Articles Posted in Premises Liability

parking lotNot every lawsuit is concluded by a jury’s verdict in favor of one party or another. While many cases are settled through an agreement between the parties, some are resolved via a legal proceeding known as a “motion for summary judgment.”

When a defendant files such a motion in a negligence case, including an East Tennessee slip and fall case, the argument is that, even if all of the factual disputes are resolved in the plaintiff’s favor, the defendant cannot be held liable. There is judicial economy in motions for summary judgment in that a case is resolved without the need for a jury to determine factual disagreements; however, a motion can only be granted if the opposing party could not win his or her case even if the jury found all of the factual disputes in his or her favor.

Facts of the Case

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While Tennessee premises liability law imposes a general duty of care on landowners, including those who own retail stores, restaurants, and the like, proving fault in a particular case can sometimes be a difficult endeavor. This is because slip and fall, trip and fall, and fall-down lawsuits tend to be extremely fact-specific.

Two customers who suffer identical injuries could have very difficult outcomes, depending on the particular hazard that caused their accident, how that hazard came to be, how long it had been in existence, and whether any store employee was aware of – or, in the exercise of due diligence, should have been aware of – the dangerous condition that led to the customer’s injuries.

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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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recreational vehicle

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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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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water meter

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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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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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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file000921513512 morguefile Melodi2In Coggins v. Holston Valley Medical Center, a woman and her spouse visited a patient in a Tennessee hospital. While at the medical facility, the woman apparently tripped over a feeding tube that was purportedly placed near the patient’s bed in a negligent fashion. As a result, the woman fell and sustained serious injuries. Later, the injured woman served the hospital with notice that she intended to file a lawsuit against the facility before ultimately filing her complaint.

In response to the woman’s case, the hospital filed a motion for summary judgment. In general, such a motion asks a court to rule that there are no material facts in dispute, and one party to a lawsuit is entitled to judgment as a matter of law. After reviewing the hospital’s motion, the trial court ruled that the woman’s claim constituted a premises liability action instead of a health care liability case. The trial court also found that the woman was not entitled to utilize the pre-suit notice provisions enumerated in Section 29-26-121 of the Tennessee Code to extend the statute of limitations. As a result, the lower court found that the woman’s case was not filed within the applicable one-year statute of limitations. After ruling the lawsuit was time-barred, the trial court granted the hospital’s motion for summary judgment.

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file000135192763 morguefile sideshowmomIn Beverly v. Hardee’s Food Systems, LLC, a couple went to a Tennessee fast food restaurant for breakfast. Immediately after entering the establishment, the husband slipped and fell in a puddle that was on the floor. As a result, the man sustained an injury to his right ankle. The entire incident was caught on tape by restaurant security cameras.

The mother of the child who caused the puddle apparently exited the restaurant with her children at about the same time the injured man entered the building. Although she was aware of the spill, the woman apparently failed to notify restaurant workers about the dangerous condition. While several patrons allegedly witnessed the child cause the puddle, no one notified the store workers about the slippery substance on the floor. Video evidence showed that the child caused the puddle about three minutes before the man fell. Although the video established that no employees were in the area prior to the man’s fall, it showed that the customer service counter was less than 20 feet away from the location of the puddle.

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