Personal Injury

August 9, 2020

Tennessee Appellate Court Addresses Application of Non-Economic Damages Cap in Mesothelioma Wrongful Death Case

In a Knoxville personal injury or wrongful death lawsuit, several elements of damages are possible. Some of these are “economic damages,” such as medical costs and lost wages. Others are referred to as “non-economic damages.”

Non-economic damages include such things as compensation for physical and emotional pain and suffering, loss of the ability to enjoy life, and loss of spousal consortium. Depending upon the law of the state in which the accident happened – and sometimes the particular claims upon which the plaintiff rests his or her case – there may be a maximum amount of damages available to the plaintiff, regardless of what his or her case would otherwise be worth.

When damages are capped in a case involving multiple defendants, disputes can arise regarding the amount that each defendant ultimately owes if the jury finds in the plaintiff’s favor. This can even be true in cases in which multiple defendants were sued but only a single defendant remained at the time of the trial.

July 22, 2020

Tennessee Court of Appeals Affirms $850,000 Verdict Against Grocery Store in Shopper’s Negligence Suit

by Mark Hartsoe

When most people think about a Knoxville “slip and fall” case involving a grocery store, the stereotypical image that comes to mind is probably that of shopper slipping on a banana peel and landing squarely on his or her backside, embarrassed but no worse for the wear. The idea is almost comical.

The reality of such accidents, however, is very different. A fall-down accident in a grocery store, restaurant, or other business can leave a shopper with serious injuries which may require extensive medical treatment.

When such an accident occurs as a result of the negligence of the business owner, the injured individual has a right to file a lawsuit seeking compensation for his or her medical expenses, lost wages, pain and suffering, and other damages. It should be noted that the burden of proof in such a case rests on the plaintiff, who must be able to prove his or her case by a preponderance of the evidence.

July 8, 2020

Tennessee Supreme Court Says Common Knowledge Exception Applied in Health Care Liability Suit Against Salon for Masseur’s Alleged Sexual Assault

by Mark Hartsoe

Pursuing a Knoxville personal injury case involves many steps. In addition to an investigation of the accident or other event giving rise to the potential litigation, certain paperwork must be filed with the court clerk in order to lodge the case with the appropriate trial court.

In most cases, this paperwork includes a summons and complaint, both of which must be filed with the clerk and served upon the defendant. In some kinds of cases, including those involving health care providers, there are other documents that may also need to be filed in order to perfect the filing of the complaint.

An attorney experienced in these types of cases can help a would-be plaintiff understand the filing requirements, assist him or her in preparation of the necessary documents, and represent the plaintiff’s interests during the litigation and trial of the matter. If an argument arises regarding whether all of the filing requirements have been met, the attorney can also prepare appellate briefs and argue the case in front of the appellate tribunal(s).

June 8, 2020

Tennessee Court of Appeals Reverses Summary Judgment in Favor of College in Former Student’s Negligence Lawsuit Involving Alleged Hazing

by Mark Hartsoe

When someone is harmed by the negligent actions (or the negligent failure to act) of a person acting within the course and scope of their employment, the law may impose “vicarious liability” against the employer. Typically, the employer’s liability insurance policy will cover such situations if a judgment is entered against the business or if the parties reach a settlement.

Often, however, the employer will attempt to get such claims dismissed prior to trial. One way to do this is to file what is known as a “motion for summary judgment.” In order to prevail on such a motion, the moving party must convince the court that he, she, or it is entitled to judgment as a matter of law because there are no genuine issues of material fact that require the consideration of the jury at trial.

It is not unusual for a negligence case to be dismissed on summary judgment, but such an order is not necessarily the end of the case. The losing party can ask the appellate court to review the matter, and, if the appellate court reverses the trial court’s order, the case is remanded to the trial court and the case continues toward trial. If you or someone you love has been harmed by the negligent actions of others, it is in your best interest to consult with a Knoxville personal injury attorney as soon as possible to discuss damages you may be able to recover.

May 21, 2020

Tennessee Convenience Store Customer’s Claim for Damages After Fall in Parking Lot Should Not Have Been Dismissed on Summary Judgment

by Mark Hartsoe

Proving liability in a Knoxville slip and fall case can be difficult. The landowner or store operate predictably blames the plaintiff for the fall in most cases, denying any liability for their own negligence.

During the pretrial phase of the litigation, the trial court is often called upon to decide whether the plaintiff has enough evidence to take the case to trial in front of a jury. Unless there is a genuine issue of material fact appropriate for the consideration of the jury, the case may be dismissed prior to trial.

In many cases, it is the defendant who creates and maintains custody of such evidence – such as video surveillance, witness statements, photographs, and the like. Because this evidence is so vitally important to the plaintiff in building his or her negligence case, there can be serious consequences for a defendant who “loses” such evidence.

April 21, 2020

Tennessee Court of Appeals Reverses Summary Judgment to Retail Store in Customer’s Slip and Fall Case

by Mark Hartsoe

Those who operate retail establishments such as stores or shoppes, owners of restaurants and bars, and other businesses are responsible for providing a reasonably safe environment to those who come onto their premises for a business purpose. When this duty is breached, a Knoxville premises liability lawsuit may result.

In such a case, the plaintiff has the burden of proving, by a preponderance of the evidence, that the defendant’s breach of the duty of care was the proximate cause of his or her injuries. If this burden is met, the plaintiff may be awarded substantial money damages for his or her pain and suffering, lost wages, and medical expenses.

Premises liability claims must be promptly and thoroughly investigated, preferably by a person with the plaintiff’s best interests in mind. If an investigation is left up to the defendant and its insurance company, it may be difficult for the plaintiff to prove his or her case in court later on. For this reason, it is important to talk to an attorney as soon as possible if you have been hurt on someone else’s property.

April 7, 2020

Tennessee Appeals Court Rules in Plaintiff’s Favor on Pre-Trial Motion in Case Involving Allegedly Dangerous Drug

by Mark Hartsoe

Knoxville medical malpractice cases and product liability lawsuits are typically quite different – different theories of liability, different possible defendants, and different possible damages. It is rare that these two types of cases get “mixed up” or combined into a single lawsuit. However, there are a few exceptions to this general rule. A recent case explores a scenario in which the parties disagreed about the ultimate nature of a lawsuit – and, hence, possible defenses to the plaintiff’s claims – against a doctor, a pharmacy, and some others resulting from an allegedly dangerous prescription medication taken by the plaintiff.

Facts of the Case

The primarily plaintiff in a recent appellate case was a man who was prescribed a certain medication for his diabetes in 2014. The following summer, the Food and Drug Administration issued a risk evaluation and mitigation strategy to warn of the risk of acute pancreatitis for those using the medication. According to the complaint filed by the plaintiff (joined by his wife), he was not warned of this risk by any of the defendants (a doctor, two medical groups, a home delivery pharmacy, and others). The plaintiff was later diagnosed with acute pancreatitis, sepsis, and acute respiratory failure; additional hospitalizations followed, as did a fall that occurred when the plaintiff was in a weakened physical state and which resulted in a severe traumatic brain injury.

The plaintiff’s lawsuit, filed in the Knox County Circuit Court, alleged that he had been damaged as a result of the acute pancreatitis and a subsequent traumatic brain injury caused by his use of the prescription medication and his medical providers’ failure to appropriately “prescribe, counsel, provide, utilize, and/or discontinue this medication.” The plaintiff alleged claims of both strict liability and simple negligence against the manufacturer of the medication; he also asserted health care liability claims against the other defendants. The home delivery pharmacy filed a motion to dismiss the plaintiff’s complaint based upon the “seller shield statute” of the Tennessee Product Liability Act, codified at Tennessee Code Annotated § 29-28-106. The trial court denied the motion.

March 24, 2020

Federal District Court Grants Discovery Sanctions in Tennessee Worker’s Negligence Lawsuit Against Crane Company Following Accident in Man Basket

by Mark Hartsoe

When someone is injured on the job, he or she is typically limited to the benefits available under workers’ compensation. However, there are some circumstances in which a third-party action can be brought, such as an east Tennessee personal injury lawsuit.

For instance, a recent case explored some of the complications that can arise when a worker is injured while performing tasks while standing on equipment owned by another company, on a job supervised by a second entity. Although the case was not fully resolved and may still proceed to trial, a federal district court judge imposed significant sanctions on the defendant due to its actions during the discovery phase of the case. This could potentially aid the parties in resolving their dispute prior to trial.

Facts of the Case

The plaintiff in a case filed in the United States District Court for the Middle District of Tennessee, Nashville Division, was a man who was injured during an accident involving a crane. According to the plaintiff, both of his legs were shattered when the crane’s “man basket,” in which he was standing, suddenly dropped 15 0r 20 feet due to either a malfunction of the crane or operator error. The plaintiff filed suit against the company that owned the crane and provided the operator for it, asserting claims for common law negligence and negligence per se due to the crane company’s alleged failure to comply with regulations promulgated by the Occupational Safety and Health Administration (OSHA). The crane company then filed a third-party claim against the bridge utility company that was in charge of the project during which the plaintiff was injured. The plaintiff’s employer’s workers’ compensation insurance company intervened to assert its subrogation rights. Through various motions, the parties sought discovery sanctions and/or other relief.

February 20, 2020

Tennessee Court of Appeals Reduces Remittitur Issued by Trial Court in Tractor Trailer Accident Case

by Mark Hartsoe

In a Tennessee truck accident case, an injured person may be able to recover money damages for several different types of loss, including loss of earning capacity. In simple terms, this means that the defendant has to pay the plaintiff the money that he or she would have been able to earn but for the accident.

Loss of earning capacity can be temporary (until the plaintiff physically recovers from the accident and returns to work), or it can be permanent (when the plaintiff is unlikely to ever be able to go back to work). The burden of proof is on the plaintiff to provide evidence of his or her lost earnings, both past and future, resulting from the wreck.

Sometimes, a jury may award an amount of damages that, when considered by the trial court judge or the court of appeals, was not in line with the evidence introduced at trial. Rather than start over with a new trial, the court may issue a “remittitur,” which reduces the amount the plaintiff ultimately receives as to one or more elements of damages but does not otherwise disturb the jury’s verdict in his or her favor as to liability or other issues. In other words, the plaintiff still wins; he or she just gets less money than the jury awarded.

February 6, 2020

Tennessee Appellate Court Finds Conflict Between City’s On-the-Job-Injury Policy and State Statute Setting Forth Presumption in Firefighter Death Cases

by Mark Hartsoe

Most workers in Tennessee are covered by workers’ compensation laws. However, some are not. For example, some public employees are not entitled to benefits under the same system that a fast food restaurant employee or factory worker would be covered.

In such cases, the employee (or, in a fatal illness or accident case, the worker’s family) may be entitled to some alternative type of benefits following an accident or sickness caused by the worker’s conditions of employment, but such a suit may be pursued more in the nature of a Tennessee personal injury or wrongful death lawsuit than a “regular” worker’s compensation case. Some governmental entities’ work injury coverage is administered through a third-party administrator who makes the initial decision in the case. This may be reviewed by an administrative law judge, a chancellor or circuit court judge, and, eventually, the appellate court.

Facts of the Case

In a recent case, the plaintiff was the widow of a city fireman who passed away in 2015. At the time of his death, the decedent had worked for the city’s fire department for some 20 years. His pre-hire physical examine revealed no signs of hypertension or other heart disease. After having completed a 24-hour workday that required him to manage calls on five separate calls, the decedent passed away within 12 hours of leaving his post. The widow sought on-the-job-injury benefits for the fireman’s death. The defendant’s third-party administrator denied the widow’s claim on the basis that no autopsy had been performed on the decedent as was required under the city’s on-the-job injury policy.