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.

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.

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.

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.

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.

A recent unreported New Jersey Appellate Division decision reveals that a breach of a duty of care does not always give rise to liability in a negligence claim. In Ocampo v. Famco, the Appellate Division rejected a plaintiff's case wherein a sleepwalking 16 year old fell out of a 2nd story window with a nonfunctioning lock, finding that it was not reasonable for a jury to conclude that such an accident was foreseeable under the circumstances.

A viable cause of action based in negligence requires the following elements: 1. a duty to the plaintiff; 2. the breach of a duty; 3. proximate causation; and 4. damages. In the case involving the 16 year old, there is no doubt that the defendant landlord had a duty to properly maintain the subject apartment, including the window lock. Further, there was no question that the defendant landlord failed to comply with this duty by failing to ensure that the lock was functioning. Unfortunately, the plaintiff was unable to show proximate causation. Basically, under New Jersey law, proximate causation is based, in part, on the foreseeability. In this regard, an injury or damages will not be considered "proximately caused" by another's breach of duty unless a jury can conclude that such damages are "reasonably foreseeable" under the circumstances.

In the above referenced case, the Appellate Division found that because the youngest person residing in the apartment was 16 years old, a jury could not possibly conclude that one would fall out a second story window due to a nonfunctioning lock. In other words, the Appellate Division concluded that it was not foreseeable that someone 16 years older would fall out of 2nd story window due to a nonfunctioning lock.

We disagree with the Appellate Division's holding in this regard! It is just as foreseeable that an "incapacitated" 16 year old could fall out of a 2nd story window as a two or three year old child. "Incapacitated" could include a sleepwalker, a mentally incapacitated person, or someone on prescription or over the counter medication, or under the influence of alcohol or illegal drugs. Is it not foreseeable that 16 year old, who is the youngest resident in the apartment, could be incapacitated under one of the above theories? We think so. Would the landlord be responsible if the neighbor's 3 year old had fallen out of the window instead? We think so. In our view, what is and is not foreseeable, as far as issues of proximate cause are concerned, should be left to the sound discretion of a jury, and as such, we believe the appellate division erred in dismissing this plaintiff's case.

In these types of cases, only an expert, experienced attorney should be retained in order to protect your rights and pursue your interests to the fullest extent the law allows, and to get the justice you deserve.

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.

The recent unreported Appellate Division case of Dumont v. New Jersey Devils allows us to discuss the appropriate standard to be applied when one is injured as a spectator at a sporting event when being struck by a ball or puck used in the event. In Dumont, the judge threw out the plaintiff's case because, although the plaintiff was truck by the puck which left the ice during the hockey game, she was not within the area of the stadium where pucks would constitute a known or foreseeable hazard. In Dumont, the plaintiff argued that her cause of action was not based upon general negligence theories but on the fact that the New Jersey Devils failed to offer her the option of changing seats because of the risk of flying hockey pucks. On that record, the court dismissed her claim.

In general, the prevailing rule in New Jersey is that a sports facility operator has a limited duty of care, which has two components. Firstly, the operator must provide protected seating, which is "sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion." Secondly, the operator must provide protection for spectators in "the most dangerous sections" of the arena. Schneider v. American Hockey and Ice Skating Center, Inc., 342 N.J. Super. 527 (App Div 2001) The second component of the limited liability is ordinarily satisfied by the owner of the arena or stadium by placing screens behind home plate in a baseball arena and behind the hockey goals at a hockey game.

However, there are obviously multiple ways a spectator may get injured at an athletic event, other than being struck by a ball or puck. Each case must be evaluated on its independent facts. For instance, may arenas attempt to limit their liability through the use of language on the back of tickets permitting entry into the sporting event. In the advent "paperless" tickets, these issues have not been readily resolved by the courts. Accordingly, in the event of an injury sustained at a sporting event as a spectator, it is important for the injured person to get in touch with an expert personal injury attorney, who can properly identify the issues and pursue the best course of legal recovery for you.

Two cases recently decided by New Jersey's Appellate Division addressed a statute which was previously thought to provide immunity to 911 operators engaged in the course of their employment. The Appellate Division in Massachi v. City of Newark Police Department and Wilson v. City of Jersey City held that 911 operators and dispatchers could be held liable for injuries sustained or proximately cause by their failure to adhere to established protocols and guidelines. In Massachi, a female student was abducted directly outside the Seton Hall University Campus in South Orange, New Jersey. Two of her friends immediately called 911 to report the abduction. The 911 operator failed to follow the appropriate departmental procedures and guidelines in that although she put the information into the 911 computer system, she failed to note the last known location of the abductor's car, failed to note that the car was in motion, failed to record the vehicle's path of travel and mis-identified the car as a Chevy Blazer as opposed to a Plymouth Blazer. Further, she failed to keep the person reporting the crime on the phone to enable to provide an update to the responding unit.

In addition to the above, two off-duty Essex County Sheriff's Officers also witnessed the abduction and also called 911. The 911 operator that they spoke with ran the license plate of the abductor's vehicle and printed out the name and address of the vehicle's owner. Unfortunately, he failed to issue a general alert to all police units in neighboring municipalities and also failed to contact the police in the municipality where the abductor resided. It was the plaintiff's decedent's claim that the girl who was abducted was ultimately murdered due to the fact that the police units could not properly respond as a result of the 911 dispatcher's failure to comply with guidelines.

Importantly, a New Jersey statute (N.J.S.A. 52:17C-10) provides various immunities to phone carriers and dispatchers concerning the failure of the 911 system. The Appellate Division under the two cases before it, specifically held that the above-referenced statute does not afford immunity to the 911 emergency communication center or its employees where they negligently render 911 services including dispatching police to an incorrect location, failing to keep the caller on the line to update the police of the location of the perpetrator and for failing to broadcast an alert to surround municipalities. Accordingly, although there is immunity for the failure of the system to work, there will be no immunity for 911 operators or dispatchers where they fail to follow protocol.

In the event you or a family member believes you have suffered injuries as a result of improper actions of a 911 operator, it is imperative that you seek the advice of a qualified personal injury attorney.

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.

An LA woman recently sued Google, reportedly, after she was struck by a car on State Route 224 in Salt Lake County, Utah. The woman alleges that she followed directions that were given to her on her blackberry through Google Maps, and that those instructions led her onto a roadway where vehicles travel at a "high rate of speed" and there are no pedestrian sidewalks. The lawsuit alleges that Google failed to warn the Plaintiff of the known dangers of the roadway. The suit also included a claim against the operator of the vehicle which struck her.

While a lawsuit of this type sounds outrageous on its face, the application of general principles of negligence reveal that such a cause of action is not far fetched. Generally, the manufacturer or creator of a product (in this case Google Maps), has a duty to make the product safe for the end users, as well as for its intended use. If some component of such a product creates a foreseeable harm or danger to the end user, the creator or manufacturer must provide adequate and appropriate warnings concerning the products' use. (link to CRUW product liability)

In this case, the end user of the product, the Plaintiff, merely alleges that Google Maps failed to warn her of the absence of sidewalks as well as the fact that State Route 224 contains motor vehicles traveling at high rates of speed. She further alleges that, had such warnings been given, she may have chosen a different route or path.

Obviously, common sense also comes into play when we discuss such liability. In this regard, the Plaintiff will have to explain to the judge or the jury her reasoning for proceeding by foot in an area where there were no pedestrian sidewalks. This explanation, or the lack of the woman's common sense, will be weighed against Google's alleged failure to provide appropriate or adequate warnings. Under NJ law, the woman's cause of action against Google would be barred if her improper actions rose to a level higher than the improper actions of Google. In this case, it is fair to say that a majority of individuals reading this blog would agree that her indiscretion walking on a highway without a sidewalk should negate any liability on behalf of Google. However, under our legal system, that would be up to the judge and jury to ultimately decide at a trial after ALL the facts and circumstances are made known.

Regardless of your opinion on this matter, one thing is clear: the attorney for the woman is exploring every avenue in order to properly and effectively represent his client in an effort to look for any and all individuals and all companies which may be responsible for the personal injuries suffered. If you are injured, you should ensure your rights are sufficiently represented.

The purpose of this blog is to follow up on information concerning various potential causes of action, which were discussed in our May 4, 2010 blog. In that blog, we discussed potential causes of action by one parent against another parent and by children against a parent for intentional or negligent infliction of emotional distress due to parental actions. Those possibilities were discussed with regard to a lawsuit that was filed against Miami Heat star Dwayne Wade by his wife during the pendency of a divorce action.

Interestingly, a day before our blog was published, the Superior Court of New Jersey, Appellate Division in Segal v. Lynch discussed issues similar in nature to the Wade case as well as the issues discussed in our blog. In Segal, the father, who was a non-custodial parent of two minor children, who brought an action on behalf of his children against their mother for the negligent and intentional infliction of emotional distress. Unlike the Wade case, however, the plaintiff here alleged that the basis of the infliction of emotion distress were the actions undertaken by the mother to alienate the children from the father. For instance, the plaintiff father alleged that the mother blocked all of his emails to the children, and forbade the children from emailing or otherwise contacting their father for a period greater than three months. Additionally, the father alleged that the mother told the children "false and spiteful things" about him. The father claimed that once visitation continued after this three-month period, it was clear to him that the mother's actions had a "negative impact" on his relationship with the children. In support of this claim, the father pointed to a court appointed psychologist's opinion, which determined that the mother did engage in "alienating behavior with the children."

As suspected in our prior blog, the father's claim for alienation of affections was similarly under New Jersey's Heart Balm Statute (N.J.S.A. 2A:23-1). The court then went on to discuss the proofs required to support claims of negligent and intentional emotional distress. In this regard, the court found no barrier of one parent asserting such a cause of action against another parent. However, the court's analysis went further in dealing with such a cause of action where the "best interest of the children" was the pivotal issue.

In this case of first impression, the Appellate Division cited the court's parens patriae responsibility, which requires the court to "care for and protect those unable to do so for themselves such as children." The court then balanced the "fundamental principles" of a child's best interest against the rights of civil litigants to obtain compensation for their injuries from a tortfeasor. The court acknowledged that the acknowledgment of either interest would cause detriment to the other.

In noting that the main issues in such a litigation would require the children to provide significant evidence about their relationships with their parents and, in effect, provide testimony "against" one parent or the other, the court concluded that allowing such a case to go forward would be in direct contravention to the best interest of the children. Accordingly, under the facts set forth in the plaintiff's complaint, the court dismissed the cause of action for intentional infliction of emotional distress. In doing so, however, the court did not foreclosure the possibility of one parent pursuing such a cause of action. Instead, the court indicated that such an action would be better suited for the Family Part and that a Family Part Judge would be better served in evaluating and determining the "legal ethnicity" of such a cause of action in the preliminary stages of any such litigation process. It remains to be seen whether or not this matter will make its way to the Supreme Court of New Jersey to further clarify this opinion.

In any event, it would appear that the current State of New Jersey law is not far from what is set forth in our prior blog. However, the Appellate has indicated that such claims must be brought in the Family Part as opposed to the Law Division so that Family Part Judges may "weed out" cases early on in the process. Thus, the cases must handled on a "case-by-case" basis by the Family Part Judge assigned to the matter to determine whether or not a factual basis exists to go forward.

Cases of bullying in schools by other students have been all over the news in recent weeks. Unfortunately, these news events have ranged from severe injuries suffered by students at the hands of other students to suicides committed as a result of the emotional stress suffered from constant unchecked bullying. This blog will briefly deal with the potential legal remedies a bullied student may have through personal injury law.

First, it is clear that the victim of physical or emotional injuries, which are the direct result of an assault by another student, clearly has a cause of action against the person who committed the assault. Other individuals may be included as responsible parties if it can be proven that they somehow contributed to the actions of the party committing the assault. For instance, if they encouraged or assisted in the assault in any way such as luring the victim to a particular location or advising the assaulter of the location of the victim, while knowing that the assault was imminent. The success of these types of claims, however, is often dependent upon the availability of applicable insurance coverage or assets owned by the assaulter.
Where the injuries are emotional in nature, arising solely out of verbal abuse or by entries on a social networking website, the answer is not so clear. If the words stated or posted online are untrue and cause damage to the student's reputation, a cause of action in defamation may exist. However, very restrictive rules apply in New Jersey in this regard, and these cases are very fact sensitive concerning both the causes of action and damages. If it can be proven that the words posted online or stated in public, even if true, were meant to cause distress or mental anguish, a cause of action for the negligent or intentional infliction of emotional distress may exist. Once again, issues of insurance coverage and availability of assets will determine the feasibility of these types of claims.

The final question is whether a school may be sued for such an injury. It is clear that a school will not be held responsible for physical or emotional injuries caused by bullying where it had no prior notice of the bullying and had no reason to know of same. Even where it can be shown that the school had notice of the bullying, New Jersey Courts have been hesitant to incur liability upon a school board unless it can be shown that the bullying was pervasive. Clearly, there is a common law duty for the schools to protect the children that come under their care on a day-to-day basis. In this regard, there is no doubt that common law principles of general negligence will provide a cause of action against a school board where it can be shown that the bullying was severe and pervasive, the school had actual knowledge of the pervasive and severe nature of same, and a student suffered harm as a result of such bullying. Importantly, however, any such claims of negligence against a school board will be subject to the limitations of New Jersey's Tort Claims Act.

In 2007 the Supreme Court of New Jersey went one step further in the case of L.W. v. Toms River Regional Board of Education, 189 N.J. 381 (2007) and held that students could potentially have cause of action against a school board for the school board's failure to stop severe and pervasive bullying under New Jersey's Law Against Discrimination statute. Basically, the court held that if the bullying was the result of a protected class status under the Law Against Discrimination (such as race, creed, color, national origin, sexual orientation, religion, etc.) and the school failed to prevent further bullying after it has knowledge of same, it could be liable to the student under the Law Against Discrimination. Importantly, what this basically means to a student with a potential cause of action is that their case would not be subject to the limitations of the Tort Claims Act; and they would potentially be entitled to counsel fees and punitive damages against the school board.
Inevitably, these cases are always fact sensitive and only and experienced attorney would be able to properly determine whether such causes of action exist.

A recent jury verdict in Staten Island, New York highlights medical malpractice cases focusing on cosmetic surgery. A jury awarded a Staten Island woman 3.5 million dollars during medical malpractice litigation over an alleged botched breast implant surgery. As part of her allegations, the woman alleged that she suffered significant disfigurement of her breasts as a result of a "double bubble," and claimed that her 17-year marriage came to an end because of her embarrassment of undressing in front of her husband. She underwent two separate additional surgeries in trying to correct the condition.

Claims related to cosmetic surgeries are often one of the most difficult type of medical malpractice claims to pursue. First, often times juries are not receptive to such claims due to the fact that the surgeries are generally elective in nature to correct a cosmetic "deficiency" which the jury may not view as "problematic". Rhinoplasty (nose jobs) and breast augmentation (breast implant) surgeries are typical types of surgeries that lend themselves well to this theory. If the jurors perceive that the original surgery as unnecessary or undertaken solely as a result of the vanity of the plaintiff, the jury may not be sympathetic to the plaintiff's claims. Although this does not relieve a medical doctor of his duties to abide by the appropriate standards of care, such non-sympathetic jurors may give the doctor the "benefit of the doubt" when it comes to deciding the issue of malpractice.

Another potential problem with these types of cases relate to the often subjective nature of the claim. While the plaintiff may view the surgery as unsuccessful for some reason (it doesn't look like he or she thought it would), the medical doctor may take the position that the surgery was a success. Because "beauty is in the eye of the beholder," there may be an issue as to what the doctor "promised" and what they actually delivered.

Finally, such cosmetic type malpractice claims are no different than every other medical malpractice claim, in that it must be proven that the doctor somehow deviated from the accepted standard of medical care in the treatment of the plaintiff. Despite the potential problems described above, there are many valid cosmetic surgical malpractice claims, which should be pursued as indicated by the above Staten Island jury verdict. As in all areas of the law, the nature of each claim is dependent upon the specific facts and circumstances under which it occurred and must be thoroughly reviewed by an attorney.

A recent settlement in a nursing home malpractice wrongful death claim raises questions as to the current state of the law in New Jersey concerning nursing home malpractice. Although the terms of the settled case were confidential, the decedent's family alleged that he was mis-treated while he was a resident in the defendants' nursing home, which resulted in his death. Specifically, the family alleged that the 87 year old fell to the floor when nursing home staff improperly handled his transfer from bed to wheelchair. He developed a blood infection thereafter, due to the staff's improper care of his resulting pressure sores, and the blood infection directly caused his death.

In New Jersey, nursing homes and their staff will be responsible for negligent care of a resident. A large majority of the cases that are filed today allege injuries arising from negligent supervision of the patient, improper bed-to-chair or chair-to-bed transfers of the patient, or improper treatment of pressure sores or bed sores. Through the course of litigation, due to the fact that generally, these claims are filed against licensed individuals such as nurses or patient care assistants, a nursing, medical other health care medical expert will usually be required to establish that a standard of care has been breached.

Nursing homes have their own standards by which their nurses, care assistants and employees must abide. Further, governmental entities such as the Department of Health and Human Services also promulgate regulations by which nursing homes and their staff must abide. Many times, however, discovery in nursing home litigations reveal that the nursing home is understaffed and the professionals working there are unable to meet the requirements of policies and procedures put in place by management or the government regulators. Sadly and unfortunately, it is the patient that ultimately suffers.

Of course, patients who are injured as a result of nursing home malpractice are entitled to the same measure of damages that one would be entitled to in any personal injury or medical malpractice case - past and future pain and suffering, past and future disability and impairment, and loss of enjoyment of life. Given the relative age of the average nursing home patient, however, prospective future damages are generally limited. Thus, the New Jersey Legislature has passed a statute that allows for punitive damages and an award of counsel fees in the event that an attorney can show that the nursing home staff has violated either Federal or State regulations resulting in injuries to a patient.

Accordingly, in the event you suspect that a nursing home staff is mis-treating you or a relative, you should immediately contact an attorney. A skilled attorney will likely alert the appropriate state agency as soon as possible, so that an investigation will be conducted and any and all necessary evidence to establish malpractice will be preserved.