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coal mine

Since so many defendants are prone to protracting litigation in an attempt to avoid liability, or at least put off the inevitability of a judgment for the plaintiff, there are sometimes provisions in the law that require defendants to pay more than the judgment eventually entered by the court.

Depending upon the case and the applicable law, this can include both pre-judgment and post-judgment interest, as well as outright penalties and, in a recent black lung case, “additional compensation” of up to 20%.

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shopping cart

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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release documentIt is truly appalling the lengths to which some businesses and insurance companies will go in order to limit or prevent recovery by those hurt due to the negligence of truckers and trucking companies.

In the case discussed below, a professional trucker allegedly presented an accident victim with a document releasing the trucker’s employer from all liability – at the scene of the accident! When that didn’t work, the trucking company hired an investigator, who contacted the victim later that day to discuss a settlement.

Even though the investigator was aware that the accident victim was hurt in the wreck and had been to the hospital, he asked the accident victim to sign a “Release of All Claims” document just two days after the accident. Of the $10,000 settlement, just $215 was allocated for the victim’s personal injury claim. Unfortunately, the man signed the document.

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freight train

Usually, an employee who is hurt on the job is limited to pursuing benefits available under Tennessee’s workers’ compensation laws. These benefits include temporary disability, permanent disability, and medical benefits, but no compensation is provided for the worker’s pain and suffering or other non-economic damages.

There are a few exceptions to this general rule, however, including third-party lawsuits in cases in which the negligence of someone other than the employer may have caused or contributed to the worker’s injuries or death. A “textbook example” of this occurs when a delivery driver is hurt in a car wreck in which another motorist is at fault.

Another situation in which an injured worker has options other than workers’ compensation is when that worker is employed in a particular type of work covered by other laws, such as in a railroad injury case.

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car accidentWhen someone perishes in an accident caused by another party’s negligence, the victim’s family may be able to seek compensation for their loved one’s wrongful death in a court of law. Exactly who is entitled to bring the lawsuit is largely a matter of state law, but unique situations can occur that take a particular case outside the normal statutory scheme.

A Tennessee appellate court was recently asked to determine the appropriate family member to bring a wrongful death case in a situation in which the person who normally would have had statutory priority was, himself, a possible defendant in the case.

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tractor trailer

When a case goes to trial, it is up to the trial court judge to determine the specific evidence that may be introduced by the parties and considered by the jury in deciding the issues.

When one of the parties is aggrieved by an evidentiary ruling at trial, that party may opt to appeal the judge’s decision to a higher court for review.

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Deal

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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woman's shoulderUnder Tennessee law, the plaintiff in a negligence lawsuit must prove four elements:  duty, breach of duty, causation, and damages. If the negligence action sounds in medical malpractice, the plaintiff is required to provide expert testimony as to the standard of care (duty) element. Purportedly, this is to aid the jury in determining complex issues with which they may not be familiar.

A failure to provide expert testimony usually results in the dismissal of a medical malpractice plaintiff’s claim, except in the most obvious of cases (such as a medical instrument left inside the patient’s body).

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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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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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