Personal Injury Law Journal

Stark & Stark

In December of 2010, Stark & Stark launched the Personal Injury Law Journal as a way to provide clients throughout the state of New Jersey with timely information, news alerts and commentary on recent case law. Our attorneys offer updates on a wide range of legal issues including motor vehicle accidents, wrongful death claims, birth injuries, medical malpractice claims and many more. In addition to written posts, the blog also features podcasts and video-podcasts, individual RSS feeds for each practice area and attorney author and information on upcoming speaking engagements and events.

Arthur Kravitz, Shareholder in Stark & Stark’s Workers’ Compensation Group, was quoted in the April 6, 2012 Lawyers.com article, The Privacy Dangers in Workers’ Comp. The article discusses the fact that when someone is injured at work, their privacy, in relation to their medical history and personal life, is often times invaded by insurance companies looking for evidence that can be used to deny their workers’ compensation claim.

Mr. Kravitz states, “What we’re seeing now are requests to rifle through records going back 10 or 20 years that often have no relevance to the claim. The second major privacy issue with workers’ compensation is the increasing use of social networks to investigate claimants. In some cases, insurers are even asking for the passwords to their claimants’ private Facebook accounts.”

You can read the full article online here.

Denise Mariani, of Stark & Stark’s Personal Injury Group, recently obtained a $250,000 jury verdict for Rosetta Martin of Trenton, New Jersey. Ms. Martin, a security guard at Home Depot, sued International Motor Freight of Newark after she was seriously injured in 2007 when a disgruntled IMF employee slammed his truck door on her right arm at the Home Depot Distribution Center in Cranbury, New Jersey.

An article in today’s Trentonian states, “After the jury found in favor of the plaintiff on Monday, Martin’s lawyer, Denise Mariani of the Lawrenceville-based law firm of Stark and Stark, issued a statement calling the verdict ‘fair in light of the serious injury’ Martin suffered. Mariani said the defense ‘tried to call (Martin) a liar, but the jury determined it was really the defense that was loose with the truth.’ The jury awarded Martin $200,000 for pain and suffering, $35,000 for medical expenses, and $15,000 for lost wages, said attorney J. Robert Bratman.”

On my way to work each day, I have to wait at a busy intersection to make a left hand turn. Often, while I am waiting at the light, I see drivers traveling by while holding a cell phone to their ear. I think we all have seen instances where drivers are distracted while speaking on a cell phone and yet drivers continue to ignore the law. The statute in New Jersey which allows a police officer to charge a motorist with the improper use of a cell phone while driving, is listed at N.J.S.A. 39:4-97.3. There has not been a flurry of opinions from our courts interpreting this statute, however, in an unpublished opinion titled State v. Malone, decided on July 1, 2011, our Appellate Division recently reversed a driver’s conviction for an alleged cell phone violation.

In Malone, our Appellate Division ruled that N.J.S.A. 39:4-97.3 does not limit the use of a hands-free telephone to listening because a motorist using a hands-free wireless telephone is also permitted to hold the wireless telephone in one hand while activating, deactivating or initiating a function of the telephone. The Appellate Court concluded that initiating a function of the hands-free wireless telephone includes driving; and it may be necessary to press more than one button to “activate, deactivate, or initiate a function of the telephone.”

The Appellate Court emphasized, other than in an emergency, a motorist may only engage in a conversation on a cell phone if the telephone is equipped with a hands-free device. The motorist may not hold the telephone in one hand while talking to, or listening to, the person on the other end of the phone. A motorist is also prohibited from holding the telephone to send a text message or electronic mail. The only circumstance in which a motorist is permitted to hold a wireless cell phone in one hand, with the other hand on the steering wheel, is when the motorist is activating, deactivating or initiating a function of the telephone, which includes answering the phone, ending the phone call or dialing a phone number.

Our Appellate Court pointed out that seven other states and the District of Columbia have enacted statutes that impose limits on the holding of a cell phone while driving. See Cal. Veh. Code Section 23123 (2011); Conn. Gen. Stat. Section 14-296aa (2011); Del. Code Ann. tit. 21, Section 4176c (2011); D.C. Code Section 50-1731.04; Md. Code Ann., Transp. Section 21-1124.2 (2011); N.J.S.A. 39:4-97.3; N.Y. Veh. & Traf. Law, Section 1225c (McKinney 2011); Or. Rev. Stat. Section 811.507 (2011); Wash. Rev. Code Section 46.61.667 (2010).

I believe in the near future additional states will enact laws to impose limits on the holding of a cell phone while driving. It shouldn’t take more accidents caused by distracted drivers holding cell phones to get legislators around the country to pay attention to this serious traffic safety issue.

Stark & Stark's Motorcycle Attorneys Chris Pyne, Joel Rosenberg, Carin O'Donnell and Deb Dunn will be at the 2011 Roar to the Shore in Wildwood, New Jersey. The rally will be held Thursday September 8, 2011 - Sunday September 11, 2011 at the Wildwood Convention Center and surrounding lots.

Come down and visit our booth for a chance to win a 2-night stay at The Tropicana Hotel & Casino in Atlantic City, New Jersey. Our motorcycle attorneys and staff will be here all weekend to answer questions about motorcycle insurance, what to do if you or someone you know has been injured in an accident, and safety tips for riders. 

In a prior blog entry, I discussed the New Jersey Supreme Court’s decision in Stelluti v. Casapenn Enterprises, LLC, case, where our NJ Supreme Court ruled that members of gyms and health clubs can be made to sign away their right to sue over injuries, except those caused by recklessness or gross neglect by the operators. In Stelluti, the Supreme Court wrote that “When a party enters into a signed, written contract, the party is presumed to understand and assent to its terms, unless fraudulent conduct is suspected.”

Now, in an unpublished opinion titled Allen v. LA Fitness International, which was decided on June 15,2011 by our Appellate Division, there the Court considered a case in which plaintiff Allen joined defendant LA Fitness International and signed an agreement for personal training sessions. Allen alleged simple negligence against defendant asserting that she suffered a shoulder injury that she sustained as a consequence of performing an unsafe exercise at the direction of a trainer who had failed to assess her condition and needs. Relying on Allen’s agreement to assume the risk of her activities with the personal trainer  and her release and waiver of claims based on negligence related to that activity, defendant filed a motion for a directed verdict which the trial court judge denied. The jury found defendant LA Fitness International negligent and awarded Allen $525,000. After defendant filed its notice of appeal, the Supreme Court of New Jersey issued its decision in the Stelluti case. Allen argued on appeal that her case is distinguishable from Stelluti because it involves a contract for a personal trainer. The Appellate Division disagreed with Allen and indicated that the holding in Stelluti is stated broadly to include “participation in instructed activity.” The Appellate Division ruled that Stelluti controls and requires reversal of the judgment and dismissal of Allen’s Complaint.

When I read the recent Allen decision, I thought back to Supreme Court Justice Barry Albin’s dissenting opinion in the Stelluti case in which he wrote, “Without the incentive to place safety over profits, the cost to the public will be an increase in the number of avoidable accidents in health clubs.”