The Supreme Court of New Jersey recently decided in the case of Marcinczyk v. State of New Jersey Police Training Commission that an agreement to waive any liability against a public entity is unenforceable as a matter of public policy. In Marcinczyk, the plaintiff was a police trainee and was mandated to attend a police academy for training. In applying for the police academy, Mr. Marcinczyk was required to sign a waiver which purportedly prevented him from suing the Police Academy for pain and suffering, medical expenses, loss of wages, injuries, permanent disabilities or pecuniary losses as a result of injuries or losses he may sustain during the course of his training or participation in the police academy. Of course, Mr. Marcinczyk was injured during the course of his training and commenced suit.

Although the Supreme Court of New Jersey recently upheld similar type clauses for private institutions such as health clubs and gyms, the Court refused to uphold such a waiver of liability when the beneficiary of such clause is a public entity. Specifically, the Supreme Court of New Jersey referenced New Jersey's Tort Claims Act, which is a statute enacted to permit injured citizens to seek compensation from public entities for negligence in "narrowly defined circumstances." The Supreme Court further reasoned that because a statute specifically allows for recovery of monetary damages under certain circumstances when there is negligence by a public entity or public entity's employees, it would be contrary to public policy to allow a contractual provision to bargain away the right to sue. The court further noted that the Tort Claims Act provides specific immunities to the public entity and as such, in throwing out the contractual provision, the court did not impose liability upon the public entity. The court merely remanded the case back to the trial court for purposes of determining if any of the specific statutory immunities applied.

As set forth on our website and in prior blogs, the Tort Claims Act provides specific immunities to public entities where injuries occur as a result of that public entity's negligence. In our view, the court's decision here was a correct one, in that New Jersey's legislature has already dealt with liability of public entities through the enactment of the Tort Claims Act. If you have any question as to whether or not you are legally entitled to sue a public or private entity for negligence, consult a skilled attorney immediately in order to protect your rights.

A man who was left in the Pacific Ocean while scuba diving recently was awarded $1.68 million by a Los Angeles County jury. The California man filed a lawsuit against the scuba diving charter company that negligently left him in the ocean approximately 12 miles offshore. The claim revealed that the charter boat left him at the first dive site and then proceeded to a second dive site approximately 7 miles from his location in the water. Fortunately, a passing boat later picked him. This situation, unlike the situation in Open Water, turned out to be a happy ending in that he was ultimately rescued. The man's ordeal lost at sea lasted approximately 3 hours.

In that New Jersey is a shore state bordering the Atlantic Ocean, it would not be far fetched that such an incident could occur in the waters off New Jersey. Clearly, any charter boat or dive company has a duty and obligation to ensure all of the divers it brings out are fully accounted for before returning to shore or moving onward. In this regard, it is incumbent upon such companies to have an accounting system in place as a way to account for those that have gone overboard and under the surface. In our opinion, the failure of a charter company to have such an accounting system would not only constitute negligence but gross negligence which would most likely warrant punitive damages.

If you or members of your family are injured or mistreated by a charter company, diving, boating or otherwise, or left at sea or in the wilderness, it is important to contact an attorney to determine the extent of your rights.

Parents of a Tennessee minor recently filed a lawsuit against a local Steak and Shake, which claims that the hot sauce on their son's chili was "too hot." According to the lawsuit filed, the minor apparently ordered a bowl of chili which included "Blair's Mega Death Sauce" and that the restaurant failed to warn of the sauce's intensity. The minor was taken to a local hospital with an inflamed digestive tract and a severe allergic reaction. Parents are seeking unspecified damages.

Although the filing of this litigation appears to be outrageous, it raises issues relating to implied warranties under the law. In New Jersey, there is an implied warranty of merchantability with regard to food products sold by a retail establishment either to be consumed within a restaurant or for later consumption. Basically, this implied warranty of merchantability means that the food product that is being sold must be fit for its intended use; i.e. to be consumed. If, for example, a restaurant serves food which ultimately makes the consumer of that food ill, the restaurant may be responsible for personal injury damages to that consumer on the theory related to the breach of the implied warranty of merchantability. Additionally, the restaurant may also be responsible to that consumer on theories of negligence and breach of contract.

Turning to the minor boy in Tennessee, it would appear that the bowl of chili with "Blair's Mega Death Sauce" was merchantable in that it was "fit" for its intended purpose; that it to be consumed by the average consumer as an ultra-spicy chili. Unfortunately, it would appear that this minor boy had some type of allergic reaction to the extra hot sauce, which caused his hospitalization. The ultimate issue in that case will most likely be whether or not the restaurant properly warned the boy and his parents of the full extent of the chili's spicy nature. In our view, the words "Mega Death Sauce" would reasonable put the end user on notice that the sauce was extremely hot. Really, the issue here is whether the minor boy's parents should have liability for allowing their child to consume this "Mega Death Sauce" without testing same or limiting its consumption. We leave the liability of one's parents under such circumstances in the state of New Jersey for a different day.

However, in the event you or one of your family is ever injured by a food or food product, it is extremely important to preserve any of the remaining food for ultimate testing if possible and seek legal advice in order to determine your rights.

Two recent cases in the news bring to light issues of invasion of privacy due to improper uses of webcams. In one case, a Rutgers University student committed suicide by jumping off the George Washington Bridge after his roommate broadcasted his romantic interlude with a member of the same sex. In another case, a Philadelphia school district agreed to pay over $600,000.00 to two students, because of photographs secretly taken on school issued laptops. In this instance, the district admitted that it had obtained thousands of webcam photographs from student laptops in an apparent attempt to "locate missing computers."

In New Jersey, a civil cause of action exists where one's privacy is invaded and results in harm to the other's interest in privacy, mental anguish or special damages. In this regard, however, the "invasion" must result from (a) the intentional intrusion of another's privacy to a degree which would be highly offensive to a reasonable person or (b) a public exposure of another's private affairs to which the general public has not legitimate interest in learning of and which would also be highly offensive to a reasonable person.

The two above-referenced fact scenarios would fit neatly into potential invasion of privacy causes of action in the state of New Jersey. In this Rutgers case, the two students that broadcasted the romantic interlude over the Internet engaged in a public exposure of the other student's private affairs, which resulted in clear mental anguish in the form of suicide. In the Pennsylvania case, there can be no doubt that a school board's ability to obtain photographs from laptops issued to students would be "highly offensive" to a reasonable person, and would ultimately result in harm to the student's interest in privacy. Of course, in either case, evidence of such wrongdoing must be carefully preserved as soon as possible, and attorney consulted to dtermine all potential liability. Further, such privacy invasion may also be the subject of criminal statute violations and criminal investigations.

Two recent settlements between school districts and students highlight society's general intolerance for bullying within schools. As reported in our earlier blog, New Jersey recognizes a cause of action against a school board when that school board fails to prevent, or attempt to prevent, the bullying of one student by others. We indicated in our earlier blog that the basis for such lawsuits in New Jersey is New Jersey's Law Against Discrimination (LAD). The linking of a "bullying" cause of action to New Jersey's Law Against Discrimination allows for a successful claimant to obtain punitive damages and counsel fees, in addition to compensatory damages.

Lenape Valley Regional High School District in Stanhope, New Jersey recently agreed to a settlement of $275,000.00 to a former high school student who is black, alleged that administrators did not properly handle repeated racial harassment by white students against him. In another case involving bullying and harassment, the United States Department of Education reached a voluntary agreement with the Hawaii Public School System over a bullying complaint filed by the parents of a high school student who was repeatedly bullied by other students. The alleged bullying adversely affected her school attendance and grades. While it is not certain to us at this point in time whether the State of Hawaii actually recognizes a cause of action as does New jersey, the high school student's parents filed a complaint with the United States Department of Education alleging that their daughter was being discriminated against. The settlement between the United States Department of Education and Hawaii Public Schools requires various administrators and teachers to undergo sensitivity and harassment training in order to more easily recognize the existence of same.

Given current social trends in technology, including Facebook, Twitter, and other social networking sites, it would appear that such bullying and harassment cases will increase in number, and may even reach beyond the doors of the school. In this regard, we await the filing of unique causes of action not based upon school harassment but harassment through the other social media. An attorney well versed in ongoing developments in negligence law can determine how to best pursue any similar situated case, so do not hesitate to consult a lawyer as soon as possible if you find yourself or a loved one dealing with bullying.