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 Supreme Court of New Jersey recently decided in the case of Marcinczyk v. State of New Jersey Police Training Commission that an agreement to waive any liability against a public entity is unenforceable as a matter of public policy. In Marcinczyk, the plaintiff was a police trainee and was mandated to attend a police academy for training. In applying for the police academy, Mr. Marcinczyk was required to sign a waiver which purportedly prevented him from suing the Police Academy for pain and suffering, medical expenses, loss of wages, injuries, permanent disabilities or pecuniary losses as a result of injuries or losses he may sustain during the course of his training or participation in the police academy. Of course, Mr. Marcinczyk was injured during the course of his training and commenced suit.

Although the Supreme Court of New Jersey recently upheld similar type clauses for private institutions such as health clubs and gyms, the Court refused to uphold such a waiver of liability when the beneficiary of such clause is a public entity. Specifically, the Supreme Court of New Jersey referenced New Jersey's Tort Claims Act, which is a statute enacted to permit injured citizens to seek compensation from public entities for negligence in "narrowly defined circumstances." The Supreme Court further reasoned that because a statute specifically allows for recovery of monetary damages under certain circumstances when there is negligence by a public entity or public entity's employees, it would be contrary to public policy to allow a contractual provision to bargain away the right to sue. The court further noted that the Tort Claims Act provides specific immunities to the public entity and as such, in throwing out the contractual provision, the court did not impose liability upon the public entity. The court merely remanded the case back to the trial court for purposes of determining if any of the specific statutory immunities applied.

As set forth on our website and in prior blogs, the Tort Claims Act provides specific immunities to public entities where injuries occur as a result of that public entity's negligence. In our view, the court's decision here was a correct one, in that New Jersey's legislature has already dealt with liability of public entities through the enactment of the Tort Claims Act. If you have any question as to whether or not you are legally entitled to sue a public or private entity for negligence, consult a skilled attorney immediately in order to protect your rights.

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.

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.

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.

A recent appellate case, Luchejko v. City of Hoboken, et.al., holds that a condominium association is not liable for dangerous conditions on the public sidewalk abutting the condominium association's property. This recent decision highlights the current status of New Jersey sidewalk liability law. As indicated in prior blogs, a landlord is generally responsible or legally liable for personal injuries as a result of dangerous conditions existing on its property. However, there are significant exceptions when this general rule is applied to public sidewalks within the State of New Jersey.

For purposes of personal injury liability, public sidewalks in the state of New Jersey are basically divided into two categories. The first are those that abut residential premises. The second category includes those public sidewalks that abut commercial premises. As a general rule, a homeowner or an owner of a residential premises will not be responsible for injuries which are the result of dangerous conditions on the public sidewalk abutting their premises. In this regard, it is the local public entity that will be responsible. Of course, there are exceptions to this rule, such as where the owner of the residence actually creates the condition that gave rise to the injury. Further, the public entity's responsibility for injuries occurring on the public sidewalks abutting residences will be tempered (?) limited to the provisions of New Jersey's Tort Claims Act.

On the other hand, owners of commercial premises will be responsible for injuries that are sustained as a result of dangerous conditions contained within public sidewalks abutting those commercial premises. Thus, generally, owners of commercial premises have a duty to properly maintain the sidewalks that abut their property. This duty extends to the removal of ice and snow. The theory behind imposing this duty upon commercial establishments relates to the potential revenue generates by the business and shifting the risk away from the public entities.

In any event, the main difficulty in such cases is determining whether or not the property is "commercial" or "residential." For instance, should a multi-tenant apartment building be considered commercial or residential for the purposes of this analysis? Should a church be considered commercial or residential? Basically, the courts have stated that the test really is whether or not the property has the capacity to generate income. Thus, even residential properties that are owned for investment or business purposes will be classified as commercial under this analysis. Similarly, a parochial school and a fraternity house have also been held to be commercial establishments for purposes of this test.

In the recent case of Luchejko v. City of Hoboken et.al. the issue was whether or not a condominium association should be considered commercial or residential entity because the condominium complex at issue in this case was basically and predominantly an owner-occupied, and the condominium association was a "non-profit" corporation, the court considered that this complex qualified as a residential premises. Accordingly, liability was not extended. However, it appears that the Appellate Division did not provide a blanket rule that all condominium associations should be treated in the same way. Each case must be properly reviewed, examined and analyzed, given its unique facts and circumstances of the incident.

The fact sensitive nature of this type of case makes it crucial that a very skilled attorney analyze all the details and circumstances surrounding the incident that led to an injury at the first possible moment, in order to be legally successful and to sufficiently protect your rights.

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.

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.