under a theory of res ipsa loquitur.1 We agree.
We review a trial court's decision to grant or deny summary judgment de novo, Heyert v. Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013), utilizing "'the same standard [of review] that governs the trial court.'" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). Because our review is de novo, we "accord no deference to the trial judge's conclusions on issues of law." Depolink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013). Thus, the evidence must be viewed "in the light most favorable to the non-moving party" and must be analyzed to determine "whether the moving party was entitled to judgment as a matter of law." Mem'l Props., supra, 210 N.J. at 524 (citing Brill, supra, 142 N.J. at 523); see also R. 4:46-2(c).
The doctrine of res ipsa loquitur arose from public policy concerns in order to allow "a blameless injured plaintiff to obtain an inference of negligence where certain required factors are present." Mayer v. Once Upon A Rose, Inc., 429 N.J. Super. 365, 374 (App. Div. 2013). The doctrine creates a permissive inference, which may be accepted or rejected by a jury, that "if due care had been exercised by the person having control of the instrumentality causing the injury, the mishap would not have occurred." Ibid. (citations omitted).
Res ipsa loquitur "permits an inference of defendant's negligence where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's voluntary act or neglect." Jerista v. Murray, 185 N.J. 175, 192 (2005) (internal citations and quotation marks omitted). While the doctrine does not shift the burden of proof, the presentation of a prima facie case based on res ipsa generally assures that a plaintiff "will survive summary judgment." Id. at 193.
"Whether an occurrence 'ordinarily bespeaks negligence' depends on the balancing of probabilities being in favor of negligence." Buckelew v. Grossbard, 87 N.J. 512, 526 (1981). It follows that a plaintiff has demonstrated the doctrine of res ipsa loquitur "if it is more probable than not that the defendant has been negligent." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999) (citing Buckelew, supra, 87 N.J. at 526).
New Jersey courts have consistently recognized the doctrine of res ipsa loquitur in cases involving malfunctioning complex instrumentalities such as escalators, elevators, and automatic sliding doors. See, e.g., Rose v. Port of N.Y. Auth., 61 N.J. 129, 136-37 (1972) (holding that res ipsa loquitur could be invoked where the plaintiff was injured by an automatic sliding door); Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 298, 300-03 (App. Div. 2004) (finding that res ipsa loquitur applies where the plaintiffs were injured after an elevator dropped three floors); Pisano v. S. Klein on the Square, 78 N.J. Super. 375, 379, 395-97 (App. Div.), certif. denied, 40 N.J. 220 (1963) (holding that res ipsa loquitur could be used to show negligence with respect to the defendant's escalators).
It is important to note that res ipsa loquitur "is not a theory of liability[.]" Myrlak, supra, 157 N.J. at 95. Rather, it is a method by which plaintiffs can circumstantially prove the existence of negligence by permitting the fact-finder to infer that the defendants were negligent or failed to act with due care. See Rosenberg, supra, 366 N.J. Super. at 301 (internal citations omitted). "Where applicable, res ipsa allows a plaintiff to establish a prima facie case and to withstand a motion to dismiss for lack of direct proof of negligence. Res ipsa does not shift the burden of proof to the defendant, but only the burden of producing evidence." Knight v. Essex Plaza, 377 N.J. Super. 562, 569 (App. Div. 2005), overruled on other grounds by Jerista, supra, 185 N.J. at 195 (citing Myrlak, supra, 157 N.J. at 96).
Under the first element of res ipsa loquitur, courts have concentrated primarily on two factors: (1) whether it is more probable than not that the defendant was negligent in causing the accident2 and (2) whether plaintiff must present expert testimony. This first factor focuses on whether the accident is of the type that would not ordinarily occur absent negligence. Buckelew, supra, 87 N.J. at 526. Plaintiffs are not required to explain all of the reasons why an instrument has malfunctioned or to eliminate each of these as the true cause of the malfunction. Rather,
[t]he requirement as it is generally applied is more accurately stated as one that the evidence must afford a rational basis for concluding that the cause of the accident was probably "such that the defendant would be responsible for any negligence connected with it." That does not mean that the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at defendant's door.
[Brown v. Racquet Club of Bricktown, 95 N.J. 280, 292 (1984) (internal citations omitted).]
Moreover, instead of requiring the plaintiff to eliminate these other causes, res ipsa shifts the burden to the defendant to explain why the instrumentality malfunctioned. The rationale behind this burden-shifting is that the defendant is more knowledgeable about the instrument and has greater access to the evidence. See Jerista, supra, 185 N.J. at 192; see also Rose, supra, 61 N.J. at 137.
With respect to the second res ipsa element, "[e]xclusive control of the instrumentality by the defendant is . . . the essence of this rule of evidence." Bornstein v. Metro. Bottling Co., Inc., 26 N.J. 263, 271 (1958). This element does not mandate that "a plaintiff exclude all other possible causes of an accident, only that it is more probable than not that defendant's negligence was a proximate cause of the mishap." Luciano, supra, 306 N.J. Super. at 313. In holding that the exclusive control element of the res ipsa doctrine was met when a metal gate in Port Authority building fell on a passerby, we pointed out that
Given the Authority's well-established duty to provide a reasonably safe place for its patrons to do that which is within the scope of the invitation, it was error to require [plaintiff] to establish that prior unknown conduct by a member or members of the public did not cause the gate to fall upon him. To the contrary, the 'duty to maintain safe premises and protect invitees includes an affirmative obligation upon the proprietor to inspect the premises 'to discover their actual condition and any latent defects,' . . . as well as 'possible dangerous conditions of which he does not know.'"
[Id. at 313-14 (citing Brown, supra, 95 N.J. at 290-91).]
Moreover, exclusive control is not limited to a single defendant. See Apuzzio v. J. Fede Trucking, Inc., 355 N.J. Super. 122, 128 (App. Div. 2002). Rather, "an instrumentality causing injury may be in joint control of two defendants in which event the doctrine of res ipsa loquitur will apply against both of said defendants." Id. at 129 (citing Meny v. Carlson, 6 N.J. 82, 94 (1950)).
Having reviewed the evidence and drawn all reasonable inferences in favor of plaintiff, Brill, supra, 142 N.J. at 523, we find that plaintiff has established a prima facie case for negligence through the doctrine of res ipsa loquitur. Here, plaintiff, a business invitee, entered the open and apparently stationary elevator at the PATH station, which abruptly rose several inches, causing plaintiff to fall forward, injuring her knee. Common knowledge suggests that elevators do not usually operate in the manner reported by plaintiff and that such an accident does not normally occur absent negligence. Thus, the trial court erred in finding that plaintiff could not proceed under this theory.
We view the circumstances present here as analogous to those in Rose and Luciano, where res ipsa loquitur was found to be applicable. See Rose, supra, 61 N.J. at 136-37 ("Members of the public passing through automatic doors . . . do so generally without sustaining injury[]" and when such injury does occur, "[i]t strongly suggests a malfunction which in turn suggests neglect."). Our conclusion is further bolstered by the fact that there had been several prior complaints made to defendants regarding the particular elevator that injured plaintiff. Indeed, the last reported problem occurred less than twenty-four hours before plaintiff's accident. Cf. Gore v. Otis Elevator Co., 335 N.J. Super. 296, 302 (App. Div. 2000) (reasoning that res ipsa loquitur did not apply because there was no evidence that defendant had made any repairs or received any complaints about the elevator prior to the accident).
We reject defendants' argument that the cause of the malfunction was so complex or specialized that the fact-finder would be unable to understand it without an expert witness. On the contrary, plaintiff can rely on the common knowledge and experience of the fact-finder to deduce what happened without an expert's opinion. See Jerista, supra, 185 N.J. at 195, 197 (expert testimony not required to establish under res ipsa that the accident was more likely than not the result of defendants' negligence). Consequently, although this case involves a complex instrumentality, scientific or technical knowledge is not essential to the fact-finder understanding what happened and determining whether defendants were negligent. The average person does not need to resort to scientific or technical knowledge to understand that an elevator generally does not abruptly rise off the floor as a patron is entering it and before the doors have closed.
We also reject defendant's argument that plaintiff bears the initial burden of explaining what caused the elevator to malfunction. Such an argument miscomprehends Jerista, which explicitly found that the burden of explaining why an instrumentality malfunctioned is squarely on defendants because of their superior knowledge and access to the relevant information. See Jerista, supra, 185 N.J. at 192; see also Rose, supra, 61 N.J. at 137 (citing Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 430 (1966) ("The situation being peculiarly in the defendant's hands, it is fair to call upon the defendant to explain, if he wishes to avoid an inference by the trier of the facts that the fault probably was his.")).
We also note that the plaintiff has established that the defendants were in exclusive control of the elevator. The Port Authority owned and operated the PATH station where the accident occurred and contracted with Schindler to inspect, maintain, and repair the elevators at this particular train station. Nothing in the record suggests that the Port Authority relinquished complete control to Schindler, that only Schindler had access to the elevator in question, or that third parties had access to the inner workings of the elevator. Additionally, we note that neither defendant has presented evidence that would suggest that plaintiff or a third party was at fault or contributed to the accident.
In sum, the record viewed in the light most favorable to plaintiff showed that the occurrence here bespeaks negligence, the instrumentality was in the exclusive control of defendants, and plaintiff did not contribute to the accident. Accordingly, we are satisfied that plaintiff may proceed in reliance on the res ipsa loquitur doctrine without expert testimony. Of course, defendants are free to produce evidence that it was not negligent as the res ipsa inference is merely permissive. Jerista, 185 N.J. at 193.
Reversed and remanded. We do not retain jurisdiction.
1 Plaintiff is not appealing the part of the order striking her expert's report.
2 Some cases examine this factor under the first element whereas other cases consider this a factor under the second element of res ipsa loquitur. See Szalontai v. Yazbo's Sports Caf , 183 N.J. 386 (2005) (noting that "[w]hether an occurrence ordinarily bespeaks negligence is based on the probabilities in favor of negligence.") (quoting Myrlak, supra, 157 N.J. at 95). Cf. Luciano v. Port Auth. Trans-Hudson Corp., 306 N.J. Super. 310, 313 (App. Div. 1997)

Tuesday, March 14, 2017

Liability for snow and ice fall downs and injury claims

Liability for snow and ice fall downs and injury claims
The NJ law imposes upon the owner of commercial or business property the duty to use reasonable care to see to it that the sidewalks abutting the property are reasonably safe for members of the public who are using them. In other words, the law says that the owner of commercial property must exercise reasonable care to see to it that the condition of the abutting sidewalk is reasonably safe and does not subject pedestrians to an unreasonable risk of harm.
The concept of reasonable care requires the owner of commercial property to take action with regard to conditions within a reasonable period of time after the owner becomes aware of the dangerous condition or, in the exercise of reasonable care, should have become aware of it.
Property owners also have an obligation to keep their parking lots clean and safe.
    The Anchor tenant stores often also have duties under a lease and under the law. The snow removal and maintenance companies are also sometimes to blame for negligence & injuries.
         Inside, the commercial business typically is liable for fall downs, not the property owner. For example, if someone slips and falls inside the store, restaurant or hotel, the negligent company is liable. This includes slip and falls on wet floors near the entrance to a store or public business.
What actions must the owner of commercial property take with regard to defects/snow/ice accumulation/dangerous conditions? The action required by the law is action which a reasonably prudent person would take or should have taken in the circumstances present to correct the defect/snow/ice accumulation/ dangerous condition, to repair it/remove it or to take other actions to minimize the danger to pedestrians (for example, to give warning of it) within a reasonable period of time after notice thereof. The test is: did the commercial property owner take the action that a reasonably prudent person who knows or should have known of the condition would have taken in that circumstance? If he/she did, he/she is not negligent. If he/she did not, he/she is negligent.
The NJ Supreme Court held Commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so." Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981). A commercial landowner may be liable to a pedestrian who is injured due to the condition of the sidewalk, "if, after actual or constructive notice, [the owner] has not acted in a reasonably prudent manner under the circumstances to remove or reduce the hazard." Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983). The commercial property owner's duty to maintain the sidewalk includes the obligation to remove snow or ice if the failure to do so would be negligent under the circumstances. Ibid.

     The following is the portion of the NJ Model Jury charge 5.20 which we used once in a successful case. The Judge read this law to the jury:
  
        The owner of commercial or business property is chargeable with a duty of making reasonable observations of his/her property, including the abutting sidewalk, in order to discover any dangerous condition that might develop or occur. The owner must make observations of his/her property, including the sidewalk, with the  frequency that a reasonably prudent commercial property owner would in the circumstances. If you find that such a reasonable observation would have revealed the dangerous condition alleged in this case, then the property owner is chargeable with notice of the condition although he/she did not actually know about it; that is, he/she is as much responsible for the condition as if he/she had actual knowledge of its existence.
If the unsafe condition is alleged to be snow and ice, N.J.S.A. 40:64-12 and any ordinance adopted by the municipality might be charged as a factor, the jury should consider the reasonableness of the time the defendant(s) has (have) waited to remove or reduce a snow or ice condition from the sidewalk.
If, therefore, you find that there was a condition of this sidewalk that was dangerous in that it created an unreasonable risk of harm for pedestrians, and if you find that the owner knew of that condition or should have known of it but failed to take such reasonable action to correct or remedy the situation within a reasonable period of time thereafter as a reasonably prudent commercial or business owner would have done under the circumstances, then the owner is negligent.
Where there is both a commercial and residential use of the property, the predominant use will determine the status of the property. Avalone v. Mortimer, 252 N.J. Super. 434 (App. Div. 1991), Wasserman v. W. R. Grace Co., 281 N.J. Super. 34 (App. Div. 1995). Hambright v. Yglesias, 200 N.J. Super. 392, 395 (App. Div. 1985), (two-family home utilized as apartment building in commercial property so as to impose duty upon owner to remove the ice from abutting sidewalk). Borges v. Hamad, 247 N.J. Super 353 (Law Div. 1990); aff’d, 247 N.J. Super. 295 (App. Div. 1990) (owner-occupied three-family house in a residential zone, with two rental units occupied solely by family members, is residential property). There is no affirmative duty on a charitable or religious institution to maintain public sidewalks abutting their properties. Lombardi v. First United Methodist Church, 200 N.J. Super. 646 (App. Div. 1985). But see Brown v. St. Venatius School, 111 N.J. 325 (1998) (school deemed commercial); Restivo v. Church of St. Joseph, 306 N.J. Super. 456 (App. Div. 1997) (leasing apartments even at below fair market value deemed commercial); Gilhooly v. Zeta Psi Fraternity, 243 N.J. Super. 201 (Law Div. 1990) (fraternity deemed commercial property owner).
The Owner of a vacant lot is not a commercial landowner for purposes of imposing sidewalk liability irrespective of the commercial status of the owner or the zoning. Briglia v. Mondrian Mortgage Corporation, 304 N.J. Super. 77 (App. Div. 1997); Abraham v. City of Perth Amboy, 281 N.J. Super. 81 (App. Div. 1995). 
The commercial property owner's responsibility to maintain the abutting sidewalk extends to commercial tenants in exclusive possession of the property. Antenucci v. Mr. Nick's Mens Sportswear, 212 N.J. Super. 124, 128-29 (App. Div. 1986). The liability of a commercial tenant for failure to maintain a sidewalk "is concurrent with that of the property owner." Jackson v. K-Mart Corp., 182 N.J. Super. 645, 651 (Law Div. 1981)..
See Christmas v. City of Newark, 216 N.J. Super. 393, 400 (App. Div. 1987) holding that Stewart, supra, establishes an absolute municipal immunity for deteriorated sidewalks; but, cf. Levin v. DeVoe, 221 N.J. Super. 61, at 64 n.1 (App. Div. 1987) disagreeing with the holding in Christmas. Shade Tree Commissions created by municipalities are granted absolute immunity pursuant to statute.

IF YOU FALL DOWN:
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 as needed).
2. Notify the property manager or owner, if possible. Insist they observe where you fell. For example, if you fall on an icy sidewalk at the store/ business, 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. You or friend/ family use a cell phone to take photos of the scene and negligent condition.
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 store your name and address. - Be cooperative with the police.
10. Have immediate photos taken of accident site if you don’t have cell phone or camera.
11. Call a personal injury attorney immediately, not a real estate attorney. Call Kenneth A. Vercammen- Trial Attorney  
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 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 BY SLIPPING ON SNOW OR ICE
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 coverages 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.

Call Kenneth Vercammen Esq. 732-572-0500

Tuesday, February 21, 2017

Liability for fall downs and injury claims NJ

Liability for fall downs and injury claims
The NJ law imposes upon the owner of commercial or business property the duty to use reasonable care to see to it that the sidewalks abutting the property are reasonably safe for members of the public who are using them. In other words, the law says that the owner of commercial property must exercise reasonable care to see to it that the condition of the abutting sidewalk is reasonably safe and does not subject pedestrians to an unreasonable risk of harm.
The concept of reasonable care requires the owner of commercial property to take action with regard to conditions within a reasonable period of time after the owner becomes aware of the dangerous condition or, in the exercise of reasonable care, should have become aware of it.
Property owners also have an obligation to keep their parking lots clean and safe.
    The Anchor tenant stores often also have duties under a lease and under the law. The snow removal and maintenance companies are also sometimes to blame for negligence & injuries.
         Inside, the commercial business typically is liable for fall downs, not the property owner. For example, if someone slips and falls inside the store, restaurant or hotel, the negligent company is liable. This includes slip and falls on wet floors near the entrance to a store or public business.
What actions must the owner of commercial property take with regard to defects/snow/ice accumulation/dangerous conditions? The action required by the law is action which a reasonably prudent person would take or should have taken in the circumstances present to correct the defect/snow/ice accumulation/ dangerous condition, to repair it/remove it or to take other actions to minimize the danger to pedestrians (for example, to give warning of it) within a reasonable period of time after notice thereof. The test is: did the commercial property owner take the action that a reasonably prudent person who knows or should have known of the condition would have taken in that circumstance? If he/she did, he/she is not negligent. If he/she did not, he/she is negligent.
The NJ Supreme Court held Commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so." Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981). A commercial landowner may be liable to a pedestrian who is injured due to the condition of the sidewalk, "if, after actual or constructive notice, [the owner] has not acted in a reasonably prudent manner under the circumstances to remove or reduce the hazard." Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983). The commercial property owner's duty to maintain the sidewalk includes the obligation to remove snow or ice if the failure to do so would be negligent under the circumstances. Ibid.

     The following is the portion of the NJ Model Jury charge 5.20 which we used once in a successful case. The Judge read this law to the jury:
  
        The owner of commercial or business property is chargeable with a duty of making reasonable observations of his/her property, including the abutting sidewalk, in order to discover any dangerous condition that might develop or occur. The owner must make observations of his/her property, including the sidewalk, with the  frequency that a reasonably prudent commercial property owner would in the circumstances. If you find that such a reasonable observation would have revealed the dangerous condition alleged in this case, then the property owner is chargeable with notice of the condition although he/she did not actually know about it; that is, he/she is as much responsible for the condition as if he/she had actual knowledge of its existence.
If the unsafe condition is alleged to be snow and ice, N.J.S.A. 40:64-12 and any ordinance adopted by the municipality might be charged as a factor, the jury should consider the reasonableness of the time the defendant(s) has (have) waited to remove or reduce a snow or ice condition from the sidewalk.
If, therefore, you find that there was a condition of this sidewalk that was dangerous in that it created an unreasonable risk of harm for pedestrians, and if you find that the owner knew of that condition or should have known of it but failed to take such reasonable action to correct or remedy the situation within a reasonable period of time thereafter as a reasonably prudent commercial or business owner would have done under the circumstances, then the owner is negligent.
Where there is both a commercial and residential use of the property, the predominant use will determine the status of the property. Avalone v. Mortimer, 252 N.J. Super. 434 (App. Div. 1991), Wasserman v. W. R. Grace Co., 281 N.J. Super. 34 (App. Div. 1995). Hambright v. Yglesias, 200 N.J. Super. 392, 395 (App. Div. 1985), (two-family home utilized as apartment building in commercial property so as to impose duty upon owner to remove the ice from abutting sidewalk). Borges v. Hamad, 247 N.J. Super 353 (Law Div. 1990); aff’d, 247 N.J. Super. 295 (App. Div. 1990) (owner-occupied three-family house in a residential zone, with two rental units occupied solely by family members, is residential property). There is no affirmative duty on a charitable or religious institution to maintain public sidewalks abutting their properties. Lombardi v. First United Methodist Church, 200 N.J. Super. 646 (App. Div. 1985). But see Brown v. St. Venatius School, 111 N.J. 325 (1998) (school deemed commercial); Restivo v. Church of St. Joseph, 306 N.J. Super. 456 (App. Div. 1997) (leasing apartments even at below fair market value deemed commercial); Gilhooly v. Zeta Psi Fraternity, 243 N.J. Super. 201 (Law Div. 1990) (fraternity deemed commercial property owner).
The Owner of a vacant lot is not a commercial landowner for purposes of imposing sidewalk liability irrespective of the commercial status of the owner or the zoning. Briglia v. Mondrian Mortgage Corporation, 304 N.J. Super. 77 (App. Div. 1997); Abraham v. City of Perth Amboy, 281 N.J. Super. 81 (App. Div. 1995). 
The commercial property owner's responsibility to maintain the abutting sidewalk extends to commercial tenants in exclusive possession of the property. Antenucci v. Mr. Nick's Mens Sportswear, 212 N.J. Super. 124, 128-29 (App. Div. 1986). The liability of a commercial tenant for failure to maintain a sidewalk "is concurrent with that of the property owner." Jackson v. K-Mart Corp., 182 N.J. Super. 645, 651 (Law Div. 1981)..
See Christmas v. City of Newark, 216 N.J. Super. 393, 400 (App. Div. 1987) holding that Stewart, supra, establishes an absolute municipal immunity for deteriorated sidewalks; but, cf. Levin v. DeVoe, 221 N.J. Super. 61, at 64 n.1 (App. Div. 1987) disagreeing with the holding in Christmas. Shade Tree Commissions created by municipalities are granted absolute immunity pursuant to statute.

IF YOU FALL DOWN:
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 as needed).
2. Notify the property manager or owner, if possible. Insist they observe where you fell. For example, if you fall on an icy sidewalk at the store/ business, 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. You or friend/ family use a cell phone to take photos of the scene and negligent condition.
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 store your name and address. - Be cooperative with the police.
10. Have immediate photos taken of accident site if you don’t have cell phone or camera.
11. Call a personal injury attorney immediately, not a real estate attorney. Call Kenneth A. Vercammen- Trial Attorney  
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 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 BY SLIPPING ON SNOW OR ICE
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 coverages 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.

Call Kenneth Vercammen Esq. 732-572-0500