Tennessee Injury Lawyer Blog

A tort is simply a wrongful action that causes injury to another. There are two broad categories of torts: negligent torts and intentional torts. As discussed elsewhere on this blog and on the Baker Associates website, negligence occurs when a person’s conduct falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. An intentional tort, on the other hand, occurs when a person intentionally desires to cause a personal injury or acts with substantial certainty that a personal injury in Tennessee will occur as a result of the person’s conduct.

Broadly speaking, the plaintiff must prove four things in order to establish liability based on an intentional tort theory:

• Intentional conduct,


• Unlawful action,


• Causation, and


• Harmful or offensive contact.

There are several types of intentional torts. Each one will be discussed in detail in future articles posted on this blog. They are:

• Assault,


• Battery,


• Defamation (slander and libel),


• False imprisonment,


• Privacy torts, and


• Intentional infliction of emotion distress (IIED).

Continue reading "Overview of Intentional Torts in Tennessee" »

Last month, the Obama administration announced the launch of its new website, www.foodsafetyworkinggroup.gov, in the wake of the salmonella outbreak associated with products containing peanuts distributed by the Peanut Corporation of America. The new website tracks the efforts of the administration’s efforts to increase detection and awareness of food-borne illnesses causing personal injury in Tennessee and across the United States.

Some recommendations from the May 13, 2009, listening session include increasing funding for local monitoring of food-borne illnesses, integrating the FDA’s and USDA’s food safety efforts, revamping the FDA’s mandatory recall authority, increasing enforcement against retailers, and implementing more aggressive consumer warnings.

The administration’s new efforts may likely lead to greater legal exposure for food sellers. In food products liability cases, for example, it is very difficult to link a food-borne illness to the food that was consumed. With bolder initiatives, such as implementing technologies that can improve sampling of food products for microorganisms, it may be easier to identify the disease-causing food and detect more outbreaks of food-borne pathogens.

Continue reading "Food Safety Working Group May Lead to Increased Detection of Food-Borne Illness Outbreaks" »

Prior to the enactment of Tennessee Worker’s Compensation laws in 1919, employees could sue their employers for injuries caused by their employer’s negligence. In such suits, the employer could defend against the suit using the common law defense of contributory negligence.

The defendant asserting contributory negligence alleges that the plaintiff’s own fault contributed to the accidental injuries. Barring a few doctrinal exceptions, if the jury found the plaintiff to have contributed in any way to the accident, his or her claim would be precluded by operation of law. The harsh effect of the common law doctrine, however, was changed with the implementation of the modern comparative fault system. Basically, if the jury finds that the plaintiff contributed to the accident, the jury assesses the percentage of fault attributable to the plaintiff and then reduces the damages award accordingly.

Under the modern workers’ compensation system, the employer is precluded from asserting comparative fault if the work accident falls within the “coverage formula.” A claim falls within the coverage formula when the employee sustained an injury by accident or occupational disease arising out of and in the course of employment. If the accident or personal injury does not fall within the coverage formula, there is no assessment of fault for either the employer or employee unless there is an allegation of intentional conduct.

Continue reading "Tennessee Workers’ Compensation and Comparative Fault" »

When people are injured and/or suffer wrongful death in Tennessee due to a drunk driver, they are often left without a sufficient civil remedy because the drunk driver had no ability to pay and the victim’s insurance didn’t cover all the damages. But what about the restaurant, bar or club that sold or furnished the drunk driver with alcohol? Can they be civilly liable in Tennessee?

It depends. Under T.C.A. § 57-10-101, the General Assembly codified the common-law rule providing that the legal cause of injuries in a Tennessee car wreck involving alcohol is the consumption rather than the furnishing of alcohol. In other words, the statute makes it impossible to sue the parties that furnished or sold the alcohol to the drunk driver because furnishing alcohol by itself cannot be the basis for liability.

However, T.C.A. § 57-10-102 provides two exceptions where alcohol is sold to a person who later causes an accident by virtue of his or her consumption of alcohol. The first exception applies to restaurants, clubs or bars who sell alcoholic beverages to persons known to be under the age of twenty-one. The second exception applies when the beverage was sold to a person who was “obviously intoxicated and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage.”

Continue reading "Liability of Tennessee Bars and Restaurants for the Actions of Drunk Drivers" »

According to legislative findings, it is estimated that approximately 2 percent of adults and about 5 percent of infants and young children in the United States suffer from food allergies; and, each year roughly 30,000 people require emergency treatment. Approximately 150 individuals suffer wrongful death each year because of allergic reactions to food. This life-threatening condition is called anaphylaxis.

The Food Allergen Labeling and Consumer Protection Act requires food manufacturers in Tennessee and elsewhere to identify any of the eight major allergens associated with food. The listed food allergens are milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, and soybeans. An inaccurate communication about ingredients not actually present in the food may not give rise to liability; however, where an item is sold without proper warning, the manufacturer and/or seller may be liable for damages relating to any illness or injury created by a failure to warn of a defective product in Tennessee.

In fact, this is precisely why McDonald’s got into some trouble in February of 2006 when it admitted on its website that its French fries contained wheat after it had previously posted that its fries were “gluten-free.” After the post, a number of people suffering from celiac disease filed lawsuits for the injuries they sustained allegedly caused by the ingestion of McDonald’s fries.
More relevant to consumers in Tennessee, this week the manufacturer of Le Pain Quotidien’s Noir Belgian Dark Chocolate Spread recalled a number of its 14.15 oz. jars of Noir Belgian Dark Chocolate Spread because the product contains undeclared milk. Some people have allergies to milk and run the risk of a serious life-threatening reaction if they consume it.

If you, or someone you know, has been injured or made ill by a food ingredient that was not properly labeled, you may have an opportunity to seek damages or compensation. Restaurant owners and food manufacturers have a duty to clearly communicate to you any of the major eight food allergens that might be contained in their food product. If they fail to warn you of the food allergen, they are in violation of Tennessee’s product liability statutes. If injured, you should communicate with an experienced Sevierville product liability attorney who has the knowledge and resources to investigate your claim. Call Baker Associates today at 866-853-2888.

Defects in electrical and gas appliances can cause serious personal injury in Tennessee to residents. When something goes wrong internally in these appliances, components can overheat, burn, and emit formaldehyde vapors. For example, formaldehyde resin is used to insulate electrical components in stoves. If there is a malfunction in the stove, the insulating material can burn and unleash toxic vapors into the air.

Everyone is exposed to formaldehyde to some degree. It is found in such products as Latex paint, fingernail hardener and polish, plywood and particle board, electronics, fiberglass, carpets and fabrics, food, household cleaners, and cigarettes. While exposure in small amounts is not necessarily toxic, too much exposure can cause some serious problems.
You cannot detect formaldehyde if you are exposed to only small amounts. At higher concentrations, however, it has a strong, pungent odor and may cause a burning sensation to the eyes, nose, and lungs. Adverse reactions to exposure vary from person to person depending on their individual sensitivity.

Symptoms of toxic exposure to formaldehyde caused by defective products range from mild to serious. They include:

• irritation of the eyes along with increased tearing,


• nose irritation,


• throat irritation,


• aggravation of asthma,


• severe pain,


• vomiting,


• skin rash/burn, and


• coma.

Over-exposure may also lead to cancer, according to the International Agency for Research on Cancer. Parkinson’s disease has also been found to be caused by overexposure to toxins in the air.

While research on formaldehyde exposure is ongoing, some standards and guidelines have been issued by governmental agencies. For example, the Agency for Toxic Substances and Disease Registry has set minimal risk levels for short term inhalation of formaldehyde at 40 parts per billion (“ppb”) and 8 ppb for long term inhalation. In a case we are currently investigating, an air sample of a home showed 95 ppb of formaldehyde in the air and 53 ppb acetonitrile (which can be metabolized in the liver to produce formaldehyde). The residents currently suffer from many of the symptoms described above.

Your health and the health of your loved ones may be in danger if you own a stove made by Electrolux, Tappan, or other brand and have noticed a strong, pungent odor during use of the stove. If you are experiencing serious adverse health effects as a result of a defective stove or other appliance, we can help. Please consult one of our experienced Tennessee products liability attorneys at Baker Associates by calling 866-853-2888. There is no charge for a case evaluation.

Believe it or not, negligent drivers in Tennessee parking lots can be held liable for the damage they cause. It is often stated, “If you’re hit in a parking lot, you’re out of luck.” This just simply isn’t true. If someone owes you a duty to exercise reasonable care and that person breaches that duty, they are liable to you in damages for any injuries resulting from the negligent conduct. The law, however, frowns on those who sleep on their rights. In Tennessee car wreck cases, for example, the statute of limitations is only one year! Thus, the correct statement is: “You’re out of luck if you don’t do anything about your wreck.”

What you should do if you’re involved in a Knoxville auto accident in a parking lot:

• If someone is injured, call 911.


• Call the police.


• Call your insurance company.


• If you have a camera (such as the one on your cell phone), take pictures of the accident.


• Exchange information with the other driver. Get his or her name, address, phone number and insurance information.


• Get the name, address and telephone number of anyone who may have witnessed the accident.


• Apprise yourself of the date, time and location of the accident. Make a note of the condition of the parking lot and lighting. Note also the weather conditions.


• Call a Tennessee motor vehicle accident attorney at Baker Associates if you or a loved one is injured or the automobile damage is extensive.

Why should you call a motor vehicle accident attorney? Full compensation for your injuries and property damage will likely rest on your ability to prove fault. Fault in a parking lot accident is attributable either to you, the other driver, or the owner or lessee of the parking lot. Without counsel or someone who will advocate for you, determining fault just might be an impossible task.

Knoxville's experienced personal injury lawyers at Baker Associates have the methods and means to assist you in your car accident case by proving fault and engaging the legal system to ensure that your rights are exercised. The consultation is free. Why wait? Call 866-853-2888 today.

A Knoxville wrongful death accident befell an apartment community when a 4-year-old boy drowned after falling into a pool owned and maintained by a nearby apartment complex.

According to KnoxNews.com, the 4-year old and his 7-year old cousin and another 9-year old boy trekked about a mile to get from their neighborhood to the pool. When they got there, they noticed that the gate was unlocked and so they entered. It is unclear whether the pool was yet ready for summer use.

Sometime later, the 4-year old became submerged. The other boys called for help, but it was too late by the time nearby residents were able to assist.

Due to the age of the children and the fact that the gate was unlocked, the landlord may liable under Tennessee premises liability laws. First, local regulations applicable to public pools typically require that pool gates be locked when not in use. If the landlord violated a similar regulation applicable to pools in the area, then the landlord or owners may be liable for (per se) negligence.

The landlord may also be liable under the Tennessee attractive nuisance doctrine, which basically states that a landowner may be held liable for injuries to children who trespass on the land of others if the injury is caused by a hazardous object or condition on the land that is likely to attract children—typically under 12—who are unable to appreciate the risk posed by the object or condition.

The five conditions that must be satisfied to make out a case of attractive nuisance are:

• the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and


• the condition is one which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily injury to such children, and


• the children, because of their youth, do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and


• the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and


• the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

In addition to swimming pools, the attractive nuisance is used to hold landowners liable for abandoned cars, piles of lumber and trampolines.If your child or a child you know has been injured because of an attractive nuisance, call the skilled and experienced Knoxville personal injury attorneys at Baker Associates. Dial 866-853-2888 for a free consultation.

Did you know that if you have been injured in a Tennessee car accident, you may have a cause of action against both the driver and the owner of the vehicle? In fact, there are at least three possible legal theories that you can use to bring the owner of the vehicle into the lawsuit when he or she was not the actual driver. These theories include the family purpose doctrine, respondeat superior, and negligent entrustment. Of the three, I discuss negligent entrustment here.

In Tennessee, liability may attach to persons who entrust potentially dangerous personal property to those considered too incompetent to handle the responsibilities that go along with possession of that property. For example, a person who gives (entrusts) his car keys to someone whom he knows is intoxicated may be liable if the intoxicant subsequently is involved in an auto accident that causes serious personal injury in Tennessee to another.

The above-described theory is called negligent entrustment. In a Tennessee motor vehicle accident, an owner is legally responsible for the fault of another under a negligent entrustment cause of action if:

1. The owner gives permission to the person to use the vehicle; and


2. The owner knows, or from the facts known to the owner should know, that the user is under the influence of intoxicants or drugs, a reckless driver, or is otherwise incompetent; and


3. The intoxication, recklessness, or incompetence of the person permitted to use the vehicle is the legal cause of the injuries to the Plaintiff.

It should also be noted that negligent entrustment is not just limited to vehicles but has been extended to other things considered to be inherently dangerous. For example, in a case recently decided by a Tennessee court, a gas station was held liable for negligent entrustment of gasoline when the attendant permitted a driver to pump gas when he knew that the driver was intoxicated.

If you have been injured in a Tennessee motor vehicle accident, there are several legal options available to you. To learn more about these options, call 866-853-2888 today to speak with a skilled Sevierville auto accident lawyer from Baker Associates.

In our ongoing efforts to keep you informed about the risks associated with prescription and over-the-counter medications and dietary supplements, the Knoxville personal injury attorneys at Baker Associates today wish to provide you with information regarding a recent FDA warning. On June 4, 2009, the FDA warned health care professionals about the risk of serious liver injury associated with Propylthiouracil treatment.

Propylthiouracil is an anti-thyroid medication administered for the treatment of Graves' disease. Graves' disease is an autoimmune disorder that leads to over activity of the thyroid gland. The thyroid gland is located in the front of the neck just below the Adam’s Apple. It releases hormones that regulate the rate of the body’s metabolism and is critical for body temperature control, energy, weight, mood, and blood calcium levels.

The FDA issued the warning after analyzing adverse event reports, which showed that a number of individuals with Grave’s disease had sustained serious liver injury while taking the Propylthiouracil treatment.

A standard of care for physicians administering Propylthiouracil therapy seems to be developing. According to Amy Egan, M.D., "health care professionals should carefully consider which drug to initiate in a patient recently diagnosed with Graves' disease. If Propylthiouracil therapy is chosen, the patient should be closely monitored for symptoms and signs of liver injury, especially during the first six months after initiating therapy." Failure to follow this standard of care, could give rise to a cause of action for medical malpractice in Tennessee if it is also the standard of care adopted by Tennessee’s medical community.

According to medicinenet.com, patients with serious liver disease develop symptoms that include:

• fatigue,


• weakness,


• vague abdominal pain,


• loss of appetite,


• yellowing of the skin (jaundice)


• itching, and


• easy bruising.

You should consult a physician immediately if you are experiencing any of the above-listed symptoms. If upon diagnosis you learn that you have sustained a serious liver injury, you may be able to recover money damages for your medical bills, loss of income, and pain and suffering. For an experienced medical malpractice attorney in Knoxville, call Baker Associates at 866-853-2888.

In two previous articles, I have discussed how an employee’s misrepresentation of a physical condition or willful misconduct can operate to bar his or her otherwise valid workers’ compensation claim in Tennessee. In this article, the “notice defense” is discussed.

Under Tenn. Code Ann. § 50-6-201(a), workers’ compensation claims are barred unless:

• the employer has actual notice of an accidental injury, or


• the employer receives written notice within thirty days after the occurrence of the accident, or


• the employee has reasonable excuse for failing to provide such notice.

Actual Notice - Oral notice to a manager or supervisor is sufficient to constitute actual notice of an injury to the employer. For example, in the case Hotel Claridge, an employee sustained an injury to his leg when a board fell from scaffolding. He later went to lunch and shared news of his injury with the chief engineer without ever reporting the injury to an HR representative. The employer argued that proper notice was not provided, but the court disagreed stating that because the chief engineer had “charge of all the laborer employees of the hotel,…notice to him was notice to the employer.”

Written Notice - According to Tenn. Code Ann. §50-6-202, written notice must state the name and address of the employee, the time, place, and nature and cause of the accident, and must be signed by the employee. However, a subsection of this provision says that no defect or inaccuracy in the notice shall bar compensation, unless the employer can show that it was somehow prejudiced by the failure to give the proper notice.

Reasonable Excuse - Basically, the 30-day window to provide notice of a work-related injury in Tennessee does not start until the employee has knowledge of the nature and seriousness of the injury. Courts often find that an employee does not have knowledge of the nature and seriousness of the injury until his or her doctor informs the employee as such.

If your workers’ compensation claim has been denied based on an alleged failure to give adequate notice, you will want a skilled Knoxville workers’ compensation attorney who can help you prove that either 1) actual notice was provided, 2) you had a reasonable excuse for failing to provide notice, or 3) that the employer was not prejudiced by your failure to provide notice.

Let us hear your side of the story. Call 866-853-2888 to speak with a Tennessee personal injury lawyer.

In 1996, the U.S. Consumer Product Safety Commission (CPSC) issued a guideline for children’s clothing manufacturers to help prevent children from strangling themselves or getting entangled by the drawstrings of upper outerwear garments, such as jackets and sweatshirts. The guideline essentially cautioned manufacturers to replace drawstrings with snaps, zippers, hooks, or Velcro to help prevent any personal injury accidents from occurring.

The CPSC called drawstrings “hidden hazards” that can cause death and injury. The guideline referred to reports of drawstrings getting caught on playground equipment, bus doors, and cribs. The CPSC reported that from January 1985 through January 1999, there were 22 reported deaths and 48 non-fatal incidents involving the entanglement of children’s clothing. In one case, a girl was reported to have strangled to death when a drawstring on her coat got caught on a playground slide.

Despite the guideline’s warnings, the CPSC reports at least one manufacturer a month who is recalling a clothing product because of a potential strangulation or choking hazard. This week in fact, Pumpkin Patch recalled its hooded girls’ raincoats with drawstrings pursuant to the guidelines issued by the CPSC.

So far no injuries have been reported in connection with the Pumpkin Patch raincoats, but the CPSC advises parents to remove the drawstring or take the coat back for a refund.

If you have been injured and would like more information on defective products in Tennessee, please call 866-853-2888 or visit the Baker Associates website.