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metal roofCentral to every negligence claim in Tennessee is the requirement that a defendant actually owe a duty to a plaintiff.  The question of whether one owes a duty to another party often turns on the relationship between the two parties. For instance, an employer may owe a different duty to an employee than he or she owes to an independent contractor. And these duties are likely to be entirely different from any duty the employer may owe, if at all, to a total stranger.  For property owners, the duty owed to those who venture onto their property typically depends on whether the visitor was invited, there for purposes of business, or simply a trespasser.  A recent case before the Tennessee Court of Appeals addressed the duty owed to a special category of individuals:  volunteers.

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catholic churchWhen considering the elements of a negligence claim, personal injury attorneys often focus on whether a duty can be established, or whether causation can be shown.  Many times, the existence of an injury may be presumed, since, without an injury, it is unlikely that the plaintiff would be seeking to instigate a lawsuit in the first place.  Proof of injury, however, is a critical aspect of any negligence claim. Without an injury, a defendant cannot be held liable, and a plaintiff has no damages to recover. Time and money would be spent on litigation with no prospect of financial reward.  For these reasons, identifying your injury as a plaintiff is crucial to a negligence case.

In Means v. United States Conference of Catholic Bishops, Tamesha Means brought a claim for ordinary negligence against the USCCB as the entity overseeing the hospital where she received treatment during her pregnancy. Ms. Means was diagnosed early in her pregnancy with preterm premature rupture of membrane. This condition often leads to stillbirth and abortion, or induced miscarriage is frequently recommended. In Ms. Means’ case, the hospital where she was, Mercy Health, diagnosed Ms. Means but did not give her any treatment options. Instead, it offered her pain medication and sent her home. Ms. Means repeatedly returned on several occasions for increasingly more painful contractions and a related bacterial infection. Ultimately, she delivered her baby early, in breech, and it died within three hours.

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schoolOne of the more complicated aspects of a negligence claim is the determination of whether the injury was a foreseeable one and, if so, whether the foreseeability of such risks outweighed the cost incurred by the defendant in attempting to prevent it.  Foreseeability is sometimes considered an aspect of the duty determination in negligence claims, and sometimes found to be part of the breach component. Either way, courts have generally held that if a risk was not foreseeable, a defendant cannot be held liable for failing to prevent it.  A recent case before the Tennessee Court of Appeals looked at the question of foreseeability in a school assault case and determined that the question of foreseeability was one for the jury.

In Richardson v. Trenton Special School Districtthe parents of a child sued the school district after their child, known here as C.N.R., was assaulted by another student in a school bathroom. Both of the children were six at the time. C.N.R.’s parents began to suspect that something was wrong when C.N.R. told them that he was afraid to use the bathroom at school, but they thought that he was just a victim of bullying. It was only after the incident was reported to a teacher, who then reported it to the principal, that the parents learned that another child was assaulting their son.  While investigating the assault, the parents learned that another assault between two students had occurred earlier in the year, but in an after school program. As a result of that assault, the school changed its bathroom policy in the after school program to require that teachers accompany students into the bathroom.  It did not similarly change the policy during normal school hours.

However, the school did have in place a requirement that teachers closely monitor students and “keep them in their sights.” Teachers were further instructed to monitor students in hallways and bathrooms.  It was unknown, at this point in the case, what the impetus was for this policy.

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forkliftWhen injuries occur while an individual is taking on a task related to work, complicated legal issues can arise. Generally, injuries that occur on the job are addressed through a state’s workers’ compensation system. Workers’ compensation laws preclude employees from filing suit for personal injuries against an employer, but instead they provide that the employee is compensated for time off work and medical bills. But what happens when an employee is injured as a result of a third party’s actions, rather than the actions of the employer?  Can negligence or other tort claims be brought against that individual or entity? A recent case in the Sixth Circuit looks at the question of whether individuals can bring suit for personal injuries against contractors with which their employer was working.

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busNegligence in a personal injury lawsuit can be proven by a variety of means. A witness may testify to observing negligent behavior, or the negligent actions may be documented in writing. Alternatively, there may be independent objective evidence of negligence, or, in rare instances, negligence may be inferred from the circumstances of the case. When evidence of negligence is presented in a manner that the trial court is in the best position to observe, such as through witness testimony, appellate courts will generally give significant deference to the observations and conclusions of the trial court. However, when the evidence of negligence can be independently evaluated by the appellate court (such as in the case of a writing), the appellate court may, in some circumstances, re-evaluate that evidence on its own and reach an independent conclusion.  In a recent case before the Court of Appeals in Knoxville, the Court took it upon itself to review video evidence previously provided to a trial court and ultimately reversed the trial court’s decision.

In Peters-Asbury v. Knoxville Area Transit, Ms. Peters-Asbury sued for injuries she incurred while riding Knoxville Area Transit (KAT) buses.  Ms. Peters-Asbury was a student at the University of Tennessee-Knoxville at the time of the accident, and she had received a pass from the University to utilize KAT’s disability bus services. She had a lingering knee injury that gave her significant mobility restrictions.  On Ms. Peters-Asbury’s first day of classes, she requested transport from KAT to get her from one of her classes, at Bueller Hall, to the Disability Services office on campus, which was at Dunford Hall.  The KAT bus, driven by Michael Chigano, picked her up and transported her to Dunford. However, rather than using the main entrance, the bus dropped her off at a side entrance. As she was exiting the bus, Ms. Peters-Asbury tripped, fell, and fractured her ankle. She ended up in a wheelchair and ultimately had to withdraw for the semester, due to lingering complications from the injury.

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accidentWhen a plaintiff brings a claim in an auto accident or personal injury case, he or she generally bears the responsibility of proving by a preponderance of the evidence that the actions of the defendant fell below a standard of care and contributed to his or her injuries.  A failure to prove any one of these elements can lead to a claim being denied. For instance, if the plaintiff cannot show that injuries were suffered, there may not be damages for the jury to award. And if the defendant was taking all necessary precautions and acting with the utmost responsibility, a jury may find that although injuries occurred, the defendant did not act negligently in causing them.  When approaching a personal injury lawsuit, it is important that plaintiffs not forget their burden to prove the elements of their claim. Assumptions that elements can be presumed, or inferred from the circumstances, can lead to disappointment and financial losses.

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stop signTennessee is a modified comparative fault state. This means that when considering claims of negligence or personal injury, jurors or the court must look at the percentage of fault attributable to each party when determining liability.  For instance, if a patron of a restaurant is slightly drunk and trips stepping off a sidewalk and onto the street, jurors must determine which percentage of her injury is attributable to the fact that she had been drinking (her fault) and which percentage of her injury is attributable to the restaurant’s failure to properly mark a drop-off in the sidewalk or otherwise notify patrons of a dangerous condition (the restaurant’s fault).  If the patron is 25% at fault and the restaurant 75% at fault, the patron may only receive 75% of the damages that she claims.  Under the modified comparative fault system, if the restaurant’s fault is 50% or less, the patron is not entitled to any damages at all.  As illustrated in a recent case before the Tennessee Court of Appeals, when jurors assign percentages of fault to parties, courts are reluctant to second-guess these percentages or reverse a jury’s determination.

In Bachar v. PartinMr. Bachar was involved in an automobile accident with a truck driven by Mr. Partin.  According to Mr. Bachar, Mr. Partin failed to properly stop at a stop sign. In order to avoid colliding with Mr. Partin as he entered the intersection, Mr. Bachar swerved his car and ended up colliding with another vehicle. Mr. Bachar sued for negligence, and Mr. Partin responded by alleging that Mr. Bachar was partly to blame for the accident that occurred. According to Mr. Partin, Mr. Bachar was speeding at the time of the accident.

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When bringing a case in court, all parties to a personal injury dispute have the opportunity to request a trial by jury. This means that the plaintiff can initially request a jury, or, if he or she fails to do so, a defendant can request a jury trial as well. Determining whether a judge or jury is better suited to hear your case is a complicated question that requires a careful evaluation of many factors. While juries may be sympathetic to plaintiffs who have been seriously injured or faced significant trauma, they can also be a risky proposition, since it is not always clear what they will believe or where they will come out. Indeed, even in the best of cases, juries can be unpredictable when a plaintiff’s attorney is unable to skillfully deal with them.

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elevatorTypically, when a plaintiff alleges a claim of negligence in Tennessee courts, the plaintiff must prove all the necessary elements of a negligence claim, including duty, a breach of that duty, causation, and damages.  Without establishing each of these elements, a negligence lawsuit cannot succeed.  However, in certain circumstances, a plaintiff may bring a negligence claim under a doctrine know as res ipsa loquitur, or implied negligence. This is a doctrine that can be invoked when a plaintiff believes that negligence has occurred but is without access to all the facts necessary to prove each element of negligence. Instead, the plaintiff must show that the circumstances of an injury are such that negligence can instead be implied under the law.  A recent case before the Tennessee Court of Appeals looks at the doctrine of res ipsa loquitur and when it can be successfully invoked.

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state of TennesseeWhen dealing with medical malpractice and personal injury claims against state employees, following the correct procedures for litigation can be exceptionally tricky. Under general principles of sovereign immunity, states are generally immune from liability for injuries that their employees may incur.  In certain cases, states like Tennessee waive this immunity and allow claims to be brought against state employees, but only in certain circumstances and under certain procedures. A failure to properly follow such procedures can result in the dismissal of a claim.  A recent case before the Tennessee Court of Appeals looks closely at medical malpractice claims brought against state-employed physicians and whether such claims are waived when they are not properly brought.

In Sumner v. Campbell Clinic, Mr. Sumner was scheduled to undergo a bone graft to treat an injury in his right leg.  Prior to the surgery, Mr. Sumner and his family warned physicians that he had recently had another surgery near his right hip to address a hernia. As a result, Mr. Sumner requested that the bone graft be taken from the site of his left hip, rather than his right hip.  Despite these directions, the surgeons attempted to take the bone graft from his right hip. Due to weaknesses in the area that was recovering from surgery, the surgeons punctured his small bowel, allowing fecal matter to be released into his body cavity.  The resulting complications left Mr. Sumner dependent on a feeding tube.

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