New Jersey Injury Lawyer Blog

The Boston Herald hasreported that a lawsuit was recently filed against Disney World by a Pennsylvania woman who claims she was improperly touched and groped by a Donald Duck character while she was on vacation in Disney World.

The plaintiff's lawsuit claims that she sought an autograph from Donald Duck while on Disney World's property and, instead of obtaining the autograph, she was groped and molested by the costumed bird. The lawsuit alleges that Disney World, through its employees, were guilty of "negligence, battery, negligent infliction of emotional distress and intentional and reckless infliction of emotional distress." It is not known the nature and extent of the plaintiff's injuries as a result of the incident.

Importantly, while the nature of this lawsuit seems bizarre, the plaintiff's cause of action is viable. The law in the State of New Jersey and in most jurisdictions reveals that a lawsuit based on "assault and battery" will be viable if there is any "non-consensual" touching by one person of another. Although "assault and battery" conjures imaging of being punched, kicked, attacked or beat up with some inanimate object, it is simply defined as any non-consensual contact between one person and another that causes harm. Thus, although we do not know the nature and extent of the plaintiff's harm caused by Donald Duck, one can imagine "uninvited" or "non-consensual" contact between a person in a Disney costume and a park visitor merely seeking an autograph or photograph of the character. It should be noted that the varying degrees of "damages" in such suits range from mere emotional distress to physical injuries. Of course, juries and courts will perceive such cases differently depending upon the nature and extent of such damages.

If you believe that you have suffered any type of damages as a result of someone's improper or non-consensual touching, it is important for you to seek the advice of a qualified personal injury attorney to properly assess the nature and extent of both liability and your damages to determine whether or not a viable case exists in which you could obtain compensation for pain and suffering.

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.

The wife of Miami Heat star Dwayne Wade recently filed a lawsuit on her own behalf and on behalf of her children reportedly claiming that Wade and his girlfriend negligently and intentionally caused them emotional distress. The bases of her claims are that Wade and his girlfriend engaged in inappropriate sexual foreplay contact in the presence of the children and the girlfriend otherwise caused her emotional distress in breaking up her marriage. It is important to note that Wade and his wife are currently embroiled in bitter divorce litigation.
As stated earlier in this blog, such claims of alienation of affections are barred in the State of New Jersey. Thus, the wife's claims against the girlfriend would be barred pursuant to New Jersey law. However, given the nature of the claims asserted by her on behalf of her children, these claims would probably survive.
Specifically, New Jersey law allows for the recovery of monetary damages where it can be shown that either the negligent or intentional actions of another caused emotional distress. These types of claims are generally seen in personal injury type cases where the trauma of the negligent event causes some type of emotional problems. Post Traumatic Stress Disorder (PTSD) is one such diagnosis that is ordinarily seen. However, there is no requirement that the triggering event be traumatic in nature. Any action could cause the basis of the emotional distress. Importantly, however, depending upon the nature of the emotional distress claim, the law may require that such emotional stress be accompanied by physical symptoms such as headaches, gastrointestinal ailments or skin disorders that a physician can link to an emotional diagnosis.
In any event, if it can be proven that Wade's children are suffering from emotional symptoms that can be related to actions undertaken by he or his girlfriend in their presence, the cause of action may stand. However, such a case filed in the state of New Jersey also raises issues of parental immunity. That is, children may not sue their parents for injuries caused by the parents' general negligence arising out of the supervision of the child. For instance, a child may not maintain a cause of action against a parent sustained while playing with matches because the parent was not properly supervising the child. While the Wade case does not necessarily fit neatly into this category, arguments can be made by a skilled attorney that the same legal theories apply.
Regardless of all of the above, it does not appear that any court will have the opportunity to make rulings on this case. In our opinion, the case was clearly filed for purposes of obtaining an advantage in the divorce matter.

A confidential settlement was recently reached in a case where a husband alleged that his wife's physician broke up their 20 year marriage. The husband, an ex airline pilot, in a lawsuit filed in state court in Mississippi, claimed that his wife's orthopedic surgeon seduced her into an extra marital relationship thus causing their 20 year marriage to come to an end. Among other damages, the husband claimed that he suffered negligent and intentional infliction of emotional distress due to the break up of the marriage. The matter reportedly settled at the conclusion of a jury trial but before jury deliberations.

The cause of action that the plaintiff in this case proceeded on existed at common law and was called Alienation of Affection. At common law, one was able to sue and obtain money damages for emotional distress where it could be proven that one's actions caused a break up of a romantic relationship. The cause of action was not limited to situations where an outside party
acted to break up a relationship, it also included a cause of action against a party to that relationship where there was a "breach" of an agreement to marry. Because of the difficulties in proving such a cause of action and public policy considerations, most states have abolished this cause of action. In fact, such a case is only viable in seven states including Mississippi. The New Jersey Legislature abolished this cause of action in New Jersey in 1935 pursuant to N.J.S.A. 2A:23-1 Which states: "The rights of action formerly existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction or breach of contract to marry are abolished from and after June 27, 1935." Although a specific cause of action for alienation of affections no longer exists in the state of New Jersey, there may be situations where similar causes of actions may be brought for emotional distress type damages that relate to the break up of relationships such as slander, defamation and libel. For instance, if a third party slanders a party to a relationship resulting in a breakup of that relationship, money damages may be awarded for emotional distress. Of course, this analysis is very fact sensitive and there are specific rules
concerning cases for slander which must be considered.