Certainly when Patricia Gike rented her long-time handyman a room for two nights in Freehold, New Jersey she did not expect to bear liability for his negligent actions, which then led to a fire. Joseph Michael Wood was Ms. Gike's handyman; one afternoon he had a seizure on Ms. Gike's property. She rushed him to the hospital and when he was told that he needed to stay locally for a few days to have a follow-up medical appointment, Ms. Gike altruistically offered to rent him a hotel room.

Ms. Gike merely paid for the room, she never entered it nor did she obtain the key. However, under state regulations that govern hotels and multiple dwellings, Gike is considered an occupant of the room and, therefore, could be held liable for the actions of her guests. Mr. Woods brought a gas can to the hotel room so he could huff the gasoline. He was also smoking a cigarette in the room. He proceeded to accidently knock the gas can over, and his lit cigarette started a massive fire that caused significant damage. The hotel brought a civil suit against Ms. Gike for the damage.

A Monmouth County Superior Court Judge ruled in favor of the hotel, and found that Ms. Gike was automatically liable for the actions of Mr. Woods. The Court of Appeals affirmed that Ms. Gike was an occupant of the room under state regulations, but said that she may not necessarily be held automatically liable for the civil damages caused by Wood's negligence. This case is remanded back to Monmouth County Superior Court to rule on the issue of whether or not Ms. Gike will be found liable for Mr. Woods' negligence.

This is a reminder to everyone that rents a hotel or motel room to be mindful of the way you and your guests treat the space. By signing your name to the bill you not only assume the cost of the room but also the liability if anyone should destroy it. If anything like this has happen to you, you should contact a civil trial lawyer immediately.

In the State of New Jersey, the owner of an automobile may be responsible for another's accident under two separate theories of liability. The first is called "respondeat superior". This is where the driver of a vehicle is carrying out business for the vehicle's owner and is involved in an accident. This would be the case where an employee is driving an employer's car for business purposes. Despite the fact that the employee was operating the vehicle, the employer would also be responsible for any damages.

The second theory is called "negligent entrustment". Basically, this theory is based upon the owner's own negligence for allowing another individual to operate their vehicle when the owner has reason to know that the other individual is irresponsible or has a greater propensity to operate the vehicle improperly given the owner's knowledge of prior conduct. For instance, if you allow an individual with a suspended license for 14 speeding violations to operate your car and they are involved in a high speed collision, it is likely that you will have some responsibility for the happening of that accident.

An Appellate Court of New Jersey recently discussed these theories of liability and a potential cause of action in the case of Jafar v. Elrac Inc. There, two teenagers were struck and killed by the driver of a vehicle who claimed that his company transferred him to an outside sales job despite the fact that the company had full and complete knowledge of his drinking problem. Thus, the theory was asserted that the employer should not have given this individual an outside sales job because it was foreseeable that he would be operating a motor vehicle and, with his drinking problem, may be operating that motor vehicle in an intoxicated state. Therefore, it was alleged, that the company was negligent in its own right for making this outside sales transfer.

The Court dismissed the claim against the employer not on the legal theory but, instead, on the facts of the case. There was no indication in the facts of the case that the employer knew that its employee was drunk on the night in question or that it had the ability to control his actions that evening. Based on those facts, the Court could not find liability.

It is important to note that the argument in favor of liability in this matter was a valiant attempt at stretching the present state of the law. In this regard, under different facts, it is likely that a court could find liability against an employer if that employer knowingly places an employee into a situation where it is foreseeable that the employee may cause injury to others. Obviously, in order to expand upon current law, you will require services of a trained and qualified attorney who can properly evaluate the facts of your case.

In the heavily divided Supreme Court decision of Voss v. Tranquilino, the New Jersey Supreme Court has held that intoxicated drivers injured in a motor vehicle accident may have a viable case against the bar which has negligently served them alcohol. The state of the law in this regard has been unclear as a result of an insurance law statute, which purports to prevent law suits being brought by intoxicated drivers when they are injured in motor vehicle accidents. Accordingly, it was the widespread belief that an injured intoxicated driver would not be allowed to bring suit against a bar or liquor licensed establishment that may have negligently served him/her alcohol, and, which negligent service was the proximate cause of a motor vehicle accident and their injuries. In the Supreme Court's recent decision, they held that the insurance statute related to banning causes of action for intoxicated drivers only applies to suits that could be brought against the operators of other motor vehicles. In this regard, the court held that New Jersey's Dram Shop Statute does not prevent such suits from being filed. We do not believe that such liability would ever be imposed upon a social host setting, in that the social host liability statute is completely separate and apart from the Dram Shop liability statute. (See prior blog).

We believe that the Supreme Court's opinion is contrary to public policy, although it may be in conformance with the black letter of the statute. In this regard, we are also of the opinion that New Jerseys Legislature will ultimately address this "loophole" and prevent potential law suits by intoxicated persons against licensed establishments that may have negligently served that person alcohol. At the present time, however, such suits remain viable and will have to be dealt with by the courts of our State. These complexities and variations with each holding from the Court are why an expert attorney is needed, to sort through the detailed circumstances and series of events in your particular situation and how they may fit into the existing case law, such that your rights are protected to the fullest.

As the summer begins, many people host parties at their homes where they serve alcohol to their guests. One question that is frequently asked of attorneys is whether or not the person hosting the party can be responsible for injuries resulting from the service of alcohol at the parties. The short answer is yes.

New Jersey law is split with regard to social host liability as it relates to the service of alcohol to people under the age of 21 and over the age of 21. Liability for the service of alcohol in a social setting (not a bar or restaurant) to individuals over 21 is governed by statute (N.J.S.A. 2A:15-5.6, et seq.). Basically, the statute provides that if you provide alcohol to a social guest over 21 years of age while that person is "visibly intoxicated" you can potentially be responsible for injuries or damage that are caused by the "visibly intoxicated" person. Thus, when serving alcohol at your home or at a party you must be aware of the signs of intoxication in your guests and, if such signs exist, immediately stop serving them alcohol.

The Statute mentioned above limits liability to situations where only third parties are injured as a result of motor vehicle accidents. For instance, if you negligently serve alcohol to a visibly intoxicated person at your home, you will not be responsible for injuries sustained because that intoxicated person injured someone in a fight. The Statute only applies to motor vehicle accidents. Further, you will not be responsible for injuries to the intoxicated person themselves. The Statute is for the benefit of "innocent" third parties.

The law drastically differs with regard to the negligent service of alcohol in a social setting to individuals under the age of 21. There is no statute that governs this situation. Instead, liability is based on common law principles of negligence. In this regard, the same rules concerning service to "visibly intoxicated" individuals presently applies. However, if alcohol is provided to a "visibly intoxicated" individual under the age of 21, liability extends to all situations where an innocent third party is injured (not just motor vehicle accidents), and includes liability for injuries sustained by the intoxicated minor.

After reviewing recent case law in this jurisdiction and other jurisdictions, it is our impression that the courts of this state will ultimately extend social host liability to individuals who serve alcohol to minors even before that minor is "visibly intoxicated". This means, in our opinion, that liability will attach to any and all individuals serving alcohol to minors whether or not the minor is showing signs of intoxication at the time of service.

It should be noted that the "service" of alcohol as described in this blog does not necessarily mean that you actually have to give the drink to the "visibly intoxicated" person. All that is necessary is that alcohol be "provided" at your house, home or party in order to for liability to attach. Accordingly, in situations where there is a keg party or self-service bar set up in your home, you will have been deemed to "provide" the alcohol.

Finally, one last note of caution concerning the service of alcohol to individuals under 21. It is presently a disorderly person offense in the State of New Jersey to serve or provide alcohol to any individual under the age of 21. Further, depending on the circumstances, it may also be deemed a criminal offense of endangering the welfare of a minor.

The bottom line is that service of provision of alcohol to minors should be avoided at all costs, and service of alcohol to adults must be monitored very carefully to avoid liability. If you find yourself involved in any way to an accident stemming from alcohol being served at a residence, on either side of this controversial and sensitive topic, it is important that you contact an attorney immediately, to sort through the circumstances surrounding that accident in detail in order to protect your legal rights.

A recent flurry of commuter or tour bus accidents raises various issues with regard to passenger rights and obligations after the accident occurs. Specifically, there are issues concerning notice requirements and medical bills that a layperson may not be aware of after being involved in such an accident, but that an attorney would.

As you may know from our website or prior blogs, any time an individual is injured in a motor vehicle accident, that persons' automobile insurance coverage will be responsible to pay for that person's medical bills as long as they are reasonable and related to the motor vehicle accident. However, most, if not, all motor vehicle insurance policies will have a specific exclusion of medical bills incurred as a result of injury while you are being transported in a bus or other livery conveyance. Accordingly, if you are injured in a bus accident, it may be most prudent to attempt to have your medical bills paid by your automobile insurance carrier and, when declined, utilize your primary health insurance coverage. If you do not have health insurance, it is important to seek legal advice so that an attorney may determine whether or not the insurance coverage on the bus has policy provisions, which would pay for medical bills in the event of personal injury sustained in an accident.

In any event, should you have any questions concerning the payment of medical bills after being injured as a passenger on a bus, you should contact an attorney that has experience in personal injury and insurance coverage.

In addition to issues concerning medical bills, there may also be issues concerning notice requirements. For instance, if you are traveling on a New Jersey Transit Bus, New Jersey Transit is considered a subdivision of the State of New Jersey, and, as such, you would be entitled to place New Jersey Transit on notice within 90 days of your accident if you have sustained injuries and intend to sue.

Again, it is imperative that you contact an attorney immediately should you be involved in any accident of this sort and you suffer any sort of injury. Legal recourse presents various issues that require analysis in order to determine whether or not you are able to recover compensatory damages or coverage for medical care. Call an attorney who has the experience and the knowledge to help you get through the process.

The recent filing of a lawsuit against Mr. August Busch, the Anheuser-Busch heir, by his recently deceased model-girlfriend's family, her eight year old son and his father, raises questions as to what duty one may have under the law. According to news reports, Busch allegedly found her sleeping in bed the following morning and could not wake her up, and she was later found to have oxycodone and cocaine in her system. The girlfriend's family filed a wrongful death lawsuit against Busch for carelessness and negligence, seeking damages for his failure to properly render care and/or aid to her, and further, for negligently causing her death.

"Duty" is a legal obligation under the law, which is imputed to certain people depending upon the circumstances. For instance, all drivers or users of the road way have a duty to use reasonable care and caution when operating a motor vehicle. Similarly, all of us have a duty under the law to be "reasonably prudent people" as we perform our daily tasks. However, case law in New Jersey, and a majority of the states, indicate that people in general do not have a "duty to rescue" if we see someone in danger or in trouble. Putting aside moral obligations, the law does not require you to put yourself in danger in order to render aid to another despite the fact that you may easily do so but fail to. Certain exceptions to this principle exist, especially where you cause the danger in which that the other individual finds himself.

The Busch case raises the question as to whether or not he had a duty to check on his girlfriend and render aid to her, or help her, if he knew she either had taken an excessive amount of drugs or even had the propensity to do so. Although he may not independently have had a duty to render aid to her under the law, this analysis may change in his circumstance due to the fact that he had a relationship with her, she was in his house at the time of the alleged overdose and there may be facts which show that he either provided the drugs or was specifically aware that she was taking them. There is New Jersey case law to suggest that when an individual is in danger within your home, that you may have a legal obligation to render care to that person even if such rendering of that care only involves calling 911, emergency services.

In any event, any such cases are extremely fact sensitive and must be analyzed by an experienced attorney who has vast experience in the area of personal injury law.

The mother of a 9 year-old boy killed at Disney's Fort Wilderness Lodge in April of 2010 has now filed a Wrongful Death suit against Walt Disney World Parks and Resorts. This suit is the result of a fatal accident that occurred when the boy was killed by a Disney Transportation Bus while riding his bicycle. The facts of this case reveal the importance of performing an investigation into an accident early on, in order to potentially preserve evidence and generate specific legal theories.

In April of this year, a 9 year-old boy, whose family was staying at Disney's Fort Wilderness Lodge, was operating his bicycle on a service road to the Lodge when he apparently struck the side of the passing Disney bus and was pulled under its rear wheels. Investigation at the time by the Florida Highway Patrol and Disney World revealed that the bus driver was not at fault, and that the bicycle's flat tire caused the child to strike the side of the bus. Many passengers on the bus corroborated the version of events, which showed that the boy actually rode his bicycle into the side of the bus.

At first glance, neither Disney World nor the bus driver should bear any liability for this accident. According to all accounts and versions of the accident, the front of the bus passed the boy on the bicycle safely, and the bus wasn't traveling at an improper speed. However, investigation by the family's attorney revealed that in the area where the accident occurred, there were inappropriate sidewalks or pedestrian paths despite the fact that it was a highly traveled pedestrian and bicyclist area. The family's complaint filed with the Court stated that pedestrians utilizing the area are required to step off of the sidewalk and onto the roadway or even unpaved wetland areas to avoid vehicular traffic. Further, the sidewalks and roadways were improperly designed, due to the fact that railings and steep gullies stop pedestrians and bicyclists from leaving the roadway. Thus, the lawsuit focuses not on the conduct of the bus driver but on the condition of the roadway and sidewalks.

Without the experience of a qualified personal injury attorney, such investigation following this fatal accident may not have come up with an appropriate legal theory and the boy's family would not have been able to be compensated for the boy's conscious pain and suffering and ultimate death. Clearly, the family's rights and interests are being protected and pursued due to the experience and expertise of their attorney. If you think you may be in a situation where you have been in an accident and further investigation may be warranted, contact an attorney immediately.

Over 500,000 Do-It-Yourself Books have been recalled by the publisher, Oxmoor House Home Improvement, due to the inclusion of improper wiring instructions in a recent edition that could lead to personal injury or significant property damage. The Consumer Products Safety Commission announced the recall for various books sold nationwide in the U.S. between 1955-2005. Apparently, if properly followed, the faulty wiring instructions could cause serious electric shock or shorting of electric circuits thereby causing fire.

Obviously, in the case of recalls, it is important to ensure that you, as a consumer, remove the faulty items, such as books, cars, toys, etc., from your home or otherwise have the faulty items repaired so as to avoid serious personal injury or serious property damage. Often times, such recalls are brought to the attention of the Consumer Product Safety Commission through litigation, wherein a plaintiff claims serious injuries or serious property damage resulting from a defective item.

Obviously, as set forth on our firm's website and in prior areas of our blog, the manufacturers of any item put forth into the stream of commerce have a duty to ensure that the items are safe and fit for its intended use and purposes. In this case, the "product defect" lay within the pages of a handyman's do-it-yourself book, and wouldn't cause damage to anyone unless and until the end user followed the specific faulty instructions. However, despite the fact that the "product" itself, the book, was not in any way defective in a way that caused injury, the instructions contained therein were, and as such, the product was defective.

If you believe you are in possession of a defective product, whether it is defective by design or manufacturing defect, it is important firstly, to seek treatment if you or someone close to you was injured as a result of that product. Property damage should be documented and photographed. Of course, you should immediately preserve the product for inspection by an attorney or an engineer to determine whether any such injury or damage was caused by the product itself or its misuse. It is crucial that an attorney skilled and experienced in this area of law be sought immediately if you may have been injured or suffered property damage as a result of a particular product.

One of the most frequent questions we are asked by our clients in motor vehicle cases, is "Why does my insurance company have to pay my medical bills?" In this regard, clients are generally upset by the fact that the car accident may have been the other person's fault, but that their own insurance company has to "foot the bill" for their treatment. Our clients are concerned that their insurance premiums will go up because a claim is being made against their policy, even though the accident was not their fault.

In New Jersey, medical bill payment related to injuries sustained in a car accident is governed by statute, specifically NJSA 39:6A-4 et.seq. New Jersey is considered a "no-fault" state when it comes to automobile insurance. Basically, the term "no-fault" means that your own insurance pays your medical bills, regardless of fault. The purpose and reason behind "no-fault" insurance is to ensure that the injured party receives immediate and appropriate medical care, as soon as practical and possible after the car accident. Prior to New Jersey becoming a "no-fault" state, and in other states where "no-fault" doesn't exist, issues of liability often prevent an injured party from obtaining necessary and appropriate medical treatment soon after the accident. For instance, if a person is injured in a car accident in an intersection governed by a traffic light, both parties may claim that they had the green light and are blameless. Accordingly, although one party needs medical attention for their injuries soon after the accident, neither of the insurance companies would bear responsibility for that treatment until a judge or jury could determine that their client was at fault for the accident. Thus, without appropriate medical insurance in place, doctors would not be in a position to render such treatment.

Under New Jersey's "no-fault" scheme, medical treatment is available immediately after the accident because the doctors know that coverage will exist regardless of whomever is determined to be at fault. Obviously, in the event you are injured in a car accident and seek medical treatment, it is important to provide your doctor with copies of your own insurance policy information, including the name of the company, policy number and a claims telephone number, wherever possible. Of course, if your claim for medical treatment is ever declined by your insurance company, or if you are involved in a car accident at all, it is important to seek an experienced attorney who can provide you with the proper guidance, and pursue your interests to the fullest extent of the law.

The New Jersey Supreme Court recently decided a case wherein it held that waivers of liability in health club contracts and gym membership contracts are valid and enforceable. In Stelluti v. Casapenn Enterprises, LLC, the Court dismissed the plaintiff's case because the contract that the contract signed with the defendant health club contained a "waiver of liability" and, as such, she was unable to be compensated for her pain and suffering, disability and impairment and loss of enjoyment of life for injuries sustained while exercising at the health club.

In the above-referenced case, the plaintiff entered into a contract with the defendant health club to utilize the health club's premises, machines and staff in exchange for a monthly payment. Contained within the contract that the plaintiff signed was a paragraph which purported to prevent the health club from being responsible for any and all injuries sustained by the plaintiff (or any users of the health club) while at the health club or using their facilities. Although contracts of this type have existed for many years, it was generally the long standing rule in the State of New Jersey that parties to a contract could not obtain a waiver of liability for their own negligent acts. For instance, such contracts were upheld if an individual was hurt in the health club or suffered, for instance, a heart attack, while exercising where the injury was in no way related to the general negligence of the health club facility. However, liability against the health club would generally be upheld where the health club's actual negligence was the proximate cause of the injury.

In this recent case, the Supreme Court basically changed and clarified that long standing rule and concluded that such waivers of liability are fully enforceable even where the health club's alleged negligence was the proximate cause of the injury. For instance, in this Supreme Court case, the plaintiff was engaging in a spinning class when the handlebars on the spin bike became loose causing her to fall and sustain serious personal injury. The allegations were that the handlebars were not properly secured by the class instructor. As such, it was the health club's staff's negligence which proximately causes the plaintiff's injury.

The Court held that such a plaintiff may only maintain suit against the health club if it can be shown that the health club's behavior was reckless, intentional or willful and wanton as opposed to just general negligence. Importantly, the Court stopped short of providing blanket immunity to such health clubs when a waiver is signed. For instance, it is not clear whether the case allows for a lawsuit when a patron slips and falls on water in the lobby area of the health club while not engaging in any physical activity. Further, it is not clear whether or not other conditions of the property could give rise to a cause of action.

In light of the above, in the event you or a family member are injured as a result of exercise in a health club setting, it is important to seek the advise of a personal injury attorney who can provide you with proper guidance and fully protect your rights.

A recent trend has come to our attention in the realm of motor vehicle accident settlements. More than one of our clients, upon initial consultation for personal injuries related to a motor vehicle accident, has advised us that they have received and cashed checks from the other person's motor vehicle insurance carrier prior to meeting with us. These checks are generally in the $250.00 to $500.00 range. Importantly, although our clients are being told that the small payments are being provided to them for medical co-pays and deductibles, our close review of the documentation provided with the checks has revealed that the checks are being provided in exchange for a full and final settlement of any and all personal injuries.

The clients that have approached us with these checks were shocked to find out that they may have jeopardized their right to collect full and complete compensatory damages for their pain and suffering, disability and impairment, and loss of enjoyment of life by merely receiving, acknowledging and cashing these small checks when they were specifically told by the insurance companies that the checks were being provided to them for their medical co-pays and their deductibles. In this regard, New Jersey law provides that a tortfeasor will not be responsible for any medical co-pays and/or deductibles in a motor vehicle accident. As such, it is clear to us that these insurance companies were clearly misrepresenting the facts to our clients for purposes of fraudulently entering into a settlement agreement.

Fortunately, after our involvement, a majority of the insurance companies have "backed away" from their position that the case has been settled and will allow our clients' remaining personal injury claims to go forward. More astoundingly, at least one insurance company has refused to back off their position and we are presently looking into filing suit against them and all of the insurance companies that have engaged in this practice as a result of their engaging in fraud, deceit and violation of various New Jersey statutes concerning Fair Settlement Practices.

In light of all of the above, it is especially important that, if you are involved in a motor vehicle accident, you do not sign any paperwork provided to you by the other driver's insurance company, or cash any checks provided to you by them, before speaking to a lawyer qualified in the area of personal injury litigation. While generally checks payable to body shops for property damage and checks payable directly to you for vehicles which have been totaled as a result of the accident are safe to sign and/or deposit, we suggest speaking to an attorney first.

A recent appellate case, Luchejko v. City of Hoboken, et.al., holds that a condominium association is not liable for dangerous conditions on the public sidewalk abutting the condominium association's property. This recent decision highlights the current status of New Jersey sidewalk liability law. As indicated in prior blogs, a landlord is generally responsible or legally liable for personal injuries as a result of dangerous conditions existing on its property. However, there are significant exceptions when this general rule is applied to public sidewalks within the State of New Jersey.

For purposes of personal injury liability, public sidewalks in the state of New Jersey are basically divided into two categories. The first are those that abut residential premises. The second category includes those public sidewalks that abut commercial premises. As a general rule, a homeowner or an owner of a residential premises will not be responsible for injuries which are the result of dangerous conditions on the public sidewalk abutting their premises. In this regard, it is the local public entity that will be responsible. Of course, there are exceptions to this rule, such as where the owner of the residence actually creates the condition that gave rise to the injury. Further, the public entity's responsibility for injuries occurring on the public sidewalks abutting residences will be tempered (?) limited to the provisions of New Jersey's Tort Claims Act.

On the other hand, owners of commercial premises will be responsible for injuries that are sustained as a result of dangerous conditions contained within public sidewalks abutting those commercial premises. Thus, generally, owners of commercial premises have a duty to properly maintain the sidewalks that abut their property. This duty extends to the removal of ice and snow. The theory behind imposing this duty upon commercial establishments relates to the potential revenue generates by the business and shifting the risk away from the public entities.

In any event, the main difficulty in such cases is determining whether or not the property is "commercial" or "residential." For instance, should a multi-tenant apartment building be considered commercial or residential for the purposes of this analysis? Should a church be considered commercial or residential? Basically, the courts have stated that the test really is whether or not the property has the capacity to generate income. Thus, even residential properties that are owned for investment or business purposes will be classified as commercial under this analysis. Similarly, a parochial school and a fraternity house have also been held to be commercial establishments for purposes of this test.

In the recent case of Luchejko v. City of Hoboken et.al. the issue was whether or not a condominium association should be considered commercial or residential entity because the condominium complex at issue in this case was basically and predominantly an owner-occupied, and the condominium association was a "non-profit" corporation, the court considered that this complex qualified as a residential premises. Accordingly, liability was not extended. However, it appears that the Appellate Division did not provide a blanket rule that all condominium associations should be treated in the same way. Each case must be properly reviewed, examined and analyzed, given its unique facts and circumstances of the incident.

The fact sensitive nature of this type of case makes it crucial that a very skilled attorney analyze all the details and circumstances surrounding the incident that led to an injury at the first possible moment, in order to be legally successful and to sufficiently protect your rights.

Many personal injury cases in our legal system involve slips and falls on ice or snow in shopping centers or malls. In a recent case, a court refused to extend the duty of removing that ice and snow to a tenant in a multi-tenant shopping center where the tenant had no contractual duty to do so.

Generally, in any case involving a negligent or dangerous condition of real property in common areas of a shopping center, the owner of the property would be legally responsible for injuries sustained as a result of same. In this regard, the owner has a non-delegable duty to users of the property to either make the dangerous conditions safe or appropriately warn the users of the property of the condition's existence. This basically means that they will not be absolved of liability if they hire someone such as a management or maintenance company to fulfill their duty. They also cannot absolve themselves of liability by placing such responsibility on their tenants in a lease. As the owner of the property, they will ultimately be responsible. However, depending upon the circum stances, others may also be responsible to the injured party for their breach of a duty. For instance, if a landowner hires a snow removal contractor to remove ice and snow from a parking lot, the snow removal contractor will also be responsible if they failed to properly remove same.

Despite the fact that the landowner will always be legally responsible for the conditions of their property in a common area, there are many strategic reasons that attorneys bring suit against others when their client's injuries arise in a common area of a shopping center. Such considerations include availability of insurance, who has day-to-day control of the property and the status of the injured user of the property.

In the recent Third Circuit Court of Appeals case of Holmes v. Kimco Realty, the plaintiff slipped and fell in a common area parking lot of a shopping center. Plaintiff's counsel sued Lowe's, which was the tenant closest to the area of the plaintiff's fall. In fact, a sign in the area of the fall indicated that Lowe's customers regularly and routinely used the area exclusive to all other tenants. The lease between Lowe's and the landowner did not require Lowe's to remove ice or snow from common areas although they were responsible for the cost of same through a CAM charge (Common Area Maintenance charge). For some reason unclear in the decision, the plaintiff's attorney was unable to properly identify the landowner before the statute of limitations expired. Thus, it was important that liability be placed upon the tenant for the plaintiff's case to survive.

Under these facts the court held that a tenant has no duty to remove ice or snow or to warn its patrons of its presence despite the fact that its patrons exclusive used the area. The court relied on prior case law and the fact that the lease agreement between Lowe's and the landlord did not require Lowe's to take any action with regard to snow or ice removal. Prior case law suggested that a tenant would not have responsibility to remove ice or snow from a common area sidewalk regardless of how close it was to the tenant's front door.

Despite current case law, we would suggest a different result. A tenant in possession such as a Lowe's is in the best position to determine the condition of the property around them. Thus, they are also in the best position to warn of or rectify any dangerous ice or snow conditions. Despite the fact that a landlord and tenant may make their own contract as to who has the responsibility between them as to the removal of ice and snow, the general public has no protection if the contractually responsible party fails to uphold their contractual duty. Thus, under the court's holding, a tenant who has no contractual responsibility to remove ice and snow from common areas around its store including its parking lot and sidewalks may open its doors for business regardless of the site conditions with no repercussions.

In light of the above, it is important to see a competent attorney as early as possible after such an incident so that the proper investigation can be done and all of you rights can be preserved.

In a recent blog we discussed the fact that a person injured by a drunk driver may have a cause of action for damages against the bar or licensed establishment that actually served the alcohol to the drunk driver. As a follow up to that blog, the New Jersey Appellate Division recently decided a case having to do with the drunk driver's ability to sue a bar for injuries suffered when their alcohol consumption led to a motor vehicle accident causing bodily injury.

In Voss v. Tranquilino, a driver of a motorcycle was injured in a motor vehicle collision with an automobile and sustained serious personal injuries. At the time of the accident, the motorcycle operator's Blood Alcohol Content (BAC) was almost twice the legal driving limit. He was charged with driving while intoxicated and pled guilty to that charge. He then filed a lawsuit against the bar that served him he liquor as well as the driver of the other vehicle involved in the crash.

Importantly, A New Jersey statute (N.J.S.A. 39:6A-4.5(b)) provides that a driver who is convicted of driving while intoxicated "shall have no cause of action for the recovery [for personal injury damages] sustained as a result of the accident." Based on the language of that statute, the bar moved to have the case dismissed against it. The court had to decide whether the above-cited statute was meant to protect licensed establishments from a lawsuit brought against them by the individuals to who they negligently served alcohol. (Please see our prior blog as to what constitutes the negligent service of alcohol). A literal plain reading of the statute's language would lead one to conclude that the case should not be allowed.

The court, in a lengthy opinion, concluded that drunk driver may bring a cause of action against a bar or licensed establishment. The reasoning of the court was twofold. First, the Legislative history of the above statute made clear that the statute was enacted for the purposes of attempting to control automobile insurance rates and, as such, allowing a cause of action against the bar would not violate this goal. In fact that statute is found in the motor vehicle section of New Jersey Statute. Second, and perhaps more importantly, the court made a public policy determination that allowing the bar to escape liability in this situation could lead to less diligence in the bar's monitoring of its patron alcohol consumption thus, in turn, leading to an increase in drunk driving.

Although at first glance it may seem improper to allow a drunk driver to pursue personal injuries in that it does not have a deterrent effect upon driving while intoxicated, we applaud the court for its decision. In this regard, while we all have personal responsibility as to the amount of alcohol we drink and whether we drive thereafter, a licensed establishment is sometimes in a better position to protect its patrons from their own behavior of overindulging. This is because as one commences alcohol consumption their reasoning and judgment may become impaired and their decision to continue drinking or driving may be flawed. The alcohol server, however, has the ability to monitor the patron's alcohol consumption and cut them off at the appropriate time. An opposite conclusion in this case could lead to a decreased vigilance on the bar's part in this regard. This is why a skilled attorney is needed to determine the best course of action for a claim.

A lawsuit recently filed in Texas on behalf of a woman killed by a drunk driver alleges that a local bar improperly served drinks to a patron until he was inebriated, and then allowed him to leave the premises in his own vehicle. The suit reportedly alleges that the establishment should have either stopped the service of alcohol earlier in time or prevented him from driving his vehicle. Cases of this type are recognized in the State of New Jersey where a licensed establishment fails to properly monitor the amount of alcohol served to its patrons.

New Jersey is among the majority of states that allows a cause of action against a bar or other food or beverage establishment licensed to serve alcohol when one of its patrons causes an injury to an innocent third party. In such cases, a litigant or plaintiff must established that improper actions by the patron were the result of inebriation and that the entity that served the alcohol did so in an improper manner. Thus, in New Jersey, the first appropriate legal inquiry is whether or not the person that caused the injury was intoxicated to the extent that would alter his or her behavior, and inhibit his or her ability to properly and reasonably act under the circumstances. In order to establish this intoxication and resulting inhibition, an expert may determine the level of alcohol in the person at the time of the accident or injury, and may explain the effect of that level of alcohol on the reflexes and reasoning of the individual.

The second legal inquiry that must be made is whether the establishment served alcohol to the individual at a time when it was unreasonable to so. How do we know when it is unreasonable to serve alcohol to any individual? New Jersey cases hold that the server of alcohol will be responsible for any injuries caused by an intoxicated person when that person was served alcohol even though that person was "visibly intoxicated." Many factors go into the definition of "visible intoxication," including but not limited to the number of drinks served to a person, the slurring of the person's speech, the existence of bloodshot eyes, and the demeanor of the person. Of course, because each person acts differently when consuming alcohol, the number of drinks and the blood alcohol level for each "visibly intoxicated" person may vary. Once again, an expert will needed to establish a person's blood level at varying points of service of the alcohol. Generally, an expert accomplishes this by utilizing a known blood alcohol level and the time of consumption, and extrapolating back in time from that point based on a person's metabolism and alcohol burn rate.

In all such cases, it is imperative to perform an investigation as soon as possible, at the earliest possible point after the incident or accident, to establish the existence of witnesses and obtain other evidence. Witnesses can be utilized to testify as to the actions of the intoxicated person immediately prior to the accident and during the time that the establishment continued to serve that person alcohol, in order to prove the above referenced requirements.

Importantly, the New Jersey Supreme Court has extended such cases to the social host context in a lawsuit handled by our law firm. Basically, this case made it a law that any person serving alcohol to another, whether in a bar or club setting, or at a backyard barbeque, should take steps to monitor the consumption of alcohol of their guests and cut them off form further drinking when the person first exhibits signs of intoxication. Regardless of which side of this incident you may find yourself on, it is crucial to contact a skilled, experienced attorney immediately.