Trip and Fall in Supermarket and Stores

Kenneth Vercammen & Associates Law Office helps people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Don't give up! Our Law Office can provide experienced attorney representation if you are injured in an accident and suffer a Serious Injury. Sometimes, store customers are injured in fall downs caused by wet and slippery floors or failure by stores to clean up broken or fallen items. No one plans on being injured in an accident, whether it is a car accident, fall down or other situation. Speak with a personal injury attorney immediately to retain all your rights. The stores are responsible for the maintenance of their premises which are used by the public. It is the duty of the store to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon. It is further the duty of the store to properly and adequately inspect, maintain and keep the library premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the store, be caused to fall down If the store did not perform their duty to plaintiff to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury. The following information is taken from the old model jury charges dealing with fall downs by store customers: INVITEE - DEFINED AND GENERAL DUTY OWED An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner (or occupier). He/She enters 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 to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitees safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover. BUSINESS INVITEE FALL DOWNS: The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation. Notes: (1) Business Invitee: The duty owed to a business invitee is no different than the duty owed to other invitees. (2) Construction Defects, Intrinsic and Foreign Substances: The rules dealt with in this section and subsequent sections apply mainly to those cases where injury is caused by transitory conditions, such as falls due to foreign substances or defects resulting from wear and tear or other deterioration of premises which were originally constructed properly. Where a hazardous condition is due to defective construction or construction not in accord with applicable standards it is not necessary to prove that the owner or occupier had actual knowledge of the defect or would have become aware of the defect had he/she personally made an inspection. In such cases the owner is liable for failing to provide a safe place for the use of the invitee. Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a risk due to the intrinsic quality of the material used (calling it an intrinsic substance case) and a risk due to a foreign substance or extra-normal condition of the premises. There the case was submitted to the jury on the theory that the terrazzo floor was peculiarly liable to become slipper when wet by water and that defendant should have taken precautions against said risk. The court appears to reject defendants contention that there be notice, direct or mputed by proof of adequate opportunity to discover the defective condition. 17 N.J. at 389. It may be possible to reconcile this position with the requirement of constructive notice of an unsafe condition by saying that an owner of premises is chargeable with knowledge of such hazards in construction as a reasonable inspection by an appropriate expert would reveal. See: Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying that a proprietor is required to have superior knowledge of the dangers incident to facilities furnished to invitees. Alternatively, one can view these cases as within the category of defective or hazardous conditions created by defendant or by an independent contractor for which defendant would be liable (see introductory note above). Cases: Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky, slimy substance in self-service cafeteria which inferably fell to the floor as an incident of defendants mode of operation). Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated). Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store). Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on 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 plot from 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 Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy 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). Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobby by workmen of independent contractor). Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and 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 reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions. Cases: Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton) NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiffs injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiffs 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 slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant). Notes: (1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendants mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum). (2) An employees knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963). NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT If the jury members find that the land (or premises) was not in a reasonably safe condition and that the owner (or occupier) or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for the jury members also to find that the owner (or occupier) had actual or constructive notice of 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 the steps by defendants employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in self-service market on wet floor near vegetable bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbachs, Inc., 14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific Tea Company, 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 on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendants employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary (made periodic inspections and clean-up) in order to protect a customer against the risk of injury likely to be generated by defendants mode of operation. Presumably, however, the burden of proof remains on plaintiff to prove lack of reasonable care on defendants part. If defendant fails to produce evidence of reasonable 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 a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee the jury members may find that an owner (or occupier) of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If the jury members find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by the jury members in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard. DISTRACTION OR FORGETFULNESS OF INVITEE Even if the jury members find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiffs attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it. Thus, even where a hazardous condition is obvious the jury members must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent the jury members may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance which would distract or divert the mind or attention of a reasonably prudent person. Note: In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee of a subcontractor was killed when a plank comprising a catwalk over a deep trench up-ended causing him to fall. The court held that even if the decedent had appreciated the danger that fact by itself would not have barred recovery. The court said if the danger was one which due care would not have avoided, due care might, nevertheless, require notice of warning unless the danger was known or obvious. If the danger was created by a breach of defendants duty of care, that negligence would not be dissipated merely because the decedent knew of the danger.Negligence would remain, but decedents knowledge would affect the issue of contributory negligence. The issue would remain whether decedent acted as a reasonably prudent person in view of the known risk, either by incurring the known risk (by staying on the job), or by the manner 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 roofing contractor, while carrying hot tar, tripped over a guide wire supporting an air conditioning tower on a roof. The court held that even if plaintiff had observed the wires or if they were so obvious that he/she should have observed them, the question remained whether, considering the hazard and the work of the employee, he/she was entitled to more than mere knowledge of the existence of the wires or whether he/she was entitled to a warning by having the wires flagged or painted in a contrasting color. This was a fact for the jury to determine. The jury must also determine whether defendant had reason to expect that the employees attention would have been distracted as he/she worked or that he/she would forget the location of a known hazard or fail to protect himself against it. The court also held the plaintiffs knowledge of the danger would not alone bar his/her recovery, but this knowledge goes to the issue of contributory negligence. In Ferrie v. DArc, 31 N.J. 92, 95 (1959), the court held that there was no reasonable excuse for plaintiffs forgetfulness or inattention to the fact that a railing was temporarily absent from her porch, as she undertook to throw bones to her dog, and fell to the ground because of the absence of a railing she customarily leaned upon. The court held: When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is obvious condition which contains a risk of injury to guilty of contributory negligence as a matter of law, unless some diversion of the type referred to above is shown to have 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, 92 N.J. Super. at 112, may be helpful in understanding the principles involved in the above charges: Once an occupier has learned of dangerous conditions on his/her premises, a serious question arises as to whether he/she may--as a matter of law under all circumstances--discharge all further duty to his/her invitees by simply giving them a warning adequate to enable them to avoid the harm. A good many authorities, including the Restatement, take the position that he/she may. But this proposition is a highly doubtful one both on principle and authority. The alternative would be a requirement of due care to make the conditions reasonably safe--a requirement which might well be satisfied by warning or obviousness in any given case, but which would not be so satisfied invariably. * * * 1. Defendants duty. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things 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 where he/she would naturally look for them, he/she may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). * * * On the other hand, the fact that a condition is obvious--i.e., it would be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds 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 due care and is incompatible with defendants negligence. Here again, plaintiffs recovery would be prevented by thatfact no matter how careful he/she was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations. In the second line of cases the condition of danger is suchthat it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his/her knowledge is not likely to be a protection against danger. It is in these situations that the bit of the Restatements adequate warning rule is felt. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such precaution is still unreasonably great. And the books are full of cases in which defendants, owing such a duty, are held liable for creating or maintaining a perfectly obvious danger of which plaintiffs are fully aware. The Restatement, however, would deny liability here because the occupier need not invite visitors, and if he/she does, he/she may condition the invitation on any terms he/she chooses, so long as there is full disclosure of them. If the invitee wishes to come on those terms, he/she assumes the risk. The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessors duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable 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 is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb. So far as authority goes, the orthodox theory is getting to be a pretty feeble reed for defendants to lean on. It is still frequently stated, though often by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken with tradition and held defendant liable to an invitee in spite of his/her knowledge of the danger, when the danger was great enough and could have been feasibly remedied. Other cases stress either the reasonable assumption of safety which the invitee may make or the likelihood that his/her attention will be distracted, in order to cut down the notion of what is obvious or the adequacy of warning. And the latter is often a jury question even under the Restatement rule. It is not surprising, then, that relatively few decisions have depended on the Restatement rule alone for denying liability. 2. Contributory Negligence. . . But there are several situations in which a plaintiff will not be barred by contributory negligence although he/she encountered a known danger. . . For another, it is not necessarily negligent for a plaintiff knowingly and deliberately to encounter a danger which it is negligent for defendant to maintain. Thus a traveler may knowingly use a defective sidewalk, or a tenant a defective common stairway, without being negligent if the use was reasonable under all the circumstances. CONCLUSION These situations show that the invitee will not always be barred by his/her self-exposure to known dangers on the premises.

 

Trip and Fall Edited by Kenneth Vercammen, Esq. Sometimes, store customers are injured in fall downs caused by wet and slippery floors or failure by stores to clean up broken or fallen items. No one plans on being injured in an accident, whether it is a car accident, fall down or other situation. Speak with a personal injury attorney immediately to retain all your rights. The stores are responsible for the maintenance of their premises which are used by the public. It is the duty of the store to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon. It is further the duty of the store to properly and adequately inspect, maintain and keep the library premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the store, be caused to fall down If the store did not perform their duty to plaintiff to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury. The following information is taken from the old model jury charges dealing with fall downs by store customers: INVITEE - DEFINED AND GENERAL DUTY OWED An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner (or occupier). He/She enters 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 to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitees safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover. BUSINESS INVITEE FALL DOWNS: The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation. Notes: (1) Business Invitee: The duty owed to a business invitee is no different than the duty owed to other invitees. (2) Construction Defects, Intrinsic and Foreign Substances: The rules dealt with in this section and subsequent sections apply mainly to those cases where injury is caused by transitory conditions, such as falls due to foreign substances or defects resulting from wear and tear or other deterioration of premises which were originally constructed properly. Where a hazardous condition is due to defective construction or construction not in accord with applicable standards it is not necessary to prove that the owner or occupier had actual knowledge of the defect or would have become aware of the defect had he/she personally made an inspection. In such cases the owner is liable for failing to provide a safe place for the use of the invitee. Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a risk due to the intrinsic quality of the material used (calling it an intrinsic substance case) and a risk due to a foreign substance or extra-normal condition of the premises. There the case was submitted to the jury on the theory that the terrazzo floor was peculiarly liable to become slipper when wet by water and that defendant should have taken precautions against said risk. The court appears to reject defendants contention that there be notice, direct or mputed by proof of adequate opportunity to discover the defective condition. 17 N.J. at 389. It may be possible to reconcile this position with the requirement of constructive notice of an unsafe condition by saying that an owner of premises is chargeable with knowledge of such hazards in construction as a reasonable inspection by an appropriate expert would reveal. See: Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying that a proprietor is required to have superior knowledge of the dangers incident to facilities furnished to invitees. Alternatively, one can view these cases as within the category of defective or hazardous conditions created by defendant or by an independent contractor for which defendant would be liable (see introductory note above). Cases: Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky, slimy substance in self-service cafeteria which inferably fell to the floor as an incident of defendants mode of operation). Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated). Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store). Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on 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 plot from 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 Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy 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). Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobby by workmen of independent contractor). Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and 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 reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions. Cases: Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton) NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiffs injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiffs 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 slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant). Notes: (1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendants mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum). (2) An employees knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963). NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT If the jury members find that the land (or premises) was not in a reasonably safe condition and that the owner (or occupier) or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for the jury members also to find that the owner (or occupier) had actual or constructive notice of 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 the steps by defendants employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in self-service market on wet floor near vegetable bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbachs, Inc., 14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific Tea Company, 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 on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendants employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary (made periodic inspections and clean-up) in order to protect a customer against the risk of injury likely to be generated by defendants mode of operation. Presumably, however, the burden of proof remains on plaintiff to prove lack of reasonable care on defendants part. If defendant fails to produce evidence of reasonable 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 a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee the jury members may find that an owner (or occupier) of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If the jury members find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by the jury members in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard. DISTRACTION OR FORGETFULNESS OF INVITEE Even if the jury members find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiffs attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it. Thus, even where a hazardous condition is obvious the jury members must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent the jury members may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance which would distract or divert the mind or attention of a reasonably prudent person. Note: In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee of a subcontractor was killed when a plank comprising a catwalk over a deep trench up-ended causing him to fall. The court held that even if the decedent had appreciated the danger that fact by itself would not have barred recovery. The court said if the danger was one which due care would not have avoided, due care might, nevertheless, require notice of warning unless the danger was known or obvious. If the danger was created by a breach of defendants duty of care, that negligence would not be dissipated merely because the decedent knew of the danger.Negligence would remain, but decedents knowledge would affect the issue of contributory negligence. The issue would remain whether decedent acted as a reasonably prudent person in view of the known risk, either by incurring the known risk (by staying on the job), or by the manner 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 roofing contractor, while carrying hot tar, tripped over a guide wire supporting an air conditioning tower on a roof. The court held that even if plaintiff had observed the wires or if they were so obvious that he/she should have observed them, the question remained whether, considering the hazard and the work of the employee, he/she was entitled to more than mere knowledge of the existence of the wires or whether he/she was entitled to a warning by having the wires flagged or painted in a contrasting color. This was a fact for the jury to determine. The jury must also determine whether defendant had reason to expect that the employees attention would have been distracted as he/she worked or that he/she would forget the location of a known hazard or fail to protect himself against it. The court also held the plaintiffs knowledge of the danger would not alone bar his/her recovery, but this knowledge goes to the issue of contributory negligence. In Ferrie v. DArc, 31 N.J. 92, 95 (1959), the court held that there was no reasonable excuse for plaintiffs forgetfulness or inattention to the fact that a railing was temporarily absent from her porch, as she undertook to throw bones to her dog, and fell to the ground because of the absence of a railing she customarily leaned upon. The court held: When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is obvious condition which contains a risk of injury to guilty of contributory negligence as a matter of law, unless some diversion of the type referred to above is shown to have 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, 92 N.J. Super. at 112, may be helpful in understanding the principles involved in the above charges: Once an occupier has learned of dangerous conditions on his/her premises, a serious question arises as to whether he/she may--as a matter of law under all circumstances--discharge all further duty to his/her invitees by simply giving them a warning adequate to enable them to avoid the harm. A good many authorities, including the Restatement, take the position that he/she may. But this proposition is a highly doubtful one both on principle and authority. The alternative would be a requirement of due care to make the conditions reasonably safe--a requirement which might well be satisfied by warning or obviousness in any given case, but which would not be so satisfied invariably. * * * 1. Defendants duty. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things 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 where he/she would naturally look for them, he/she may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). * * * On the other hand, the fact that a condition is obvious--i.e., it would be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds 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 due care and is incompatible with defendants negligence. Here again, plaintiffs recovery would be prevented by thatfact no matter how careful he/she was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations. In the second line of cases the condition of danger is suchthat it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his/her knowledge is not likely to be a protection against danger. It is in these situations that the bit of the Restatements adequate warning rule is felt. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such precaution is still unreasonably great. And the books are full of cases in which defendants, owing such a duty, are held liable for creating or maintaining a perfectly obvious danger of which plaintiffs are fully aware. The Restatement, however, would deny liability here because the occupier need not invite visitors, and if he/she does, he/she may condition the invitation on any terms he/she chooses, so long as there is full disclosure of them. If the invitee wishes to come on those terms, he/she assumes the risk. The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessors duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable 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 is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb. So far as authority goes, the orthodox theory is getting to be a pretty feeble reed for defendants to lean on. It is still frequently stated, though often by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken with tradition and held defendant liable to an invitee in spite of his/her knowledge of the danger, when the danger was great enough and could have been feasibly remedied. Other cases stress either the reasonable assumption of safety which the invitee may make or the likelihood that his/her attention will be distracted, in order to cut down the notion of what is obvious or the adequacy of warning. And the latter is often a jury question even under the Restatement rule. It is not surprising, then, that relatively few decisions have depended on the Restatement rule alone for denying liability. 2. Contributory Negligence. . . But there are several situations in which a plaintiff will not be barred by contributory negligence although he/she encountered a known danger. . . For another, it is not necessarily negligent for a plaintiff knowingly and deliberately to encounter a danger which it is negligent for defendant to maintain. Thus a traveler may knowingly use a defective sidewalk, or a tenant a defective common stairway, without being negligent if the use was reasonable under all the circumstances. CONCLUSION These situations show that the invitee will not always be barred by his/her self-exposure to known dangers on the premises.

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims 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 many injured 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 case will 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 outstanding financial 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 Practice Management. 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 that we 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 give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as 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 most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you! Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH 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 pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont 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. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law. You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury 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 an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side. I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case 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 be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, 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 offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation. We handle personal injury cases on a contingency fee basis. This means: YOU DONT 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 the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings. Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter. Admitted In NJ, US Supreme Court and Federal District Court.

 

Trial of a Criminal Case in New Jersey

Kenneth Vercammen's Law office represents people charged with criminal offenses and disorderly offenses. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face high fines, jail, probation and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our website KennethVercammen.com provides information on criminal offenses. We can be retained to represent people. The following are the Criminal Rules of Court regarding criminal trials in New Jersey in the Superior Courts: RULE 3:14. PLACE OF TRIAL 3:14-1. Venue An offense shall be prosecuted in the county in which it was committed, except that (a) If it is uncertain in which one of 2 or more counties the offense has been committed or if an offense is committed in several counties prosecution may be had in any of such counties. (b) If a person dies in one county as a result of an offense committed in any other county or counties, the prosecution may be had in any of such counties. (c) Whenever the body of any person who died as a result of an offense is found in any county, prosecution may be had in such county, regardless of where the offense was committed. (d) Whenever a person dies within the jurisdiction of this State as a result of an offense committed outside the jurisdiction of this State, or dies outside the jurisdiction of this State as a result of an offense committed within the jurisdiction of this State, the prosecution shall be had in the county in which the death occurred or the offense was committed. (e) Prosecution for acts of treason against this State which were committed outside the jurisdiction of this State shall be had in any county designated by the Chief Justice. (f) Prosecutions for libel shall be had either in the county in which the publication was made or the county in which the libeled person resided at the time of the publication. (g) An accessory may be prosecuted as such either in the county in which the offense to which he or she is an accessory is triable or the county in which he or she became such accessory. (h) Any person who steals the property of another, outside this State, or receives such property knowing it to have been stolen, and brings it into this State, may be prosecuted in any county into or through which the stolen property is brought. (i) Prosecutions for acts of forgery, embezzlement, conversion or misappropriation may be had either in the county in which such offense was committed or in the county in which the offender last resided. (j) Prosecutions for desertion may be had either in the county in which the wife or any child resided at the time of the desertion or in the county in which the wife resides when the prosecution is begun. (k) The county of venue for purposes of trial of indictments returned by a State Grand Jury shall be designated by the Assignment Judge appointed to impanel and supervise the State Grand Jury or Grand Juries pursuant to R. 3:6-11(b). 3:14-2. Motion for Change of Venue or Foreign Jury A motion for change of venue may be made only by a defendant. A motion for trial by a foreign jury may be made by any party. Such motions shall be made to the judge assigned to try the case or to the Assignment Judge of the county in which the indictment was found or the accusation filed on notice to the other party or parties on such proofs as the court directs and shall be granted if the court finds that a fair and impartial trial cannot otherwise be had. 3:14-3. Foreign Juries; Order and Selection If a foreign jury is ordered, the order shall specify the number of jurors to be returned and a venire directed to the sheriff of the county from which such jury shall be taken, which shall be returnable to the court in the county in which the matter is to be tried. The jurors shall be selected in the same manner as the general panel of jurors is selected in the county from which they are taken. 3:14-4. Order for Change of Venue; Costs If a change of venue is ordered, the criminal division manager's office in which the indictment or accusation is pending shall transmit to the criminal division manager's office to which the matter is transferred all papers filed therein or duplicates thereof, and the prosecution shall continue in that county. The costs of trial shall be certified to the Assignment Judge of the county in which the indictment was found or the accusation was filed. RULE 3:15. JOINDER AND SEVERANCE 3:15-1. Trial of Indictments or Accusations Together (a) Permissible Joinder. The court may order 2 or more indictments or accusations tried together if the offenses and the defendants, if there are 2 or more, could have been joined in a single indictment or accusation. The procedure shall be the same as if the prosecution were under such single indictment or accusation. (b) Mandatory Joinder. Except as provided by R. 3:15-2(b), a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court. 3:15-2. Relief From Prejudicial Joinder (a) Motion by State Before Trial. If two or more defendants are to be jointly tried and the prosecuting attorney intends to introduce at trial a statement, confession or admission of one defendant involving any other defendant, the prosecuting attorney shall move before trial on notice to all defendants for a determination by the court as to whether such portion of the statement, confession, or admission involving such other defendant can be effectively deleted therefrom. The court shall direct the specific deletions to be made, or, if it finds that effective deletions cannot practically be made, it shall order separate trials of the defendants. Upon failure of the prosecuting attorney to so move before trial, the court may refuse to admit such statement, confession or admission into evidence at trial, or take such other action as the interest of justice requires. (b) Motion by Defendant and State. If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief. (c) Time. A motion for separate trial of counts of an indictment or accusation must be made pursuant to R. 3:10-2, unless the court, for good cause shown, enlarges the time. 3:15-3. Trial of Criminal Offenses and Lesser, Related Infractions (a) Joinder of Criminal Offense and Lesser Related Infraction. (1) Except as provided in paragraph (b), the court shall join any pending non-indictable complaint for trial with a criminal offense based on the same conduct or arising from the same episode. (2) Regardless of whether a jury sits as the finder of facts with respect to the criminal offense, and unless the complaint charges a disorderly persons offense or a petty disorderly persons offense that must be submitted to the jury in accordance with the provisions of N.J.S.A. 2C:1-8(e), the Superior Court judge shall sit as a municipal court judge on the complaint and shall render the verdict with respect to the complaint on the proofs adduced in the course of trial. (3) If evidence is held to be admissible with respect to the trial of the complaint but inadmissible with respect to the trial of the criminal offense, the court shall hear that evidence outside of the jury's presence and may, in its discretion, postpone such hearing until the jury has retired to deliberate. The court shall not render its verdict on the complaint until the jury has rendered its verdict or until the jury has been dismissed. (b) Relief From Joinder. If for any reason it appears that a defendant or the State is prejudiced by the joinder required by paragraph (a), the court may decline to join or may grant other appropriate relief. A defendant's request to avoid joinder shall constitute a waiver of any claim against twice being placed in jeopardy that would not have arisen had the defendant's request been denied. (c) Consequence of Failure to Join. In no event shall failure to join as required in paragraph (a) be deemed to constitute grounds for barring a subsequent prosecution of the complaint except as required by statute or by the Federal or State Constitutions. RULE 3:16. PRESENCE OF THE DEFENDANT (a) Pretrial. The defendant must be present for every scheduled event unless excused by the court for good cause shown. (b) At Trial or Post-conviction Proceedings. The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence. A corporation shall appear by its attorney for all purposes. The defendant's presence is not required at a reduction of sentence under R. 3:21-10 or, except as provided in R. 3:22-10, at a hearing on a petition for post conviction relief. RULE 3:18. MOTION FOR JUDGMENT OF ACQUITTAL 3:18-1. Motion Before Submission to Jury At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction. A defendant may offer evidence after denial of a motion for judgment of acquittal made at the close of the State's case without having reserved the right. 3:18-2. Motion After Discharge of Jury If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made, even if not earlier made pursuant to R. 3:18-1 or it may be renewed within 10 days after the jury is discharged or within such further time as the court fixes during the 10-day period. The court on such motion may set aside a verdict of guilty and order the entry of a judgment of acquittal and may so order if no verdict has been returned. RULE 3:19. VERDICT 3:19-1. Several Defendants or Counts; Written Verdict Sheets (a) Several Defendants or Counts. If there are 2 or more counts of an indictment or 2 or more defendants tried together, the jury may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed, specifying the counts on which it has agreed; the defendant or defendants may be tried again on the count or counts as to which it has not agreed. (b) Written Verdict Sheets. In the discretion of the court, a written verdict sheet may be submitted to the jury in conjunction with a general verdict to facilitate the determination of the grade of the offense under the Code of Criminal Justice or otherwise simplify the determination of a verdict when multiple charges are submitted to the jury. The verdict sheet shall be marked as a court exhibit and retained by the court pursuant to Rule 1:2-3. 3:19-2. Acquittal by Reason of Insanity If a defendant interposes the defense of insanity and is acquitted after trial on that ground, the verdict and judgment shall so state. The procedure for disposition of the defendant shall be as provided by N.J.S.A. 2C:4-8 and 2C:4-9 and by R. 4:74-7, except that in the case of defendants acquitted of murder by reason of insanity all hearings pursuant to R. 4:74-7(e) shall be in open court unless good cause is shown for a hearing in camera. RULE 3:20. NEW TRIAL 3:20-1. Trial by Court or Jury The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. If trial was by the judge without a jury, the judge may, on defendant's motion for a new trial, vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law. 3:20-2. Time for Making Motion A motion for a new trial based on the ground of newly-discovered evidence may be made at any time, but if an appeal is pending, the court may grant the motion only on remand of the case. A motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing. A motion for a new trial based on any other ground shall be made within 10 days after the verdict or finding of guilty, or within such further time as the court fixes during the 10-day period. CONCLUSION If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Don't rely on a real estate attorney, public defender or a family member who simply attended law school. When your life and job is on the line, hire the best attorney available. Kenneth Vercammen, Attorney at Law 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 TRIAL AND LITIGATION EXPERIENCE In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He appears in Courts throughout New Jersey several times each week on many personal injury matters, Criminal and Municipal/ traffic Court trials, Probate hearings, and contested administrative law hearings. Mr. Vercammen served as the Prosecutor for the Township of Cranbury, Middlesex County and was involved in trials on a weekly basis. He also argued all pre-trial motions and post-trial applications on behalf of the State of New Jersey. He has also served as a Special Acting Prosecutor in Woodbridge, Perth Amboy, Hightstown, Carteret, East Brunswick, Jamesburg, South Brunswick, South River and South Plainfield for conflict cases. Since 1989, he has personally handled hundreds of criminal and motor vehicle matters as a Prosecutor and now as defense counsel and has had substantial success. Previously, Mr. Vercammen was Public Defender for the Township of Edison and Borough of Metuchen and a Designated Counsel for the Middlesex County Public Defender's Office. He represented indigent individuals facing consequences of magnitude. He was in Court trying cases and making motions in difficult criminal and DWI matters. Every case he personally handled and prepared. His resume sets forth the numerous bar associations and activities which demonstrate his commitment to the legal profession and providing quality representation to clients. Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court) with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Department as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

 

Traumatic Brain Injury

Kenneth Vercammen & Associates Law Office helps people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Don't give up! Our Law Office can provide experienced attorney representation if you are injured in an accident and suffer a Brain Injury. Is it a Brain Injury ? Traumatic brain injury (TBI), traumatic injuries to the brain, also called intracranial injury, or simply head injury, occurs when a sudden trauma causes brain damage. TBI can result from a closed head injury or a penetrating head injury and is one of two subsets of acquired brain injury (ABI). The other subset is non-traumatic brain injury (e.g. stroke, meningitis, anoxia). Parts of the brain that can be damaged include the cerebral hemispheres, cerebellum, and brain stem (see brain damage). TBI can cause a host of physical, cognitive, emotional, and social effects. Symptoms of a TBI can be mild, moderate, or severe, depending on the extent of the damage to the brain. Outcome can be anything from complete recovery to permanent disability or death. See http://en.wikipedia.org/wiki/Traumatic_brain_injury The following happens in accident cases, both car accidents and fall downs. Financial Recovery for persons seriously injured in accidents 1. Kenneth Vercammen Helps Injured persons A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant. In other words, they have been injured as a result of an accident, and you now wish to prosecute a claim against an opposing party. As the attorney of record, I can bring an action for the injured person. Therefore, I request that all clients do as much as possible to cooperate and help in every way. The purpose of this article is to describe the procedure that we may follow and give you sufficient instructions to enable you to assist us in this undertaking. Needless to say, helping us is just another way of helping yourself. 2. Clients should provide my office with the following 1. Any bills 2. All Hospital or doctor records in your possession 3. Car Insurance Declaration Sheet if you were in a car accident 4. Car Insurance Policy if car accident 5. Photos of damage to any property 6. Photos of accident site 7. Major Medical Insurance Card 8. Paystub if lost time from work 3. Attorney- Client Confidential Relationship First, I want to thank our clients for giving me the opportunity to assist them in their case. I am a legal professional and I have great pride and confidence in the legal services that I perform for clients during our relationship as attorney-client. If you have concerns about your case, please call my office at (732) 572-0500. We feel that this case is extremely important-not only to you, but to this office as well. This is not simply a matter of obtaining just compensation for you, although that is very important. We take professional pride in guiding our clients carefully through difficult times to a satisfactory conclusion of their cases. 4. Submission of Bills to Insurance / Major Medical If you are in a car accident, you should submit your medical bills to your own car insurance company first. Your car insurance is required by New Jersey law to provide PIP (Personal Injury Protection) benefits under the No Fault Law. This means your car insurance company, not the careless driver, pay the majority of medical bills. If you do not own a car, but live with someone who owns a car, we can try to help you submit medical bills to their car insurance company. If this is not a car accident, submit all bills immediately to your major medical. Please provide car and major medical insurance information to each doctor, MRI facility and treatment provider. Please request they submit bills and attending physician reports to car insurance and major medical. There are now minimum deductibles under the PIP Law. There is an initial $250.00 deductible, and thereafter your car insurance company pays 80% of medical bills under a medical fee schedule established by the State Dept. of Insurance. Your primary treating doctor must also follow Care Path. Submit portions of bills the car insurance does not pay to your major medical carrier (ex- Blue Cross, Connecticut General). The Law Office of Kenneth Vercammen can provide a more detailed brochure explaining how car insurance works. Never give a signed statement to the claims adjuster representing the other drivers insurance company. The same goes for a phone recording. They may be used against you in court to deny your claim. Speak with your personal injury attorney first. WHILE YOUR PERSONAL INJURY CASE IS PENDING: It is important that you -- 1. DO NOT discuss your case with anyone except your doctors and attorney. 2. DO NOT make any statements or give out any information. 3. DO NOT sign any statements, reports, forms or papers of any kinds. 4. DO NOT appear at police or other hearings without first consulting with your attorney. INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to appear at any such hearings. 5. Refer to your attorney, anyone who asks you to sign anything or to make any statement or report or who seeks information concerning your case. 6. Direct your doctor and other treatment providers not to furnish or disclose any information concerning your case to any entity other than your insurance company without YOU AND YOUR ATTORNEYS WRITTEN PERMISSION. 7. You may have insurance coverage such as liability, collision, accident, Blue Cross, Blue Shield or Major Medical which require prompt attention. However, be sure to have your treatment providers send bills immediately to all of your insurance companies. 8. Notify your attorney promptly of any new developments. Small things may be important. Keep your attorney informed. 9. Maintain accurate records of all information and data pertaining to your case. 10. If you or any witnesses should move, be sure to notify your attorney of the new address. 5. Diary We want you to keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort you put into your employment, what activities you engage in after work, etc. In other words, we need you to describe the changes in your working life, your playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook. And remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family, friends, and co-workers. When you have completed this description, please return it to this office in the enclosed envelope. Keep a diary of all matters concerning 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 of medication, symptoms, recurrence, setbacks, disabilities and inconveniences. If you have any doubt about the propriety of including some particular information, please call the office and let us assist you. 6. Record expenses You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times. From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date. Your attorney will keep track of your legal expenses, which may include costs of filing, service of process, investigation, reports, depositions, witness fees, jury fees, etc. 7. Investigation and Filing of Civil Complaint in Superior Court Procedurally, the following events occur in most personal injury cases. First, your attorney must complete our investigation and file. This will involve the collection of information from your physician, your employer, and our investigator. We will need your Doctors to provide us with copies of all bills, medical records and possibly a medical report. When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement. If the insurance company will not make an adequate offer, then a Complaint and Case Information Statement is prepared by your attorney. It is filed in the Superior Court, Law Division. Your attorney then will prepare a summons and have the defendants personally served with the Summons and Complaint. The defendant, through their insurance company, must file an Answer within 35 days. 8. Interrogatory Questions and Discovery The Answer is followed by a request for written interrogatories. These are questions that must be answered by each party. The Superior Court has set up certain Form Interrogatories which are contained in the Rules of Court. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question. The deposition is just as important as the trial itself. In the event you are deposed during the course of this action, you will receive detailed instructions as to the procedure and will be requested to watch a videotape. After taking depositions, the case will be set down for an Arbitration. If the parties do not settle after the Arbitration, the case will be given a trial call date. Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice. 9. Doctor/ Treatment It will help your case to tell us and your doctors about any injury or medical problems before or after your accident. Good cases can be lost by the injured persons concealing or forgetting an earlier or later injury or medical problem. Insurance companies keep a record of any and all claims against any insurance company. The insurance company is sure to find out if you have ever made a previous claim. Tell your doctors all of your complaints. The doctors records can only be as complete as what you have given. Keep track of all prescriptions and medicines taken accompanied by the bills. Also save all bottles or containers of medicine. 10. Bills Retain all bills which relate to your damages, including medical expenses, hospital expenses, drugs and medicines, therapy, appliances, and anything needed to assist you in your recovery. If possible, pay these bills by check or money order, so that a complete record may be kept. If this is not possible, be certain to obtain a complete receipt with the bill heading on it, to indicate where the receipt came from and the party issuing it. 11. Evidence Be certain to keep anything that comes into your possession which might be used as evidence in your case, such as shoes, clothing, glasses, photographs, defective machinery, defective parts, foreign substances which may have been a factor in your accident, etc. Be sure to let the office know that you have these items in your possession. 12. Photographs Take photographs of all motor vehicles, accident site, etc., that may be connected directly or indirectly with your accident. Again, be sure to let the office know that you have such photographs. 13. Keep your attorney advised Keep this office advised at all times with respect to changes in address, important changes in medical treatment, termination of treatment, termination of employment, resumption of employment, or any other unusual change in your life. 14. Lost wages Keep a complete record of all lost wages. Obtain a statement from your company outlining the time you have lost, the rate of salary you are paid, the hours you work per week, your average weekly salary, and any losses suffered as a result of this accident. Where possible, also obtain other types of evidence such as ledger sheets, copies of time cards, canceled checks, check stubs, vouchers, pay slips, etc. 15. New information In the event that any new information concerning the evidence in this case comes to your attention, report this to the Attorney immediately. This is particularly true in the case of witnesses who have heretofore been unavailable. 16. Do not discuss the case The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone. Obviously, we cannot stress too strongly that you DO NOT discuss this matter with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately. 17. Questioning If any person approaches you with respect to this accident without your attorneys permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorneys office. 18. Investigation by Defendant Insurance Company Permit us to reiterate at this time that the oppositions insurance company will in all probability have a team of lawyers and investigators working diligently to counter your claim. During the course of their investigation, it is quite possible that they may attempt to contact you through various (and sometimes, devious) methods. Please do not make their jobs any easier for them by answering their questions. We cannot emphasize too strongly that you should refrain at all times from discussing this matter with anyone--and that includes your employer, your relatives, your neighbors, and even your friends. Of course, there are exceptions to this rule. If there are friends or neighbors or relatives who know all of the facts and circumstances surrounding the accident and can be of assistance to you, then they should be referred to this office so that their natural sympathy can be channeled into an effective asset for you. Insurance companies pay money to claimants when they are satisfied there are both liability and damages that support a recovery. They can be expected to thoroughly investigate the facts of the accident and any past injuries or claims. The insurance company will obtain copies of all of the claimants past medical records. 19. The value of a case depends on the Permanent Injury, medical treatment and doctors reports Undoubtedly, you have questions as to how much your case is worth. We are going to be frank: The fact of the matter is there can be no answer to this question until we have completed the investigation in your case. Once we complete our investigation, of course, we can make a determination as to the amount of the defendants liability, if any, and even at that we will only be at a starting point. After that, we must obtain all necessary information concerning your lost wages, your disability, your partial disability, your life changes, and your prognosis. You may rest assured of one thing, however, and that is the fact that your case will not be settled below its true value, that is the fair compensation for the injuries you have received. You may also rest assured that no settlement agreement will be entered into without your consent. Conclusion We appreciate that this is a great deal of information to absorb. We also appreciate that our requests for clients assistance have been numerous. However, we are certain that our clients appreciate having this information from the outset. Each request and bit of information given here represents an important part in recovering full value for your injury. Therefore, we respectfully request your full cooperation. If you have questions or concerns regarding these instructions, we encourage you to feel free to contact the office at any time. CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 for an appointment About Kenneth Vercammen: Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges. In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, matrimonial hearings and contested administrative law hearings. Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept. as a Probation Officer, and an Executive Assistant to Scranton District Magistrate Thomas Hart in Scranton, PA. KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 website: KennethVercammen.com

 

Train Accident What to Do After Being Injured in a Train Collision? Prominent lawyer Chris Movafagh recommends you do the following: You should follow the immediate recommendations of your medical supervisor. If you are planning on taking legal action against the railroad company following a train crash, you will need certified proof of any injuries sustained. The sooner you see a doctor following an accident the better– for yourself and for your case! You may be wondering what level of responsibility a railroad company has in the safety of its passengers. The answer may not be as clear-cut as you expect. There are often notices of claim requirements in injuries on Trains or Train Stations. https://www.movalegal.com/california-train-accident-lawyers/  NJ Transit and Path notice of claims must be severed with certain months . Most modern trains are required to have a “black box” installed somewhere in their locomotive. These boxes are recording devices that keep track of information relating to the train’s performance. They keep note of how fast the train is moving, its direction, even brake and horn use. These devices were originally designed for airplanes and are now used in almost all forms of public transportation. The information stored in the black box can be hugely helpful in determining if significant care and vigilance were taken. What Causes A Train Crash? A railroad-related accident can be caused by a variety of issues. Many of causes could find a railroad company at fault. Sometimes trains go through a mechanical failure with accidents being caused by something like a faulty breaking mechanism. This is usually due to poor maintenance on the part of the railroad company. Trains carrying heavy cargo may run into issues in slowing or stopping. This can often result in collision or derailments. Fatigue, intoxication, or general irresponsibility exhibited by train conductors has also been a known cause of railroad accidents. Outside of the train itself, the railroad company is expected to maintain all other aspects that could affect train safety. These include ensuring the maintenance of the tracks themselves. It also means ensuring that train-crossing areas are marked clearly and properly and that all crossing gates and lights are functioning at peak performance. If an automobile driver were to cause a collision as a result of unclear railway crossing signage, the railroad company would still be liable for all damages. Individuals need not be riding the train to be potentially owed damages by a railroad company. Many train accidents involve injuries to bystanders and pedestrians. These accidents may happen as a train comes in or leaves a station. Understanding Train Crash Damages If you’ve been injured in a train crash it is within your rights to sue the railroad company for damages. As mentioned previously, you will have to prove the railroad company was negligent in some way, and that this negligence helped to cause the accident. The railroad company will likely have its own set of lawyers, and you will need to seek someone with experience in the field to help support your claim. Railroad companies are large corporations, and will likely try to pay out as a little as possible. It is imperative to quickly seek legal counsel following a train crash, as evidence will and witnesses will need to be gathered quickly following the incident. If you have a good case against the railroad company you can sue for a variety of damages. If you have medical bills as a result of injuries caused by the train crash, you can sue for these costs. This can include future medical bills related to your injuries. You may be entitled to lost wages as a result of your injury. You may also be able to sue for loss, pain, disability or emotional distress. An experienced attorney can help calculate damages and seek the compensation that you deserve. Kenneth Vercammen & Associates Law Office helps people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Don't give up! Our Law Office can provide experienced attorney representation if you are injured. Our website www.njlaws.com provides information on civil cases we can be retained to represent people. WHAT TO DO IF INJURED WHILE A PASSENGER IN A Train - AT THE ACCIDENT SCENE Compiled by Kenneth Vercammen, Esq. from various sources 1. Stop . . . do not leave the scene of the accident. CALL 911, tell them where the accident occurred and ask for medical help if needed. 2. Get names, addresses, and info of all involved. 3. Get description and registration number and insurance information of all cars involved. If a car, have someone get License Plate Number __  4. Get names and addresses of all witnesses -Witnesses will be a tremendous help to you in any subsequent court action, if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down the license plate numbers of their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses names to anyone but the police, your attorney or your insurance company. 5. While waiting for police, write down- Accident Information Date __ Time __ Location __ No. of vehicles involved __ Weather __ Road conditions __ Damage __ Speed of the other car __ 6. Summary of accident __ 7. Diagram of accident 8. Call an ambulance. If you have any reason to suspect you were injured in the accident, go to a hospital immediately or see a physician promptly. You'll want it on record that you sought treatment right away -not in a week or so. 9. Name of Police Officers, Department and Badge Number 10. Seek hospital/ medical attention.   11. Call a personal injury attorney, not a real estate attorney: Call Kenneth A. Vercammen- Trial Attorney (732) 572-0500 When you need help the most, we will be ready to help you.

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