Liability for fall downs and other injuries at Exxon and compensation.
The
NJ law imposes upon the owner of businesses the duty to use reasonable
care to see to it that the grounds are reasonably safe for members of
the public who are using them. In other words, the law says that the
owner of commercial property must exercise reasonable care to see to it
that the condition of the public areas are reasonably safe and does not
subject customers to an unreasonable risk of harm. This includes the
rides and amusements customers participate in.
The
concept of reasonable care requires the owner of property to take
action with regard to conditions within a reasonable period of time
after the owner becomes aware of the dangerous condition or, in the
exercise of reasonable care, should have become aware of it.
Property owners also have an obligation to keep their parking lots safe.
Inside, the commercial business typically is liable for fall downs, not
the property owner. For example, if someone slips and falls inside the
store, restaurant or hotel, the negligent business is liable. This
includes slip and falls on wet floors near the entrance to a store or
public business.
What
actions must the owner of commercial property take with regard to
defects/snow/ice accumulation/dangerous conditions? The action required
by the law is action which a reasonably prudent person would take or
should have taken in the circumstances present to correct the
defect/snow/ice accumulation/ dangerous condition, to repair it/remove
it or to take other actions to minimize the danger to pedestrians (for
example, to give warning of it) within a reasonable period of time after
notice thereof. The test is: did the commercial property owner take the
action that a reasonably prudent person who knows or should have known
of the condition would have taken in that circumstance? If he/she did,
he/she is not negligent. If he/she did not, he/she is negligent.
The
NJ Supreme Court held Commercial landowners are responsible for
maintaining in reasonably good condition the sidewalks abutting their
property and are liable to pedestrians injured as a result of their
negligent failure to do so." Stewart v. 104 Wallace St., Inc., 87
N.J. 146, 157 (1981). A commercial landowner may be liable to a
pedestrian who is injured due to the condition of the sidewalk, "if,
after actual or constructive notice, [the owner] has not acted in a
reasonably prudent manner under the circumstances to remove or reduce
the hazard." Mirza v. Filmore Corp., 92 N.J. 390,
395 (1983). The commercial property owner's duty to maintain the
sidewalk includes the obligation to remove snow or ice if the failure to
do so would be negligent under the circumstances. Ibid.
The following is the portion of the NJ Model Jury charge 5.20 which the Judge must read word for word to the jury.
But, in this case, the property owner contends that he/she had no
notice or knowledge of the alleged dangerous condition and, therefore,
cannot be held responsible for it. In that connection, I must make you
aware of this rule: The owner of commercial or business property is
chargeable with a duty of making reasonable observations of his/her
property, including the abutting sidewalk, in order to discover any
dangerous condition that might develop or occur. The owner must make
observations of his/her property, including the sidewalk, with the
frequency that a reasonably prudent commercial property owner would in
the circumstances. If you find that such a reasonable observation would
have revealed the dangerous condition alleged in this case, then the
property owner is chargeable with notice of the condition although
he/she did not actually know about it; that is, he/she is as much
responsible for the condition as if he/she had actual knowledge of its
existence….
If,
therefore, you find that there was a condition of this sidewalk that
was dangerous in that it created an unreasonable risk of harm for
pedestrians, and if you find that the owner knew of that condition or
should have known of it but failed to take such reasonable action to
correct or remedy the situation within a reasonable period of time
thereafter as a reasonably prudent commercial or business owner would
have done under the circumstances, then the owner is negligent.
Where
there is both a commercial and residential use of the property, the
predominant use will determine the status of the property. Avalone v. Mortimer, 252 N.J. Super. 434 (App. Div. 1991), Wasserman v. W. R. Grace Co., 281 N.J. Super. 34 (App. Div. 1995). Hambright v. Yglesias, 200 N.J. Super. 392,
395 (App. Div. 1985), (two-family home utilized as apartment building
in commercial property so as to impose duty upon owner to remove the ice
from abutting sidewalk). Borges v. Hamad, 247 N.J. Super 353 (Law Div. 1990); aff’d, 247 N.J. Super. 295
(App. Div. 1990) (owner-occupied three-family house in a residential
zone, with two rental units occupied solely by family members, is
residential property). There is no affirmative duty on a charitable or
religious institution to maintain public sidewalks abutting their
properties. Lombardi v. First United Methodist Church, 200 N.J. Super. 646 (App. Div. 1985). But see Brown v. St. Venatius School, 111 N.J. 325 (1998) (school deemed commercial); Restivo v. Church of St. Joseph, 306 N.J. Super. 456 (App. Div. 1997) (leasing apartments even at below fair market value deemed commercial); Gilhooly v. Zeta Psi Fraternity, 243 N.J. Super. 201 (Law Div. 1990) (fraternity deemed commercial property owner)….
The
commercial property owner's responsibility to maintain the abutting
sidewalk extends to commercial tenants in exclusive possession of the
property. Antenucci v. Mr. Nick's Mens Sportswear, 212 N.J. Super. 124,
128-29 (App. Div. 1986). The liability of a commercial tenant for
failure to maintain a sidewalk "is concurrent with that of the property
owner." Jackson v. K-Mart Corp., 182 N.J. Super. 645, 651 (Law Div. 1981).
See Christmas v. City of Newark, 216 N.J. Super. 393, 400 (App. Div. 1987) holding that Stewart, supra, establishes an absolute municipal immunity for deteriorated sidewalks; but, cf. Levin v. DeVoe, 221 N.J. Super. 61, at 64 n.1 (App. Div. 1987) disagreeing with the holding in Christmas. Shade Tree Commissions created by municipalities are granted absolute immunity pursuant to statute.
IF YOU FALL DOWN:
AT THE ACCIDENT SCENE
1.
Stop . . . do not leave the scene of the accident. CALL THE AMBULANCE,
tell them where the accident occurred and (ask for medical help as
needed).
2.
Notify the property manager or owner, if possible. Insist they observe
where you fell. For example, if you fall on an icy sidewalk at the
store/ business, notify the manager.
3.
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.
4. You or friend/ family use a cell phone to take photos of the scene and negligent condition.
While
waiting for ambulance, write down- Accident Information Date __ Time __
Location __ Weather __ Road conditions __ Damage __
5. Summary of accident __
6. Diagram of accident location
7.
Call an ambulance. If you have any reason to suspect you 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.
8. Write down name of Police Officers, Department and Badge Number, Ambulance crew, etc.
9.
Do not assign or accept blame for the accident. - The scene of the
accident is not the place to determine fault. Discuss the accident only
with the ambulance and medical personnel, your attorney and with
representatives of your insurance company. Give the store your name and
address. - Be cooperative with the police.
10. Have immediate photos taken of accident site if you don’t have cell phone or camera.
11. Call a personal injury attorney immediately, not a real estate attorney. Call Kenneth A. Vercammen- Trial Attorney
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
When you need help the most, we will be ready to help you.
12.
Never give a signed statement to the claims adjuster representing the
property owner's 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.
IF YOU HAVE BEEN INJURED BY SLIPPING ON SNOW OR ICE
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. INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to appear at any 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 ATTORNEY'S WRITTEN
PERMISSION.
7.
You may have insurance coverages such as 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.
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