Recently in Premise Liability Category

August 6, 2014

Knoxville Court Refuses to Exclude Physician's Expert Testimony in Premises Liability Case: Starnes v. Wal-Mart Stores East, LP

file000612083420 morguefile alvimann.jpgIn Starnes v. Wal-Mart Stores East, LP, a woman alleged in federal court that she sustained personal injuries when a large bottle of shampoo fell on her head while shopping at a Tennessee department store. According to the woman, the bottle fell because an employee knocked it over while restocking merchandise located on the same shelf in the next aisle. In her complaint, the woman claimed that she suffered neck and shoulder pain, dizziness, nausea, and a variety of other injuries as a result of being struck by the falling bottle.

Before trial, both the woman and the department store filed a motion for a Daubert hearing. When a party to a lawsuit files a Daubert motion, he or she is asking the court to admit or exclude certain expert testimony and evidence. The idea behind this motion is to ensure that the expert testimony offered by each party is based on scientifically valid and widely accepted methodology. A Daubert motion is considered by a judge while outside the jury's presence. In a federal proceeding, a Daubert hearing is evaluated using Federal Rule of Civil Procedure 702. Still, courts within the Sixth Circuit such as the Eastern District of Tennessee are not required to conduct a Daubert hearing.

After reviewing each party's written motion, the Knoxville court stated neither party provided the court with a sufficient level of detail. Both parties apparently failed to describe specific testimony challenges or apply Rule 702 to the case. Despite this, the court said oral arguments and exhibits offered the court a sufficient record on which to make its Daubert determination. Next, the Eastern District of Tennessee ruled that testimony offered by two of the woman's treating physicians should be allowed at trial. The federal court also held that the opinions of an expert witness hired by the department store to review the woman's medical file were permitted, except for irrelevant testimony that relied on another patient's medical records.

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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 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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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 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 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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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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March 12, 2014

Knoxville Appellate Court Looks at Tennessee's Recreational Defense to Premises Liability -- Wilson v. Dossett

dogwoodDaylight savings has once again crept up on Knoxville and Maryville residents. Warmer weather is just around the corner, and before we know it, we will be pulling out and dusting off our summer gear.

With the increase of outdoor activities comes the potential of suffering injuries from recreational activities. These recreational activities can include boating, biking, motorcycling, or other outdoor sports. Frequently, these activities take place away from home and on the property of others.

We have been discussing, in recent posts, a number of newer premises liability cases. Owners have a duty to keep their property free of hazards that may harm another person. Premises liability cases can be fact specific, and it is critical to have an experienced personal injury attorney that understands the laws and can gather the essential facts to get you the compensation you deserve.

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March 5, 2014

Slip and Fall Cases Under Tennessee's Governmental Tort Liability Act -- Traylor v. Shelby County Board of Education

slipperyIn Tennessee slip and fall cases, knowing the various laws that apply can be crucial to winning a premises liability case. Knoxville and Maryville property owners owe a duty of care to protect lawful entrants on their property from unreasonable risk of harm. However, the type of owner - businesses , private , or government - can invoke different Tennessee laws. If you have been injured by a fall on the property of another, it is important to speak with an experienced local premises liability attorney.

Previous Private Property Case
Previously, we discussed a slip and fall case, Barbaglia v. Nonconnah Holdings, where a lawful entrant slipped on a patch of ice on business property. In order to determine the element of duty, the plaintiff had to show that the property owner caused the hazard, had actual knowledge of the hazard, or had constructive knowledge of the hazard. The court held that news reports of patterns of precipitation and freezing temperatures could provide a property owner with constructive notice of dangerous conditions. However, the same case on government property will invoke others statutes.

Current Case on Government Property
Recently, the Tennessee court of appeals decided on a similar case on government property. In Traylor v. Shelby County Board of Education, news reports had warned of precipitation and freezing temperatures causing a public high school to close for two days, a Monday and Tuesday. During this period, the high school principal and staff worked to clear all walkways of ice. On Wednesday, the school resumed without incident, but on Thursday a student slipped on a patch of ice, breaking his ankle. The student filed a lawsuit against the school for failing to remove the hazardous ice patch.

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February 19, 2014

Duty of Care for Slip and Fall Injuries after Maryville's Biggest Snow Storm Since '93 -- Barbaglia v. Nonconnah Holdings, LLC.

snowshovelWe have survived the snow. According to the Maryville Daily Times, last week's snow dump was the largest in over twenty years. With snow comes an increased risk of sustaining an injury from a slip and fall.

If you have been injured due to the negligence of another, it is recommended that you speak with a local slip and fall lawyer to help you get the compensation you need to recover from your injuries.

With the snow, many Maryville and Knoxville property owners and residents are thinking about the responsibility of keeping their properties free of snow and ice. We can look at Tennessee court rulings on the standard of care as it concerns property owners to shed some light.

Continue reading "Duty of Care for Slip and Fall Injuries after Maryville's Biggest Snow Storm Since '93 -- Barbaglia v. Nonconnah Holdings, LLC." »

January 3, 2014

Tennessee Supreme Court Rules Business Owner May Have a Duty to Protect Patrons from Intoxicated Person on Their Property -- Cullum v. McCool

ParkingLot.jpgIn Tennessee, the legal theory of premises liability holds property owners liable for injuries that occur on their property. Property owners have a duty to maintain their property in a reasonably safe condition.

Business owners have the highest level of care and have an affirmative duty to protect their patrons on their property. If you have been injured because of the unsafe conditions of a property, you are advised to contact an experienced premises liability attorney who can get you the compensation you deserve.

On December 18, 2013, the Supreme Court of Tennessee published Cullum v. McCool, a ruling that held that a store owner may be liable for injuries to patrons caused by an intoxicated person. In Cullum, a patron tried to purchase medication from the pharmacy at a Wal-Mart. The Wal-Mart employees refused to fill the prescription because she was intoxicated and acting belligerently. The Wal-Mart employees kicked her out of the store. While pulling out of her parking space, she backed into a the plaintiff while she was putting groceries in her trunk. The plaintiff began screaming loudly, but the defendant continued to back into her.

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November 6, 2013

The City of Knoxville Not Liable for Tree Falling on Public Street


According to a Knoxville News Sentinel report, the city of Knoxville is not liable for a falling branch from a tree planted on the real property of a private landowner that fell onto a Knoxville street and killed a motorist. The Tennessee Court of Appeals ruled that, pursuant to the Governmental Tort Liability Act ("GTLA"), Knoxville is immune from the lawsuit.

Family members brought lawsuits on behalf of the motorist against both the property owner of the tree and against the city. The suit against the property owner was allowed to go forward on a premises liability basis. Under premises liability, a property owner has a duty maintain trees on their property to make sure they are reasonably safe. If you or a loved one has been injured by a falling tree branch or other unsafe condition, you are encouraged to immediately contact a local attorney with experience handling premises liability cases.

However, when the death or injury from a falling tree branch happens on public property, as in the Knoxville death, bringing a premises liability case may be more complicated since governments enjoy protection by what is called "sovereign immunity." Under sovereign immunity, certain kinds of lawsuits cannot be brought against a governmental entity unless the sovereign immunity has been waived. This may be a surprise to some people; nevertheless, there are strong justifications for sovereign immunity that help protect innocent citizens. For example, when a city is sued, the city may have to raise taxes on its residents, who were not directly involved, to pay for the lawsuit. This doesn't happen with corporations because corporations enjoy limited liability. If the street had been owned by a corporation, the victim can only claim corporate assets and cannot force the corporate shareholders to pay more. Lawsuits against municipalities can create an onerous burden on the city and the taxpayers having to continually fend off these kind of lawsuits.

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August 28, 2013

Tennessee Tourism Firms Must be Accountable for Deadly Outings

Two women recently set out for a heart-thumping whitewater adventure on Grumpy's Rapid in the Ocoee River, at the southern tip of the Great Smoky Mountains.

The two were on separate commercial tourism trips in this popular rafting location. Both lost their lives.
Our Knoxville premises liability attorneys know Tennessee's heart-stopping beauty is an autumn draw for tourists nationwide.

While we must never underestimate the vast power that nature can wield or the way it can dramatically change course in a matter of seconds, the reality is, these incidents probably should never have happened.

Investigators are still piecing together all the details, but here is what we know so far:

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July 3, 2013

Knoxville Nursing Homes Liable for Fall Injuries to Patients

Adult portable bed rails - the kind used in so many nursing homes, hospitals and home health care facilities throughout Tennessee - will soon be under an updated set of voluntary safety standards, per a joint directive from the Consumer Product Safety Commission and the U.S. Food & Drug Administration.
Our Knoxville premise liability lawyers know that while the rails themselves have come under heightened scrutiny in recent years, it is ultimately the responsibility of administrators and staffers caring for the infirm to ensure the health and safety of their patients. Because the dangers of these devices have been well-established, particularly among individuals who suffer from Alzheimer's disease or dementia, nursing homes should already have safety measures in place to prevent serious injury or death resulting from the use of the devices.

Adult bed rails are typically made of metal and are set up along both sides of the bed with the intention of helping persons to either pull themselves up or prevent them from falling.

The latter is a particularly important goal, considering recent statistics from the Centers for Disease Control and Prevention noting that while about 5 percent of those over the age of 65 reside in a nursing home, this group accounts for about 20 percent of all deaths from falls. Patients often fall more than once, with the average falling about 2.6 times per year and about 35 percent of those unable to walk.

About 20 percent of falls at nursing homes cause serious injuries and about 6 percent are fatal.

So yes, it's important for facilities to do all they can to prevent falls from occurring among elderly residents. At the same time, these bed rails have been known to also cause serious injuries and deaths, since at least as far back as 1995. That's when the FDA received an extensive report on the matter.

Unfortunately patients, especially those with forms of dementia, become confused and end up becoming trapped in between the bed rail and the mattress. Since 1995, there have been at least 550 bed-rail-related deaths in the country. Of those, about 155 occurred between January 2003 through September 2012. The vast majority of those who were killed were over the age of 60.

Additionally, there were about 37,000 people from 2003 through 2011 who were seriously injured in bed rail accidents and had to be rushed to a nearby hospital emergency room. That's about 4,000 people each year.

In the past, the FDA and the CPSC attempted to pass the buck on regulations for these devices, as the agencies couldn't agree whether they were a consumer product or a medical device. At one point, the FDA tried to require warning labels on the products, but received such backlash that agency officials back down.

In the end, the compromise was a list of voluntary manufacturing standards, introduced in 2006. However since then, we have continued to see people killed and seriously injured using these adult bed rails.

So now, both federal agencies say they are dedicated to updating that list of guidelines. But again, they will be voluntary, so it remains to be seen whether the new standards will have much impact.

Nursing homes should be vigilant in either finding alternatives to keep elderly patients safe or in checking on them frequently enough that if an incident were to occur, they would catch it in time to avert a serious or fatal accident.

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June 19, 2013

Tennessee Premise Liability Lawsuit Goes to High Court

Could businesses be responsible for removing intoxicated patrons from a facility if that patron then harms someone else on the premises?
Our Knoxville injury attorneys understand that is the question before the Tennessee Supreme Court in Jolyn Cullum v. Jan McCool. If the high court sides with the plaintiff in this case, that could mean we could see an influx of negligence cases against businesses that fail to protect customers from the actions of a person expelled from their property.

Lower courts have come down on different sides of this issue, and now the state high court has agreed to take it on.

To understand more about the issue, let's explore a bit of background regarding the case at hand.

In February 2011, the plaintiff went to a Wal-Mart store to buy groceries. She finished her grocery shopping, went to the parking lot, located her vehicle and began to place her purchased items into the trunk of her car.

What she didn't know was around this same time, another woman had also just left the store and was entering her vehicle in that same parking lot. The other woman had attempted to purchase prescription medications at the pharmacy department of the store. However, she was denied service by workers who deemed her to be intoxicated. Infuriated with her inability to obtain her medicine, this woman reportedly became belligerent with store workers. The employees responded by ordering her to leave the store.

She complied. She also located her vehicle and got inside.

It was at this point that the two women's lives intersected. The allegedly intoxicated woman backed out of her parking space without locking behind her. In doing so, the suit says, she backed directly into the plaintiff. The plaintiff was knocked to the grown, crushed by the shopping cart and pinned between the two cars. The plaintiff screamed, but the intoxicated woman reportedly did not hear her. It was not until bystanders stopped her. She then got out of her vehicle and, in apparent attempt to help the injured women, moved her and caused her further pain and injury.

In addition to filing a negligence claim against the inebriated driver, the plaintiff filed suit against Wal-Mart, alleging negligence and gross negligence on the part of Wal-Mart staffers. The reason was that the staffers failed to call police, despite the woman's clearly intoxicated state and the fact that they knew she was alone and would have to drive herself off the premises in order to comply with employee requests to leave. Employees were reportedly familiar with the intoxicated woman, as this was not the first time this sort of thing had occurred. This failure to take further steps to protect other patrons, the plaintiff alleges, was negligent.

Initially, a country trial court dismissed the claim against Wal-Mart, saying the store couldn't be held responsible for the actions of a drunk patron. However, the Tennessee Court of Appeals found that because the intoxicated woman was invited onto the property as a customer, the store had a responsibility to protect other customers from harm.

Should the state supreme court side with the plaintiff, many businesses across the state - bars in particular - should pay close attention and adjust their policies accordingly.

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