Articles Posted in Personal Injury

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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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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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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