Tennessee Injury Lawyer Blog

In addition to the General Assembly’s modification of the case re-opening statute, several other changes were introduced or enacted in the summer of 2009. This entry serves to provide some basic information on these changes and proposals. The following discussion is not exhaustive and does not discuss the implications of the new Tennessee workers' compensation laws.

The State Legislature passed the “Overstreet Bill”, which replaces provisions found in TCA 50-6-204(a). The goal of the bill is to increase the efficiency of resolving workers’ compensation claims by establishing procedures for “reasonable” access to a worker’s medical records.

As introduced, a bill has been introduced that will limit compensation for an injury or death that occurs during a voluntary recreational activity. While the law provides that workers’ compensation only covers work-related injuries, this new bill, as introduced, specifically limits compensation for injuries sustained during recreational activities to those activities where participation was expressly required or where the employer derived a “substantial benefit from the activity beyond the intangible value of improvement in employee health and morale.”

An amendment has also added a new provision to TCA 50-6-241 in which an illegal immigrant worker’s maximum permanent partial disability benefits is capped at 1.5 times his/her assigned medical impairment rating. The new law applies to injuries occurring after July 1, 2009, and only applies if the employer did not knowingly hire the employee at a time when the employee was not eligible or authorized to work pursuant to federal immigration laws.

Continue reading " Other Workers' Compensation Law Changes for 2009 " »

TCA 55-8-136 also tells Tennessee drivers that they must “exercise due care to avoid colliding with any other motor vehicle…by keeping the vehicle under proper control…under the existing circumstances…”

Maintaining a vehicle under proper control means operating the car or truck in such a way as to avoid known dangers and unknown dangers that can reasonably be avoided. Known dangers include what the driver sees or should see, such as a ''signal ahead'' warning sign or cars stopped on the roadway waiting to turn. Unknown dangers include all dangers that are reasonably foreseeable—i.e., those dangers that have a likelihood of occurring given a particular course of action.

The amount of control a driver must maintain is what is reasonable under the circumstances. This is a factual question and therefore left to a jury to decide. While related to the driver’s other duties—such as reasonable rate of speed and proper lookout—control means most often the driver’s ability to stop the vehicle quickly and safely. The measure of control required is thus a question of whether the driver had sufficient control over his vehicle to reduce speed to avoid an accident.

Continue reading " Duty to Maintain Vehicle Under Control " »

A driver’s duty to exercise due care while operating a motor vehicle on a Tennessee road or highway encompasses a wide array of more specific duties. One such duty is the driver’s responsibility to drive at a reasonable speed under the circumstances to help prevent a car accident in Tennessee from occurring.

A speed limit—whether posted or not—is strong evidence of the standard of care owed to others, but it is not conclusive. The standard of care owed is based on the reasonableness of the driver’s behavior under all circumstances. Just because the speed limit says 65 mph does not mean that it is reasonable to drive 65 mph during inclement weather conditions. Severe weather conditions requiring drivers to adjust speed include rain, snow and presence of “black ice”. Sun glare, traffic congestion and presence of pedestrians may also require drivers to reduce their speed.

This duty of due care, in fact, is enshrined in Tennessee’s rules of the road. TCA 55-8-136 reads:

“Notwithstanding any speed limit or zone in effect at the time…every driver of a motor vehicle shall exercise due care to avoid colliding with any other motor vehicle…by devoting full time and attention to operating the motor vehicle, under the existing circumstances to avoid endangering life, limb or property.”

Continue reading " The Duty to Drive at a Reasonable Speed " »

In July of 2009, the Tennessee General Assembly made several key changes to the workers’ compensation statutes. One key change involved modifications to TCA 50-6-241, which is the provision governing re-opening a case for reconsideration of industrial disability.

In most cases, workers' compensation in Tennessee for an injured employee will be reduced if he or she returns to work for the same rate of pay. But, once the worker loses her job through no fault of her own, she can file to re-open the case for more money if she does so within one year of losing her job.

A problem arises when your employer changes ownership. Does the employee lose his right to re-open the case if the employer sells the business and the employee fails to file a claim within one year of selling the business? The new law seems to answer this question in the negative.

According to the Legislature’s summary notes, the new law provides that “any employee who retains the right to reconsideration of an award of permanent partial disability benefits for a workers' compensation injury that occurs on or after July 1, 2009, and whose pre-injury employer is sold or acquired after such award is made, may seek reconsideration from the successor employer if either the employee's employment with the successor employer is involuntarily terminated through no fault of the employee or the employee's rate of pay is reduced to a level below the rate of pay that the employee had at the time of the injury.”

Continue reading " Re-Opening a Workers' Compensation Case After Losing Your Job in Tennessee " »

A widely distributed defective gaming product has fallen into the hands of several children and adults across the state of Tennessee and throughout the nation. The Griffin International Wii Battery Recharge Station presents a risk of burn and fire hazard due to a defect in the battery pack that can cause it to overheat.

Over 220,000 units have been sold nationwide under the Psyclone Essential and React brands. They were sold at Target, Toys R Us and Amazon.com, but are likely still available for sale on internet auction websites and in used merchandise outlets.

So far, six incidents of overheating and two incidents of minor burns to the hand have been reported to the company and brings up valid concern regarding product liability.

The CPSC urges consumers of the product to stop using it immediately. The Wii 4-Dock Recharge Station includes a white docking station with four recharge stations and a four rechargeable battery pack.

Continue reading " Griffin International Recalls Wii Battery Recharge Stations " »

Parental Liability for Minors Operating Motor Vehicles in Tennessee

Before a minor can receive an instruction permit or driver’s license, the application for licensure must be signed under oath by a parent, stepparent, grandparent or guardian. By signing the application, the parent or guardian assumes financial responsibility for the child’s driving behavior and also agrees to file proof of insurance on behalf of the minor until he or she reaches the age of 18. Failure to provide insurance verification will result in the cancellation of the minor’s driving privileges.

Included in the responsibilities assumed by the parent or guardian is the imputation of civil liability onto the signatory for any negligent or willful misconduct for which the minor driver is responsible. If, for example, the child was involved in a Tennessee motor vehicle accident and alcohol was involved, the parent would be liable for any and all damages resulting from the child’s reckless driving.

Even if a parent or other family member did not sign off on the child’s application for licensure, the parent can still be liable under the theory of negligent entrustment. In a Tennessee motor vehicle accident, a parent or guardian may be legally responsible for the fault of his or her child driver if:

1. the parent or household member gave permission to the minor to use the vehicle; and


2. the incompetence of the minor was the legal cause of the injuries to the plaintiff.

Continue reading " Parent and Guardian Liability for the Acts of Their Children: Part III " »

Following up on the CPSC’s release of its top ten list of defective child products, this blog entry provides details on the remaining five.

• Polly Pocket Dolls with Magnets: Small magnets inside the dolls and accessories can come loose. These magnets present a choking hazard. Each small magnet can also attract to other swallowed magnets, causing intestinal perforation or blockage. There have been 3 serious injuries reported.


• Simplicity Drop Side Cribs: The sides of this crib can detach, creating space between the drop side and the crib mattress. Infants and toddlers can get into this space and become entrapped, leading to strangulation and other severe injuries. The CPSC has received 10 reports of infant wrongful death associated with this crib.


• Simplicity Bassinets: These Simplicity 3-in-1 and 4-in-1 convertible bassinets contain metal bars that are covered by an adjustable fabric flap, which is attached by velcro. If the velcro is not properly secured when the flap is adjusted, an infant can slip through the opening and become entrapped between the metal bars and suffocate. There have been at least 3 deaths associated with these bassinets.

Continue reading " CPSC Releases Top Ten List of Defective Children’s Products: Part II " »

The U.S. Consumer Product Safety Commission (CPSC) announced this week its top ten list of recalled children’s products that have either caused significant injuries to children and/or child death. If a loved one has been injured by any one of these products, you and/or your loved one may have a personal injury or wrongful death claim against the manufacturer or vendor of the product—but only if you act immediately.

The list of the first five recalled child products is provided below. See tomorrow’s blog entry for information on the next five.

• Playskool Travel Lite Play Yards: Side rails of the portable crib fold during use, creating a risk of entrapment and suffocation. Three deaths have been reported.


• Evenflo Happy Camper Play Yards: The play yard can collapse and trap the child in the “V” formed by the collapsed top rails. Additionally, the rotating plastic hinges can crack and break, presenting a sharp edge or allowing the child to escape. Three wrongful deaths have been reported.


• Baby Trend Home and Roam and Baby Express Portable Cribs and Play Yards: This defective product has been recalled because it too can collapse and entrap infants and toddlers. On January 2001, for example, a 9-month old baby died of asphyxiation when her neck was caught in the “V” created by the collapsed top sides. Three other strangulation/entrapment deaths have been reported in addition to three reports of babies who were found not breathing but later revived.

Continue reading " CPSC Releases Top Ten List of Defective Children’s Products: Part I " »

When a parent or spouse dies, it is a relatively simple matter to determine the financial loss to the family. The court typically examines the lost loved one’s current wages, support and services contributed, and earning potential. Survivors are then compensated accordingly.

However, when a child is fatally injured as a result of another’s negligent conduct, damages are more difficult to calculate. Essentially, what the jury must decide is what the child would have contributed to the parents’ support had he or she lived. Quite obviously, the amount determined is mere speculation. Nevertheless, it is the jury’s task to determine the amount of such award for a wrongful death in Tennessee based upon such factors as the age of the child, expected life span, health and habits, earning potential and work expectancy.

In addition to loss of support, parents of a deceased child are also entitled to the child’s medical and funeral expenses, any mental and physical suffering of the child, loss of the child’s time, and all other necessary expenses resulting from the negligent conduct.

Continue reading " Parental Compensation for Wrongful Death of a Child in Tennessee " »

From time to time, we report on defective products in Tennessee that were recalled some time ago. We do this for a number of reasons, three of which are discussed here. First, after-market vendors in Tennessee and throughout the United States continue to sell products that are known to be dangerous to consumers. Awareness of product safety is your first-line defense against dangerous products.

Second, as the number of online purchases increase, so too does the potential for people to purchase recalled, dangerous goods.

Third, on August 14, 2008, the President signed the Consumer Product Safety Improvement Act of 2008 (CPSIA) into law, which prohibits sellers of used products from selling products subject to recall. Thus, under the new law, resale vendors who knowingly sell a recalled product are civilly liable under federal law to plaintiffs who have been injured as a result of a dangerous and defective product.

The key to the federal claim is proof that the vendor had knowledge that the product was recalled. With the increased efforts of the CPSC to inform resale vendors of recalled products, it should be harder for defendants to claim they didn’t know.

Continue reading " Resale Vendors Civilly Liable under Federal Law for Injuries Resulting from Recalled Products " »

Negligent Conduct by Child, Negligent Supervision by Parents
Under Tennessee common law, parents are not automatically liable for the actions of their children unless the parent negligently supervised the child.

In order for a parent to be held liable for the dangerous habits of his or her minor children causing Tennessee personal injuries and damages to others, the plaintiff must show that:

1. the parent had the opportunity and ability to control the child, and


2. the parent had knowledge, or in the exercise of due care should have had knowledge, of the child's habit, propensity or tendency to commit specific wrongful acts, and


3. the specific acts would normally have been expected to cause injury to others, and


4. the parent failed to exercise reasonable means of controlling or restraining the child. Source: Henneberry v. Simoneaux, 2006 WL 2450138 (Tenn.Ct.App. August 22, 2006)

If a child negligently harms another and evidence shows that, more likely than not, the parents negligently supervised the child, then the parents will be liable for not only actual damages, but all other damages recognized by law, including pain and suffering, loss of consortium and punitive damages.

Continue reading " Parent and Guardian Liability for the Acts of Their Children: Part II " »

Believe it or not, mom and dad may be more liable for negligent supervision of a child when the child’s wrongful actions are characterized as negligent rather than intentional or malicious. Essentially, a complaint that alleges negligent parental supervision resulting in the child’s intentional wrongful conduct is limited by statute to $10,000 in actual damages, but a complaint that alleges negligent conduct has no cap on the amount of damages that can be recovered.

In fact, in Lavin v. Jordan, a case decided by the Tennessee Supreme Court, the parents of Troy Lavin, who was shot to death by Sean Jordan, attempted to sue Sean’s parents for two million dollars based on their alleged negligent supervision of Sean. According to the complaint, Sean’s parents were negligent in failing to control and police Sean despite their knowledge that he possessed weapons. The defendants allegedly were informed by their neighbor that Sean had broken into her home and stole several rifles and shotguns. The complaint also alleged that Sean’s mother overheard a telephone conversation in which her son admitted to stealing weapons from the neighbor and hiding them near their house. In fact, Sean later admitted that the .22 caliber rifle used to kill Troy Lavin was one of the weapons he stole. Based on these facts, the court limited the plaintiffs’ damages to a $10,000 statutory cap.

Continue reading " Parent and Guardian Liability for the Acts of Their Children: Part I " »

TCA 49-6-2008, originally enacted in 1981, creates a special civil cause of action against anyone who intentionally assaults educational personnel, such as a teacher or principal. On the surface, this statute seems unnecessary since anyone who is injured in the state of Tennessee has a cause of action against someone who committed an intentional act against him or her. However, remedies are expanded under the statute.

A person who commits an intentional assault on educational personnel are liable for three times the amount of total damages, attorneys fees and, if applicable, punitive damages. If, for example, a parent intentionally assaults a teacher and causes $1,000 in medical bills and associated costs, that parent will be liable for $3,000, plus attorney’s fees. If the parent’s behavior is especially egregious, the liability could exceed $10,000.

All too often, teachers and other educational personnel are assaulted by students. Since students don’t have a lot of money, they don’t make good candidates for tort recovery. In this instance, plaintiffs often look to the parents of the malfeasant child for the damages incurred. However, TCA 37-10-101 through 103 puts a cap on damages collectable from parents whose children commit intentional acts against others.

Continue reading " Assault on Educational Personnel " »

If you are injured at work while under the influence of a drug or alcohol and a drug test is performed proving that fact, your employer will likely deny you Tennessee workers’ compensation benefits. However, with proof that your accidental injury was caused by something else, your right to compensation can be restored.

Under T.C.A. 50-6-110, no compensation is allowed for an injury or death due to intoxication or illegal drug usage. The cause of injury due to intoxication or drug use is presumed if, at the time of injury:

• the employer had in place a drug-free workplace policy; and


• the employee blood alcohol concentration was equal to or greater than .08% and the employee worked in a non-safety sensitive position, or equal to or greater than .04% and the employee worked in a safety sensitive position.

The same is true if a blood test reveals the presence of a drug in the employee’s system. Drug tests often check for marijuana, cocaine and many prescription medications.

A worker can also be denied coverage if he or she is injured and subsequently refuses to take a drug test.

The law, however, allows workers to “rebut” the intoxication “presumption” whenever there is evidence that the TN personal injury was caused by something other than the employee’s ingestion of drugs or alcohol. This means that the employer only has to prove a positive drug test to shift the burden onto the employee to prove his or her intoxication did not cause the accidental injury.

Continue reading " Workers’ Compensation Defense in Tennessee: Alcohol and Drugs " »

When a security guard is killed at work, his or her surviving spouse, or spouse and children are entitled to death benefits if the employment is covered under Tennessee’s workers’ compensation law. These benefits are payable to an employee's survivors based upon a percentage of the employee's wages. The benefits are subject to a cap, but mandatory minimum benefits are provided regardless of the employee’s earnings. Burial allowances are also provided.

A security guard is also likely covered for any injuries he or she sustained as a result of a work-related injury. Lost wage benefits depend on the nature and extent of injuries, but, injured workers are typically entitled to medical and temporary disability benefits.

The benefits afforded to security guards and their families are good news given the risks associated with security work. In June, the Bureau of Labor Statistics released an important fact-sheet on work-related hazards for security guards. The report is based on sampling data for injuries, illnesses and fatalities sustained by security guards for the year 2007. According to the report, security guards face hazards different from that of the average worker. These hazards make security guards more likely than other workers to be fatally injured while working, but less likely to sustain a nonfatal injury or illness.

Continue reading " Injured Security Guards and Families Entitled to Workers’ Comp in Tennessee " »

A widely distributed product, Sevylor’s Tow Behind with Quick Hitch Connectors, has been recalled because the part that connects the towable to the boat—the Quick Hitch—can break and project pieces of plastic back towards the boat at high rates of speed. If this happens, people on the boat can be struck by plastic parts and seriously injured.

Since 2005, roughly 94 thousand of these Tow Behinds have been sold under various model numbers and descriptions. They were sold in department and retail stores in Tennessee and throughout the nation for between $50 and $240. Go to the Consumer Product Safety Commission’s website for more details on defective products.

Continue reading " Sevylor’s Tow Behind with Quick Hitch Connectors Recalled " »

This blog entry provides summary information on a sudden rash of defective toys and products that present serious risks of injury to children across the state of Tennessee. If you possess any of the following defective products in Tennessee, stop using the product immediately and either return the item or call the manufacturer for more details.

Please note that the following is not an exhaustive list or description. Go to the Consumer Product Safety Commission’s website for more details on the recent recalls.

Burlington Northern recalled several Boy’s Hooded Sweatshirts with Drawstrings and Warm up Sets due to a strangulation hazard posed by the drawstring.

A recall has also been issued on Little Tikes’ Clubhouse Swing Sets due to a fall hazard. These swing sets were recalled because directions were not provided for assembly of the swing set harness. If the harness is not assembled correctly, the child can come out of the harness and fall to the floor.

Due to a laceration hazard, BabySwede recalled its Bouncer Chairs that were sold at retail outlets nationwide. Small metal objects have been found in the padding of the bouncer chair and can cut the child.

Continue reading " Rash of Defective Child Toys and Products in Tennessee " »