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Articles Posted in Premises Liability

When someone is hurt on another person’s property, the injured person may file a lawsuit seeking monetary compensation for lost wages, medical expenses, pain and suffering, and other damages. The burden of proof is always on the plaintiff in an east Tennessee slip and fall case, however, and being successful at trial can be a very challenging task.

A seasoned personal injury attorney can help the injured person navigate the difficulties and potential pitfalls of a premises liability case seeking compensation for injuries suffered in a fall or other accident on a landowner or business’ property.

Facts of the Case

Ideally, an east Tennessee personal injury lawsuit would proceed as follows:   the plaintiff files the complaint, the defendant files an answer, the case is tried, a judgment is entered, and the case is over. Unfortunately, things do not always work out that way.

A case recently considered by the Tennessee Court of Appeals definitely did not proceed in the usual fashion. It involved two separation actions in general sessions court, two appeals to circuit court, and yet another appeal to the court of appeals. Perhaps not surprisingly, the case still isn’t over.

Facts of the Case

When someone falls in a store or in another place of business, there may be multiple parties who could potentially be named as defendants – corporations, subsidiaries, parent companies, holding companies, land management companies… the list goes on and on.

When an east Tennessee premises liability lawsuit is filed against multiple defendants, some of those parties may be dismissed, either voluntarily as part of the plaintiff’s litigation strategy or by the trial court on motion of the defendant(s). In cases of a voluntary dismissal, the plaintiff may have the option of refiling the claim within a certain time period.

Additionally, when a defendant asserts fault by a non-party as part of a comparative fault defense, the plaintiff may be able to amend his or her complaint to add those individuals or businesses as party defendants.

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Serious injuries can result from a fall on another party’s property – broken bones, sprains, strains, disc herniations, and other, sometimes permanently disabling medical problems can all occur when premises are not maintained in a reasonably safe condition.

In an east Tennessee premises liability lawsuit, a person injured on another party’s property may seek compensation for medical expenses, lost earnings, and pain and suffering caused by the fall.

However, the burden of proof in a slip and fall case is always on the plaintiff – the injured person – to prove his or her case by a preponderance of the evidence. Often, such cases fail for lack of proof, not because the defendant was not negligent but because the plaintiff was unable to provide competent evidence of the defendant’s breach of the duty of due care.

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Not 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

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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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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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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