Articles Posted in Wrongful Death

shooters-1.jpgA Tennessee trial court and appellate court each concluded that the family of man killed when a drunk driver plowed into his apartment with her vehicle could not pursue a liability claim against the bar where the woman drank on the night of the accident. Tennessee law imposes clear restrictions on the potential liability of sellers of alcohol. Because the woman who caused the accident received her alcohol as a result of drinks ordered by, and served to, other bar patrons, and did not order, purchase or receive any drinks directly from bar staff, the establishment could not be held liable.

In March 2011, Ms. Langworthy crashed her vehicle into the apartment of Mr. Smith, killing him. Langworthy had a blood alcohol level of more than twice the legal limit at the time of the accident. Smith’s family sued the driver and the bar at which she was drinking that night. After the accumulation of several affidavits, the bar moved for summary judgment. The bar claimed that the drinks the woman consumed inside the bar were all requested, purchased and received by male companions or acquaintances and that the bar’s employees never served Langworthy.

The trial court sided with the bar, granting summary judgment. The court determined that the uncontested evidence showed that Langworthy did not order or pay for alcohol at the bar and the bar’s staff did not directly provide drinks to her.

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1219484_caduceus.jpg 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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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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In a case of first impression, the Tennessee Supreme Court ruled that the term “bodily injury”, within the context of uninsured motorist coverage, does not cover claims for mental or emotional harm without an accompanying physical injury to the insured.

An experienced Nashville car accident attorney can advise you of the current state of the law and help determine how much compensation you may be entitled to as a result of your injuries.

In the case before the state supreme court, Andy Bickford was the driver of a car that struck and killed Michael Garrison, an 18 year-old, who was riding a minibike near his family’s home. Although Michael’s parents and younger brother did not see the accident, they heard the collision and were the first to arrive on the scene. According to the complaint, Jerry and Martha Garrison witnessed their son’s “mangled body” bleeding on the side of the road. They waited for over an hour with Michael for an ambulance to arrive. He was airlifted to a hospital in Chattanooga where he died from his injuries sustained from the accident.

Based on these events, the Garrisons brought claims for wrongful death and negligent infliction of emotional distress against the driver of the car, Andy Bickford, and its owner, Rita Bickford. The Garrisons further sought relief from their own insurance company, State Farm, under their policy’s Uninsured Motorist (UM) provisions. Under that section of the policy, the insured is entitled to collect damages for “bodily injury” from their own policy with State Farm when the responsible owner or driver of another car is uninsured or underinsured. Important to this decision is the policy’s definition of “bodily injury,” i.e., “bodily injury to a person and sickness, disease, or death that results from it.”

From the driver of the car, the Garrisons received $25,000 for their wrongful death claim and $25,000 for their emotional distress claim. State Farm paid the Garrisons $75,000 for the wrongful death claim under the UM coverage but denied payment for their emotional distress claim.

The trial court found that the insurance policy provided coverage for the emotional distress claims, and the court of appeals upheld that conclusion, though it then held that the claims fell within the already exhausted coverage limits for damages to “Each Person” and that, as a result, there was no additional coverage available.

The Tennessee Supreme Court affirmed the Court of Appeals’ conclusion, though for a different reason — the court found that there was no coverage for the parents’ emotional distress claims regardless of the coverage limits. The highest court in the state set out to determine whether the Garrisons’ emotional distress, characterized as “mental injuries”, constituted “bodily harm” under the insurance policy. The court noted that uninsured motorist provisions are intended to provide protection to insured persons in the event of an accident with an uninsured motorist.

After a review of relevant case law, the court pointed out that, although this is an issue of first impression in Tennessee, many other jurisdictions have already concluded that bodily injury does not include mental or emotional harm without a physical injury to the insured.

The court found that the term “bodily injury” is unambiguous, clearly referring to a physical injury, not an emotional one. In this case, under the insurance policy at issue, a bystander witnessing a bodily injury to another was not permitted to recover damages for negligent infliction of emotional distress. The court emphasized that its decision is “in accord with the majority of other jurisdictions that have addressed the question.”

The court also denied the Garrisons’ claim that the uninsured motorist provisions conflicted with the governing state statute, and therefore, refused to allow the statute to supersede the policy language.

The holding in this case is limited to the specific facts at issue, including the insurance policy provisions as well as the circumstances surrounding the car accident. If you have been involved in a car accident, motorcycle accident, or other motor vehicle accident, there are many considerations when determining how much you may recover (and from whom), including Tennessee state law, insurance policy language, and so on. A skilled car accident attorney can help you develop a litigation strategy to maximize your recovery from all responsible parties.

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