Hi. In December I started having trouble breathing.. In January I went to a doctor and had a cat scan and after I got my results I went in for a bronchoscope biopsy. I was told I may have lung disease called hypersensitivity pneumonitis caused by dust mold and or a chemical exposure.. Just last week I had a follow up scan and results showed zero improvement with the 30mg a day of prednisone.. The dr now wants to do an open lung biopsy to officially confirm it's hp of lungs as well as my dr strongly thinks it's from my job.... I am a carpenter at a scenic shop and I'm around tons of saw dust with no ventilation or dust system. Also I'm around wood that has mold and often told to cut up moldy wood. Also many chemicals such as acetone, thinners, and spray paint are part of my daily job...I met with one law firm they said I can only do workmans comp claim and no personal injury.. If I can no longer work shouldn't I get a large settlement?
3 Answers from Attorneys
Worker's compensation is available against and employer. If injured person can prove negligence on a 3rd party, a civil lawsuit can be filed.
1. Negligence may be defined as a failure to exercise, in the given circumstances, that degree of care for the safety of others, which a person of ordinary prudence would exercise under similar circumstances. It may be the doing of an act which the ordinary prudent person would not have done, or the failure to do that which the ordinary prudent person would have done, under the circumstances then existing.
[Where a more detailed definition is desired, the following may be used:]
2. Negligence is the failure to use that degree of care, precaution and vigilance which a reasonably prudent person would use under the same or similar circumstances. It includes both affirmative acts which a reasonably prudent person would not have done and the omission of acts or precautions which a reasonably prudent person would have done or taken in the circumstances.
By �a reasonably prudent person� it is not meant the most cautious person nor one who is unusually bold but rather one of reasonable vigilance, caution and prudence.
In order to establish negligence, it is not necessary that it be shown that the defendant had an evil heart or an intent to do harm.
To summarize, every person is required to exercise the foresight, prudence and caution which a reasonably prudent person would exercise under the same or similar circumstances. Negligence then is a departure from that standard of care.
Negligence is defined as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. 2 Restatement, Torts, Sec. 282; Harpell v. Public Service Coord. Transport, 20 N.J. 309, 316 (1956); Prosser, Torts, p. 119.
The defendant's conduct is compared with that which the hypothetical person of reasonable vigilance, caution and prudence would have exercised in the same or similar circumstances or conditions. Overby v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953), aff�d 14 N.J. 526 (1954); McKinley v. Slenderella Systems of Camden, N.J., Inc., 63 N.J. Super. 571 (App. Div. 1960).
"The conduct of the reasonable man will vary with the situation with which he is confronted. The jury must therefore be instructed to take the circumstances into account; negligence is a failure to do what the reasonable man would do 'under the same or similar circumstances.'" Prosser, p. 125.
The above may be modified to cover cases involving property damage. See 5.10A NEGLIGENCE AND ORDINARY CARE � GENERAL
Thank you for your inquiry. This firm has handled numerous 3rd party claims surrounding workplace toxic exposure resulting in injury. Aside from your Worker's Compensation claim, you may be able to pursue a 3rd party personal injury suit. Liability may exist especially if State or local and OSHA regulations or guidelines were violated or deviated from. Please feel free to call me or one of my partners to discuss the potential for such a claim. (973)635-5400