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Negligence lawsuits are comprised of four basic elements:  duty, breach of duty, damages, and causation. Typically, the question of whether or not a duty existed in a particular case is a legal question that must be resolved by a judge, while the issue of whether that duty was, in fact, breached is a question for the trier of fact (the jury).

In a recent case, the plaintiff in a negligence action asserted that the defendant owed a duty to use due care in holding a ladder that the plaintiff was using, but the defendant denied that such a duty existed. (It should be noted that the parties to the litigation were a father and son, but, in reality, any judgment obtained by the son would likely be the responsibility of the father’s liability insurance company.)

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playgroundAlthough the purposes of a civil lawsuit and a criminal prosecution are quite different, the issues in related civil and criminal cases may be very similar. For instance, in a car accident case, a defendant may be criminally prosecuted for driving under the influence of alcohol and may also be sued civilly for negligently or recklessly causing a motor vehicle accident while intoxicated.

In the criminal case, the court may order the defendant to pay a fine, perform community service, or be incarcerated. In the civil case, the court may hold the defendant liable for damages resulting from the car accident and order the defendant (or, in actuality, their insurance company) to pay money to the plaintiff in compensation for their medical expenses, lost wages, and pain and suffering associated with the accident.

Recently, the state supreme court clarified the issue of whether a judgment of conviction in a criminal case could be used as evidence by the plaintiff in a civil case.

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When a person is hurt because of the negligence of a business, individual, or branch of the government, he or she has the right to file a lawsuit seeking compensation for both economic and non-economic damages. With regard to economic damages, such as the costs of medical care necessitated by the accident and loss of income due to the injury, the amount due to the plaintiff is often easier to determine than compensation for non-economic losses like pain and suffering.

Generally, the determination of damages is within the province of the jury, although the trial judge has some oversight as to the amount. If either party believes that a reversible error has occurred, there is also the possibility of an appeal.

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Governmental entities such as cities and utility companies enjoy governmental immunity against claims of liability pursuant to the Tennessee Governmental Tort Liability Act, Tennessee Code Annotated § 29-20-101 et seq. However, this immunity is not absolute.

For instance, there is no immunity for a governmental entity when a citizen is injured by a defective, unsafe, or dangerous condition of a street or walkway owned by the entity, if the injured person is able to show that the entity had either actual or constructive notice of the dangerous condition.

Constructive notice can be established by showing that the condition at issue had been in existence for a length of time sufficient for a property owner exercising due care to have become aware of it.

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Tennessee law requires that the plaintiff in a negligence case prove that the defendant owed a duty of care, that the defendant breached the duty of care, that the plaintiff suffered an injury or loss, and that the defendant’s breach of duty was both the cause in fact and the proximate or legal cause of the plaintiff’s injury or loss.

The question of whether the defendant owed a duty to the plaintiff has traditionally been a question of law, meaning that it is up to the court – rather than the jury – to determine whether a duty exists under the particular facts presented in a case. However, the question of whether the risk of a certain harm was foreseeable can be a question of fact.

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Incalculator and coins negligence lawsuits, including those arising from car accidents, the burden is on the plaintiff to prove duty, breach of duty, causation, and damages. If the plaintiff is seeking to recover medical expenses as part of his or her damages, this burden usually requires expert medical testimony concerning the reasonableness and necessity of such expenses.

A recent appellate court case shows just how hard defendants – or, in reality, their insurance carriers – will fight against paying an injured party’s medical expenses in some cases.

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After a lawsuit is filed, the parties usually engage in a period of discovery. Sometimes, this involves the defendant asking that an injured person undergo a medical examination by a doctor retained by – and paid by – the defense. Often, this doctor will have an opinion that conflicts with that of the plaintiff’s treating physician (or the plaintiff’s retained expert).

If the parties cannot agree on the details of when, where, and under which conditions the examination will take place, the trial court has broad discretion to enter an order resolving the issue.

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mapWhile some issues of law are controlled by the federal government, many are governed by the law of the individual states. For instance, tort litigation issues such as the statute of limitations, the proper parties to a lawsuit, and available damages are governed by state law.

When the law of two or more states could possibly apply to a legal dispute, the courts are called upon to make a “choice of law” decision as to which state’s law to apply. Situations exist in which a suit would not be viable in one state but would be of significant potential value in another.

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Pursuant to the doctrine of respondeat superior, an employer can be held vicariously liable for the torts of a servant under certain circumstances. Furthermore, an employer can be held directly liable for the negligence in some cases.

In the recent case of Jones v. Windham, the Tennessee Court of Appeals was called upon to determine whether a woman whose child was struck by a daycare’s van driver could maintain a direct negligence action against the driver’s employers in light of their admission of vicarious liability.

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stairs-shadow-1-1621502The Tennessee Court of Appeals recently vacated a trial court’s directed verdict for defendants in a premises liability action, concluding there existed genuine issues of material fact as to whether the defendant homeowners were negligent.

The plaintiff was touring a rental house in Chattanooga owned by the defendants when she tripped on a step between two rooms. She brought a premises liability action in January 2012, alleging that the step was an unreasonably dangerous and defective condition that caused her fall and resulting injuries.

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