Articles Posted in Premises Liability

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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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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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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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 court.restaurant 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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In a premises liability lawsuit, individuals who are injured on the property of another person or business may be compensated if they can prove the property owner was negligent.  The Court of Appeals of Tennessee recently reviewed a case involving this issue in Woodgett v. Vaughan (Tenn. Ct. App. Dec. 13, 2016).  In Woodgett, the plaintiff filed suit against the defendant homeowners after she fell and sustained injuries while viewing their home as a prospective buyer.  After a trial, the jury found in favor of the defendants.  The plaintiff appealed, arguing that the trial court erred in allowing the jury to see a surveillance video recorded by the defendants’ private investigator.steps

In Woodgett, the plaintiff viewed the defendants’ house without the listing realtor or the defendants present.  Below the attic doorway was a large landing and a wooden box that was used as a step to access the landing.  The box step was constructed out of wood planks and covered in carpet, and it was not fastened to the landing itself.  The plaintiff alleged that when she attempted to go down on the step, it gave way and caused her to fall.  The plaintiff testified that after the fall, she suffered injuries and a limp that made everyday activities difficult, including walking, standing, bending, using stairs, and otherwise being active.

The defendants retained a private investigator to observe and record the plaintiff during her daily activities outside her home.  At trial, the defendants sought to introduce the surveillance videos into evidence.  The plaintiff objected, arguing that the videos were irrelevant and unduly prejudicial and held her out as a person of means by driving a Cadillac Escalade and several other cars and shopping.  The defendants contended that the videos were probative because they showed the plaintiff walking in heels, standing, and getting in and out of motor vehicles without difficulty.

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Accident victims may face additional challenges when pursuing a personal injury claim against a municipality or government body, due to legal restrictions on liability.  However, there are statutory exceptions that may apply under the Tennessee Governmental Tort Liability Act (GTLA).   In Miller v. Jackson-Madison County General Hospital District, et al. (Tenn. Ct. App. Dec. 8, 2016), the Tennessee Court of Appeals reviewed a negligence claim brought by the plaintiff against a municipal hospital after a lower court ruled in favor of the hospital following a bench trial.hallway

In Miller, the plaintiff was injured when she slipped and fell in water on the floor of a municipal hospital.  The plaintiff filed suit against the hospital, alleging that it negligently caused her injuries by failing to maintain the hallway and protect her from hidden and latent defects of which it had knowledge.  Although generally, a case may not be brought against a governmental entity under the doctrine of sovereign immunity, the GTLA removes immunity in limited and enumerated instances for certain injuries.

Under the GTLA, a governmental entity such as the hospital in Miller is not immune from suit for an injury caused by the dangerous or defective condition of a public building or improvement owned and controlled by the governmental entity.  For latent defective conditions, as in Miller, liability is only removed if the governmental entity had constructive or actual notice of the condition.  Accordingly, the plaintiff must establish that a dangerous condition existed and that the hospital had notice of the condition.  Notice may be shown when the condition was caused or created by the defendant, or when the condition was caused by someone other than the defendant if the defendant nevertheless had actual or constructive notice of the condition prior to the accident.

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Filing a personal injury claim against a municipality or government agency involves additional legal considerations, including its potential immunity from prosecution.  In Fowler v. City of Memphis (Tenn. Ct. App. Aug. 11, 2016), the Court of Appeals of Tennessee discussed these aspects of a premises liability case against a governmental defendant.  The plaintiff was injured when he fell into an uncovered water meter in the sidewalk.  He filed suit against the city and the water company, alleging that the uncovered water meter was a dangerous condition of which the defendants had actual and constructive notice.  After the lower court granted summary judgment in favor of the defendants, the plaintiff appealed.  faucet

Although the city and water company are generally immune from liability pursuant to the Tennessee Governmental Tort Liability Act, immunity does not apply to any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, public building, structure, dam, reservoir, or other public improvement owned and controlled by such a governmental entity.  In such cases, the plaintiff must prove that the governmental entity had constructive or actual notice of the allegedly defective or dangerous condition.  Another part of the Act removes immunity for injuries caused by the negligent acts or omissions of governmental employees within the scope of their employment, unless the accident arises out of their performance of a discretionary function.

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Last week, the Court of Appeals of Tennessee reviewed a jury verdict in a premises liability case, ultimately affirming the award of $250,000 to the injured plaintiff. In Glasgow v. K-VA-T Food Stores, Inc. (Tenn. Ct. App. Aug. 31, 2016), the plaintiff filed a personal injury lawsuit against the operator of a grocery store after he was injured while using the restroom. At trial, the court denied the defendant’s request for a directed verdict and submitted the case to the jury, which awarded $350,000 in compensatory damages. The trial court approved the verdict but reduced the award to the amount of damages actually pled by the plaintiff, i.e., $250,000. The defendant appealed, arguing that the damages awarded by the jury were not supported by material evidence.restroom

In Glasgow, the plaintiff entered the defendant’s grocery store and proceeded to the restroom. After using the facility, the plaintiff attempted to stand but lost his balance, causing him to grab a handrail. The handrail pulled away from the wall, causing the plaintiff to fall and hit his head. The plaintiff immediately sought medical treatment from a hospital. In the days, months, and years following the accident, the plaintiff experienced uncontrollable migraines, accompanied by severe nausea or vomiting.

On appeal, the defendant did not contest the issue of fault but instead the amount of compensatory damages awarded to the plaintiff for his injury. The appeals court therefore reviewed the evidence concerning the extent of the plaintiff’s injuries. At trial, the plaintiff testified that his migraines and light sensitivity caused him to change his 14-year career from television and video production to radio. The plaintiff’s doctors also provided testimony that the post-concussive migraine headaches he experienced for years following the accident may continue through his lifetime, although there was no objective test to determine one’s tendency to have future migraines.

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In a recent Tennessee premises liability case, the Court of Appeals addressed the issue of whether the defendants owed the plaintiff a duty after he was injured while voluntarily performing work on their property. In Reynolds v. Rich (Tenn. Ct. App. July 22, 2016), the plaintiff agreed to assist with the installation of a metal roof on the defendants’ house. During the installation, the plaintiff fell from the roof and suffered serious injuries, including skull fractures, a broken neck, shattered bones, and nerve damage to his face. Although no one knew what caused the plaintiff to fall from the roof, the plaintiff brought suit against the defendants for negligence. The trial court granted summary judgment in favor of the defendants, finding that the plaintiff was a volunteer worker rather than an employee of the defendants, and there was no evidence that the defendants violated a duty to the plaintiff.roofing accident

To establish a claim for negligence in Tennessee, a plaintiff is required to prove the following elements:  (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 property owner has a duty to exercise reasonable care with regard to social guests or business invitees on the premises. The duty includes the responsibility to remove or warn against latent or hidden dangerous conditions on the premises of which the owner was aware, or should have been aware through the exercise of reasonable diligence.

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