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Articles Tagged with Tennessee

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Property owners and business operators owe certain duties to those who come onto their premises for a business or social purpose. A breach of this duty can potentially result in a finding of liability against the landowner and an award of damages in favor of an injured party. This is most commonly referred to as a “slip and fall” case, in which someone is injured because of property that isn’t maintained, such as a cracked sidewalk or other similar issue.

For this reason, it is increasingly common for would-be defendants to ask for a waiver of liability from those with whom they do business. It is up to the courts to determine whether such waivers are valid under the facts of an individual case.

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By Kyle Roby, Attorney and Partner
English, Lucas, Priest and Owsley, LLP

The reported cases decided by the appellate courts sometimes come in batches of cases involving similar issues. Since a criminal case questioning the applicability of the death penalty, for example, involves an entirely different set of issues, research, and analysis than does a tort case arguing about liability in a medical malpractice lawsuit, there is judicial economy when the courts decide similar cases during the same time period.

Lately, it seems the courts have been faced with a number of cases involving whether or not a given situation is covered under a particular insurance policy. In the recent case of Auto-Owners Insurance Company v. Holland, the Court of Appeals of Tennessee at Nashville was called upon to decide whether a commercial general liability insurance policy provided coverage in an accident in which a child was injured by the gate of a trailer that an insured used to transport lawn care equipment.

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By Kurt Maier, Attorney
English, Lucas, Priest and Owsley, LLP

The basic components of a negligence case are duty, breach of duty, causation, and damages. In slip and fall injury cases, called premises liability cases in legal terms, an injured person must also show that the owner or operator of the premises either caused the hazardous condition that led to his or her injuries or had constructive notice of.

The constructive notice element of proof can be shown in several ways, including proof that the dangerous or defective condition had been in place for a length of time sufficient for the defendant to have become aware of the condition in the exercise of reasonable care. Constructive notice can also be shown through the defendant’s recurring conduct or a continuing condition.

Of course, each case is unique, and disagreements can certainly arise as to whether a defendant was constructively notified of a particular situation. In some such cases, video surveillance footage can be an important piece of evidence, even if the slip and fall injury in question was not captured on camera.

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By Kyle Roby, Attorney
English, Lucas, Priest and Owsley, LLP

At one time, a person injured by the negligence of a governmental entity was without a remedy, due to the doctrine of sovereign immunity. Basically a carryover from the English common law under which “the King could do no wrong,” the doctrine precluded a would-be plaintiff from asserting what might otherwise have been a meritorious claim against a state or local government.

Now, however, most governmental entities have consented to be sued through various tort claims acts. Such acts set forth the procedure for filing a claim, the statute of limitations, and the maximum damages that may be sought. It is important to note that, since such actions are purely statutory in nature, an injured person must strictly comply with all procedural requirements, or else his or her suit will likely be dismissed.

Even when all requirements are met, it is ultimately up to the courts to determine whether a particular claim is valid.

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There’s an old riddle that asks, “If a tree falls in the woods and no one is there to hear it, does it still make a sound?” We may never know the answer to that question, but it seems that, if a tree located on state property falls onto a car passing over a bridge, there is a good chance that the state’s high court will eventually hear about it, especially if there is any question as to whether the injured person’s lawsuit was promptly filed.

As we’ve mentioned before, the statute of limitations is important in any lawsuit, but some cases have other time limitations and procedural requirements that must also be complied with. In cases involving governmental entities, the timing can be especially tricky.

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By Jessica Surber
Attorney, English, Lucas, Priest and Owsley, LLP

Product liability lawsuits proceed under the theory that manufacturers and sellers should be held accountable for injuries resulting from defects that make a product unreasonably unsafe. As with other lawsuits, a trial court must have jurisdiction (both personal and subject matter) over a defendant before it can proceed to adjudicate the issues between the parties.

Sometimes, a defendant may argue that, although the court technically has jurisdiction over the case, the court should decline to exercise that jurisdiction because justice would be better served in another forum.

In the recent case of Pantuso v. Wright Medical Technology, Inc., a Utah man filed a lawsuit in the Circuit Court of Shelby County, Tennessee, seeking to recover damages resulting from an allegedly defective hip replacement device. Although the defendant manufacturer admitted that its principal place of business was Tennessee, it filed a motion to dismiss the man’s complaint on the doctrine of forum non conveniens.

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You aren’t just imagining it. There are more commercial trucks on the road than ever before. According to statistics from the trucking industry, around two-thirds of the nation’s freight is moved by semi-truck, and it takes about 3.5 million professional truck drivers to make it happen.

Considering the tens of millions of hours these truckers spend on the road, it isn’t surprising that truck accidents, too, are on the rise. Here in Kentucky and in neighboring Tennessee, news of a fatal truck accident, especially on an interstate highway, is a common occurrence. Yet, each commercial truck wreck is unique, with its own set of facts and likely causes.

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RisperdalThe Huffington Post is in the midst of publishing a 15-part series that details Johnson & Johnson’s push of the anti-psychotic drug Risperdal. The drug was approved for sale in 1994 for patients with psychosis, but was not approved for use in adolescent or elderly patients. Skirting the Food & Drug Administration and the law became the crux of Johnson & Johnson’s aggressive marketing plan, which was designed to make Risperdal the best-selling anti-psychotic drug on the market.

The series is a bombshell. Three chapters of the 15-chapter series have been published by The Huffington Post so far. Every day brings a new chapter – and more tales of how one of the world’s largest pharmaceutical companies pursued sales at all costs. Selling the drug to approved patient groups for FDA-approved uses wasn’t enough for Johnson & Johnson. Drug sales representatives pushed the drug onto doctors who dealt with psychiatric illnesses in children and elderly, and pushed them to prescribed the drug for symptoms such as agitation in the elderly, which is not an approved use.

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Car accidents fall under an area of tort law known as “negligence.” To make out a successful case, a plaintiff must prove four things:  1) the defendant owed him or her a duty of care, 2) the defendant breached that duty, 3) the plaintiff sustained actual damages, and 4) the plaintiff’s damages were caused by the defendant’s breach of duty. It seems simple enough, right?

Unfortunately, many cases are not as simple as they initially seem. Issues such as comparative fault – an allegation by the defendant that the plaintiff is responsible for some part of the accident – can quickly complicate matters. The resolution of such issues often depends upon the law of the state in which the wreck occurred. This Tennessee car crash case is an example.

Kentucky is one of about a dozen states that follow the “pure comparative fault” doctrine, under which a plaintiff’s damages are reduced in proportion to his or her fault, but he or she is still allowed to recover against the defendant for the defendant’s percentage of fault. In Tennessee, however, the rule is one of “modified comparative fault,” with the plaintiff only being allowed to recover if his or her fault is less than 50%. If the plaintiff is found to be 49% at fault, he or she can recover 51% of his or her total damages, but there is no recovery at all if the parties are determined to bear equal fault.

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2014-10-17 09.29.59By Kyle Roby, Attorney

English, Lucas, Priest and Owsley, LLP

The Federal Motor Carrier Safety Regulations apply to all tractor-trailers and truck drivers  in the U.S., including those in Kentucky and Tennessee. These regulations cover every aspect of operating, maintaining, and driving a truck. One of the most important, but also most ignored, part of these regulations concerns how long a driver can be behind the wheel in a given day, called hours of service rule. The hours of service rule provides that a truck driver may work no more than 14 hours in a day, with only 11 of those hours actual driving time. The rule is intended to limit truck driver fatigue. A truck driver can only operate a vehicle for 8 consecutive hours before taking a break, which must be 30 minutes or longer. The truck driver must record his hours of service in a drivers log book that he or she must keep updated at all times while driving.
These rules are hard to enforce. Often, when we handle a truck accident case for a client, this is one of the first things we examine, and we often find that the trucking company and truck driver has violated this rule, falsified their log book, or exceed their hours of service. Having an experienced attorney examine the drivers log books and hours of services is critical when a truck driver has caused a wreck.

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