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Friday, July 20, 2007

NJ Laws Newsletter E170 November 30, 2004

In this issue:
1. Car accident injury must have serious impact on life of plaintiff in order to bring a claim in most cases
2. Liability for Animal Attacks
3. A guilty plea did not estop an insured's assertion that he did not commit assault for the purpose of insurance coverage
4. Surcharges are Judicial liens
5. New articles: Power of Attorney and Estate Planning for Gay and Lesbian Couples
1. Car accident injury must have serious impact on life of plaintiff in order to bring a claim in most cases Serrano v. Serrano 367 NJ Super. 450 (App. Div. 2004).
In an automobile negligence action, the plaintiff did not satisfy the first prong of Oswin v. Shaw because his injuries, which consisted of soft tissue strain and sprain injuries, were not supported by objective medical tests that established significant or serious injuries. The Appellate Division declined to consider whether a plaintiff is required to show a serious impact under AICRA, but it had doubts that a serious and permanent soft tissue injury could exist only where there is a serious impact. Source: New Jersey Lawyer March 22, 2004 p. 13

2. Liability for Animal Attacks
Each year aggressive animals bite over 500,000 people, killing an average of twelve. The majority of dog bite victims are children. Most dogs do not exhibit aggressive tendencies; nevertheless, sufficient provocation may tempt even the gentlest dog to bite.

If bitten, it is important to clean your wounds. Additionally, you should seek medical attention and advice regarding rabies treatment. If you are not familiar with the dog or its owner, contact your local animal control board and report the incident. Animal control officers may be able to locate the dog and determine its rabies vaccination status. See your doctor if you have been injured by a dog or other animal. In addition, it may be important to contact us to help you protect your legal rights. Please keep in mind that there are time limits within which you must commence suit. If someone hops your fence, trespasses on your land, and your dog bites him, you are not liable. However, New Jersey does impose strict liability if your dog bites someone if it is loose or if the person bitten was in a public place or permitted on your property. NJSA 4:19-16 provides: "The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness. "For the purpose of the New Jersey Statute 4:19-16, a person is lawfully upon the private property of such owner when he is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner thereof." Thus, in New Jersey, a dog does not get two bites. A person can even be liable if your dog or other pet or animal injures someone although not biting it. Being jumped on or chased by a dog could be grounds for a civil liability. It is also strict liability if any of your dangerous animals injure someone, i.e. pet, buffalo or tiger.
More information on Liability for Animal Attacks at http://www.njlaws.com/liability_for_animal_attacks.htm

3. A guilty plea did not estop an insured's assertion that he did not commit assault for the purpose of insurance coverage. State Farm & Casualty Co. v. Connolly 371 N.J. Super 119 (App. Div. 2004).
In a declaratory judgment action dealing with a policy exclusion for injuries intended or expected by the insured, summary judgment should not have been granted based only on the fact that the insured had pleaded guilty to third degree aggravated assault where the insured denied committing the assault and the insured's prior inconsistent statement was admissible to impeach his credibility, but judicial estoppel did not bar the insured from attempting to rebut or explain the circumstances surrounding his guilty plea.
4. Surcharges are Judicial liens. In re James, etc. ___ BR ___ 00-15864 (Bank NJ Decided January 30, 2004).
Motor vehicle insurance surcharges imposed under N.J.S.A. 17:29A-35(b)(2) on high-risk drivers are judicial liens and, therefore, are avoidable under 11 U.S.C. § 522(f) to the extent they impair the debtors' exemptions. Source: New Jersey Law Journal February 23, 2004 p. 62

Pardon permits expungement. In Re Petition of L.B. For Expungement of Criminal Records 369 NJ Super. 354 (Law Div. 2004).
A pardon granted by the Governor permits expungement of a criminal record that would otherwise be barred by statute. Source: New Jersey Lawyer May 31, 2004 p. 18
New articles:
5. Power of Attorney and Estate Planning for Gay and Lesbian Couples
Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
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