New Jersey Injury Lawyer Blog

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

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

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

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

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.

It has been reported that the city of Charleston, West Virginia has recently agreed to a $25,000.00 settlement with a family who filed a lawsuit against the city after they were involved in a motor vehicle accident with a drug dealer who was fleeing from police. The chase allegedly occurred during an attempt to set up a drug bust by an under cover police officer. For lawyers, this settlement raises issues as to whether or not such a litigation could be supported by the law in the state of New Jersey.

Liability of police officers and other public entities are governed by the New Jersey Tort Claims Act (TCA). New Jersey's Tort Claims Act basically provides various immunities to various public entities and their employees for actions undertaken during the course of their employment. Further, the TCA also limits various aspects of many causes of action.

With regard to the liability of police officers or police departments involved in a car chase, there is a specific immunity provided in the TCA at NJSA 59:5-2(b)2. Specifically, the statute indicates that neither a public entity nor employee will be responsible for any injury resulting or caused by an escaping or escaped person or by a law enforcement officer in pursuit of such a person. The Supreme Court of New Jersey, in the case of Tice v. Cramer, 133 N.J.347 (1993) held that the specific immunity applied to situations where law enforcement officers were in pursuit of an "escaping or escaped person." The court held that the definition of "escaped" or "escaping" persons included individuals who were not previously in the custody of a law enforcement agency. Accordingly, any time a police officer is in pursuit of a suspect, the immunity would apply. This would include individuals who fail to yield to a police office on even routine traffic violations. Thus, New Jersey law provides immunity to law enforcement agencies and police officers when ever a person is injured as a result of a police chase, whether the injury is sustained from the officer's vehicle or the fleeing suspect's vehicle.

The more difficult case for a lawyer involves injuries sustained when one is injured in a motor vehicle accident with a police officer's vehicle when the officer is merely responding to the scene of a call. In this instance, the police officer is not specifically pursuing an "escaping or escaped" person but is merely responding to a dispatched location. In these types of cases, the officers may be entitle to the catch all "good faith" as set forth in NJSA 59:3-3, which immunizes a public employee so long as that public employee acts in good faith in the execution or enforcement of any law.

Obviously, car accidents arising out of police chases or with law enforcement officers present complex legal issues and any such cases should be reviewed by an attorney as soon as possible.

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

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

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

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

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

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

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

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

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

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

A recent lawsuit filed in Baltimore reminds us that operators of automobiles and other vehicles on the road must recognize and be cognizant of the fact that smaller, some times hard to see vehicles share the road with us. There, a truck driver making a right hand turn struck and killed a bicyclist that was lawfully and properly using the roadway when the cyclist became entangled in the trucks rear tandem.
New Jersey's Motor Vehicle Statutes permit bicyclists to share the public roadways with the operators of motor vehicles. However, it must be pointed out that people riding bicycles upon the public roadways also have a general duty to follow the "rules of the road" and abide by roadway markings, traffic signs and signals. The failure of a cyclist to do so may be construed as negligence or an improper action by that individual that can be held against them in the event of an accident or claim for personal injuries. Further, it is conceivable that a bicyclist who fails to abide by traffic laws, signals or signs and causes a motor vehicle accident could be legally held responsible for money damages to compensate an injured party.
Another question that is raised is whether a child operating a bicycle will be required to abide by motor vehicle laws. There is not one clear answer under the law. The answer will depend on the facts of each case including the age of the child, the type of bicycle being ridden and sometimes the law of the local municipality. Generally, however, children are required to act reasonably under the circumstances for their age.
Accordingly, in light of the above, if you regularly operate a bicycle on public roadways, it may be wise to determine whether you have available insurance coverage in the event your operation of the bike causes an accident and either property damages or personal injuries. Most, if not, all automobile insurance policies exclude coverage for injuries or damages unless they are caused by the operation of a motor vehicle. Bicycles would be excluded. Homeowners' policies, if you have one, differ widely on the subject but may provide coverage for "vehicles powered by human means." To be definitive in this regard, you should contact your insurance agent and change your coverage if you believe you require it.

A recent head on motor vehicle accident caused by an apparent sneeze raises questions as to whether the sneezing driver can be held responsible for such an accident. The operator of a motor vehicle reportedly blamed his loss of control of his vehicle and ensuing head on accident on the fact that he sneezed. The answer under New Jersey law is not clear.

Generally, an operator of a motor vehicle in New Jersey has an obligation to share the road with all other users of the highway and make reasonable and proper observations so as to avoid negligently injuring others. Basically, a driver is charged with maintaining proper control of his vehicle at all times and take such actions as a reasonably prudent person would take under like circumstances.

However, there are times when certain circumstances may arise while one is operating a car where an accident or collision occurs despite the fact that all drivers acted reasonably and prudent under the circumstances they are confronted with. New Jersey case law ascribes to the Sudden Emergency Doctrine. This Doctrine states that when one is confronted with a sudden unexpected occurrence, they will only be required to take actions that reasonable people would take under the same or similar circumstances. However, the types of "sudden emergencies" that would allow a driver to benefit from this doctrine are those that are totally unexpected. For instance, the loss of control of a vehicle on ice and snow in a snow storm would be reasonably expected. Further, it has been held that an operator of a vehicle should reasonably expect other drivers to stop short in front of them or to cut them off.

Under this analysis, would a sneeze constitute a sudden emergency? No New Jersey case has addressed this specific issue. However, it would appear that the answer lies in the knowledge of the driver concerning prior instances of sneezing that may have caused him to lose control temporarily in the past as well as what specific actions were taken on the date of the accident. For instance, an operator of a vehicle that loses consciousness due to a heart attack or other similar medical condition will only be responsible for an accident occurring as a result of his unconsciousness if he knew or should have known of the possibility that such a result would occur. In this regard, inquiry will be made into prior instances of losing consciousness and whether the driver knew or should have known that it was likely such an attack would occur while driving.

Thus, in the case of the sneezing driver, all of the facts must be known before making a determination. Had he suffered from sneezing fits in the past? If so, when? If so, did they render him unable to control a vehicle? Did he have similar issues earlier in the day? The answer ultimately will lie in the answers to these questions, the arguments asserted by counsel and the decisions by the assigned Judge in any lawsuit brought.

In two recent unpublished opinions, the Appellate Division imposed liability on JCP&L (Jersey Central Power and Light) for failing to properly maintain streetlights. Under two different fact patterns arising in Point Pleasant, New Jersey, the Appellate Division held that JCP&L had a duty to properly maintain overhead street lighting and could be held negligently responsible by the injured plaintiffs in each case.

In Anderson v. Davoren, the plaintiff was injured when she was struck by a motor vehicle while crossing a street in Point Pleasant. The driver of the vehicle was traveling the speed limit and claimed that he did not see the pedestrian in the crosswalk. It was undisputed that the street light in the area was not operable and both parties claimed that the insufficient lighting led to the accident. In Press v. Point Pleasant, the plaintiff was injured when she tripped and fell over a parking space barrier. Once again the overhead light was inoperable and the plaintiff claimed that it was the insufficient lighting that caused her to fall.

Under the facts presented, the court held that JCP&L, which entered into an agreement with Point Pleasant to repair and maintain public lighting, also had a duty to members of the public using the public way. Because it is reasonably foreseeable that members of the public would utilize the areas, the utility owed a duty to properly maintain the public lighting and could be held responsible where the failed lighting led to the occurrence of an incident giving rise to an injury.

These two cases are perfect examples of good lawyers establishing liability against an entity with "deep pockets" where there may not have been a sufficient case against a primary tortfeasor. For instance there may be situations where the primary tortfeasor was protected by some type of
immunity or had insufficient insurance coverage to properly compensate the plaintiff.