Articles Posted in Personal Injury

car_accident.jpgA driver who was displeased with a jury verdict finding her 50% at fault for an auto accident where she was injured failed to achieve a better result on appeal. The Tennessee Court of Appeal stated that it can throw out jury verdicts only if they run contrary to all of the evidence at trial and that, in this driver’s case, both she and the other driver offered valid evidence of the opposing driver’s fault, which gave the jury ample grounds for finding the two drivers equally to blame for the accident.

Leona Salyer and Courtney Linnen were involved in an auto accident in Sullivan County when each driver attempted to turn onto a westbound road from opposite directions of Highway 11-E. Salyer was executing a right turn from the southbound direction, while Linnen was turning left from the northbound direction.

Salyer sued Linnen for her injuries. At trial, the Bluff City police chief testified that Linnen told him that she hit Salyer. Each driver testified that she never saw the other until the collision. Linnen denied telling the police chief that the accident was her fault. Salyer claimed she was in front of Linnen but could not explain how her car’s damage was in front while Linnen’s was in the back. The police chief’s report was excluded from evidence at trial.

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Tennessee_state_capitol_.jpgOne industry which has enjoyed an uptick in recent years is that of lenders who finance injury lawsuits. These lenders provide the up-front cash some injury victims need to pursue their case in court. In exchange, they receive a sizable payback later. Some see these lenders as necessary helpers of everyday people as they take on well-funded opponents. Others view them as predators preying upon desperate victims. The Tennessee Legislature in now joining the debate, considering a bill that would regulate the industry and restrict the amount of interest these companies can charge.

We do not advise or encourage clients to use lawsuit financing, as the interest rates are almost always excessive. In almost every case, a client can find another source of funds — family, friends, etc. to help them get through while awaiting a recovery. And debt collectors who are seeking collection of unpaid medical bills will usually suspend their activities if they learn there is a lawsuit from which they might eventually get paid. However, there are some cases in which it might be unavoidable as there is simply no other source of funds to provide for the costs of daily living. In such a case, a lawsuit loan might provide a temporary short term solution.

Lawsuit financing typically operates in the following manner: a lawsuit lender provides an agreed-upon sum of money to an accident victim who is suing those responsible. If the victim succeeds in court, then the lender gets a set percentage of the victim’s settlement or judgment award. The victims usually incurred their injuries in auto accident, workplace accident, slip-and-fall or product liability cases. In successful cases, the total recovery for the lenders often translates to an extremely high rate of interest. Some lenders also charge substantial fees for their services.

Jack Johnson, a state Senator from Franklin, proposed SB 1360, which would install several new protective restrictions on these lenders, including a mandatory five-day period in which a borrower could cancel his/her contract at no cost. The law, if enacted, would also limit lawsuit loans to a maximum three-year period and 25 percent annual interest. “It is absolutely the wild, wild west in the state of Tennessee. There is no oversight, there is no regulation, there is no cap and there is no absolutely no limit on what a lawsuit lender or lawsuit funder can charge,” Johnson told tnreport.com.

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railroad-2.jpgThe estate of a lifelong railroad worker received some good news when the Tennessee Court of Appeals revived a multi-million dollar judgment against the employer. The original jury concluded that the railroad negligently exposed its worker to asbestos and other dangerous materials, contributing to the man’s development of lung cancer. Although the railroad convinced the trial judge to award it a new trial, the court of appeals concluded that the jury received adequate instruction and delivered a consistent, non-contradictory decision, so a new trial was not warranted. The ruling is a useful one in the areas of personal injury and employment law, particularly cases arising under the Federal Employers’ Liability Act (“FELA”) demonstrating how narrow the proper grounds are for disturbing a jury verdict.

From 1962 to 2002, Winston Payne worked for CSX railroad. Three years after Payne’s 2002 retirement, doctors diagnosed him with lung cancer. In 2007, Payne sued CSX, contending that it was negligent by exposing him to asbestos, diesel fumes and radioactive materials. Payne died in early 2010, with his case still pending. After a November 2010 trial, a jury ruled in favor his estate and assessed damages at $8.6 million. The jury awarded the employee only $3.2 million, however, as a result of Payne’s own negligence. (He had smoked for 26 years.) At the trial’s conclusion, though, the trial judge granted CSX’s motion for a new trial. The judge in the new trial dismissed the case entirely against the railroad.

The court of appeals reversed the decisions and reinstated the judgment against the railroad. Despite some additional aspects of law about which the first judge could have instructed the jury, the instructions that the jury received were adequate. The jury received enough instruction to decide each issue it was required to address: namely, whether CSX was negligent, whether CSX’s negligence caused Payne’s injury, whether Payne partially caused his own injuries through his own negligence and what percentage of the Payne’s injuries were his own fault. The jury answered each of these questions in a consistent and non-contradictory manner, according to the appeals court. Most importantly, the court upheld the principal under FELA that a damages award to an injured worker is not diminished by the worker’s own contributory negligence if the railroad had violated a specific law or regulation, i.e. negligence per se.

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Most people have by now heard of the travails of celebrity chef Paula Deen, whose business empire and sponsorships crumbled this Summer following revelations from a civil lawsuit that she had used the N-word in the past and was part of other potentially offensive racially charged activities. This post is not to defend Ms. Deen nor, frankly, to argue that she deserved the enormous backlash and financial consequences that came from the revelations of apparently long ago conduct. Rather, the question is “Why?”

The lawsuit in question arose when a white employee of one of Ms. Deen’s restaurants sued her for discrimination, alleging sexual discrimination and a racially inhospitable work environment. At some point during the litigation, the attorneys for the plaintiff scheduled and took the deposition of Ms. Deen, during which numerous questions were asked about the racial allegations, Ms. Deen’s use of the N-word, etc. It was that deposition, and specifically the public release of the deposition testimony (by the attorneys for the plaintiff?), that led to the media firestorm and the destruction of Ms. Deen’s empire and career. But, again, “Why?”

This week, the Court overseeing the lawsuit against Ms. Deen, not surprisingly, dismissed the claims arising from racial discrimination. According to media reports, the plaintiff’s claims were dismissed because as a white woman she didn’t have standing to seek damages for discrimination against non-whites. That comes as no surprise to me and I doubt it does to any lawyer practicing in employment discrimination. If these claims had been eliminated earlier in the lawsuit, the deposition questions relating to race would have been objectionable and likely the attorneys could have prevented Ms. Deen from having to answer such questions. The whole firestorm could have been avoided, perhaps. But it didn’t need to come to that.

1102883_traffic_warning_sign_5.jpgThe Nashville-based Tennessee Supreme Court recently reversed an appeals’ court decision, which had ruled that federal law prevented a plaintiff-passenger from bringing a claim for disabling injuries sustained when thrown from a shuttle bus in Memphis. Bus accidents and any resulting injuries to passengers, other motorists or bystanders on the road can be particularly devastating, due to the size and weight of a bus. Injuries can range from minor scrapes and broken bones, to more serious matters such as brain trauma and even death.

In the above-mentioned court decision, a concrete truck collided with a shuttle bus transporting passengers between a rental car company and an airport. An injured passenger and his spouse filed a court action against a variety of defendants, including the bus owner, the bus manufacturer, the company that manufactured the windows, as well as the franchisor of the rental car company. Plaintiffs argued that the bus was unsafe because it did not have seatbelts for passengers, had windows made of tempered glass, and instead of forward-facing rows of seats, the bus provided perimeter seating. All of the allegations were based in negligence and product liability.

While a jury ruled in favor of plaintiffs in the amount of $8,543,630, it allocated 100 percent of the fault to the concrete truck owner, who had already settled claims with plaintiffs prior to trial. Plaintiffs appealed, arguing that they were entitled to a new trial. Defendants maintained their argument that federal law preempted plaintiffs’ claims. The appellate court agreed and held that the Federal Motor Vehicle Safety Standards 205 and 208 did preempt the window-glass and seatbelt claims. The court further held that the trial court should have granted a directed verdict on the perimeter-seating claim because plaintiffs failed to provide sufficient evidence to prove causation. The Supreme Court found that 1) both the window-glass and seatbelt claims are not subject to preemption by federal law, and 2) the evidence sufficiently supported causation as to the perimeter-seating claim.

The Supreme Court’s decision is absolutely correct and reflects the proper interpretation of the U.S. Supreme Court’s preemption analysis in Geier v. American Honda Motor Co. That Supreme Court decision was carefully tailored to address the adoption of airbags by Congress and NHTSA, in which specific decisions had been made to promote a variety of restraint devices. In other words, because Congress and NHTSA wanted auto manufacturers to experiment with different passive restraint devices, including airbags, a tort claim that alleged a vehicle should have had airbags when it did not would interfere with Congressional purpose and was therefore preempted. But Geier is the exception to the rule, not the other way around. Design defect claims are generally not preempted by the FMVSS, even if they impose requirements beyond federal law. The Tennessee Supreme Court’s decision in Lake gets that right.

According to the most recently maintained national statistics on bus accidents, the Federal Motor Carrier Safety Administration reported that in 2009, there was a total of 56,000 motor vehicle crashes involving buses. Of those accidents, 221 involved fatalities, 9,000 involved other injuries, and the remaining 47,000 caused damage to property.

Under the Lake decision, injured parties would not be preempted from bringing certain claims arising out of injuries sustained in bus accidents. It is important to sort through complicated state and federal laws to properly ascertain the extent of a victim’s right to recovery.

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1334532_ambulance.jpgThe decision in Cunningham v. Williamson County Hospital District exemplifies why people who have suffered a loss or injury due to the negligence of another must consult with a local Nashville attorney as soon as possible after the injury occurs. Here, because the plaintiffs filed a lawsuit 15 months after the statute of limitations began to run, rather than within the one-year time period, they were precluded from any recovery. If you or someone you know has been injured due to the negligence of another person or business, it is essential that you contact a local injury attorney as quickly as possible after the incident occurs.

In this case, plaintiffs’ son was admitted to Williamson Medical Center for treatment of abdominal discomfort. He died 11 days later after experiencing respiratory complications. That was on November 25, 2008. On November 14 and 16, 2009, plaintiffs provided the potential defendants — the Williamson Medical Center, three nurses, a licensed practice nurse and two certified nurses — with pre-suit notice of the medical malpractice lawsuit as required by the Tennessee Code Annotated section 29-26-121. Later, on March 12, 2010, the plaintiffs filed a complaint in the circuit court alleging that defendants had been negligent in treating their son, which ultimately caused his death.

The Williamson Medical Center is a governmental entity and subject to the Governmental Tort Liability Act (the “GTLA”), therefore, the case is governed by the GTLA. Defendants moved to dismiss the complaint arguing that it was filed beyond the one-year statute of limitations date. In response, plaintiffs contended that by filing the pre-suit notice, the Tennessee statute extended the GTLA one-year time period by 120 days. The trial court ruled in favor of plaintiffs and denied defendants’ motion to dismiss, but granted an interlocutory appeal. The appellate court affirmed the trial court’s denial of the motion. The Supreme Court of Tennessee agreed to hear the case.

In reviewing the “interplay” between the GTLA and the Tennessee Code, the Court looked at whether the Tennessee statute operates to extend the statute of limitations by an additional 120 days. In relying on the decision in Lynn v. City of Jackson, the Court found that statutory provisions inconsistent with the GTLA may not extend the applicable statute of limitations period. Plaintiffs filed their claim outside the 12-month time period required by the GTLA. The Court reversed the lower court’s decision and held that plaintiffs’ claim was untimely and must be dismissed.

People seeking compensation for personal injury cases may recover for physical injuries, but also for pain and suffering, financial damages including lost earnings, medical expenses, associated property damages, and emotional distress. It is absolutely necessary to file your case within the appropriate time period or else you forfeit the right to bring the suit.

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In a recent opinion, Hardeman County v. McIntyre, the Tennessee Court of Appeals reversed a trial court’s award of damages to a driver injured when an ambulance collided into her while she was attempting to make a turn. At issue in the appellate court was whether the ambulance company had breached the standard of care applicable to emergency vehicles. In particular, Tennessee law, T.C.A. 55-8-108, exempts emergency responders from certain traffic laws when responding to emergency calls. Ambulance drivers may, for instance, proceed past a stop sign or red light, exceed speed limits, and disregard parking regulations, provided they do so with regard to the safety of others. The evidence admitted at trial showed that the ambulance had its sirens on and, at most, was exceeding the speed limit by fifteen miles per hour. In examining prior caselaw from Tennessee as well as other states, the Court of Appeals held that the evidence did not allow a finding of liability on the part of the Ambulance Service. Factors that the Court said would support such a verdict — such as substantially excessive speed, sharp, sudden lane changes, or, particularly, travelling without properly activating the emergency sirens were not present.

This appellate opinion demonstrates fairly clearly the legal and factual hurdles that are present in any action against an emergency responder. While as a society, I think we all want our emergency responders to be able to effectively respond to accidents, crimes, and threats, it is important that they do so in a prudent manner so as not to injure innocent bystanders. Several years ago, I successfully represented a family whose son had been unfortunately killed by a police officer involved in a high-speed chase. The young man who was killed was an innocent bystander, out running errands at the shopping mall, when the police officer drove his car at approximately 100 mph through the mall parking lot. It turned out that the reason for the high speed police chase was simply that the fleeing suspect had run a stop sign and not stopped for the police car’s sirens. That case was obviously a very different situation from the accident in the Hardeman case discussed by the Tennessee Court of Appeals.

If you or a loved one has been injured in an accident involving emergency vehicles, you should be sure to speak to an attorney knowledgable and experienced in the area. If you have questions about potential claims arising from a an accident, call the Law Office of David S. Hagy, PLC at (615) 515-7774, or use our online form. We serve clients in Nashville and throughout Tennessee.

1131636_no_cells.jpgIn a recent blog post, we reported on the increase of distracted driving accidents in Nashville and throughout the country. Texting and talking on a cell phone while driving are two of the most widespread examples of distracted driving. According to a recent article, data compiled by the National Highway Traffic Safety Administration (“NHTSA”) reveals that in 2011 nearly 400,000 people were injured in accidents involving a distracted driver.

The American Automobile Association (“AAA”) reports that approximately 35 percent of drivers admitted to reading an email or text while driving and 26 percent say they have written a text or email while driving. These numbers are alarming. Driving a motor vehicle requires concentration and awareness, two things that are difficult to attain while texting, or making or receiving phone calls. The AAA is hoping that people observe the month of April as “Distracted Driving Awareness Month.” The alternative seems to be more crashes, injuries and fatalities on the roads.

Companies have developed new technologies aimed at decreasing the level of driver distraction — while still allowing motorists to send text messages. One item enables drivers to read and send text messages on an “in-car” touch screen. According to an article in the Tennessean, United States traffic safety regulators are requesting that automakers install tougher limits on the length of time drivers can use these touch screens. The NHTSA prepared voluntary guidelines that would serve to curb distracted driving. Some of the suggestions include: 1) limiting the amount of time to two seconds to perform one function on the car’s audio/visual system; 2) drivers would be limited to six screen touches in a time period of 12 seconds; 3) banning manual text entry and display of websites, books and social media (while the car is in motion).

Distracted driving is a particular problem in construction zones. An average of two people each day die in construction zone accidents. With the spring season comes an increase in the number of construction projects. Federal safety officials urge people to refrain from texting while driving through a construction zone.

Another item that is expected to reduce driver distraction is the use of a voice-activated text message system. But a new study conducted at the Texas Transportation Institute at Texas A&M University revealed that sending text messages in this manner is just as dangerous as using your fingers. The idea is that texting, either by voice or with fingers, reduces a driver’s eye contact with the road and response times are greatly delayed.

Driver distraction has become an industry unto itself, with gadgets and new technology aimed at making driving while doing other tasks, safer. As we see from the voice-activated texting mechanism, drivers are no less distracted than using their fingers. The tragic part of all of this driver distraction is that innocent people are suffering severe injuries and in some cases dying as a result of driver multitasking.

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172434_accident_1.jpgThe Nashville-based newspaper, “The Tennessean,” recently reported that the state legislature is considering a new bill that would provide financial assistance to families of victims of certain categories of traffic accidents. As it stands now, the “Criminal Injuries Compensation Program” (the “CIC”) provides assistance to victims of crimes or, in the unfortunate circumstance of the victim’s death, to their dependent relatives. When a person is injured or killed as a result of a traffic accident, in addition to the devastation associated with such an event, there are often many unanticipated costs.

Some of the costs that payments under the CIC Program are intended to alleviate include loss of earnings, medical services, burial costs, and other financial losses sustained as a direct result of personal injuries caused by a criminal offense. Under the current statute (TCA Section 29-13-104), the list of eligible crimes includes homicide, robbery by force, sexual assault, aggravated assault, and drunk driving. The Victims’ Rights bill (H.B. 1117), as introduced by co-sponsors and Representatives Joe Pitts and Josh Evans, adds a litany of types of victims who would be entitled to relief under the CIC program. Such categories include victims of vehicular assault, vehicular homicide, criminally negligent homicide, reckless homicide, and aggravated vehicular homicide, where the injury or death was inflicted through the use of a motor vehicle or watercraft.

The new bill has been dubbed “Tyler’s Law” named after Tyler Head, a Springfield college student who was killed while driving to Austin Peay State University in February 2012. The person who was convicted of killing Head was sentenced to four years after pleading guilty to reckless homicide and an amended charge of reckless aggravated assault. Tyler’s mother sought financial help from the victim’s compensation office associated with the CIC Fund. She was denied assistance because the offenses that caused her son to die did not satisfy the criteria for the fund. Not only was Mrs. Head-Hieber facing the untimely, tragic death of her son, but she was also unable to pay for the funeral and burial expenses. Unfortunately, in this case, the man who killed Tyler Head had no insurance, so Mrs. Head-Hieber was left with no financial assistance at all. In circumstances in which the criminally at-fault driver has no insurance, and the injured victim or their family has insufficient uninsured (UM) insurance, the bill might provide some financial compensation
The legislators have indicated that the impetus for the bill was to help families like Tyler’s who have suffered tragic losses to be able to collect from the CIC Fund. Essentially, the new bill would be adding some eligible offenses to the ones that already exist. As of April 10, 2013, the bill has been placed behind the budget.

If the bill is enacted, victims of car accidents similar to Tyler’s will have an opportunity to pursue financial assistance for the various medical and other costs directly incurred. Victims and their family members should contact a Nashville personal injury attorney who is fully familiar with the local courts and current state of the law with respect to compensation alternatives.

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1340911_smartphone_icon.jpgDistracted driving is rampant in Tennessee and in states across the nation. The latest distraction is not simply the cell phone calls that drivers make and receive, but the culprit is now texting while driving. In 2011, the National Highway Traffic Safety Administration (“NHTSA”) reported that distracted driving is the primary killer of American teenagers. Data revealed that 16% of all drivers under the age of 20 involved in fatal crashes were reported to have been distracted while driving. In addition to fatalities, many victims suffer serious injuries from accidents involving drivers who are not paying attention to the road. If you or someone you know has been injured in a car accident as a result of distracted driving, it is important to contact an experienced Nashville personal injury attorney to help you protect your rights.

According to the NHTSA, people are 23 times more likely to crash when texting while driving. In 2010, Tennessee enacted the “Texting While Driving Law” (TCA 55-8-199), making it illegal to text and drive in that state. In 2011, research conducted by the Center for Transportation at the University of Tennessee showed that Tennesseans consider texting while driving to be as threatening as drinking while driving. Despite these concerns, many drivers still do it. The survey revealed that at that time, one out of five drivers engaged in these behaviors in the past 30 days.

Out of concern for the safety of its citizens, just last month, the Tennessee Highway Patrol began using an 18-wheeler to detect drivers who are texting, drinking or not wearing a seatbelt. From their vantage point, drivers high up in the cab of a truck can see a great deal more than the officers in highway patrol cars. The trucking troopers are not the ones who pull over the offending drivers, but rather they will “radio” the violation to headquarters, which will then dispatch a patrol car. Law enforcement officials say that the program has been a “great success” and will continue using the 18-wheelers randomly.

They probably could use a program like this in Alabama where a driver was recently pulled over for “double-texting” in the George Wallace Tunnel in Mobile County. According to reports, the 19 year-old driver told the sheriff’s office that since he was 15, he had been driving with his knees while texting with a phone in each hand. While texting with a phone in each hand sounds crazy to most of us, a great deal of society texts with one phone while driving. The numbers appear to be on the rise. According to a recent study at the Center for Disease Control and Prevention, one in three people admitted that they read or send text or email messages while they are driving, compared with the earlier number of one in five. These are alarming statistics with the potential to cause life-altering — or worse, life-ending — injuries.

Victims who have suffered injuries as a result of a distracted driving accident may be entitled to damages. It is important to consult with an experienced, local attorney to help you determine your rights to a recovery.

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