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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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bike accident

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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cracked sidewalkClaims for negligence and premises liability can arise in many situations. A visitor may fall and break a bone while walking around a piece of property.  A participant in a sports game may tweak a knee while playing.  A passenger on an amusement park ride may fail to read all the safety instructions and be bruised or injured during the experience.  Since it can be difficult for a property owner to anticipate all of these types of possible situations, many property and facility owners require visitors and guests to sign waivers, releasing them from liability for any injury that may occur on their property.  Interpreting these waivers and how they may be applied is a source of much discussion in court opinions. While some states interpret these releases to strictly preclude claims of injury, others view them more flexibly. A recent case before the Tennessee Court of Appeals illustrates Tennessee’s approach to the issue of releases and waivers.

In Gibson v. YMCA of Middle Tennessee, Sandra Gibson was injured while entering the YMCA. She tripped on a crack in the sidewalk and fell, leading to injuries.  Prior to that visit, Ms. Gibson had signed an application and membership form to become a member of the YMCA. As part of the application, Ms. Gibson signed a paragraph stating that she waived and released the YMCA from any claims arising from injuries she might incur while using the YMCA’s facilities or programs. Despite signing this release, Ms. Gibson filed a claim for negligence against the YMCA.

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coal mineProduct liability is an area of the law that deals with when and how product manufacturers can be held liable for the creation or manufacture of products that cause injury to consumers. A central tenet of product liability is that manufacturers have a duty to warn consumers of known hazards in a product. Thus, for instance, toy manufacturers who create toys for children with small parts must be careful to warn consumers of the hazards that such small parts may pose for young children, such as toddlers.  Recently, the Sixth Circuit looked closely at product liability based on a failure to warn when the consumer was already aware of the known hazards of the product.

In Smith v. Joy Technologies, Mr. Smith was employed at a coal mine owned by Southern Coal Corporation in Kentucky.  The coal mine used a high wall mining (HWM) system to remove coal from the coal mine. Under this system, conveyor cars are pushed into the mine through a hydraulic system that pushes the cars forward.  The cars are loaded with coal, and, when all the cars are full, the system is reversed so that the cars can be extracted from the mine and the coal removed.  Guide rails typically operate alongside the car system in order to maintain the alignment of the cars.  Here, Mr. Smith was working to empty cars as they returned from the mine when an electrical cable on a car became stuck.  Mr. Smith went to dislodge the electrical cable and in so doing, placed his foot between the guide rail and the hydraulic pusher for the cars.  One of his coworkers mistakenly activated the hydraulic system, and the pusher engaged, crushing Mr. Smith’s foot between the pusher and the guide rail.  After several surgeries, Mr. Smith’s lower leg was ultimately amputated, and he was declared fully disabled.

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business stepsThe doctrine of premises liability in Tennessee provides that, in certain situations, property owners can be held liable for injuries or accidents that occur to members of the public on their property. As Tennessee courts have previously acknowledged, however, “negligence cannot be presumed by the mere happening of an injury or accident.” Instead, a plaintiff seeking to recover compensation for injuries must show that there was a duty of care that the property owner owed to the plaintiff and that the property owner’s actions, or lack thereof, amounted to a breach of that duty, resulting in injuries to the plaintiff. While a duty of care should prevent property owners from knowingly ignoring obvious dangerous conditions on their property, it does not require them to prevent every possible injury from occurring, especially those that could not have been foreseen. A recent case before the Tennessee Court of Appeals illustrates this point.

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fire alarmUnder Tennessee law, universities and colleges often owe basic duties to their students to protect them from known harms. This is particularly true for students living in dorms on university campuses, where the universities often function as landlords and caretakers of the students.  However, under basic negligence law, individuals, entities, and corporations cannot be held accountable to protect students against dangers of which they did not know or could not have known.  A recent case in the Tennessee Court of Appeals looks specifically at whether the Tennessee Technological University was liable for hearing damage caused to a hearing-impaired student by dormitory fire alarms.

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