cbrady@stark-stark.com
609.895.7339
Carlia M. Brady, Shareholder, is a member of the Accident & Personal Injury Group. Prior to joining Stark & Stark, Ms. Brady served as a law clerk for The Honorable Travis L. Francis and The Honorable Martin Kravarik, Superior Court of Middlesex County. Ms. Brady was the chairperson of the Essex County Fee Arbitration Committee and the treasurer of the Asian Pacific American Lawyers’ Association of New Jersey.
New Jersey law permits a person to file an independent claim for emotional distress resulting from the shock of watching a loved one at the scene of an accident suffer or die, or from seeing efforts to revive her/him being unsuccessful. Portee v. Jaffee, 84 N.J. 88 (1980).
If the incident from which the emotional distress claim arose is due to a car accident, the “per injury” liability limits of the at-fault driver’s auto insurance policy will apply to provide coverage for said claim. Wolfe v. State Farm Ins. Co., 224 N.J. Super. 348 (App. Div. 1988). Further, since the emotional distress claim is independent from the loved one’s claim for damages, each claim will have separate “per injury” liability limits rather than share under the same “per injury” limits. Id.
In effect, a person need not fear that their injured loved will recover less from the at-fault driver’s insurance coverage should he/she wish to press the emotional distress claim.
Carlia Brady is a member of Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Brady.
When you select the “limitation on lawsuit” or “verbal” threshold on your auto insurance coverage, you have essentially limited your right to sue for non-economic losses arising from an auto accident, unless you suffer at least one of six types of injuries:
Thus, even if you suffer a significant permanent soft-tissue injury to your spine or joints, your case may still get dismissed. One way to overcome the threshold is to show, through expert testimony, extensive and consistent treatment through the day of trial.
When you choose the “Verbal Threshold” you have not only limited your right to sue, but you have also limited the right of your spouse and/or children to maintain a lawsuit as well. Fortunately, your election to limit your right to sue will not apply to your parents and/or grandchildren who live with you. Nor will your election apply to listed drivers who are not immediate family members.
Rather than limit your rights and those of your resident family members, elect the “no limitation on lawsuit” or “zero” threshold on your auto insurance coverage. The “zero” threshold permits you to sue for non-economic damages without limitation.
Carlia Brady is a member of Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Brady.
I am a co-chairperson of the New Jersey Association for Justice’s Minority Concerns Committee. NJAJ is a 2,000 attorney strong organization dedicated to serving New Jersey’s families by working to preserve and strengthen the laws that protect them. As a chairperson of the Minority Concerns Committee, I implemented the Outreach Program which is designed to increase NJAJ’s diversity membership and leadership.
As a co-chairperson of the Outreach Program, I recently held a summit meeting and invited delegates from all of New Jersey’s minority/specialty bar associations. The meeting covered issues such as determining the minority/specialty bar associations’ membership needs, discussion of joint educational programs and finding minority/female talent to serve as NJAJ leaders and educational speakers. As a result of these efforts, NJAJ now offers a discount to members of these minority/specialty bar associations for certain educational seminars. Further, NJAJ is about to launch a “listserve” (an on-line real-time instant message platform) made up of delegates from NJAJ and these minority/specialty bar associations. In this way, open lines of communication are maintained and greater cooperation can be achieved between the organizations.
I strive to increase NJAJ’s diversity membership and leadership through the Outreach Program so that New Jersey’s attorneys can provide better representation and protection to New Jersey’s diverse families.
Carlia Brady is a member of Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Brady.
Volunteer fire fighters who utilize a vehicle that is not owned by the fire department to respond to an emergency call are not covered under the fire department’s insurance coverage unless the policy specifically states that it provides coverage for volunteer employees who use “commandeered” or their own personal vehicles.
Thus, unwittingly, volunteer fire fighters who utilize their own personal vehicles in response to emergency calls will likely be subject to the limited coverage of their own personal auto insurance coverage. This may result in limited insurance protection in case of catastrophic injuries during a motor vehicle accident.
If you are a volunteer fire fighter, be sure to obtain the highest possible limits of auto insurance coverage to protect yourself in case the fire department’s insurance policy does not provide coverage when you are utilizing a “commandeered” or your own personal vehicle. Alternatively, if an accident has already occurred, retain an attorney immediately to review the fire department’s insurance policy to determine whether insurance coverage may be had.
In New Jersey, the owner of a dog that bites someone is directly responsible for the injuries it causes. Additionally in New Jersey, a person that does not own the dog, but merely harbors it on its property (such as a landlord or animal shelter), could also be liable when it knew of the dog's possible dangerous behavior. Proof of dangerous behavior includes that the dog had jumped for, growled at or showed it's teeth to strangers. Therefore, a prior bite is not necessary in order for the courts to find that a dog has "dangerous behaviors."
In addition, the following may also constitute evidence of a dog's dangerous behavior: the dog is being confined away from other animals and people; the dog is undergoing rehabilitation with a trainer who is experience and skilled in handling aggressive dogs; and the dog exhibits fearful behavior. In the appropriate case, a canine behavior expert may be retained to investigate the evidence and assess the dog's behavior. The canine expert may testify whether a god is aggressive, as well as whether "fearful" dogs can turn aggressive towards strangers. This expert testimony may also constitute additional and compelling evidence of the dog's dangerous behavior.
In conclusion, even though a dog has never bitten anyone before, a viable claim may still be lodged against a person who does not own the dog but merely keeps it on it's property if there exists other evidence of the dog's aggressive behavior.
If you, or someone you know, has been injured due to a dog bite, feel free to contact me here in my firm’s Lawrenceville, New Jersey office for a free consultation to see if you are entitled to monetary compensation for your injures.
While a jury requires solid proof of fault on the part of the wrongdoer, as well as credible evidence of damages, letting the jury know that you are an honest and good person will also go far in maximizing any money award.
First, credibility is key. Since to be human is to err and be imperfect, there will always be issues that can cloud the waters of an otherwise clear case. Rather than letting potentially damaging evidence come out for the first time during the defense attorney’s cross-examination, handle the issue up front during direct examination. For a jury, as it is for any of us, an honest person (albeit a person with life issues) can be forgiven. A liar cannot.
Second, altruism will be rewarded. Testimony that, prior to the disabling accident, you volunteered time and donated money to good causes, particularly those that supply aid to the needy, shows the jury that you are truly selfless. This is an earmark of a good person. Further, testimony that, despite the disabling accident, you continue to help others shows the jury genuine altruism. For a jury, as it is for any of us, it is much easier to reward a person who, despite adversity, has the courage to continue to be a good person.
Finally, defense attorneys will do their homework to find evidence against your credibility. Thus, your actions should not belie your trial testimony and trial should not be the first time anyone learns of your honesty and good deeds. In the end, “what goes around comes around.”
The New Jersey Supreme Court recently enforced a waiver of liability agreement in the context of private health and fitness clubs in the case entitled Stelluto v. Caspenn Enterprises, 203 N.J. 286 (2010).
In that case, the plaintiff joined a gym and signed the membership documents. Those documents, however, contained an exculpatory agreement, which released the health club from liability for all injuries arising from the use of equipment and participation in any class, as well as sudden and unforeseen malfunctioning of any equipment. Consequently, the plaintiff participated in a spin class and was injured when the handlebar of the bike that she was riding suddenly dislodged.
While exculpatory agreements are generally applied strictly, particularly in the context of consumer contracts, the Court justified its holding by finding that the plaintiff could have walked away and joined another gym. The Court also justified its holding by reasoning that in the context of recreational sporting activities, such as strenuous exercise, the participant assumes some of the risk of injury and, therefore, it is permissible to shift that risk from the fitness club operator to the patron.
Although the Supreme Court believes that its ruling in Stelluto will promote the salutary purpose of promoting private fitness clubs to offer activities and equipment so that patrons can participate in healthy exercise, what the Court has actually done is invite private health clubs to operate negligently and injure and maim it’s consumer-patrons.
Until (and unless) the Supreme Court revisits and reverses its ruling, all patrons of private health clubs should review the membership agreement documents in detail. If any waiver of liability is contained in these documents, then you should walk away and find another private health club or exercise at home. You should not allow a private health club to profit from its negligence because you have signed your rights away.
Mild traumatic brain injury is defined as traumatically induced physiological disruption of brain function as manifested by the loss of consciousness, memory loss, altered mental status (dazed, disoriented, or confused), OR a focal neurological deficit.
Often times, however, at the time of the injury we see no loss of consciousness, or a negative hospital evaluation, no documented complaints, and no contemporaneous injury or damage. Further, the diagnostic test results, such as X-rays, CT Scans, MRIs, and EEGs, are normal. So, how do we prove this “invisible” injury?
Notwithstanding the negative hospital findings and test results, the mildly brain injured person continues to experience some of the following symptoms:
In order to treat these symptoms (as well as prove the existence of this “invisible” injury), the brain injured person should obtain comprehensive evaluations performed by a medical doctor including a neurologist or neuro-psychiatrist. Further, to confirm and prove the existence of any cognitive deficiencies, neuro-psychological testing should be performed. Other objective diagnostic tests of the brain, such as PET and/or Spect scans, may also be obtained. Finally, appropriate referrals should be made to other specialists such as a neuro-opthomalogist or neuro-optomitrist (for vision problems) and an ontolaryngologist (for balance or dizziness problems).
While all of the treatment and diagnostic test records should always be collected and marshaled for litigation, “baseline” evidence should also be obtained. “Baseline” evidence is any information that reflects the injured person’s cognitive functioning before the traumatic injury. This includes school records, employment reviews, writing samples, etc. Further, credible lay witnesses, such as supervisors and/or co-workers, should be developed to testify at trial to the brain injured person’s cognitive functioning both before and after the trauma.
In additional to calling the treating physicians to testify at trial, other experts may also be retained to testify. These include a neuro-radiologist (a sub-specialist trained and focused on the diagnosis and characterization of the central and peripheral nervous system) and a vocational-economist (an expert with respect to future economic loss).
The gold standard for proving traumatically caused soft-tissue spinal injuries is showing the jury the abnormal findings on the MRI films. Nevertheless, showing the jury the normal findings also provides further proof that the abnormal findings were caused by trauma.
Spinal discs are soft cushions that rest between the bones of the spine, the vertebrae. These discs can bulge, which means the disc pouches out symmetrically. These discs can also herniate, which means the disc ruptures or protrudes out. Both conditions may be caused by trauma and may produce symptoms such as pain and/or limited movement.
In most instances, the defense will try to convince the jury that disc bulges and/or herniations are caused by the aging process or degeneration rather than trauma. Indications of degeneration on MRI films includes: Disc dessication (the disc has dried out), disc space narrowing, and osteophytes (bony outgrowth). Showing the jury on the MRI films that the discs are not dried out and have retained normal disc height spaces provides proof that no degeneration was occurring in the spine. Showing the jury that there are no osteophytes on the MRI films further shows the jury that degeneration was not occurring.
Therefore, even normal findings on MRI films provide the jury with relevant proof of traumatically-caused soft-tissue spinal injuries.
Many injured persons who suffer from permanent injuries resulting from an accident must continue to perform their daily functions in order to care for themselves and/or their families. However, these permanently injured persons must function with pain and perform tasks slowly or differently in order to compensate for pain.
Despite the presentation of objective medical evidence in the form of positive diagnostic test results and/or long-term treatment as proof of permanent injuries, defense attorneys will nevertheless argue to the jury that the injured person’s ability to perform daily functions shows that the injuries are minimal or temporary.
One of the ways to maximize an injured person’s pain and suffering recovery is to present credible witnesses during trial who can talk about their observations of the injured person’s pre and post accident functional disabilities. While the most credible witnesses in this regard are supervisors and co-workers, family members and friends (who usually provide care to the injured person) who are naturally most knowledgeable of the injured person’s functional limitations resulting from an accident. Further, jurors can certainly sympathize with family members and friends who are directly impacted by the injured person’s disabilities.
Therefore, presenting as many witnesses as possible who can talk to the jury about their observations of the injured person’s pre and post accident functional limitations will increase any recovery for the injured party.
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