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Do I Have a Personal Injury Claim?

Elements of a Personal Injury Lawsuit

Elements of a Personal Injury LawsuitAccidents happen, right? People rarely try to hurt you intentionally, and many mishaps don’t involve a callous indifference to others or reflect that a person simply didn’t care about the consequences of their actions. So how does the law treat those other everyday accidents? To recover damages, do you have to prove that the at-fault party was not only careless but also exhibited a clear disregard for the safety of others? In the American civil justice system, the answer is no.

What, then, must you prove in order to recover for personal injury or property damages stemming from an accident caused by another person? Most personal injury claims are based on a legal theory of negligence. To successfully recover compensation for negligence, you must prove the following elements:

  • Another person’s behavior fell short of the conduct reasonably expected of someone engaged in the same activity under the same circumstances. This element is commonly referred to as a “breach of the duty (or standard) of care;”
  • The breach caused an accident; and
  • As a result of the accident, you suffered actual losses (either physical injury, loss of property, or damage to property).

How does a person know what the expected duty of care should be? There are no specific laws setting forth what constitutes reasonable behavior in a given situation. Traditionally, “reasonable” is construed to be that type of conduct that would be engaged in by an “average person of ordinary prudence” under the same circumstances. As a practical matter, whether or not the defendant’s acts were reasonable is determined by the trier of fact—usually the jury—on a case-by-case basis. To ensure consistency of rulings, juries are required to follow the concept of stare decisis, which gives weight to prior rulings involving similar factual situations.

To establish the element of causation, you must show that the accident would not have happened had the defendant not breached the duty of care. You also must demonstrate that the accident and losses were reasonably foreseeable consequences of the defendant’s conduct.

Finally, you may recover only for uncompensated injuries you actually sustain. If your losses are covered by insurance, you cannot recover for them a second time. Furthermore, if property damage had no meaningful value, you have no right of recovery.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 or 877-HOGLAW1 to schedule an appointment. We are currently communicating with clients by phone, text message, or online videoconference. Evening and weekend consultations are available upon request.

Study Suggests Higher Accident Rate for Early Morning Students

Authorities Attribute Higher Rate to “Drowsy Driving”

Motorcycle Accidents Involving Roadway HazardsIn a report in the Journal of Clinical Sleep Medicine, researchers concluded that teen drivers who start school earlier in the day have a more than 25% increased risk of being in an automobile accident on their way to school. The study looked at crash statistics for high school students in Virginia, comparing those who started at 7:20 A.M. with those who started at 8:45 A.M. Data gathered over two years showed a 29% higher accident rate for early starters the first year and a 27% increase the following year. The study also looked at crash rates for adults starting jobs at similar times and found no distinguishable difference.

According to researchers, the most common type of accident involves a student falling asleep or dozing at the wheel and running off the road. The report also found that students with inadequate sleep are more likely to engage in risky behavior behind the wheel and less likely to think before acting. A spokesperson for the American Academy of Sleep Medicine said that requiring high school students to be in class by 7:20 is essentially contrary to their biological needs, depriving them of necessary rest. “We are asking teens to shine when their biological clocks tell them to sleep,” noted Dr. Timothy Morgenthaler of the National Healthy Sleep Project. He recommends that high school students get at least nine hours of sleep before getting on the roads in a motor vehicle.

Another study, sponsored by the AAA Foundation for Traffic Safety, concluded that drowsy driving is involved in more than 300,000 car accidents annually and that 16-24-year-old drivers are at the greatest risk for drowsy driving.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 or 877-HOGLAW1 to schedule an appointment. We are currently communicating with clients by phone, text message, or online videoconference. Evening and weekend consultations are available upon request.

Motorcycle Accidents and Protective Clothing

Can You Recover Damages If You Weren’t Wearing Protective Clothing?

Motorcycle Accidents Involving Roadway HazardsOne common recommendation to minimize the risk of serious injury on a motorcycle is to wear protecting clothing—helmet, gloves, boots, pants, and a durable long-sleeved shirt or jacket. Many affordable options are available—you don’t need to spend hundreds of dollars on leathers. But say it’s summer, and you’re only going around the corner to the store. Do you really need to wear all your protective gear?

Unfortunately, accidents can happen at any time. Statistics consistently show that the largest number of motor vehicle accidents happen within a mile from home. So what happens if you get on your bike without safety gear and are injured in an accident caused by someone else’s carelessness? Can that person avoid liability for your injuries on the grounds that you wouldn’t have been injured if you had been wearing appropriate safety gear? Well, maybe.

Here’s how it works. In a personal injury claim, recovery is typically based on the legal theory of negligence, which requires you to show the following:

  • that the defendant failed to act as a reasonable person would;
  • that the failure to act reasonably caused an accident; and
  • that you suffered actual losses as a result.

The defendant can argue that you also failed to act as a reasonable person would, and are therefore somewhat responsible for your injuries, because you wouldn’t have suffered road rash to your hands and arms if you’d been wearing gloves or a long-sleeved jacket. New Jersey, like most states, applies the legal concept of comparative negligence, which requires the jury to determine the degree to which you were responsible for your injuries. Under the New Jersey rule, if you were more than 50% responsible for your own injuries, you cannot recover anything. Accordingly, if the jury determines that your failure to wear protective clothing was the primary cause of your injuries, it may be difficult to recover for your losses.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 or 877-HOGLAW1 to schedule an appointment. We are currently communicating with clients by phone, text message, or online videoconference. Evening and weekend consultations are available upon request.

New Jersey Motorcycle Accidents Involving Drunk Drivers

Your Right to Recover Compensation

Motorcycle Accidents Involving Roadway HazardsWhen you’re injured in a motorcycle accident caused by a drunk driver in New Jersey, you can always file a personal injury claim against the impaired driver. Intoxication generally does not excuse a person from liability for negligence. It’s important to understand, though, that you also may be able to pursue damages from other parties under New Jersey’s dram shop law or under a theory of social host liability.

New Jersey’s Dram Shop Law

Dram shop laws establish whether an employee or establishment are liable for serving alcohol to a patron who causes an accident. In New Jersey, a person injured by a drunk driver may seek compensation from the bar, restaurant, or other establishment that served or sold alcohol to the driver, but one of two criteria must be proven:

  • The person who was served (and subsequently caused the injuries) was visibly intoxicated when sold or served alcohol; or
  • The person served was under the age of 21 at the time, and the server knew or had reason to know that the person being served was a minor.

Social Host Liability

New Jersey’s social host liability law applies the concept of dram shop liability to persons serving alcohol in their homes or at private parties or events. Under the law, a social host may be responsible even if the guest served himself/herself, and even if the guest brought their own alcohol to the event. New Jersey law allows you to sue a social host if:

  • The person causing the accident was visibly impaired, and the host knew or should have known
  • The alcohol was consumed under circumstances “manifesting reckless disregard for the consequences;”
  • Those circumstances involved an “unreasonable risk” of harm to either people or property; and.
  • The drunk person caused injury to other persons or property.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment. We are currently communicating with clients by phone, text message, or online videoconference. Evening and weekend consultations are available upon request.

Time-on-the-Road Restrictions for Commercial Truck Drivers

State and Federal Regulations Designed to Minimize Driver Fatigue That Can Cause Accidents

Motorcycle Accidents Involving Roadway HazardsA commercial truck, such as a semi, big rig, 18-wheeler, or tractor-trailer, can carry a payload of up to 80,000 pounds. Because of the inherent danger associated with a vehicle carrying that much weight on our highways, there are state and federal regulations requiring truck drivers to log their time on the road. This monitoring requirement is intended to minimize the risk that drivers will suffer fatigue from spending too much time behind the wheel. Unfortunately, because most truck drivers are paid by the mile, they have an incentive to drive for too many hours a day. This incentive, coupled with the fact that their employers expect them to reach a destination by a certain time, can lead to driver fatigue, inattention, and diminished capacity, all of which can cause accidents.

According to the Federal Motor Carrier Safety Administration (FMCSA), commercial truck drivers are subject to the following hours-of-service limitations:

  • The 14-hour “driving window” limit—After being off for a minimum of 10 consecutive hours, a truck driver has a 14-hour window within which he or she cannot exceed 11 hours on the road. At the end of the 14-hour window, the driver must be off duty for at least 10 consecutive hours. The driver may not carry over unused hours and may not extend the 14-hour window by going off duty.
  • The 11-hour driving limit—A driver may not be on duty more than 11 hours during the 14-hour window and cannot drive if more than 8 hours have elapsed since his or her last 30-minute break from driving.
  • The 7-day/8-day limit—A commercial driver may not be on the road more than 60 hoursover any 7-day period or more than 70 hours over any 8-day period. The period measured is not fixed, but floating.

Contact the Law Offices of David J. Karbasian, PC

If you have been injured by a commercial truck, send us an e-mail or call us at 856-667-4666 or 877-Hoglaw1 to schedule an appointment. We are open with safety precautions and also can communicate with clients by phone, text message, and videoconference. Evening and weekend consultations are available upon request.

Motorcycle Accidents Involving Roadway Hazards

Common Types of Roadway Hazards | Recovering Compensation for Your Injuries

Motorcycle Accidents Involving Roadway Hazards Though the vast majority of motorcycle accidents are collisions with other vehicles, a significant number of crashes are single-vehicle accidents. One of the most frequent causes is some type of roadway hazard that causes a biker to lose control and crash.

The Most Common Types of Roadway Hazards for Motorcyclists

  • Potholes, rough roads, or uneven surfaces (such as edge breaks between lanes), which can cause a sudden shift in balance;
  • Sand, gravel, water, oil, or other slippery substances on the road, causing loss of control in a turn or difficulty stopping;
  • Roadway debris, including branches, construction cones, rebar, trash, tools, or tire treads;
  • Trees, shrubs, signs, or other objects that limit or obscure your view of vehicles coming from side roads;
  • Stalled vehicles with no hazard lights on; and
  • Dead animals on the road.

Recovering Compensation for a Motorcycle Accident Caused by a Roadway Hazard

In the aftermath of a motorcycle accident, one of the first things you should do is retain an experienced attorney to represent you. At my office, I will immediately start investigating how the accident happened and who caused it. I have been representing injured clients for 28 years and riding motorcycles for over 45 years. I know how roadway hazards are dangerous to motorcyclists. Any legal action we take is based on negligence. To succeed with a claim, we will need to show that:

  • The defendant (the person or company you sue) failed to meet the standard of care expected (for example, their truck recently spilled gravel on the road, and they failed to put up warning signs to alert those on the roadway, including motorcycle riders);
  • That failure to meet the standard of care caused your accident; and
  • As a result of your accident, you suffered actual losses and injuries

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 or 877-Hoglaw1 to schedule an appointment. We are open with safety precautions and can also communicate with clients by phone, text message, and videoconference. Evening and weekend consultations are available upon request.

Happy 4th of July 2020

Happy 4th of July 2020

On this Independence Day, let us all aspire to those principles that make our nation great—freedom, liberty, and justice for all. We wish you a safe and happy holiday with loved ones.

Motor Vehicle Fatality Rate Jumps During Lockdown

Officials Say Fewer Accidents but Higher Percentage Are More Serious

Motor Vehicle Fatality Rate Jumps During LockdownAs the COVID-19 pandemic has spread across the nation, and New Jersey, like other states, has imposed social-distancing measures, the number of vehicles on state highways has declined dramatically. When full shelter-in-place restrictions were in effect, New York and New Jersey both saw an approximate reduction in traffic congestion of 60%.

There’s a bit of a silver lining to the lighter traffic patterns—the actual number of accidents and fatalities also has dropped precipitously. April 2020 had the lowest rate of motor vehicle accident deaths in New Jersey in half a century.

Officials are not surprised at the significant decline in collisions, as research has long indicated a direct correlation between total vehicle miles driven and the number of accidents. The trend is most commonly associated with significant changes in the price of gas—as prices rise, people travel fewer miles, resulting in fewer accidents. That’s the good news.

What has surprised officials, though, is that the rate of serious and fatal accidents has spiked sharply. Typically, when gas prices change, and the number of accidents fluctuates, the percentage of serious or fatal crashes remains constant. During the COVID-19 pandemic, however, the percentage of fatal accidents has gone up markedly. The National Safety Council (NSC) says statistics indicate that March motor vehicle accident deaths nationwide were up 14% compared to the same period in 2019.

  • In New York City, where traffic was down by an estimated 80%, there were actually more traffic deaths than the year before.

Many officials attribute the higher fatality rate to significantly increased speeds on the roads. With far less traffic, motorists are inclined to push down the gas pedal a bit more. Consider the data from the Brooklyn-Queens Expressway, where the average speed during commuter morning drive time in 2019 was 13 miles per hour and a year later was approximately 52 miles per hour.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment. We are currently communicating with clients by phone, text message, and videoconference. Evening and weekend consultations are available upon request.

The Impact of Not Wearing a Helmet on a Motorcycle Injury Claim

Can You Still Sue for Injuries Suffered as a Result of Someone Else’s Negligence?

The Impact of Not Wearing a Helmet on a Motorcycle Injury ClaimNew Jersey is one of 19 states that currently require anyone on a moving motorcycle to wear a helmet. Motorcycle operators and passengers may be ticketed for failure to comply with the law. But what are the consequences with respect to recovering for personal injury if you’ve been hurt in a motorcycle accident, but weren’t wearing a helmet? Will that failure prevent you from recovering anything?

New Jersey’s Modified Comparative Negligence Statute

Like all other states, New Jersey has replaced the old concept of contributory negligence (which would prevent a person from recovering anything in a personal injury claim if he or she contributed in any way to causing the injuries) with the principle of comparative negligence. Under New Jersey’s “modified comparative negligence” law, the fact that you were not wearing a helmet at the time of the accident may or may not prevent you from recovering for your losses. Here’s how it works.

Under comparative negligence law, a jury first determines the entire amount of your losses. The jury will then seek to establish the extent to which you were responsible for causing your injuries, expressing that as a percentage of total liability for your losses. In New Jersey, if the jury determines you were more than 50% responsible for your losses, you cannot recover anything.

If you have been injured in a motorcycle accident while not wearing a helmet, it’s very possible that the jury will consider your failure to wear a helmet as a form of negligence especially for a head injury. If the jury determines that your injuries were primarily the result of not wearing your helmet, you may be precluded from any recovery.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 or 877-HOGLAW1 to schedule an appointment. We are currently communicating with clients by phone, text message or online videoconferencing. Evening and weekend consultations are available upon request.

Duties of a Nursing Home to Safeguard Residents Against COVID-19

When Is a Nursing Home Legally Liable for Neglect?

Duties of a Nursing Home to Safeguard Residents Against COVID-19According to government officials, an estimated 25% of the 15,000 nursing homes in the United States have had residents infected with COVID-19. Industry watchdogs believe that more than 40% of all coronavirus-related deaths have been among residents of nursing homes or assisted living facilities. Even though nursing home operators are required by law to immediately notify state and local authorities of any suspected infectious diseases, many nursing homes are not fully disclosing information about confirmed cases and deaths. At least two states—Texas and Virginia—have refused to provide government officials with any information about the impact of the virus on nursing homes in their states.

What are the duties of a nursing home operator when it comes to protecting residents from illness or contagious disease? When can you pursue legal action against a nursing home or assisted living facility for the illness or death of a loved one?

The Duty of Reasonable Care

As a general rule, a lawsuit for injury or death due to carelessness or neglect in a nursing home or assisted living facility is based on a legal claim of negligence. Under the longstanding principle of negligence, all persons in society, including nursing home operators, have a legal obligation to exercise reasonable care in all actions and behavior.

There’s no codified law, though, that specifically defines what constitutes “reasonable” care. In practice, whether a person’s actions met the standard of care is a fact determined by the jury. When making such a determination, the jury attempts to identify what a typical person, exercising ordinary prudence, would do in similar circumstances.

Accordingly, there’s no absolute duty to ensure the safety of nursing home residents. But operators must take the steps that a reasonable person would. With respect to COVID-19, a jury would have to determine what measures would be reasonable—closing the facility to all visitors, requiring staff to wear masks and gloves, etc. The jury does not have unlimited discretion to establish a standard of care. The legal principle of stare decisis (“let the decision stand”) is followed in American courts and requires juries to give weight to prior rulings on similar issues.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment. We are currently communicating with clients by phone, text message, and videoconference. Evening and weekend consultations are available upon request.

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COVID-19 Firm Update

To our clients, neighbors and members of our community who may require legal services during this uncertain time, we are here for you. Although our dedicated team is working entirely remotely, the use of telephone, texting & video conferencing allows us to stay connected with you 24/7. Furthermore, our case management system is entirely cloud-based, which gives our team members full access to your files during this national emergency. We hope you and your family stay safe during the COVID-19 situation. Continue to check our Facebook page for important updates. We are here to help.