The recent fatal bus crash in Newark reminded me of the obstacles people face when trying to make a claim against a government entity.
As everyone knows, we essentially adopted much of our legal system from England. One of the english principles was that you couldn't sue the King. However, the Federal and most State governments believed that was too harsh and created exceptions to that general rule, known as the Tort Claims Act federally and in most States. Basically, those acts provide that you can't sue the federal, state or local government entity, or it's employees, for injuries caused by their acts/omissions, except under particular circumstances and only after following certain procedures.
New Jersey also has a Tort Claims Act, which requires that the injuries suffered must be severe: "recovery of damages for pain and suffering shall only apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $ 3,600.00.” Obviously, these restrictions severely limit which claims can be made. Although an amputation and scar would seem to meet the requirements, the "permanent loss of a bodily function" type of injury is vague and, as a result, courts have allowed alot of different types of injuries to satisfy that requirement.
One of the pitfalls people face in making such a claim, is the early notice requirement required by the statute. As with most personal injury cases in New Jersey, someone who is injured has two years from the date of injury to file a claim, unless they are a minor, or their claim is barred forever. When they or their child is injured, many people decide to wait to see how they feel and how they are affected by the injuries and whether treatment cures them. Waiting in these types of cases is a mistake. The statute requires that any person who claims an injury must notify the particular public entity, in writing, by certified mail, of their injuries and claim and provide certain details, within 90 days of the date of the injury. If they do not provide this notice, with a rare exception, they are barred from ever making a claim. So, with the belief they have two years to make a claim, many people wait, only to find out too late, they are unable to make a claim, due to their failure to send the required notice.
One of the reasons, you should contact an attorney immediately, if you sustain an injury is because, only an attorney will be able to determine if the Act applies to your claim and which public entity should be given notice. Here’s an example of a case: There’s a large pot hole in a roadway that gets filled with water when it rains and cant be seen at night. One night a drivers car hits the pot hole, causing the car to spin out of control and hit a tree. The driver of the car suffers a serious brain injury. Friends and family tell the drivers family it’s a freak accident, and there’s nothing they can do about it. However, there’s a good possibility this person will not completely recover from the injuries, will require extensive medical treatment for life and will be unable to work and provide for his/her family. Due to the seriousness of the injuries and consequences, the driver’s family contacts an attorney and learns they may be able to make a claim against whatever public entity is required to maintain the roadway. But time has gone by since the accident, so the attorney must do research, find out which entity is responsible for that roadway and send the notice in time. Was it the State, County, Local government? Did a private contractor do something wrong with the roadway that caused the defect? Eventually, a valid claim was made on behalf of the driver and his family, and they were adequately compensated. However, if they had listened to family or friends, or waited too long to speak with an attorney, they would have lost any right to be compensated.
Case Example #2: A woman was volunteering at her child’s school. One of the children in the class was particularly volatile, and it was known by the school and staff that he should be monitored. However, he wasn’t, and he stabbed the woman with a pencil that deeply penetrated her skin. As a result, she developed M.R.S.A. and required extensive hospitalization and surgeries, that almost resulted in her death.
Since this incident occurred at a public school, the school district was responsible for her damages
There are many types of cases to which the Act applies, of which people are unaware. Public entities are involved in a lot of functions that people may not realize, for example:
-N.J, Transit is a public entity, so if you’re injured on one of their buses or trains, the Act applies.;
-Injuries at schools, school yards or government buildings, or during a government function;
-Malpractice and injuries at state hospitals (not just mental institutions), Do you know which ones are state run?;
-Work done by a contractor on behalf of a public entity
The bottom line is that if you or a member of your household are injured, make sure you speak to an attorney quickly. You may or may not have a claim, or it may be too early to know, but at least the attorney can advise you and send the appropriate notices, to preserve your claims for the future.