Call for a Free Consultation : 856-667-4666

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.

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.

Calculating Pain and Suffering in a Personal Injury Claim

How Will a Jury Determine the Monetary Value of Pain and Suffering?

Calculating Pain and Suffering in a Personal Injury ClaimWhen you’ve been hurt in an accident caused by the carelessness or negligence of another person, it’s pretty common to experience significant pain, either temporarily or for the rest of your life. That pain and suffering may make it difficult or impossible to work, and may force you to give up activities that have given joy, purpose or meaning to your life.

In a personal injury lawsuit, you have a right to seek compensation for that discomfort. It’s not easy to quantify that pain and suffering in dollars and cents, though. Ultimately, a jury will have to determine that you are entitled to damages for pain and suffering and will need to calculate the damage award. Here are some of the considerations that juries typically make when evaluating claims for pain and suffering:

  • How credible are you as a witness? Is your testimony consistent? Did the defense attorney raise doubts about your claims on cross-examination? Did you seem uncertain or lack confidence in your claims? What about your physical appearance? Did you look like someone they could trust? (It may not seem that your physical appearance should matter, but it does).
  • Does your claim follow logically? Do the injuries you allege you have suffered seem a reasonable consequence of the accident?
  • Is there medical or expert witness testimony to support your allegations? Does it seem credible? Is your expert witness effective? Has a clear connection been established between the accident and your pain and suffering?
  • Do you have a criminal record? It has nothing to do with your personal injury, but may affect your credibility.

Some Approaches to Damages for Pain and Suffering

Because of the uncertainty of these damages, different courts take different approaches. Many judges instruct the jury to use common sense when calculating the amount. Another common practice is to use a “multiplier.” In such a case, the court will determine the amount of “economic” damages (those that can easily be calculated) and then multiply that amount by a factor (typically anywhere from 1 to 10). Accordingly, if the court uses a factor of three and the economic damages are $500,000, the damages for pain and suffering will be calculated at $1.5 million.

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.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

How Much Is Your Personal Injury Lawsuit Worth?

The Different Types of Damage in a Personal Injury Claim

How Much Is Your Personal Injury Lawsuit WorthYou’ve been seriously hurt in an accident, and it wasn’t your fault. Your whole world has been turned topsy-turvy—you can’t work, you need significant medical care, and you find it difficult or impossible to do many of the things you love. You know you have a right to seek compensation for your losses, but you have no idea what will be covered. Here’s an overview of the types of damages that can be recovered in a personal injury lawsuit.

The Different Types of Damages

In any civil matter, where you seek reimbursement for losses incurred because of someone else’s wrongful act, there are two potential types of damages you can recover:

  • Compensatory damages—These damages are intended, as the term suggests, to “compensate” you for a specific loss. Almost all damages meted out in personal injury claims are compensatory.
  • Punitive damages—These damages, on the other hand, are intended both as a sanction for the defendant’s wrongdoing and a disincentive for others to engage in similar actions. As a general rule, punitive damages are rarely awarded in personal injury cases.

Compensatory damages are further subdivided between “economic” and “non-economic” damages. Economic damages are those that are easy to calculate, such as medical expenses, lost wages or income, or property damage. Non-economic damages are less tangible and harder to quantify. They include loss of companionship or consortium, loss of enjoyment of life, and
physical pain and suffering.

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

Filing a Personal Injury Lawsuit—Part Two

Post-Discovery Motions | Preparation for Trial

Filing a Personal Injury Lawsuit—Part TwoYou’ve filed your complaint and the defendant has submitted an answer in a timely manner. You’ve also conducted all necessary depositions, and completed all other discovery. You’re ready to go to trial, right? Not quite yet…the court dockets are always extremely full, so judges have a vested interest in streamlining the trial process, or avoiding trial, if at all possible. That’s typically done though pre-trial motions, which come in two varieties—dispositive motions and evidentiary motions.

Dispositive Motions

A dispositive motion is one that seeks to either throw out certain claims or dismiss the lawsuit altogether. Such a motion can be filed by either party. An injured party may ask the court for summary judgment, arguing that the discovery has produced no evidence that could support any type of meaningful defense. Conversely, the defendant may ask the court to dismiss some or all of the lawsuit, contending that the plaintiff has not provided sufficient evidence to prove all the required elements of the claim.

Evidentiary Motions

In the American civil justice system, the concept of “open discovery” prevails. That means that both parties are entitled to access to all relevant information and evidence. It also means that, during the discovery process, evidence may be gathered that may not be admissible at trial. It may be based on hearsay, may be argumentative or may be an opinion not based on fact. The court will typically allow parties to gather that type of evidence outside of the hearing of the jury, but cannot allow such evidence at trial, as it may unfairly bias the jury. Rather than have the discussions at trial, where the jury may hear something they shouldn’t, the court will usually hear arguments and make rulings about certain types of evidence before the trial starts.

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.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

Filing a Lawsuit for a Personal Injury—Part One

Initiating the Legal Process in Court | Gathering Evidence

Filing a Lawsuit for a Personal Injury—Part OneWhen you’ve been hurt because of the carelessness or negligence of another person, you hope that you can get the compensation you need to cover your losses without the need to file legal action. Unfortunately, that doesn’t happen very often. In most instances, you’ll need to hire an experienced personal injury lawyer and methodically move through the legal process. In this series, we provide an overview of what you can expect when you file a civil lawsuit for damages suffered in an accident.

Step One—Filing Your Claim

To initiate a lawsuit, you must file a document known as a “complaint.” The complaint must be filed in the appropriate jurisdiction—both geographically and in terms of the types of matters heard by the court. As a general rule, most personal injury claims are filed in state court, but there are circumstances where a federal court will have jurisdiction. Typically, the injured party initially establishes jurisdiction by filing with a specific court, though the defendant may seek a change of venue, or to have the lawsuit dismissed for lack of jurisdiction.

In addition to filing in the appropriate court, you must also file in a timely manner. The statute of limitations sets forth the maximum amount of time you have to file, typically two years from the date of injury or discovery of injury. Once your complaint is filed, the defendant must file an answer within a specified period, usually 28 days. If the defendant fails to do so, you can ask the court for a default judgment.

Step Two—The Discovery Process

If there’s a timely response to your complaint, the judge will customarily set up an initial conference. That meeting usually has three functions:

  • It allows the judge to learn about the case
  • It gives the judge the opportunity to determine whether settlement is likely (and to encourage that process)
  • It allows the judge to set a discovery schedule

Discovery is a legal term that refers to the gathering of evidence. The judge will set a calendar for the completion of discovery and set any necessary limits on discovery. As a general rule, discovery is obtained through

  • Depositions
  • Requests for production of documents or other physical evidence
  • Interrogatories (written questions submitted to the other party)

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

What Can I Expect to Recover in a Wrongful Death Action?

The Damages Available in an Accidental Death Claim

Tipped over truck

In New Jersey, when your loved one has died because of the wrongful, careless or negligent acts of another person, and you can demonstrate that you qualify as a “real party in interest,” you have the right to bring legal action to compensate you for your losses. Of course, if your claim is based on allegations of negligence, you’ll need to show that the defendant failed to meet the standard of care, causing your loved one’s death.

If you can prove these elements, though, you have a right to pursue monetary compensation for:

  • The loss of all financial support you would have received from the deceased, based on his or her expected income. As a general rule, the amount of lost wages will be calculated based on the decedent working until retirement. A spouse will be entitled to all lost wages, whereas a child will be able to recover lost support until he or she would reasonably be expected to be self-sufficient.
  • An medical expenses incurred by the deceased as a result of the fatal accident
  • The costs of burial and funeral services
  • The loss of the companionship or consortium that the decedent would have provided, including comfort, care and guidance
  • The value of all services the deceased would have provided, such as childcare, housekeeping, cooking, laundry, home maintenance and yard/garden

New Jersey law does not permit a survivor or family member to seek any type of damages for emotional distress or injury in a wrongful death claim. A survivor, may, however, file a separate lawsuit for intentional or negligent infliction of emotional distress.

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

New Jersey Supreme Court Issues Ruling in PIP Claim

Court Rules That Personal Injury Protection Is Only Recourse for Claims under $250,000

PIP ClaimIn March, 2019, the New Jersey Supreme Court handed down its decision in two consolidated cases (Haines and Little), overturning a lower court ruling addressing the rights of injured parties to seek compensation from at-fault parties after a motor vehicle accident. Here’s an overview of the court’s ruling and how it affects drivers in New Jersey.

Under New Jersey’s personal injury protection (PIP) laws, which have a default amount of $250,000 (among the highest in the nation), any expenses resulting from a motor vehicle accident that are “medically necessary” and proven to be caused by an accident are paid, regardless of fault. In exchange, any such expenses paid are not admissible and cannot be recovered in a personal injury lawsuit.

However, the state of New Jersey modified the law to allow residents to choose lower PIP coverage and thereby pay smaller premiums. A person may choose PIP coverage as low as $15,000. After the changes in the law, individuals who obtained the $15,000 coverage, but suffered damages in excess of that amount, would seek to introduce evidence of those losses at a personal injury trial.

In one of the first rulings, a Bergen County court held that evidence of medical expenses in a motor vehicle accident lawsuit are admissible only to the extent they exceed the $250,000 ceiling set forth in the law. In other words, by opting for lower PIP coverage, policyholders have waived the right to recover any damages between the policy amount and the statutory PIP amount of $250,000. Another court, in Union County, came to the opposite conclusion.

In 2017, a New Jersey appellate court cleared up the differing opinions, agreeing that injured parties could directly sue an at-fault party for damages between the amount of their PIP coverage and the statutory amount. The March decision by the New Jersey Supreme Court overturns that decision. The court reasoned that the legislative intent was to contain costs, and concluded that allowing parties to seek recovery of damages above their PIP coverage, but below statutory amounts, would contradict that intent.

For now, then, there’s a bit of a risk in choosing a lower PIP amount. You’ll be able to save some dollars on your premium, but you could have tens or hundreds of thousands of dollars of unrecoverable losses if you are in an accident.

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.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

Third Party Claims for Workplace Injuries

When Workers’ Compensation May Not Be Your Only Option

Third Party Claims for Workplace InjuriesIn New Jersey, when you have suffered injury or illness caused by an accident or exposure at work, your first recourse will typically be to file a workers’ compensation claim. In fact, your employer may even tell you that workers’ compensation is your “exclusive remedy,” that it replaces your right to file a personal injury lawsuit. In certain situations, that may be true, but there are exceptions. Here’s how it works.

The workers’ compensation laws were intended to be the “great bargain,” a program that would benefit both workers and employers. For workers, if your claim is approved, it means more rapid access to compensation. There’s no need to get on the court docket, to spend time gathering evidence, or to take your case to trial. If your application for benefits is approved, you can start receiving payments within a few weeks.

For employers, the primary advantage of the workers’ compensation system is the limit it puts on liability. Under the law, injured workers are paid a fixed benefit, mostly based on prior earnings. Accordingly, an employer doesn’t have to worry about a huge damage award from a sympathetic jury.

However, the workers’ compensation laws are a substitute for the liability of only the employer or a co-employee. If your injuries are caused by an unrelated third party, you can file a lawsuit to recover those damages. For example, if you were hurt in a motor vehicle accident involving an unrelated third party or because of the malfunction of a product or machine manufactured by an unrelated third party, you can still sue that party for damages.

In fact, you can file a workers’ compensation claim and a personal injury lawsuit simultaneously. The only caveat—you can’t recover twice for the same loss. If your workers’ compensation claim paid your medical expenses, you can’t recover for those losses in a personal injury lawsuit.

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

What Is Negligence?—Part Three

Demonstrating Actual Loss

As we discussed in the first and second parts of this series, the initial requirements in a lawsuit alleging negligence are:

  • Evidence that would lead the jury to conclude that the defendant did not act reasonably under the circumstances (the conduct breached the duty of care)
  • The failure to act reasonably caused an accident

However, you can demonstrate conclusively that the at-fault party behaved unreasonably and that his or her actions caused an accident, but still be precluded from recovering any compensation in a personal injury lawsuit—you must also show that you suffered some actual loss.

Actual Loss in a Personal Injury Lawsuit

As a general rule, most damages paid in a personal injury suit are “compensatory,” i.e., intended to compensate the injured party for losses suffered. If, however, you haven’t suffered any loss, there’s nothing for which you need to be compensated. For example, assume that you were a motor vehicle accident and suffered bodily injury, incurring significant medical expenses. If those expenses are covered by your health or auto insurance policy, you won’t be able to recover any damages for medical expenses, as you haven’t had any out-of-pocket expense for medical care.

That’s not to say that the defendant won’t be responsible to someone for his or her negligence. In most instances, when an insurance company covers losses that you’ve suffered because of someone else’s carelessness, they have a right to seek reimbursement from the defendant for any amounts they’ve paid on your behalf.

It’s also important to understand that there’s another category of damages that are available in a personal injury action. These so-called “non-compensatory” or “non-economic” damages include payment for pain and suffering, loss of consortium or companionship and loss of enjoyment of life. Accordingly, you may not be able to recover damages for injuries covered by insurance, but you can still seek compensation for those non-economic losses.

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.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

© 2019 karbasianlaw All Rights Reserved.
Sitemap | Terms of Use | Privacy Policy

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.