Articles Posted in Personal Injury

Sometimes when an accident occurs, the cause of the accident can easily be assigned to one person. For example, a drunk driver may hit another driver who is cautiously driving down the road. Other times, the cause can be more convoluted. While a perpetrator may be driving recklessly down the road, the victim may likewise be speeding at the time the accident occurs.

A recent Tennessee premises liability case before the Tennessee Court of Appeals looks at a question of complicated negligence and evaluates how fault should be assigned to the various parties involved. R.O. was a builder in Tennessee who visited the East Nashville Convenience Center to dispose of building materials. The Convenience Center was a place where local residents could go to dispose of trash too big for normal pickup. The Convenience Center had two levels, one with trash bins below and one above where individuals could park their cars to throw their trash down into the lower bins. To avoid cars falling off the upper level, it was surrounded by a concrete barrier that had several holes, or cuts, used for drainage purposes.

R.O. drove his truck up to a parking spot on the upper level and got out of his car to dispose of his trash. He stood on the concrete barrier to make it easier to throw trash down below and walked back and forth from his car to the bin. While attempting to dump his trash, he stepped into one of the cuts used for drainage purposes and fell five feet below to the lower level, breaking his arm. Shortly thereafter, he sued the Metropolitan Government of Nashville for maintaining a dangerous condition at the Convenience Center and failing to properly warn citizens.

Sometimes when a plaintiff is injured as a result of another’s actions, or a dangerous condition, he or she will not know precisely which defendants may need to be sued. For example, a plaintiff may sue a business for a cracked sidewalk, but might not know whether the business owns the property or if there is another landlord who should be included.

One way to discover additional defendants is through comparative fault. Where a defendant is sued and that defendant believes there are other parties who should be considered as being at fault for the accident, they may file a notice of comparative fault, designating other individuals as entities as partially responsible for the accident. This works to hopefully limit the defendant’s own liability, but also alerts the plaintiff to the possibility of other potential defendants.

In a recent case before the Tennessee Court of Appeals, the court looked at when a second defendant who is identified after a notice of comparative fault can properly be sued and how long a plaintiff has to bring a claim. In that case, M.S. sued Publix grocery stores after she fell at her local grocery store while taking her grocery purchases to her car. According to the lawsuit, there was a loose mat outside the elevator that M.S. was using and she tripped on the mat, causing her injuries. M.S. was aware that Publix had a landlord and sued the landlord, known as the Hill Defendants, as well. At the time of her initial suit, Publix filed a notice of comparative fault identifying the Hill Defendants as potentially at fault in the accident. Shortly thereafter, for unknown reasons, M.S. dismissed the Hill Defendants from the lawsuit.

As previously mentioned on this blog, governmental actors are entitled to many special protections in Tennessee when they are the subjects of lawsuits. Under the Tennessee Governmental Immunity Act, governmental agencies and their employees are immune from liability in certain situations. Typically, when a governmental agency or entity is sued, the burden is on the plaintiff to show that governmental immunity does not apply. If the plaintiff cannot do so, the lawsuit will most likely be dismissed, as illustrated in a recent Court of Appeals case.

In this Tennessee premises liability case, L.W. sued the Chattanooga-Hamilton Hospital Authority after she was severely injured while visiting one of their hospitals, Erlanger, for an appointment. At the time, L.W. was recovering from a broken arm and had an appointment to visit her orthopedic doctor. When she arrived at Erlanger, she stepped into the hospital waiting room to wait for her appointment. Unbeknownst to her at the time, she was standing next to an emergency exit door that had no signage or distinguishing features. When an Erlanger employee suddenly exited the door, the door rammed into L.W., causing her to fly across the room and land on her back.

At the time of the accident, she could no longer feel anything below her neck and believed that she was paralyzed. It was later discovered that she had fractured her hip. As a result of the accident, L.W. lost significant mobility, was required to use a walker, and lived with constant pain.

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.

When 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.

In 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.

For 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.

In 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.

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 occurs.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.

On appeal, D.S. argued that W.A. should be held responsible for Ruby’s actions even if she didn’t know that Ruby was likely to hurt someone. Under Tennessee common law, a dog owner may only be held liable for a dog bite if the dog had a history of injuring people, and the owner was aware of this history. In 2007, Tennessee codified this common law claim and added an element of strict liability. Under the statute, dog owners may be held liable for the violent actions of their dogs, even if they are not aware of a propensity toward violence, if they were not reasonably able to control the dog at the time of the injury or the dog was running at large. However, under the statute, when individuals are in a dog owner’s home when they are injured, they may only bring a claim against the dog owner if the owner had reason to know that the dog was violent.

Often 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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