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The Timeline in a Personal Injury Lawsuit – Part One

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The Timeline in a Personal Injury Lawsuit Part One

When the carelessness or negligence of another person causes you to suffer loss, either through personal injury or property damage, you have a right to pursue monetary compensation (known as “damages”). Often, you need the compensation soon, as you may be unable to work or to afford the costs of medical care. Unfortunately, recovering full and fair compensation for personal injury is a process that can take time. In this series, we’ll look at the steps along the way to trial.

Commencing a Personal Injury Action

A personal injury lawsuit starts when you file a complaint. The complaint tells the court what happened, as well as what you need to be made whole. The complaint must be filed in the appropriate court and all defendants must be properly served with a copy of the complaint. The complaint should be filed as soon as practicable after the accident, as memories can fade and witnesses can disappear. When you file the complaint, your attorney can use the power of the court to compel witnesses to testify, and to obtain other relevant evidence. You must file the lawsuit within a specific period set forth by statute, known as the “statute of limitations.” In New Jersey, the statute of limitations for personal injury is two years from the date of injury or discovery of injury, whichever is later.

Once the complaint is filed, the defendants have a specified period — usually 30 days — to file an answer to the complaint. If a defendant fails to do so, you can pursue a default judgment.

The Discovery Period

If the complaint and answer have been filed in a timely manner, the judge will typically schedule a first meeting with the parties. The function of this meeting is to allow the judge to learn a bit about the case, to determine the likelihood of a settlement and to establish rules and a timeline for discovery. Discovery is a legal term that refers to the gathering of evidence. It’s typically done in three ways:

  • Depositions — Oral examination of witnesses, transcribed by court reporters
  • Interrogatories — Written questions submitted by one side, which typically must be responded to in writing
  • Requests for production of documents

Contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

New Jersey Statute of Limitations on Personal Injury

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Limitations on Personal Injury

When you’ve suffered injury because of someone else’s wrongful act, whether it’s the failure to perform according to the terms of a contract or a lawsuit for injuries sustained in an accident, you have to file a claim for damages within a specific period of time or it will be barred. This rule, known as the statute of limitations, serves several purposes. It ensures that evidence doesn’t get lost and that witnesses don’t forget what they saw or heard. It also prevents a person from living for a long period of time with a potential claim hanging over his or her head.

The statute of limitations can vary from jurisdiction to jurisdiction and are typically different for various types of lawsuits. In New Jersey, the statute of limitations for personal injury — the time in which you must file your complaint — is “two years after the cause of any such action shall have accrued.” The statute covers cases involving injury and/or death, although the clock for filing a claim for a wrongful death does not start until the actual date of death.

There are, however, situations where your injury may not be clear, or where symptoms don’t become apparent for months or even years. What happens then?

New Jersey, like many other states, applies the discovery rule with respect to when the statute of limitations starts to run on a personal injury claim. Under that rule, the clock does not start to move on the statute of limitations until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered the injury. Accordingly, if your injury took some time to develop or was not apparent through reasonable observation, you will have two years from the date that you first became aware of the injury.

Contact Our Office

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Establishing Causation in a Personal Injury Action

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Personal Injury Action

If you have been hurt because of the wrongful act of another person, you will most likely file a lawsuit alleging negligence. In a classic negligence action, one of the key elements that you must prove is “causation” that is, the defendant’s breach of duty of care “caused” your injuries. Under the ‒ common law of negligence, two different types of causation have evolved: actual, or “but for,” cause and proximate cause. To successfully prosecute a personal injury claim, you must show the existence of both types of causation.

Actual (“But For”) Cause

Actual cause is pretty much as the name suggests – it asks the question, Did the defendant’s negligence “actually” cause the accident and ensuing injury? In other words, if the defendant had not breached the duty of care, would the injured party have been hurt? If the answer is no, then you have established actual cause. For example, if a homeowner fails to repair a pothole in the sidewalk and you trip on the pothole, there’s actual cause for any injuries you suffer.

Proximate Cause

Proximate cause can be much more difficult to determine. Essentially, proximate cause looks at the specific injury and asks if it was reasonably foreseeable, based on the defendant’s actions. In the example above, let’s assume you tripped on the pothole and fell onto a wasp’s nest. The wasps swarmed out, traveled down the block and stung your neighbor 50 times. That neighbor went into anaphylactic shock and was hospitalized for two weeks, causing him to miss a trip to the Super Bowl, for which he’d already purchased tickets, at $2,000 per ticket. The neighbor would probably be unsuccessful in an attempt to recover the costs of the trip from you because there was no proximate cause.

Contact Us

At the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, we offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. Wewill come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Watch Out for Products with Button Batteries

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Button Batteries

When was the last time you put one of those big, clunky D-sized batteries in any kind of a product? Instead, you probably put a wafer or "button" battery in your remote control, camera, key fob, hearing aid or other product. But these batteries can pose a serious health risk, especially to children who may do what children do with lots of things—put them in their mouths.

According to published reports, over 3,000 small children required emergency care last year after swallowing a button battery. Medical professionals warn that ingesting a battery of any kind can have serious consequences, from suffocation to choking, even causing death. Furthermore, because batteries carry an electrical current, they can cause a chemical reaction with liquids, including saliva, resulting in serious internal burns. The small batteries can also become lodged in a nasal passage or an ear.

Warning Signs that Your Child May Have Swallowed a Battery

Here are some telltale signs that your child has ingested a button battery:

  • Excessive drooling
  • Hoarseness
  • Vomiting, gagging or any difficulty swallowing
  • Complaints of chest or abdominal pain
  • Sudden crying
  • Bloody saliva or stools

Doctors advise against giving your child anything to eat or drink if you suspect that the child has swallowed a battery. Don’t try the Heimlich, either—take the child to an emergency medical facility as soon as possible.

Contact the Law Offices of Gregg A. Wisotsky, Esq. Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

The Standard of Care in a Negligence Lawsuit

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negligence-action

When you suffer a needless injury because of the careless acts of another person, there are several different legal theories that may be used to pursue compensation for your losses. In most instances, however, your claim will be based on an allegation of “negligence.” Negligence is a legal term, with specific elements that must be proven in court:

  • You must show that the defendant breached an accepted “standard of care”
  • You must show a causal link between the defendant’s conduct and your injury
  • You must show that you suffered actual losses as a result of the accident

The Standard of Care

As the common law of negligence has evolved, the courts have established and reinforced the concept that everyone has a duty, in everything they do, to exercise a certain level of care. Whether you are behind the wheel of a motor vehicle, maintaining steps or stairs, designing or operating a power tool or manufacturing a consumer product, it is expected that you will exercise a certain minimal level of care, so as not to pose an unreasonable risk to others. The standard in New Jersey, as in other states, is general – you must act as a “reasonable person” would act.

Some states have narrowed that definition a little, holding that a reasonable person is an “average person of ordinary prudence.” The ultimate determination of whether a defendant breached a duty of care rests with the jury, though. Juries are tasked with determining the facts in a case, and whether the defendant acted reasonably is considered an issue of fact.

Click here to learn about causation in a personal injury lawsuit.

Contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

The Common Types of Construction Site Injuries

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Construction-Site-Accidents

Though the common perception is that medical errors are few and far between, recent studies seem to indicate otherwise. One report found that nearly every American will receive an incorrect diagnosis at some point in their life. Medical industry watchdogs say the factors that most often contribute to misdiagnosis or failure to diagnose are:

  • Negligence or carelessness caused by fatigue or understaffing
  • Miscommunication between doctors, nurses and patients
  • An unwillingness by doctors to acknowledge or discuss errors that are made

Far too often, according to much research, doctors and nurses don’t include the patient in critical discussions and make diagnostic assessments without gathering adequate information from the patient. Researchers stress the need to talk directly to the patient and learn about symptoms, rather than simply relying on medical tests.

Critics also point to what they call a “culture of silence” among medical professionals — the idea that, when mistakes are made, they cannot be discussed. They say that just the opposite approach is necessary — the best way to learn from mistakes is to fully discuss them, so that others don’t end up making the same errors.

The studies have not been limited to misdiagnoses, though. One report found that in one of every 10,000 surgeries, some tool or product is wrongfully left in a body cavity and that surgeons perform the wrong surgery or operate on the wrong body part in one of every 100,000 cases. Critics say the reasons for such errors mirror those for misdiagnosis — poor communication, overworked doctors and a “hush-hush” atmosphere about mistakes.

Contact Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Dangerous and Defective Product Claims

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Dangerous-Product

From the founding of America, the legal principle of contributory negligence, carried over from English common law, has been applied to personal injury claims. Under the concept, if a person suffering a personal injury was in any way negligent or careless, and thereby contributed to his or her own injury, that fact could be used to complete bar or eliminate any recovery for the injury suffered.

Because of perceptions that the doctrine of contributory negligence was too harsh, and because of the successful efforts of many defense lawyer to find some level of contributory negligence in nearly every personal injury claim, the law has been modified in every state by the new principle of comparative, rather than contributory, negligence.

Under the doctrine of comparative negligence, the finder of fact in a personal injury case (the judge or the jury) must first determine the full amount of damages sustained by an injured party. The judge/jury must then determine if the injured party was negligent in any way and, if so, to what extent.

At that point, the various states take one of two approaches. In many states, the percentage by which the injured party was at fault is simply applied to the total amount of losses, thereby reducing the damage award. For example, if an injured party shows $1 million in losses, but the jury finds that he or she was 25% responsible, the award will be reduced to $750,000. If the plaintiff (the injured party) was found to be 75% responsible, he or she will still receive $250,000.

In states such as New Jersey, however, that have adopted what is known as “modified comparative negligence,” an injured party can receive a damage award only if his or her degree of fault falls below a certain level, typically 50% (the standard in New Jersey). Accordingly, in the above example, if the plaintiff is found to be 51% responsible, there will be no damage award.

Contact Us

At the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, we offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Slip-and-Fall Injuries in New Jersey

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Under the laws of New Jersey, the owners or persons in control of residential or commercial property have a duty to maintain the premises in such a way as to minimize the risk of injury to anyone legally on the property. This is known as “premises liability” law.

Slip and Fall

The Responsibilities of Property Owners/Managers/Occupants in New Jersey

In New Jersey, as in other states, anyone who has responsibility for maintaining real property can be found liable when someone suffers an injury because of improper maintenance or lack of maintenance of the property. That will typically include the owner of the property, but it can also include property managers or tenants.

The first duty of such a person is to reasonably monitor the premises so as to be made aware of any potential safety risk. Note that there is no absolute duty to prevent injury, only to take reasonable steps to minimize the risk of injury. However, where a reasonable person would expect certain conditions to occur — snowfall or the collection of ice in a northern climate, for instance — a property manager/owner/tenant may have liability even if there was no actual knowledge of the condition, if a reasonable person would have anticipated the condition.

Once a property owner is aware (or circumstances dictate that the property owner should have been aware) of a dangerous condition, the property owner must either take reasonable measures to fix the problem, must cordon off the area to prevent access or must provide reasonable warning of the potential dangers.

The Status of the Visitor

A defendant’s duty to a person injured on real property varies, based on the legal status of the visitor:

  • Invitees — If the person is on the property legally and has been expressly or impliedly invited there by the owner, for purposes that benefit the owner, that person is an invitee. A landowner owes the highest duty to an invitee — to take reasonable care to prevent injury
  • Licensees — If a visitor is on property with permission, but for his or her own benefit, that person is referred to as a licensee. A property owner’s duty to a licensee is only to warn of conditions of which the owner is aware and which the visitor would not be likely to discover
  • Trespassers — If the person is on the property without legal permission or right, the landowner typically owes no duty, unless the visitor is a minor. Landowners have a duty with respect to what are known as “attractive nuisances,” generally man-made objects or devices that would be attractive to a minor, such as a swimming pool or gravel pile.

Contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Comparative Negligence in New Jersey

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Comparative-Negligence-in-New-Jersey

When you have suffered an injury through no fault of your own, you look to the wrongdoer to compensate you for all your losses. But what if you were partially at fault? What if you acted carelessly or negligently and your actions contributed to causing the accident? Can you still recover compensation? Are there any limitations?

Under the laws of negligence, the prevailing concept for centuries was the doctrine of contributory negligence. This principle held that if the injured party was at fault in any way or to any degree, he or she could not recover damages for any losses sustained. Because of this principle, defense attorneys would routinely look for any evidence of carelessness on the part of a plaintiff. Eventually, the law began to change, as lawmakers, judges and lawyers saw a basic unfairness in preventing a minimally responsible plaintiff from recovering compensation from a clearly negligent defendant. As a result, the doctrine of contributory negligence was replaced by the concept of comparative negligence.

Two forms of comparative negligence have developed across the country. Some states have adopted what is known as “pure comparative negligence,” where an injured party is always entitled to some recovery, provided all the elements of the case are established. With pure comparative negligence, the jury makes a determination of the full extent of a plaintiff’s losses and then assesses a percentage of liability to the plaintiff. For example, if the damages are established at $250,000 and the plaintiff is determined to be 10% responsible, the damage award will be reduced by 10%, or $25,000.

In other states, including New Jersey, a form of “modified comparative negligence” applies. In these jurisdictions, a plaintiff may only recover compensation if his or her percentage of liability falls below a certain level, typically 50%. Accordingly, if the plaintiff was 51% responsible or higher, there is no recovery.

Contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

Pokemon Personal Injuries Proliferate

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A picture of a Pokeball

Authorities in the United States haven’t taken any action yet, but if the rate of injuries tied to the immensely popular application Pokemon Go! continue, you just might find yourself in a traffic net where police officers aren’t checking to see if you’ve been drinking they’re looking to see if you are ‒ playing Pokemon Go! According to news reports, Japanese police recently issued hundreds of tickets to motorists who were playing the game while driving. Law enforcement officers in Thailand also set up a similar roadblock, arresting 12 drivers.

The major cause of their concern? The rising incidence of injuries involving motorists playing the game while driving. In Massachusetts, police say a motorist on the highway caused a multicar accident when he was distracted in his hunt for Pikachus, Bulbasaurs and other creatures. A man in Baltimore sideswiped a police cruiser while playing the game behind the wheel. Niantic, the developer of the application, has issued an upgrade that requires anyone playing the game in a moving vehicle to tap a button that says “I’m a passenger.” They acknowledge, though, that there’s no way to verify if the person tapping the icon is really a passenger or is operating the vehicle.

The risk of personal injury, though, is not limited to motor vehicle accidents. Just moments after the game’s release in June 2016, a man in Washington, D.C., broke his foot when he fell into a ditch. He admitted that he had his focus on his device, not on the terrain in front of him. In Florida, a resident mistook two teenagers for burglars and fired shots at their car. They were simply playing Pokemon Go!

Contact Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC.

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

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