Understanding Negligence: Causation
In an earlier blog, we addressed the first element of a personal injury lawsuit based on negligence—the requirement that you demonstrate a breach of the duty to act as a reasonable person. In addition, you must show that the defendant’s failure to meet the required standard of care caused the accident that resulted in your injuries or losses. This blog addresses the element of causation.
Actual Cause
To succeed with a personal injury claim alleging negligence, you must first show that the defendant’s actions were the “actual cause” of your losses. Often referred to as “but for” causation, this element can usually be established or refuted by asking the simple question “would the accident have occurred in the absence of (but for) the defendant’s breach of the standard of care?” If the answer is yes, the defendant’s behavior is not the cause of the accident and the lawsuit will fail. If, however, the answer is no, you need to address the issue of proximate cause.
Proximate Cause
In many instances, there are a series of circumstances, typically happening sequentially, that result in accident and injury. The issue of proximate cause addresses how close (or proximate” the defendant’s breach of duty was to the actual injury or loss. The more remotely tied to the loss, the less likely there will be proximate cause.
In essence, proximate cause seeks to answer the question “was the injury or loss suffered reasonably foreseeable when the defendant engaged in the conduct that breached the duty of care?” Let’s look at an example. Suppose you are driving a car and sending and receiving text messages at the same time. Because you are distracted, you miss a stop sign or red light and slam into the side of another car. It’s reasonably foreseeable that driving while distracted could cause you to be in a motor vehicle accident, so there will likely be proximate cause for any injury to the other driver, passengers or damage to the other vehicle. However, if the car you hit was being driven by a heart surgeon, who was on his way to perform open-heart surgery and he is unable to perform the operation, there may not be proximate cause for any injury sustained by the heart patient and/or his family, as that type of result was not reasonably foreseeable.
Contact Our Office
At the Cintron Firm, LLC, we bring more than 14 years of experience men and women in New Jersey who are involved in or contemplating filing for divorce. To set up an appointment, contact our office at 201-791-1333 or (201) 535-0323 or send us an e-mail.
Can You Get Workers’ Compensation If You Are Paid “Off the Books”?
It’s a fairly common practice across the United States—in an effort to reduce costs, many employers hire either undocumented aliens or offer to pay workers “off the books,” usually paying less than prevailing wage. The worker benefits by not having to claim the income for tax purposes. But what happens when a worker who is not on the company payroll suffers a work-related injury? If you are paid “off the books,” are you ineligible for workers’ compensation benefits?
Fortunately, the answer is no—an employer cannot avoid paying workers’ compensation benefits by paying an employee in cash or otherwise outside of payroll. You can receive workers’ compensation benefits in New Jersey regardless of your status as an employee, as New Jersey has only two requirements to qualify for workers’ compensation: you must have been injure and you must have been working for the company at the time of the injury (a true independent contractor may not pursue workers’ compensation payments).
If you were truly an independent contractor, you may be denied workers’ compensation benefits. However, more often than not, workers paid off the books qualify as employees, even when there’s a written agreement setting forth the terms of the independent contract. The workers’ compensation judge will look at the actual relationship. If the employer dictates schedules, assignments, provides equipment or exercises significant control over the worker on a day-to-day basis, the relationship will likely be construed as an employment relationship.
Contact Us
At the Cintron Firm, LLC, we offer more than 14 years of experience to people in New Jersey facing a broad array of legal challenges. Attorney Mark Cintron has worked as a prosecutor and has extensive courtroom experience, so he’s always ready, willing and able to protect your interests before a judge or jury. Contact our office online or call us at 201-791-1333 or (201) 535-0323 to set up an appointment.
Can You Get Workers’ Compensation If You Are an Independent Contractor?
As a worker in New Jersey, you have a right to seek workers’ compensation benefits if you are hurt on the job. Unfortunately, employers and their workers’ compensation insurance providers both have a vested interest in minimizing or denying payment after a work-related injury. A common strategy they’ll employ is to allege that you were not an employee, but an independent contractor, and therefore responsible for providing your own workers’ compensation coverage. Workers in a variety of occupations often face this ploy, including salespersons, construction workers and landscapers.
As a general rule, though, these efforts are based on a number of faulty assumptions about eligibility for workers’ compensation:
- There’s no requirement that you be on a company payroll to qualify for workers’ compensation
- There’s no requirement that you have payroll taxes withheld, or that your employer pay any workers’ compensation insurance premiums on your behalf
- You don’t have to have an office, locker or other similar space at a company to qualify for workers’ compensation benefits
To the contrary, to successfully qualify as an independent contractor, you must meet a number of tests, including:
- You must be free of any direction or control by the company for whom you do the work—the greater the control of time, schedules, assignments, etc., the more likely you will be considered an employee
- You must be paid by the job, not by salary or hourly wage
- You must provide your own equipment—computer, desk, supplies
As a general rule, to be eligible for workers’ compensation in New Jersey, you must only show that you were injured and that you were working for the company at the time. To determine if you qualify as working for the company, the workers’ compensation judge will look at the totality of your relationship with the employer. If it has the appearance of an employer-employee relationship, you will qualify for workers’ compensation benefits.
Contact the Cintron Firm
At the Cintron Firm, LLC, we offer more than 14 years of experience to people in New Jersey facing a broad array of legal challenges. Contact our office online or call us at 201-791-1333 or 917-494-5695 to set up an appointment.
How Are Workers’ Compensation Benefits Calculated in New Jersey?
In New Jersey, as in all states, when you have suffered an injury because of the careless or negligent actions of your employer or a co-employee, you have a right to pursue workers’ compensation benefits for any disability experienced, as well as medical expenses. One of the first questions most people ask, after being hurt on the job, is “how much will I be paid in benefits?”
Temporary Disability Benefits
If your workplace accident or illness prevents you from working, but you are able to fully recover and return to work without any limitations, you’ll likely be eligible only for temporary disability benefits. In New Jersey, these are calculated based on your average gross weekly wage for the last 52 weeks. The benefit amount cannot exceed 70% of your gross weekly wage or salary, and will be capped at $896 per week (up to $903 in 2018). You are eligible to receive benefits until one of the following happens:
- You have received temporary benefits for 400 weeks
- You have been determined to have attained "maximum medical improvement" by a company approved doctor
- You have been able to return to your job
Permanent Disability Benefits
Permanent disability benefits may be total or partial. A total disability is one that prevents you from working in any capacity. If your disability is permanent and total, you will be entitled to receive benefits at the weekly rate for as long as your disability continues. You may also be required to certify your disability status on a regular basis.
If your disability is permanent, but only partial, it will fall under one of two categories: a scheduled loss or a non-scheduled loss. “Scheduled” losses are those types of injuries that appear on a list, or schedule, and usually involve injuries to specific parts of the body, such as arms, legs, hands, feet, fingers and toes. With these types of injuries, the “schedule” identifies a specific number of weeks of disability payments, based on the specific type of injury.
Any injury that does not appear on the schedule is referred to as a “non-scheduled” loss. This customarily refers to injuries to the head, spine and organs. You can receive weekly payments for up to 600 weeks, depending on the severity of your injury.
Contact Our Office
At the Cintron Firm, LLC, we bring more than 14 years of experience men and women in New Jersey who are involved in or contemplating filing for divorce. To set up an appointment, contact our office at 201-791-1333 or (201) 535-0323 or send us an e-mail.
Understanding Negligence: The Standard of Care
When you have been injured because of the wrongful act of another person, there are a number of legal theories that you can use to pursue compensation for your losses, but the most common claim is one based on an allegation of negligence. A lawsuit asserting negligence has three elements—components that you must prove to a court to successfully make a claim:
- You must show that the defendant failed to meet the required standard of care
- You must show that the breach of that duty of care “caused” the accident
- You must show that you suffered actual loss as a result of the accident
This blog addresses the first component of a negligence claim—the standard of care.
First, it’s important to understand that most of the laws governing personal injury have developed under what is referred to as the “common law.” The common law, which originated in England and has evolved over centuries, is derived from the opinions of judges, rather than from statutes or written laws enacted by legislative bodies. In many instances, the judicial opinions further clarify or construe the statutory law, but much common law has evolved in the absence of any written code.
One of the fundamental duties that has arisen from the common law is the concept of a duty or standard of care as related to personal injury. Essentially, this rule holds that everyone has an obligation, in all their actions in society, to behave as a reasonable person. So, when you are driving a car, building a house, maintaining residential or commercial property, designing or manufacturing a product, or even engaging in leisure activity, it is expected that you will only do those things that a reasonable person would do. If your behavior is reasonable, you won’t be held responsible for any injuries another person suffers because of your conduct. However, to the extent that your behavior deviates from the accepted standard of care, you can be found financially liable.
Unfortunately, the law provides little guidance as to what constitutes “reasonable” behavior. Instead, it’s typically a factual determination to be made by a jury, and, accordingly, can vary from case to case. The jury has absolute discretion to determine what constitutes reasonable behavior and whether your actions fell within the definition.
Contact Us
At the Cintron Firm, LLC, we offer more than 14 years of experience to people in New Jersey facing a broad array of legal challenges. Attorney Mark Cintron has worked as a prosecutor and has extensive courtroom experience, so he’s always ready, willing and able to protect your interests before a judge or jury. Contact our office online or call us at 201-791-1333 or (201) 535-0323 to set up an appointment.
Planning for Your Child’s College Education in a New Jersey Divorce
The state of New Jersey has been a pioneer in the promotion of higher education, long requiring that parents with the financial means provide a college education for their children, whether the parents are still married or have divorce. As a consequence, when you are involved in a divorce in New Jersey, you need to include a plan for paying the costs of tuition, room and board and other college expenses in your property settlement.
When assessing your responsibility to contribute to the costs of a college education for your offspring, the court will consider a number of factors, including:
- The financial resources of both parties
- The cost at the educational institution the child has chosen, and whether or not the amount requested is reasonable with regard to the school or program chosen
- Whether the chosen program reasonably relates to the child’s elected career goals
- Whether your child would reasonably be expected to go to college, given your values and background; and whether the child shares your values and goals
- The financial resources of the child, including the child’s potential earning capacity while in school
- The aptitude and likelihood of success of the child in the chosen course of study
- The financial aid the child will receive
- In situations where the parents are divorced, the extent to which the parent would have made contributions to the costs of a college education if still living with the child
The obligation to pay some portion of your child’s college education in New Jersey is not limited to covering the costs of undergraduate study. A parent may have responsibility for graduate, post-graduate or professional programs, including medicine and law.
Contact the Cintron Firm
At the Cintron Firm, LLC, we offer more than 14 years of experience to people in New Jersey facing a broad array of legal challenges. Contact our office online or call us at 201-791-1333 or (201) 535-0323 to set up an appointment.
What to Do after a Motor Vehicle Accident
When you’ve been injured because of the careless or negligent actions of another motorist, your whole life can change in an instant, even if the injuries are primarily to soft tissue. The steps you take in the immediate aftermath of an injury can have a significant impact on your physical and your financial recovery. Here are some guidelines for protecting your health and your rights.
Get the Care You Need
Get the care you need and get it right away. This is not just to improve your chances of a full physical recovery, although early diagnosis and treatment are often critical components of recovery from injury. The longer you wait to seek treatment for an injury, the greater the risk that an intervening event—some other accident, for example—will occur and defense attorneys will be able to argue that your injuries were not caused by the car accident, but by the intervening event.
Regardless of where you get treatment—at the hospital, an urgent care facility or with your family doctor—be sure to tell medical professionals about everything that’s out of the ordinary, as well as anywhere that you felt or experienced pain, twisting, bumps or sprains. Don’t focus on your broken arm and neglect to tell the doctor about the stiffness in your lower back. That might be a more serious injury in the long run.
Don’t try to be strong or be a hero. If you can’t move under your own power or it really hurts to do so, stay where you are and let emergency technicians move you. You may end up aggravating your injuries.
Get Information
As a general rule, the more information you get, the better you’ll be able to help your lawyer pursue damages for your losses. If you can, get contact information from any other drivers, as well as all witnesses. This includes name, phone number, address, e-mail address and insurance provider (for other motorists). Don’t assume that police officers will obtain this information—get it yourself, if you can.
Take pictures of everything—the damage to vehicles, any injuries suffered, the weather conditions, any issues with the roadway, such as potholes, loose gravel or defective signs/signals. The camera on your phone is sufficient.
Contact Our Office
At The Cintron Firm, LLC, we bring more than 14 years of experience men and women in New Jersey who are involved in or contemplating filing for divorce. To set up an appointment, contact our office at 201-791-1333 or (201) 535-0323 or send us an e-mail.
Challenging Traffic Tickets in New Jersey
When you get a traffic ticket in New Jersey, there’s really nothing you can do except pay the fine and put it behind you, right? After all, it’s your word against that of a police officer. Who do you expect the court to believe? Wrong!!
Your Options When You Get a Traffic Ticket
Of course, you can simply plead guilty and pay the ticket. You can typically do this without appearing in court, simply by mailing in the fine or paying it online (if the courts accept that type of payment). Doing so may result in points being added to your driving record, which may cause your motor vehicle insurance rates to go up.
The other option, of course, is to challenge the ticket. To do so, you’ll have to go to court. The ticket will indicate the date and time you are supposed to appear. Don’t think, though, that you’ll be in and out of the courthouse on your appointed date. You can probably expect a 2-3 hour wait when you get there.
Your first step may be to try to talk directly with the prosecutor. To do so, you’ll need to get on a list. You can ask the prosecutor to downgrade the charge (or the prosecutor may offer that), but typically only if you have extenuating circumstances or a clean driving record. As a general rule, you can only plea down points twice in any five year period.
You won’t be called to appear before the judge until you’ve had an opportunity to speak to the prosecutor. If you work out a deal with the prosecutor, that information will be communicated to the court by the bailiff. You will still have to appear before the judge, but only to formalize the agreement you reached with the prosecutor.
Challenging a Ticket
When you appear before the judge, you will be asked to plead guilty or innocent. If you want to challenge the citation, you will plead innocent and a trial will be scheduled. The police officer will be present. The judge will listen to arguments by both sides, as well as the testimony of any witnesses, and render a decision. As a practical matter, it is often difficult to get a ticket completely dismissed, but you may avoid any points on your record.
Contact Us
At The Cintron Firm, LLC, we offer more than 14 years of experience to people in New Jersey facing a broad array of legal challenges. Attorney Mark Cintron has worked as a prosecutor and has extensive courtroom experience, so he’s always ready, willing and able to protect your interests before a judge or jury. Contact our office online or call us at 201-791-1333 or (201) 535-0323 to set up an appointment.
New Jersey Statute of Limitations on Personal Injury
When you’ve suffered injury because of someone else’s wrongful act, whether it’s the failure to perform according to the terms of a contract, or a lawsuit for injuries sustained in an accident, you have to file a claim for damages within a specific period of time or it will be barred. This rule, known as the statute of limitations, serves a number of purposes. It ensures that evidence doesn’t get lost and that witnesses don’t forget what they saw or heard. It also prevents a person from living for a long period of time with a potential claim hanging over his or her head.
The statute of limitations can vary from jurisdiction to jurisdiction and are typically different for various types of lawsuits. In New Jersey, the statute of limitations for personal injury—the time in which you must file your complaint— is “two years after the cause of any such action shall have accrued.” The statute covers cases involving injury and/or death, although the clock for filing a claim for a wrongful death does not start until the actual date of death.
There are, however, situations where your injury may not be readily apparent, or where symptoms don’t become apparent for months or even years. What happens then?
New Jersey, like many other states, applies the “discovery rule” with respect to when the statute of limitations starts to run on a personal injury claim. Under that rule, the clock does not start to move on the statute of limitations until “the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered” the injury. Accordingly, if your injury took some time to develop or was not apparent through reasonable observation, you will have two years from the date that you first became aware of the injury.
Contact The Cintron Firm, LLC
For a free phone consultation to discuss your case, call 201-791-1333.
