Frequently Asked Questions
You have an interest in (1) your physical person, (2) your property and (3) certain aspects of your human dignity, such as your reputation, that are recognized and protected by the law. An injury to any of these protected interests, caused under circumstances in which the law will impose liability, is a tort.
Liability means that someone has wrongfully acted in such a way that a court will order that person to pay money damages to anyone injured by that person’s conduct.
People are expected to act reasonably. If someone acts unreasonably, that person is negligent. If someone has acted negligently and has caused an injury, that person has committed a tort. Questionable conduct is usually evaluated by a jury to determine if it is unreasonable. There are some circumstances in which the New Jersey Legislature or the New Jersey Courts have determined that certain conduct is, or is not, unreasonable — so that a jury does not have to make that determination. Negligence is the most common type of tort, and it is distinguished from intentional torts and strict liability torts.
Malpractice is negligence, or unreasonable conduct, by a professional, such as a doctor, a nurse, an engineer, a lawyer or an accountant. A jury may be capable of determining whether someone has acted reasonably on matters that are within most people’s common knowledge — for example, when someone is driving a car or maintaining property. However, juries cannot be expected to know what certain experts, like doctors or engineers, should do. In most malpractice lawsuits, expert witnesses must give opinions as to what the professional should have done, and a jury applies what it has learned from these experts to the facts of the case to determine whether the professional acted reasonably.
When someone has been injured by a commercial product, it is easier to look at the condition of the product as it was sold to determine what is wrong with it than it is to try to reconstruct where, in the design, manufacture or labeling of that product, the manufacturer acted negligently. This shift in focus from the reasonableness of the manufacturer’s actions to the condition of the product itself is known as product liability. In New Jersey, a product is defective if it is not fit, suitable or safe for its intended or foreseeable purpose. Ordinarily, an expert is needed to compare the product to industry standards and alternative available designs in order to help a jury to determine whether the product is defective.
Some other torts also are not evaluated by whether the defendant’s conduct is reasonable. Instead, the law looks at the end result of that conduct to determine whether liability should be imposed. For example, the owner of a dog may be strictly liable if the dog bites you, regardless of whether the owner acted reasonably in controlling the dog — so long as you did not provoke the dog and you were not trespassing. Some environmental torts also fall under strict liability.
If someone has taken deliberate action that results in an injury, such conduct is evaluated as to its intent rather than its reasonableness. Such torts are intentional because the action or the injury was intended rather than the inadvertent result of carelessness or negligence. Common intentional torts are assault, battery and libel. Intentional torts often have a shorter statute of limitations than negligence or strict liability, and many insurance policies will not cover intentional torts. An intentional tort may result in the award of punitive damages.
Sometimes, the law will protect certain persons or organizations by making them not liable for their negligence. This protection is an “immunity.” Immunities are discussed elsewhere on this website. If you are injured by a person or organization that is immune, that party is exempt from liability to you.
Persons who have been injured can sue for their pain and suffering, disability and the loss or limitation of the use of a body function. These are known as “non-economic damages,” as distinguished from “economic damages” like lost wages and medical bills. A “threshold” is the level of injury that you must suffer in order to sue for non-economic damages. This serves as an immunity for all injuries that do not meet the threshold. Only some defendants are protected from liability by a threshold. The two thresholds most often encountered in New Jersey are the “Limitation on Lawsuit” threshold that may affect lawsuits arising from motor vehicle accidents and the “Public Entity” threshold that affects lawsuits against government bodies.
If you are injured while working, you cannot sue your employer or co-employees. However, you can recover for some of your injuries through another New Jersey court system. This is the workers’ compensation system and it is discussed elsewhere on this website. You are entitled to medical treatment for your work-related injuries, temporary disability benefits and a money award to compensate you for the permanent loss of function that you sustain due to your injuries. Persons who are injured while at work can still sue anyone who caused their injuries — as long as that person is someone other than an employer or a co-worker. Such a lawsuit is called a “third-party action.”
If you have been injured under circumstances in which someone is liable to you, you can begin a lawsuit. A lawsuit is started by filing a complaint with the court. As the one bringing the lawsuit, you are the plaintiff. The complaint is then served upon the defendants, along with a summons that requires the defendants to respond to the lawsuit in order to avoid a default. Defendants typically turn the complaint over to their insurance companies, which hire lawyers to defend against the lawsuit. The defendants’ lawyers file answers to the complaint with the court, and the case proceeds through litigation.
Discovery is a fact-finding process that allows the attorneys for each party to a lawsuit to learn about the other’s claims, defenses and evidence before a cases comes to trial. There are a few reasons for this. The more that each side knows about the other side’s case, the better the case can be evaluated for settlement purposes. If the case does not settle, there will be no surprises and the trial will be fair. You are required to comply with legitimate discovery requests and the court may dismiss your lawsuit if you fail to do so. If you anticipate a problem with providing discovery or if you feel that certain facts should be privileged from disclosure, advise your attorney as soon as possible.
Five types of discovery are routinely used. First, you will answer written questions called interrogatories. Second, you may have to submit to a deposition, in which the defense attorney asks you questions in a session that is transcribed by a stenographic reporter. Third, you may be required to produce relevant documents, such as tax returns to substantiate a lost wage claim, or items, such as defective products or X-ray films, for inspection by the defense attorneys. Fourth, you may be required to sign authorizations so that the defense attorneys can get your medical or employment records or other relevant documents that are kept by someone else. Fifth, you may have to submit to a medical examination by a doctor of the defendant’s own choosing.
In an effort to settle cases before trial, personal injury cases are arbitrated in both the state and federal courts in New Jersey. An arbitration is an informal hearing in which an attorney chosen by the court holds a hearing in a conference room setting, listens to you testify and reads medical reports and other written information submitted on your behalf in lieu of testimony from live witnesses. The arbitrator then evaluates what a jury would award after a full trial. Each party to a lawsuit has 30 days to reject the award by payment of a fee to the court. If all parties accept the arbitrator’s award, your case settles on that basis, but if any party rejects the award, the case is listed for trial. In the New Jersey state courts, if a party rejects the award but does not do at least 20 percent better at trial, certain sanctions may be imposed.
Our experience with arbitrations in the New Jersey state courts has been disappointing. About 70 percent of the arbitration awards are rejected by the insurance companies for the defendants, with those insurance providers often offering the same amount of money to settle your case later — after they have earned interest on it. If you are a plaintiff, your presence and participation at the arbitration is required, however, in both the state and federal courts.
A different type of arbitration is used to resolve Uninsured and Underinsured Motorist claims (discussed elsewhere on this website). These arbitrations are generally held before three attorneys and are usually conducted at a lawyer’s office and, under some circumstances, may be binding upon the parties.
A motion is an application to a court to order that something be done. During trial, motions are made orally before the judge who is presiding over the case. Before trial, motions are made in writing on several weeks’ advance notice to the court and to all other attorneys involved in the case.
A judgment is the court’s resolution of a case, and it is distinguished from a settlement in which the parties resolve the case among themselves. Most judgments are based on a verdict returned by a jury after a trial. During a trial, the judge decides questions of law and the jury decides questions of fact. Juries apply the law, as instructed by the judge, to resolve disputes over facts. Sometimes, there is no significant dispute over the facts of a case, and a judge can decide whether the law permits the plaintiff to recover damages. Other times, there may be a significant dispute over the facts of the case, but, not withstanding that dispute, the defendant contends that an immunity applies or that a threshold has not been reached. The defendant may then make a motion asking that the court resolve the case summarily by issuing a summary judgement — that is, deciding the case without a trial.
Just as you must prove that the defendant acted wrongly in causing your injury, the defendant can claim that you also acted unreasonably in protecting yourself from the defendant’s wrongful act. If you slipped on something that the defendant should have cleaned up, for example, the defendant can argue that you should have seen what caused you to slip before you stepped on it. When a jury renders a verdict, it compares the wrongful act of the defendants with any alleged wrongful act on your part and apportions the liability among all of the parties in terms of percentages of fault. The allocation of negligence to you, the plaintiff, is comparative negligence. The amount of money that the jury awards you for your injury is reduced by the percentage of liability that the jury allocates to you. For example, if the jury finds that your injuries are worth $10,000, but that you are 20 percent responsible for the happening of the accident, you recover only $8,000. If the jury finds that you are 51 percent or more responsible for your own injuries, you do not recover anything from the defendant under New Jersey law. If there is more than one defendant, the jury will also compare the wrongful acts of all of the defendants. Each defendant will ordinarily pay only the percentage of damages for which the jury finds that person to be responsible, though there are some exceptions to this.