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.

The Appellate Division recently decided the case of McDougall v. Lamb, wherein
it held that an owner of a dog is not entitled to emotional distress damages where the owner actually witnessed the dog's death. It has been long held in New Jersey that a litigant is not entitled to emotional distress damages when their companion, a pet, is somehow killed as a result of someone else's negligence. The theory has long been that pets are merely "property" and as such, one is not entitled to emotional distress damages as the result of loss of same. In this regard, damages are strictly limited to the cost of replacement of that pet from a monetary standpoint.

The plaintiff in this case asserted a claim that she suffered emotional distress due to the fact that she actually witnessed her pet's death, as a result of by being viciously attacked by another dog. Her theory was that the other dog's owner's negligence caused her dog's death and, due to the fact that she witnessed same, she also suffered emotional distress. In this regard, New Jersey law holds that a litigant may be entitled to emotional distress damages when they actually witness the death of a close family member (Portee v. Jaffee). The plaintiff and her attorney here were looking to extend that doctrine to pets.

Unfortunately, the Appellate Division did not recognize the plaintiff's arguments and held that such emotional distress damages from witnessing a pet's death due to another's negligence is not compensible under New Jersey law.

In any event, it should be noted that there are various causes of action that the plaintiff in this case could have possibly asserted in which she would have been able to receive additionally monetary compensation. For instance, if she believed that she was somehow in danger as a result of the other dog's attack, she may have been entitled to emotional distress damage in that regard. Accordingly, a highly skilled, experienced personal injury attorney's guidance is required for to ensure that you receive all that you are entitled to under the law, should you find yourself in a situation similar to that described here.

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

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

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

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

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

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

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.

The Kansas City Star reported on October 4, 2010 that a woman has filed a lawsuit against two former priests in Kansas City, claiming that the two priests "sexually abused" her over 30 years ago. The woman, now 49, had apparently repressed the painful memory of the abuse until last year. Filing of such a personal injury lawsuit generally raises issues involving statute of limitations, or filing deadlines. This complex area of the law can be successfully navigated such that a plaintiff's interests are served to the fullest extent of the law by an attorney who has experience.

In New Jersey, the statute of limitations for a sexual assault case like the one filed in Kansas City above, is generally 2 years from the date of the actual assault. However, New Jersey recognizes that statues of limitations may be tolled by the "discovery rule," and further, that the statute of limitations may be tolled when the plaintiff is suffering from a disability which would prevent him or her from filing suit within the time limitations.

The "discovery rule" will toll a statute of limitations for the period of time that the plaintiff is unaware that he or she sustained an injury or unaware that a specific injury was caused by someone else's wrongdoing. Generally, the usual case in which the case the discovery rule would apply would be medical malpractice where a doctor leaves an instrument in a patient. The patient may suffer symptoms as a result of the foreign object immediately after the surgery, but not be aware of the foreign object's presence until many years later; more than 2 years after the surgery. Under those circumstances, although the symptoms of the injury were known to the plaintiff, the plaintiff was not aware that someone else's actions negligence caused the injury until the object is detected.

In another example, the "discovery rule" would apply where a potential wrongful act was known but where the damages from that wrongful act were not discovered until well after the applicable statute of limitations. An example of this would be where there is an exposure to a toxic chemical, but that the symptoms and injury do not expose themselves until more than 2 years after the exposure takes place. In this scenario, the statute of limitations would be tolled until such time that the plaintiff knew or reasonably should have known that their injuries were related to the toxic exposure.

In addition to the above, New Jersey law states that a statute of limitations will not run against a minor or incompetent, meaning that someone is under a disability that prevents them from being aware of their legal rights or preventing them from exercising their legal rights. Therefore, generally, statutes of limitations for injuries sustained by minors will not toll until that minor's 20th birthday, because that would be 2 years after the minor's "disability" is removed.

With regard to the sexual abuse by priests and others many years ago, plaintiffs are able to file these suits based on either one or both of the above referenced statute of limitations tolling mechanisms. In some cases, the plaintiff will argue that they were not aware of their damages or had otherwise repressed memory or awareness of the sexual act until such time that it was ultimately revealed through psychiatric or psychological treatment. Other plaintiffs will argue that the emotional distress that they suffered at the hands of the molester caused an emotional disability that prevented them from filing suit or being aware of their legal rights within the applicable statute of limitations. Under either scenario, the standard for proving the disability or tolling of the statute of limitations is a great one, and an attorney must take great care to do it the properly. Accordingly, it is best that expert legal counsel be retained as soon as possible in the event that you or someone close to you finds them in such a situation.

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.