July 23, 2014

Knoxville Court Examines Tennessee's Recreational Defense to Premises Liability: Solomon v. United States

file1211246147194 morguefile thegipper.jpgThe Eastern District of Tennessee, Knoxville Division has dismissed a woman's personal injury lawsuit that was filed against the United States government. In Solomon v. United States, a woman and her family visited the Great Smoky Mountains National Park in order to go hiking. While walking down a hill, the woman apparently stepped in a hole that was obscured by leaves. She allegedly fell backwards, attempted to break her fall using her arms, and subsequently became injured. After she exhausted the administrative remedies available to her, the woman filed a premises liability lawsuit against the U.S. government in federal court. The government responded by filing a motion for summary judgment.

First, the Eastern District of Tennessee stated summary judgment is only proper in a federal lawsuit where no material facts are disputed, and one party is entitled to judgment in his or her favor based on the law. In addition, the court stated the party who files a motion for summary judgment bears the burden of demonstrating that no factual disputes exist, and all inferences must be made in favor of the non-moving party. If such a motion is granted, the moving party wins the case without proceeding to a trial.

According to the government, it was entitled to summary judgment under Sections 70-7-102 and 70-7-104 of the Tennessee Recreational Use Statutes, since the woman failed to demonstrate it caused her injuries by committing gross negligence. The woman countered that the U.S. was liable for her harm because it failed to properly maintain the trail she fell on or warn her about the risk for injury. Under Tennessee law, a landowner may not be held liable for injuries sustained by a visitor to a property if the visitor is engaged in recreational activities, such as hiking, except where the property owner committed gross negligence or demonstrated a willful disregard for the safety of visitors. The code also states a property owner is not required to warn recreational visitors regarding any hazards.

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July 16, 2014

Jury's Comparative Fault Verdict Upheld in Eastern Tennessee Auto Collision Case: Miller v. Moretz

file000197358256 morguefile o0o0xmods0o0o.jpgThe Court of Appeals of Tennessee at Knoxville has affirmed a jury's award in a car wreck case. In Miller v. Moretz, a 72-year-old driver was involved in an automobile accident with another motorist. According to disputed testimony offered at trial, the man's vehicle was either backing up into a driveway or preparing to back up when a collision occurred between the rear corner of his vehicle and the driver's side of the other vehicle. Following the crash, the elderly man and his wife filed a negligence lawsuit against the other driver over the personal injuries each allegedly sustained in the collision. In their complaint, the plaintiffs claimed that the defendant motorist failed to yield the right of way, failed to maintain a proper lookout, drove at an excessive rate of speed, followed their vehicle too closely, and more. The defendant responded by stating he was operating the vehicle in a prudent fashion. He also claimed the plaintiff failed to yield and violated the legal limitations placed on backing up a vehicle by Section 55-8-163 of the Tennessee Code.

Before trial, the defendant driver filed a motion in limine asking the court to prohibit the plaintiffs from introducing evidence related to his use of prescription medication at the time of the collision. Such a motion is normally considered by a judge while outside of a jury's presence at the beginning of a trial. It is used to determine whether certain evidence may be introduced for the jury's inspection. The defendant driver argued before the trial judge that evidence regarding his use of prescription medication should not be used for impeachment purposes because such evidence would have a prejudicial effect on him. Since the plaintiffs' lawsuit did not allege the defendant driver was somehow impaired at the time of the traffic wreck, the court granted the defendant's motion and excluded evidence related to his drug use.

Following trial, a jury found the defendant motorist 10 percent at fault for the car accident. Additionally, the jury held the plaintiff driver 90 percent responsible for the crash and valued his wife's damages at zero. Since Tennessee is a modified comparative fault state, this means the plaintiffs were not entitled to recover any compensation for their alleged injuries. Under modified comparative fault rules, an accident victim may not recover for his or her harm if a jury or judge decides the injured party was at least 50 percent responsible for the accident. The plaintiffs responded to the jury's verdict by filing a motion for a new trial. Their motion was denied, and the couple appealed their case to the Court of Appeals of Tennessee at Knoxville.

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July 9, 2014

Tennessee Federal Court Discusses Elements of Premises Liability Claim: Griffin v. Wal-Mart Stores East. LP

800px-Walmart_at_5152_Canoga_Park must attribute wikimedia commons.jpgThe Eastern District of Tennessee has refused to amend a verdict that was rendered against a plaintiff in a slip-and-fall case. In Griffin v. Wal-Mart Stores East. LP, a 76-year-old woman was allegedly injured when she fell inside a department store located in Eastern Tennessee. Following her injury, the woman filed a premises liability lawsuit against the store. Although the area where the woman fell was apparently dry, an employee who was tasked with cleaning up a previous spill in the area testified at trial that the floor was slippery.

After the trial court ruled in favor of the department store because the business lacked sufficient notice of the allegedly hazardous condition, the injured woman filed a motion to alter or amend the verdict under Rule 59(e) of the Federal Rules of Civil Procedure. In general, such a motion may only be granted if the court made a clear legal error, if new evidence was discovered, if the law changed, or in order to prevent a "manifest injustice" from occurring. According to the injured woman, the court's holding was erroneous because the department store had actual or constructive notice of the supposedly dangerous condition in the store. The Eastern District of Tennessee stated that surveillance video of the area where the woman fell demonstrated no circumstantial or other evidence the department store was aware of the purportedly slippery floor.

The federal court also dismissed the elderly woman's claim that the department store had constructive notice of the alleged slip-and-fall hazard because conflicting evidence was presented at trial. The court stated the woman failed to offer evidence regarding the source of the slippery surface despite that a store worker testified the floor she fell on was slick. The federal court added that the video surveillance did not show a spill occurred prior to the elderly woman's fall. Since the slippery film on the floor was apparently invisible, and the video footage offered at trial showed other shoppers walking over the same area without incident, the Eastern District of Tennessee held that the department store did not have constructive notice of the supposedly hazardous condition that caused the plaintiff's fall.

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July 2, 2014

Fatal Blount County Collision Highlights the Importance of Always Wearing a Seat Belt

file5871343064709 morguefile kconnors.jpgA 75-year-old man was tragically killed in a recent motor vehicle collision on East Lamar Alexander Parkway in Walland. According to a spokesperson for the Blount County Sheriff's Office, Marian O'Briant, the man was in the process of turning onto the parkway from Rocky Branch Road when his vehicle was struck by an eastbound auto that was being driven by a Maryville teenager. Although the teen attempted to avoid the traffic wreck, she was apparently unable to stop before colliding with the rear driver's side of the man's car. Sadly, the 75-year-old was pronounced deceased at University of Tennessee Medical Center.

Following the fatal traffic crash, the teen driver and two other children were transported to Blount Memorial Hospital for medical treatment. Thankfully, all of the minors involved in the deadly wreck were treated and released. According to authorities, each child was utilizing a seat belt at the time of the collision. O'Briant stated the exact cause of the automobile accident is currently under investigation by the Traffic Safety Unit of the Blount County Sheriff's Office.

Unfortunately, this accident was apparently the second deadly collision on the East Lamar Alexander Parkway in less than one week and the eighth traffic wreck since May. Sadly, a 33-year-old man was killed in a one-vehicle crash on the parkway near Laurel Valley Road a few days prior. Authorities stated the man appeared to have lost control of his car while navigating a curve in the road and struck a tree. Although the airbags in his motor vehicle deployed, the 33-year-old was not wearing a safety belt. He unfortunately died at the University of Tennessee Medical Center after firefighters extricated him from the accident wreckage.

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June 25, 2014

Auto Insurer Not Liable for Knoxville Rental Car Accident: Progressive Hawaii Insurance Corp. v. Gulley

file8031266674277 morguefile Alvimann.jpgA recent federal lawsuit demonstrates the importance of protecting yourself by maintaining uninsured motorist accident coverage on your personal vehicle. In the case, the Eastern District of Tennessee at Knoxville ruled in favor of an automobile insurer who was sued for damages following a motor vehicle accident involving a rental car. In Progressive Hawaii Insurance Corp. v. Gulley, a Knoxville woman rented a Nissan Maxima for a family trip. Prior to renting the car, the woman purchased liability auto insurance for her personal vehicle from Progressive Hawaii Insurance Corporation. Under the terms of the rental agreement, the woman was the only authorized driver of the Nissan.

While attending a family gathering in Knoxville, the woman's son apparently drove the rental car without her permission. He and three others allegedly drank alcohol and drove the vehicle around town before the son's friend got behind the wheel of the Nissan. While the friend was driving, the Nissan was involved in an injury traffic wreck with another automobile. Unfortunately, one of the occupants of the rental car was also killed in the crash.

After a personal injury lawsuit was filed against the woman and her insurer in the Eastern District of Tennessee, the insurance company filed a motion for summary judgment. When a party to a lawsuit files such a motion, that party is asking the court to rule that no material facts are in dispute and enter judgment in the party's favor based upon the undisputed evidence offered in the case. According to the insurance company, it had no duty to defend or indemnify the woman because the rental car was not a covered vehicle under the terms of the liability policy. Additionally, the insurer claimed that the individual operating the car at the time of the crash was not a covered driver.

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June 18, 2014

Knoxville Case Outlines Property Owner's Duty in Premises Liability Case: Goumas v. Mayse

file0001771584086 morguefile gracey.jpgIn Goumas v. Mayse, a 21-year-old man was visiting the home of his fiancée's parents for an extended period of time. During his visit, the man allegedly tripped and fell over a rock while assisting the property owners with some yard work. As a result of his purported slip and fall, the man sustained two broken bones in his right arm. About one year after he was injured, the man filed a premises liability case against the property owners. In his complaint, the man alleged the owners were aware of an unreasonably dangerous condition and failed to correct it or warn him of the hazard. In response, the property owners filed a motion for summary judgment, alleging they owed the man no legal duty.

According to evidence offered to the trial court, the man was aware of the location of the rock because he performed similar yard work on numerous previous extended visits to the property. In addition, the man offered no evidence to support his claim that the property owners knew or should have known the rock posed a danger or that it existed in any way. The trial court stated there was no proof the man's injury was foreseeable and granted the property owners' motion for summary judgment. The man then appealed his case to the Knoxville court.

In Tennessee, a property owner has a legal duty to exercise reasonable care and remove hazards or warn visitors and invitees about dangerous conditions the owner is or should be aware of. A property owner is also required to exercise reasonable diligence regarding the existence of a potentially hazardous condition. This duty does not extend to a dangerous condition the owner was unaware of or could not reasonably have discovered.

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June 11, 2014

Another Jury Verdict Upheld by Knoxville Court in Car Accident Lawsuit - Salyer v. Linnen

file7571263662948 morguefile schick.jpgThe Tennessee Court of Appeals in Knoxville has refused to overturn a jury's finding that two drivers were equally responsible for a traffic wreck. In Salyer v. Linnen, two motor vehicles collided at a traffic light while both were turning off of U.S. Highway 11-E in Sullivan County. According to testimony offered at trial, the plaintiff was southbound on the highway when she slowed to turn right onto Allison Road. At the same time, the northbound defendant turned left onto the same road. The two vehicles apparently struck one another while each motorist made their respective turns. After the crash, the plaintiff and her husband filed a personal injury lawsuit against the defendant. In addition, the couple asked the court to award compensation for property damage and loss of consortium. In response to the plaintiff's lawsuit, the defendant filed a countersuit against her.

At trial, both the plaintiff and a law enforcement officer who investigated the accident offered testimony that stated the defendant admitted to fault at the accident scene. An Officer with the Bluff City Police Department also testified that the rear passenger side of the defendant's vehicle sustained damage in the collision, while the front driver's side of the plaintiff's car was damaged. He stated both drivers appeared nervous, but neither showed any obvious signs of physical harm immediately following the crash. The officer claimed that the automobile crash took place beneath the traffic signal. The defendant testified that she followed all traffic laws and took the turn with caution. She also denied admitting any fault at the scene of the collision.

At the close of evidence, a jury determined that both parties were 50 percent responsible for the injury accident. Because Tennessee is a modified comparative fault accident state, this means neither party was compensated for her accident injuries. In a state that adheres to modified comparative fault, a plaintiff who is 50 percent or more responsible for his or her personal injury may not recover compensation. In contrast, a plaintiff who is held 49 percent or less responsible for his or her accident injuries may recover for any harm sustained, but the award will be reduced by the amount of responsibility a jury or judge attributed to the plaintiff.

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June 4, 2014

Modified Comparative Fault is Question for Jury in Knoxville Appellate Case: Wilson v. TMBC

file2871310296124 morguefile wallyir.jpgThe Knoxville, Tennessee Court of Appeals has stated that the facts of a disputed premises liability case should be considered by a jury. In Wilson v. TMBC, LLC, a man returned his fishing boat to the company he purchased it from for repairs. Following the repair, he purportedly climbed onto his boat at the request of one of the store's technicians to inspect the installation of a new part. While exiting the vessel, the man was apparently injured when he tripped and fell out of the fishing boat. According to the man, he stumbled over a piece of the boat that was discarded by a boat company employee during the repair. After the incident, the man filed a premises liability lawsuit against the business.

At trial, the boat company asked the district court to issue a directed verdict in its favor. According to the business, the man failed to prove the company breached a duty to him, and the man was at least 50 percent responsible for his injuries. In general, a directed verdict is only ordered after a court determines that no reasonable jury could return any other verdict. The court agreed with the business and entered a directed verdict in favor of the boat company. In response, the man filed an appeal with the Knoxville court.

The Court of Appeals overturned the trial court's decision to issue a directed verdict in favor of the boat company. According to the appellate court, the injured man submitted sufficient evidence to support a jury's finding that the boat company's worker negligently caused his injury. Additionally, the Knoxville court stated the percentage of fault attributable to the man was a question of fact for jurors to decide. Since the trial court should not have issued a directed verdict in favor of the boat company based upon the facts of the case, the Court of Appeals vacated the lower court's decision and remanded the case for a new trial.

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May 28, 2014

Fatal Maryville Wreck Demonstrates Victims Deserve Compensation for Injuries Despite Criminal Charges

file841272198500 morguefile username Jusben.jpgA 27-year-old Walland motorist was recently charged with vehicular homicide, assault, and reckless endangerment in connection with a deadly three-car crash on U.S. Highway 411 in Blount County. According to local authorities, the man was northbound on the roadway when he attempted to pass another motorist at a high rate of speed in the center lane. The 27-year-old apparently lost control of the vehicle and crossed into the southbound lanes where he struck two other automobiles. Sadly, a 72-year-old Tellico Plains woman was killed in the traffic wreck. A 76-year-old passenger in her car was taken by ambulance to the University of Tennessee Medical center for treatment. Additionally, a 19-year-old Maryville woman was treated and released by Blount Memorial Hospital for injuries she purportedly sustained in the crash.

Local authorities stated all three victims were wearing a seat belt when the wreck occurred. The Walland man who stands accused of causing the fatal accident, however, sustained a number of avoidable wounds when he was ejected from his vehicle. The man was apparently released from the hospital the same day he was criminally charged.

The exact cause of the deadly collision is under investigation by the Traffic Safety Unit of the Blount County Sherriff's Office. At this time, law enforcement apparently believes drugs or alcohol may have played a role in the fatal traffic accident. A spokesperson for local authorities stated toxicology results on the 27-year-old driver are still pending.

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May 21, 2014

Knoxville Court Finds Property Owners Owed No Duty to Injured Woman in Premises Liability Case

BuckeyeLake_12 morguefile click.jpgThe Court of Appeals of Tennessee at Knoxville has affirmed a summary judgment verdict issued in favor of two property owners in a premises liability lawsuit. In Smith v. Stanley, a woman sued the owners of a cabin after she purportedly suffered injuries when she fell down a set of stairs. According to the complaint, the Knoxville woman visited the cabin for the first time at night with the property owners' adult children. As the plaintiff entered the cabin, she reportedly neglected to turn on a light switch located near the front door. Instead of asking her companions where the light switch was, she apparently walked into a room in the dark and tripped down a flight of stairs. As a result of her fall, the woman allegedly lost consciousness and suffered numerous injuries.

After the incident, the woman filed a premises liability lawsuit against the owners of the cabin. In order to recover for a premises liability claim in Tennessee, a plaintiff must prove that the property owner had a duty to protect the plaintiff, the owner breached that duty, and the breach resulted in an injury to the plaintiff. Additionally, a premises liability plaintiff must demonstrate that the dangerous condition which resulted in his or her injury was caused or created by the owner, or the owner had actual or constructive notice that the unsafe condition existed.

In response to the woman's complaint, the defendants filed a motion for summary judgment. When a party to a lawsuit files a motion for summary judgment, the party is asking the court to rule that no genuine issue of material fact that would warrant a trial exists and any undisputed facts require judgment to be entered in his or her favor. According to the defendants, they did not owe the woman a duty because her actions were not reasonably foreseeable.

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May 14, 2014

Tennessee Insurance Policy Offsets And Subrogation -- Poper Ex Rel. Poper V. Rollins; Sherer v. Linginfelter

licensplateRecently we discussed the numbers of uninsured ("UM") and underinsured ("UIM") motorists on Tennessee roadways. Because of this, it is important to make sure that your insurance policy covers you in case you suffer injuries caused by uninsured or underinsured motorists.

However, your insurance company may try to avoid paying your UM and UIM coverage. Your policy may have limits on the UM and UIM coverage. In Tennessee, there are two common limits to insurance UM and UIM premiums, offsets and subrogation.

If you or a loved one has been injured in an accident, and the at-fault driver has no insurance or inadequate insurance, you should speak with a local attorney who understands Tennessee policies and knows how to protect your rights. The Hartsoe Law Firm, P.C. takes car accident cases seriously and has successfully represented clients involved in accidents with uninsured and underinsured drivers.

Offsets: Poper ex rel. Poper v. Rollins

Tennessee Code Annotated § 56-7-1201(d) ("§ 1201(d)") allows insurance companies to offset their UM or UIM payments against other claims that a policy holder may receive. For example, if you are injured in an accident because of the negligent driving of an uninsured motorist, and you sue the uninsured motorist, the insurance company can offset their coverage by the amount you receive from the lawsuit. The purpose of offsets is to prevent unjust enrichment where a policy holder may get paid twice.

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May 7, 2014

Make Sure Your Tennessee Auto Insurance Policy Covers Uninsured and Underinsured Motorists, Especially If You Use Ride-Share Programs

Thumbnail image for RideShare.pngIf you or a loved one has been injured by the negligent driving of another, you are encouraged to speak with a Knoxville or Maryville car accident attorney. The Hartsoe Law Firm, P.C. takes car accident cases seriously and is committed to providing compassionate and aggressive representation in order get you the compensation you deserve.

Being in an accident can be financially difficult with the potential lost wages, required medical care, property damage, and other losses. If you are in a vehicle accident in Tennessee, the other driver, even if they are at fault, may lack the insurance to cover your injuries or, even worse, they may not be carrying any insurance.

More than 20% of all Tennessee drivers do not carry automobile insurance. Just recently, two high profile accidents were reported in Knoxville where the alleged at-fault driver was cited for not having proof of insurance. Furthermore, the Tennessee Department of Commerce has recently warned about the lack of coverage of ride-share programs.

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April 30, 2014

Blount County Case Highlights the Importance of Hiring the Right Car Accident Attorney: Brown v. Juarez

file5601297827370 morguefile mconnors.jpgTennessee's Knoxville Court of Appeals has refused to set aside an order dismissing a personal injury action for failure to prosecute. In Brown v. Juarez, several plaintiffs sued a number of defendants over injuries the plaintiffs allegedly sustained in a 2007 Tennessee traffic collision. About two years after discovery began, attorneys for the plaintiffs apparently ceased all activity related to the case. Three years later, the defendants filed a motion to dismiss the civil action due to the plaintiffs' purported failure to prosecute the lawsuit. The defendants reportedly supplied a hearing notice regarding their motion to dismiss the case at the bottom of the motion and sent it to only one of the two lawyers who represented the plaintiffs. When no counsel for the plaintiffs attended the dismissal hearing, the Circuit Court for Blount County granted the defendants' motion and dismissed the personal injury lawsuit.

After their case was dismissed, the plaintiffs sought to set aside the court's dismissal order. The attorney who received a hearing notice on behalf of the plaintiffs admitted that he simply overlooked the relevant information. Still, he claimed the hearing notice was ineffective, the notice should have been sent to both of the plaintiffs' attorneys, and his clients' failure to attend the hearing was excusable. After the trial court refused to set aside its order dismissing their personal injury lawsuit, the plaintiffs filed an appeal with the Court of Appeals of Tennessee at Knoxville.

The appeals court found that the notice provided to the plaintiffs was sufficient because it was provided to them in a timely manner and pursuant to local rules. In addition, the court held the plaintiffs were provided with sufficient hearing notice because the attorney who received the notice was the primary contact for any correspondence regarding the case and the plaintiffs' other lawyer appeared to be no longer engaged since he failed to sign their motion to set aside the dismissal.

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April 23, 2014

Knoxville Court Reverses Premises Liability Dismissal Because Inadequate Lighting Could Be Actual Or Constructive Notice -- Christian v. Ayers

streetlamp.jpgIn a recent Knoxville, Tennessee case, the appellate court reversed a trial court's summary judgment dismissing a premises liability case. The court based its decision upon the possibility of a property owner's actual or constructive notice of poor lighting. Summary judgment is a procedural device that a party involved in a case may use to dismiss claims or issues. If a court rules in favor of the party requesting a dismissal, the other party is not allowed to present the issue or claim to the the judge or jury.

Winning a motion for dismissal can save our clients considerable time and money by not having to defend claims that are not disputable. However, losing the motion, could mean our client loses their case. At Hartsoe Law Firm, P.C., we take every level and stage of a trial seriously, and we are committed to providing compassionate and aggressive representation in our premises liability cases in order get our clients the compensation they deserve.

A party moving for a summary judgment must prove that there are no issues of material fact. An issue of material fact is what a judge or jury decides on. Basically, by bringing a motion to dismiss, the party is arguing that there is no dispute, and it would be a waste of time and money for a judge or jury to weigh the evidence.

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April 16, 2014

Another Plaintiff Loses A Claim For Failing To Follow Court Procedure By Not Perfecting An Appeal: Peterson V. Lepard

gavel case dissmissedA Tennessee appellate court dismissed another case for failure to follow procedural rules. In the last month, we have discussed several cases where the Tennessee courts dismissed a case because the statute of limitations had tolled. Tennessee courts are serious about their procedural rules.

In the most recent case, a court of appeals in Tennessee dismissed Peterson V. Lepard for failure to "perfect" a timely appeal. Perfecting an appeal means filing all the documents and satisfying all the statutory, regulatory, and rules required to have a case sent to an appellate court. Generally, perfecting an appeal requires all documents to be in order, all the necessary attachments must be attached, and required payments have been made.

If a party loses a decision by a trial, that party may be entitled to appeal the decision to a circuit court. The Tennessee General Assembly and the courts have created several rules in order to ensure justice in an effective and efficient manner.

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