Articles

We are all exposed to the dangers of trips and slips that can result in serious injuries.  An unexpected fall can have significant impact on our health.  The Law firm of Kamensky Cohen has represented many people who have sustained life-altering injuries arising from falls due to the negligence of others. This has become even a greater problem with the downturn in the economy as people and businesses are doing less to maintain their property as required by law and common decency.

While businesses continue to invite you to their stores to shop, and while there, present you with advertising and displays designed to distract you, they are leaving you vulnerable to dangerous conditions when they fail to adequately maintain their property. Some of the situations leading to injurious fall-downs that our firm has encountered are:

1. Improperly constructed/maintained handicap ramps.
2. Improperly constructed/maintained stairways.
3. Poor lighting in dark areas.
4. Holes, deep cracks, potholes and improperly designed walkways in parking lots, especially in high traffic areas where the public may be carrying packages blocking their view.
5. Poorly maintained sidewalks, stairwells and walkways in residential rental communities.
6. Spills in stores
7. Poor snow and ice removal in residential and commercial parking lots and walkways.

These are only a few of the many problems that are becoming more and more common as businesses and individuals fail to allocate their resources towards safety and precaution in tough economic times.

Kamensky Cohen has represented people with injuries arising from trip/slip and falls ranging from broken bones to severely impaired vision, and even brain damage resulting in cognitive difficulties.   If you fall and hurt yourself, the first thing to do, of course, is to get medical assistance to be certain that your injuries, if any, are properly attended to.  If you think your fall may have been the consequences of the negligence of another in maintaining their property properly, you may have a reason to pursue damages for the injuries that you have suffered.

It is extremely important that you contact competent counsel as soon as possible so that photographs and measurements can be taken of the area that caused the problem.  Even if you are uncertain of the nature and extent of your injuries, do not delay in seeking legal counsel as a delay in undertaking the proper investigation at the site where you fell can be damaging, if not devastating, to your any claims you may eventually have.  If you wait too long and the problem area has been repaired by the time the investigation is conducted, there will be little evidence of the original negligence that precipitated your fall.  Photographs and measurements, properly taken will be of great assistance in pursuing your claims should you decide to do so.

Kamensky Cohen & Associates knows and will take the necessary steps to conduct a proper investigation as soon as we are contacted for injuries sustained as a result of slip/trip and falls.  With the right representation, you are assured of your rights!

Q:        As an employer, how can I avoid having discrimination charges filed against me?

A:         The best way to avoid having discrimination charges filed against you is to know the law and not to discriminate. Having sound policies and procedures and applying them equally will go a long way to prevent a complaint from being filed against you.

Q:        What accommodations do I have to make for a disabled employee or for an employee’s religious beliefs?

A:         All “reasonable” accommodations.  What is reasonable is determined on a case-by-case basis.

Q:        My employee handbook is ten years old, should it be updated?

A:         The law is ever changing with each new case.  It is recommended to conduct an annual assessment of employer anti-discrimination and discipline policies.

Q:        Must my New Jersey company post any notices?

A:         Yes.  It is necessary to ensure that all worksites properly post the Employment, Family Leave Act, and Public Accommodations posters as required under New Jersey law. Failure to do so will subject an employer to a fine of up to $10,000 for a first offense.

Contact Kamensky Cohen today to arrange for an appointment to discuss these, and any other employment related issues.  A short and inexpensive appointment will provide you with the answers to many questions that could save you thousands of dollars and provide a safe and happy environment at your workplace.

There is a growing trend in New Jersey to prosecute public servants for misconduct in office. This includes, but is not limited to, police officers, state workers, county employees, and elected officials. Further, the number of public servants being prosecuted for so-called misconduct in office is exponentially increasing. Meanwhile, the alleged evidence for such prosecutions appears to be thinning with each new case.

So what exactly is official misconduct? In a nutshell, the official misconduct statute, N.J.S.A. 2C:30-2, is an extremely broad statute that allows the State to prosecute public officials for various acts of misconduct in office. Most surprisingly, a public official can be charged with official misconduct even in situations where the alleged misconduct does not violate any laws. In essence, any violation of work policy could expose a public servant to charges of official misconduct.

To make matters worse, if you are charged with official misconduct and the State alleges that in committing the so-called misconduct, you received a benefit that either has no monetary value, or has a monetary value over $200.00, then you will likely be charged with second degree official misconduct – a charge that carries a penalty of no less than five years in prison. Furthermore, if you are charged with committing official misconduct on more than one occasion, the State may even charge you with committing a so-called “Crime or Pattern of Official Misconduct,” in violation of N.J.S.A. 2C:30-7.

Confused? You’re not alone. Recent Appellate and Law Division Opinions have wrestled with the vast breadth of the Official Misconduct statute. In fact, in 2008, the Appellate Division in State v. Thompson, et al, tried to explain the reach of the statute’s two subsections, noting that while subsection “a” did not require the commission of a crime to be held valid, subsection “b” did. Unfortunately, though the Thompson Court’s Opinion helped to curtail the reach of subsection “b” violations, it did very little to explain or rectify the breadth of subsection “a”. Thus, notwithstanding the Thompson decision, the official misconduct statute continues to confuse New Jersey citizens and attorneys alike.

If you or a loved one has been charged with Official Misconduct, it is crucial that you retain an aggressive attorney who understands the official misconduct statute and its current treatment by the Court. The Attorneys at the Law Offices of Kamensky Cohen & Associates have been providing aggressive legal representation for over thirty-five years. For a free consultation with one of our attorneys, please call Kamensky Cohen & Associates at 609) 394-8585.

If you are filing or thinking of filing a case against your employer indicating emotional distress due to harassment, beware of what you post on Facebook or MySpace.

Despite obvious issues with privacy concerns, a court in India has required employees claiming emotional distress in a sexual harassment case to provide any entries that the employees’ posted on their social networking sites (SNS), such as Facebook and MySpace, regarding their emotional state.  EEOC v. Simply Storage Management LLC. (S.D. Ind.) Case No. 1:09-cv-1223.

While the content disclosed by an employee must be proven relevant to the case at hand, this decision is troubling for any employee pursuing a sexual harassment claim.  In part, the court determined that “the appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for claimants . . . that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.”

While EEOC v. Simply Storage Management LLC is not binding law in New Jersey and Pennsylvania, it raises an important issue.  If you are considering or currently pursuing a claim, be aware that your employer may attempt to gain access to your SNS content.

In New Jersey, an employee who is injured while at work is entitled to free medical benefits, temporary disability benefits, and (if appropriate) an award for permanent disability. The first two benefits are generally provided by the employer immediately after the injury without the assistance of legal counsel. However, the third aspect, concerning the permanency of the injury, is often highly contested. It is at this stage that selecting the right attorney to pursue your claim is invaluable.

Your attorney will begin the litigation process by filing a formal Claim Petition. Once the claim is filed, the process of accumulating the records from the treating doctors begins. Pursuant to the laws of New Jersey, your employer will provide all records in their possession to your attorney free of charge. Once all of the records are received, they will be sent to a neutral doctor who will perform an evaluation to determine your degree of permanent disability. In addition, your employer will also require that you attend a physical or mental examination with a physician of their choice for an estimation of disability.

Once the separate reports are received, the negotiation process begins and each party’s respective positions as to permanent disability are presented to the Judge of Compensation. He or she will review these reports and make a recommendation as to the percentage of the disability. If the parties agree with the Court’s determination, the matter is scheduled for a date in which the Court can formally approve the settlement. In New Jersey law, all workers’ compensation settlements must be approved by a Judge of Compensation in open court. If the parties cannot agree on a settlement, a formal trial will be conducted at which time testimony of witnesses will be heard. At the conclusion of all of the testimony, the Judge will deliver a decision regarding permanent disability, which is binding on all parties.

As always, if you have any questions, please do not hesitate to contact us at Kamensky Cohen for assistance with all of your Workers’ Compensation questions.

For more information, please visit http://kc-law.net

In Pennsylvania, many small businesses incorporate or form limited liability companies unaware that simply creating the corporate entity is not enough to effectively defer the liability or risk.  The Pennsylvania Supreme Court has articulated factors it will consider in determining whether or not it will disregard the corporate form or “pierce the corporate veil.” The factors to be considered in disregarding the corporate form are “undercapitalization, failure to adhere to corporate formalities, substantial intermingling of corporate and personal affairs, and use of the corporate form to perpetrate a fraud.”  Lumax Industries v. Aultman, 543 Pa. 38, 42 (1995).  Fully understanding these factors and their application is essential knowledge for any corporate business owner.

It is important to know the current state of Pennsylvania law or the efforts to incorporate or form a limited liability company may be worthless if a court “pierces the corporate veil.”  At Kamensky Cohen & Associates, we can counsel you on the current state of Pennsylvania law in connection with “piercing the corporate veil” and other corporate issues.  Please contact us today.  We look forward to speaking with you.

For more information, please visit http://kc-law.net

Our office is presently involved in two cases involving millions of dollars in damages to innocent persons and companies.  These cases represent examples of the disastrous effects of failing to respond to legal documents.

The first case involves a business that was served with papers naming them as defendants in a lawsuit.  The manner in which the business was conducted apparently left a gaping hole for the transfer of documents from the day-to-day operations of the business to the management of the company.  On several occasions papers involving the lawsuit failed to reach management which resulted in a default judgment in an amount in excess of $1 million.  The most salient factor about this case is that, had our clients responded initially, there was no likelihood that the plaintiffs would have had any recovery against our clients and the cost of representing them would have been about one tenth of what it will cost them to dig them out of the hole they are in.  We are now involved in an expensive battle to vacate that judgment which is certainly not a sure thing.  The lesson   —  whether you are a business or an individual it is your responsibility to see to it that legal documents received by you are reviewed by a competent attorney and a determination made as to what is necessary in order to protect your interests.  The cost of that review is minimal, especially when compared to the losses that can be encountered if you fail to respond.

Approximately 2 weeks after we began work on the above matter a similar case came to us from our forwarding counsel in Australia.  The client is a sophisticated world businessman with interests in the United States, Europe and the Middle East.  This client has had his Real Estate (valued in excess of  $2 million) seized by an individual that he believed was his managing agent at that property.  The short version of what had occurred is a business associate of our client was installed in the U.S. to manage his business interests at a particular horse location used for the training of race horses.  The business associate filed a lawsuit making fraudulent claims and then intercepted all of the legal documents. As a result a judgment was obtained and a sheriff’s sale resulted in the sale of the property to the same individual who engaged in the fraudulent activity.  This case is pending before the courts, with a lis pendens placed on the property by our offices which will protect the property from being conveyed to any innocent third party while we conclude our fraud claims against the former perpetrator of the fraud.  The lesson—you must have trustworthy people reviewing your mail and acting on your behalf.  It is recommended that more than one person be involved in the receipt and review of mail. There is no sure way to protect against fraud but checks and balances will help.  Call us if you need assistance protecting your business, whether before or after the disaster occurs.

For more information, please visit http://kc-law.net

When the negligent actions by an individual are responsible for the loss of another’s life, although the deceased’s family will grieve their loss, New Jersey’s laws limit their ability to recover for the grave consequences of the lost life. To date, all attempts to change those limitations that  the law presently has in effect, have been thwarted.

New Jersey law presently allows for two types of claims that can be brought when dealing with a fatality resulting from the negligent conduct of another.  They are the Wrongful Death and Survival Actions and they differ significantly as to the damages that can be recovered, the beneficiaries of the compensation, and the legal representative that can bring the claim.

Survival Action claims are brought for the damages that are sustained by the decedent from the onset of the injury caused by the negligent act (a tort) to the decedent’s death.  Generally, these damages consist of conscious pain and suffering claims, funeral expenses, medical bills, and lost wages that accrue between the time of injury and death.  Since these damages are damages that the decedent sustained, these damages will “pass through” the decedent’s estate.  This means that the only person with the legal capacity to bring a suit for the Survival Action is the Administrator or Executor of the Estate. The beneficiaries of the Estate’s recovery for a Survival Action will be limited to the heirs of the Estate whether named in a will or, if there is no will, determined by the laws of intestacy.

Wrongful Death claims are designed by our laws to compensate, in part, the people that sustained economic losses from the death of a loved one.  The emotional anguish and consequences of sustaining a tragic loss of a family member are not recoverable pursuant to the limitations of the laws of New Jersey.  Only the pecuniary losses are recoverable, which are the monetary value of the losses that the decedent may have provided or been expected to provide to the survivors.  These are specified as such things as financial support, advice, household services, guidance, care, companionship and comfort.

These pecuniary losses are determined to have a financial value, which can be awarded by the jury in a trial involving the death of another.  The courts are required to instruct the jury that they are not to award for the emotional component of the losses, only the financial value of the losses.  Courts will instruct a jury that they are not to consider the emotional satisfaction that would have been provided had the decedent lived, such as seeing a daughter walk down the aisle on her wedding day or the inability to hug a child.  These are the limitations that New Jersey law imposes on the potential recovery in a wrongful death action.

Kamensky Cohen is presently involved in several wrongful death claims that differ vastly in the amounts that can be recovered.  An example is a case involving a mother struck by a car who died instantly.  As there was no conscious pain and suffering due to the instantaneous death, and the woman did not work outside her home, the recovery is limited to the amount that a jury would award for the loss of advice, household services, guidance, care, companionship and comfort that might have been available to those entitled to receive those elements of damages in the remaining lifetime.  Our jury verdict research coupled with years of experience handling these matters, tells us that these cases are resolved for low six figure amounts.  If, however, the mother in question suffers for hours or days before her death and/or has had substantial earnings with a long remaining work life expectancy the damages that are recoverable could be in the millions.  While this does not seem fair or just to the survivors of such a tragic loss, this is New Jersey law as it presently stands, seeming to favor only those losses that can be quantified by economics.  While it is understood that no money can compensate for the emotional loss of a loved one, it is equally difficult to understand the legislators thinking in these arbitrary standards as to what “loss” is and what kinds of “value” to place upon it.

In any case, should your family face the tragedy of the loss of a loved one due to negligence of another, seek experienced legal advice and representation.  A good lawyer can help your family recover damages and, to the extent that it can ever be, help you address your grievances.

For more information please visit http://kc-law.net

Injured on the job? Although worker’s compensation can usually take care of medical bills, lost wages and claims for permanency, there is no way to recover against your employer for pain and suffering or loss of enjoyment of life pursuant to the workers compensation act. The trade off is you can recover regardless of whether or not the injury was due to anyone’s negligence, even if it was your fault. The injury on the job is all you need to prove.

There can, however, be a claim for the pain, suffering and loss of enjoyment of life against another party; i.e. a “third party claim” if the person causing your injuries is not employed by your employer. This “third party” can be anyone who causes your injury and is not employed by your employer. We have brought such claims against manufacturers of defective products, employees of other employers who may be working on the same job with you, or anyone other than a member of your company that has caused your injuries due to their negligence.

Sometimes, a third party claim can even be as remote as against the attorney who handled your Worker’s Comp claim and failed to file a third party claim on your behalf. Our office recovered a recovery in excess of $950,000.00 for a claim against another lawyer who failed to recognize the existence of the third party claim.

As stated above the general rule is that your employer or a co-employee cannot be held liable for injuries, aside from the benefits provided under the Workers Compensation Act (lost wages, medical expenses and a limited permanency award). There are some rare occasions that an employer can be sued for your injuries on the job. In 2002 the New Jersey Supreme Court decided the case of Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002) and the Court carved out a well reasoned exception to this general rule. The Supreme Court described the circumstances under which a co-employee or your employer can be held responsible for your injuries for damages in addition to his statutory responsibility under the Workers Compensation Act.

If the employer’s conduct can be considered intentional or reckless, that is, the employer must know that his actions are substantially certain to result in injury or death to the employee, then the employer can be held liable for damages beyond his responsibility for providing Worker’s Compensation benefits. This can mean tens or even hundreds of thousands of dollars in additional recoveries to you and your family for legitimate claims for pain, suffering, and the loss of enjoyment of life. Bottom line: if you are injured on the job, consult with a knowledgeable personal injury attorney before settling for what your employee or workers’ comp attorney offers. Our office offers skilled attorneys in the worker’s compensation law who work closely with our personal injury lawyers. Every worker’s compensation case that comes through our office is reviewed for third party actions.

Please visit KC-Law.net for more infoimation

Most of us have seen the classic 1983 movie, “A Christmas Story,” about an eight year-old boy named Ralphie who desperately wants a BB Gun for Christmas. Not just any BB Gun, of course, but “an Official Red Ryder Carbine-Action Two-Hundred-Shot Range Model Air Rifle” BB Gun, with which both his mother and Santa Clause tell him he’ll shoot his eye out. Just like little Ralphie, most of us born before 1985 knew someone who owned a BB gun as a child.

For those of you born after 1985 (I’m dating myself here), your version of the BB gun came in the form of the paintball gun – a piece of equipment that uses carbon dioxide or compressed air to propel tiny, hardened balls of paint up to 200 miles per hour toward your intended target.

Regardless of the medium used, most of us think of these “guns” as toys – things that pre-teens and teenagers play with (though dedicated players and paintball organizations have turned the game into an intense and well-organized sport). Even romantic comedies like, “Failure to Launch,” starring Matthew McConaughey and Sarah Jessica Parker, are using paintball as a light-hearted game that is good for a few laughs.

Unfortunately, to the shock of most New Jersey residents – possession and/or use of paintball guns or BB guns can actually land you in jail. So if you are one of the many New Jersey residents who believe paintball and BB guns are “just toys”- think again.

The State of New Jersey takes possession of firearms very seriously and considers BB guns and paintball guns to be “firearms” under its Title 2C Criminal Code. The statute, N.J.S.A. 2C:39-1(f), reads in pertinent part:

Firearm means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of similar nature in which the propelling force is as spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.

As indicated in the statute, the State of New Jersey includes BB guns and paintball guns in its definition of “firearm” because their propelling force typically uses either carbon dioxide or compressed air, and they typically eject a bullet or missile smaller than three-eighths of an inch in diameter, with a force sufficient enough to injure a person.

In laymen’s terms, that means that if you are caught shooting a BB gun, or even a paintball gun, at another person or another person’s property, you could potentially be charged with Unlawful Possession of a Weapon and/or Possession of a Weapon with an Unlawful Purpose , in addition to a host of other crimes. Though the two weapons possession statutes sound almost identical, in actuality, they have different elements and therefore carry different penalties, both of which include a period of imprisonment. Furthermore, with respect to paintball guns, if you use the paintball gun in unlawful manner, or a manner not intended by its design (such as shooting it from a car), you could face additional, severe penalties, including jail time.

A special note to parents: just because your child is still a juvenile does not mean he or she cannot be sentenced to a custodial term at a juvenile detention center. Furthermore, depending on what else your child may be charged with, your child could be tried as an adult, thereby exposing him or her to a prison term in the adult prison.

If you or a loved one has been charged with possession of a weapon with an unlawful purpose, unlawful possession of a weapon, or any other weapons-related offense, it is crucial that you retain an attorney who has experience representing clients in this area of the law. Kamensky Cohen & Associates have been representing individuals charged with criminal offenses for over thirty (30) years. To schedule a free consultation with one of our associates, please call (609) 394-8585.