apartment injuries in new jersey

6/19/09 5:05 PMApartment Injuries in New Jersey

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Kenneth Vercammen & AssociatesA Law Office with Experienced Attorneys for Your New Jersey Legal Needs

2053 Woodbridge Ave.

Edison NJ 08817732-572-0500

1-800-655-2977Personal Injury and Criminalon Weekends 732-261-4005

Princeton Area68 South Main St.

Cranbury, NJ 08512By Appointment OnlyToll Free 800-655-2977

Apartment Injuries in NewJersey

Kenneth Vercammen & Associates Law Office helps peopleinjured due to the negligence of others. We provide representationthroughout New Jersey. The insurance companies will not help.Don't give up! Our Law Office can provide experienced attorneyrepresentation if you are injured in an accident and suffer a SeriousInjury.

Sometimes, Tenants, visitors and delivery persons are injured in falldowns caused by holes in parking lots or trip in dimly lit areas.Tenants may be injured by failure to repair broken sidewalks.Sometimes people trip when an Apartment Complex fail to clean upbroken or fallen items. No one plans on being injured in anaccident, whether it is a fall down or other situation. Speak with apersonal injury attorney immediately to retain all your rights. TheApartment Complex are responsible for the maintenance of theirpremises which are used by the public. It is the duty of theApartment Complex to inspect and keep said premises in a safecondition and free from any and all pitfalls, obstacles or traps thatwould likely cause injury to persons lawfully thereon. It is furtherthe duty of the Apartment Complex to properly and adequatelyinspect, maintain and keep the premises free from danger to life,limb and property of persons lawfully and rightfully using same andto warn of any such dangers or hazards thereon. You may belawfully upon the premises as a business invitee in the exercise ofdue care on your part, and solely by reason of the omission, failureand default of the Apartment Complex, be caused to fall down Ifthe Apartment Complex did not perform their duty to plaintiff tomaintain the premises in a safe, suitable and proper condition, youmay be entitled to make a claim. If severely injured, you can retainan attorney to file a claim for damages, together with costs of suit.

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an attorney to file a claim for damages, together with costs of suit.Injured people can demand trial by jury.

WHAT TO TRY TO DO AT THE ACCIDENT SCENE IFINJURED

1. Stop . . . do not leave the scene of the accident. CALL THEAMBULANCE, tell them where the accident occurred and (ask formedical help if needed). 2. Notify the property manager or owner,if possible. Insist they observe where you fell. For example, if youfall on an icy sidewalk at an Apartment Complex, notify the thesuperindent or landlord. 3. Get names and addresses of all witnessesWitnesses will be a tremendous help to you in any subsequent courtaction if there is any question of liability involved. Get the namesand addresses of as many witnesses as possible. If they refuse toidentify themselves, jot down the license plate numbers of theirautomobiles. Do not discuss the accident with the witnesses. Do notgive the witnesses' names to anyone but the police, your attorney oryour insurance company.

4. While waiting for ambulance, write down- Accident InformationDate __ Time __ Location __ Weather __ Road conditions __Damage __

5. Summary of accident __

6. Diagram of accident location

7. Call an ambulance. If you have any reason to suspect you wereinjured in the accident, go to a hospital immediately or see aphysician promptly. You'll want it on record that you soughttreatment right away, not in a week or so.

8. Write down name of Police Officers, Department and BadgeNumber, Ambulance crew, etc.

9. Do not assign or accept blame for the accident. - The scene ofthe accident is not the place to determine fault. Discuss the accidentonly with the ambulance and medical personnel, your attorney andwith representatives of your insurance company. Give the otherparty only your name and address. - Be cooperative with the police.

10. Have immediate photos taken of accident site.

11. Call a personal injury attorney immediately, not a real estateattorney. Call Kenneth A. Vercammen- Trial Attorney Attorney AtLaw (732) 572-0500 When you need help the most, we will beready to help you.

12. Never give a signed statement to the claims adjusterrepresenting the property owner's insurance company. The samegoes for a phone recording. They may be used against you in courtto deny your claim. Speak with your personal injury attorney first.

IF YOU HAVE BEEN INJURED IN A PARKING LOT DUE TONEGLIGENCE OF THE APARTMENT COMPLEX



NEGLIGENCE OF THE APARTMENT COMPLEX

It is important that you -- 1. DO NOT discuss your case withanyone except your doctors and attorney. 2. DO NOT make anystatements or give out any information. 3. DO NOT sign anystatements, reports, forms or papers of any kinds, . 4. DO NOTappear at police or other hearings without first consulting with yourattorney. INFORM YOUR ATTORNEY PROMPTLY of anynotice, request or summons to appear at any hearings. 5. Refer toyour attorney anyone who asks you to sign anything or to make anystatement or report or who seeks information concerning your case.6. Direct your doctor and other treatment providers not to furnish ordisclose any information concerning your case to any entity otherthan your insurance company without YOU AND YOURATTORNEY'S WRITTEN PERMISSION. 7. You may haveinsurance coverages such as Blue Cross, Blue Shield or MajorMedical which require prompt attention. However, be sure to haveyour treatment providers send bills immediately to all of yourinsurance companies. 8. Notify your attorney promptly of any newdevelopments. Small things may be important. Keep your attorneyinformed. 9. Maintain accurate records of all information and datapertaining to your case. 10. If you or any witnesses should move,be sure to notify your attorney of the new address.

Financial Recovery if injured while falling down

1. Kenneth Vercammen Helps Injured persons A person who isinjured as a result of the negligence of another person is what we inthe legal profession refer to as a personal injury claimant. In otherwords, they have been injured as a result of an accident, and nowwish to prosecute a claim against a negligent property owner andits insurance company. As the attorney of record, we will bebringing this action for the injured person. Therefore, I request thatall clients do as much as possible to cooperate and help in everyway. The purpose of this article is to describe the procedure that wemay follow and give you sufficient instructions to enable you toassist us in this undertaking. Needless to say, helping us is justanother way of helping yourself.

Sidewalk Fall down Liability Certain cases impose limited liabilityon commercial landowners for injuries to pedestrians on abuttingsidewalks. See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981).The duty to maintain the sidewalks flows from the economicbenefit that a commercial landowner receives from the abuttingsidewalk and from the landowner's ability to control the risk ofinjury. Id. at 158; Davis v. Pecoreno, 69 N.J. 1, 8 (1975) (holdinggas station owner liable for injury caused by packed snow and iceon abutting sidewalk because "traffic was directly beneficial to hisbusiness and enured to his economic benefit"). Several decisions ofthe Appellate Division delineate the appropriate limits of acommercial property owner's liability for off-premises injuries.Critical to those decisions is the premise that a landowner's liabilitymay extend beyond the premises for activities that directly benefitthe landowner. Thus, the owner of a shopping center was not liableto a woman who fell on a dirt path leading from the shopping



to a woman who fell on a dirt path leading from the shoppingcenter to a parking lot. See Chimiente v. Adam Corp., 221 N.J.Super. 580 (1987). In Chimiente, sidewalks provided a safealternative route. Id. at 584. The dirt path conferred no directeconomic benefit on the shopping center. Ibid. Similarly, ashopping center on Route 22 was not liable to a customer who wasstruck by a car while crossing the highway. See MacGrath, supra,256 N.J. Super. at 250-51, 253. A restaurant that provided parkingon the opposite side of the street, however, had a duty to providesafe passage from the lot to the restaurant. See Warrington v. Bird,204 N.J. Super. 611 (1985), certif. denied, 103 N.J. 473 (1986). Therestaurant knew that its patrons would cross the street, and deriveda direct economic benefit from their use of the path. Id. at 617.Finally, a caterer was found liable for the death of a businessinvitee who was killed crossing a county highway after parking hercar in a lot the caterer knew or should have known the inviteewould use. See Mulraney v. Auletto's Catering, 293 N.J. Super.315, certif. denied, _ N.J. _ (1996). Prominent among the reasonsfor the imposition of liability was the proposition that the use of thelot furthered the caterer's economic interest. Id. at 321. Critical tothe imposition of liability is a direct economic benefit to thecommercial landowner from the path taken by the injured party andthe absence of an alternative route.

1. Clients should provide my office with the following 1. Any bills2. All Hospital or doctor records in your possession 3. Photos ofscars, cuts, bruises 4. Photos of damage to your clothes andproperty 5. Photos of accident site 6. Major Med Card 7. Paystub iflost time from work

2. Attorney- Client Confidential Relationship First, I want to thankour clients for giving me the opportunity to assist them in theircase. I am a legal professional and I have great pride andconfidence in the legal services that I perform for clients during ourrelationship as attorney-client. If you have concerns about yourcase, please call my office. (732) 572-0500 We feel that this case isextremely important not only to you, but to this office as well. Thisis not simply a matter of obtaining just compensation for you,although that is very important; we take professional pride inguiding our clients carefully through difficult times to a satisfactoryconclusion of their cases.

3. Diary We want you to keep a diary of your experiences sinceyour accident. In addition to this daily record, we also ask you tostart describing a single day in the course of your life. In otherwords, describe what you do when you get up in the morning, thefirst thing you do after you go to work, what type of work andeffort you put into your employment, what activities you engage inafter work, etc. In other words, we need you to describe thechanges in your working life, your playing life, your life as ahusband or wife or child or parent. In your written description ofyour day, we would appreciate your explanation in the greatestdetail possible and in your own words how the accident andsubsequent injuries have affected your life, your personality, and



your outlook. Remember that suffering does not entail merephysical pain; suffering can be emotional and can be transmitted toyour family, friends, and co-workers. Keep a diary of all mattersconcerning this accident-no matter how trivial you think it may be.You should include notes on the treatments you receive, therapy,casts, appliances, hospitalization, change of doctors, change ofmedication, symptoms, recurrence, setbacks, disabilities andinconveniences. If you have any doubt about the propriety ofincluding some particular information, please call the office and letus assist you.

4. Record expenses You can also begin to set up a system forrecording the expenses incurred in conjunction with your claim inminute detail. Medical and legal expenses are a strong part of thevalue of your lawsuit, so good records of these expenses must bekept at all times. From time to time, however, there will beexpenses incurred that you must keep track of yourself. We ask youto make every effort to avoid any possible error or inaccuracy asjurors have a relentless reverence for the truth. Keep your canceledchecks and your list of expenses together, for we will need them ata later date. Your attorney will keep track of your legal expenses,which may include costs of filing, service of complaint,investigation, reports, depositions, witness fees, hospital/ medicalrecords, etc.

5. Investigation and Filing of Complaint Procedurally, thefollowing events occur in most personal injury cases. First, yourattorney must complete the investigation. This will involve thecollection of information from your physician, your employer, andour investigator. We will need your doctors to provide us withcopies of all bills, medical records and possibly a medical report.When we feel that we have sufficient information to form anopinion as to the financial extent of your damages, we willcommence negotiations with the opposition for a settlement. If theinsurance company will not make an adequate offer, then aComplaint and Case Information Statement is prepared by yourattorney. It is filed in the Superior Court, Law Division. Yourattorney then will prepare a summons and have the defendantspersonally served with the Summons and Complaint. Thedefendant, through their insurance company, must file an "Answer"within 35 days. Kenneth Vercammen's office generally does not filea Complaint until the treating doctor signs an affidavit of meritsetting forth why the injury is permanent and the diagnostic testsupon which the permanent injury is based. You will need to speakwith your doctor to ask if you have a permanent injury.

6. Interrogatory Questions and Discovery The Answer is followedby a request for written interrogatories. These are questions thatmust be answered by each party. The Superior Court has set upcertain "Form A" Interrogatory Questions which are contained inthe Rules of Court. Generally, written interrogatories are followedby the taking of depositions, which is recorded testimony givenunder oath by any person the opposition wishes to question. Thedeposition is just as important as the trial itself. In the event you



deposition is just as important as the trial itself. In the event youare deposed during the course of this action, you will receivedetailed instructions as to the procedure and will be required towatch a videotape. After taking depositions, the case will be setdown for an Arbitration. If the parties do not settle after theArbitration, the case will be given a trial call date. Altogether, theseprocedures may take from six months to several years, and yourpatience may be sorely tried during this time. However, it has beenour experience that clients who are forewarned have a much highertolerance level for the slowly turning wheels of justice.

7. Doctor/ Treatment It will help your case to tell us and yourdoctors about any injury or medical problems before or after youraccident. Good cases can be lost by the injured person concealingor forgetting an earlier or later injury or medical problem. Insurancecompanies keep a record of any and all claims against anyinsurance company. The insurance company is sure to find out ifyou have ever made a previous claim. Tell your doctors all of yourcomplaints. The doctor's records can only be as complete as whatyou have given. Keep track of all prescriptions and medicines takenand the bills. Also save all bottles or containers of medicine.

8. Bills Retain all bills which relate to your damages, includingmedical expenses, hospital expenses, drugs and medicines, therapy,appliances, and anything needed to assist in your recovery. Ifpossible, pay these bills by check or money order, so that acomplete record may be kept. If this is not possible, be certain toobtain a complete receipt with the bill heading on it, to indicatewhere the receipt came from and the party issuing it.

9. Evidence Be certain to keep anything that comes into yourpossession which might be used as evidence in your case, such asshoes, clothing, glasses, photographs, defective machinery,defective parts, foreign substances which may have been a factor inyour accident, etc. Be sure to let the office know that you havethese items in your possession.

10. Photographs Take photographs of all motor vehicles, accidentsite, etc., that may be connected--directly or indirectly--with youraccident. Again, be sure to let the office know that you have suchphotographs.

11 Keep your attorney advised Keep this office advised at all timeswith respect to changes in address, important changes in medicaltreatment, termination of treatment, termination of employment,resumption of employment, or any other unusual change in yourlife.

12. Lost wages Keep a complete record of all lost wages. Obtain astatement from your company outlining the time you have lost, therate of salary you are paid, the hours you work per week, youraverage weekly salary, and any losses suffered as a result of thisaccident. Where possible, also obtain other types of evidence suchas ledger sheets, copies of time cards, canceled checks, check stubs,vouchers, pay slips, etc.



vouchers, pay slips, etc.

13. New information In the event that any new informationconcerning the evidence in this case comes to your attention, reportthis to the attorney immediately. This is particularly true in the caseof witnesses who have heretofore been unavailable.

14 Do not discuss the case The insurance company may telephoneyou and record the conversation or send an adjuster (investigator)who may carry a concealed tape recorder. You should not discussyour case with anyone.

Obviously, we cannot stress too strongly that you DO NOT discussthis matter with anyone but your attorney or immediate, trustedfamily. You should sign no documents without the consent of thisoffice. Remember that at all times you may be photographed andinvestigated by the opposition. If you follow the simple precautionswhich we have set out in your checklist, we feel that we will beable to obtain a fair and appropriate amount for your injuries. If youget any letters from anyone in connection with your case, mail orfax them to your attorney immediately.

15. Questioning If any person approaches you with respect to thisaccident without your attorney's permission, make complete notesregarding the incident. These notes should include the name andaddress of the party, a description of the person, and a narrativedescription of what was said or done. Under no circumstancesshould you answer any question(s). All questions should be referredto your attorney's office.

16. Investigation by Defendant Insurance Company Permit us toreiterate at this time that the opposition's insurance company will inall probability have a team of lawyers and investigators workingdiligently to counter your claim. During the course of theirinvestigation, it is quite possible that they may attempt to contactyou through various (and sometimes, devious) methods. Please donot make their jobs any easier for them by answering theirquestions.

We cannot emphasize too strongly that you should refrain at alltimes from discussing this matter with anyone--and that includesyour employer, your relatives, your neighbors, and even yourfriends. Of course, there are exceptions to this rule.

If there are friends or neighbors or relatives who know all of thefacts and circumstances surrounding the accident and can be ofassistance to you, then they should be referred to this office so thattheir natural sympathy can be channeled into an effective asset foryou.

Insurance companies pay money to claimants when they aresatisfied there are both liability and damages that support arecovery. They can be expected to thoroughly investigate the factsof the accident and any past injuries or claims. The insurancecompany will obtain copies of all of the claimant's past medical



company will obtain copies of all of the claimant's past medicalrecords.

The value of a case depends on the Permanent Injury, medicaltreatment and doctor's reports Undoubtedly, you have questions asto how much your case is worth. We are going to be frank: Thefact of the matter is there can be no answer to this question until wehave completed the investigation in your case. Once we completeour investigation, of course, we can make a determination as to theamount of the defendant's liability, if any, and even at that we willonly be at a starting point. After that, we must obtain all necessaryinformation concerning your lost wages, your disability, your partialdisability, your life changes, and your prognosis. You may restassured of one thing, however, and that is the fact that your casewill not be settled below its true value, that is the fair compensationfor the injuries you have received. You may also rest assured thatno settlement agreement will be entered into without your consent.

The following information is taken from the old model jury chargesdealing with fall downs by Apartment Complex tenants, visitors ordelivery persons. INVITEE - DEFINED AND GENERAL DUTYOWED An invitee is one who is permitted to enter or remain onland (or premises) for a purpose of the owner (or occupier). He/Sheenters by invitation, expressed or implied. The owner (or occupier)of the land (or premises) who by invitation, expressed or implied,induced persons to come upon his/her premises, is under a duty toexercise ordinary care to render the premises reasonably safe for thepurposes embraced in the invitation. Thus, he/she must exercisereasonable care for the invitee's safety. He/She must take such stepsas are reasonable and prudent to correct or give warning ofhazardous conditions or defects actually known to him/her (orhis/her employees), and of hazardous conditions or defects whichhe/she (or his/her employees) by the exercise of reasonable care,could discover. BUSINESS INVITEE FALL DOWNS: The basicduty of a proprietor of premises to which the public is invited forbusiness purposes of the proprietor is to exercise reasonable care tosee that one who enters his/her premises upon that invitation has areasonably safe place to do that which is within the scope of theinvitation. Notes:

(1) Business Invitee: The duty owed to a "business invitee" is nodifferent than the duty owed to other "invitees."

(2) Construction Defects, Intrinsic and Foreign Substances: Therules dealt with in this section and subsequent sections applymainly to those cases where injury is caused by transitoryconditions, such as falls due to foreign substances or defectsresulting from wear and tear or other deterioration of premiseswhich were originally constructed properly.

Where a hazardous condition is due to defective construction orconstruction not in accord with applicable standards it is notnecessary to prove that the owner or occupier had actual knowledgeof the defect or would have become aware of the defect had he/shepersonally made an inspection. In such cases the owner is liable for



personally made an inspection. In such cases the owner is liable forfailing to provide a safe place for the use of the invitee.

Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), thecourt distinguished between a risk due to the intrinsic quality of thematerial used (calling it an "intrinsic substance" case) and a riskdue to a foreign substance or extra-normal condition of thepremises. There the case was submitted to the jury on the theorythat the terrazzo floor was peculiarly liable to become slipper whenwet by water and that defendant should have taken precautionsagainst said risk. The court appears to reject defendant's contentionthat there be notice, direct or imputed by proof of adequateopportunity to discover the defective condition. 17 N.J. at 389.

It may be possible to reconcile this position with the requirement ofconstructive notice of an unsafe condition by saying that an ownerof premises is chargeable with knowledge of such hazards inconstruction as a reasonable inspection by an appropriate expertwould reveal. See: Restatement to Torts 2d, §343, Comment f, pp.217-218 (1965), saying that a proprietor is required to have superiorknowledge of the dangers incident to facilities furnished to invitees.

Alternatively, one can view these cases as within the category ofdefective or hazardous conditions created by defendant or by anindependent contractor for which defendant would be liable (seeintroductory note above).

Cases:

Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall onsticky, slimy substance in self-service cafeteria which inferably fellto the floor as an incident of defendant's mode of operation).

Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (tripover curbstone improperly illuminated).

Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip andfall on wet composition floor in store).

Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slipon smooth stairway in railroad station).

Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384,389 (App. Div. 1960) (fall over low wire fence separating grass plotfrom sidewalk).

Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App.Div. 1959) (fall over bumper block in parking lot).

Parmenter v. Jarvis Drug Stor, Inc., 48 N.J. Super. 507, 510 (App.Div. 1957) (slip and fall on wet linoleum near entrance of store onrainy day).

Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300(App. Div. 1958) (inadequate lighting of parking lot of supermarket,fall over unknown object).



fall over unknown object).

Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super.551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobbyby workmen of independent contractor).

Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slipand fall on littered stairway at entrance to restaurant).

DUTY TO INSPECT OWED TO INVITEE The duty of an owner(or occupier) of land (or premises) to make the place reasonablysafe for the proper use of an invitee requires the owner or occupierto make reasonable inspection of the land (or premises) to discoverhazardous conditions. Cases:

Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showingmerchandise to employees of defendant fell down cellar stairwaypartially obscured by carton) NOTICE OF PARTICULARDANGER AS CONDITION OF LIABILITY If the jury membersfind that the land (or premises) was not in a reasonably safecondition, then, in order to recover, plaintiff must show either thatthe owner (or occupier) knew of the unsafe condition for a periodof time prior to plaintiff's injury sufficient to permit him/her in theexercise of reasonable care to have corrected it, or that thecondition had existed for a sufficient length of time prior toplaintiff's injury that in the exercise of reasonable care the owner(or occupier) should have discovered its existence and corrected it.Cases:

Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960),affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipperwaxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wetlinoleum near entrance of store on rainy day); Ratering v. Mele, 11N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on litteredstairway at entrance to restaurant).

Notes:

(1) The above charge is applicable to those cases where thedefendant is not at fault for the creation of the hazard of where thehazard is not to be reasonably anticipated as an incident ofdefendant's mode of operation. See: Maugeri v. Great Atlantic &Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).

(2) An employee's knowledge of the danger is imputed to his/heremployer, the owner of premises. Handelman v. Cox, 39 N.J. 95,104 (1963).

NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BYDEFENDANT If the jury members find that the land (or premises)was not in a reasonably safe condition and that the owner (oroccupier) or his/her agent, servant or employee created thatcondition through his/her own act or omission, then, in order forplaintiff to recover, it is not necessary for the jury members also to



plaintiff to recover, it is not necessary for the jury members also tofind that the owner (or occupier) had actual or constructive noticeof the particular unsafe condition.

Cases:

Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967)(slip and fall on greasy stairway caused by sawdust tracked onto thesteps by defendant's employees); Plaga v. Foltis, 88 N.J. Super. 209(App. Div. 1965) (slip and fall on fat in restaurant area traversed bybus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div.1959) (slip and fall in self-service market on wet floor nearvegetable bin). Also see: Thompson v. Giant Tiger Corp., 118N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc.,47 N.J. 426 (1956); Lewin v. Orbach's, Inc., 14 N.J. Super. 193(App. Div. 1951); Maugeri v. Great Atlantic & Pacific TeaCompany, 357 F.2d 202 (3rd Cir. 1966).

BURDEN OF GOING FORWARD

In Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430(1966), the court held that where string beans are sold from bins ona self-service basis there is a probability that some will fall or bedropped on the floor either by defendant's employees or bycustomers. Since plaintiff would not be in a position to provewhether a particular string bean was dropped by an employee oranother customer (or how long it was on the floor) a showing ofthis type of operation is sufficient to put the burden on thedefendant to come forward with proof that defendant did what wasreasonably necessary (made periodic inspections and clean-up) inorder to protect a customer against the risk of injury likely to begenerated by defendant's mode of operation. Presumably, however,the burden of proof remains on plaintiff to prove lack of reasonablecare on defendant's part. If defendant fails to produce evidence ofreasonable care, the jury may infer that the fault was probably his.See also: Bozza, supra, 42 N.J. at 359.

Whether or not defendant has furnished an invitee with areasonably safe place for his/her use may depend upon theobviousness of the condition claimed to be hazardous and thelikelihood that the invitee would realize the hazard and protecthimself/herself against it. Even though an unsafe condition may beobservable by an invitee the jury members may find that an owner(or occupier) of premises is negligent, nevertheless, in maintainingsaid condition when the condition presents an unreasonable hazardto invitees in the circumstances of a particular case. If the jurymembers find that defendant was negligent in maintaining an unsafecondition, even though the condition would be obvious to aninvitee, the fact that the condition was obvious should beconsidered by the jury members in determining whether the inviteewas contributorily negligent (a) in proceeding in the face of aknown hazard or (b) in the manner in which the invitee proceededin the face of a known hazard.



DISTRACTION OR FORGETFULNESS OF INVITEE Even if thejury members find that plaintiff knew of the existence of the unsafeor defective condition, or that the unsafe or defective condition wasso obvious that defendant had a reasonable basis to expect that aninvitee would realize its existence, plaintiff may still recover if thecircumstances or conditions are such that plaintiff's attention wouldbe distracted so that he/she would not realize or would forget thelocation or existence of the hazard or would fail to protecthimself/herself against it. Thus, even where a hazardous conditionis obvious the jury members must first determine whether in thecircumstances the defendant was negligent in permitting thecondition to exist. Mere lapse of memory or inattention or mentalabstraction at the critical moment is not an adequate excuse. Onewho is inattentive or forgetful of a known and obvious danger iscontributorily negligent unless there is some condition orcircumstance which would distract or divert the mind or attention ofa reasonably prudent person. Note:

In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), theemployee of a subcontractor was killed when a plank comprising acatwalk over a deep trench up-ended causing him to fall. The courtheld that even if the decedent had appreciated the danger that factby itself would not have barred recovery. The court said if thedanger was one which due care would not have avoided, due caremight, nevertheless, require notice of warning unless the dangerwas known or obvious. If the danger was created by a breach ofdefendant's duty of care, that negligence would not be dissipatedmerely because the decedent knew of the danger. Negligence wouldremain, but decedent's knowledge would affect the issue ofcontributory negligence. The issue would remain whether decedentacted as a reasonably prudent person in view of the known risk,either by incurring the known risk (by staying on the job), or by themanner in which he proceeded in the face of that risk.

In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966),affirmed o.b., 50 N.J. 250 (1967), the employee of a roofingcontractor, while carrying hot tar, tripped over a guide wiresupporting an air conditioning tower on a roof. The court held thateven if plaintiff had observed the wires or if they were so obviousthat he/she should have observed them, the question remainedwhether, considering the hazard and the work of the employee,he/she was entitled to more than mere knowledge of the existenceof the wires or whether he/she was entitled to a warning by havingthe wires flagged or painted in a contrasting color. This was a factfor the jury to determine. The jury must also determine whetherdefendant had reason to expect that the employee's attention wouldhave been distracted as he/she worked os that he/she would forgetthe location of a known hazard or fail to protect himself against it.The court also held the plaintiff's knowledge of the danger wouldnot alone bar his/her recovery, but this knowledge goes to the issueof contributory negligence.

In Ferrie v. D'Arc, 31 N.J. 92, 95 (1959), the court held that therewas no reasonable excuse for plaintiff's forgetfulness or inattention



to the fact that a railing was temporarily absent from her porch, asshe undertook to throw bones to her dog, and fell to the groundbecause of the absence of a railing she customarily leaned upon.The court held:

"When an injury results from forgetfulness or inattention to aknown danger, the obvious contributory negligence is not excusablein the absence of some condition or circumstance which woulddivert the mind or attention of an ordinarily prudent man. Merelapse of memory, or inattention or mental abstraction at the criticalmoment cannot be considered an adequate diversion. One who isinattentive to or forgetful of a known and obvious condition whichcontains a risk of injury is obvious condition which contains a riskof injury to guilty of contributory negligence as a matter of law,unless some diversion of the type referred to above is shown tohave existed at the time."

The following discussion in 2 Harper & James, Torts, §27.13, pp.1489 et seq., (1956), cited with approval in Zentz v. Toop, supra, 92N.J. Super. at 112, may be helpful in understanding the principlesinvolved in the above charges:

Once an occupier has learned of dangerous conditions on his/herpremises, a serious question arises as to whether he/she may--as amatter of law under all circumstances--discharge all further duty tohis/her invitees by simply giving them "a warning adequate toenable them to avoid the harm." A good many authorities, includingthe Restatement, take the position that he/she may. But thisproposition is a highly doubtful one both on principle and authority.The alternative would be a requirement of due care to make theconditions reasonably safe--a requirement which might well besatisfied by warning or obviousness in any given case, but whichwould not be so satisfied invariably.

* * *

1. Defendant's duty. People can hurt themselves on almost anycondition of the premises. That is certainly true of an ordinaryflight of stairs. But it takes more than this to make a conditionunreasonably dangerous. If people who are likely to encounter acondition may be expected to take perfectly good care themselveswithout further precautions, then the condition is not unreasonablydangerous because the likelihood of harm is slight. This is true ofthe flight of ordinary stairs in a usual place in the daylight. It isalso true of ordinary curbing along a sidewalk, doors or windows ina house, counters in a store, stones and slopes in a New Englandfield, and countless other things which are common in our everydayexperience. It may also be true of less common and obviousconditions which lurk in a place where visitors would expect to findsuch dangers. The ordinary person can use or encounter all of thesethings safely if he/she is fully aware of their presence at the time.And if they have no unusual features and are in a place wherehe/she would naturally look for them, he/she may be expected totake care of himself if they are plainly visible. In such cases it isenough if the condition is obvious, or is made obvious (e.g., by



enough if the condition is obvious, or is made obvious (e.g., byillumination). * * *

On the other hand, the fact that a condition is obvious--i.e., itwould be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to doso in two lines of cases. In one line of cases, people would not infact expect to find the condition where it is, or they are likely tohave their attention distracted as they approach it, or, for someother reason, they are in fact not likely to see it, though it could bereadily and safely avoided if they did. There may be negligence increating or maintaining such a condition even though it isphysically obvious; slight obstructions to travel on a sidewalk anunexpected step in a store aisle or between a passenger elevator andthe landing furnish examples. Under the circumstances of anyparticular case, an additional warning may, as a matter of fact,suffice to remove the danger, as where a customer, not hurried bycrowds or some emergency, and in possession of his/her facilities,is told to "watch his/her step" or "step up" at the appropriate time.When this is the case, the warning satisfies the requirement of duecare and is incompatible with defendant's negligence. Here again,plaintiff's recovery would be prevented by that fact no matter howcareful he/she was. But under ordinary negligence principles thequestion is properly one of fact for the jury except in the clearestsituations.

In the second line of cases the condition of danger is such that itcannot be encountered with reasonable safety even if the danger isknown and appreciated. An icy flight of stairs or sidewalk, aslippery floor, a defective crosswalk, or a walkway near an exposedhigh tension wire may furnish examples. So may the less dangerouskind of condition if surrounding circumstances are likely to forceplaintiff upon it, or if, for any other reason, his/her knowledge isnot likely to be a protection against danger. It is in these situationsthat the bit of the Restatement's "adequate warning" rule is felt.Here, if people are in fact likely to encounter the danger, the dutyof reasonable care to make conditions reasonably safe is notsatisfied by a simple warning; the probability of harm in spite ofsuch precaution is still unreasonably great. And the books are fullof cases in which defendants, owing such a duty, are held liable forcreating or maintaining a perfectly obvious danger of whichplaintiffs are fully aware. The Restatement, however, would denyliability here because the occupier need not invite visitors, and ifhe/she does, he/she may condition the invitation on any termshe/she chooses, so long as there is full disclosure of them. If theinvitee wishes to come on those terms, he/she assumes the risk.

The Restatement view is wrong in policy. The law has never freedlandownership or possession from all restrictions or obligationsimposed in the social interest. The possessor's duty to use caretowards those outside the land is of long standing. And manyobligations are imposed for the benefit of people who voluntarilycome upon the land. For the invitee, the occupier must makereasonable inspection and give warning of hidden perils. . . But this



should not be conclusive. Reasonable expectations may raise duties,but they should not always limit them. The gist of the matter isunreasonable probability of harm in fact. And when that is greatenough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to therisk of life and limb.

So far as authority goes, the orthodox theory is getting to be apretty feeble reed for defendants to lean on. It is still frequentlystated, though often by way of dictum. On the other hand, somecases have simply--though unostentatiously--broken with traditionand held defendant liable to an invitee in spite of his/herknowledge of the danger, when the danger was great enough andcould have been feasibly remedied. Other cases stress either thereasonable assumption of safety which the invitee may make or thelikelihood that his/her attention will be distracted, in order to cutdown the notion of what is obvious or the adequacy of warning.And the latter is often a jury question even under the Restatementrule. It is not surprising, then, that relatively few decisions havedepended on the Restatement rule alone for denying liability.

2. Contributory Negligence. . . But there are several situations inwhich a plaintiff will not be barred by contributory negligencealthough he/she encountered a known danger. . . For another, it isnot necessarily negligent for a plaintiff knowingly and deliberatelyto encounter a danger which it is negligent for defendant tomaintain. Thus a traveler may knowingly use a defective sidewalk,or a tenant a defective common stairway, without being negligent ifthe use was reasonable under all the circumstances.

Conclusion We appreciate that this is a great deal of information toabsorb. However, we are certain that our clients appreciate havingthis information from the outset. Each request and bit ofinformation given here represents an important part in recoveringfull value for your injury. Therefore, we respectfully request yourfull cooperation. If you have questions or concerns regarding theseinstructions, we encourage you to feel free to contact the office atany time. These situations show that the invitee will not always bebarred by his/her self-exposure to known dangers on the premises.

is important to clean your wounds. Additionally, you should seekmedical attention and advice regarding rabies treatment. If you arenot familiar with the dog or its owner, contact your local animalcontrol board and report the incident. Animal control officers maybe able to locate the dog and determine its rabies vaccination status.See your doctor if you have been injured by a dog or other animal.In addition, it may be important to contact us to help you protectyour legal rights. Please keep in mind that there are time limitswithin which you must commence suit. If someone hops your fence,trespasses on your land, and your dog bites him, you are not liable.However, New Jersey does impose strict liability if your dog bitessomeone if it is loose or if the person bitten was in a public placeor permitted on your property. NJSA 4:19-16 provides: "The ownerof any dog which shall bite a person while such person is on or in apublic place, or lawfully on or in a private place, including the



public place, or lawfully on or in a private place, including theproperty of the owner of the dog, shall be liable for such damagesas may be suffered by the person bitten, regardless of the formerviciousness of such dog or the owner's knowledge of suchviciousness. "For the purpose of the New Jersey Statute 4:19-16, aperson is lawfully upon the private property of such owner when heis on the property in the performance of any duty imposed uponhim by the laws of this state or the laws or postal regulations of theUnited States, or when he is on such property upon the invitation,express or implied, of the owner thereof." Thus, in New Jersey, adog does not get two bites. A person can even be liable if your dogor other pet or animal injures someone although not biting it. Beingjumped on or chased by a dog could be grounds for a civil liability.It is also strict liability if any of your dangerous animals injuresomeone, i.e. pet, buffalo or tiger.

For the purpose of this state law, a person is lawfully upon theprivate property of such owner when he/she is on the property inthe performance of any duty imposed upon him by the laws of thisstate or the laws or postal regulations of the United States, or whenhe/she is on such property upon the invitation, express or implied,of the owner thereof. In deciding whether the plaintiff was on or ina public place or lawfully on or in a private place, including theproperty of the defendant, you should note that anyone whosepresence is expressly or impliedly permitted on the property isentitled to the protection of the statute. The permission extends toall areas where the plaintiff may reasonably believe to be includedwithin its scope. DeRobertis v. Randazzo, 94 N.J. 144 (1983). In acase such as this where the defendant has raised the negligence ofthe plaintiff as a defense, the defendant has the burden of proof.This means that the defendant has the burden to prove plaintiff's"unreasonable and voluntary exposure to a known risk." This meansthat the plaintiff "knew" the dog had a propensity to bite eitherbecause of the dog's known viciousness or because of the plaintiff'sdeliberate acts intended to incite the animal. For example, one whobeats or torments a dog has no call upon the owner if in self-defense the dog bites back. Budai v. Teague, 212 N.J. Super. 522(Law Div. 1986); see also Dranow v. Kolmar, 92 N.J.L. 114, 116-17 (1918). In conclusion, a New Jersey dog does not get two bites.

The law imposes upon the landlord or owner of any commercial orbusiness property the duty to use reasonable care to see to it that thesidewalks and common areas are reasonably safe for residents andmembers of the public who are using them. In other words, the lawsays that the landlord or owner of a commercial property mustexercise reasonable care to see to it that the condition of hallwaysand sidewalks are reasonably safe and does not subject pedestriansto an unreasonable risk of harm. The concept of reasonable carerequires the landlord or owner of a commercial property to takeaction with regard to conditions within a reasonable period of timeafter the owner becomes aware of the dangerous condition or, in theexercise of reasonable care, should have become aware of it.Pedestrians have a right to be protected from animal attacks.



WHAT TO DO IF ATTACKED BY AN ANIMAL- AT THEACCIDENT SCENE

Compiled by Kenneth Vercammen, Esq. from various sources

1. Protect yourself from further attack, but try to stay at or near thescene CALL THE POLICE, tell them where the accident occurredand (ask for medical help if needed). 2. Get names, address of theanimal owner 3. Get names, address of the property owner

4. Get names and addresses of all witnesses Witnesses will be atremendous help to you in any subsequent court action if there isany question of liability involved. Get the names and addresses ofas many witnesses as possible.

5. While waiting for police, write down- Accident Information Date__ Time __ Location __

6. Summary of accident __

7. Diagram of accident

8. Call an ambulance. If you have any reason to suspect you wereinjured in the accident, go to a hospital immediately or see aphysician promptly. You'll want it on record that you soughttreatment right away, not in a week or so .

9. Obtain name of Police Officers, Department and Badge Number

10. - Be cooperative with the police.

11. Call a personal injury attorney, not a real estate attorney : CallKenneth A. Vercammen- Trial Attorney Attorney At Law (732)572-0500 When you need help the most, we will be ready to helpyou.

Financial Recovery for persons injured by animal attack

1. Kenneth Vercammen Helps Injured persons A person who isinjured as a result of the negligence of another person is what we inthe legal profession refer to as a personal injury claimant. In otherwords, they have been injured as a result of an accident, and nowwish to prosecute a claim against an opposing party. As theattorney of record, I will be bringing this action for the injuredperson. Therefore, I request that all clients do as much as possibleto cooperate and help in every way.

2. Clients should provide my office with the following 1. Any bills2. All Hospital or doctor records in your possession 3. Photos ofdamage to your clothes and property 4. Photos of accident site 5.Major Med Card 6. Paystub if lost time from work



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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injuryvictims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies,KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for manyinjured clients over the years I am proud to have worked on cases in various capacities, small and large.While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you casewill receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the “soft”approach we take toward our clients. I am proud of my compassionate staff as I am of the outstandingfinancial results they have achieved. For many years, I have watched them treat our clients with patience,dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law PracticeManagement. This was to help insure that each of our clients is always treated like a person -- not a file!We recognize that you are innocent victims and that you have placed your trust in us. Please understand thatwe understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we giveeach of our clients -- concentrate on your life, you family and your health. We will take care of everythingelse. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in usas your attorneys. Understand that we will always to do what we believe is best for you and your case.Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the mostdifficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law toobtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determineif we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what wehave proven to thousands of injured clients -- that you can feel comfortable and secure in the fact thatKENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to payyour medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of byan insurance company. If you don’t protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. Youneed a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as muchmoney as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlementand minimize the hassles of dealing with the insurance companies. You need an experienced and aggressiveNew Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personalinjury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would aninsurance company pay you what your claim is really worth? Lawsuits can be expensive, and many peopledo not have the money to pursue their claim. In every case, I advance all costs associated with pursuingyour case and I do not ask you for a penny until we recover from the other side.

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I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take yourcase to trial if that is what it takes to maximize the amount of money your recover for your personal injury.I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can bedifficult and time consuming. Once I take your case, you can stop worrying about dealing with theinsurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phonecalls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offersa special -- “For Settlement Only” -- program. This means that if we are unable to settle with the insurancecompany, we will not go any further -- unless you want us to. You have my personal assurance that therewill be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means: YOU DON’T OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ.He is a New Jersey trial attorney has devoted a substantial portion of his professional time to thepreparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week onpersonal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications oncriminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for theAmerican Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County BarAssociation. His articles have been published in noted publications included New Jersey Law Journal, ABALaw Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the AmericanBar Association Tort and Insurance Committee Newsletter.

Admitted In NJ, NY, PA, US Supreme Court and Federal District Court.

Contact the Law Office of Kenneth Vercammen & Associates, P.C.

at 732-572-0500for an appointment.

The Law Office cannot provide legal advice or answer legal questions over the phone or by email.Please call the Law office and schedule a confidential "in office" consultation.

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Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date).It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of KennethVercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specificallystated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.

Kenneth Vercammen & Associates Law Office helps people injured due to negligence careless persons, stores, and companies, car accident, lawsuit, case, litigation,personal injury, legal help, fall-down accident, slip and fall wrongful death, injured, pain & suffering, harm, consult, consultation, settle, award, rights, liability, sue,careless, negligent, emotional distress, Civil Suit, Claims, Crash, Fractures, Injured, Lawsuits, Medical Bills, Money Damages, Hurt, Negligence, Pain and Suffering,Reckless Driving, Slip and Fall Down, Insurance , New Jersey Lawyer, New Jersey Attorney, New Jersey Lawyers, New Jersey Law Firm, New Jersey Legal Service, NewJersey attornies, New Jersey legal, New Jersey law, NJ Lawyer, NJ Attorney, NJ Attorneys, NJ Lawyers, NJ Law Firm, Middlesex County, Monmouth County, MercerCounty, Somerset County, Union County, Ocean County, Cranbury, East Brunswick, Edison, Highland Park, Old Bridge, Metuchen, Monroe, New Brunswick, NorthBrunswick, Perth Amboy, Piscataway, Plainsboro, Sayreville, South Brunswick, South Plainfield, South River, Spotswood, Woodbridge, Superior Court, attorny, attorney,attornee, attorneys, atorney, ahtorny, ahtorney, ahtornee, atornee, atorny, Layer, Lawer, Laywer, LawFirm

Last Revised January 8, 2009

© 2009 Kenneth Vercammen & Associates, P.C.

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