Premises Liability

Published on: November 15, 2021

Tennessee Playground Injury Lawsuits

Recently, an appeals court issued an opinion stemming from injuries a minor suffered on playground equipment. The minor child’s parents filed an action in front of the Tennessee Claims Commission, arguing that the State was liable for negligence, gross negligence, and gross negligence per se. While climbing on the equipment, the girl fell and fractured her arm. The family argued that her injuries occurred because of inadequate mulch and padding on the playground. Among several claims, they argued that the girl’s injuries arose because the State was negligent in maintaining its property and warning of dangerous conditions. The government denied liability citing Tenn. Code 9-8-307(a)(1)(C) and the Recreational Use Statute. The commissioner found that the Recreational Use Statute provided the State with immunity as a landowner and that the gross negligence exception was not applicable.

Tennessee’s Recreational Use statute provides the State with immunity for injuries occurring on state property during recreational use. The statute provides an exception in cases where the State acted with willful or wanton conduct or gross negligence. However, the statute is a high burden to meet, and the court has previously concluded that after-the-fact concerns about dangerous conditions are insufficient to establish a conscious indifference.

In this case, the plaintiffs concede that the Recreational Use statute provides immunity but argued that the gross negligence exception should apply.

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Published on: February 21, 2021

Tennessee Court of Appeals Reverses Summary Judgment, Saying Jury Should Decide if Woman’s Choice to Use Flooded Restroom Was Reasonable

By Mark Hartsoe

In a Knoxville premises liability lawsuit, the burden of proof rests on the plaintiff. Accordingly, he or she must have credible evidence proving that the defendant breached the duty of care that was owed to him or her under the circumstances.

Unfortunately, evidence of the proper owner’s negligence can disappear quickly. The accident scene may change when an employee cleans up the spill in which the customer slipped and fell. Video surveillance may be “recorded over” if not preserved. Even information about eyewitnesses may be lost over time.

Because of the compelling need to avoid spoliation of the evidence in a slip and fall case, it is important that the plaintiff seek legal counsel in a timely fashion. This can also help avoid the running of the statute of limitations, which is quite short for such matters in Tennessee.

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Published on: January 23, 2021

Tennessee Court of Appeals Affirms $200,000 Damages Award to Student Injured by Teacher’s Shot Put Toss During Track and Field Tryouts

By Mark Hartsoe

Lawsuits against governmental entities for the allegedly negligent acts of their employees can be difficult. As with other defendants accused of negligence, the government resists being held accountable in many East Tennessee personal injury cases.

Generally, the argument is that the employee in question acted reasonably under the circumstances presented and that the plaintiff was the one at fault. However, this is not always the government’s strategy.

A recent case against a large county school system was the “exception that proves the rule,” so to speak. In this case, the governmental entity insisted that its employee’s conduct was so egregious as to not be considered negligence, thus removing the case from the statute under which the injured party pursued compensation.

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Published on: July 22, 2020

Tennessee Court of Appeals Affirms $850,000 Verdict Against Grocery Store in Shopper’s Negligence Suit

By Mark Hartsoe

When most people think about a Knoxville “slip and fall” case involving a grocery store, the stereotypical image that comes to mind is probably that of shopper slipping on a banana peel and landing squarely on his or her backside, embarrassed but no worse for the wear. The idea is almost comical.

The reality of such accidents, however, is very different. A fall-down accident in a grocery store, restaurant, or other business can leave a shopper with serious injuries which may require extensive medical treatment.

When such an accident occurs as a result of the negligence of the business owner, the injured individual has a right to file a lawsuit seeking compensation for his or her medical expenses, lost wages, pain and suffering, and other damages. It should be noted that the burden of proof in such a case rests on the plaintiff, who must be able to prove his or her case by a preponderance of the evidence.

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Published on: May 21, 2020

Tennessee Convenience Store Customer’s Claim for Damages After Fall in Parking Lot Should Not Have Been Dismissed on Summary Judgment

By Mark Hartsoe

Proving liability in a Knoxville slip and fall case can be difficult. The landowner or store operate predictably blames the plaintiff for the fall in most cases, denying any liability for their own negligence.

During the pretrial phase of the litigation, the trial court is often called upon to decide whether the plaintiff has enough evidence to take the case to trial in front of a jury. Unless there is a genuine issue of material fact appropriate for the consideration of the jury, the case may be dismissed prior to trial.

In many cases, it is the defendant who creates and maintains custody of such evidence – such as video surveillance, witness statements, photographs, and the like. Because this evidence is so vitally important to the plaintiff in building his or her negligence case, there can be serious consequences for a defendant who “loses” such evidence.

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Published on: April 21, 2020

Tennessee Court of Appeals Reverses Summary Judgment to Retail Store in Customer’s Slip and Fall Case

By Mark Hartsoe

Those who operate retail establishments such as stores or shoppes, owners of restaurants and bars, and other businesses are responsible for providing a reasonably safe environment to those who come onto their premises for a business purpose. When this duty is breached, a Knoxville premises liability lawsuit may result.

In such a case, the plaintiff has the burden of proving, by a preponderance of the evidence, that the defendant’s breach of the duty of care was the proximate cause of his or her injuries. If this burden is met, the plaintiff may be awarded substantial money damages for his or her pain and suffering, lost wages, and medical expenses.

Premises liability claims must be promptly and thoroughly investigated, preferably by a person with the plaintiff’s best interests in mind. If an investigation is left up to the defendant and its insurance company, it may be difficult for the plaintiff to prove his or her case in court later on. For this reason, it is important to talk to an attorney as soon as possible if you have been hurt on someone else’s property.

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Published on: January 22, 2020

Tennessee Court of Appeals Says Jury’s $0 Damages Award Was in Error, Given Plaintiff’s Serious Injuries

By Mark Hartsoe

Seeking fair compensation following an east Tennessee slip and fall accident can be a complex endeavor. Depending upon the circumstances, there may be multiple defendants, some of whom point the finger of blame at one another. In some situations, one or more of the defendants may seek to avoid liability by relying on a particular statute. One possible statute that may prevent an injured party from seeking compensation for his or her injuries is the Tennessee Workers’ Compensation Act, which prevents an employee from suing his or her employer for negligence in most circumstances. When a plaintiff is able to make out a viable case of negligence against a property owner, he or she may be able to recover payment for several different types of money damages for his or her physical injuries.

Facts of the Case

In a recent appellate court case originating in the Circuit Court for Hawkins County, Tennessee, the plaintiff was a man who was injured in a fall while helping build a house for the defendant landowner. The plaintiff brought a negligence action against the defendant, seeking compensation for his medical expenses, lost wages, pain and suffering, and other damages caused by the fall. In explaining why he did not seek workers’ compensation benefits, the plaintiff averred that the defendant had failed to have a certificate of insurability and had not insured him at the time of the accident; according to the plaintiff, his appropriate remedy was thus in tort, not in workers’ compensation.

The case proceeded to a jury trial, during which the defendant attempted to point the blame for the plaintiff’s injuries toward a third-party who was not involved in the lawsuit. According to the defendant, this third party was a handyman who was helping the defendant build the house. The jury found that the plaintiff was the employee of the handyman rather than the defendant, that the handyman was 60% at fault for the plaintiff’s injuries, that the plaintiff was 30% at fault for his injuries, that the defendant was 10% at fault for the plaintiff’s injuries, and that the plaintiff was not entitled to any money damages. The plaintiff appealed.

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Published on: August 23, 2019

Tennessee Personal Injury Lawsuit Settles for $2M, Leading Defendants to Ask that their Insurance Company be Substituted as Real Party in Interest

By Mark Hartsoe

A Tennessee personal injury case can involve multiple defendants, some of whom may point to finger of blame at one or more of the others. In some situations, the plaintiff may be able to settle his or her claim(s) against one or more of the defendants, leaving the defendants to continue to fight among themselves about how much each rightfully owes. When this happens, it is not usual for a liability insurance company to be substituted as a real party in interest.

Facts of the Case

In a federal district court case in which a decision was issued earlier this year, the plaintiff was man who was reportedly electrocuted while working at a fair and music festival in Memphis in 2016. The accident happened when a ride that was plugged into the same generator as the ride upon which the plaintiff was working became energized by an overhead powerline, causing electricity to flow through the first ride, through the generator, through the second ride, and into the plaintiff’s body.

The plaintiff brought suit against four different amusement companies in the United States District Court for the Western District of Tennessee. Two of the defendants brought crossclaims against a third defendant, seeking indemnification and a defense. That defendant sought summary judgment on the crossclaims, urging that its contract with one of the two defendants did not obligate it to indemnify the two defendants for their defense costs in the case. The plaintiff and the two defendants filed a joint motion to dismiss the crossclaims based on a settlement agreement. As part of the settlement agreement, the plaintiff had the right to purchase an annuity; the first two defendants paid $2,075,000 to fund the annuity. The other two defendants did not contribute to the settlement payment.

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Published on: July 9, 2019

Tennessee Court of Appeals Partially Reverses Summary Judgment to Defendant in Slip and Fall Case

By Mark Hartsoe

Negligence can arise in many different contexts – automobile accidents, medical malpractice, and even situations in which someone slips and falls on business premises. Slip and fall (or “premises liability” cases) are often hotly disputed, as the landowner typically seeks to avoid liability for the accident by casting blame on the injured party. However, some east Tennessee premises liability cases are successful, resulting in an award of monetary compensation to the plaintiff, so it is important to talk to a lawyer if you think you may have a claim.

Facts of the Case

In a recent case, the plaintiff was a visitor who reportedly slipped and fell in an icy parking lot at the defendant hospital. The plaintiff had been at the hospital for some 12 hours on the day of her fall (for the birth of a grandchild); at the time of her arrival, the parking lot appeared wet but did not contain snow or ice. As the plaintiff returned her car that evening, she walked between two parked vehicles, slipping on a patch of ice that had apparently refrozen during the evening hours and fracturing her patella.

According to the plaintiff’s allegations in her complaint against the defendant, the defendant was negligent because it failed to remedy the dangerous condition created by accumulated ice in its parking lot, insomuch as it did not take affirmative steps to prevent melted snow from refreezing prior to the time of the plaintiff’s fall. The defendant filed a motion for summary judgment, which the circuit court granted. The plaintiff appealed.
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Published on: June 11, 2019

Tennessee Grocery Store’s Motion to Dismiss Shopper’s Recklessness Claim is Denied by Federal Court

By Mark Hartsoe

Slip and fall accidents are common in grocery stores and supermarkets. In a Knoxville premises liability lawsuit arising from such an incident, the plaintiff has the burden of proof in establishing the defendant’s negligence. In order to prove negligence, the plaintiff must show that the defendant breached a duty of care that was owed to him or her and that he or she was injured as a proximate result.

In some cases, the plaintiff may alternatively allege that the defendant’s conduct rose to the level of recklessness – a more serious allegation that can possibly result in punitive damages. Not surprisingly, most defendants will staunchly resist such an allegation. It is the trial court’s job to determine whether or not the facts of a given case are such that a plaintiff’s recklessness claim may proceed.

Facts of the Case

In a recent case, the plaintiff was a man who filed a premises liability lawsuit against the defendant grocery store after he allegedly slipped and fell in water left behind by a floor-cleaning machine. In his complaint for compensatory and punitive damages, the plaintiff alleged that the defendant was both negligent and reckless. More specifically, he asserted that the defendant had used a machine that left water behind while it operated, that the defendant failed to schedule routine maintenance on its cleaning machines, that the defendant’s conduct created a hazardous condition that was not readily observable by its customers, that the defendant failed to post warnings about the dangers caused by the cleaning machine, that the defendant failed to develop or implement policies to prevent the risk of harm to customers, that the defendant had acted recklessly in failing to properly maintain its fleet of floor cleaners because the defendant routinely failed to replace the “squeegee” parts of the machines (which had a life of two to three months) until they were worn out and leaving water on the floor, and that the defendant was aware of – but consciously disregarded – the risk of injury. The defendant filed a motion to dismiss or strike the plaintiff’s punitive damages claims.

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