Liability for fall downs and injury claims

 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. More info at https://www.njlaws.com/fall_down_law_in_new_jersey.html

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.

 

 

At The Accident Scene -

1. Stop . . . do not leave the scene of the accident

IF YOU FALL DOWN and are injured

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.    The injured person must prove it what was the negligence. What caused you to fall? Was there garbage or debris on the floor? Was there water on the floor? Did a store have a display where someone could easily trip on it? Did the store let too many people in to shop at once for a special event?

 

3.    You or friend immediately take cell phone photos of the injury location. Use a cell phone to take photos of the scene and negligent condition. Do this asap before clean up.

4. 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. Report

5  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 any details or 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.

. 

6. While waiting for ambulance, write down or record on your cell phone- Accident Information Date __ Time __ Location __ Weather __  Anything else important

  Summary of accident 

 . Diagram of accident location

7. Again, Call an ambulance or seek medical treatment. 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 Ambulance crew, Police Officers, Department and Badge Number, , etc. that appeared.

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. Not only is medical attention critical for your safety, but it’s also the first step in building your case. When you’re hurt in a slip and fall, the first thing that you need to do is document your injuries. Visiting a doctor immediately after your slip and fall is the most important thing you can do to create an expert record of your injuries.

Seeking medical attention quickly after a slip and fall also proves the timing of your injuries. It’s common for the insurance companies to try to dismiss your injuries, saying that you must have gotten them on another occasion. Going to the doctor right away prevents the other side from having any chance to say that you got your injuries in another way.

Also, the full extent of your injuries may not be immediately apparent to you after a slip and fall. If you have head trauma, you may not be aware of it. There are a variety of injuries that might be hidden to you in the aftermath of a fall. A medical expert knows what to look for. They can make sure that you’ve identified all of your injuries. Not only is a full accounting of your injuries critical for your recovery, but it’s also essential to build a complete case for a fair recovery.

 

11. Call a personal injury attorney immediately, not a real estate attorney. Call: Kenneth A. Vercammen, 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 other driver's insurance company. The same goes for a phone recording. They may be used against you in court. These insurance people are sometimes slippery. They call you and be pleasant, then ask “ How are you”. Most persons just say “good” or “ok”. Then the recording is used against them at trial where insurance company states they were good after their accident in 2020.

 

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.

 

   After you have meet with your attorney

IF YOU HAVE BEEN INJURED BY SLIPPING ON SNOW OR ICE or other fall down negligence

     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 kind without approval of your attorney

 

4. 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.

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. 

DO NOT appear at other hearings without first consulting with your attorney. INFORM YOUR ATTORNEY PROMPTLY of any notice, request to appear at any hearings.

 

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

 

     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.