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car crashThe Tennessee wrongful death statute permits the surviving spouse and surviving children of an individual who passes away to recover compensation on behalf of the deceased individual for injuries and pain and suffering that the deceased individual experienced prior to death. Wrongful death statutes often allow a surviving family member to sue third parties who negligently caused a loved one’s death. Subject to special exception, Tennessee’s wrongful death statute gives a strong preference to allowing a spouse or children to recover after a wrongful death, but a recent case before the Tennessee Supreme Court considered whether a husband who had essentially abandoned his wife and child should still be able to recover under the statute.

In this car accident case, C.S. and K.S. were previously married, but K.S. abandoned C.S. in April 2009, shortly after they had their child, U.S. C.S. and K.S. never divorced, but K.S. never lived with C.S. and their son again, and he did not pay any child support. In October 2010, C.S. died after an automobile accident with H.R. U.S.’s grandmother, C.O., was awarded guardianship over U.S. after C.S.’s death. In November 2010, K.S. filed a wrongful death lawsuit against H.R., alleging that H.R.’s negligence caused C.S.’s death. Shortly thereafter, C.O. sought to intervene in the wrongful death lawsuit and argued that U.S. was actually the primary representative in the wrongful death lawsuit and that she should be appointed as plaintiff, rather than K.S., because she was U.S.’s guardian. C.O. argued that K.S. could not recover on C.S.’s behalf in a wrongful death claim because he had abandoned C.S. and U.S. and owed child support to four other mothers for four other children. According to C.O., Tennessee’s statute prohibiting a parent from recovering under a wrongful death statute when he owed outstanding child support prevented K.S. from being a plaintiff.

Several months later, the court conducted a hearing on the matter. Around the same time, H.R. announced that she had agreed to settle the matter for the insurance policy limits of $100,000 and would leave it up to the court to determine how that $100,000 should be distributed between U.S. and K.S. The trial court ultimately decided to grant C.O.’s motion and dismiss K.S. from the lawsuit. The court further held that U.S. was entitled to the full $100,000. K.S. appealed.

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motorcycleSometimes in Tennessee personal injury cases, a plaintiff will seek to recover damages from another individual who caused an injury or acted in a negligent manner that led to an injury. In other personal injury cases, an individual may be injured as a result of a simple accident, or an unforeseeable circumstance that another individual did not cause. In these cases, a plaintiff may seek to recover damages from an insurance provider, rather than another individual, in order to pay for medical expenses incurred as a result of the accident that occurred.

Under those circumstances, plaintiffs face the risk not that the defendant will deny liability but that the defendant, the insurance company, will refuse to pay based on some term of the insurance agreement. In a recent case before the Sixth Circuit, an insurance company did exactly that, seeking to deny coverage to a plaintiff based on a policy exception that the Sixth Circuit ultimately determined should not apply.

In this motorcycle accident case, B.H. was injured while riding motorbikes one night with friends. At the time, B.H. and his friends had been drinking, and during their ride B.H. ran into another of his friends. The injuries he suffered were severe, and B.H. accrued more than $200,000 in medical bills. At the time of the accident, B.H.’s alcohol limit was twice the legal limit, and he was charged with operating a motor vehicle over the legal limit. Shortly thereafter, B.H. filed a claim with his insurance company, Companion Life, for his injuries. The plan administrator denied his claim, stating that he fell within an exclusion that prohibited coverage for injuries resulting from the “illegal use of alcohol.” B.H. argued that his use of alcohol was not illegal at the time because he was over the age of 21. Instead, it was his use of a motor vehicle that was illegal. Companion Life disagreed.

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treesDuties in a negligence case can arise from a variety of circumstances. A landlord may have a duty to protect a tenant or the general public from known dangerous conditions. A medical professional may have a duty to treat patients with a professional degree of care. Duties can also arise when a statute requires certain individuals to act in a certain manner or fulfill certain obligations. A recent case before the Kentucky Supreme Court looks at whether a failure to comply with a statutory duty results in strict liability. It may be interesting to Tennessee motorcycle accident victims as well.

In this accident case, L.M. was driving his motorcycle in Louisville shortly after a large windstorm when he ran into a tree that had not been cleared from the road. L.M. suffered serious injuries from the accident. L.M. sued the Louisville Gas and Electric Company, as well as the Assistant Director of Public Works for Louisville. He alleged a negligent failure to remove the trees or warn pedestrians about the hazards in the road. L.M. also alleged that under Kentucky statute 179.070, the Assistant Director of Public Works, R.S., who was also a county engineer, had the duty to remove all trees and obstacles from the road and was negligent in failing to fulfill this duty.

At trial, R.S. acknowledged that the statute existed but testified that he was not aware of the statute at the time of the accident or his duties under the statute. He also testified that the Department of Public Works had delegated the handling of tree removal to the operations and maintenance division, which had always handled tree removal. In light of this evidence, the jury ultimately determined that R.S. had not failed to comply with his duty under the statute. L.M. immediately moved for a new trial, arguing that the jury’s verdict went against the weight of the evidence because R.S. had acknowledged the statute placing the duty on him to remove trees, and he had not actually removed the trees that caused L.M.’s injury. The trial court denied the motion, and L.M. appealed.

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handsWhen a loved one dies as a result of another party’s negligence, certain heirs to the decedent have priority to bring a lawsuit on the decedent’s behalf. Under Tennessee law, the surviving spouse of someone who dies has first priority to bring a lawsuit. If a surviving spouse does not exist, any children the individual has have priority as litigants. Finally, if no children exist, the parents of the person who died may sue.  While this is the order of priority under Tennessee law, it is not always followed by individuals who wish to sue on behalf of their loved ones. As with the case below, when a parent seeks to recover first, those who have priority, such as spouses or children, must be vigilant in ensuring that their legal rights are not preempted by another family member who is the first to make it to the courtroom.

In this recent Tennessee wrongful death case, D.H. was killed after being unlawfully handcuffed and detained at a family dollar store in Tennessee. Prior to his death, D.H. had fathered a child with C.H., but he was not involved in the child’s life nor had custody over the child. Instead, at the time of his death, D.H. was living with his mother, M.C. After his death, M.C. approached a local attorney to file a wrongful death lawsuit on behalf of D.H.’s child and herself. C.H. was informed of the possible lawsuit and her child’s involvement but heard nothing further. Several months later, the attorney decided not to move forward with the lawsuit and notified M.C. It was disputed whether M.C. or the attorney notified C.H. According to C.H., she presumed that the attorney was representing her for the next two years but did not attempt to contact him.

Several months later, in November 2009, M.C. retained another attorney to bring a lawsuit for her son’s wrongful death with her as representative. M.C. did not include C.H. and D.H.’s son in this lawsuit and represented, by affidavit, that she was the sole heir of her son. In March 2010, M.C. reached a settlement with Family Dollar and signed a release of all claims. On March 31, 2010, the case was dismissed with prejudice. It was not until November 2011 that C.H. finally met with a new legal aid attorney about her son’s claim and learned about M.C.’s lawsuit. In December 2011, she filed a motion to set aside the order dismissing M.C.’s case, arguing that her son was a lawful heir of D.H. and had priority over M.C. The trial court denied the motion on the basis that it was untimely, since it had been more than a year since the order was entered, and it would not be fair to require Family Dollar to relitigate the case after it had already settled with M.C. C.H. appealed.

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slush
Tennessee premises liability actions can arise under any circumstances in which a property owner fails to take care of dangerous conditions or does not warn guests of existing hazards. In the winter, however, these kinds of actions can become even more common as guests and customers attempt to navigate their way through snow, ice, and everything in between. As the below case illustrates, landlords and tenants must be conscious of the dangers imposed by winter weather.

In this parking lot case, T.N. was leaving a tanning session at Elite Beach Tanning Company when she slipped and fell on ice hidden below a pile of slush. T.N. did not realize the ice was there as she stepped down, fell, and injured herself. At the time of the fall, T.N. was in a parking lot adjacent to Elite, which was owned by the landlord, First Bank. T.N. sued Elite, First Bank, and the company responsible for maintaining the parking lot for her injuries. After initial discovery, Elite moved for summary judgment by arguing that T.N. could not establish that Elite owed her a duty to keep the parking spaces safe. As support for the motion, Elite attached a copy of its lease agreement with First Bank, which clearly stated that First Bank was responsible for maintaining common areas, including the parking lot. Given this agreement, the lower court granted the motion for summary judgment. T.N. was granted an interlocutory appeal and appealed to the Court of Appeals.

On appeal, T.N. argued that Elite owed her a duty to protect her from dangers in the parking spaces for two reasons. First, she argued that Elite assumed control over the parking spaces when it kept them free from employee cars and directed customers to park there. Second, she argued that since the parking spots were only 15 feet away from Elite’s front door and could clearly be seen, they constituted part of Elite’s approach, for which Elite was responsible.

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white-lines-1446293-300x300When a plaintiff files a complaint in a lawsuit, he or she must take great care to include all relevant facts that help establish his or her case. While plaintiffs are not required to include every single little detail related to the case, they must include sufficient information so that a court, taking their allegations as true, could find that a claim exists. Sometimes after an initial complaint is filed, a plaintiff will realize that certain important information is missing, or will discover new information that he or she would like to add. When this happens, a plaintiff can file a motion to amend, which, if granted, allows the plaintiff to amend the complaint to add additional information or clarify. As the case below demonstrates, courts generally allow motions to amend, if reasonable, and should consider this amended information when deciding whether to dismiss a case.

In this premise liability case, the plaintiff, B.S., was a bus driver who was attending a school district training conducted by the Nashville government. She was not allowed to drive her own bus to the training but was required to take a shuttle. After she parked her bus and began walking toward the shuttle, she tripped on a buckled and uneven portion of the parking lot pavement, causing her to fall and sustain injuries. The buckling was the result of flooding that had occurred in Nashville in 2010, three years before B.S.’s fall.

B.S. sued the Nashville government for its failure to adequately maintain the parking lot. She argued that the parking lot had been in a state of disrepair for such a long time that the government should have been aware of the condition, but failed to fix it or to warn her of the problems. Several months after the filing of the initial complaint, B.S. moved to amend her complaint to add an additional claim of negligence based on the parking lot’s failure to meet applicable building codes. B.S. had retained an expert to review the relevant building codes and the state of the parking lot and determined that the government was not in compliance. At the time of B.S.’s motion to amend, the Nashville government had a pending motion for summary judgment against B.S.

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observation deckIn many Tennessee personal injury cases, the duties of one party to another are clearly defined. For instance, a landlord owes specific duties to a tenant, and a doctor owes certain duties to a patient. In other circumstances, however, the exact duties owed by one party to another are not concretely established and must be determined by reviewing the actions of the parties and the promises made. This was the case in a recent home inspector lawsuit reviewed by the Tennessee Supreme Court.

In this home defect case, D.U. sought to buy a home in Franklin, Tennessee. With the help of his brother, he hired a home inspector to inspect a possible home. The home inspector noted issues with some flooring on the deck of the home but did not report any other problems. The home owners agreed to replace the deck flooring and did so prior to the sale. Shortly after D.U. purchased the home, he hosted a party at his house. C.G. was on the deck of the house when the railing against which he was leaning collapsed, causing C.G. to fall and resulting in severe injuries. C.G. originally sued D.U., the previous home owner, the contractor who repaired the flooring, the home inspector, and the home inspection franchise. Eventually, the case was reduced to claims against the home inspector and the home inspection franchise.

C.G. alleged negligence against the home inspector for failing to exercise reasonable care in conducting his inspection and failing to notice the problems with the deck railing, including that it did not meet building inspection codes. Shortly after discovery was completed, the home inspector and his franchise moved for summary judgment, arguing that as a matter of law, they did not owe a duty to a third party like C.G. The trial court agreed and granted summary judgment. The Court of Appeals agreed and affirmed the lower court’s decision. C.G. then appealed.

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dollar billFor many accident victims, the largest category of damages that arise are medical bills. For those who are injured in an accident but are uninsured, these bills can be catastrophic. Since the true costs of health care coverage can easily total in the tens or hundreds of thousands, many hospitals and medical providers will ultimately discount their bills in order to ensure coverage, or to allow patients to make some sort of payment plan that will allow for payment. At trial in a Tennessee personal injury case, the question then becomes which proof of medical expenses plaintiffs can offer:  the original medical bills or discounted versions?

The Tennessee Supreme Court recently considered this question in a case of first impression. In this case, J.D. was seriously injured in an automobile accident and sued the other driver for negligence. As part of her claim, J.D. sought to recover past and future medical expenses, and she provided itemized medical bills from 16 different medical providers. J.D. also had her doctors testify to the reasonableness of the medical bills she incurred.

Prior to trial, the defendants filed a motion to limit the evidence of medical bills that J.D. could provide. They argued that, under recent Tennessee caselaw, J.D. was only allowed to provide evidence of what she and her insurers actually paid in medical expenses, rather than the actual medical amounts billed. According to the defendants, the amounts billed were “unreasonable” evidence of medical expenses when they were not actually what was paid. The trial court held a hearing on this issue and concluded that the defendants were correct. It limited J.D. to presenting evidence of the discounted amounts her insurer paid. J.D. sought an interlocutory appeal, and the Court of Appeals reversed the lower court’s decision, finding that while discounted amounts needed to be used when dealing with hospital liens, they did not apply to personal injury cases. The defendants then appealed this decision.

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chest X-rayIn negligence actions, many different defendants may be at issue in a case. There may be an individual who caused an injury, or a company that produced a product that led to an injury, or an owner of a property that had a dangerous condition leading to an injury. Circumstances may also arise in which one party is responsible for the actions of a defendant because that defendant was acting as an agent for the party at the time of the injury. In these cases, even though the party didn’t take the action that caused the injury, it can still be held responsible for the actions of its agents.

A recent Tennessee wrongful death case illustrates this point. In this case, D.H. sued Trinity Hospital after his wife died following colon surgery. After the surgery, D.H.’s wife developed several complications, including intestinal obstruction. She was kept at the hospital for evaluation, but her condition continued to deteriorate. Nurses noticed leakage from her insertion wound and reported it to the doctors. Dr. A, a radiologist, conducted a CT scan to rule out the possibility of a bowel perforation, but he did not notice any problems. D.H.’s wife continued to worsen, and she eventually went into septic shock and died.

During litigation, D.H. finally received a copy of the CT scan after three years of efforts to obtain it. It showed clear evidence of air in D.H.’s wife’s abdomen, which was indicative of bowel perforation. Because of the time that had passed, D.H. could not add Dr. A. to his lawsuit. Instead, he sought a ruling from the court that Dr. A. was an agent of Trinity and that Trinity should be held liable for any damages he caused in order to prevent them from reaping the benefit of their failure to produce the CT scan.

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business doorsIn the day to day realities of life, we all have our moments when we trip while walking. We may be checking our phones, talking to someone else, or simply day dreaming the day away when we trip on a surface or object we didn’t see. If we’re lucky, we catch ourselves; if not, we fall. Despite the thousands of trips that occur every day, most do not rise to the level of a tort claim or negligence because the thing that caused us to fall was not inherently dangerous, or the owner of the property or object had no reason to believe any danger existed. In a recent case before the Tennessee Court of Appeals, one plaintiff tried to push a claim for negligence too far, arguing that a simple feature was enough to support his negligence claim.

In this Tennessee premises liability case, R.B. was in the process of getting routine drug testing for his work when he tripped and fell on a door frame leading into the testing facility. R.B. had been in the facility before without problem, but this time around, he was talking on the phone and not generally observing where he was going, so he did not notice the door frame as he tripped. The door frame raised slightly above the ground to accommodate the door, but it was not excessive or unusual in any respect. Despite these facts and circumstances, R.B. sued the location for negligence, alleging that the frame had caused his injuries because it was unreasonably dangerous.

The testing facility, Accurate, immediately responded with a summary judgment motion.  It made three arguments:  (1) that R.B. could not show that the door frame was unreasonably dangerous; (2) that R.B. could not show that anyone at Accurate was on notice of a dangerous condition; and (3) that R.B. was at least 50% liable for his injuries. In support of the summary judgment motion, Accurate attached photographs of the premises and the door frame, as well as deposition testimony from its facility manager, who stated that R.B. had never had any prior problems entering the premises, nor had any other visitors.