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Celtic crossWhen an individual passes away due to another party’s negligence, the law provides that the decedent’s claim for damages should not simply disappear. Instead, two types of potential claims can be brought in response to the death. In some states, the decedent’s claim passes to immediate relatives like a spouse or children through “survival” statutes, and these family members can claim the decedent’s damages from the injury. Alternatively, in some states, immediate relatives instead can bring a wrongful death claim. This is a claim that is based not on the damages that the decedent experienced but on the damages the immediate relatives experienced as a result of the decedent’s death. Recently, the Tennessee Supreme Court clarified that Tennessee has a hybrid statute that combines these two types of claims and allows immediate relatives to bring their own lawsuits after a family member dies.

In this Tennessee wrongful death decision, the Tennessee Supreme Court considered the case of Mr. H. Mr. H.’s wife had elective surgery to treat colon cancer in 2004. After the surgery, she began to experience various medical complications. Almost a week later, she was re-admitted to the hospital, but it was too late because she was already in septic shock. Despite attempts to treat her, Mrs. H. died several hours later. Almost a year later and just before the statute of limitations deadline, Mr. H. filed a pro se wrongful death complaint, alleging that the hospital failed to treat Mrs. H. properly and that Mr. H. was entitled to damages as a result of her death.

The defendants immediately moved to dismiss the complaint, arguing that Mr. H. could only bring his claims as a representative of Mrs. H.’s estate, rather than as his own personal claims. Furthermore, they argued that only attorneys can bring representative claims, and since Mr. H. was not an attorney, his complaint had to be dismissed. The lower court denied the motions, finding that while a decedent’s immediate relative brings a wrongful death claim on behalf of the estate, representing all of the beneficiaries’ interests, since Mr. H. was the only beneficiary of the estate, he could bring the claim in a personal capacity.

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cleaningIn a premises liability case, a plaintiff must establish that the defendant had either actual or constructive knowledge of the dangerous condition that led to the accident. Actual knowledge occurs when the defendant observed the dangerous condition or created it. Constructive knowledge arises when the defendant should have known about the dangerous condition. One way that constructive knowledge can be proven is when there is a pattern of conduct or recurring incidents such that the defendant reasonably should have been on notice of a problem. A recent case before the Tennessee Court of Appeals looks at what it takes to prove negligence based on recurring incidents and patterns of conduct.

In a Tennessee premises liability case, W.K. was attending a concert at the Bridgestone Arena when she went to buy a drink at the concession stand. On her way, she slipped and fell on a large pool of liquid that had gathered between sections of seats. At the time of her fall, several employees were standing around the spill, and W.K. alleged that one of them had a broom and dustpan. After the fall, W.K.’s injuries required several surgeries, and she sued for damages. After discovery, the defendants moved for summary judgment, arguing that they did not have actual or constructive knowledge of the dangerous condition. In response, W.K. argued that there was a genuine issue of material fact as to whether the defendants had constructive knowledge because (1) several employees were standing near the spill at the time of the fall; (2) Bridgestone’s policy was for employees not to clean up spills until an event was over; and (3) there were multiple spills in the arena throughout the night, including one spill in a section near hers a little over an hour before her fall.

The trial court granted the motion for summary judgment in favor of the defendants, finding that W.K. had not established how and when the liquid was spilled, how long it had been there, whether employees had noticed or reported it, or whether the defendant was generally on notice of it. Accordingly, the trial court held there was no constructive knowledge. W.K. appealed.

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lightbulbLandlords owe a duty of reasonable care to their tenants. If a landlord knows that his or her property has a dangerous condition like a faulty railing or exposed electrical wire, there is a duty to correct such a known dangerous condition or face possible legal repercussions down the road. However, landlords generally are not responsible for dangerous conditions that the tenant creates himself during the course of renting the property. A recent case before the Tennessee Court of Appeals looks at when a dangerous condition is a landlord’s responsibility and when it is in the hands of the tenant.

In this Tennessee premises liability case, K.H. brought claims against her landlord, Group Properties, LLP, after she was injured by a light fixture that fell from her kitchen ceiling. Shortly after moving into her property, K.H. noticed that there was a water leak in her kitchen ceiling, near the light. She alerted her landlord, and one of the owners inspected the property. He was unable to determine the source of the leak and did not fix it. K.H.’s kitchen ceiling continued to leak, and, according to K.H., she continued to alert Group Properties, LLP of the problem. Nothing was done in response to her complaints, and several months later, K.H.’s ceiling light fell while K.H. was cooking dinner. Water had entered the ceiling fixture and caused it to collapse. After it hit K.H., she slipped on the additional water and suffered further injuries to her back and legs. She sued Group Properties, LLP for damages.

The trial court found Group Properties liable for negligence because Group Properties was on notice of the leak but did nothing to fix it. It entered an award of damages to K.H. to cover her medical expenses and pain and suffering. Group Properties appealed.

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splash-1256376-300x200In the most recent in a series of premise liability cases that have recently come before the Tennessee Court of Appeals, the Court recently reversed a grant of summary judgment on a slip-and-fall accident case. The case centered on an issue common to many premise liability disputes: whether the defendant, Ruby Tuesday, had actual knowledge, or should have known, of a risk of harm to the plaintiff when she fell after slipping on water that melted off a bag of ice that the plaintiff has just received from the restaurant. While the lower court held that Ruby Tuesday could not have known of the water on the floor because it happened only when the Plaintiff attempted to leave, the appeals court held that the cause of the fall should be viewed more broadly.

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wheelchairIf you have recently gone to an amusement park, played a group sport, or rented a mountain bike, you likely signed a waiver before you were allowed to participate in any of those activities. That waiver informed you of your rights and asked you to assume the risk of the activities you were undertaking so that others could not be held liable for any injuries that you might experience. Sometimes, these types of waivers will also ask individuals to waive their right to certain claims, like negligence claims, before participating. A recent case before the Tennessee Court of Appeals looked at whether it was permissible for a transportation operator to require that its clients waive any right to negligence claims.

In this Tennessee personal injury case, F.C. was 77 and recovering from a total knee replacement when he needed to visit his doctor for a follow-up appointment. Since he could not drive, his hospital, HealthSouth, arranged for a transportation service to pick him up, take him to his appointment, and take him back home. The transport van was owned by a company called MedicOne. Prior to using MedicOne’s services, F.C. was required to sign a waiver that specifically released MedicOne from any claims arising from negligence by MedicOne or its related parties. F.C. signed the waiver. After his appointment, while F.C. was being picked up, he fell when getting back into the MedicOne van and re-injured his knee. F.C. later sued MedicOne for negligence because it failed to use reasonable care in transporting F.C. In its Answer and a later Motion to Dismiss, MedicOne pointed to the waiver signed by F.C. and the release provision that released MedicOne from any potential claims. The trial court agreed and dismissed F.C.’s claims. F.C. appealed.

On appeal, F.C. argued that the waiver in the MedicOne agreement was unconscionable and invalid because MedicOne was a professional provider of transportation services, and professionals generally cannot require their clients to waive negligence claims. Under Tennessee law, exculpatory clauses in agreements with professionals can be invalidated when the professional is providing a service that is valuable and necessary to the public, and, as a result, the professional holds an unfair bargaining position. For example, Tennessee courts have held that doctors cannot require patients to release the doctor from liability for claims that may arise while medical services are being conducted, since the patient is at an unfair disadvantage while seeking the assistance of the doctor. F.C. argued that a similar standard should apply in his case to invalidate MedicOne’s agreement.

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prisonPrison settings are a common place for negligence claims to arise. Since prisons are responsible for the individuals who are in their care, it is easier for a plaintiff to establish that the prison owed a duty to protect the plaintiff from harm. However, even when an accident or injury occurs in a prison, a plaintiff must still be able to show that the harm that occurred was foreseeable. This is because prison officials are not strictly liable for any and every bad act that may occur; they may only be held liable for those that they could have anticipated but failed to prevent. A recent case before the Court of Appeals in Tennessee illustrates these limits on accountability.

In this Tennessee personal injury case, W.C. brought claims against the State of Tennessee after he was seriously injured in a knife attack by another inmate at the West Tennessee State Penitentiary. W.C. was attacked by his cellmate, C.M., with a handmade knife. W.C. sued Tennessee for negligence, arguing that state officials should have known that C.M. was likely to injure someone because he had previously made a handmade knife at the prison and had previously been reported for dangerous activity. W.C. argued that despite such knowledge, the State failed to do anything to protect other prisoners from C.M. In response, the State denied having any knowledge of any violent tendencies by C.M. After discovery was conducted, the State moved for summary judgment on W.C.’s claims, arguing that there was no evidence of prior knowledge.

The State presented evidence that C.M. had previously received two separate security assessments, had no apparent history of violent charges, and wasn’t considered to be a security threat. W.C. and C.M. had been cellmates for almost three months and had no issues. They got along well, and W.C. never reported any threats from C.M. nor any fears of C.M. hurting him. Indeed, prior to the assault, W.C. stated that he did not feel at all threatened by C.M. Based on this evidence, the Tennessee Claims Commission granted the State’s motion for summary judgment. W.C. appealed.

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truckTennessee’s Governmental Tort Liability Act governs how and when government agencies can be held liable for torts that may occur on their property or that have been committed by their employees. Under the GTLA, government agencies are generally immune from suit when injuries result from the government doing its job, unless certain exceptions apply. One of those exceptions is for negligent acts or omissions of government employees acting within the scope of their employment. Recently, a prisoner brought a Tennessee injury case to determine whether cities and counties in Tennessee are liable for injuries that occur on prisoner work details.

In this recent case, S.E. was serving a sentence at the Coffee County jail in Tennessee, where he was assigned to a work detail that involved cleaning up public properties in the City of Manchester, Tennessee. S.E. fell off a pickup truck while on the job and injured his head. He sued both the City of Manchester and Coffee County for his injuries, medical expenses, and damages. Coffee County settled with S.E., but S.E. continued to pursue claims against the City of Manchester. In response, the City moved to dismiss S.E.’s complaint, arguing that it was immune from liability under the GTLA. The trial court agreed and dismissed the case. S.E. appealed.

On appeal, S.E. argued that under the exception to the GTLA for negligent acts by employees, the City was not immune from liability because a police officer with the City of Manchester was supervising the work detail at the time. The City countered by pointing to Tennessee Statute 41-2-123(d)(2), which provides that states, municipalities, and their employees are not liable to prisoners or a prisoner’s family for death or injuries sustained on work detail, other than for medical treatment due to the injury while the prisoner is in prison. Here, medical treatment had been provided to S.E. after his injury, and the City took the position that it was not liable for any additional claims. In response, S.E. argued that the GTLA took precedence over the statute identified by the City. After reviewing the two statutes, the Court of Appeals disagreed.

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limo accidentIf you are injured while on the job, you may find that there are multiple parties who potentially may be liable for your damages. If you were in the course of your employment when you were injured, your employer may be required to pay for your medical expenses and lost wages through your workers’ compensation program because the injuries occurred while you were working. At the same time, if a third party was involved in the accident that caused your injury, for instance if they ran into a vehicle that you were driving for work, they may also have some liability for your injuries. But this does not mean that you can recover from both your employer and the third party. As discussed in a recent court case, if doing so would require you to sue a co-worker or fellow employee, recovery from both may be precluded in Tennessee.

In this recent Tennessee car accident case, C.W. and J.B. were carpooling to work when they were involved in a motor vehicle accident. After the accident occurred, C.W. filed for workers’ compensation benefits from his employer at the time, Progression. Progression did not dispute that the accident and C.W.’s injuries had occurred on the job and paid C.W.’s benefits. Shortly thereafter, C.W. also filed suit against J.B., arguing that J.B.’s negligence in driving the vehicle had caused his injuries. J.B. moved for summary judgment on the claim, arguing that since C.W. had previously asserted that his injuries occurred in the course of his employment, his exclusive remedy was workers’ compensation, and he was precluded from bringing tort claims against J.B. The court granted the motion, finding that C.W. had previously represented that the accident occurred as part of his employment, and, as a result, Tennessee law provided that workers’ compensation was his exclusive remedy. It therefore dismissed the case, and C.W. appealed.

On appeal, C.W. argued that the court erred in concluding that just because he sought workers’ compensation benefits he was precluded from filing separate tort claims. Under Tennessee law, the right to receive workers’ compensation benefits excludes a plaintiff from other claims for injury. However, Tennessee law also provides that when a worker recovers against a third party, an employer may recover for costs paid through workers’ compensation. Reviewing the case law, the Court of Appeals noted that workers may sometimes be permitted to recover against entirely separate third parties for their injuries, but employers may be reimbursed for expenses they have paid. However, these third parties do not include other employees, who are, in fact, a part of the “employment” and fall within the scope of workers’ compensation. If a co-employee caused the accident, it is the employer that will be liable, but the employer is already liable under the workers’ compensation scheme. Thus, the dual claims against the employer cannot succeed.

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haircutIf you are injured in a car, truck, or pedestrian accident, there are multiple categories of damages that you may seek to recover in a personal injury lawsuit. First, you may claim expenses that you have incurred as a result of your accident, such as medical bills or repair costs for your car or other property. Second, you may seek pain and suffering damages for the pain you experienced during and after your accident, as well as any suffering that may continue to linger long after the accident is over. Third, you may also have lost earnings and lost future earnings. These damages arise when you are unable to work or forced to reduce your workload as a result of your accident, or when your accident leaves you permanently injured in a way that affects your ability to work and make money down the road.  A recent case before the Tennessee Court of Appeals looks at how lost future earnings are calculated in Tennessee.

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broken truckTypically, negligence and personal injury claims are evaluated by considering the testimony presented by each party as to what happened at the time of the accident and who was at fault. The credibility of witnesses is evaluated, experts and evidence may be provided to support each party’s version of the facts, and ultimately a judge or jury must determine whose story they believe. But what happens when one party can’t remember what happened at the time of the accident? A recent case before the Tennessee Court of Appeals addresses this issue.

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