Pezzano Mickey & Bornstein April 2019

APR 2019

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Perspectives PMB

CONTESTING YOUR RIGHT TO SUE What Restricting Litigation Means for the Average Citizen

Over the years, there have been tort reform efforts across the country that have sought to pass laws restricting litigation. This trend extends beyond New Jersey, and these laws often pose constitutional questions. The efforts stem from those who believe that our society is too litigious, that litigation is rampant, and that we all pay for it as a result. Those who hold this viewpoint see restricting a citizen’s right to sue as the solution. As part of this solution, they have pushed for caps on the amount of damages a claimant can recover. A number of bills introduced in New Jersey have sought to cap damages, most notably in medical malpractice cases. Members of the New Jersey bar continue to fight attempts to cap damages. We want you to be aware of how these laws can affect you. Here are some of the laws that may restrict your right to sue. The Charitable Immunity Act precludes a negligence claim against a nonprofit corporation, society, or association organized exclusively for religious, charitable, or educational purposes by anyone who is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society, or association. Under the Charitable Immunity Act, a nonprofit hospital can be sued for negligence, but damages are capped at $250,000. The New Jersey Charitable Immunity Act

Act, immunity is the general rule and is subject to various exceptions. In situations where it is possible to bring a claim against a public entity, there are strict requirements concerning notice, what constitutes an exception to the general rule of immunity, and what damages are available. New Jersey’s Comparative Negligence statute provides that an injured claimant may not recover damages if his or her own negligence is greater than that of the person against whom recovery is sought. In other words, a claimant who is at most 50 percent responsible for the accident may still recover damages, but those damages are reduced by the percentage of the claimant’s own negligence. A claimant who is more than 50 percent responsible may not recover damages at all. The New Jersey Comparative Negligence Act

restricted the ability of injured people to sue those responsible for their injuries. The law allows you to select an unlimited right to sue in exchange for higher premiums. Alternatively, you need to satisfy the requirements of the statute, including proving a permanent injury. Most recently, on March 26, 2019, the New Jersey Supreme Court decided the case of Haines v. Taft. Prior to that decision, a person who purchased less than the standard PIP coverage of $250,000 and had an actionable claim against someone else who negligently caused their injuries could recover uncovered medical expenses from the negligent driver who injured them. The Supreme Court reversed, holding that unpaid medical expenses over the amount of coverage the injured person has purchased cannot be recovered from the negligent party who caused the accident. These and other cases are indicative of the legal trend we are seeing toward restricting litigation and enforcing caps. If you have any questions about the laws I’ve covered here, or about litigation in general, don’t hesitate to reach out. We are here for you.

The New Jersey No-Fault Law

The New Jersey Tort Claims Act

Nowhere has the effort to restrict a victim’s rights been more prevalent than in litigation involving automobile accidents. From the time the No-Fault Act was passed in 1972, it has

The Tort Claims Act governs claims against public entities, such as the state, a county, or a municipality. According to the Tort Claims

–Wendy Bornstein | 1

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