Articles Posted in Personal Injury

Motorcycle riders in Nashville and throughout the state of Tennessee have a legitimate cause for concern: the number of traffic fatalities involving motorcyclists spiked 21 percent from 2011 to 2012. While that increase is certainly alarming, Tennessee Governor Bill Haslam’s office reports that over the last 14 years, the number of motorcycle fatalities has more than tripled. Victims of motorcycle accidents can sustain a wide range of injuries, from minor abrasions and broken bones to much more serious life-threatening brain injuries and death. If you or someone you know has been involved in a motorcycle accident, it is important to contact an experienced Nashville attorney to help you understand your potential right to damages.

With such startling statistics at hand, it is no wonder that the Governor’s office announced just last spring that May is “Motorcycle Safety Awareness Month.” As part of this effort, the Tennessee Highway Patrol and the State Department of Safety and Homeland Security are encouraging drivers to be more careful when they are near motorcyclists on the roads. In addition to raising driver awareness, the report also places a great deal of the responsibility of safety on the bikers themselves.

More than 300,000 people in Tennessee ride motorcycles. State law requires bikers and their passengers to wear helmets that are in compliance with standards set forth by the Department of Transportation. Unfortunately, not every rider abides by the law. The data shows that 37 out of every 100 motorcycle rider fatalities where the driver was not wearing a helmet could have been prevented had they worn one.
The Governor’s Highway Safety Office points out that motorcyclists are in a much more vulnerable position than people in passenger vehicles. Because of their exposure and vulnerability, it is suggested that motorcyclists consider making themselves more visible to others on the road by wearing reflective tape and bright colors.
These alarming fatality statistics have struck a nerve across the state of Tennessee. According to an article in The Commercial Appeal, the city of Memphis recently created a motorcycle safety road sign that depicts a motorcycle with the slogan, “Look Twice, Save a Life.” The sign is an attempt to encourage drivers to pay more attention to motorcyclists on the road. The establishment of the sign was the result of a three-year effort waged by a couple of local motorcycle groups.

In addition to fatality rates, there are many serious injuries that people sustain while driving a motorcycle. And only recently have we learned that older riders in the United States suffer greater injuries in crashes. A study was published indicating that as a biker’s age increases, so too does the severity of their injuries in a crash. Bikers age 60 and over were found to be 2 ½ times more likely to end up in an emergency room with severe injuries than motorcyclists in their 20s and 30s. This is significant data considering that a quarter of all motorcyclists in the U.S. are age 50 and older.

With more and more aging bikers on the roads in Tennessee and throughout the country, all drivers need to exercise the most extreme caution. In the event of an accident, it is important to consult with an experienced personal injury attorney who can help guide you through the legal process in an effort to recover damages.

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Adequate and skillful staffing at Nashville assisted living facilities and nursing homes should be one of the main priorities of management. Patients and their concerned families deserve nothing less than quality care. Unfortunately, this does not always happen and without proper care, patients can suffer. Depending on the circumstances surrounding the lack of proper care, the facility may be liable for damages to the patient or their family. If you suspect that a loved one or family member has been the subject of abuse or neglect at a nursing home or similar facility, you are encouraged to contact an experienced Nashville personal injury attorney as soon as possible.

In the recent case of Wilson v. Americare Systems, the resident patient’s doctor prescribed a daily dose of medicine for constipation. The assisted living facility nursing staff failed to give her the recommended dosage according to the doctor’s orders. The patient experienced further constipation and visited with her doctor again, who then prescribed four enemas per day. After the nursing staff failed to comply with those instructions, and gave the patient only two enemas in three days, she died from a perforated colon. The patient’s daughters filed a wrongful death claim against the nurse who gave the patient the enema on the day she died, the director of nursing staff of the assisted living center, the owner of the facility and its management company. The complaint alleged that defendants’ treatment of the patient deviated from the applicable standards of care, causing their mother’s death.

After a trial, the jury rendered a verdict apportioning fault as follows: the nurse: 30%, director of nursing: 20%, and the management company: 50%, due to its failure to provide adequate staffing at the facility. The jury awarded compensatory damages in the amount of $300,000, and $5,000,000 in punitive damages against the management company. The company appealed. The appellate court reversed the verdict, finding that there was insufficient evidence that lack of staffing proximately caused patient’s death.

The Tennessee Supreme Court reinstated the jury’s verdict, finding that there was enough material evidence that deficiencies in staffing was the proximate cause of patient’s death. The court based this decision on several factors: (1) the nurse testified that she communicated to management the under staffing problems on more than one occasion; (2) there was evidence to support the notion that such inadequate staffing led to deviations and lapses from the requisite standard of care; and (3) there was also sufficient evidence that such deviations from the proper standard of care were “substantial factors” in patient’s death. Here, the nurse told management that they didn’t have enough staff to take care of the patients; nursing staff continuously failed to give the patient her prescribed laxative and later, her enemas – which led to her constipated and impacted condition. At least one doctor testified that the likely cause of patient’s death was the colon perforation due to administering the enema in patient’s impacted condition. The court also remanded the issue of punitive damages back to the appellate court.

Wrongful death cases are, by their very nature, difficult for the surviving family members. It is important to have an experienced Nashville attorney to help you understand your rights and to navigate the — sometimes complex — court proceedings.

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Business and property owners in Nashville have a duty to keep their facilities in a reasonably safe condition and to warn visitors of any dangerous hazards. A visitor who suffers an injury on another’s property may be able to bring a premises liability action against the property or business owner. If you or someone you know has experienced a trip and fall or some other incident resulting in injury on the property of another, you are encouraged to contact an experienced, local Nashville attorney to help you understand your rights.

In a recent premises liability case, the plaintiff was injured in a commercial parking lot after tripping over a steel post that was protruding just above the surface. The defendant and owner of the lot had not made any repairs to the property since purchasing it in 2007. Plaintiff, who worked in an office situated on the commercial property, crossed the parking lot to meet her cousin who was parked there. After speaking to one another for a few moments, plaintiff stepped back from the vehicle and tripped over the area where the steel post was protruding from the surface.

Plaintiff alleged that she injured her Achilles tendon after her heel got caught on the metal post. There seems to be no dispute that the steel post protrudes ¾” from the surface of the lot, that they are filled with concrete, and that cars are able to drive over them without harm. Plaintiff sued defendant for negligence for allowing an unsafe and dangerous condition to exist on the property and/or for failure to repair or warn about, the dangerous condition.

In response, defendant denied liability and moved for summary judgment, arguing that the condition of the lot was “open and obvious,” thereby eliminating his duty to warn visitors of the metal post, and that plaintiff was at fault for her own injuries. The trial court granted the motion, finding (1) that the area complained of was a “minor aberration” in the parking lot; (2) plaintiff admits to walking either directly over or just around the area; and (3) that the area was visible from a distance and easy to see. For these reasons, the court concluded that the area where plaintiff fell was open and obvious — so defendant owed her no duty to warn of the defect, and that she was not paying attention to where she was walking. Because of this, the court reasoned, plaintiff cannot be less than 50% at fault.

The court of appeals affirmed, pointing out that traditionally, in Tennessee, liability has not been imposed in premises liability cases for injuries that arise out of dangerous or defective conditions that are open and obvious. The court noted that the area where the steel post was protruding was distinguishable from the rest of the lot by color, it was much lighter than the surrounding asphalt. Further, the court concluded that a plaintiff in a premises liability case has a duty to see what is in plain sight. She was familiar with the parking lot, the area of concern was considered a “minor aberration”, it was easy to see, and she was not looking where she was going while stepping backwards before falling.

Because the defects were minor, the foreseeability and gravity of harm do not support a finding of liability. The court held that plaintiff failed to establish that the parking lot owner owed her a duty.

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Government agencies have been partnering together to make Tennessee roads safer for all motorists — and not a moment too soon. Aside from the mild increase of fatalities on the roads involving large trucks from 2011 to 2012, the numbers more than doubled during the first month and a half of 2013, as compared to this time last year. In January and part of February 2012, large trucks were involved in six traffic fatalities; yet this year during the same time frame, 15 fatalities on the roads involved large trucks.

Partly because of their size, trucking accidents can cause extensive damages and injuries, including fatalities. Injured parties may have claims against the driver of the truck, the owner of the trucking company, and a host of other third parties. If you or someone you know has been involved in a trucking accident, you are encouraged to contact an experienced Nashville personal injury attorney to help protect your rights.

Trucking is a large part of the Tennessee economy. The Tennessee Trucking Association provides statistical information about the industry, as prepared by the American Transportation Research Institute. The report reveals that in 2011, the trucking industry accounted for approximately 183,550 Tennessee jobs or, to put it another way, one out of every 12 jobs in the State. More than $7.5 billion in trucking industry wages was paid in 2011. Furthermore, there were over 8,820 trucking companies in Tennessee in 2012. According to the data, these are small, locally owned businesses. This extensive trucking industry is reported to serve over 91% of Tennessee communities.

With such a high percentage of workers in the trucking industry, it is no surprise that just last year, the Tennessee Department of Safety and Homeland Security teamed up with assorted state and local agencies to institute “Operation Safe Highways,” a statewide safety awareness and enforcement exercise to help make Tennessee safer for all motorists.

As part of this partnered approach, the Tennessee Highway Patrol (THP) and the Office of Homeland Security organized an effort to inspect commercial vehicles travelling to and throughout Tennessee. In addition to the routine inspection of vehicles, the agencies are looking for other safety violations, such as suspected human or drug trafficking and other Illegal conduct, hauling dangerous materials, and seatbelt violations.

According to a report about Operation Safe Highways, it is anticipated that the trucking industry will play a big part in keeping roads safer. This effort was undertaken partly to make trucking professionals aware of the signs of suspicious behavior so that drivers can report any unusual activity. Because of their vantage point of driving on the roads, truck drivers are considered a unique and integral part of the operation to make the roads in Tennessee safer.

The Tennessee Trucking Association also provides information on the importance of driver safety. Their organization seeks methods to improve driver training, invests in advanced safety technologies and engages in industry safety efforts at all levels: local, state and national.

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Drivers on the road in Tennessee, like everywhere else in the country, have many more distractions than ever. There are incoming (and outgoing) cell phone calls, “hands-free” gadgets to connect, email and text messages that need to be sent or read, possibly even hundreds of satellite radio channels to choose from, while GPS devices guide us on unfamiliar roads. All of these distractions can lead to accidents.

According to the Governor’s Highway Safety Office, the number one cause of teen deaths on the roads is distracted driving. In fact, just last year, traffic fatalities involving teens increased 10 percent in Tennessee. If you have been in a car accident, it is important to speak with an experienced Nashville attorney to help you understand your rights.

According to the Tennessee Department of Safety and Homeland Security, the roads have become more dangerous for people of all ages, over the past year. In 2012, the number of fatalities on Tennessee roads has increased from the past year by 7 percent. The numbers jumped from 937 to 1,022 deaths. If you look closer at the breakdown of the statistics, fatalities from motorcycle accidents also increased over the past year from 114 deaths in 2011, to 139 in 2012. While the crash statistics indicate that 2011 saw the lowest number of fatalities on the roads in 48 years, the increase in the past year is concerning. And unfortunately, although it is only February, the 2013 fatality statistics are already up from last year during the same time period: 71 deaths in 2012 compared with 75 in 2013.

While driver distraction plays a role in these jarring statistics, there are certainly other factors to blame. Although information about driver safety is widely publicized, many of these accidents occur as a result of the failure to take safety precautions. Law enforcement personnel frequently issue tickets to drivers and passengers for not wearing seatbelts, even though it is commonly regarded as a proven measure to reduce the number of serious automobile injuries and fatalities. Additionally, drivers continue to drive under the influence of alcohol or drugs, putting others on the road at unnecessary risk.
Keep in mind that these numbers reflect only fatalities, and fail to represent the many serious injuries from which victims suffer as a result of automobile and motorcycle accidents. People suffer from broken bones, brain injuries, burns, and other catastrophic injuries that could permanently alter a person’s life. As a result of these injuries, victims may have claims for medical bills, pain and suffering, lost wages, lost future earning capacity, and permanent injury or disfigurement.

One of the reasons cited for reporting the increasing statistics is to encourage people to think about how their risky driving behaviors could lead to serious injuries and death, to themselves and to innocent people. No matter how much information is available to drivers, be it safety suggestions or shocking fatality statistics, accidents will occur. The best course of action is to consult with an experienced attorney who can help you navigate the legal system to protect your rights to any claims for damages.

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In the recent Cotton States opinion, the Court of Appeals at Nashville was presented with the ordinary legal task of interpreting a clause in an insurance contract. But, the outcome of the decision would determine whether Cotton States Mutual Insurance Company (“Cotton States”) would have to pay damages in the wrongful death and negligent supervision case of a 22 month-old child. A local Nashville attorney can explain your rights If you are unsure about the terms of an insurance policy as it relates to a personal injury or wrongful death claim.

In Cotton States Mut. Ins. Co. v. Tuck, Chad and Jami McNair were married with two young children: DaKota and Ashlynne. In March 2009, the couple separated. Chad went to live with his step-grandparents, Olen and Patsy Gardner, while Jami and the children went to the home of Chad’s father and step-mother, Joe and Candy McNair. Approximately three months later, Jami went to a horse show in Alabama, leaving her children with Candy McNair. Candy took the kids to the home of her parents, Olen and Patsy Gardner, where Ashlynne tragically drowned in the pool.

Jami brought a claim against the Gardners and their insurance company, Cotton States, ultimately settling the matter for $150,000. Later Chad and Jami sued Candy McNair asserting claims of negligent supervision and wrongful death, asking for $1,000,000 in damages.

The Cotton States insurance policy at issue excludes liability for “bodily injury” to any insured. The policy defines “insured” in the following manner: “you” and residents of “your” household who are either relatives, or under 21 years of age in the care of a person identified above. Cotton States argued that Jami and Ashlynne were in fact residents of the McNair household on the date when the drowning took place, therefore denying coverage under the policy for the child’s death.

The trial court denied the argument and found that mother and child were not residents of the McNair household on the date of Ashlynne’s death. Cotton States appealed, claiming that the trial court erred in requiring permanency in order to establish residency.

An earlier court decision in Nat’l Ins. Ass’n v. Simpson, indicates that whether someone is a “resident of your household” under such a policy is “necessarily elastic.” According to the court, such a determination can be made by reviewing a list of factors, including (but certainly not limited to) the person’s declared intent to live in the household temporarily or permanently and the nature of the relationship between the person and the household members, as well as other items.
On appeal, the court looked at one issue: whether Cotton Mutual is required under Candy’s homeowner policy to provide coverage for the death of Ashlynne. The Tennessee Court of appeals reviewed a great deal of testimony that focused on whether Jami and her children were residents of Candy McNair’s home during the three month time period between March 2009 through June 20, the day of the drowning.

Jami testified to spending time at various homes of friends and relatives during the time period in question. When asked to state her “declared intent” she indicated that her stay at Candy McNair’s was temporary. The Court of Appeals pointed out a distinction between having a home to go back to versus having a residence. The court found that she was staying at the Candy’s until she could “get her feet on the ground.” As soon as she could, Jami moved to her own residence.

The Court of Appeals affirmed the trial court’s decision, finding that overall, the facts in this case present a temporary living arrangement that would end as soon as Jami could afford to live on her own. The court specifically noted that the situation could be likened to a “temporary visit by a relative.”

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Tennessee’s Workers’ Compensation statutes severely limit the recovery of permanent partial disability benefits for unauthorized immigrant workers. In particular, T.C.A. §§ 50-6-241(e) and 50-6-242(c) limit the benefits an injured worker can recover to 1.5 times the medical impairment rating benefits. For citizens and resident aliens, recovery can be as much as 6 times the medical impairment rating or, in some cases, even higher. In practice, an unauthorized immigrant worker may be offered 20% or even as little as 8% of the benefits another worker would be offered.

An experienced Tennessee attorney may able to help workers affected by these unconscionable provisions recover greater benefits.

In June 2011, the U.S. Supreme Court issued its opinion in Arizona v. United States, a landmark ruling on federal immigration law. While much of the opinion, which received widespread media attention, focused on the ability of states to arrest immigrants suspected of being here illegally, the Court also held that a state could not impose sanctions on unauthorized immigrants simply for seeking work or working. The principals of preemption announced by the Supreme Court in the Arizona opinion relate directly to Tennessee’s Workers Compensation laws. It seems clear that Tennessee’s provisions discussed above — which were specifically adopted to punish and deter “illegal” workers — would also be preempted under the same analysis.

Shortly after the Arizona decision was announced, the Law Office of David S. Hagy, PLC, filed suit in federal court on behalf of an unauthorized immigrant worker who was severely injured in a workplace accident. On behalf the employee, we argued that Tennessee’s law was preempted by federal law in accordance with the Supreme Court’s Arizona opinion. The case was recently settled confidentially.

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Tennessee residents who have been injured by the actions of another person or business may be affected by new legal provisions that limit recovery of damages for personal injury claims.

In June of last year, Tennessee Governor Bill Haslam signed into law the Tennessee Civil Justice Act , also known as the “tort reform law.” The law went into effect in October of 2011 and applies to all civil liability actions that occur on or after October 1 of that year.

The Tennessee Civil Justice Act:

The new law essentially places limits on the amount of non-economic damages a person may recover for injuries in a law suit stemming from the actions of another person or business. There are several key components that could have the effect of limiting a damages award when bringing certain personal injury claims within the state of Tennessee. Among other things, the new law:

• Identifies the venue where a lawsuit may be brought against a business;
• Sets forth a $750,000 cap on most non-economic damages, with the exception of intentional misconduct, the destruction of records, or behavior that is determined to be under the influence of drugs or alcohol;
• Increases the cap to $1 million on non-economic damages for catastrophic losses that result in paraplegia, quadriplegia, amputation, substantial burns or the wrongful death of a parent who has minor children;
• Inserts a cap on punitive damages of twice the compensatory damages or $500,000, whichever is greater, with the exception of intentional misconduct, the destruction of records, or behavior that is determined to be under the influence of drugs or alcohol. Tenn. Code Ann. §§ 29-39-101 to 104.

In most instances, the law limits compensation for non-economic damages to $750,000 for each injured plaintiff unless the injury is “catastrophic”, in which case non-economic damages are limited to $1,000,000. Although the new law places caps on non-economic injuries, claimants may still bring a personal injury action seeking unlimited damages for any quantifiable or measurable injury. For example, despite the new law, injured claimants will still be eligible to recover costs for economic damages such as related medical bills, lost wages, job loss, property damage, and rehabilitation expenses.

In May of this year, the Attorney General, Robert E. Cooper, Jr., issued an opinion addressing questions about the applicability of the law to claims for health care liability, including medical malpractice cases. Essentially, the Attorney General’s office explained that the new law applies to all civil actions with the exception of those claims brought against the State of Tennessee, local government entities and their employees.

This law is expected to have a significant impact on serious personal injury matters within the State of Tennessee. This is particularly true for those injured persons who do not have substantial economic damages such as lost wages or medical bills, but who have otherwise been seriously injured. In many cases, the law will fall most harshly on women, children, and the elderly.

If you have been involved in some kind of accident and suffered injuries, the amount of damages you may be entitled to recover may be affected by this new law. And, though proponents of the law and “tort reform” in general claim that it will help encourage business in Tennessee, there is no evidence that has occurred in other states where similar laws have been passed.

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