Articles Posted in Injuries to Children

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If you have kids, you may have noticed a disturbing trend among businesses and organizations that cater to young people; birthday party venues, sports team organizers, and even some churches are requiring a signed release before a child is allowed to participate in recreational activities and other “kid-friendly” events.

The reason, of course, is to attempt to avoid liability in the event that a child is hurt (or, even worse, killed) due to the negligence of the entity asking for the release. The practice is so prevalent that one would be led to think that liability insurance has ceased to be available in this country.

The fact is that liability insurance is widely available and, in most cases, quite affordable. (It’s called “a cost of doing business.”) If no insurance company is willing to assume a particular risk, perhaps this is an indication that the activity in question is too dangerous for minor children anyway.

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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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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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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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file000996420803 morguefile ronniebIn Neale v. United Way of Greater Kingsport, a minor child apparently suffered a serious injury to his hand while participating in an activity at a non-profit organization’s Tennessee facility. As a result, the child’s parents filed a negligence action against the organization. The parents eventually agreed to voluntarily dismiss the case, and the child’s father filed a new lawsuit against the non-profit as his son’s next friend. In his new complaint, the child’s father sought damages for his son’s physical injury, suffering, pain, medical bills, and more.

In response to the father’s case, the non-profit filed a motion for summary judgment, arguing the man was prohibited from pursuing the lawsuit under Section 20-1-105(b) of the Tennessee Code Annotated. Under the law, if an injured child’s parents are not cohabiting and one parent has exclusive legal custody of the minor, only that parent has the right to bring a lawsuit. At the time of the child’s injury, the boy’s mother was his primary residential parent. Following a hearing, the trial court granted the organization’s motion. The father then filed an appeal with the Court of Appeals of Tennessee at Knoxville.

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file0001977747882 morguefile hotblack.jpgIn Tennessee Farmers Mutual Insurance Company v. Simmons, a man filed a wrongful death lawsuit after his son was tragically killed in a four-wheeler accident with a motor vehicle. According to man’s complaint, his son was being supervised by a neighbor’s adult daughter at the time of his death. Testimony offered at trial stated the child began operating the four-wheeler without permission after the woman went inside to retrieve a jacket. While the woman was inside, the boy apparently rode the four-wheeler into a nearby street and struck a car that was being driven by an unrelated man. Unfortunately, the child was killed in the collision.

Following the fatal incident, the child’s father filed a wrongful death lawsuit against the property owner, her adult daughter, the property owner’s insurance company, and the driver of the automobile that was involved in the accident. Although the insurer initially defended the property owner at trial, the company sought a declaratory judgment from the court after claiming the child’s accident was not covered under the policy. Due to his interest in the outcome, the child’s father was allowed to intervene in the action. The trial court held a hearing on the matter and ultimately agreed with the insurance company. The court determined that the property owner’s coverage did not extend to the boy’s fatal collision in the roadway. After the father’s post-trial motions were denied, he asked the Court of Appeals of Tennessee, at Knoxville to review the lower court’s decision.

On appeal, the man argued that the trial court failed to make sufficient findings of fact when it determined the four-wheeler was no longer on the woman’s property at the time of the fatal accident and that the court committed error when it ruled in favor of the insurance company because the policy language was ambiguous. The Knoxville court first stated the trial court’s decision should be upheld unless it is in conflict with the preponderance of the evidence. Next, the court said that an insurance policy is a contract and its terms should be construed according to their logical and plain meaning. After examining the language of the insurance policy, the Court of Appeals dismissed the man’s claim that it was ambiguous. Because the policy interpretation offered by the bereaved father was strained and the trial court properly interpreted the plain language requirements for accident coverage included in the policy, the appellate court refused to overturn the trial court’s holding.
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Recently, the Tennessee Supreme Court reinstated a $43.8 million award in damages to a six-year old boy who was paralyzed in a car accident. A court of appeals had previously remitted the trial court’s award by 70%.

Child Paralyzed from Seatbelt
In Meals v. Ford Motor Company, the plaintiff, a 6 year-old boy, had suffered severe abdominal injuries and paralysis after a car accident. The young boy was riding in the back seat of a Ford Mercury and had been buckled, but the boy’s father placed the shoulder strap behind the boy’s back because it ran across the boy’s face. While driving on the interstate, another driver, under the influence of alcohol and cocaine, ran head on into the Ford Mercury. Because the shoulder strap was behind the child, the child’s body jackknifed over the lap belt, violently pushing the belt up into the child’s abdomen causing severe abdominal injuries, a collapsed lung, loss of a portion of his small intestines, a brain injury, a cracked skull, and a dislocated spine leaving him permanently disabled from the waist down.

Trial Court Awards $43.8 Million
The child brought a suit against several parties including a products liability claim against Ford motor company, because of the faulty design of the safety belt. At trial, the jury ruled that the drunk driver was 70% at fault for the accident, the father 15% at fault for improperly belting the child, and Ford Motor company 15% at fault for the faulty design of the safety belt. The jury awarded damages in the amount of $43,800,000 of which Ford’s share was $6,570,000.
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Two recent fatal crashes in Knoxville involving all-terrain vehicles – one of those claiming the life of a 4-year-old – are sad reminders that use of these machines are to be treated with the same care and caution we afford other types of motor vehicles.
Although they are smaller, they can be unquestionably just as dangerous.

As a parent, there is no greater loss than that of a child. Devastation doesn’t begin to describe the depths of it, no matter what the circumstances. However, what has the potential to worsen the blow is when it was entirely preventable. That may have been the case here.

Officials in Kingsport say the child was playing around an ATV that was parked in the yard of a residence. In the course of his play, he reportedly pushed and pulled the machine and was able to dislodge it from where it was parked. He was standing in front of the machine as it began to roll down a hill toward the house, which was located at the bottom of the hill. The child then became pinned in between the ATV and the home, suffering injuries that ultimately proved fatal.
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With the Fourth of July weekend, most of us are looking for fun with friends and family. It’s a beautiful holiday, but it comes with some serious risks.
According to the Consumer Product Safety Commission (CPSC), roughly 200 people on average visit an emergency room every day with fireworks-related injuries in the month around the July 4th holiday.

“We would encourage you to enjoy the holiday at a public display presented by trained professionals, where compliance with state-of-the-art fire codes offers a safer way to celebrate our nation’s independence,” said Julie Mix McPeak, the State Fire Marshal and Commerce and Insurance Commissioner.

Our Maryville personal injury attorneys understand that one wrong move with a firework can result in serious injuries and painful memories. Children are actually the most at risk for these kinds of accidents. Children ages 5-19 are at higher risks than any other age group. Fireworks, if used improperly, can result in injury to the eyes of a child or adult as well as varying degrees of burns on the skin.

Before beginning any firework celebrations, make sure you’re aware of the state and local laws. Once you’ve done that, you want to make sure that you’re as safe as can be. Consider following these safety tips:

-Never allow children to play with or ignite fireworks.

-If you ever purchase fireworks that are in a brown paper bag, discard them. The brown bag oftentimes means that they were intended for professionals and can be very dangerous.

-Make sure that an adult is supervising all firework activities.

-Be sure that no body part is ever placed directly over a firework device when it’s being lit. The safest way to light a firework is to back up a safe distance as soon as it’s lit.

-Never point a firework at another person.

-Make sure that there is a bucket of water or a hose nearby for emergency use.

-Don’t put fireworks in your pocket.

-Don’t light fireworks and ignite them on a metal surface or on grass. Ignite all fireworks on a flat, hard surface.

-One light of fireworks one at a time.

-Never alter the use of fireworks of produce your own homemade fireworks.

-If you come across a “dud,” don’t attempt to relight it. Simply place it in a bucket of water or hose it down.

-Alcohol and fireworks do not mix. Have a “designated shooter.”

-Be cautious of lighting any aerial firework during strong wind conditions. The firework should be lit with the prevailing wind blowing away from the spectators. If there is a significant wind shift during the time you are lighting the firework, the shooting site should be rearranged.

-Remember that sparklers are not toys and cause hundreds of injuries every year. They burn hot, reaching temperatures as high as 1,200 degrees, and they stay hot long after they’ve burned out.

Your best bet when it comes to staying safe during your Fourth of July holiday this year is to attend your local celebration and leave the fireworks to the professionals.
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On November 20, 2012, Action News 5 in Memphis published an article called Survey finds dangerous toys on store shelves. The article discusses the release of the 27th annual survey performed by the U.S. Public Interest Research Group — dubbed the “Trouble in Toyland” survey.

Parents reading this article and other warnings over the holiday season have cause for concern. Potentially dangerous toys are everywhere on shelves in stores throughout the United States, and the holiday season is a time when many of these toys are bought as gifts and make their way into our homes. Kids are especially vulnerable to being seriously injured as a result of a defective toy or other child’s product. 1121740_christmas_gifts_2.jpg

To help parents keep their children safe from dangerous toys this holiday season, our injury attorneys in Knoxville urge parents to learn all they can about toy recalls and to keep up-to-date about any new recalls that occur. The Consumer Product Safety Commission (CPSC) page on Recalls and Product Safety News is a good starting point for parents. Parents should also consider the information below to help protect their kids from dangerous toys.

Toy Dangers and Risks Over the Holiday Season

Although there are strict toy safety standards in place, a number of potential problems may exist in toys purchased for kids over the holidays. According to the Memphis Action News 5 summary of the Trouble in Toyland survey, some of the risks presented by toys on the shelves this year include:

  • Toys with magnets that could easily be swallowed.
  • Toys with small parts that could be swallowed, which are lacking in adequate choke hazard warnings to ensure the toys aren’t purchased for kids under three.
  • Toys that violate safety regulations.

These are just some of the potential problems identified by the U.S. Public Interest Research Group, whose full report can be found here. The hazards were identified by researchers who spent several months visiting stores throughout the United States and checking for potentially dangerous products.

Toy Recalls on the Decline, Injuries on the Rise

Although risky toys were found by the U.S. Public Interest Research Group, Memphis Action News 5 reported that lead and other toxins were not as much of a concern in toys this year as a result of a tougher product safety law passed in 2008. The new law imposed stricter limits on the amount of lead and other chemicals that could be present in children’s toys.

A November 2010 report from the U.S. Consumer Product Safety Commission (CPSC) also indicated that tougher safety laws had started to reduce the number of fatalities associated with toys as well as the number of toys recalled each year. According to CPSC’s report, the number of recalls dropped from 172 in 2008 to 50 in 2009 to 44 in 2010. The number of deaths caused by toys was also lower, with 12 kids under age 15 dying in 2009 as compared with 24 toy-related deaths for kids in the same age group in 2007 and 2008.

CPSC did indicate that the number of injuries was increasing, however, even as deaths and recalls dropped. This increase did not necessarily mean toys were more dangerous though, as CPSC indicated that many of the visits to the ER were for mild injuries such as cuts and were not specifically caused by the toy but instead were associated with the toy.

Cutting the Risk of Injury For Your Kids
While CPSC indicated in 2010 that things were looking up for toy safety, the fact is that there is still risk. As such, parents should be vigilant about monitoring the toys that children receive, checking to see if any of those toys have been recalled, and supervising play when any new or potentially dangerous toys are being used.

These steps can be helpful in cutting the risk of injury, but ultimately the best and only way to keep children safe from defective toys is for manufacturers to be held accountable. Manufacturers are in the best position to ensure a toy is safe, and they are held to a high standard of accountability under the law. In fact, injured victims who are harmed by a toy, or the family members of victims, can file a civil lawsuit against the manufacturer to recover damages. If you can show that the toy was used as the manufacturer directed and intended and if the toy caused injury, then the toy manufacturer, distributor or seller can all be held liable.
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