One common injury that results from motor vehicle accidents is frequently referred to as “whiplash”. In actuality, whiplash is not an injury at all. Rather it is the whiplash forces that cause the resultant injuries. A recent article published in the Journal of the American Academy of Orthopaedic Surgeons entitled Chronic Whiplash and Whiplash-Associated Disorders: An Evidence Based Approach, indicated that in a typical rear-end motor vehicle collision or similar trauma, the injury is caused from the forward and upward motion of the torso while the head lags behind as a result of inertia. The “whiplash injury” manifests itself in any structural damage sustained as a result of whiplash forces.

Whiplash is a descriptive term used to describe a scientific injury, just as a turned ankle is a descriptive term for a sprain. The term “whiplash” is used to describe the tear of the muscle fibers, as well as injuries to joints, nerves, ligaments, and tendons.

Crash characteristics and human factors are relevant considerations to help predict injuries in low-speed collisions. Crash factors may include the size, weight, and speed of each vehicle, the type and position of the seat and head restraint, and the ability of the vehicles to absorb or transmit energy. For example, a person driving a Hummer may be less probable to experience a whiplash injury than someone driving a Corvette, which is generally made out of fiberglass. Due to these factors, very little vehicle damage may produce severe a severe injury.

In addition to the crash characteristics, several human factors may play a role in the severity of the injury. Such factors may include: the size, weight, and sex of the occupant; whether the person was aware that a collision was about to occur; the direction the occupant was facing upon impact; and the individual’s tissue tolerance.

Injuries resulting from the whiplash forces can generally be categorized into two areas. Acute pain occurs soon after the injury and usually persists for up to six months. Chronic pain is not defined by an arbitrary time period, but rather as pain that endures beyond the expected resolution of the injury. If you had to put a time period on chronic pain, it would be fair to say that it is pain that persists beyond six months.

Whiplash injuries can manifest themselves in different areas of the body. The most common source of pain is neck pain. It may occur midline or on either or both sides of the neck. Arm pain is also common in chronic whiplash injuries although it is generally less severe than neck pain. Headaches are the second most common symptom of whiplash injuries. Such headaches, while they may vary in severity and frequency, are often confused with migraine or tension-type headaches.

In addition to the above mentioned injuries, there are a category of injuries commonly referred to as whiplash-associated disorders, which may result from a rear-end collision or similar trauma. These types of injuries include lower back pain, vision problems, dizziness, weakness and fatigue, poor concentration and memory, as well as difficulty sleeping.
If you are involved in a rear-end collision or similar type trauma know that your injuries may be more complex than you think. It is important to seek medical treatment immediately. It is equally imperative that you see an attorney to preserve your rights as a result of these complex injuries.

Recently, a verbal threshold case was settled for $180,000. This was quite a difficult case. It involved an accident that happened in May 2003, where a plaintiff was rear-ended and injured in the accident. There was very minimal damage to the cars involved. To complicate things, while still under treatment for the first accident, she was in another rear-end accident in December 2003, involving very minimal damage to the cars. She injured the same areas of her body that she injured in the first accident. She was subject to the verbal threshold in both cases.

Studies of her spine after the first accident showed abnormalities in her neck and back, as did the studies after the second accident. While the injuries in the neck were virtually the same, the back presented a bigger problem. The various studies showed a progression of the abnormalities, that ultimately required surgery. While the surgery helped the plaintiff with some symptoms, she was still having a significant amount of pain, which lead her to have other intrusive procedures done to try to cope with the pain of her permanent injuries.

The case did not settle until the date of trial, almost five years after the first accident. The fact that she had the verbal threshold in both accidents was very crucial. Her treating neurologist opined that the first accident compromised her neck and back, and the second accident caused the already compromised spine to get worse, and turn into a new injury in her back, for which she needed the surgery and other procedures.

If the case was tried before a jury, the defendant in the first accident would have claimed that she did not sustain any permanent injuries in the first accident, and that she was healed by the time of the second accident. The defendant in the second accident would have claimed that the were no permanent injuries from the second accident, and the defense expert would have disagreed with the treating surgeon that the studies and surgery showed a worsened condition.

Because no one has a crystal ball, we will never know whether the plaintiff would have needed the surgery and other procedures had the second accident not happened. She was still under treatment after the first accident when the second accident happened. This would have been tough question for the jury to decide the portions for recovery for which each defendant was responsible.

There were limited policies of insurance available to both defendants. The total recovery available was $200,000. The case settled on the date of trial for $180,000, which consisted of $90,000 from each defendant.

A common question I get is how do insurance companies go about defending cases. As we all know, we must carry automobile insurance. That insurance includes liability coverage, which protects us up to a certain amount in the event that we are responsible for a crash. When an automobile accident occurs, insurance companies hire attorneys to represent the person responsible for the accident. The liability portion of the insurance policy represents the amount of coverage the person responsible has in order to pay for damages caused by the accident.

Once an attorney is hired by the insurance company, a response to the plaintiff’s case is built. The attorney answers interrogatories with the potentially responsible party. Depositions, or transcribed question and answer sessions, occur. Eventually, the attorney or the insurance company will set up an exam by a doctor of the attorneys’ choice or the insurance companies’ choice. These doctors tend to be the same from case to case and they frequently make a significant portion of their income consistently claiming people were not injured in car accidents. Typically, even if your treating doctor believes you were permanently injured in an accident, this “insurance” doctor will find no permanent injury.

Often the defense lawyer a juror sees at trial is actually a direct employee of the insurance company. While juries are not told this, probably half the time in auto accidents the lawyer and his law firm are not independent counsel, but employees of the insurance company. Great care is taken by the companies to make sure that insurance is never mentioned and that the business relationships between the companies and the experts they hire are not disclosed. The Court rules typically prevent disclosure of this information in the trial as it might be prejudicial to the insurance company for the jury to know that insurance is controlling. Thus, the perception is often created that the individual is going to be responsible and that the case is a burden on them, when this is far from the truth.

In the end, if your case is tried, the attorney hired by the insurance company many times will admit that the accident was the fault of the responsible party, but try the case with the insurance doctor. These doctors sometimes make very good witnesses as they appear quite regularly in court. In the end, a jury is asked to determine whether or not you have proven that you were injured as a result of the accident. If you have the limitation on lawsuit, the jury must determine you have a permanent injury. However, the insurance doctor is often the crux of the responsible party’s case.

New Jersey’s Dram Shop Act applies to every entity licensed by the Division of Alcoholic Beverage Control to sell alcoholic beverages within the state. Thus, a person or a business that sells alcohol to any person whom is visibility intoxicated may be liable for potential injuries that result to that person and others.

The Dram Shop Act creates potential liability on a seller of alcohol in two ways. First, if alcohol is served to a person that is visibly intoxicated and the seller reasonably should have been aware of the visible intoxication. Or in the alternative, if alcohol is served to a minor that the seller reasonably should have known was a minor.

The potential claimants under the Dram Shop Act include anyone who is injured as a result of the intoxicated individual’s conduct. For example, if you are injured in an automobile accident by a driver who was served alcohol while he was visibly intoxicated, you may be entitled to money damages from the entity that served the alcohol. In addition, a first-party Dram Shop Act claim may be brought on behalf of the visibility intoxicated person if they are injured.

Thus, if you are involved in an accident with someone that is intoxicated, or were served while you were visibly intoxicated and were subsequently injured, you should contact an attorney immediately to find out what your rights are.

The res ipsa doctrine is a common law doctrine that can be used by a plaintiff in a medical malpractice case. Translated literally from the Latin, res ipsa loquitur means, “the thing, itself, speaks.” The seminal common law res ipsa case taught in law school is the case of Byrne v. Boadle, 159 Eng.Rep. 299 (1863). In Bryne, a barrel of flour either fell or was pushed out of a second story warehouse window, striking the plaintiff as he was walking by and wounding him seriously. The plaintiff sued the flour merchant’s business. His suit was initially dismissed for failure to make a prima facie case for negligence, as he could not say how the negligence occurred or who was responsible. The court in Bryne reinstated his case, finding the simple fact that the barrel rolled out of the window was evidence, in and of itself, of negligence on the part of someone. The thing, the barrel falling out of the flour merchant’s window, speaks for itself of negligence on the part of the flour merchant’s company.

The res ipsa concept has direct applicability to medical malpractice cases. Often the defendants have vastly superior knowledge over the injured plaintiff as to how the injury occurred. An example of such is a surgical instrument left in a patient after operation.

The classic New Jersey case along this line is Anderson v. Somberg, 67 N.J. 291 (1975). In Anderson, the tip of a surgical instrument similar to a forceps, called a rongeur, broke off during and became imbedded in a patient’s spine. The plaintiff sued the surgeon, the hospital, the manufacturer and the distributor of the defective instrument. All of the defendants blamed each other. The jury found for the defendants. The case was appealed, eventually making its way to the New Jersey Supreme Court.

The New Jersey Supreme Court sent the case back down for retrial, stating the jury was wrongly instructed. It was obvious to the Court that at least one of the defendants had to be responsible. The injured patient was under general anesthesia and could not have contributed to his injury. The Supreme Court went even further and held that, in a case such as this one, the burden of proof shifts to the defendants. No defendant can be dismissed from the case until each defendant comes forward and proves that he was not the culpable party. The plaintiff must recover a verdict from at least one defendant. This burden shift is now well-entrenched in New Jersey medical malpractice law and is termed the Anderson doctrine.

When a dog bites someone while that person is in or on a public place or lawfully in or on private property, either by express or implied permission, the dog’s owner is liable for any damages sustained from the bite regardless of the viciousness of the dog. This applies even if the victim is lawfully on the property of the dog’s owner. Although many dog owners refuse to admit it, all dogs have a potential for biting. Public policy requires that the dog’s owner should bear the responsibility in the unfortunate event that the dog bites another person.

The enactment of the “Dog Bite Statute” did not impose “absolute liability” on the dog owner for any and all injuries sustained. Rather, the statute imposes “strict liability” on the owner subject to certain defenses and conditions. The principles of strict liability do not depend on actual negligence or intent to harm, but liability is imposed based on the breach of an absolute duty to make something safe. In the case of dogs, the owner has the absolute duty to make sure that others are protected from their dog, regardless of the dog’s propensity to bite.

The statute does not provide a definition of who qualifies as an owner. As a result, the courts are left to apply principles of statutory construction and must give words their ordinary meanings. The court will look at certain factors to determine who the owner is, such as: who bought and registered the dog, who shares in the burdens and benefits, and overall who holds themselves out to the world to be the dog’s owner.

The dog’s owner will not be strictly liable under the Dog Bite Statute if there was no “bite” inflicted on the individual; rather the injury came from some other contact with the dog. Additionally, if the dog is acting in self defense because the person is tormenting the dog, the “tormenter” may not call upon the dog’s owner to compensate for the resultant injuries. The court will analyze further possible exceptions and defenses on a case by case basis.

The Comparative Negligence Act works in conjunction with the Dog Bite Statute and imposes liability on an owner for an attack, regardless of whether the dog physically bites someone or not. The glaring difference is the defendant’s burden because under the Comparative Negligence Act, the defendant has the burden to prove that the plaintiff was unreasonable and voluntarily exposed him or herself to a known risk. If this burden is not satisfied, the plaintiff is entitled to recover for his or her injuries. In light of the Dog Bite Statute, the plaintiff must have known that the dog had a violent propensity or the plaintiff deliberately incited the dog to attack.

In furtherance of this principle, the owner of the dog can still be held strictly liable under the Comparative Negligence Act if the owner knew of the dog’s vicious propensity. Absent the owner’s knowledge, the defendant can be held liable under general negligence principles for failing to exercise reasonable care in controlling the dog.

Each case presents a unique set of facts and circumstances. If you ever find yourself to be the unfortunate victim of a dog bite, immediately contact an attorney as you may have a cause of action to recover for your injuries.

How many times have you been driving on a road, possibly coming to a red light, and are confronted with the decision to wave someone out in front of you or not? As New Jersey becomes more and more populated, there are more and more cars on the roads and highways. As this occurs, more and more drivers confront this situation every day.

What are you thinking of as you are confronted with this situation: the good deed you are doing or maybe how you are being a “good” Samaritan by letting the person go; or are you thinking about the foreseeability of your actions causing an accident or how you are acting to facilitate the flow of traffic? In New Jersey and in many states around the country, next time you are in this situation you may want to think about the foreseeability of your actions causing an accident and the consequences that come with waving that person on. You may even want to think twice about letting that person go or accepted the gesture to go.

A New Jersey Superior Court, in Thorne v. Miller, 317 N.J.Super. 554, held there is no affirmative duty to facilitate the “waved driver’s” course of passage, but by doing so, the “waving driver” assume a voluntary duty to act reasonably. As Justice Cardozo said, in Glanzer v. Shepard, 233 N.Y. 236, “one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” If the “waved driver” causes an accident, not only can the “waving driver” be held liable for the foreseeable injuries to the “waved driver”, but for any foreseeable injuries sustained by anyone as a result of the accident.

The court based its decision upon the traditional principles of New Jersey law, which common law duties of motorists are established. The court considered first whether there in fact was a duty then considered the scope of that duty. The court noted that the determination of whether a duty exists requires a complex analysis that weighs and balances related factors, including the foreseeability and severity of the underlying risk of harm, the ability for the individual to exercise care to prevent that harm, comparative interests and relationships of the parties, and the societal interests based on considerations of fairness and public policy. The court stated that where relevant behavior is easy to correct and consequential harm is serious it is fair to impose a duty. In determining the breadth of the duty, the court is to consider the totality of the circumstances, including but not limited to, the risk of harm and the practicality of preventing the harm.

The court found that a duty existed, since it was reasonably foreseeable that engaging in gestures to another driver to facilitate the flow of traffic can lead to an accident and the risk of harm from that accident is serious. Furthermore, the court found it reasonably foreseeable that the “waved driver” would rely on the gesture. The court also found that a “waving driver” may have the ability to easily act in a manner to exercise care to prevent the harm. Interestingly, the court felt it is easy for “waving drivers” to check if passage is safe and if unable to do so, the driver should not take on the responsibility of directing traffic. Lastly, the court felt that risk of careless gesturing is high when compared to the goal of accident prevention. For these reasons, the court held that if an operator of a car gestures to a motorist to facilitate the movement of traffic, the “waving driver” has the duty to do so with reasonable care, and may be subject to liability for foreseeable injuries.
The court noting that the imposition of the duty is not an automatic finding that the applicable standard of care was breached, nor is it a finding of negligence. There is a factual issue left for the jury as to what the gesture meant. The jury must determine if the gesture meant passage was safe in front of “waver’s vehicle” or passage was safe beyond the “waver’s vehicle.” Moreover, all the remaining elements of negligence must be met to prove a claim against the “waving driver.”

The answer is immediately. If any public entity may be responsible for your injuries or harm caused, the laws of New Jersey require you to put those entities on notice within ninety (90) days of the date of injury. If a notice is not sent within that time period, a claim for injuries may be forever barred. Some examples of public entities may include, but are certainly not limited to, schools, public parks, and hospitals.

This is very important for many reasons. Many people do not decide within the first three months after an injury whether they are going to sue the responsible party or parties, especially since in most cases, the statute of limitations runs two (2) years from the date of the accident. It is common for people to wait to see how the injury progresses before a decision is made. Also, similarly, when a loved one is lost due to the negligence of a doctor or hospital, the grieving process takes longer than three months. For these, in addition to a variety of other reasons, there are other issues to deal with after an injury or loss that precede a decision as to whether to hire an attorney to pursue the rights of the injured party.

With that in mind, when it comes to a situation where a public entity may be responsible, these decisions need to be made sooner, not later. Accordingly, if you have been injured, and think that a public entity may be responsible, you should immediately contact an attorney so that the proper notices can be filed to protect your interests. Also, if you know someone who has lost a loved one, and a public hospital may be responsible, please encourage them to face the legal issues, since a decision made later may be too late.

In sum, it is important to be legally advised in accidents involving the responsibility of public entities. Please contact an attorney so that your rights to be fully compensated are protected under these notice requirements.

With the increasing population in New Jersey, automobiles seem to be flooding the streets. With the growing number of cars comes the growing number of accidents. There are certain maneuvers that are more dangerous than others and as such, the driver must exercise an elevated degree of care. Common examples of such maneuvers are left and u-turns. Instead of the driver traveling in the direction of traffic, he or she is attempting to cross the path of traffic, which in turn increases the risk of harm.

In general, a person driving an automobile has the duty to exercise the degree of care that is commensurate with the activity. For example, a person driving the speed limit down the Garden State Parkway will generally have a lesser duty of care than someone attempting to make a left turn into oncoming traffic. The New Jersey Supreme Court has articulated that the standard of care of the reasonable person varies in relation to the risk of harm involved. A reasonable person will not exercise the same degree of care when handling an umbrella as when handling a sword.

New Jersey courts have held that a left and u-turn present an unusual hazard where the overall risk of harm is high because the vehicle is attempting to cross the path of an approaching vehicle. As a rule of the road, a driver must exercise great care and seek an opportune moment to make such a turn.

In addition to the court’s holdings, the Legislature has also recognized the unusual hazard in making these turns. And as a result, the Legislature has taken action to protect drivers and decrease the amount of accidents that occur because of drivers crossing the path of traffic without exercising proper care. Accordingly, the law prohibits making such a turn where the driver’s view is obstructed within a distance of 500 feet in either direction. Furthermore, such a turn is unlawful unless and until such movement can be made with safety. There are several other statutes that are applicable depending on where the attempted turn is taking place.

Stated otherwise, with respect to a left or u-type turn, a reasonably prudent person would seek an opportune moment for the turn and would exercise an increased amount of care in making the turn. Failure to exercise the degree of care constitutes negligence.

If you are behind the wheel and find yourself in a situation where you have to make either a left or u-turn across the path of other traffic make sure that when doing so the “coast is clear” and that you proceed with great caution.

On the other hand, if you are involved in an accident where the car was attempting to make a left or u-turn, be sure to consult with an attorney as the tortfeasor may be in violation of laws of the state of New Jersey.

This information is only a warning and not a complete one. Consult with a knowledgeable person if confronted with this problem.

Punitive damages are not an everyday occurrence in the world of tort law. However, they always seem to be big news when they are awarded. That is because punitive damages are designed to punish and make an example of the tortfeasor. In general, when a plaintiff succeeds in a lawsuit he or she will recover compensatory damages which represent the out of pocket expenses, such as medical bills, lost wages, as well as pain and suffering that the plaintiff has incurred. When punitive damages are awarded they are in addition to whatever compensatory damages the plaintiff receives.

Punitive damages are awarded because of aggravating circumstances surrounding the incident and are a tool that the court can use to penalize and discourage similar conduct in the future. However, punitive damages are not taken lightly and there is no requirement that the court award a plaintiff such damages. The plaintiff has the burden to prove by clear and convincing evidence that the harm suffered was the result of the defendant’s intentional acts or omissions and that the defendant acted with actual malice or a wanton and willful disregard for those who may foreseeably be harmed. There is no bright line rule for what constitutes clear and convincing evidence, but as a general rule the jury must be satisfied by more than a probability but less than 100%.

“Actual malice” is defined as an intentional wrongdoing in the sense of an evil-minded act. “Wanton and willful disregard” means a deliberate act or omission where the person knows that there is a high degree of probability of harm to another and a reckless disregard for the consequences.

However, a purely negligent act will not rise to the level required by the court. Something more than the commission of a tort is always required. With that said, the defendant does not have to recognize that his or her conduct is extremely dangerous as long as a “reasonable person” should know that the actions are sufficiently dangerous. This is because the defendant’s actions are not judged on a subjective basis. Rather, the jury will decide the degree of dangerousness objectively based on what a reasonable person would perceive the level of danger to be.

The Legislature has identified several factors that the court shall consider when determining whether punitive damages should be awarded. However, these are not the only factors that the court may consider.

1. The likelihood that serious harm would occur
2. The defendant’s awareness of the likelihood of serious harm
3. What the defendant did when he or she realized that harm was likely to occur
4. The length of time the conduct occurred or the concealment of it by the defendant

Once the court determines that punitive damages are appropriate, the next step is to determine the amount of damages to award. Again, the Legislature has set forth guidelines that the court shall follow in addition to any other relevant evidence from the particular case.

1. The profability to the defendant from the misconduct
2. When the misconduct was terminated, and
3. The defendant’s financial condition.

The court is not given free reign to award any amount of punitive damages that it sees fit. The plaintiff must first recover compensatory damages and the punitive damage award cannot exceed five times that amount or $350,000, whichever is greater. For example, if a plaintiff receives a $100,000 compensatory damage award, his or her punitive damage award cannot be more than $500,000.

This is provided as a basic overview of the concept of punitive damages. There are other issues that will factor into the court’s decision based on the specific circumstances surrounding each and every lawsuit.