Articles Posted in Personal Injury

Bicycle collisions can result in serious injuries or even death.  In a March 28, 2018 case arising out of a fatal cycling accident, the surviving spouse filed a Tennessee wrongful death lawsuit against two individuals who were cycling with her husband.  The trial court granted summary judgment in favor of the defendants, holding that, among other things, the decedent was at least 50% at fault for the accident and that the activities in which they were engaged were inherently dangerous.  The plaintiff appealed the decision.bicycle

In the case, the husband, the defendants, and two others were on a cycling expedition on the shoulder of a highway in Tennessee.  The group was riding in a paceline, which requires the cyclists to ride in a line extremely close to each other in order to counteract wind resistance and increase the efficiency of the ride.  All of the individuals in the group, including the decedent, were seasoned cyclists.  At some point during the ride, one of the defendant’s front tire struck the other defendant’s back tire, causing the former to crash and fall to the pavement.  As the decedent attempted to avoid him, he somehow flew off his bicycle and landed on his head.  The decedent was rendered quadriplegic by the wreck and months later passed away.

On appeal, the defendants argued that paceline riding is an inherently risky activity, especially for an older cyclist such as the decedent, and pointed to the testimony of the experts and participants.  The appeals court disagreed with the position that, by participating in paceline riding, the decedent assumed the risk of any unreasonably dangerous conduct on the part of the other participants.  The court also noted that the Tennessee Supreme Court had abolished implied assumption of the risk as a complete bar to recovery.

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Property owners may be responsible for injuries caused by their negligence in certain situations.  In a March 15, 2018 case, the Court of Appeals of Tennessee considered a personal injury action filed against a homeowner who had hired the plaintiff to paint her house.  The defendant in the case had provided the plaintiff with the materials and ladders needed to access the exterior of her house.  While using the defendant’s folding ladder, the plaintiff fell to the ground, injuring his wrist.  The plaintiff sued the defendant for damages, alleging that she was negligent for providing him with old ladders that were unsafe.ladder

Negligence is generally defined as a failure to exercise reasonable care. To succeed on a negligence claim in Tennessee, the plaintiff must prove five elements:   (1) a duty of care owed by the defendant to the plaintiff; (2) conduct below the standard of care that amounts to a breach of that duty; (3) an injury; (4) cause in fact; and (5) proximate, or legal, cause.  A defendant’s conduct constitutes the cause in fact of a plaintiff’s injury if the injury would not have occurred “but for” the defendant’s conduct.  When determining whether proximate cause exists, the court considers whether the injury that occurred was reasonably foreseeable by the defendant.

The plaintiff in the case had testified during his deposition that he did not know what caused him to fall off the ladder, and he could not state for certain whether the ladder had failed, whether he lost his balance, or if something else had caused him to fall.  On appeal, the court observed that generally, a plaintiff cannot prove the defendant’s liability on a negligence claim when the plaintiff is unable to identify what caused the fall, either personally or with the use of outside witnesses.  The court went on to hold that the plaintiff’s speculation about the cause of his injury was insufficient to establish the element of causation in fact.

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A person who has been injured in an accident caused by the carelessness of another person, entity, or business may be able to sue them for damages in a negligence claim.  In a February 22, 2018 decision, the Court of Appeals of Tennessee reviewed a Tennessee premises liability case based on negligence.  The case was filed by a plaintiff who was injured at a bulk waste disposal center, which was owned and operated by the defendant, a local government.
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The disposal center where the injury occurred was undergoing renovations at the time the plaintiff visited.  A worker directed the plaintiff to an upper platform to dispose of his trash in a certain bin.  As the plaintiff stepped out of his truck and moved to access the back of it, he stepped through a 15-inch drainage hole and fell five feet to the lower platform.  The plaintiff brought suit against the metro government under the Governmental Tort Liability Act.

After a bench trial, the court found that the metro government breached its duties and was at fault for the plaintiff’s injuries, but the plaintiff was also at fault in failing to notice the drainage cut that caused his fall.  The trial court apportioned 80 percent of the fault to the metropolitan government and 20 percent to the plaintiff.  The plaintiff was therefore awarded damages for his injuries.

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In some cases, procedural issues could result in barring a personal injury claim, but a skilled Tennessee premises liability attorney can advance an argument against dismissal.  In a January 30, 2018 case, the Court of Appeals of Tennessee reviewed whether a trial court had properly dismissed the plaintiff’s claims against some of the defendants that she had sued after suffering a fall in a grocery store.shopping carts

The plaintiff in the case had slipped on an unsecured mat at a supermarket and fell, sustaining injuries.  She alleged that the shopping cart and the unsecured mat caused her to trip, and she brought claims for ordinary negligence, premises liability, and negligence per se against four entities that owned or operated the store.  The plaintiff voluntarily dismissed without prejudice three of the four defendants a few months after bringing the lawsuit.  She subsequently filed an amended complaint against the one remaining defendant.  The defendant filed its answer, asserting as an affirmative defense the comparative fault of the other defendants who had been dismissed.   The plaintiff then filed a second amended complaint, renaming those defendants pursuant to TCA § 20-1-119.  The trial court ruled that the plaintiff’s claims were barred, and the plaintiff appealed.

The Tennessee statute at issue generally provides that in civil actions in which a defendant alleges the comparative fault of another person in its answer, and the plaintiff would otherwise be barred from bringing suit against the person by the statute of limitations, the plaintiff may amend the complaint to add the person as a defendant within 90 days.  The only question on appeal was whether the plaintiff in the case properly added the defendants to the second amended complaint pursuant to that statute, in light of the fact that the defendants were once parties to the original complaint.

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If the death of a family member was caused by the negligence of another person, a personal representative may institute a Tennessee wrongful death action on behalf of the decedent’s beneficiaries.  Generally, the beneficiaries identified by statute receive the compensation obtained in a successful lawsuit.  However, there are some situations in which a statutory beneficiary may not recover.  In a December 27, 2017 opinion, the Supreme Court of Tennessee discussed how two statutes would apply to preclude a parent who owes child support arrearages from recovering proceeds in a wrongful death case.baby

In the case, the plaintiff and decedent were married and had a son in 2009.  The plaintiff left both of them soon after the child was born, but the spouses never divorced.  After the decedent died in 2010, the decedent’s mother was awarded custody of the child, and her brother adopted him in 2012.  The adoption order terminated the plaintiff’s parental rights, based on abandonment for failure to visit or support him.

In 2010, the plaintiff filed a wrongful death action as a surviving spouse.  At the time, however, the plaintiff owed child support for four other children, who were unrelated to the decedent.  The decedent’s mother intervened, arguing that the plaintiff was disqualified from bringing the action and sought to replace him in the lawsuit.  The trial court dismissed the plaintiff from the wrongful death case, based on Tennessee wrongful death and intestate succession statutes, and the subsequent appeals ensued.

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Having your legal claim heard in court is an important part of the civil justice system.  In a December 14, 2017 case before the Tennessee Court of Appeals, the plaintiff appealed a decision from a lower court granting summary judgment on her personal injury claim in favor of the defendant.  The decision would have prevented the plaintiff from recovering compensation from the defendant for the injuries she suffered on its property. Ultimately, however, the appeals court vacated the trial court’s order and allowed the case to proceed.bus stop sign

The plaintiff in the case was employed as a school bus driver by the local metro government (Metro). She parked her bus at the middle school to attend a mandatory training program. As she walked across the asphalt parking lot, she tripped on a buckled and cracked portion of the pavement and fell, sustaining injuries. The plaintiff filed an action alleging that Metro was negligent in maintaining the parking lot. Metro denied negligence and asserted that the action was controlled by the Governmental Tort Liability Act. The plaintiff then sought to amend her complaint to include allegations of negligence per se, asserting that Metro was in violation of several building codes.

Without addressing the plaintiff’s motion to amend, the trial court granted Metro’s motion for summary judgment. Specifically, the trial court found that, although the parking lot at issue was uneven due to buckled pavement and a 54-foot crack, it did not have to be absolutely smooth as long as it was not unreasonably dangerous. The trial court held that it was not and also concluded that the plaintiff should have been aware of the open and obvious condition of the pavement.

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Proving the amount of damages arising out of a car accident, such as medical expenses, can become complicated when insurance coverage is involved.  A personal injury lawyer understands the proof necessary to establish these damages and can present evidence persuasively on your behalf.  Recently, a November 17, 2017 case before the Supreme Court of Tennessee provided further insight regarding the admissibility of evidence of insurance discounts to rebut the plaintiff’s proof of damages in a Tennessee car accident case.computer

The plaintiff in the case was seriously injured in an automobile accident with the defendant and suffered severe and permanent injuries.  She filed a lawsuit against the defendant to recover her past and future medical bills.  Before trial, the defendants filed a motion to prevent the plaintiff from presenting evidence of her full, undiscounted medical bills.  Due to the common practice of hospitals and medical providers billing patients for medical services in full and then accepting a discounted amount from the patient’s private insurance company, the undiscounted bills sent to the patient do not reflect what is actually being paid in the marketplace.  The defendants argued that the plaintiff’s undiscounted medical bills were, therefore, unreasonable by law and that the amount paid by the insurance company should be used instead.  The trial court granted the motion.  After the Court of Appeals reversed, the issue was taken up by the Supreme Court of Tennessee.

In Tennessee, a person who is injured by another person’s negligence may recover damages from the other person for all past, present, and prospective harm.  The burden is on the plaintiff to prove their damages.  At issue on appeal were the plaintiff’s past medical expenses.  For this type of award, the plaintiff must prove that the medical bills incurred because of the defendant’s negligence were both necessary and reasonable.

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Dog bite cases typically involve specific laws that define the owner’s liability for injuries related to a dog bite or attack. The Court of Appeals discussed Tennessee’s dog bite statute in an October 19, 2017 opinion. The plaintiffs in the case filed a personal injury action against the owners of an Australian shepherd, which had bitten their son in the face during a visit to the owners’ home. The case reached the appeals court after the trial court entered summary judgment in favor of the defendants.dog

Under common law, an owner is liable for injuries inflicted by their animal if they know that the animal is accustomed or disposed to injuring people, even if it has never bitten anyone before.  In 2007, the Tennessee General Assembly enacted the dog bite statute, which provides that a dog owner is held strictly liable if the dog injures someone because the owner failed to exercise reasonable control over the dog or the dog is running at large, regardless of viciousness.  There is an exception, however, if the dog injures a person while that person is on the owner’s property.  In such cases, the plaintiff must prove that the owner knew or should have known of the dog’s dangerous propensities to recover damages for the injury.

The plaintiffs brought a claim based on strict liability under Tennessee’s dog bite statute, as well as a claim under common law negligence.  On appeal, the court held that the statute overrides a common law claim arising out of dog bites while on the owner’s property.  Accordingly, the plaintiffs could only pursue the statutory claim, which required proof that the defendants knew of the dog’s dangerous propensities.

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To win a Tennessee premises liability lawsuit, the plaintiff has the burden to provide sufficient evidence in support of the claim.  In some cases, the defendant will ask the court to decide the matter before trial in a motion for summary judgment.  In an August 29, 2017 case, the Court of Appeals of Tennessee decided whether a lower court properly granted a summary judgment motion in favor of the defendant, which was appealed by the plaintiff.concert

The plaintiff in the case was at the Bridgestone Arena attending a concert when she slipped in a pool of liquid near the concession area and fell.  As a result of the fall, she sustained injuries to her left knee, which required two surgeries.  The plaintiff filed a premises liability action against the owner and manager of the arena, alleging that they were negligent in failing to maintain the arena in a reasonably safe condition.  The defendants argued that they had no actual or constructive knowledge of the spill.

In order to prevail on a negligence claim, the plaintiff must prove the elements of duty, breach, injury, and causation.  In premises liability cases, the premises owner has a duty of reasonable care to prevent injuries to people lawfully on the property and to remove or warn against hidden, dangerous conditions of which the owner is aware or should be aware through due diligence.  Owners have no duty to remove or warn of dangerous conditions that were unknown or could not have been discovered by the owner.  Accordingly, if a third party created the dangerous condition, the plaintiff must also prove that the premises owner had actual knowledge or constructive notice that the dangerous condition existed before the plaintiff was injured.

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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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