Chat with us, powered by LiveChat

Author Archives: Cape Legal Staff


BCG – Premises Liability

Injuries due to a dangerous condition of property? Attorney Suzanne Pasley gives a brief primer on what a premises liability case is and some quick tips if you or someone you know has been injured in this type of accident.

 

If you or someone you know has been injured as a result of a dangerous condition of property, Barry.Corrado.Grassi & Gillin-Schwartz, PC is here to help. Call us today at 609-729-1333 or contact us on the web here for a free consultation to learn about your rights.

Suzanne Pasley is an experienced civil litigator whose practice focuses on personal injury and estate administration and litigation.

Learn More

New Jersey Criminal Justice Reform

 

Criminal Justice Reform

An Admirable Goal  & an Uncertain Future

New Jersey’s Bail Reform and Speedy Trial Act, which just went into effect as of Monday January 2, 2017, represents a huge change in the way our criminal justice system assesses defendants and determines whether they should be released prior to their trial.  The focus of this new law is assessing the likelihood that a defendant will fail to appear for court rather than the assignment of a cash bail as a precondition of release.  

Rather than assignment of a cash bail, the new system is guided by a computer program’s algorithm and the recommendation of the prosecutor.  What does this mean for people charges with crimes in New Jersey going forward?  Listen to Barry.Corrado.Grassi & Gillin-Schwartz, P.C. partner Joe Grassi talk about the new law and some of its features here.

Joseph C. Grassi is double certified by the New Jersey Supreme Court as a civil and criminal trial attorney.  He specializes his practice in criminal and municipal court defense, serious personal injury and wrongful death, civil sexual abuse cases, and civil rights discrimination.  He is an equity partner at Barry.Corrado.Grassi & Gillin-Schwartz, P.C. and resides in Wildwood, New Jersey .

Learn More

 

The Death of He v. Miller

In Cuevas v. Wentworth Group, New Jersey Supreme Court overrules bad precedent and reaffirms the sanctity of jury verdicts against motions for additur and remittitur.

This Monday September 19, 2016, in the case of Ramon Cuevas v. Wentworth Group, the New Jersey Supreme Court reversed course on permitting judges to decide motions for addittur and remittitur based on their feelings and experience with other cases.  This is a big deal and a very good decision.  

So, what exactly are additur and remittitur?To help explain why, consider the following example. Picture that your favorite NFL team is playing in the Superbowl.  They are clearly the underdogs throughout the game but fight and scrap to keep it close throughout. Then, right before time runs out they score a touchdown on a 100 to 1 odds Hail-Mary pass to win the game!

Next imagine that the commissioner of the league, Roger Goodell, changed the score because he had a feeling that the game should have turned out differently.  And it was completely within his power to do so.

It sounds ridiculous when you think about it, right?  In the context of legal disputes, the New Jersey Supreme Court held that trial judges could do just that in the 2009 decision in the case of Ming Yu He v. Miller.

In the legal world, after a jury has reached a money verdict in a civil case the parties have the power to ask the judge to reduce or increase the verdict.  This is called additur and remittitur.  Jury verdicts are given a lot of deference and weight and traditionally these requests were only granted in the rarest of circumstances when the a verdict was so out of proportion to what happened that it “shocked the conscience.”

In the 2009 He v. Miller case, the New Jersey Supreme Court instructed judges to, among other things, rely on their experience as a judge and attorney.  While this may sound innocent, it is a ludicrous standard.  Putting aside that many judges did not have any significant experience as litigators before putting on their robes, this standard lets judges disturb the sanctity of jury verdicts without regard to the facts and records of a particular case based on how the judge felt it should have ended.  This is like Goodell changing the score after the Superbowl because he felt that the game should have ended differently.

Thankfully, on September 19, 2016, in the case of Ramon Cuevas v. Wentworth Group, the New Jersey Supreme Court implicitly overruled He v. Miller. The Cuevas decision, authored by Justice Albin who also wrote the dissent in He v. Miller, reiterated that for the judge to alter a jury verdict it must shock the conscience.  And that, while prior case law suggested that a judge should apply his own feel or experience, this “is not a sound or workable approach.”  The court noted a trial judge’s experiences are not part of the evidence or record in the case at issue and concluded that motions for remittitur “cannot depend on the happenstance of the personal experiences of the trial or appellate judges assigned to a particular case” as judges must administer “to the extent humanly possible… an objective legal standard.”

This is an important decision — whatever ideas people may have about lawyers or lawsuits — the fact remains that trial by jury is one of the founding principles of our great nation.  As Thomas Jefferson famously stated “trial by jury [is] the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The New Jersey Supreme Court removed a potential threat to the sanctity of the jury system.  It may have been a threat that they themselves created, but hats off to them none the less.

You’ve been injured in a car accident. What happens now?

You are hurt in a car accident, either as a driver, passenger, or a pedestrian.  Maybe its your fault, maybe its someone else’s fault, maybe its not clear yet.  What happens now?

First thing first, take care of your safety and health first.  Get appropriate medical attention!  But this is a legal article and we are going to talk about the laws that matter in this situation.  In this situation, there’s basically 4 things you have to worry about: (1) PIP insurance; (2) liability insurance; (3) uninsured motorist coverage; and (4) the verbal threshold.   We will cover each topic in depth later separately, so for now we’ll stick to a basic rundown of these issues.

PIP Insurance

In a simple sense, there are three types of coverage on a New Jersey car insurance policy.  PIP is short for “personal injury protection” coverage.  You also hear them called medical benefits or no-fault benefits.  Regardless of who was at fault for an accident, your own PIP benefits are primary to pay for any necessary medical treatment.  Unfortunately, doctors have to jump through a lot of procedural hoops to get treatments and tests approved by the car insurance carrier.  That’s why its important to make sure that your doctors accept PIP and have staff that can navigate getting the necessary treatment your doctor recommends approved by your insurance company.

Liability Insurance

Realistically, most people don’t have the money or assets readily available to pay for medical care or for a judgement against them if they are at fault and hurt someone, which is why we are all required to have car insurance.  Even if you get a judgment against someone individually, if they don’t have the money to pay it then its not worth the paper its printed on.  However, not all car insurance policies in New Jersey carry liability insurance.  And depending on the type of policy at issue, it might cover as little as 10 to 15 thousand in coverage.  While that sounds like a lot of money in the abstract, its nothing when that is all that is available to compensate someone for a serious injury or a family for the death of a loved one.  That is why UM/UIM insurance, discussed to the right, is so important.

UM/UIM Insurance

Another type of car insurance coverage is called uninsured/underinsured motorist coverage.  Think of it as safety net coverage.  If the person responsible for injuring you doesn’t have insurance or doesn’t have enough liability insurance considering your injury, your own insurance policy will act or pretend as if its the other person’s insurance to provide a source of recovery.  However, insurance carriers fight just as hard against their own policyholders to prevent paying out on claims as they would against anyone else.  What’s more, there are different deadlines and rules that may apply in uninsured motorist claims that effect the amount of coverage available, who its available to, and what legal standards apply.  So its very important that you consult with a lawyer who understands this area of law.

The Verbal Threshold

Ok, so you were injured in a car accident.  The other driver was clearly at fault and his insurance company has admitted it.  What happens next is a combination of the insurance company claiming either that your injuries aren’t permanent or, if they are, they are due to something other than the accident.  That’s because New Jersey drivers are subject to something called the verbal threshold, a.k.a. limit on lawsuit option, unless they elect to pay more to get out of it.  This threshold is a hurdle that accident victims have to jump over to receive compensation for their injuries.  And insurance companies use it to delay, deny, and defend claims sometimes for years.

It bars the recovery of non-economic damages to cases of death, serious scarring or disfigurement, loss of a fetus, or any permanent injury that you can demonstrate with objective medical evidence.  What this means is that you could be horribly and painfully injured and not recover for years.  But if you are subject to the verbal threshold, that means you are barred from bringing a lawsuit because your injuries weren’t permanent.  And even if they are permanent, the insurance company defending the lawsuit will hire a doctor to conclude that your injuries aren’t permanent, were from some other accident, or were just age related.

The New Jersey verbal threshold is a really tough law.  And there’s no guarantee as to how things will work out or how long medical treatment or a lawsuit will take.  The only sure thing is that you need experienced professionals to help you navigate this process and protect your rights.

If you have been injured in a car accident, contact the law office of Barry.Corrado.Grassi & Gillin-Schwartz, P.C. for a free consultation to learn about your rights.

Know Your Rights
If you have been injured in a car accident, contact the law office of Barry.Corrado.Grassi & Gillin-Schwartz, P.C. for a free consultation to learn about your rights.

Contact Us

Legal Q&A of the Month

Q&A Suited

You asked the questions, Barry.Corrado.Grassi & Gillin-Schwartz, P.C. gives you the answers.

Welcome to Barry.Corrado.Grassi & Gillin-Schwartz, P.C.’s first legal Q&A article.  As boring as the subject of law is most of the time, the fact remains that there are a lot of questions people have about problems and issues that can come up and how generally the law works in different situations. So Barry.Corrado.Grassi & Gillin-Schwartz, P.C. members will be gathering questions and answering them to help educate people about their rights.

Remember, this is general information and does not constitute legal advice or create any lawyer-client relationship with the questioner or audience.  Of course, the best thing to do when there is a problem is to actually consult a lawyer about the specifics and what his         recommendations are.

Real Estate / Inheritance Question – “Ms. Awesome and the Lazy Schmuck”

hey-that-s-ms-awesome-to-you_designThat caution being said, let’s get to our first question from a friend who we will refer to as “Ms. Awesome”, as she actually asked that we give her a “more awesome name” if we answered her question. Ms. Awesome recently had a relative pass away. The relative gave her house to her boyfriend, who we’ll call Mr. Lazy Schmuck, to keep living in for as long as he stays alive. After he dies, the property is split up six ways among Ms. Awesome and her two sisters, we will call them the Awesome Sisters, and the three daughters of Mr. Lazy Schmuck, the Lazy Sisters.   Ms. Awesome is worried that Mr. Lazy Schmuck is going to crud up the property or try to borrow money and take out another mortgage on the property for him to live off of even though that hurts the interest she and her sisters have in the property. She wants to know what her rights are, how this type of relationship works, and what she can she do?

LAZY SCHMUCK AND HIS LIFE ESTATE

hqdefault

So the whole Mr. Lazy Schmuck “getting to live there while he’s alive” thing is a type of property right called a “life estate”. You get the right to occupy a place for as long as you live but you don’t own it in the traditional sense. He can’t sell it, other than his right to live there, or do anything with that hurts the future interest his children and Ms. Awesome and her sisters have. At least that is the theory. Life estates are pretty universally a bad idea because how do you resolve disputes over what to do with the property when what makes sense in the short term does not in the long term. And if the property isn’t local, there’s not a lot of oversight to make sure Mr. Lazy Schmuck is keeping the place in good repair on a day to day basis.

THE SISTERS RIGHTS

The good news is that, generally speaking, Mr. Lazy Schmuck can’t take out a mortgage or loan against the house without the Lazy Sisters and the Awesome Sisters signing off on it because they have a future interest in the property.  Their ownership right is generally called a “future interest in fee simple”.  Basically, it means they have a future right to the whole thing.  Theoretically, the life estate owner can’t do anything unreasonably detrimental to the value of the property long term because it would harm the future interests other people have.  And because there are six equal future interests, under most states’ laws they would be tenants in common, meaning they each owned a separate share, after Mr. Lazy Schmuck dies.

WHAT CAN MS. AWESOME DO?

As to her concern about Mr. Lazy Schmuck lying or defrauding a bank somewhere to put another mortgage on the house for his benefit, even if he lied or defrauded a bank somewhere to get another mortgage, the sisters would have a remedy against the title company and the lawyers the bank used that messed up and let that one slide through.  The bad news is there is no easy way to keep an eye on Mr. Lazy on a day to day basis. And having six future interests in the property is so messy practically that the best solution is probably for Ms. Awesome to attempt to buy out the interests of the other sisters and/or her sisters. That permits her to have more direct control and oversight on the property before Mr. Lazy Schmuck kicks the bucket and to control what to do with it after. Of course, that supposes that Ms. Awesome has the finances to do that and that it makes sense from a financial perspective to purchase the other sisters’ interests as an investment.  Ideally, this could of all been avoided if the relative who passed away had an attorney or financial adviser who had explained the pitfalls of approaching things this way.  Going forward, the best thing to do when faced with a situation like this is to consult with a real estate attorney to help you determine what your options are and which ones make financial sense for you.

Oliver Barry

By: Oliver Barry

Possession Charges and Conditional Discharges

If you have been charged with a drug related offense in municipal court, you have options to fight the charges and preserve your record.

In any criminal case, the State needs to meet the burden of proving each element of the crime charged beyond a reasonable doubt. The State must provide all discoverable materials, including but not limited to a lab report, if applicable. If the State does not provide the proper materials, it is possible by way of a motion that the matter can be dismissed.

You may also be eligible for a Conditional Discharge if you are charged with any of the following: possession of less than 50 grams of marijuana; NJSA 2C:35-10(b), under the influence of CDS; NJSA 2C:36-2, possession of drug paraphernalia, failure to turn over CDS to an officer “failure to turn over;” NJSA 2C:35-10(a)(4).

How does a Conditional Discharge work?

N.J.S.A. 2C:36A-1 provides that an attorney can make a Motion to suspend further court proceedings and place their client on a special type of supervised probation. Because the program is optional, it is important that the attorney prepares evidence showing that their client is an ideal candidate for a conditional discharge.
The “evidence” may include letters of recommendation, proof of employment, drug treatment, and any other information that helps prove that the person charged will benefit from the conditional discharge program.

Also, if you enter into a conditional discharge, after completion of the program you still need to expunge the matter if you want the arrest off your record. It is important to be aware that by entering into a conditional discharge you will not be eligible for other diversionary programs in the future such as Pre-Trial Intervention (PTI), which is available in Superior Court. Thus, it is imperative to have an experienced criminal defense attorney on your side to help guide you through the Municipal Court system.

Chris Gillin-Schwartz has appeared in municipal courts throughout New Jersey including but not limited to Cape May, Wildwood Crest, Wildwood, North Wildwood, Stone Harbor, Avalon, Sea Isle, Ocean City, Somers Point, and Atlantic City.

Impact of Social Media on Pending Claims

Most of you probably use a public social networking site, e.g. FaceBook, Twitter, Linked-In, Instagram, Vine, etc. You may not be aware that whatever you write, post or tag, or whatever you may have written, posted, or tagged in the past on social media may be accessible to the public and may be inadvertently harmful to your case. Your posts may be misconstrued or misinterpreted, and if your case proceeds to trial, may end up on a big screen in the courtroom for everyone to see during a trial.

You should check your privacy settings and make sure they are most restrictive, i.e. ‘friends only’ for Facebook settings. Many people do not realize that their privacy settings may be “public”, which lets any member of the public, even complete strangers, access to your account.  You should not accept ‘friend’ requests unless you personally know who they are from.

It is now common for insurance carriers to attempt to obtain information about your personal life. This is often done without your knowledge or permission. Once your claim is in litigation, the defense will likely make a request to access your social media accounts. The courts are not in agreement about whether this is a legitimate request. So it is preferable to take action now about what you post, or entirely suspend social media activity during the pendency of your case. However you should NOT delete or remove information from your social media, as that could be considered destruction of evidence, spoliation of evidence, or obstruction of justice.

It is likely you may consider that total suspension of your social media activity is not a practicable option. If that is the case, we recommend that you do not discuss your claim on social media or post any photos of yourself or let yourself be photographed for others to post.  Likewise you should disable ‘tagging’ of photos and you should not participate in any blogs, chat-rooms, discussion boards, or message boards. The same applies to texting.

So we urge you to think carefully before posting, tweeting, and commenting. If in doubt, err on the side of caution:

Freedom of Speech and the First Amendment

Almost everyone knows that the First Amendment guarantees our freedom of speech.   Not everyone, however, knows what “freedom of speech” really means.

On its face, the amendment’s language seems clear: “Congress shall make no law … abridging the freedom of speech, or of the press.”

“No law” is pretty straightforward.   But if you think about it for a minute, there are dozens, if not hundreds, of laws that “abridge” speech.   Laws against blackmail or criminal threats, laws against false advertising, laws against obscenity and child pornography, laws regulating signs and billboards, laws prohibiting various kinds of libel and slander – they all restrict our speech to a greater or lesser degree.

Determining which of these laws violate the First Amendment and which do not can be a subtle and complex task.   Speech is varied and multi-faceted; this is not an area of the law where you can have black-and-white rules that govern every case.   So over the years, courts have developed several different methods of approaching First Amendment issues.

For example, there are some narrowly defined categories of speech – obscenity, criminal threats, “fighting words” – that are outside the First Amendment’s protection.   In those cases, a court will simply decide whether the speech falls into one of the prohibited categories. If it does, the state can regulate it.

In other cases, however, a court might balance the value of the speech against the state’s reason for wanting to regulate it – the value of a political demonstration, for example, against the potential for disruption or damage.   Such cases can pose extraordinarily difficult problems of freedom, justice and public policy.

In the coming months I will be discussing some of those problems, as well as the values served by the First Amendment and the reasons the government might advance for regulating or prohibiting different types of speech.   I hope you will read (and enjoy) what I have to say.

In the meantime however, if you have questions about your First Amendment rights, or about any of your civil rights, please do not hesitate to contact us.

Next Article , “Why We Have A First Amendment”

The Hidden Danger of Concrete Burns

Homeowners, weekend warriors, and masonry workers are exposed to severe second and third degree burns from contact with wet ready mixed concrete.

Wet concrete can cause serious chemical burns to the skin of the people working with it.

The danger is hidden because the burns are caused by the caustic nature of a chemical, calcium hydroxide, in the water or juice that is part of the wet concrete. It doesn’t feel like anything when it gets on the skin. By the time the user feels a tingling on their skin, they have suffered second and third degree burns, typically on their legs and knees, and sometimes their feet.

This danger is unknown to amateurs, homeowners, and weekend warriors. It is little known and poorly understood among professional masons.

Every concrete burn case I have seen involves a belief on the part of the victim of the burn that there was something “wrong” with the concrete.

Concrete is made up of sand, stone, Portland cement, and water. These all react together to form wet concrete. The juice contains calcium hydroxide, a highly caustic chemical. If this soaks into the clothing of the worker, and the clothing remains against the skin, usually the legs, by the time the worker is aware that something is wrong they have suffered nasty burns.

The ready mixed concrete industry is well aware of this danger, but does a poor job of communicating it to customers. The following is an old but effective video warning:

These injuries happen to homeowners and their friends who are building a patio or driveway on the weekend. They happen to longtime masons working on commercial or residential products.

The burns require immediate medical attention, and often require skin grafting to replace the damaged skin and tissue.

For questions about this danger or these injuries, do not hesitate to contact us.