Ice and Snow and Accidents, Oh My!
March 19th, 2010
This winter has been a bonanza for slip and fall accidents caused by ice and snow. Roadways, sidewalks and parking lots became treacherous traps for the unwary. However, slip and fall cases due to ice and snow are challenging cases for attorneys to pursue because the law generally does not hold a landowner responsible for naturally occurring conditions. A property owner does have a responsibility to clear abutting sidewalks and businesses must clear parking lots and other areas of pedestrian traffic in a timely fashion, but once the snow is shoveled and salt is spread, it is difficult to hold the property owner responsible for hazards that reappear such as black ice.
In Pennsylvania, snow and ice slip and fall accidents are controlled by a doctrine known as the “Hills and Ridges” Doctrine. In plain English, what the doctrine requires is some evidence that the snow and ice was present in sufficient ridges or elevations to obstruct travel and for a sufficient duration that the property owner should have known about it and taken remedial action. The “Hills and Ridges” Doctrine is easier explained through examples. Where a parking lot was plowed after a snowstorm and the plaintiff stepped out of her car and fell on a large patch of ice, the court dismissed the case. The court ruled that the ice did not obstruct travel and, due to a recent storm and generally slippery conditions, the property owner had taken reasonable steps to clear the parking lot. In another case, however, where plowing created a barrier between parking lot and sidewalk and the plaintiff fell while attempting to climb over, the court allowed the jury to consider whether the property owner failed to provide reasonable access to the sidewalk.
As with most legal doctrines, there are always exceptions. The Hills and Ridges Doctrine only applies when there are generally slippery conditions prevailing in the community. I settled a case in which the parking lots and even several areas of sidewalk in a community association were bone dry, but the maintenance crew had given up on one particular stretch of sidewalk judging the ice there to be too thick to warrant the effort. The doctrine also does not apply when a property owner’s actions, rather than naturally occurring conditions, causes the ice or snow build-up. The best example of this exception is where a downspout discharges water onto a pedestrian pathway which then freezes and creates a frozen pool.
The theory underlying the Hills and Ridges Doctrine is that pedestrians are more aware of the potential to slip and fall when there are generally slippery conditions prevailing after inclement weather. The law thus charges them with exercising greater caution. However, as more time passes after a storm event, or in the case of property owner actions causing a slippery condition, the duty to exercise care becomes greater on the property owner and lessens on the injured party.
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Is Texting On An Employer Provided Cell Phone Private?
March 9th, 2010
The Supreme Court will soon consider the case of a California SWAT team member whose sexually explicit text messages cost him his job. In City of Ontario v. Quon, the Justices will decide whether an employee has a reasonable expectation of privacy in messages transmitted through an employer provided means of communication. At stake is the balance between employee privacy rights and an employer’s right to control use of its property and monitor employee activity.
In this case, my money is on Mr. Quon. The city did have a policy prohibiting personal use of email and pagers. It notified employees that communications on company devices may be monitored. However, a senior official then made an unofficial practice of looking the other way. As long as the employee paid any overage charges, text messaging accounts were not audited. Mr. Quon dutifully paid his bills. After this went on for awhile, the official had a change of heart and decided to audit the text messaging accounts to see just how much personal use was occurring. During the audit, Mr. Quon’s sexually explicit messages were uncovered.
Note to employers: If you have a written policy, stick to it! There is nothing a plaintiff’s employment lawyer likes to see more than a company who promotes a written policy and then flagrantly disregards it in practice. (Juries hate hypocrites). Had the city consistently enforced its written policy prohibiting personal use of email and pagers, Mr. Quon would not stand a chance. He was aware that his communications could be monitored. Nevertheless, I predict the Justices will find the unofficial action implicitly permitting personal use as long as the employee paid the overage charges restored to Mr. Quon a reasonable expectation of privacy in his texting.
The boundaries of privacy in the workplace have long been in flux. Some areas are settled. An employer may search an employee’s workstation. It may not monitor bathroom stalls. Use of electronic communication devices is the new privacy frontier in the workplace and elsewhere. (See Lower Merion Laptop Lapse blog). To remove uncertainty, all employers should have an explicit privacy policy, distributed in an employee handbook or separately, notifying employees in boldface large font letters that they DO NOT HAVE AN EXPECTATION OF PRIVACY IN THE WORKPLACE. The policy should state it includes the use of any company provided equipment and that employee use of the equipment may be monitored. Employers without a policy, or who depart from a published policy as the city of Ontario did, do so at their peril.
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NJ Verbal Threshold v. PA Limited Tort
March 2nd, 2010
Pennsylvania and New Jersey both have laws designed to reduce automobile insurance rates by offering motorists the ability to give up the right to sue for pain and suffering for so-called minor injuries in exchange for lower insurance premiums. However, each state’s law has significant differences which may impact how your attorney evaluates your case.
In New Jersey, the Automobile Insurance Cost Reduction Act specifically defines six categories of injuries which, if incurred, enable the injured person to avoid the “verbal threshold” and collect money damages for pain and suffering: (1) death; (2) dismemberment; (3) significant disfigurement or significant scarring; (4) a displaced fracture; (5) loss of a fetus; and (6) a permanent injury within a reasonable degree of medical probability other than disfigurement or scarring. The first five categories are fairly straightforward. Although what is “significant” scarring or disfigurement may be a matter of contention, whether scarring or disfigurement is present is not.
Defining a permanent injury to qualify under the sixth exception to the verbal threshold requires a doctor’s written certification. Notably, neither the doctor nor the plaintiff must demonstrate that the injury has had a significant impact on the plaintiff’s lifestyle or activities. The doctor need only state his opinion that a permanent injury occurred as a result of the accident. Under New Jersey law, unlike in Pennsylvania, a herniated disc or a nerve injury may overcome the verbal threshold if a doctor certifies that the injury is permanent and related to the automobile accident even though the plaintiff continues to work and participate in activities at his or her pre-accident level with little or no pain. Without a doctor’s certification, however, a plaintiff does not have a case. Persons injured in an automobile accident in New Jersey should discuss this requirement with their attorney. While the plaintiff has sixty days after filing the complaint to file a doctor’s certification, there is no point in wasting money on filing fees if you don’t know your doctor will support a permanent injury. The attorney, doctor and client/patient should all be on the same page before a lawsuit is begun.
In Pennsylvania, there are no specifically defined categories of injuries that automatically overcome the “limited tort threshold.” The law states that the person must have suffered “a serious permanent impairment of a body part or function.” Pennsylvania does not require a doctor’s certification in order to bring a lawsuit. However, the Pennsylvania Courts have interpreted the law to require that the injury be more than permanent, it must also be serious. Inability to participate in casual hobbies, some pain and limited range of motion, and even some loss of time from work do not qualify as “serious.” There must be significant loss of work or impairment of one’s ability to function at work, significant pain and restriction of motion, or significant alterations of daily activity like requiring another’s assistance to do activities one previously performed independently. Sometimes, loss or impairment of a part time hobby or sport may be considered serious if it was income producing or a regular and routine endeavor( not playing golf in a foursome every weekend over the summer). Ultimately, in Pennsylvania, it may be up to a jury to decide whether the plaintiff’s injury is serious enough to overcome the limited tort threshold. For that reason, New Jersey’s law has been more effective in reducing the number of automobile accident cases filed in the courts. Pennsylvania gives injured persons greater access to the courts but a higher hurdle to overcome.
There is one easy, sure-fire (though more expensive) way to avoid having to provide a doctor’s certification or persuading a jury that your injuries are serious and deserving of compensation. Select full tort for your automobile insurance policy.
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Let It Snow!
February 25th, 2010
As I am sitting here in my home office watching another several inches of snow adding to this record breaking winter, I am trying to decide how to plan my day tomorrow while I wait for the local government to plow my street. With the wonder of remote access, email and call-forwarding, I really don’t need to go into the office except to meet clients.
There are a few contracts to draft for clients and some discovery requests to write in a couple of discrimination cases heating up in federal court. I have the end-of-the-month bills to pay and the all-important invoices to prepare on Quickbooks and get in the mail next week. I even brought documents and deposition transcripts home to review.
Wait . . . they just announced the schools are closed tomorrow. I have three daughters, age 11 (twins) and 7, and they are growing up so fast. Life in my own law practice has its challenges, but what it offers me is the ability to say I’ll work late tonight, tomorrow night, too, if necessary, but tomorrow, I’ll build a snowman with them instead.
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Lower Merion Laptop Lapse Not News To Employees
February 24th, 2010
The Lower Merion School District’s laptop brouhaha has been garnering a significant amount of print and air time since a lawsuit was filed claiming the school district used the laptops to spy on students. The Lower Merion case is notable for the sheer number of laptops issued to an entire school population without much forethought of privacy issues. However, there have already been several instances of employees discovering they have been secretly monitored by security systems installed on laptops issued by their employers. Employers monitor employee computer use and internet activity for a variety of reasons. Security programs can tell the employer whether the employee is limiting the computer’s use to work related matters or surfing the web on the employer’s dime. They can also alert the employer to possible instances of corporate espionage and other illegal activity.
The key word here is DISCLOSURE. If an employer (or school district) makes a laptop available to an employee or student, it should make full disclosure of the security system features and notify the user that it can be turned on at anytime to track the laptop’s whereabouts. If the user then willingly accepts the laptop and signs a consent form acknowledging awareness of the security features, the employer or school district has alleviated any privacy concerns.
In the Lower Merion case, one wonders whether the IT gurus or school administrators who came up with the laptop program ever bothered to consult the school district’s legal counsel? Schools obtain parental consent forms for children to attend field trips and activities off school premises. Yet, no one ever thought of a parental consent form for a school-issued laptop to children? Or did they just think no one would notice the webcam?
Posted in Employment Law | 2 Comments »
How To Represent Yourself Without A Lawyer – Part V
February 18th, 2010
Residential landlord/tenant cases are also handled by the local district courts in Pennsylvania as well as the Special Civil Part in New Jersey. If you are a landlord with a problem tenant or vice versa, much of the information covered in my previous blogs regarding where to file your complaint and how to proceed will be applicable to you as well. However, there are some differences. Let’s start with the landlord first.
The complaint will ask you whether you are seeking a judgment for money or possession or both. If you want both, say so. Otherwise, you may not get relief you forgot to ask for. Getting a judgment for unpaid rent is fairly easy. Still, it is good practice to keep a payment log so you can easily show the judge which months, and whatever additional late fees, utility bills, or other additional rent are due. If you are seeking possession, you better be able to show you gave written notice to vacate in accordance with your lease or at least 30 days’ notice if month to month. Be sure to show a credit for the security deposit against the unpaid rent or damages you are seeking. And don’t forget to give a copy of the lease to the judge!
New Jersey is especially tough on landlords. Not only is it tougher to evict tenants in the Garden State, New Jersey’s Anti-Eviction Act does not allow landlords to simply refuse to renew a residential lease except under the circumstances set forth in the Act. Therefore, landlords have a greater burden than tenants to document to the penny the rent owed and to show repeated breaches of the lease by the tenant or the likelihood that the tenant’s continued occupancy would risk injury to persons or property. If the police have been called out to the property, get the reports. If the property has been damaged, take pictures. Again, a payment log will help you show the tenant is habitually late with the rent. Finally, landlords should make sure their properties are in good repair before they seek to evict a tenant. A tenant can raise a code violation as a defense which, in New Jersey, will result in the judge throwing the case out until the landlord can demonstrate the property is up to code.
If you are a tenant with a slumlord, you need not grin and bear it. However, you cannot simply stop paying rent and spend it on other things instead. If you withhold rent, set up an escrow account at your bank and pay the money into the account every month on time. Before withholding rent, be sure you can document that you gave notice of the items needing repair to the landlord. These items should be something that create a health or safety hazard or seriously disrupt your occupany like a leak or faulty electrical wiring. I do not recommend withholding rent for flaking paint (unless it is lead) or other cosmetic defects. Take pictures to show the judge the conditions the landlord is forcing you to live in. You may file a complaint yourself to compel the repairs, but withhold rent long enough and you will be sure to get your landlord’s attention.
So there you have it! Spend a little money for a consultation and save yourself alot by representing yourself in small civil matters in your local courts.
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How To Represent Yourself Without A Lawyer – Part IV
February 16th, 2010
Unlike in Pennsylvania, New Jersey’s municipal courts are reserved for motor vehicle, criminal, and local ordinance violations and other non-civil matters. In New Jersey, the court for small civil claims is a division of the New Jersey Superior Court called the “Special Civil Part.” It is broken down into two sections: claims not exceeding $3,000 and claims in between $3,000 and $15,000. The forms for filing a claim can be found at “NJCourts Online.” The web address is www.judiciary.state.nj.us. Go to the “Self-Help Resource Center” for all the forms and information you will need to represent yourself in a small claim in New Jersey.
One important difference in New Jersey for claims between $3,000 and $15,000 is the ability to take limited discovery. Again, “discovery” is simply the opportunity for one party to find out what the other party has in the way of evidence before you get to court. In the Special Civil Part, you may send your opponent a request for any documents he or she may have and the names of witnesses that may be called to testify. You may also serve “interrogatories” which are simply a series of questions to your opponent asking them to tell you what they know about the case. For example, in our ABC Contractors case, the contractor might want to send interrogatories to the plaintiff asking whether the dishwasher overflowed after the floor was installed, when it overflowed, whether they called a plumber, and so on. Drafting effective interrogatories often requires legal training. However, in a small case, asking the obvious questions will at least enable you to reduce the risk of surprise when you get to court.
Of course, with every upside there is always a downside. Your opponent may not answer your questions or send you the documents he has. You may ask the court to compel him to do so. Yet, all of these extra discovery matters will delay your day in court perhaps by several months. Accordingly, you have to give serious consideration to how much you really need to know from your adversary before engaging in even limited discovery.
Did I mention that it is well worthwhile to pay for a consultation with an attorney before setting out to represent yourself on your own? At the consultation, the attorney can offer you guidance on whether to engage in limited discovery and what to ask for.
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How To Represent Yourself Without A Lawyer – Part III
February 1st, 2010
Unfortunately, you have just received notice of the plaintiff’s complaint. You are indignant, irate, and ready to do whatever is necessary to defeat this frivolous claim. Once you have calmed down and are thinking rationally, there are several factors to consider.
Let’s say you are ABC contractors in my example from Part II. If your company is a separate legal entity (e.g. a corporation, limited liability company, partnership), then it must be represented by a lawyer, not yourself. Sorry, but that’s just the law and trying to do it yourself will only cause more problems.
However, if ABC contractors is just you, a sole proprietor, or if you have been sued as a person, be sure to send the form back to the district court saying you wish to defend. Otherwise, a default judgment will be entered against you. Once you get a date for the hearing, you must also consider what evidence you will need to win your case. One strategy may be to wait and see what the plaintiff produces as evidence. If the plaintiff cannot come forward with evidence that the flooring or installation was defective, you may not need to offer any evidence at all. However, it is better to be prepared to present a defense than to be unprepared and hope you won’t have to. In District Court, there is no “discovery,” an opportunity to learn what the other side has in the way of evidence before the hearing. Therefore, you must anticipate and prepare for the documents and pictures your adversary may possess.
“Documents. Pictures. Organization.” applies to the defendant’s case as well. ABC contractors may want to highlight the language in the contract which states ABC is not responsible for damage or misuse after installation. Then introduce photographs. First, show the judge a photograph of the floor just after installation. Then show the judge photographs taken during your inspection after the plaintiff notified you of the problem showing watermarks near the dishwasher and how the buckling of the floor originates or is most noticeable in that area. You have established a defense to causation. ABC Contractors’ contract and pictures presented in chronological order demonstrate that the floor was in good shape when it left and the damage arose afterwards.
If you can’t disprove the fact that the flooring or installation was defective, then attack the calculation of damages. Point out that you removed old flooring also and the entire project only cost $3000. Or show the judge that the repair estimate includes a different, more expensive tile or hardwood than was in the original contract. The plaintiff is only entitled to the floor he or she was promised, not a better one at your expense.
In your defense, consider any written evidence which may contradict the claim the plaintiff is making, for example, emails, letters, and receipts of payment which may demonstrate the plaintiff calculated the balance due incorrectly. Oral evidence may also be admissible, but it’s weight will come down to the judge’s view of the parties’ credibility which is anybody’s guess.
As a defendant, you should also be open to settlement. A good lawyer will know the weaknesses of his or her case and take that into the calculation of a reasonable settlement. Anyone representing himself in District Court should also. Being unreasonable and taking an “all or nothing” approach may result in nothing more than an appeal and more wasted time and money.
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A Sign Of The Times
January 28th, 2010
My trusted and dependable paralegal is leaving for a bigger firm with better compensation than I can offer. I’m happy for her. She’s a hard worker. But it sent me off on another search to find just the right person to fill the position. Monday afternoon, I posted the opening on Monster.com. By Wednesday morning, I received 71 resumes. I have received 11 more since then as well as six resumes through word of mouth. Many were college graduates and two even had law degrees.
I’ve been frustrated lately in my efforts to pursue a goal apart from the practice of law. Not a single literary agent I have queried has asked to see even a partial submission of my finished novel, a work of historical fiction set in the Civil War. With each new rejection, I have fumed and wondered how the agent could make a snap decision on my literary future often based on nothing more than the query letter. How could they be so blind to the brilliance of my craft?
And yet here I am, deluged with resumes the way agents are deluged every week with query letters, having to make snap decisions on whom I will interview based on a few sheets of paper. Sometimes, it is easy. The person cannot fashion a proper sentence or misspellings abound. But many are qualified, even over-qualified for the position of secretary/paralegal/office manager/attorney’s right arm in a small law office. I passed on several based on nothing more than a gut feeling. I have chosen to interview thirteen. I can hire only one.
So agents, now I understand. And while the rejections still hurt, at least mine have occurred in pursuit of a passion, not employment. I feel for all the people who have taken the time to submit their resumes to me hoping to find a job. If I can offer any words of advice to those not hired, and authors unpublished, it is this: Don’t give up.
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How To Represent Yourself Without A Lawyer – Part II
January 25th, 2010
In this blog, I’ll be discussing what you should do if you’re the plaintiff. Hopefully, you have read Part I, gone to the PA Courts website at www.aopc.org, found the location of your local district court, paid your fee, and have received a notice of your hearing date. If you haven’t, go back and read Part I before proceeding.
The plaintiff is the person with something to prove. You have filed a complaint saying that someone or some company owes you money, so you better be ready to prove it. If all you have is your word, you might as well stay home. One person’s story, without anything to back it up, isn’t very convincing.
Documents win cases. If there are relevant documents, bring them and have extra copies for the judge and the defendant. Highlight the sections of the documents you feel support your case. For example, if a contractor promised to do something in a contract and failed to do it, highlight the language in the contract. Don’t make the judge go look for it.
Photographs of any damages to personal property or real property are essential. If the tenant left your rental home in shambles, show the judge! As they say, a picture is worth a thousand words.
Organization is key. Remember, a district court judge may have dozens of other cases to decide, so you want to get to the point and present your evidence in an orderly fashion the judge is likely to remember. Generally, try to present your case in chronological order perhaps with even a chart of key dates or events for the judge and a calculation showing how you added up the total damages. Tell a story. Make it interesting.
Let’s try a simple contract case. You hire ABC contractors to install a new kitchen floor for $3000. After installation, you notice the floor is buckling in several places. ABC refuses to make repairs. You either pay or obtain an estimate of $4000 to remove the existing flooring and reinstall new flooring. (Remember, $8,000 is the limit in PA for district court. Anything higher, and you will want to consult an attorney.) To prove your case, you should present at a minimum (1) a copy of your contract with ABC contractors, (2) photographs of the damaged flooring, and (3) a copy of the estimate for repairs hopefully identifying the defects in ABC contractor’s work. It can be that simple. Documents. Pictures. Organization. You hired someone to do a project (document). They messed up (pictures). Now it will cost you more to fix (more documents). A story presented in a logical sequence (organization).
Other evidence that can be helpful are letters or other writings by the parties, testimony of witnesses who personally heard or saw something relevant to the case, or even the damaged property or other physical evidence. However, in most district court cases, documents and pictures are sufficient.
Because there is no discovery in small claims, you won’t know what the defendant may offer as evidence until you get to court, but you can try to anticipate. In our contract case, for example, ABC contractors may have its own pictures of the finished project, so make sure yours are dated. Or ABC may claim the buckling occurred after the dishwasher overflowed and is not a result of faulty installation or flooring. Anticipate their arguments and prepare to refute them.
Every case is different. Not all cases are straightforward like the contract case I used as an example. It is well worth the consultation fee to sit down and talk it over with an attorney before you try it on your own. And, finally, be open to a settlement. The judge will usually require the parties to talk before he hears the case and will warn you that one of the parties is not going to be happy with his or her decision. Going home with some money in your pocket is better than getting nothing for your efforts.
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