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.

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.

In a recent New Jersey Supreme Court case, the Court addressed the issue of whether a realtor who was involved in the rental of a property could be sued for injuries sustained by a tenant in the property as a result of a dangerous condition. Interestingly, the New Jersey Supreme Court Justices were equally divided on the issue which means that the decision of the Appellate Division was affirmed.

The facts of the case, Reyes v. Egner, are rather simple. The owner of the subject property, a vacation home in Stone Harbor, recently had purchased the property for purposes of renting it on short-term vacation property rentals. In this regard, the owner hired the defendant realtor to list the property for such rentals and authorized them to take various actions in performance of this task. These actions included showing the property to potential renters and another included making emergency repairs as needed. In exchange, the realtor received a 12% commission of any rental obtained.

The plaintiff's family rented the subject property for a two-week period after viewing same. Specifically, the plaintiff's daughter entered into the lease and the family commenced their vacation in the home without incident. After nine days, the plaintiff, a seventy-year-old man, opened a sliding glass door leading from his bedroom onto a deck. It was the first time in the nine days that he had opened this door. Because of an improper step down, he was caused to fall and sustain injury as he attempted to enter the deck.

On those facts, the Appellate Division and half of the Supreme Court concluded that the realtor had no liability for the plaintiff's injury. While this appeared to be a departure from the current state of the law, the courts explained that their holding was limited to the facts of the case before it. In a prior case, Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) the Supreme Court of New Jersey held that a realtor would be responsible where a persons suffered an injury as a result of a defective condition of a property where an open house was taking place. This case has been read and interpreted to mean that a realtor has a duty to inspect for and either correct or warn of dangerous conditions that exist on properties that they are showing to prospective tenants or purchasers.

The Justices on the present court that agreed with the Appellate Division's holding distinguished the facts before it from the Hopkins case by indicating that, unlike the injured parties in the cases that have come down since Hopkins but before the present case, the plaintiff's family was actually in possession of the premises for nine days prior to the incident and would have been in a better position than the realtor to discover and be aware of dangerous conditions such as the one complained of by the plaintiff. The Justices that disagreed with the Appellate Division and would have held the realtor responsible cited to the realtor's duties under the contract with the homeowner and concluded that the realtor was in the best position to know of and either warn or correct the dangerous condition. They felt that the case was analogous to Hopkins.

Our reading of this case leads us to conclude that there has not really been a change in the law concerning realtor liability. We believe that the holding of Hopkins is alive and well and that realtors still have a duty to perform inspections and either warn of or correct dangerous conditions when showing properties to the public. The plaintiff here lost the case on the facts. That is we believe the courts would have concluded differently if the plaintiff were injured on the initial walkthrough of the property as opposed to after having possession for nine days. As it was before, each case must be decided on its specific facts.