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Tennessee businesses have a responsibility to keep their customers safe from unreasonably dangerous conditions on their property.  In an August 18, 2017 case, the Court of Appeals reviewed a Tennessee injury claim brought by a plaintiff who slipped and fell at a local restaurant.  After the circuit court granted summary judgment in favor of the defendant, the plaintiff filed an appeal.ice

The plaintiff in the case was picking up lunch from the restaurant for approximately 25-30 people, including drinks and bags of ice.  After picking up a box containing food and a bag of ice, the plaintiff turned to leave and fell.  She testified that the floor wasn’t wet when she entered the restaurant, but when she fell, she was lying in water on the floor.  She also stated that the bag of ice felt mostly like water.  The manager of the restaurant testified in his deposition that the ice had been set out for a while and that condensation from the bag of ice had dripped onto the floor.  The plaintiff also offered testimony from her expert, who asserted that the industry norm is to store bags of ice in a freezer until the customer arrives to pick up the order.

In Tennessee, a negligence claim requires a plaintiff to prove:  (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care, amounting to a breach of the duty; (3) an injury or loss; (4) causation in fact; and (5) proximate causation.  In a premises liability case, a business owner or occupier has a duty to exercise reasonable care with regard to customers on the premises.  This duty includes the responsibility to remove or warn against hidden dangerous conditions of which the occupier was aware or should have been aware.

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Spouses who divorce after a lengthy marriage may have disputes related to a sudden change in income or other financial concerns.  The Court of Appeals of Tennessee considered the issue of transitional alimony in an August 1, 2017 case.  The spouses in this Tennessee divorce case had divorced after nearly 30 years of marriage.  The husband brought the appeal, contesting the trial court’s award of transitional alimony to the wife.check

The spouses had resolved many of the issues related to their divorce through mediation, but with the question of alimony unsettled, the matter went before the trial court.  Testimony established that the husband’s post-divorce gross monthly income would be approximately $9,500, while the wife’s income was estimated at $3,600.  After deducting their respective expenses, the lower court ordered an award of transitional alimony paid to the wife in the amount of $500 a month for the next 12 years, until the wife could claim Social Security retirement benefits.  In his appeal, the husband challenged both the amount and duration of the alimony awarded, arguing that the wife failed to demonstrate a sufficient need for it.

In Tennessee, alimony decisions by the court require the careful balancing of many factors, which are provided by law.  The two most important factors are the disadvantaged spouse’s need and the obligor spouse’s ability to pay.  Other factors that courts are directed to consider include, but are not limited to, the duration of the marriage and the standard of living enjoyed during the marriage, the age and physical condition of the spouses, the education and training of each spouse, their separate assets, and, if appropriate, the relative fault of the parties.

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When a beneficiary under a will has died before the testator has passed away, the devise to the beneficiary is known as a lapsed gift.  In some cases, this may complicate the probate administration proceedings.  In a July 25, 2017 Tennessee estate case, the Court of Appeals reviewed a dispute involving a provision of the decedent’s will bequeathing the residue and remainder of her estate to her former husband, who had predeceased her. contract

The will at issue was executed in 1991.  When her husband died in 1996, the decedent never revoked the 1991 will.  The decedent passed away in 2012, and the husband’s children and the former stepchildren of the decedent claimed entitlement to the residuary estate by virtue of Tennessee’s anti-lapse statute.  Conversely, the executrix of the estate argued that such a disposition was inconsistent with the decedent’s intent.

In Tennessee, the intent of the person making the will is the most important factor in will interpretation cases, and it is primarily ascertained from the words of the will itself, read in the light of the surrounding and attending circumstances.  Evidence outside the will may be admissible to show the circumstances surrounding the testator when she executed her will and to resolve any ambiguity in the will as to the testator’s intentions.  However, evidence is inadmissible to add to, vary, or contradict the language used in a will.

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Accident victims may be able to recover compensation for different kinds of economic and non-economic loss in a negligence claim.  In a July 14, 2017 case, the Court of Appeals of Tennessee reviewed a jury award of damages to a plaintiff injured in a Tennessee car accident.  The defendant admitted liability for the accident but appealed the amounts awarded for damages, which totaled approximately $271,000.  On appeal, the court addressed some of the awards of damages, including medical expenses, lost future earnings, pain and suffering, and other damages.car exterior

Medical Expenses

In Tennessee, an injured party is entitled to recover for medical expenses reasonably and necessarily incurred in the treatment of the injury.  On appeal, the court held that the medical expenses incurred by the plaintiff from the time of the accident through four months afterward were proven reasonable and necessary by a preponderance of the evidence.  However, the court decreased the award by the amount of expenses incurred after the plaintiff was discharged from her doctor’s treatment, which were not proven necessary to treat injuries from the accident.

Loss of Future Earning Capacity

Loss or impairment of future earning capacity is an element of damages in a personal injury action.  Earning capacity refers not to actual earnings but instead to the earnings that the plaintiff is capable of making.  Generally, this amount is calculated by comparing what the plaintiff would have been capable of earning without the injury with the amount the plaintiff is capable of earning after the injury.  Courts routinely admit evidence concerning numerous factors, including the plaintiff’s age, health, intelligence, capacity and ability to work, experience, training, record of employment, and future avenues of employment.

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Settling property matters between divorcing spouses can be difficult, particularly in high-asset divorce cases.  In a July 11, 2017 case from the Court of Appeals of Tennessee, part of the spouses’ dispute centered around an art collection and two rings gifted from the husband to the wife during their marriage.  After a trial, the lower court ruled that the art collection would be divided equitably, and each spouse would receive one ring.  The parties filed a subsequent appeal.wedding rings

Tennessee is a dual property state, meaning that there is a distinction between marital property and separate property.  Generally, assets acquired by either spouse during the marriage are presumed to be marital property, and assets acquired by either spouse before the marriage are presumed to be separate property.  In addition, assets acquired by one spouse by gift, bequest, devise, or descent are also considered separate property.  Significantly, separate property is not part of the marital estate and is therefore not subject to division.  If the spouses cannot agree on how to divide property in the event of divorce, the trial court will classify the spouses’ property as marital or separate and assign a value to each piece of property subject to division.  The court will then divide the property in an essentially equitable manner, without regard to the marital fault.

At the time of the divorce, the spouses in the case owned a collection of artwork consisting of three reproductions of paintings that the wife testified were purchased with marital funds and one original painting that the husband gifted to the wife as a Christmas gift.  The appeals court found that the only evidence on the matter of the reproductions was the wife’s testimony and the affidavits of both spouses, which listed the art as marital property.  Accordingly, the appeals court affirmed the trial court’s award of the original painting to the wife as her separate property, but it concluded that the reproductions should be classified as marital property on remand.

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Some types of estate assets, such as a person’s business interests, can be complicated to settle during probate without a valid will or any other estate planning tools. In a June 29, 2017 Tennessee estate decision, the Court of Appeals was asked to decide which of the decedent’s heirs was entitled to ownership of a company operated by the decedent. The lower court had concluded that the widow was the owner of all of the shares of stock in a summary judgment motion, and the decedent’s daughters appealed.stock market

The stock certificate at issue was titled in the name of the decedent and his widow as joint tenants with rights of survivorship. The widow argued that the shares of stock in the corporation passed to her as the surviving joint tenant with right of survivorship. The decedent’s daughters, however, argued that the corporation’s assets should be part of the decedent’s estate. The daughters contended that the stock certificate was defective, citing a Tennessee statute that requires a share certificate issued by a corporation to be signed by two officers who are designated in the bylaws or by the board of directors. The widow responded that even if there was a technical defect resulting from the lack of a second signature, the clear intent of the incorporators and directors was to issue the shares of stock to the decedent and the widow as joint tenants with rights of survivorship.

On appeal, the court stated that the question of the ownership of the corporate stock turned on the intent of the directors and incorporators. The court observed that the widow had presented affidavits supporting the conclusion that she, the decedent, and the incorporator intended to issue the stock as joint tenants with rights of survivorship, and the stock certificate itself also supported her argument. The court went on to find that although the certificate was not signed by two corporate directors or officers as directed by Tennessee statute, it could nevertheless be used to indicate the intent of the issuers of the stock.

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The Court of Appeals of Tennessee issued an opinion on June 23, 2017 in favor of a plaintiff, reversing a lower court’s decision in a wrongful death case.  The plaintiff in the case alleged that the county emergency communications district and the city police department refused to send help when the plaintiff called to report that her daughter was making suicidal threats and that, as a result, her daughter committed suicide later the same night. The trial court granted summary judgment in favor of the defendants on the ground that the decedent’s suicide constituted an intervening, superseding cause, and the plaintiff appealed.police car

To prove a claim for negligence in Tennessee, a plaintiff must demonstrate:  (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care that amounted to a breach of that duty; (3) injury or loss; (4) cause in fact; and (5) proximate cause. Proximate cause requires proof that the defendant’s conduct was a substantial factor in bringing about the harm and that the harm was reasonably foreseeable. The defendants in the case argued that they should be relieved of liability under the doctrine of independent intervening cause, since the decedent’s suicide could not have reasonably been foreseen.

The appeals court explained that foreseeability is key in determining whether the doctrine applies, since no one is expected to protect against harms from events that cannot be reasonably anticipated or foreseen. The court noted evidence that the plaintiff had alerted the defendants that her daughter was threatening suicide and that both the emergency communications district and the city police department refused to send help. Under these circumstances, the court found that a jury could reasonably conclude that it was foreseeable that the plaintiff’s daughter would follow through with her threats to commit suicide. Accordingly, the court held that the defendants were not entitled to summary judgment on the basis that the decedent’s suicide was a superseding intervening cause.

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In some estate cases, the court is called upon to determine the ownership and distribution of certain assets that may not typically be subject to probate, such as insurance policies, retirement accounts, and other accounts with named beneficiaries.  In an April 17, 2017 case from the Court of Appeals of Tennessee, the parties’ disagreement concerned annuities and insurance policies paid for by the decedent.  After the trial court ruled that the assets should be transferred to the estate and the decedent’s grandchildren, the executor appealed.gavel

The decedent in the case was survived by her two sons, one of which was the executor of her last will and testament.  The will provided that the sons were to share equally in the decedent’s residuary estate.  Before her death, the decedent had taken out insurance policies on the grandchildren’s lives, but no beneficiary was named in them.  In addition, certain annuities paid for with the decedent’s money were listed in the executor’s name and had never been owned by the decedent.

On appeal, the court first considered the matter of the insurance policies on the grandchildren.  Although no beneficiary was listed on either policy account, the trial court ordered that each of the grandchildren be named as the owner of their respective policy.  However, the appeals court held that there was no legal basis to support the result.  Without any designated beneficiaries on the insurance policies at the time of the decedent’s death, the court explained that the policies were subject to probate and are to be distributed in accordance with the terms of the will.  Accordingly, the appeals court reversed the lower court’s decision transferring the policies to the grandchildren, and it ordered that they be transferred to the estate.  The policies are then subject to distribution as part of the residuary estate, to be divided equally between the two sons.

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Issues concerning children and other personal matters are often disputed in divorce cases.  In a June 15, 2017 case from the Court of Appeals of Tennessee, a father argued that the lower court erred in not awarding him equal parenting time with the spouses’ three children and in not granting a fault-based divorce due to the mother’s infidelity.  The spouses had filed for divorce in 2015, each alleging inappropriate marital conduct on the part of the other.  The trial court’s order granted a divorce without finding fault, designated the mother as the primary residential parent, and awarded visitation rights to the father pursuant to a schedule.child's hands

On appeal, the father contended that the trial court should have awarded him more time with the children.  The father cited Tennessee’s parental custody statute, which provides that, when taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the child’s life, and that is consistent with certain factors, including the location of the residences of the parents, the child’s need for stability, and other relevant considerations.

The appeals court noted, however, that the rule does not mandate that each parent spend equal time with the child when such a schedule would not serve the child’s best interest.  The court also explained that the trial court’s analysis is guided by a number of other factors, including which parent served as the primary caregiver of the children, which parent is more likely to foster a relationship with the other parent, the stability and continuity offered by each parent, and the preferences of older children.  In the case, the mother worked from home, while the father worked outside the home and was unavailable during much of the week.  The court ruled that, under these circumstances, the trial court was well within its discretion to create a parenting plan that provided the mother with the majority of parenting time during the work week and alternating weekends.

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Although Tennessee law provides the deadline by which a claim must be filed, there are exceptions that may extend that time limit.  In a May 26, 2017 decision, the Court of Appeals of Tennessee considered whether any exceptions applied in a medical malpractice action filed by a mother and her child on September 29, 2015.  The plaintiffs alleged that they suffered permanent injuries resulting from the defendant health care providers’ negligent care during the child’s birth in June 2012.  The trial court granted the defendants’ motion to dismiss the plaintiffs’ claims, based on the expiration of the statute of limitations.ultrasound

Health care liability actions in Tennessee are generally subject to a one-year statute of limitations that runs from the date on which the claim accrues.  There is an important exception under the Health Care Liability Act, however, if the alleged injury is not discovered within one year.  In such cases, the period of limitation is extended to one year from the date of the discovery, but no more than three years after the date on which the alleged negligence occurred (subject to certain exceptions).  This statute is commonly known as a statute of repose, since it establishes an absolute, three-year limit upon the existing statute of limitations.  Although the three-year statute of repose is not tolled during a plaintiff’s minority, it may be extended by 120 days if the plaintiff provides the defendants with pre-suit notice of his or her potential claims as required by the Act, before the statute of repose expires.

In the case, the plaintiffs alleged that the defendants’ negligence occurred on June 21, 2012.  Accordingly, the three-year statute of repose expired on June 21, 2015, well before the plaintiffs’ complaint was filed on September 29, 2015.  On appeal, one of the dispositive issues for the court was whether the plaintiffs provided the defendants with sufficient pre-suit notice of their claims, which would extend the statute of repose by 120 days to October 19, 2015 and save the child’s claim from being dismissed.

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