Texas Road Pharmacy liability for fall down and injury claims.
Texas Road Pharmacy liability for fall down 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.
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
NOTE TO JUDGE
Include the following where notice of the condition is an
issue.
But,
in this case, the property owner contends that he/she had no notice or
knowledge of the alleged dangerous condition and, therefore, cannot be held
responsible for it. In that connection, I must make you aware of this rule: 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, 247N.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
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