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The New Jersey Tort Claims Act—The Basics

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Your Right to File a Personal Injury Claim against the Government

The New Jersey Tort Claims ActIn most instances, when you have been hurt in an accident because of the wrongful conduct of another party, it’s a relatively uncomplicated process to initiate and pursue legal action to recover damages. When the at-fault party is a government employee or agency, though, things are often not so simple.

In New Jersey, to bring legal action against the state or a local governmental worker or entity, you must follow the specific requirements of the New Jersey Tort Claims Act (NJTCA). When you file a claim under the NJTCA, you need to include the following information:

  • Your name and address
  • The date, location and any "other circumstances of the occurrence" that gave rise to the claim
  • A general description of your losses, injuries and property damage
  • The name(s) of the municipal or state employees who caused the loss or injury
  • A statement of the amount of your losses

Note that you can recover compensation for pain and suffering, but you must show a “permanent loss of bodily function” or permanent dismemberment or disfigurement, with a minimum of $3,600 in medical expenses. It’s also important to understand that any damages covered by insurance will not be available in a claim under the NJTCA.

Unlike other types of personal injury claims, an action under the NJTCA must be filed within 90 days of the date of the accident. The state may then take up to 90 days to respond to your claim. A court may, upon request, grant an extension of the time to file for up to 12 months.

Contact Attorney Gregg A. Wisotsky—Partner at Javerbaum, Wurgaft Hicks Kahn Wikstrom & Sinins, PC

I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I 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.

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.

New Jersey High Court Says Trial Can Determine Liability of Water Park

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Liability of Water Park

The New Jersey Supreme Court has reinstated a personal injury claim against Sahara Sam’s Oasis, the popular Berlin water park. Justices unanimously held that a jury could determine whether the owners of the park were grossly negligent for failing to provide adequate warnings.

According to court filings, Roy Steinberg, the plaintiff in the personal injury claim, took his grandchildren to the park in April 2010. He attempted to surf, using a device called a “flow board,” similar to a surf board. He fell, striking his head on the bottom of the pool, and was then thrown into the wall by a wave. Steinberg fractured his spine, which led to some paralysis in his legs.

Steinberg sued the park, alleging that Sahara Sam employees failed to correctly instruct him in the use of the flow board and that the owners of the park failed to post appropriate warnings about the risks involved. According to Steinberg, the manufacturers of the flow board recommend that first-time users assume a prone position, rather than a standing position, until they get a sense of balance. Steinberg fell from a standing position. In addition, his attorneys argue that the manufacturer advised purchasers of the product, starting in 2008, to warn potential users of the risks, telling them that “surfing is an extreme sport and a high-risk recreational activity,” and warning them “you will fall.” Sahara Sam’s had warnings in place, but they did not include the above language.

At the initial trial, the court found that the warnings used by Sahara Sam’s, combined with the waiver of liability form, which Steinberg signed, prevented Steinberg from pursuing a claim based on gross negligence. The New Jersey appellate court agreed, but the Supreme Court reversed, saying that it was within the prerogative of the jury to determine if Sahara Sam’s had failed to exercise “the slightest degree of care,” the current standard in New Jersey for gross negligence.

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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

Supporting Loved Ones with Workers’ Compensation Benefits

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When you have been injured or stricken ill due to a condition at your work, you are entitled by law to receive Workers’ Compensation benefits. These include payment for cost of medical treatment related to your disability, whether permanent or temporary, partial or total. You also receive benefits for lost wages.

The temporary total disability benefits that you can receive are 70% of your average weekly salary but are not to go above 75% or below 20% of the Statewide Average Weekly Wage. These benefits will generally end when you return to work or if you have reached the maximum medical improvement (MMI). This means that your recovery has plateaued, and your medical condition is not expected to improve.

Death benefit payments are also paid at 70% of the weekly salary of the worker who has died, with the same limitations on maximum and minimum amounts as noted above. These benefits are then divided among the deceased worker’s dependents. Dependents may be defined as the surviving spouse and the natural or adopted children who were part of the person’s household at the time that he or she died. Others who are dependents may have to prove their dependency.

At the law offices of attorney Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, we can answer your questions, explain your rights and represent you in a personal injury claim. Contact our office online or call us at 973-898-0161 for a free consultation. We charge no attorney fees unless I win your case on your behalf. In addition to personal injury law, we also practice criminal defense.

The Difference Between Long-Term Permanent Disability and Short-Term Temporary Disability

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If you’ve been injured or gotten sick while on the job, benefits include compensation for lost wages while you are not able to work at all, or at full capacity. You can expect to be compensated for wages lost due to your injury or illness should you file a claim with Workers’ Compensation.

Contact the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, personal injury attorney in New Jersey. There are two primary categories of disability benefits: long-term permanent and short-term temporary disability benefits. Just as the names imply, the long-term benefits are permanent, meaning that you are prevented either fully or partially from returning to your job as a result of your injury or illness. The short-term temporary benefits are what you receive for a limited amount of time, until you are well enough to return to work.

When you are dealing with temporary disability, you can fall into either total temporary disability or partial temporary disability. If you have a total disability, it means that you cannot work right now but you will have the capacity to return to work in the future. If you are dealing with a short-term partial disability, then you cannot perform all job duties due to your injury or illness but are expected to recover in future.

Long-term disability also divided into two categories. Permanent total disability means that due to your work-related injury or illness you cannot ever return to your work or a job similar to yours. Permanent partial disability means that you have permanent damage but that you are impaired only partially to perform your job.

At the law offices of attorney Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, we can answer your questions, explain your rights, and represent you in a personal injury claim. Contact our office online or call us at 973-898-0161 for a free consultation. We charge no attorney fees unless I win your case on your behalf. In addition to personal injury law, we also practice criminal defense.

Obtaining a Fair Workers’ Compensation Settlement

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My Long-Term Payments Are Running Out

What do you do when your long-term Workers’ Compensation payments are coming to an end? First and foremost, don’t wait until your benefits are running out to apply for Social Security. You may be eligible to receive both Workers’ Compensation and SS simultaneously, depending on your situation.

Social Security has a different standard of disability than that of Workers’ Compensation. To obtain Social Security disability benefits you must be disabled, not just from the one job in which you suffered injury or illness but from other work as well.

Contact Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, personal injury attorney in New Jersey.

If you believe that you may qualify under the Social Security disability standard and that you will be disabled for twelve months, consider applying for Social Security disability benefits immediately. Otherwise, if you watch your payments for Workers’ Compensation run out, you may not have income while your Social Security claim is in the application stage.

If you are receiving Workers’ Compensation and Social Security Disability benefits, your Social Security disability benefits may be reduced proportionately. The law states that you can receive up to 80% of your average wage. Once your Workers’ Compensation benefits run out, your Social Security Disability benefits will increase to your maximum amount.

At the law office of Gregg A. Wisotsky, Esq.,Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, we can answer your questions, explain your rights and represent you in a personal injury claim. Contact our office online or call us at 973-898-0161 for a free consultation. Additionally, we charge no attorney fees unless we win your case on your behalf. In addition to personal injury law, we also practice criminal defense.

What to Do if You Are Offered Inadequate Workers’ Compensation

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When It Seems Your Employer Does Not Want You to File a Workers’ Compensation Claim

It’s no surprise that your boss may not want you to file a Workers’ Compensation claim. However, the law is on your side. You have a legal right to file for Workers’ Compensation benefits if you have suffered a work-related injury or illness on the job.

The benefits are there for workers like you. They are designed to help injured workers get the medical treatment they need and to make sure that, after suffering an injury or illness at work, they have the funds to pay for food and shelter.

Your boss may not want you to file a claim because it costs the company. Even though they have Workers’ Compensation insurance, their rates will probably rise. They cannot retaliate against you for filing for Workers’ Compensation benefits. They also cannot harass you or create a hostile work environment. If they do, you may have cause to file a lawsuit against them. Even if they act like you’re faking it, just make sure to document all your medical treatment, and keep a journal of your injury or illness’s progress. This can all help your case.

Make sure to notify your boss that you have suffered an injury or illness related to your work as soon as it is clear what’s going on. Reporting your issues to the boss or HR department and having them document these concerns is important, because you must do so within a certain amount of time or you may lose your rights to the benefits.

At the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, we can answer your questions, explain your rights and represent you in a personal injury claim. Contact our office online or call us at 973-241-7468 for a free consultation. Additionally, we charge no attorney fees unless we win your case on your behalf. In addition to personal injury law, we also practice criminal defense.

Most Personal Injury Claims Never Go to Trial

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Trial and Personal Injury Lawsuits

Most personal injury legal claims never go to trial. Most often, attorneys and insurance companies will negotiate a compensation settlement package that covers items such as the injured person’s medical costs, repair or replacement of the vehicle involved, pain and suffering, and lost wages.

Decisions regarding settlement of a case are made based on past amounts that juries or insurers have paid on similar personal injury claims. Personal injury attorneys have extensive experience and understanding of these types of cases. The personal injury attorney and the insurer will generally negotiate a settlement. The negotiations begin when one or the other party, the insurer or the attorney who represents the injured person, presents an initial settlement offer or a settlement demand.

Contact Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, personal injury attorney in New Jersey.

There is then negotiation between the insurer and the attorney until both sides can agree on a settlement. When the defense, the insurance company, will not consider appropriate and fair compensation to a person injured through no fault of their own, a personal injury case may go to trial. This means that the case will be tried in front of a jury.

Between 95% and 96% of all personal injury cases in the United States are settled outside of court, pretrial. That leaves about 4% of cases that do go to trial. In most cases that go to trial, the amount of the settlement determined is higher.

Among the reasons that cases settle is that going through the court process can take a significant length of time. As well, the case and the circumstances will need to be investigated and researched by both sides. Witnesses need to be tracked down, interviewed, and the like. There is also a significant legal process that must be followed in any personal injury claim. And a trial is far costlier.

At the law offices of attorney Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, we can answer your questions, explain your rights and represent you in a personal injury claim. Contact our office online or call us at 973-241-7468 for a free consultation. Additionally, we charge no attorney fees unless we win your case on your behalf. In addition to personal injury law, we also practice criminal defense.

What Is the Meaning of Pain and Suffering in a Personal Injury Claim?

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“Pain and suffering” are legal terms used in personal injury cases. It refers to the emotional and physical trauma that you have suffered because of injuries caused by another person or an organization’s careless or reckless behavior. This is called negligence, in legal terms. “Pain and suffering” include many things that are not as visible as bruises and broken bones, subjective measures such as:

  • Loss of enjoyment of life after suffering a permanent injury
  • Loss of being able to be an active parent to your children if you have suffered permanent injury
  • Humiliation and embarrassment from scarring and disfigurement
  • Any accident-related emotional and mental distress
  • Fear and anxiety related to driving after the accident
  • Post-accident depression

Just being limited in your ability to throw a baseball or work out at the gym or socialize with friends may be potentially included in pain and suffering. If you jump every time you hear a loud noise and your accident triggered this fear of loud noises, this can be “calculated” as pain and suffering. Truly, “pain and suffering” is subjective. And it can be difficult to place a dollar value on emotional troubles that you now experience due to the accident. However, this is part of an attorney’s job. The attorney can seek to prove how your life has suffered because of a personal injury. It is helpful for you as the victim to record what has happened post-crash and how your life has changed. Journals like these can be useful in a personal injury claim.

Meantime, insurers have developed standards to help determine the financial compensation they are willing to pay for various types of pain and suffering. It can sometimes be the case that the insurer will simply take medical costs and multiple them by a certain amount and define that as pain and suffering.

At the law offices of attorney Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, we can answer your questions, explain your rights and represent you in a personal injury claim. Contact our office online or call us at 973-241-7468 for a free consultation. Additionally, we charge no attorney fees unless we win your case on your behalf. In addition to personal injury law, we also practice criminal defense.

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