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lamps.jpgA recent Tennessee Court of Appeals case dispenses some important insight regarding premises liability cases. In Christian v. Ayers L.P., the court determined that a woman injured when she fell walking along an unlit walkway adjoining a lodge should be allowed to pursue her case against the lodge’s owner. The court observed that property owners have (or should have) better knowledge of their properties than anyone else and the woman should be allowed to put her case, which centered around the lodge’s having numerous burned-out bulbs in its exterior lights, before a jury.

On a rainy night in November 2010, Cynthia Christian went to Ms. Lassie’s Lodge in Caryville to attend an American Cancer Society “Relay For Life” meeting. Traci Dower, a representative of the lodge’s owner who was in charge of the Relay for Life meeting, noticed at some point that the walkway between the lodge and the parking lot was dark and attempted to locate a light switch. In reality, no switch existed because the light fixtures were triggered by a light-sensing timer. The light fixtures worked, but many of the bulbs in them were burned out. After failing to find a light switch, Dower abandoned her attempt to light the walkway. While returning to her car after the meeting’s conclusion, Christian fell while walking along the walkway and suffered a broken arm as a result.

Christian filed a premises liability lawsuit against the lodge’s owner, accusing the owner of inadequately lighting the walkway. Before trial, the woman secured proof that Dower knew about the lighting issue before Christian took her fateful trip across the walkway. Nevertheless, the trial court granted summary judgment to the owner, concluding that the woman’s evidence did not sufficiently show that the owner had the necessary degree of awareness regarding the lighting situation to make it liable under premises liability law.

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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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crashed-car.jpgA recent ruling by the Tennessee Supreme Court has yielded an important victory for persons injured in accidents as they prepare for trial. The ruling in Becker v. Ford Motor Company allowed an auto accident victim to alter his civil lawsuit to pursue not only the manufacturer of the vehicle in which he was riding, but also the driver of his vehicle. The ruling clarifies that injured persons may seek to add any third party mentioned in the defense’s response filing, even if the statute of limitations has already run.

On July 28, 2012, Michael Becker was riding with his son, Phillip Becker, in Chattanooga, when their Ford F-150 pickup truck left the roadway and struck a light pole, significantly injuring the father. The father sued Ford Motor Company, claiming that the truck was defective and that the manufacturer breached a warranty to the man. Ford successfully transferred the case from state to federal court, and claimed, as part of its response, that the Beckers, including the son, caused the accident.

The father sought to amend his complaint to add the son to the case as a potentially liable party. The automaker fought the requested change, arguing that, because the statute of limitations had expired and the father knew the son’s identity and role in the accident prior to the statute’s expiration, the law barred him from adding the son. The U.S. District Court asked the Tennessee Supreme Court to resolve the dispute.

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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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dirt-bike-2.jpgWhile visitors who suffer injury while present on the property of another person often have a reasonable chance of success in a legal action against the landowner for negligence or other misconduct, Tennessee law does construct some hard-and-fast protections for landlowners. One of those shields exists when the visitor becomes injured engaging in recreational activities on the landowner’s property. This aspect of the law ultimately undercut the personal injury case of a motorcyclist paralyzed while riding on another man’s farm.

The case centered around an incident occurring on David Dossett’s farm in LaFollette, where he maintained trails for guests to drive off-road vehicles. Dossett had erected some “jumps” on the trails to allow riders to attempt leaps or other manuevers. Dossett neither trained nor supervised the riders that used his farm. In March 2008, Jordan Wilson visited the farm to ride motorcycles. While attempting a leap, Wilson crashed, with the resulting injuries leaving him paralyzed.

Wilson sued Dossett. The trial court threw the case out, though, determining that the Tennesses Code, specifically Section 70-7-102, shielded the landowner from any liability for the motorcyclist’s injuries. That statute pertains to visitors on the property who partake in recreational activities. The trial court decided that, because the motorcyclist engaged in a recreational activity, and that none of the statute’s exceptions (which are codified in Section 70-7-104) salvaged the injured man’s case.

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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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motorcycle-rider.jpgA motorcycle driver injured in Tennessee seemed to face a lose-lose choice: either accept a damages award radically slashed from the original amount a jury awarded him, or endure the agony of starting over and undergoing a new trial. The motorcycle driver received a reprieve, though, when the Tennessee Court of Appeals nixed the trial judge’s dramatic reduction of the driver’s jury award, instead ordering the trial court to hold a new hearing solely on the issue of damages. The ruling offers some very helpful insight into subjective damages awards, and the boundary between excessive and non-excessive awards.

Louis Adams was traveling along Highway 27 when Megan Leamon struck his motorcycle. Adams suffered injuries including broken ribs and apparently soft tissue injuries to his neck, shoulder, and hand. However, the injuries were not so severe to cause him to miss any work. There was evidence that his injuries were permanent, however, and caused him some ongoing pain, disruption in sleep, and impaired his ability to enjoy his lifelong hobby of motorcycle riding. After a two-day trial, a jury assessed ruled in favor of Adams and assessed his damages at $317,000. The jury awarded Adams only $190,000 because he was 40% at fault for the accident. Of Adams’s $317,000 total, nearly $277,000 was for future pain and suffering and future loss of enjoyment of life.

Leamon asked the trial judge for a remittitur, which is a request to reduce the award as excessive, or else grant a new trial. The trial judge agreed and gave Adams 30 days either to accept an award of only $54,000 or else undergo a new trial. Adams accepted the $54,000 sum under protest, and promptly appealed.

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In the recent opinion in Adams v. Leamon, the Court of Appeals discussed whether an award of damages for pain and suffering arising from injuries sustained in an auto accident was excessive. This opinion provides insight into how the Tennessee courts should address the “non-economic” components of an award for car accident victims.

In Adams, the plaintiff was injured when his motorcycle collided with a vehicle being driven by the defendant and he filed suit claiming that the defendant driver’s negligence caused the accident. After a trial, the jury found that both parties were somewhat at fault, but held the defendant more at fault and awarded damages of $317,000. The damages award raised some eyebrows, apparently, because the plaintiff’s medical expenses were only $14,731. The primary driver of the verdict was an award of future pain and suffering in excess of $120,000 and future loss of enjoyment of life of approximately $156,000. The trial court believed that award was excessive, and therefore ordered a remittitur to $90,320. The evidence had shown that although plaintiff had broken ribs and minor injuries to his neck, shoulder, and hand, he did not miss any work. His main complaints were some ongoing pain, restricted movement, and a reduced ability to ride his motorcycle.

On appeal, the Court of Appeals reversed and ordered a new trial on damages only. The Court found that the trial court’s ordered reduction of the jury’s verdict from $317,000 to $90,320 essentially “destroyed” the verdict and could not be sustained. The Court of Appeals also agreed, though, that the award of $317,000 was excessive. In its opinion, the Court of Appeals quoted the Tennessee Supreme Court in discussing non-economic damages:

Damages for pain and suffering are awarded for the physical and mental suffering that accompany an injury. Damages awarded for loss of enjoyment of life are intended to compensate a plaintiff for the impairment of the ability to enjoy the normal pleasures of living. Assigning a compensable, monetary value to non-economic damages can be difficult. The assessment of non-economic damages is not an exact science, nor is there a precise mathematical formal to apply in determining the amount of damages an injured party has incurred. Thus, a plaintiff is generally not required to prove the monetary value of non-economic damages.

In pursuing injury claims in Tennessee, an injured victim and his or her attorney must at some point confront the difficult decision of how to value a claim for either settlement purposes or presentation to the jury. As the opinion above reveals, jury awards for non-economic damages are difficult to predict. A jury can award damages far in excess of the incurred medical expenses if the proof shows that the plaintiff’s life has been substantially affected. In our experience, one of the most important factors driving a jury’s determination will be the plaintiff — does the jury like the plaintiff? Is the plaintiff a deserving victim?

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Many consumer contracts — checking account contracts, cellphone contracts, even nursing home or hospital contracts — now contain arbitration clauses. Despite being buried in the fine print, these contracts often require consumers to give up their right to a jury trial in favor or arbitration. Many also expressly forbid “class actions” within the arbitration context. When consumers have disputes with one of these business, they are prevented from filing a claim in court and must, instead, submit to arbitration, often in a far-away forum and usually at a cost of several thousand dollars. What happens when a consumer is cheated by a corporation for $100? Arbitration clauses effectively foreclose any legal right of action. Unfortunately, these arbitration clauses have been upheld by the United States Supreme Court and, unless Congress takes some action (unlikely) to fix the problem, consumers will remain at the mercy of large companies.

The Wall Street Journal, not surprisingly, has been a long-time champion of arbitration clauses, claiming that arbitration is cheaper, faster, and more informal than court proceedings. While that may be the case when two large companies are fighting over a large contract dispute, it is certainly not the case when a lone consumer is pitted against a large company. Without the ability to consolidate claims in a “class action”, the consumer is prevented from bringing any case. Recently, the Wall Street Journal published an article decrying the unfair treatment that many soldiers and other service members were receiving from banks. Despite its coverage of the situation, the paper noted in its article that soldiers had been prevented from bringing legal action because they were barred by arbitration clauses. The irony was apparently lost on the Wall Street Journal, who failed to recognize that the outcome they were bemoaning was exactly what they had championed for years.

Public Justice has a good, concise piece up about the issue here.

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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.

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