LIABILITY OF FORMER OWNER OF COMMERCIAL PROPERTY FOR DEFECTS OR OTHER DANGEROUS CONDITIONS IN ABUTTING SIDEWALKS model jury charge 5.20G

 LIABILITY OF FORMER OWNER OF COMMERCIAL PROPERTY FOR DEFECTS OR OTHER DANGEROUS CONDITIONS IN ABUTTING SIDEWALKS  model jury charge 5.20G                 

          During the time a former owner of commercial property owned or controlled that property, he/she was under a duty to use reasonable care to see to it that the sidewalks abutting the property were reasonably safe for members of the public who used them.  He/She must have exercised reasonable care to see to it that the condition of the abutting sidewalk was reasonably safe and would not subject pedestrians to an unreasonable risk of harm.  The concept of reasonable care requires a former owner to have taken action with regard to dangerous conditions created or maintained during his/her ownership or control within a reasonable period of time after the former owner became aware of the dangerous condition or, in the exercise of reasonable care, should have become aware of it.  This duty of care is not avoided merely because a former owner is no longer the owner of the property.  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 which was created or maintained by defendant former owner, and if you find that the former owner knew of that condition or should have known of it but, irrespective of whether he/she continues to own the property, failed to take such reasonable action to correct or remedy the situation within a reasonable period of time thereafter as a reasonable prudent person would have done under the same circumstances, then he/she is negligent.

[Where notice of the condition is an issue, add:]

         But, in this case, defendant former owner contends that he/she had no notice or knowledge of the alleged dangerous condition which was created or maintained during his/her control and, therefore, cannot be held responsible for it.  In that connection, I must make you aware of this rule:  A former owner of commercial property is chargeable with a duty of having made reasonable observations of his/her property, including the abutting sidewalk during his/her ownership or control in order to discover any dangerous condition that might have developed or occurred.  He/She must have made observations of the property, including the sidewalk, with the frequency that a reasonably prudent commercial property owner would in the same circumstances.  If you find that such reasonable observations would have revealed the dangerous condition alleged in this case, then defendant former 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.

[Where a former owner has taken some action with regard to the condition and the adequacy of the action is in question, add:]

         What action must the former owner take with regard to a dangerous condition that he/she maintained or controlled?  The action required by the law is action which a reasonably prudent person would take or should have taken under the same circumstances to correct the dangerous condition (repair or remove it) or 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 former 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.

NOTE TO JUDGE

The liability of a former owner of commercial property for dangerous conditions created or maintained during the former owner’s ownership and control is generally the same as that of the commercial owner.  See Cogliatti v. Ecco High Frequency Corp., 92 N.J. 402 (1983).  This Charge 5.20G, therefore, is similar to 5.20B.  There are, however, several caveats which might in certain cases require modification of the model charge insofar as it applies to former owners.  First, the liability of former owner established in Cogliatti applies to accidents which have occurred after February 8, 1983.  In cases involving accidents which have occurred prior to February 8, 1983, the duration of liability of former owners after convey­ance is governed by Sarnicandro v. Lake Developers, Inc., 55 N.J. Super. 475 (App. Div. 1959) which holds that liability continues after conveyance for a “reasonable period of time.”  In such a case the model charge must be modified accordingly.  Second, although Cogliatti has rejected this “reasonable period of time” limitation upon liability of a former owner in cases arising after February 8, 1983, the particular facts of a case might raise the applicability of the 10-year limitation contained in N.J.S.A. 2A:14-1.1.  See Cogliatti, 92 N.J. at 413. Third, knowledge of a condition, actual or constructive, that a former owner had or should have had and knowledge that an owner had or should have had, as well as the action to correct or remedy a condition that a reasonably prudent former owner should have taken an action to correct, remedy or reduce the risk of harm that a reasonably prudent commercial owner should have taken, may differ depending upon the particular circumstances applicable to each.  It is for this reason that the second and third portions of 5.19 and 5.28 are somewhat different. Additional modifications might be required depending upon the facts in a particular case.  Fourth, in a snow and ice accumulation case, it would appear that former owners would not be liable except in the rare case after February 8, 1983 in which closing takes place either with those conditions on the grounds or during a snow/ice storm.

It should also be noted that the contractual relationship between the former owner and owner is not one of the circumstances that should affect liability vis-a-vis the injured plaintiff.  Rather, the contractual relationship, if any, is a consideration for the issues of indemnification and/or comparative negligence.  Cogliatti, 92 N.J. at 414.  The model charge does not, therefore, make specific reference to the contractual relationship.

Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks Model Jury charge 5.20

Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks Model Jury charge  5.20
The 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.3 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.
              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
3If 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.

        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.
        NOTE TO JUDGE
Include the following where the owner has taken some action with regard to the condition and the adequacy of the action is in question.
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.4
NOTE TO JUDGE
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).
Owner of a vacant lot is not a commercial land owner 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). 
4See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981); Mirza v. Filmore Corp., 92 N.J. 390 (1983). (responsibility of commercial landowner for removal of snow or ice from public sidewalk). Stewart imposes liability on commercial landowners only.
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. Petrocelli v. Sayreville Shade Tree Commission, 297 N.J Super. 544 (App. Div. 1997). But see Learn v. City of Perth Amboy, 245 N.J Super. 577 (App. Div. 1991) where the Shade Tree Commission was merely advisory.

Liability of Owner (Occupant) residential Who Undertakes to Clear Sidewalk model jury charge CHARGE 5.20

Liability of Owner (Occupant) residential  Who Undertakes to Clear Sidewalk model jury charge  CHARGE 5.20 
The owner (occupant) of residential premises abutting a public sidewalk is not required to keep the sidewalk free from the natural accumulation of ice and

snow. But he/she is liable if, in clearing the sidewalk of ice and snow2, he/she, through his/her negligence, adds a new element of danger or hazard, other than that caused by the natural elements, to the use of the sidewalk by a pedestrian. In other words, while an abutting owner (occupant) is under no duty to clear his sidewalk of ice and snow, he/she may become liable where he/she undertakes to clear the sidewalk and does so in a manner which creates a new element of danger which increases the natural hazard already there.
Therefore, should you find that the defendant, in undertaking to remove the ice and snow from his/her sidewalk, created a new hazard or increased the existing hazard and that this new or increased hazard proximately caused or concurred with the natural hazard to cause plaintiff’s injuries, then you must find for the plaintiff.
Should you find, however, that the defendant did not increase the natural hazard or create a new element of danger which proximately caused or concurred in causing plaintiff’s injuries, you must find for the defendant.
2Liptak v. Frank, 206 N.J. Super. 336 (App. Div. 1985) holding that residential landowners owed no duty to pedestrians, under either common law or municipal ordinance, to remove ice and snow from their abutting sidewalk.

Cases:

CHARGE 5.20 ― Page 5 of 10

Taggert v. Bouldin, 111 N.J.L. 464, 467 (E. & A. 1933); Saco v. Hall, 1 N.J. 377, 381 (1949); MacGregor v. Tinker Realty Co., 37 N.J. Super. 112, 115 (App. Div. 1955); Gentile v. National Newark and Essex Bkg. Co., 53 N.J. Super. 35, 38 (App. Div. 1958); Seqgal v. Fox, 98 N.J.L. 819 (E. & A. 1923) (existence of a municipal ordinance obligating landowner to clear sidewalk of ice and snow does not create rights in favor of private individual on defendant’s failure to comply with the ordinance); cf. Gellenthin v. J & D. Inc., 35 N.J. 341 (1962). 

Sidewalk Liability for Fall Downs on Sidewalks of Commercial Premises

Kenneth Vercammen &a Associates Law Office helps people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Don't give up! Our Law Office can provide experienced attorney representation if you are injured in an accident and suffer a Serious Injury. The 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. If there was a condition of this sidewalk that was dangerous in that it created an unreasonable risk of harm for pedestrians, and if 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. Sometimes, store customers are injured in fall downs caused by holes in sidewalks in dimly lit areas. Customers may be injured by failure to repair broken sidewalks. Sometimes people trip when business fail to clean up broken or fallen items on sidewalks. No one plans on being injured in an accident, whether it is a car accident, fall down or other situation. Speak with a personal injury attorney immediately to retain all your rights. The businesses are responsible for the maintenance of their premises which are used by the public. It is the duty of the store 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 store to properly and adequately inspect, maintain and keep the 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 store 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. more info at http://www.njlaws.com/sidewalk_liability_for_fall_downs_on_sidewalks_of_commercial_premises.html?id=846&a=

Black Ice Fall Down

Compiled by Kenneth Vercammen, Esq. from various sources Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks The 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. If there was a condition of this sidewalk that was dangerous in that it created an unreasonable risk of harm for pedestrians, and if 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.

Sidewalk Fall down Liability

Sidewalk Fall down Liability Certain cases impose limited 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 landowners 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 owners liability for off-premises injuries. Critical to those decisions is the premise that a landowners 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. Aulettos 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 caterers 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.

Liability of Owner of Commercial Property for fall downs on Snow and Ice Accumulation and Other Dangerous Conditions in parking lots and Sidewalks

Liability of Owner of Commercial Property for fall downs on Snow and Ice Accumulation and Other Dangerous Conditions in parking lots and Sidewalks
          The 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. If there was a condition of this sidewalk that was dangerous in that it created an unreasonable risk of harm for pedestrians, and if 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.
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 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. 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 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.

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. Kenneth Vercammen's office generally does not file a Complaint until the treating doctor signs an affidavit of merit setting forth why the injury is permanent and the diagnostic tests upon which the permanent injury is based. You will need to speak with your doctor to ask if you have a permanent injury.
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.
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.
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.
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.
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.