Articles Posted in Premises Liability

In 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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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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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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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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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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In Tennessee, spring and summer time are celebrated because they provide an opportunity to be outside and to do outdoor activities. The Great Smoky Mountains National Park, along with the Tennessee-North Carolina border, attract people from all over the world to partake in hiking, canoeing and whitewater rafting. These activities can be great adventures and can be a lot of fun, but unfortunately they can also sometimes turn deadly.

Our Knoxville injury lawyers know that the warmer weather season significantly increases the number of people coming to Tennessee to canoe or raft. Unfortunately, both visitors and locals are in danger of getting hurt when they are out on the water, unless appropriate safety precautions are taken.

Accident at Great Smoky Mountains National Park
Tragically, on March 12, 2013, the News Observer indicated that a casualty had already occurred this year as a result of canoeing in Great Smoky Mountains National Park. The death involved a 65-year-old man visiting from Bridgenorth, Ontario. The man was with a group of fellow Canadians, all of whom were enthusiasts of white water rafting and who had come to visit Little River for an outdoor canoeing excursion.

Unfortunately, while running the Little River, the 65-year-old man’s canoe overturned. As a result, he was swept downstream and was unable to get out of the water or back into his canoe. For approximately 30 minutes, he was trapped under the surface.

His fellow canoeists tried to rescue him, working to pull him out of the water and to give him CPR. Emergency personnel were contacted and came to the scene, finding the older man with a heartbeat and breathing at the time. The older man was put into an ambulance and taken to a hospital, but unfortunately he died as a result of the accident.

Who is Responsible When an Accident Happens?
This tragic canoeing accident raises many important questions, especially as people start to plan their spring and summer trips and consider going whitewater rafting or canoeing.

One of the biggest and most important issues is the extent of responsibility that the whitewater rafting or canoeing company has to visitors. For example, a company may set up whitewater rafting or canoeing excursions or may simply provide canoes or rafts for rental. In any case, once a company is involved, they have some duty to their guests or patrons to look out for their safety.

Canoeing and whitewater rafting companies will usually have customers sign a liability release absolving them of liability in the event of injury. Even when a liability release is in place, however, this does not mean that victims of accidents cannot sue whitewater rafting or canoeing companies. Liability releases only help the company to avoid being responsible for customary and expected risks; releases don’t absolve them of all liability.

If a canoeing or white water rafting company is unreasonably negligent or careless in their acts or policies, then they can generally be held legally liable, even with a signed liability release. For example, a company that rents a canoe or allows a whitewater rafting excursion when they know the weather is bad and conditions are dangerous, or a company that uses equipment that is not properly maintained, can be held legally responsible for any damages caused by their actions.

The injured victim will need to show that the company was responsible in some way that is not covered by any liability release. If he or she succeeds, the victim can obtain compensation including payment of medical bills and lost income as well as damages for pain and suffering and other loss.
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It seems as though the holiday shopping season gets crazier with each passing year. Bigger sales. Bigger discounts. Bigger crowds.

premises liability lawyers in Knoxville frequently see cases stemming from injuries sustained during the holiday shopping season. Whether it’s traffic accidents, injuries at home or accidents that occur in shopping malls, restaurants or on business property, the holidays can be a dangerous time.

Tennessee premises liability claims may include:

-Elevator and escalator accidents

-Crowd injuries

-Slip and fall accidents

-Dog bites

-Parking lot injuries

-Sidewalk or stairwell accidents

-Theater injuries

-Assault/negligent security

-Evacuation injuries

-Merchandise falling from shelves

The Knoxville News Sentinel reports more than $52 billion was spent during last year’s holiday shopping season. And, as retailers continue to try to outdo each other, serious and even fatal injuries have been reported.

For the past several years, the Occupational Safety & Health Administration has issued a bulletin warning employers of the risks.

Business owners incur a special obligation for the safety of employees and customers when promoting outrageous bargains that are likely to draw intense public interest. In such cases, barricades, rope lines and other crowd-control measures should be implemented. Emergency plans should be in place and security guards may even need to be hired.

“Crowd control and proper planning are critical to preventing injuries and deaths,” said Dr. David Michaels, assistant secretary of labor for occupational safety and health. “OSHA urges retailers to adopt a crowd management plan during the holiday shopping season that includes a few simple guidelines.”

Likewise, store owners, mall managers and property owners have an obligation to provide safe passage for customers and guests. Those who are injured may be entitled to compensation for medical bills, lost wages, pain and suffering and other damages.

The determining factor in a premises liability claim is whether a defendant enterprise was negligent in not properly managing the risk. Collection of damages is likely when an injury victim can prove a property owner knew, or should have known, about the presence of a dangerous condition. Business owners face a higher burden than private property owners, where a victim’s ability to collect depends on their status as an “invitee,” “licensee” or “trespasser.”

Critical in such cases is contacting an experienced Knoxville premises liability attorney as soon as possible in the wake of an injury accident. Typically, property and business owners move quickly to make repairs once an injury accident has occurred. Documenting the location of your accident, talking to witnesses and determining the availability of surveillance footage or other evidence can have a dramatic impact on the outcome of your case.

As we reported recently on our Tennessee Injury Attorney Blog about fall accidents, comparative negligence law in Tennessee allows a victim to collect damages even if he or she was partially at fault.
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Holidays are a dangerous time for slip and fall accidents and other premises liability cases in Tennessee.

Beginning with the leaf-peepers and other tourists in October and November, Knoxville personal injury attorneys understand a host of factors contribute to the increased risk of fall accidents.

While Tennessee is not exposed to the brutal winters endured by our northern neighbors, snow and ice accumulation can also increase the risk of a fall accident. And every few years, we experienced significant snowfall and accumulation, according to the National Weather Service. In fact, more than a foot of snow fell in 2011.

The holidays are upon us. Just three weeks until Thanksgiving and the hectic six-week, year-end holiday season that follows. Businesses have an obligation to provide customers and invited guests with safe passage.

Tennessee law permits those who suffer a fall injury due to a negligent condition on business or private property to collect compensation for medical bills, pain and suffering, lost earnings, disability benefits and other damages.

Premises Liability Claims in Tennessee

-Wet or slippery floors

-Broken handrails

-Dark or dangerous stairwells

-Elevator and Escalator accidents

-Dog bite/animal attacks

-Dangerous parking lots

-Merchandise falling from shelves

-Assault

-Negligent security

-Evacuation injuries

The Tennessee Supreme Court has abolished the doctrine of contributory negligence, which might otherwise prevent a claim by a plaintiff who is partially at fault. McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). However, the state has instead adopted a form of comparative negligence, or comparative fault, which may limit or even eliminate your ability to collect damages. Under state law, a plaintiff may only collect damages if the defendant’s negligence is greater than their own.

It’s common for property or business owners to quickly repair a dangerous condition in the wake of an accident. So it’s important you contact an experienced personal injury attorney in Knoxville as soon as possible after an injury accident has occurred. Conducting a thorough investigation in the immediate aftermath of an incident can help prove your case.

Knoxville Nursing Home Falls

Knoxville nursing home neglect attorneys would also encourage you to pay special attention to the conditions of local nursing homes and assisted-living facilities during holiday visits. This is prime time for these facilities, so if you see unsanitary conditions, lack of staffing or other warning signs, you can bet conditions are typically even worse for residents at other times of the year.

While it’s true our most fragile older adults often reside in these homes because of their need for increased care and supervision, it’s also true that short staffing, high turnover and inadequate training frequently result in resident neglect.

Fall accidents are epidemic in nursing homes. The National Institutes of Health reports the average 100-bed nursing home reports 200 falls a year. Many more falls go unreported.

These falls kill about 1,800 residents a year. Even outside nursing homes, older residents are most at risk. About 1.5 million senior citizens suffer a fall accident each year — that number is expected to double to 3 million by 2030. Broken bones, broken hips, broken hands, and traumatic brain injury commonly result.

In fact, fall accidents are the leading cause of fatal injury accidents among those over the age of 65. And those who recover physically may suffer from the reduced mobility that often comes with a fear of falling.
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