Are You Required To Be A Good Samaritan?

Happy Summer everyone!  

Nothing beats going to the beach or laying out poolside with your friends and family. From engaging in water sports to boating to giving swimming lessons, water surrounds us in the summer! We all know it has its dangers though. There’s slip and falls, possibilities of drowning, and other things we much too often fail to consider.  Even more, we fail to think of the legal consequences of all those lurking dangers! 

Suppose someone is drowning? Are you required to be a Good Samaritan? Are there risks for trying to help? What are the good Samaritan laws anyway? Let’s dive in!

Are you required to help someone in danger?

This varies from state to state, but in most states, you do not have a duty to help someone in danger and rescue them unless:

1.     You created the danger;

2.     There is a special relationship between you and the  potential victim; or

3.     You voluntarily undertook the responsibility as a rescuer,  but either failed or abandoned the act.

People have basic duties in society in the U.S.  Negligence is when a person fails to act or behaves in a manner different than a “reasonable prudent person,” someone who uses good judgment in handling everyday matters compared to those in a similar situation.

When a person’s negligence created a risk to others, a person has a duty to stop the harm from occurring and rescue a potential victim.

The Special Relationship Exception:

Although there is generally not a duty to help others in danger, if you have certain relationships with the potential victim, you may have a duty to try to help them.  These relationships include, but are not limited to: family, parent and child, employer and employee, property owners/lessees and the people they invite onto their properties, landlord and tenants, and hotel/motel type entities and their guest(s).

Are there risks for trying to help someone who is in danger?

If a person begins to rescue a person and then stops, a duty may form where the person is required to continue rescuing the victim. Most courts require for the rescuer to act reasonably once the rescue begins and only to continue the rescue if a reasonable person would continue to do so. Some courts further require the rescuer to continue if the victim relies on their rescuer in order to survive and cannot help himself or herself otherwise.

What are good Samaritan laws?

Each state has statutes that provide protection from liability for people who assist others who are in peril.

These laws are in place to encourage people to help others in a crisis without the worry about being sued if their help causes an injury and/or a further injury unless the “helper’s” acts were “willful, malicious or reckless. “

In most states, the laws generally follow the rule that a bystander does not have a duty to rescue others in need. The exception is Vermont, where people are required initially to provide reasonable assistance to those in danger unless it would put themselves or another person, they have a duty to help in danger or are already helping someone else! 

So, enjoy the water; just be mindful and everyone will have a happy summer.

This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.

At What Price Do We Protect Our Constitutional Rights?

All over the news is Bill Cosby, a man who was convicted of sexual assault and released from prison because after he spent three years out of a three-to 10-year sentence in jail, Pennsylvania’s highest court determined that the conviction was wrong. Considered one of the first #MeToo celebrity convictions, many people are outraged.

Many news sources, not surprisingly, are not really explaining what the court’s ruling was. The court’s ruling had absolutely nothing to do with Cosby’s innocence or guilt, but rather was based on the constitutional concept of due process. Let us discuss and then you decide if you believe justice is being served by protecting our rights.

 Most crimes tend to have a civil equivalent for when a person is harmed in addition to the government’s suit and can pursue a private suit. The problem with having the two similar suits ongoing at the same time is the fact that criminal defendants have constitutional protections, most importantly the Fifth Amendment right to avoid self-incrimination, while civil cases don’t. In most states, laws provide that those civil suits will be held in “abeyance,” temporarily suspended, until the criminal cases are resolved to ensure that these protections are upheld. For example, let’s say you committed a big white collar fraud, the people you defrauded would have a right to sue you, but if you fail to testify to defend yourself - you may lose your case yet you may not want to testify because things you may say could end up incriminating you criminally but your testimony may win your civil case.  

So, Cosby had a civil case going on at the same time as the criminal case. The prior DA, Bruce L. Castor Jr., apparently orally agreed that he would not prosecute Crosby in order for Cosby to testify in the civil case. So, the civil case was allowed to continue, and Crosby sat for depositions and testified, including saying that he drugged the plaintiff. A later DA came in and reversed Mr. Castor’s decision and decided to prosecute Crosby and used the testimony during the criminal trial. Crosby’s attorneys complained about this from the start and the trial court denied countless motions and allowed the case to move forward despite the violation of Cosby’s Fifth Amendment rights.   

This was the big issue the Pennsylvania Supreme Court found was completely improper and stated that “the only remedy that comports with society’s reasonable expectations of its elected prosecutors and our criminal justice system” is to require the district attorney’s office to honor the decision of the prior DA. As Justice David Norman Wecht stated “we hold that, when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.” 

 Yes, usually these agreements where DAs agree not to prosecute are in writing, yet the court held it did not matter. People have a right to rely on representations’ especially when they act upon them under their due process of the Constitution. This does not mean that Cosby did not commit a crime, it just means that he cannot be prosecuted for it. While many will think that a guilty man has gone free, we think on a larger level, the higher court did the right thing. When there is a civil case, in most instances, the worst thing that will happen is paying money and maybe some other ramifications but being behind bars is not one of them! Thus, the way people view these cases are completely different as they should be. We believe that constitutional rights such as these should really be protected at almost all costs.

This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.

June Weddings Have Arrived!

Congratulations to everyone who is about to tie the knot! We just love to see you love birds starting the next chapter of your lives! Wedding planning can be all-consuming, from finding the right venue to the perfect dress to getting that awesome DJ and everything else! Yet, wait a minute...what about the legal requirements? How do you go about getting a marriage license and while we are at it - what exactly is a marriage? Then comes the big question – will a woman take her partner’s last name? 

To start, marriage is a contract and is an agreement between two partners creating mutual obligations enforceable by law. In order to be a legally enforceable marriage contract, there must be a valid offer and acceptance, consideration, capacity and legality. Sounds like Lesson 1 of a law school contracts class, huh?

Let’s make it simple! First, two partners must agree to get married. In most states, the partners must be of the legal age of 18-years-old; the exception is Mississippi (males:17 and females: 15) and Nebraska (19).

Next, the partners must have “capacity” - be of sound mind and be capable of agreeing to get married. 

Then, it is time to apply for a marriage license in the state you plan to get married. Each state can be very different in their requirements.

In New Jersey, for example, where you apply depends on whether both, neither, or one of the partners is a New Jersey resident. If both are residents, they should apply to the municipality where either partner is a resident.  If both parties are nonresidents, they apply in the town where they plan to get married. If only one is a resident, they should apply to the municipality where they are a resident. In New Jersey, the application must be signed by both parties and requires their physical appearance, proof of identity, proof of residency by one NJ resident, Social Security number, a witness who is at least 18-years-old, and a $28.00-dollar fee. A license may be applied for up to 6 months in advance. The registrar then requires a minimum of 72 hours to process the license. Once they pick up the license, the soon-to-be-marrieds have up to 30 days to get married before the license expires.

New York has similar requirements; however, in New York, the marriage license is issued immediately, and the marriage ceremony must take place within 24 hours from the time the license is issued! The 24-hour waiting period may be waived by a judge or justice of the Supreme Court of New York State or the county judge in which either party to be married resides.

Now for the big decision! What name do you put on your marriage license? Traditionally, many women changed their last names to match their husband’s names. Historically, this was because men became the owners of their wives’ property upon marriage, with some exceptions.

This has not been the case for many decades, yet many women continue the practice of taking their husband’s name. Why do so many western women still adopt their husbands’ names? There are many reasons from: preserving patriarchal traditions, symbolizing unity and commitment, or passing the husbands’ name onto the children.  Some choose to do it simply because they believe it is romantic!

Yet, there are legal ramifications of changing your name. Whether it is because of marriage, divorce or court order, legally changing your name entails changing your name on your Social Security card, driver’s license, U.S. Passport, bank accounts, credit cards, paychecks and W-2s, all insurances, retirement accounts, investment accounts, voter registration, wills and other legal contracts, utility companies, personal email address and notifying your employer, friends, and family. Not only can this get costly, but it can also be time-consuming and frustrating. Most of the tasks above can be done online, however not all!

Where do you start?  Start by changing your name with Social Security. First, you will have to fill out and print out the application for a Social Security card. Then, you will have to forego your U.S. Passport, birth certificate and if applicable, divorce decree and mail these documents along with the application to your local Social Security office. During Covid, this can take up to 7-8 weeks, a long time to be without these crucial documents.

Next, change your name on your U.S. Passport. We all know that passports are expensive, especially when you need them expedited! Along with the application (Form DS-82), mail your most recent U.S. Passport, provide a photo, and your original name change documents.

Next, reflect your name change in your Last Will and Testament or other crucial estate planning documents. For a will, this will require time and money as the will would have to be revised to reflect the name change and be executed again! This requires, in most states, a preparation of a new will by an attorney that must be signed and acknowledged by the testator in front of two witnesses who also must sign the will within a “reasonable time.”

While you are at it, remember to request that others that may have named you in their wills or trusts change your name too to avoid difficulties down the road.

Lastly, when it comes to your investment accounts, changing your name may require you to go in person to your financial institution and get a Medallion Signature Guarantee. What is this? Well, if you hold securities in a physical certificate form and want to either sell or transfer them, you will need to sign the certificates and securities powers and get your signature guaranteed on all documents.

Yes, changing your name has a lot of implications, however, whether your headed to the altar or just newly engaged, remember marriage is not only a contract but also a commitment to each other! Congratulations to all our brides and to the official kick-off to the wedding season!  

 This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.

The Rivkind Law Firm Moved!

Did you recently move? The Rivkind Law Firm certainly did! Our new location is 800 Harbor Blvd, Unit 1413C, Weehawken, New Jersey 07086! We are so excited to be in our new place! Yet with a move comes a lot of little things that you don’t think of!

Are you moving a residence, business, or both? Whether it is your home or your company, there are a lot of things that you have to legally do, and some within a certain period of time. What may those things be?

 1.     Forwarding mail to your new address with the USPS;

2.     Reporting to certain agencies such as DMV, IRS, State Treasury, Social Security Administration, Department of Education regarding your student loans, Department of Labor regarding your unemployment benefits, state government agencies regarding welfare and disability benefits, etc.;

3.     Notifying all your banks, money lenders, credit card companies, utility companies, phone, cable, and internet companies;

4.     Informing insurance companies (health, car, life, dental, etc.);

5.     Advising family, friends, employer(s), colleagues and business associates;

6.     Revising your business website; 

7.     Hiring a moving company (obtaining their Certificate of Insurance, Order for Service, reviewing the Bill of Lading);

8.     Notifying your Board(s) if you are a licensed professional;

9.     Advising miscellaneous entities such as subscription companies, ridesharing apps, etc.;

10.  Updating your email signature with your new address; and 

11.  More!

Where should you start? We still live in a paper world so it is crucial for you to forward your mail to your new address! USPS has a great new feature that lets you know in the morning what forwarded mail is coming your way! Plus, a lot of companies will not sympathize that you possibly went through a tortious move and missed a deadline!  

The DMV: Next, advise your state DMV of your change of address. If you are moving within the state, New York State law requires that you to report a change of residence address within 10 days, New Jersey requires 7 days and Connecticut requires 48 hours. Don’t worry – this all can be done online and took us about five minutes from start to finish!  

Dealing with agencies: Many agencies, such as the IRS, Social Security Administration, Department of Education, Department of Labor, Department of Taxation and Finance, State government agencies regarding welfare and disability benefits and others, require you to log in online or call the agency or department. Our suggestion – type in your search engine the agency name followed by “change of address” and your first page of results will most likely show what you are looking for! For example, the IRS third result on Google for  “IRS and Change of Address” is the link to their Change of Address form 822.

As to some things that cannot be done online...don’t fret! We have discovered a few, such as trust accounts. Your local bank will most likely require you to visit your local branch in person to change your address!

Using a moving company? Make sure you retrieve a written “Order for Service” which will set forth the estimated costs of your move and read the Bill of Lading! Of course, it is just an estimate and is subject to change based on hourly-rated moves or weight-rated moves. As for the Bill of Lading, this is a formal contract, so read the fine print! Make sure you understand the costs of the move, any contingencies that may be noted, whether the costs of the move is based on time, weight, or is fixed, and all the other details.

Despite all the fuss of moving and the aftermath of moving, we are proud to call 800 Harbor Blvd, Unit 1413C, Weehawken, New Jersey 07086 our new home!

This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.