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.

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.

In a recent opinion, Long v. Greyhound Lines, Inc., 203 Tenn.App. LEXIS 405 (Tenn.Ct.App. 2013), the Tennessee Court of Appeals reversed the trial court’s grant of summary judgment to two of the defendants involved in a multiple vehicle accident involving tractor trailers and a Greyhound bus. The decision is interesting to lawyers practicing in the area of personal injury, because of its strong affirmation of the legal principle that negligence (and causation) are not amenable to summary judgment. The decision should also be of some interest to lay persons, because, in essence, it puts the question to the jury of whether a motorist doing nothing more than “rubber necking” at the scene of a prior accident can or should be held liable for causing a subsequent accident.

In the Long case, the plaintiff (Ms. Long) was involved in a collision with an eighteen-wheeler truck on Interstate 40 in Tennessee. Ms. Long’s car was smashed and rendered inoperable in the left lane of the highway. Following that collision, another large truck stopped on the right shoulder (emergency lane) of the highway to render assistance. Ms. Long, at some point, crossed the road on foot (or was carried across) to wait for help in the emergency lane. Another car, shortly thereafter, came across the scene and — inexplicably — stopped in the right hand lane. Because there were only two lanes, the highway was now completely blocked. A Greyhound bus then came across the scene of the accident and, unable to stop in time, hit the car which had stopped in the right hand lane, pushing it into the truck parked in the emergency lane and pinning the driver and plaintiff (Ms. Long), causing severe spinal fractures.

The trial court had granted summary judgment to the driver of the late arriving car, finding that as a matter of law her actions in stopping her car were not negligent. It was this decision that the Court of Appeals reversed. In essence, the Court found that there was conflicting testimony in the record about where exactly each of the vehicles was stopped and why. There was evidence that this vehicle was not forced to stop at all, but could have continued traveling past the accident. Or, if they wanted to stop to render assistance, they should have pulled off on to the shoulder. The evidence, however, would support a finding that they stopped without regard to other traffic on the road and thus made a minor accident into a serious one, resulting in permanent and serious spinal injuries. Whether the driver of the second car should be held responsible was determined by the Tennessee Court of Appeals to be a question for the jury.

A recent decision from the United States District Court for the Eastern District of Tennessee reaffirms the rule that police officers cannot be held liable for failing to stop or arrest a drunk driver. In Harris v. City of Knoxville, a pedestrian brought suit against Knoxville and two police officers individually after he was seriously injured by a drunk driver. As it turned out, the drunk driver had been stopped only a short time before he struck the pedestrian by a suspicious police officer. After investigating, however, the officer determined that while the passenger of the vehicle may have been intoxicated, it did not appear that the driver was drunk or driving under the influence of drugs. No field sobriety test was administered.

The injured pedestrian plaintiff’s suit alleged several claims against the officers and the City, but the case turned on whether the failure to stop the drunk driver was a deprivation of the injured plaintiff’s due process rights. This appears to have been a creative attempt by the plaintiff to recover damages for his injuries, but well-established case law should have foreshadowed the outcome. In particular, the U.S. Supreme Court’s decision in DeShaney v. Winnebago County which held “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” The District Court set out the test for determining whether an individual could sue as an exception to the general rule in DeShaney. In order to bring a claim under the “state created danger” exception, a plaintiff must show: (1) an affirmative act by the state that either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party; (2) a special danger to the plaintiff wherein the state’s actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and (3) the state knew or should have known that its actions specifically endangered the plaintiff. Under this test, it seems fairly clear that a police officer cannot be held responsible for failing to arrest a drunk driver. First, under such a circumstance the officer does not “create” or “increase” any risk. And, second, letting a drunk driver continue driving does not specifically endanger any individual, but rather poses a risk (at most) to the general public. And this is exactly what the District Court held.

Indeed, given the relative ease in which the District Court dismissed this case, it seems somewhat surprising that it was even brought in the first place. If the attorney for the plaintiff had done more than a cursory review of the law, it would have been hard to conclude that the case would be held viable by the District Court. While a plaintiff injured through no fault of his own certainly deserves compensation, that doesn’t necessarily mean a case should always be brought. Here, it seems likely that the responsible driver didn’t have car insurance or didn’t have sufficient car insurance, and that the plaintiff also didn’t have uninsured (UM) motorist coverage. As a result, the plaintiff tried to hold a third party (the police) responsible for the injuries caused by the drunk driver. The result of the case, though, makes clear that even if the police behave negligently in letting a drunk driver continue driving, neither the police officers nor their employer can be held liable for any resulting injuries.

In an opinion released on May 30, 2013, the Tennessee Court of Appeals upheld the grant of summary judgment to a defendant driver who had unquestionably caused a car accident and injuries to another person. In Smith v. General Tire, the injured car accident victim sued the responsible driver and her employer, whose vehicle she was driving at the time of the accident, to recover for injuries he sustained. The facts of the case, however, showed the defendant driver had lost consciousness due to a sudden onset of hypoglycemia associated with her diabetes. The diabetic driver wore an insulin pump and also took additional shots of another medication to help control her blood sugar levels.

The trial court had granted summary judgment to the diabetic driver, however, on the basis that her loss of consciousness was unforeseeable and therefore that although she caused the accident she was not negligent. The attorneys for the injured victim had taken two depositions of the diabetic driver, and had retained a medical doctor to testify about the dangers of the medications she was taking, but were unable to establish that she should have foreseen a sudden loss of consciousness.

The outcome of this case is that an innocent injured car accident victim obtains no recovery. Of course, the ruling also essentially stands for the proposition that a driver who experiences a sudden, unforeseeable loss of consciousness is just as innocent as the person she hurt. I think this is, unfortunately for the innocent injured party, probably the right outcome. In a different case, the facts could lead to a different outcome. For instance, if more evidence could be developed that the diabetic (or epileptic, or cancer patient, or other person with any medical condition) had experienced similar episodes in the past, or had been instructed by a doctor not to drive, or was otherwise more aware of the dangers of their condition or side effects of their medication, the injured plaintiff would likely be able to establish a prima facie negligence case. Better testimony from a medical expert would also be of great assistance.

A recent news story here in Nashville illustrates the importance of seat belts in saving lives and preventing injuries in serious car accidents. Channel 5 reported on a drunk driving accident on Nolensville road in which one driver crossed the center line and sideswiped several cars before colliding head on with another car. The drunk driver was killed and pronounced dead at the scene, as was, tragically, a 4 year old child passenger in the car hit head on. The child was apparently thrown from the vehicle and had not been properly belted in the car.

There are so many tragic aspects of this story. Obviously, there appears to be little doubt that the accident was caused by the reckless actions of the striking driver in choosing to drive under the influence of alcohol. But that, unfortunately, is just a fact that other drivers and passengers need to be aware of. Even during the afternoon, you might encounter another driver who is drunk, or distracted by their cellphone or texting. The absolute best thing you can do to protect yourself from other drivers is to wear your seat belt, and make sure that children in the car are buckled up (and dont take their belt off). As the Tennessee State Trooper noted in the news story, neither fatality would likely have occurred had the driver and the child been properly restrained.

There is an additional, potential tragic aspect to this story. The drunk driver is reported to have not had a valid driver’s license. My guess is that, given that, she likely didn’t have liability insurance to cover damages and injuries she caused to others. The mother of the young child, who is also reported injured in the wreck, may not have any means to recover for her injuries and her child’s death against the negligence drunk driver unless she had acquired uninsured motorist (UM) coverage. Just as wearing a seat belt is the most important thing you can do to protect yourself from injury in a car accident, making sure that you carry sufficient UM coverage is the most important thing you can do to make sure you are compensated if you are injured by the negligence of another driver. Tennessee law requires that insurance companies offer UM coverage in an amount equal to the amount of liability coverage that you carry. However, many drivers simply don’t understand what the UM coverage is and decline it in the hopes of saving a few dollars on their premiums. It is a strange outcome indeed when drivers protect others that they might hurt more than they protect themselves from the consequences of other drivers’ negligence. I hope that the injured mother in this tragic drunk driving accident carried sufficient UM coverage; that won’t bring back her child, but it can help ensure that she doesn’t otherwise suffer because she can’t afford medical care for herself or loses income while she recovers from her injuries and the loss of her child.

The 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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The 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.

In 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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