Articles Posted in Personal Injury

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Dogs are a man’s best friends, and they typically bring great joy and laughter to a household. With training, patience, and love, pets can be a wonderful addition to any family. Occasionally, however, certain pets may exhibit aggression, fear, or a propensity for unpredictable behavior. In these circumstances, an owner has an obligation to protect other individuals from the possibility of violent behavior by the pet. If the owner fails to do so, he or she may be held liable for an injury that results. A recent case before the Tennessee Court of Appeals evaluates these obligations and how much knowledge an owner must have before an injury

In this Tennessee dog bite case, D.S. took her son with her to visit the home of her close friend W.A. D.S. and W.A. had known each other a long time, and their children were friends. When they arrived at the home, W.A.’s Australian shepherd, Ruby, was lying on the front porch. D.S.’s son approached and began to pet Ruby on the head and back. Ruby did not appear bothered by this. Later, D.S. and her son went into W.A.’s house and began to relax on a chair in the living room. Ruby came up to them, jumped up, and put her paws in D.S.’s lap, while D.S.’s son began to pet Ruby again. D.S. found Ruby’s actions amusing but not uncomfortable. Eventually, W.A. began to urge Ruby to get down. After several requests, W.A. swatted Ruby on the back, and she jumped down. Ruby ran off into another room for a few minutes and then returned. She again jumped up and placed her paws on D.S.’s lap. This time, however, Ruby bit D.S.’s son on the face, causing severe injuries.

Shortly thereafter, D.S. filed a lawsuit against W.A. for the injuries her son experienced. She argued that under Tennessee common law and Tennessee statutory law, W.A. was negligent in allowing her dog to attack D.S.’s son. In response, W.A. moved for summary judgment, arguing that she had no knowledge of any prior violence or propensity for violence by Ruby and, accordingly, could not be held responsible for Ruby’s actions. Reviewing the record and the lack of any prior history by Ruby, the lower court agreed and granted summary judgment to W.A.

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roadOften in a Tennessee truck accident, it may not be clear who is completely to blame. One party may fail to check a lane before merging, while the other is busy texting on her phone. In some states, the courts deal with this by apportioning fault and damages between parties in a negligence claim. Others, like Tennessee, are comparative fault states. Tennessee only allows for a negligence or personal injury claim to be successful when the defendant is more than 50% responsible for the accident. Thus, the plaintiff can have some degree of fault but not too much, or the claim is not viable.

In a recent automobile accident case, the question of comparative fault arose. At the time of the accident, D.P. was driving a delivery truck for his employer on a highway in Tennessee. The defendant, D.T., was also driving on that highway with his wife, ahead of D.P. and in a different lane. D.P. approached a construction site with police but did not observe any signs requiring him to slow his speed. He proceeded around the site at his same speed of 60 miles per hour. As he passed the site, D.T. decided to change lanes, immediately moving into the lane in front of D.P. D.P. was unable to slow down and ran into D.T. The accident was caught on a video camera on D.P.’s truck.

D.T. filed suit against D.P., alleging that D.P. failed to use reasonable care while driving, including failing to drive at an appropriate speed under the circumstances. According to D.T., D.P. should have slowed his vehicle when he approached and went around the construction site. D.P. quickly moved for summary judgment, arguing that the video camera clearly recorded the accident and showed that he was driving within the speed limit and that D.T. had quickly crossed lanes ahead of him. He claimed that his actions were reasonable and prudent under the circumstances and that D.T. was more than 50% at fault for the accident. The plaintiffs admitted that the video recording of the accident was correct, but they argued that reasonable minds could differ as to whether D.T. was 50% or more at fault.

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cell phonePlaintiffs who bring negligence and personal injury claims in court are often focused on gathering all of the evidence possible to show that the defendant is guilty of having caused harm. Often, in these cases, the actual injury suffered by the plaintiff becomes secondary. While proving an injury may seem like a simple matter that is less significant than proving fault, a failure to show an injury can easily end a Tennessee personal injury case. As a recent case before the Tennessee Court of Appeals shows, plaintiffs must be careful not to neglect the importance of showing to a court that the harm they suffered was real.

In this recent prison case, J.M. alleged that he was injured after the power went off at his cell at the Turney Center Industrial Complex. According to J.M., the power went off for several days at the prison, leaving prisoners stuck in darkness. While trying to get out of his top bunk on one of those nights to go to the bathroom, J.M. missed the table on which he normally stepped because he could not see it in the dark, and he fell, hurting his knee and lower back. After discovery, the State of Tennessee moved for summary judgment on the ground that J.M. was not actually injured as a result of the fall. In support of the motion, the State submitted medical records from J.M.’s providers, which showed that J.M. had suffered from knee pain prior to the fall and that neither back nor knee x-rays showed any evidence of a traumatic injury after the fall.

In response to this evidence, the claims commissioner granted the State’s motion for summary judgment, finding that J.M. had not met his burden to show that he experienced an injury or loss as a result of the State’s actions. J.M. appealed this conclusion.

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gunGun ownership is an issue about which many Tennesseans feel passionately. While individuals may disagree about when and where individuals should be allowed to have guns, all agree that gun owners have a responsibility to use their guns safely. Recently, a case in the Tennessee Court of Appeals raised a novel issue in gun ownership, asking whether a gun owner owes a duty to protect an individual whom he or she knows is mentally unstable or suicidal from using his or her gun. This question potentially broadens the responsibility that gun owners have not only to themselves but also to others.

In this Tennessee wrongful death case, the personal representative of C.C. brought claims against J.W. after C.C. committed suicide in 2014. C.C. was a nurse with a husband and young child when she began an affair with a doctor, J.W., at the hospital where she worked. When her husband became aware of the affair, they divorced, and the husband eventually sought full custody of their child. While going through these proceedings, C.C. became increasingly depressed and upset and eventually sought the help of a psychiatrist. She was prescribed medication but continued to struggle with depression. In January 2014, C.C. attempted suicide for the first time by overdosing on her medications and mixing them with alcohol. She was transported to a local hospital, and J.W. was alerted. Eventually she was released into J.W.’s custody with instructions to receive further mental health care. Over the following weeks, C.C. learned that her ex-husband had been granted full custody of their child. She and J.W. began to disagree and temporarily separated. Several weeks later, they reconciled.

At around that time, J.W. inherited a gun and ammunition from a family member. While C.C. was visiting J.W.’s home one night, J.W. showed her the pistol and where it was located. J.W. and C.C. continued to have an on and off relationship. While C.C. also continued to see her therapist, she never told him about the attempted suicide, and J.W. did not share this information either. As a result, C.C. was not prescribed any further medication or treatment. Shortly before her suicide, C.C. and J.W. had another fight when J.W. attempted to break off the relationship. While J.W. was away on business, C.C. asked if she could stay at his home while she looked for new housing. J.W. agreed. While in his home, C.C. shot herself with the pistol that J.W. had shown her. By the time he returned home, C.C. was dead. The personal representative of C.C.’s estate sued J.W. for negligence, arguing that J.W. should have kept and stored his gun in a safe manner where it was not accessible to C.C. The representative further argued that J.W. knew of C.C.’s precarious mental state and owed a duty to protect her from the possibility that she might harm herself.

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road workRarely is the identity of a defendant more important than when the defendant is a governmental actor. Many states, including Tennessee, have developed unique rules and requirements that apply to personal injury claims brought against governmental actors, in large part to protect them from liability. Since governments provide such a wide range of services and are involved in providing amenities that affect the day-to-day activities of many citizens, they are often at risk of lawsuits. Special governmental immunity statutes like Tennessee’s Governmental Tort Liability Act protect governments from litigation when they are operating in the normal course of their functions. If plaintiffs do not meet the unique requirements of these statutes, they are at risk of having their lawsuits thrown out based on this immunity. A recent case before the Tennessee Court of Appeals illustrates this risk.

In this Tennessee property damage case, J.T. brought claims against the Trousdale County Highway Department for damage to his home that he alleged he experienced as a result of the Highway Department’s efforts to fix a road in front of his house. According to J.T., the Highway Department used a vibratory drum compactor near his house, and the strong and significant vibrations caused damage to his exterior and interior, including vaporizing the brick exterior of his house, causing damage to the foundation, and affecting the drywall inside his home. Although J.T. experienced these damages shortly after the Highway Department’s work occurred, he did not file his lawsuit until almost three years later, shortly before the statute of limitations was to expire.

The Highway Department immediately responded to J.T.’s complaint with a motion to dismiss, arguing that J.T.’s claims were subject to the Governmental Tort Liability Act (GTLA) and were therefore time-barred under the GTLA. The lower court agreed and dismissed the case. J.T. appealed.

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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.