Tennessee Injury Attorney Blog

July 29, 2021

Tennessee Dog Bite and Attack Injury Lawsuits

A state appeals court issued an opinion stemming from injuries a Tennessee woman suffered while encountering two dogs. The woman and her daughter were walking on a sidewalk adjacent to a Whole Foods Market when two dogs began barking at the pair. The dogs began barking aggressively at the woman’s daughter; in response, the woman picked up some rocks and threw them towards the dogs to distract them so that her daughter could get away. The dogs began to charge at the woman, and as she was running away, she fell into a chair and sustained injuries to her hip and arms.

The plaintiffs filed a lawsuit against the company that operated the business the dogs escaped from. They alleged that their owners were liable under Tennessee Code 44-8-413, which mandates that dog owners maintain a duty to keep their dog “under reasonable control at all times and from keeping their dogs from running at large.” Further, the statute explains that those who breach the duty may be liable for civil damages to the injury victim.

In this case, the company argued that the statute did not apply to them because they were not the “owner” of the dog. The defendants argued that the plaintiffs might claim that the business had temporary custody or control of the animals; however, this temporary control is insufficient to impose liability. The trial court found in favor of the defendant, and the appeals court reversed the summary judgment.

July 15, 2021

Court Addresses Rebuttable Presumption and Finds in Favor of Tennessee Accident Victim

by Mark Hartsoe

A state appellate court recently issued an opinion stemming from a Tennessee truck accident. A Johnson City (City) employee driving a tractor-trailer lost traction and struck the victim’s car. At the emergency room, the victim complained of right shoulder pain. Before the incident, the victim underwent two prior right shoulder surgeries, and her treating doctor recommended a third surgery following the incident. The woman filed a lawsuit against the City seeking compensatory damages for her medical bills and recovery. In support of her claim, she provided itemized medical and hospital bills.

Under Tennessee Code 24-5-113(b), this evidence creates a rebuttable presumption of the reasonableness of the bills. Here, the City conceded to its liability but objected to the reasonableness of the undiscounted medical bills the plaintiff presented. The City sought to rebut the presumption through the testimony of two witnesses. One witness was a doctor who offered his opinion on the hospital’s billing practices. The other witness was presented as an expert in medical billing practices. The billing expert was the owner and co-founder of a medical billing software system. The trial court found that the doctor’s testimony violated the collateral source rule and the billing expert’s methodology was not proven or tested.

On appeal, the court reviewed whether the trial court appropriately excluded the City’s evidence to rebut the reasonableness of the victim’s bills. Under the collateral source rule, a plaintiff can still recover the entire reasonable value of their damages, even if a third party paid some of the total damages. The doctor’s testimony sought to establish that the amount billed is not the actual amount paid because of private dealings between the hospital and the parties. The court concluded that the collateral source rule directly prohibits this type of testimony.

June 18, 2021

Tennessee Court of Appeals Explains Payment of Attorney Fees in Negligence Case in Which Breach of Contract is Also Asserted

by Mark Hartsoe

Most east Tennessee personal injury and negligence cases proceed under a theory known as “negligence.” In order to be successful in such a case, the plaintiff must be able to show that the defendant breached a duty of care that was owed to him or her and that, as a proximate result, he or she suffered damages that are compensable under the law (such as pain and suffering, lost earnings, or medical expenses).

It is important to note, however, that not all negligence cases involve physical harm or death to an individual. Property damage, too, can be an element of damages in a negligence case. For example, there may be a separate claim for property damage in a motor vehicle accident case.

Some negligence cases pertain only claims involving property, however. Sometimes, these negligence claims are brought along with other allegations, such as a breach of contract claim. When this happens, the plaintiff may receive additional damages that would not otherwise be available (attorney fees, for instance, are not typically awarded in simple negligence cases under the so-called “American rule”).

June 7, 2021

Tennessee Supreme Court Reviews Damages Award in Medical Negligence Case Involving Foreign Object Left in Patient’s Body

by Mark Hartsoe

Sometimes, the legal definition and the usual definition of a word are different. Take for instance the word “damages.”

In common parlance, “damages” means physical harm to a person or thing, thus impairing its value and/or usual function. If a car sustains “damages” in a collision, we think of this as meaning that there was an impact to the car that make it less useful (a smashed headlight and a damaged radiator due to a head-on collision, for instance) or less valuable (a $50,000 SUV may be worth only $10,000 in its post-crash condition).

However, there is a separate definition in the law for the word “damages,” namely the amount of money claimed or awarded in compensation for injuries suffered in an accident. This means that, when a jury awards “damages” of a certain amount, the court then directs the party against whom the award was made to pay that amount of money to the injured individual. It is important to note that, sometimes, there are limitations on the amount of money “damages” that can be awarded to the plaintiff in an East Tennessee personal injury case. One example is discussed in the case below.

May 21, 2021

Tennessee Court of Appeals Sides with Parents with Regard to State’s Motion for Summary Judgment in Healthcare Liability Case

by Mark Hartsoe

The requirements involved in filing an east Tennessee medical malpractice lawsuit can be very complex. It is, thus, extremely important for a would-be plaintiff in such a case to retain an attorney experienced in these matters as soon as possible after realizing that a medical error may have occurred.

There is a limited time for filing a healthcare liability action, and much is to be done in anticipation of the filing of the actual complaint. Seeking legal counsel sooner rather than later can help ensure that all of the necessary steps are completed in a timely fashion.

Facts of the Case

In a recent healthcare liability and wrongful death case originating in the Tennessee Claims Commission, the plaintiffs were the parents of a stillborn infant who was delivered in December 2017 when the mother was at about 29 weeks’ gestation. The delivery occurred at a hospital owed by the defendant state. The plaintiffs’ suit sought to assert claims for negligence and medical malpractice against several resident physicians and physicians who were employed by the defendant state at the time of the delivery. No claim was presented for damages to the plaintiff mother.

May 8, 2021

Summary Judgment to Monument Company Reversed in Woman’s Tennessee Suit Claiming That Headstone Fell Over Onto Her Hand While She Was Placing Flowers

by Mark Hartsoe

A Knoxville negligence case is based on a simple proposition. If one person owes a duty of care to another and a breach of that duty is the proximate cause of harm, the responsible individual (or business) is liable for the other’s damages.

A personal injury case can take many forms, such as a car accident suit, a medical malpractice claim, a product liability case, or a premises liability lawsuit. These are “typical” negligence cases, but sometimes other, more unusual circumstances can also give rise to a claim for negligence.

Facts of the Case

The plaintiff in a personal injury case filed in the Circuit Court for Hamilton County was a woman who was allegedly injured when a headstone fell over onto her hand while she was setting some flowers on her brother’s grave. According to the plaintiff, the accident was severe enough to fracture several bones in her hand and necessitate her having surgery. The injuries also caused her a great deal of pain and suffering. The plaintiff’s complaint against the defendant monument company asserted that the defendant had been negligent in the construction, placement, and maintenance of her brother’s gravestone. The complaint further alleged that the defendant had either created the unsafe condition that led to her injuries or should have been aware of the unsafe condition.

April 23, 2021

Appellate Court Reverses Dismissal of Healthcare Liability Claim Against Tennessee Hospital – Lower Court Had Found the Claim Untimely

by Mark Hartsoe

In a typical Knoxville medical malpractice case, there is a long list of things that must be done before the case is even filed at the courthouse. It can take weeks or months to complete the necessary tasks in many cases.

Accordingly, it is vitally important to talk to a lawyer as soon as you suspect that you or a family member has been harmed due to a healthcare professional’s error. Waiting too long can seriously jeopardize the outcome of your case, as untimely claims will be dismissed by the court.

Facts of the Case

In a recent appellate case, the plaintiff was the next of kin of a woman who died of acute respiratory failure after being a patient at the defendant hospital in January 2018. The plaintiff filed suit in the Circuit Court of Davidson County in May 2019, asserting a claim for healthcare liability pursuant to the Tennessee Health Care Liability Act, codified at Tennessee Code Annotated §§ 29-26-102 et seq. In his complaint, the plaintiff averred that the defendant was “both directly and vicariously liable” under the principles of respondeat superior for the acts and omissions of its employees and agents. A copy of the complaint was mailed to the defendant on December 21, 2018, along with the notice required under Tennessee Code Annotated § 29-26-121.

April 11, 2021

Tennessee Court of Appeals Reverses Dismissal of Car Accident Case Based on Allegedly Deficient Signature

by Mark Hartsoe

Tennessee has a short statute of limitations compared to many states. Thus, it is not unusual for a person injured in a Knoxville car accident to have his or her case dismissed because it was not filed within the applicable limitations period. This much is to be expected.

What may come as more of a surprise, however, is a situation in which the party moving for the dismissal of the plaintiff’s case is his or her own insurance company. This very thing happened in a recent case in which the plaintiff’s uninsured motorist insurance company filed a motion to dismiss his suit as untimely because of an alleged defect in the complaint – even though the complaint itself was timely-filed.

Facts of the Case

In a car accident case that recently made its way to the intermediate court of appeals, the plaintiff was a man who was involved in an automobile accident on December 2, 2017. He filed suit on November 30, 2018, seeking to recover monetary compensation for certain personal injuries that he suffered as a result of the wreck. The plaintiff served a copy of the complaint against his own uninsured motorist insurance carrier, who was an “unnamed defendant” to the suit.

March 23, 2021

Tennessee Law Precluded Summary Judgment to Insurance Company with Regard to Wrongful Death Claim Brought Against Insured for Swimming Pool Drownings

by Mark Hartsoe

No east Tennessee wrongful death lawsuit will be successful unless the plaintiff can prove, by a preponderance of the evidence, that the defendant breached at least one duty of care that was owed to him or her and that this breach of duty was the proximate cause of the damages for which the plaintiff seeks compensation. However, proving the essential elements of negligence is just one step in the process of asserting one’s legal rights following a loved one’s death caused by another individual, a business, or a governmental entity.

The reality is that, regardless of how strong the plaintiff’s case might be, recovering fair compensation in a personal injury or wrongful death case depends heavily on whether or not the negligent party was insured. Technically, the plaintiff can pursue collection on a judgment by attaching the defendant’s assets, garnishing his or her wages, and the like, but this is usually a very slow process and one that, at best, typically yields only a fraction of the amount of money to which the plaintiff was entitled.

Because of the power of the insurance company lobbyists, jurors rarely hear a word about insurance. The insurance company would much rather jurors believe that every penny of a judgment was coming out of the defendant’s pocket – the idea being that a lower judgment will result when a person, not a big insurance company, is paying the plaintiff what he or she is due. Sometimes, however, there are cases in which the insurance company is front and center in a lawsuit.

March 5, 2021

Federal District Court in Tennessee Denies Summary Judgment to Maker of Blanket that Allegedly Caused Fire Due to Product Defect

by Mark Hartsoe

An east Tennessee product liability case may involve multiple defendants and various theories of liability. In many cases, both the manufacturer and the seller of the product are named as defendants, and sometimes there are other potentially liable parties as well. Legal theories may include a design flaw that affected a great many products, or there may be an allegation that a manufacturing defect affected only a few products. Failure to warn may also be asserted.

As the case develops toward trial, it is possible that some defendants and/or legal theories may be eliminated through a process known as “summary judgment.” When a court grants summary judgment, it is essentially saying that a particular defendant is entitled to judgment as a matter of law on one or more of the claims asserted by the plaintiff. Summary judgment does not necessarily end the plaintiff’s case, however, as there may still be viable legal theories remaining against a defendant (or multiple defendants) that have not been dismissed from the case.

Facts of the Case

In a recent federal district court case, the plaintiffs sought to assert a product liability action against the defendants, whom they alleged negligently designed and/or manufactured a heated throw blanket that allegedly caused a fire in the plaintiffs’ home in 2018, resulting in both personal injuries and property damage. As evidence of their claim, the plaintiffs submitted video surveillance footage showing, first, a bright flash from an area around the blanket’s control, and, over five hours later, additional flashes, smoke, and, eventually, a fire.
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