New Jersey Injury Lawyer Blog

A recently filed lawsuit alleging that improper construction led to the existence of mold asserts both property damage claims and personal injury claims. Generally, cases of this type assert that either the builder or their sub contractors were negligent in the construction of the plaintiff's dwelling or that a landlord or maintenance company were negligent in failing to properly maintain the premises. Under either scenario, the basis of these claims is that water was allowed to infiltrate into the buildings and provide optimal conditions in which mold is able to grow and thrive. Oftentimes, the mold is hidden in areas such as crawl spaces and attics and may not be discovered for some time.

With regard to personal injury claims, the existence of certain types of mold cause the inhabitants of the building to will suffer from various illnesses which are usually respiratory in nature. The key to successfully litigating such cases is establishing the causal link between the complained of illness and the mold that exists. Thus, it is important for the injured person to obtain and retain samples of the mold once it is found. Usually a medical mycologist will be able to test the mold to determine its genus and species and to establish as causal relation between the mold and the illness.

Once a causal connection is made between the mold and the illness it is then important to have an expert determine the cause of the mold's existence. It must be determined if the mold's presence was caused by improper or negligent construction of the premises, the improper or negligent maintenance of the premises or some other reason. It must be mentioned that a builder may not be sued in New Jersey more than ten years after the Certificate of Occupancy of the building was issued.

Accordingly, it is important to seek the advice of both medical and legal professionals as soon as one believes that they are suffering an illness from the existence of mold. Failure to do so may result in the inability to properly pursue certain rights under the law.

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.

Recent injuries suffered by supermarket employees in Wall Township, Monmouth County, New Jersey, according to reports, raise questions as to whether people injured while at work may obtain money damages from those other than their employers in a Workers' Compensation case. After a heavy snowstorm, an overhang on the loading deck of the supermarket collapsed on three individuals. Two were supermarket employees; the third was a delivery person who happened to be standing there when the overhang collapsed. In cases such as this the main question that arises is whether these individuals have the right to bring suit against other entities (not their employers) in order to recover money damages as compensation for pain and suffering.

In order to properly answer this question, the facts of each case must be fully explored by an attorney. Generally, a person may not sue his own employer or co-employees even if his employer or co-employees are found to be negligent. Thus, each separate fact pattern must be scrutinized to determine whether, under general principles of negligence, an entity other than the injured party's employer or co-employees may be culpable or legally responsible for the damages or injuries incurred. For instance, in motor vehicle accident cases, an injured employee may not sue his co-employee who was driving, but may sue the driver of the other vehicle involved in the accident. Another example is where an employee is injured due to a dangerous machine or tool. Although the employer may not be sued, a suit may be maintained against the manufacturer of the machine or tool for improper design or manufacture.

In the supermarket case mentioned above, there are a number of potential non-employer entities that could potentially be responsible for the collapsed overhang. For instance, the supermarket (the employer) may not own the store or the premises. If the landlord has the obligation under the lease to maintain the premises, his failure to do so may give rise to liability. Further, investigation must be made into the cause of the collapse. Thus, even if the employer was responsible under the lease to maintain the premises and the overhang, the collapse could have been caused by negligent construction or design of the premises in which case the builder or the architect may have the ultimate responsibility.

Accordingly, where an injury occurs at work, the employer should not just settle for a Workers' Compensation claim but should seek legal advice to determine if someone bears responsibility.

A lawsuit seeking personal injuries and unspecified damages due to a wrongful death recently filed in the Supreme Court in Staten Island, New York according to reports, highlights the potential problems with work site injuries.

In the Staten Island case, a construction contractor was working on a home when he apparently fell to his death approximately 8 -10 feet off of an unguarded and unprotected area. Although the article reported that there is a dispute as to what initially caused the individual to fall, it is clear that the lack of a railing or other protective barrier device led to his fall and ultimate death. However, who is to blame? Isn't the worker responsible for his own safety? Is his employer? Is the owner of the premises?

Construction site or work site type accidents and injuries are commonplace. Depending upon the location and type of construction site that is being worked on, various standards of care and varying rules and regulations may apply to the required safety measures and safety devices which must be provided to the on site workers. For instance, in a fact pattern as is set forth above, various OSHA (Occupational Safety & Health Administration) rules and regulations may require certain types of handrails or other barriers where there is a specific height differential or drop.

These rules and regulations may also inform us which party or entity would have the ultimate responsibility to install and/or maintain such barricade devices. For instance, depending on the circumstances and the type of work site, the obligation may be imposed on the general contractor on the site or any one of many subcontractors. There are so many issues concerning these standards that attorneys representing individuals injured in such accidents will almost always rely upon construction and work site experts to navigate them through the regulations and provide an ultimate opinion as to who was at fault.

It is important to note that in such cases, the injured or killed worker will be entitled to a Workers Compensation award so long as the injury was incurred within the course and scope of the worker's employment. However, in the State of New Jersey, other than proceeding with a Workers' Compensation claim, an employee generally may not sue his own employer for pain and suffering, loss of enjoyment of life, disability and impairment or wrongful death. Therefore, when one suffers an injury on a construction work site, it is imperative for an injured person to team up with an experienced attorney and a construction safety expert early on to determine where liability rests in order to insure that the injured party is fully and fairly compensated under the law.
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Law enforcement officers have been named as defendants in two recent cases based on alleged misconduct in their arrest and apprehension of alleged criminals. In the first case, four college aged students are seeking one million dollars in monetary damages from the Franklin Township Police Department (Massachusetts) in a suit filed in Federal Court in Boston where it is alleged that an officer used excessive force on a routine traffic stop. Specifically, it is reportedly alleged that the officer pulled out his gun and punched on the the plaintiff's in the face.

In another case, a New Haven Connecticut man has filed a lawsuit against the New Haven Police Department seeking ten million dollars in damages for wrongful arrest and imprisonment where he was recently acquitted of murder charges by a jury. According to reports, he alleges that the defendant officers conspired to fabricate evidence against him in an attempt to obtain a conviction.

In New Jersey, there are various causes of action that one may bring against law enforcement officers for wrongful acts. These causes of action are based on State common law and both Federal and State Constitutional law. A citizen may be entitled to monetary damages, punitive damages and counsel fees if it is proven that the law enforcement officer violated the citizen's Constitutional rights pursuant to 42 USC 1983, et. seq. Such violations may include effectuating an arrest without probable cause, charging a citizen with a crime without probable cause, targeting a citizen for arrest or harassment based on a Constitutionally protected status such as race, creed, color, national origin, religion, age or sexual orientation, depriving a citizen of property or property rights with Due Process, utilizing excessive force (force more than is reasonably required) in effectuating an otherwise valid arrest, failing to provide appropriate medical care to a citizen in custody, or utilizing improper punishment techniques.

However, it should be noted that law enforcement officers have wide latitude when carrying out their duties. Case law in New Jersey and throughout the nation holds that a law enforcement officer will not be responsible for alleged Constitutional violations when they can establish that they have acted in good faith and without intent to violate Constitutional rights. Thus, where there is a reasonable belief by the officer that the law was broken, he will not be held responsible for an arrest even if it later turns out that a crime was not committed. This is called Qualified Immunity.

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.

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.