May 4, 2011
Rear End Collisions
There are generally two (2) requirements necessary in order to prevail for monetary damages in a pain and suffering accident case.
Firstly, someone else must be at fault. A good example of an accident where someone else is at fault is when one vehicle rear ends a second vehicle. Typical scenarios are when one vehicle is stopped in traffic, or for a red light, and an inattentive driver collides with a vehicle just ahead. Other typical situations where someone else is at fault is when a driver proceeds through a red light or stop sign and collides with another vehicle which has the right of way.
The second requirement necessary to prevail in a pain and suffering accident case are injuries that are causally related to the accident. Most times injuries can be easily determined on the scene by emergency first responders, and then in the emergency room and subsequently with treating physicians.
If someone else is at fault, or negligent, and the negligence is the cause of the injuries, then in most instances the injured person is entitled to monetary compensation for pain and suffering.
The determination as to who is at fault, or liability, is many times contested. Accidents at uncontrolled intersections, without traffic lights or stop signs, or conflicting eyewitness testimony as to how the accident occurred, can result in a contested case. In these situations, a determination must be made as to who is at fault, or liability, by a fact finder such as an arbitrator or jury.
In certain instances, injuries may be contested as not caused by the accident, or pre-existing. Pre-existing injuries may, however, be aggravated by an accident, and as such, are compensable.
A recent case which illustrates the above recently occurred in Monmouth County wherein a fifty eight (58) year old driver was struck in the rear when stopped in traffic on Route 36. This particular driver had a long prior history of pre-existing neck pain. The driver had prior chiropractic care up until the time of the accident, however the trauma to the prior neck injuries resulted in neck herniations.
Liability was clear in that the driver was hit from behind. The injuries were new and consisted of aggravation of pre-existing conditions with herniations and the driver was able to receive a $300,000.00 policy limit recovery from the at fault driver who rear ended the injured person.
Liability and injuries are usually the two (2) prime considerations in determining monetary compensation for pain and suffering accidents.
May 3, 2011
Traffic Fatality
In a strange case, a driver whose car hit and killed a man as he was removing a deer carcass from a highway agreed to a $500,000 settlement to settle a wrongful death suit in Middlesex County, NJ. The decedent had been driving along a single lane zone due to construction when he struck a deer along with another car. Both pulled over on the grass median of the highway and were trying to clear debris from their cars and roadway when hit by another car. The suit alleged that the negligent driver was going 65 mph in a 45 mph construction zone limit and failed to observe the two men in the roadway. If you or your loved one has been involved in a fatal accident, please seek immediate legal advice.
Premises Liability
A West Orange, NJ woman sued an apartment complex owner for alleged negligence in the maintenance of sidewalks when she slipped and fell on ice and snow. The plaintiff suffered a trimalleolar fracture of her right ankle that required open reduction surgery. The defense maintained that they adequately cleaned and cleared the sidewalks and was not aware that the area had melted and refroze causing the icy conditions. The jury found the commercial landlord and owner was the sole cause of the accident and awarded $457,000 for serious injuries to the plaintiff. If you or a family member has been injured in a slip and fall or premises liability accident, contact an attorney immediately.
April 8, 2011
DWI Temperature Probe Issue
The Appellate Division has recently heard and resolved a case on the following issue: whether blood alcohol concentration (BAC) results derived from an Alcotest 71110 MKIII-C (Alcotest) device are admissible against defendants in driving while intoxicated (DWI) prosecutions when the device has been calibrated with a Control Company, Inc. temperature probe, or thermometer, instead of the Ertco-Hart temperature probe as mandated by the decision in State v. Chun which outlined procedures for testing and validating the Alcotest machine. The Appellate Division ruled that the use of another manufacturer's temperature probe to calibrate the Alcotest machine does not alone compel exclusion of the test results and thus reverse the decision of the lower municipal court judge in excluding the test results in State v. Holland. The Court went on to qualify its decision by ruling that although the Alcotest machine has been found to be reliable, the State still bears the burden of demonstrating the proper working order of the device through the introduction of certain foundational documents. It shall be up to the defense to present evidence that contradict the validity of the documents to determine why the machine was not in proper working order. The bottom line, the Alcotest machine and temperature probe will continue to be used in DWI cases, but the defense challenge to the foundation documents challenging the reliability of the Alcotest shall continue to be argued.
April 5, 2011
Worker's Compensation
Workers' Compensation is a No Fault system. Unlike an automobile accident or negligence cases, the injured worker does not have to show that the employer was "at fault" in causing the injuries that he sustained during the course of his employment.
The injured worker need only show that his/her injuries and/or disease arose out of and in the course of his employment.
Once he meets his lower threshold he is entitled to three specific types of benefits.
Firstly, he is entitled to receive medical treatment made necessary by his/her injuries and/or disease. There is no co-pay and no deductibles. The medical treatment is paid for 100% by the employer. However, this medical treatment is controlled by the employer. All medical treatment resulting from a work related injury must be authorized by the employer or the Workers' Compensation carrier.
Secondly, the injured worker is entitled to temporary disability benefits for that period of time when the authorized treating physician believes that the injured worker is unable to work. These temporary disability benefits are equivalent to 70% of his/her salary up to a maximum rate, which is established by the State and which is equivalent to 70% of the State average weekly wage. For example, the State average weekly wage for the year 2009 was set at $1,031.28. This would entitle an injured worker to 70% of his/her salary or $773.00 of his/her salary if their salary was $1,031.28 or greater.
Finally, the injured worker is entitled to an award that would compensate him/her for their loss as a working unit based on a schedule of Disabilities and Benefits as set by the State. Different body parts are allocated with different values and calculated in weeks. For example, a hand is worth 245 weeks, an arm is 330 weeks, a leg is 315 weeks, partial total disability is based on 600 weeks. Partial total disability includes injuries to the head, neck, shoulders, back, hips, any internal injury or any two extremities.
The final award of disability would be based on a percentage of the body part involved. For example, a hand is worth 245 weeks. If Petitioner is awarded 10% of the hand his/her injury would be 24 ½ weeks at the permanent rate of the year in which the injury occurred. For example, in the year 2009, maximum weekly benefit for permanent disability was $206.00 per week. Therefore an award of 10% of the hand would be equivalent to 24 ½ weeks at $206.00 a week or $5,047.00. That dollar amount might be less than the same injury would be worth in a personal injury case.
However, the attorney's fees are limited and payable in accordance with the final Order Approving Settlement and the case will remain open for an additional two years from the date that Petitioner gets his/her final benefit check. In a negligence case, like an automobile accident or a medical malpractice case, once the case is resolved either by jury verdict or settlement, the case is over. Not in Workers' Compensation. The case remains open for the Petitioner to seek additional authorized medical treatment and/or additional monies if the medical conditions have significantly worsened.
March 30, 2011
Drunk Drivers
Juries in New Jersey continue to return significant awards to persons injured by drunk drivers, many times in the millions of dollars. These jury awards have been recovered not only against drunk drivers, but also bartenders, bars, taverns, as well as others responsible for serving alcohol such as homeowners and persons responsible for private parties.
Juries are most responsive to situations where a bartender serves a patron who is obviously intoxicated, and continues to serve such patron. Thereafter, the patron is permitted to leave the bar, and shortly later the intoxicated patron is involved in an automobile accident causing severe injury to an innocent person or persons.
Typically the intoxicated driver has a blood alcohol level in excess of that permitted by state statute, which proves intoxication. Eyewitness observation at the bar, and subsequent testimony as to the condition of the intoxicated patron at the bar, linked with service by the bartender, are important elements of proving the case.
Interestingly, bars, taverns, restaurants and other establishments that serve alcohol will, on occasion, call a cab for the intoxicated patron. Additionally, the establishment may hire a valet service which will be instructed not to give a key to a patron who is obviously intoxicated when calling for his or her car in the parking lot. Failure of the establishment to follow these and other procedures may also result in liability against those serving alcohol to obviously intoxicated patrons which results in personal injury.
Persons injured include not only drivers of other cars, but also pedestrians. Injuries involving drunk drivers are, unfortunately, many times very severe requiring extended hospitalizations, surgeries and long periods of recovery with permanent injuries. Plaintiffs' attorneys have been successful in recovering monies to compensate innocent victims injured by drunk drivers.
Proving a drunk driving case may involve expert testimony including toxicologists, accident reconstruction experts, security experts, medical experts and other experts necessary to prove the various elements of the case. Plaintiffs attorneys are well versed in the law involving drunk drivers, and in appropriate cases, recover significant monetary awards from insurance companies and/or juries for their clients.
If you or someone you know has sustained personal injury as a result of drunk driving accident, contact Tepper, Scherling & Berliner, LLC to discuss your legal rights.
March 14, 2011
Workers' Compensation - Claim for Pain & Suffering & Punitive Damages
Under New Jersey Law, the New Jersey Workers' Compensation Act specifically holds that an Employer can not be held liable for its negligence in causing a work place injury. The New Jersey Workers' Compensation Act provides that an exclusive remedy resides under a claim for Workers' Compensation benefits.
However, the Courts have carved out an exception to that general rule.
It has been held that when a jury determines that the Employer knew that an injury was substantially certain to occur, the Employer can be sued for negligence in the Superior Court, and the Plaintiff can be entitled to monetary damages, along with compensation for "pain and suffering".
It has recently been held in the matter of "Almanzar v. CNC Metal Products" that not only can the Employer be held responsible for ordinary monetary and compensable damages, but can also be held liable for punitive damages, if the jury also determines that not only was an Employer negligent but that it acted with a willful and wanted disregard for Plaintiff's safety.
February 28, 2011
CONSTRUCTION SITE INJURIES
A North Arlington man who lost the use of his arm in a construction accident settled his case for $2.7 million. The plaintiff was crushed between the boom of a backhoe and a dump truck while working on a water main project in Elmwood Park, NJ. The boom was inadvertently activated. The plaintiff lost movement in his dominant hand and arm due to the severe injuries. If you or someone you know has been seriously injured as a result of an construction site accident, please call Tepper, Scherling & Berliner, LLC to discuss your legal rights and remedies.
February 8, 2011
DRAM SHOP SUIT
A Bergen County jury held that a tavern must pay $839,000 to a man on a dram shop claim for injuries sustained as a passenger in a vehicle operated by an intoxicated driver. The jury found that the driver was "visibly intoxicated" and was negligently served alcohol by a local tavern in South Hackensack, NJ. The driver's blood alcohol was .157 percent about an hour after the accident which is twice the legal limit. Under NJ Dram Shop Act, if the tavern negligently serves a visibly intoxicated patron they may be held liable for injuries sustained to that person or innocent third parties as a result of an accident. If you or someone you know has been seriously injured as a result of an intoxicated driver, please call Tepper, Scherling & Berliner, LLC to discuss your legal rights and remedies.
CONSTRUCTION ACCIDENT
A former little league coach received a million dollar verdict for severe leg injuries he suffered in a fall while helping to install insulation in an announcer's booth at a local baseball field. The Coach was working with two other coaches in a booth attic when he stepped through an unsupported part of the ceiling and fell 10 feet into a bathroom sustaining serious fractures of his leg that required surgery. The suit alleged violations of construction law and safety regulations as well as defective equipment and lack of fall protection. If you or someone you know has been injured on a job site or as a result of faulty construction, please call Tepper, Scherling & Berliner, LLC to discuss your legal rights and remedies.
February 4, 2011
TEPLAW ALERT
We are once again alerting our clients to recently enacted laws and Court decisions that require you to make a very critical choice each time you renew your automobile insurance policy, or purchase a new policy.
Unless you specifically choose the "No Threshold" or "Zero Threshold" (which are the same), you will automatically be given a policy from your insurance company that may prevent you from suing for your pain and suffering.
We therefore continue to recommend that you choose the "No Threshold" or "Zero Threshold".
The "No Threshold" or "Zero Threshold" choice will allow you, or your family, to sue a negligent driver for any painful injury, and allow you, or your family, to recover for monetary damages for many of your losses.
Please be very careful to choose the "No Threshold" or "Zero Threshold" each time you insure any vehicle, or renew any policy, or purchase any new policy.
Please remember that you must properly complete the insurance selection form by choosing the "No Threshold" or "Zero Threshold".
Failure to complete the form, or even failure to return the form, may result in your insurance company automatically giving to you a policy that may prevent you from suing for monetary damages for your injuries, or injuries to members of your family.
You may bring this Memorandum with you to your insurance agent if you purchase a policy or renew in person, and request the "No Threshold" or "Zero Threshold", the right to sue for your injuries.
January 24, 2011
DNA EVIDENDCE
In a rare case and the first in New Jersey, convicted murderer Larry Peterson utilized DNA testing laws to prove he falsely convicted and imprisoned from 1989 to 2005 in Burlington County. In state and federal lawsuits, Mr. Petersen claimed his constitutional rights were violated and official misconduct took place to convict him. He settled his lawsuit for $1 million against the state attorney general. If you or someone you know has been falsely accused, prosecuted or imprisoned, you may have a right to a civil recovery in some limited circumstances. Contact the attorneys at Tepper, Scherling & Berliner, LLC to discuss your legal rights.
January 19, 2011
A recent case was decided by the New Jersey Workers’ Compensation Court awarding the widow of a 49 year old man who died as a result of asbestos exposure during the course of his employment.
A co-employee testified that they worked on heating pipes that were coated in a white “plaster like” substance which later was discovered to be asbestos. The dependant widow was awarded $3,500.00 in funeral benefits, $169,450.00 in back pay and $518,700.00 in front pay for a total of $691,650.00.
If a worker dies from a work related medical condition his dependants can claim a separate action for dependency benefits for the balance of the widow or widower’s life, or until he/she remarries. Dependant children are also entitled for an award for benefits under the New Jersey Workers’ Compensation Act.
January 10, 2011
CONSTRUCTION LAW
In a recent Essex County injury case, a worker was awarded $1.2M for serious injuries sustained as a result of a lack of fall protection devices such as harnesses or scaffolding. Construction sites are required to have mandatory fall protection as outlined by the Occupation Safety and Health Administration (OSHA) and allocates responsibility between the general contractor and sub-contractors for safety. If you or someone you know has been injured as a result of construction site accident, contact Tepper, Scherling & Berliner, LLC to discuss your legal rights.
WORKERS COMPENSATION LAW
This year marks the 100th anniversary of the New Jersey workers compensation program. There are more than 150,000 reported workplace injuries a year in New Jersey. To ensure expeditious medical care and compensation for workplace injuries, New Jersey maintains a highly innovative and technologically advanced system through the Division of Workers Compensation in the New Jersey Department of Labor and Workforce Development for reporting, managing and resolving workplace injury claims. If you or someone you know has been injured in the workplace, contact Tepper, Scherling & Berliner, LLC to discuss your legal rights.
