Articles Posted in Personal Injury

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

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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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 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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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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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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Tractor-trailer accidents can cause serious injuries that require long-term medical care. In an April 24, 2017 opinion, the Court of Appeals of Tennessee reviewed a negligence claim arising out of a collision between two semi-trucks. The plaintiff in the case was a long-distance driver. He was driving on a highway in western Tennessee when he suddenly saw an overturned tractor-trailer, which was blocking both lanes of the highway. Unable to stop or avoid the obstacle, the plaintiff collided with the overturned vehicle. The plaintiff brought suit against the owner of the overturned truck, alleging that its employee’s negligence caused the plaintiff’s injuries.


The defendant filed a motion for summary judgment on the ground that the plaintiff could not establish that its employee failed to exercise reasonable care. The defendant’s motion was supported by sworn affidavits of its employee and an accident reconstructionist. The affidavits stated that the employee was not speeding and that he had exited the roadway to avoid a collision with an unidentified driver, but as he attempted to re-enter the roadway, his tractor-trailer overturned. The circuit court granted the motion, finding that the plaintiff did not provide any evidence to dispute the employee’s testimony. The plaintiff appealed the matter to the higher court.

A negligence claim requires proof of five elements:  (1) a duty of care owed by the defendant to the plaintiff; (2) conduct below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. In Tennessee, all drivers have a duty to act with reasonable care to avoid foreseeable injuries to others.  Whether a driver has exercised reasonable care is evaluated in light of the circumstances, and it will vary according to the risk involved in a particular situation. The sudden emergency doctrine is a legal concept that recognizes that a person confronted with a sudden or unexpected emergency calling for immediate action is not expected to exercise the same accuracy of judgment as someone acting under normal circumstances, who has time for reflection and thought before acting.

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The Tennessee Health Care Liability Act (THCLA) covers injuries arising out of medical treatment provided by health care professionals.  In a relevant decision issued on May 2, 2017, the Court of Appeals of Tennessee reviewed a personal injury claim that the trial court had determined was subject to the THCLA. ambulance

In the case, the plaintiff alleged that, while he was strapped to a gurney, an EMT negligently hit him in the face with his fist.  The plaintiff filed his lawsuit against the EMT and the EMT’s employer.  The defendants asserted that the plaintiff’s action was, in essence, a health care liability action because the EMT was a health care provider, and the plaintiff’s injuries were related to the provision of health care services.  The trial court agreed and dismissed the plaintiff’s claims with prejudice, based on his failure to file a certificate of good faith as required by the THCLA.  The plaintiff’s appeal followed.

In Tennessee, civil actions alleging that a health care provider has caused an injury related to the provision of, or the failure to provide, health care services are health care liability actions subject to the THCLA.  In a health care liability action in which expert testimony is required under the THCLA, the plaintiff must file a certificate of good faith with the complaint.

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There are many kinds of damages that may arise out of a personal injury case, from medical expenses and lost income to compensation for the loss of a family member. In a March 29, 2017 case before the Court of Appeals of Tennessee, the matter on review concerned a health care liability action brought by the surviving wife of a patient against the hospital that treated him. After the death of her husband, the plaintiff filed a claim against the hospital, alleging that his death was a result of negligent medical treatment. Following a trial, the jury returned a verdict in favor of the defendant. On appeal, the plaintiff argued that the trial court erred in several of its evidentiary rulings and jury instructions.ambulance

In 2008, the deceased party in the case had fallen over 20 feet while working on a roof and suffered critical injuries, including multiple broken bones and extensive internal bleeding. His injuries necessitated a month-long stay in the intensive care unit at the defendant’s hospital. The patient was discharged to a rehabilitation facility, but he returned to the hospital several times over the following months for additional treatment. Having undergone multiple tracheotomies, he continued to experience breathing difficulties and was scheduled for another surgery. Sadly, he collapsed and died on the day before the scheduled surgery. His wife, as his widow and the administrator of his estate, filed a health care liability action against the defendant, alleging that its doctors were negligent in treating her husband’s injuries and that their negligence caused his death.

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Premises liability is a legal concept that allows a property owner to be held responsible for certain injuries that occur on his or her land.  In a February 7, 2017 decision, the Court of Appeals of Tennessee reviewed a personal injury action brought by a plaintiff who was injured at a restaurant.  After the trial court granted summary judgment in favor of the defendant, the plaintiff appealed the ruling for review by the higher sign

In 2012, the plaintiff, who was in her early 70s, visited the defendant’s restaurant to attend a party on the second floor.  The stairwell had railings on both the left and right sides of the stairs.  The right-hand stair railing was decorated with garlands and Christmas lights, while the railing on the left side had no decorations on it.  After the party ended, the plaintiff began to descend the stairs.  When she reached for the handrail, she was unable to grasp the railing itself but instead grabbed only a handful of garland.  Without the rail to steady herself, she fell down the stairs, suffering a femoral shaft fracture on her left leg that ultimately required surgery.

In Tennessee, property owners are required to exercise due care under all of the circumstances.  This general duty of care imposes a responsibility to either remove or warn against any dangerous condition on the premises of which the property owner is actually aware or should be aware through the exercise of reasonable diligence.  However, this does not include conditions from which no unreasonable risk was to be anticipated.

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A defendant may be held liable for any foreseeable injuries caused as a result of his or her negligence.  The Court of Appeals of Tennessee recently addressed the issue of foreseeability in a January 31, 2017 opinion regarding a personal injury action.  In that case, the plaintiffs filed a negligence action seeking damages for injuries sustained after a deck collapsed at the defendants’ home.  The lower court dismissed the claim, finding that the injuries were not reasonably foreseeable, and the plaintiffs appealed.deck

The action arose from a party hosted for approximately 40 to 70 high school students at the defendants’ home in 2008.  At the time, the plaintiff was 14 years old.  While the plaintiff and others were dancing and jumping on an elevated, wooden deck attached to the house, the deck suddenly collapsed, causing the plaintiff to fall and sustain injuries.  Within a year after the plaintiff turned 18, the plaintiffs filed suit against the homeowners, alleging that they were negligent in supervising the children, failing to prevent the deck collapse and injuries, and failing to exercise reasonable care.

To succeed in a negligence action in Tennessee, the plaintiff must establish the following:  (1) a duty of care that the defendant owed to the plaintiff; (2) a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal causation.  All people have a general duty to use reasonable care to refrain from conduct that will foreseeably cause an injury to others.  However, if the injury could not have been reasonably foreseen, the duty of care does not arise, and there is no negligence and no liability, even when the act of the defendant in fact caused the injury.

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The Court of Appeals of Tennessee recently affirmed a judgment awarding a plaintiff $90,000 in his personal injury lawsuit against the City of Memphis.  In Turner v. City of Memphis (Tenn. Ct. App. Dec. 20, 2016), the plaintiff was injured in a motor vehicle accident involving a Memphis police officer.  The plaintiff filed a personal injury claim against the officer and the City under the Tennessee Governmental Tort Liability Act, alleging that the officer had negligently struck the plaintiff’s vehicle in a head-on collision.  After a bench trial, the court found in favor of the plaintiff and awarded him actual and compensatory damages in the amount of $90,000.  The City appealed the decision.traffic

In Turner, the court was presented with conflicting testimony from the parties regarding the existence of a dog in the road that forced the officer to veer into oncoming traffic.  The officer testified that while he was driving, he saw an object approach in his peripheral vision.  The officer believed it was a person and automatically steered toward the middle turn lane in order to avoid hitting the person.  In doing so, the officer struck the plaintiff’s vehicle head-on.  The officer testified that after the accident, he looked back and saw that the object was a dog.  The trial court ruled that the officer failed to establish that a dog or person was in the road on the night of the accident, and even if a dog or person was present, the officer nevertheless committed negligence in crossing two full lanes of traffic to veer into oncoming traffic.

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