Tennessee Injury Lawyer Blog

It is an unfortunate fact in the world of commerce that many businesses can make more money by acting deceptively toward consumers than they can by being honest, at least as far as short term profits are concerned. For instance, car dealerships could make a lot more money on a vehicle if they were allowed to pass it off as a “new” car when it was actually a used vehicle. Tennessee has long recognized that such practices would inevitably take place in the absence of legislation designed to protect consumers. Thus, the Tennessee Consumer Protection Act of 1977 (TCPA) was adopted in order to protect consumers from unfair or deceptive practices.

Recently, the Tennessee Court of Appeals was confronted with the question of when a car could be considered “new” for purposes of application of the TCPA. A plaintiff had sued an automobile dealer, alleging fraudulent misrepresentation, negligence, and violations of the TCPA because the dealer had advertised the car sold to plaintiff as “new” although the car had 756 miles on the odometer at the time of sale and had suffered minor damage to the trunk while in transit to the dealer which had subsequently been retouched. The car had also been sold from one dealer to another dealer before eventually being sold to plaintiff.

Continue reading " Tennessee Consumer Protection Act: What is a "New" Car? " »

The family of an eighty year-old Connecticut woman who died after her chenille bathrobe caught on fire while she was making tea has sued the retailer on multiple grounds, including wrongful death. Chenille is perhaps most easily recognizable as the fabric used in the various patches and letters that are sewn onto letterman’s jackets. Apparently the woman was making tea in her home on February 12, 2005 when her bathrobe suddenly ignited, burning her severely. She died a couple of weeks later. A wrongful death suit is a “survival action,” meaning it can be brought by surviving dependents or relatives of the deceased since the deceased is not alive to bring suit. The lawsuit in this case is seeking thirty million dollars in damages (but keep in mind this is for all of the claims combined, not just wrongful death).

To prevail in a wrongful death lawsuit in Tennessee, a plaintiff must prove four things:

1. That the defendant’s conduct caused the death of the decedent;


2. That the defendant’s conduct was negligent;


3. That there are surviving dependents of the victim; and


4. That the dependents suffered some sort of loss (pecuniary or emotional) as a result of the death.

In the case referenced above, the family is also bringing a product liability claim against the manufacturer, so they are basically alleging that the bathrobe was defective, which caused it to ignite suddenly and kill the decedent. If the family is successful in proving wrongful death, they will have the right to recover three different types of damages.

Continue reading " Flammable Bathrobe Sparks Wrongful Death Lawsuit " »

The great thing about being a homeowner on Halloween is that you merely have to stock up on sweets and turn on an outside light in to be bombarded by hundreds of costumed candy-seekers. Likewise, the bad thing about being a homeowner on Halloween is that you owe a duty to everyone who legally steps foot onto your property to keep it free from defects or conditions that might cause injury, or else you face the risk of a premises liability lawsuit. Learning more about premises liability law in Tennessee may be a valuable idea, especially as Halloween approaches.

One common type of injury that give rise to Halloween-related premises liability lawsuits is injury from burns or exposure to heat or fire. Homeowners should be careful to make sure decorations on their property, both in-home and on the yard outside, do not expose small children to dangerously hot lights, surfaces, or to open flames. Also be sure the walkway or any other heavily trafficked area is free from obstacles like jack-o-lanterns that could potentially tip over and set fire to costumes or other materials that are highly flammable. Likewise, it would be advisable to check other possible fire hazards, such as electrical outlets to make sure everything is in an adequate and safe condition.

Continue reading " Halloween Increases Risk of Premises Liability Lawsuits " »

Auto accidents in East Tennessee are among the most common types of accidents that lead to personal injury lawsuits. Inherent in any lawsuit is the concept of damages, or, how much a party found to be at fault will have to pay. Courts basically award two types of damages in personal injury lawsuits: compensatory damages and punitive damages. Compensatory damages seek to compensate the plaintiff for what they have lost as a result of the accident, such as lost wages, medical expenses, etc. Punitive damages seek to “punish” the defendant, or deter them from engaging in similar conduct in the future.

Whenever you hear of what seems like an enormous amount of damages being awarded by a jury in a lawsuit, it is almost always as a result of a punitive damages award. While compensatory damages generally have set limits, because they can really only be awarded in the amount the victim has actually lost, punitive damages are not restricted in the same manner. Punitive damages can theoretically be awarded at whatever amount the jury feels is necessary to deter the defendant, or similarly situated parties who may someday become defendants, from engaging in such conduct in the future. Thus, it is the concept of punitive damages that is responsible for the common misconception that someone can simply sue another person for a minor indiscretion and “get them for everything they’ve got.”

Continue reading " Punitive Damages in Auto Accidents " »

Child support is often a contentious issue between divorced parents. Often the person who is owed support will feel like the parent who fails to pays child support is purposefully withholding the funds to punish the other parent or “get even” with them in some manner. Likewise, the parent who pays support might feel like the recipient is spending the money on something or someone else rather than using it to support the child. What parents sometimes fail to take into account is that the support is ordered because it is in the best interest of the child or children, and that once the order to pay child support is handed down by the court it must be obeyed like any other court order. Those who fail to obey a child-support order risk being found in contempt of court.

For a person to be held in contempt of court for failing to obey a child-support order, the prosecution must prove that the person had the ability to pay the child support in East Tennessee at the time it was due and that his or her failure to pay the child support was willful. While it may seem sensible to put the burden of proof on the party who is claiming inability to pay, Tennessee courts have held that a criminal contempt proceeding should be conducted like any other criminal trial and thus the burden is on the prosecution to prove beyond a reasonable doubt that the accused had the ability to pay and willfully failed to do so.

Continue reading " Failure to Pay Child Support: Criminal Contempt " »

When seeking to determine who should have custody of a child, Tennessee Courts will use what is known as a “best interest” analysis to decide who should serve as the child’s guardian. Under the best interest analysis, the court will look at a number of factors including love and affection for the child, ability to meet the child’s needs, stability of the family unit, and the prospective guardian’s parenting ability or potential. Tennessee child custody law also contains a statute mandating that certain persons be given greater consideration by the court in making the guardianship determination because of their relationship to the child. T.C.A. section 34-2-103 lists these parties in the following priority, from greatest priority to least: the parent(s) of the minor; the person(s) designated by the parent(s) in a will or other document; adult siblings of the minor; closest relative(s) of the minor; and everyone else. This is a sensible ordering emphasizing what is more than likely what is in the best interest of the child. However, this ordering is not determinative as to the issue of custody. In fact, this ordering will only be referred to in the event that the court’s own best interest determination results in a tie.

A recent case before the Tennessee Court of Appeals involved a custody dispute between a child’s maternal grandmother and paternal aunt. After the child’s father and legal custodian died, the mother was granted temporary custody. The paternal aunt then filed for custody based on the mother’s having mental health issues and the paternal aunt was awarded temporary custody. The aunt’s custody was then challenged by the maternal grandmother who alleged that the aunt had been traveling on business and left the child in the care of other people, and a custody hearing ensued. At trial, the Court found that the although both parties had performed well when caring for the child, the aunt was a person of great achievement and character who had been successful at raising her own children and could provide many opportunities for the child in this case. The Court also looked favorably upon the aunt’s willingness to transport the child to Florida to visit its biological mother and encouragement of the child in maintaining constant contact with its biological mother. The Court ruled that the aunt was clearly favored in the best interest analysis, and thus there was no need to resort to the “tiebreaker” statute of T.C.A. section 34-2-103.

Continue reading " Child Custody and the Tie-Breaker Statute " »

Severely belated paternity determinations aren’t just for the Maury Povich Show anymore. The Tennessee Court of Appeals recently heard a case where the mother of a five year-old child filed a petition for paternity against the man who had been her paramour during her recently failed marriage. The child was born to the mother in November of 2000 and she held out to her husband that he was the father of the child until DNA testing conducted during the divorce in March of 2005 excluded the husband as a possible father. The mother filed the petition for paternity against the paramour in September of 2005, alleging that the two had engaged in an affair for approximately ten years. DNA testing revealed that the paramour was indeed the father of the five year-old. In July of 2007, the trial court entered an order naming him the father. The ensuing award of child support was a point of contention.

In a situation like the one in the instant case, where the paternity of a child is established long after the child’s birth, the Tennessee child support guidelines create a presumption that child support and medical support for the benefit of the child will be awarded retroactively to the child’s birth. The mother thought this would be appropriate in this case, but the trial court disagreed. T.C.A. section 36-2-311(a)(11)(A) lists three bases for possible deviation from the presumption that support should be awarded retroactively to the child’s birth:

1. "The extent to which the father did not know, and could not have known, of the existence of the child, the birth of the child, his possible parentage of the child or the location of the child;


2. The extent to which the mother intentionally, and without good cause, failed or refused to notify the father of the existence of the child, the birth of the child, the father's possible parentage of the child or the location of the child; and


3. The attempts, if any, by the child's mother or caretaker to notify the father of the mother's pregnancy, or the existence of the child, the father's possible parentage or the location of the child.”

Continue reading " Child Support: Paternity Issues - Retroactivity " »

Tennessee follows a comparative fault approach to negligence claims. What this means is that when a plaintiff brings suit against a defendant alleging that the defendant’s negligence has caused some sort of harm to plaintiff, the court will first determine the amount of damages, if any, that the plaintiff should be awarded. Once this is done, the court will figure out which parties are responsible for the damages (including the plaintiff and unnamed parties to the suit) and what percentage of the damages each party is responsible for in order to figure out what percentage of the total damages the defendant(s) in the suit should pay. For example, if A sues B and the court determines that each party is one-half responsible for the damages suffered by A, then B will be ordered to pay half of the total damages. However, if A sued B, but the court found that A, B, and C (a third party not named in the suit) were each one-third responsible, then B would only have to pay one-third of the damages even though C was not named in the suit. This is so because the comparative fault approach focuses on each party’s responsibility for the damages caused in order to fairly impose liability for damages.

A recent decision by the Tennessee Court of Appeals illustrates the workings of the comparative fault approach. A mother recently sued six different parties after her seven year-old son was struck and killed by a truck owned by a company named Misek while crossing the street. Prior to the hearing of her case against the City of Clinton, the mother had settled and dismissed her suit against Misek and several other defendants had either reached settlement with the mother or had their cases dismissed as well. At trial, the City of Clinton relied in part on the affirmative defense of comparative fault, maintaining that the mother and the other parties involved in the accident also had some liability for any damages suffered by the mother. Since there were only two parties to the suit, the trial court found that each party was 50% responsible for the damages and ordered the City of Clinton to pay half of the total damages sustained by the mother, with the mother herself being responsible for the other half.

On appeal, the City of Clinton maintained that the apportioning of fault by the trial court was erroneous because there was evidence on the record proving that Misek bore some level of responsibility for the death of the child. The Tennessee Court of Appeals agreed. The court held that Misek’s driver knew of the presence of children in the area and failed to keep a reasonable lookout for them, thus making the company responsible in part for the child’s death. The fact that Misek had already settled with the mother did nothing to affect Misek’s level of responsibility for the damages caused under the comparative fault approach. Misek had already settled its suit, so it would not have to pay any further damages for the truck accident in Tennessee, but it would still bear the same percentage of responsibility for the accident in question for purposes of determining fault in the suit currently being tried. The Court of Appeals thus reversed the judgment of the trial court with an order to determine the percentage of fault for all parties involved in the accident, not just those who were currently involved in litigation with the mother.

Continue reading " Dismissal of Suit Does Not Affect Comparative Fault " »

For a lot of parents, there is nothing more important in life than their children. Thus, there is also nothing more painful for these parents than a custody order being handed down by a Tennessee court that does not allow them to spend as much time with their children as they feel is appropriate. These parents may want to try to modify the custody orders but have no idea how to do so. This begs the question: “When will a Tennessee court modify a child custody order?”

The short answer is that the court will modify a child custody order when there has been a “material change in circumstances” affecting the child that necessitates modification of the order after the initial order has been handed down. The burden to prove that there has been such a material change is placed on the party challenging the initial custody determination. The challenging party will have to prove both that a material change of circumstances has occurred and that a change to the current custody order is in the child’s best interest. “Material change” does not necessarily mean that the child has to be at a substantial risk of harm under the new circumstances; rather, it simply means that some facts or circumstances relating to custody of the child have changed so that it becomes necessary to change the initial custody determination.

Such developments could include changes in living arrangements, inability of one party to follow an agreed parenting plan, new indicia of abuse by a custodial party, etc. A skilled East Tennessee child custody attorney who has years of experience handling modification of orders is usually sought in such situations.

Anything that would tend to prove that the best interest of the child would be better served by modifying the custody determination can be used to challenge the current custody order, but it must be substantial as Tennessee courts favor stability and will not upset the current custody arrangement without sufficiently good cause (see Taylor v. Taylor).

Continue reading " Child Custody: Modification " »

For many children, grandparents occupy a special place in life, providing a level of love and support that is maybe matched only by the child’s parents. Tennessee recognizes this and has taken steps to ensure that changing circumstances in a child’s life won’t prevent that child and the grandparent from being able to spend quality time together. Tennessee’s Grandparent Visitation Act, T.C.A. section 36-6-306, guarantees grandparents the right to a hearing granting them visitation rights in situations where visitation is opposed by the custodial parent(s), and:

1. “The father or mother of an unmarried minor child is deceased;


2. The child's father or mother are divorced, legally separated, or were never married to
   each other;


3. The child's father or mother has been missing for not less than six (6) months;


4. The court of another state has ordered grandparent visitation;


5. The child resided in the home of the grandparent for a period of twelve (12) months or more and was subsequently removed from the home by the parent or parents (this grandparent-grandchild relationship establishes a rebuttable presumption that denial of visitation may result in irreparable harm to the child); or


6. The child and the grandparent maintained a significant existing relationship for a period of twelve (12) months or more immediately preceding severance of the relationship, this relationship was severed by the parent or parents for reasons other than abuse or presence of a danger of substantial harm to the child, and severance of this relationship is likely to occasion substantial emotional harm to the child.”

The Tennessee Court of Appeals recently decided that opposition of grandparent visitation by a custodial parent does not have to be a formal and total opposition to fall within the language of the statute. The Court found that after a child’s father had died, the mother had effectively opposed visitation by the paternal grandparents by refusing to answer the telephone when they called and substantially reducing visitation time.

Continue reading " Grandparents' Visitation Rights in Tennessee " »

In Tennessee, divorcing parties are entitled to an equitable division of their marital property, but the courts have no jurisdiction to distribute property classified as separate property. While Tennessee law specifically defines what is classified as marital property and separate property, some types of assets, like Supplemental Security Income, are not easily classified. Supplemental Security Income (SSI) is often confused with social security disability, but the two are not the same. A recent decision by the Tennessee Court of Appeals distinguishes the two and establishes that SSI payments do not fall within the statutory definition of “marital property” in Tennessee.

In the case introduced above, Husband and Wife were getting a divorce in Tennessee after roughly seventeen years of marriage. After the divorce decree was entered, Husband appealed on the grounds that a lump sum SSI payment awarded to Wife during the marriage should have been considered marital property under the Tennessee statute and thus should have been divided equally among the parties. Husband argued that SSI payments were effectively social security disability payments and were thus marital property under Tenn. Code Ann. Section 36-4-121(C). The Court distinguished SSI from social security disability payments by showing that SSI payments are a form of public assistance given to those who may not be able provide for themselves and such payments “have nothing to do with earnings a person may have had,” while social security disability payments are directly tied to the amount a person has paid in to the Social Security System. The Court thus concluded that SSI payments did not fall within the language of Tenn. Code Ann. Section 36-4-121. The Court further explained that even if SSI payments were considered similar to social security disability payments under the statute, they still would not fall under the definition of marital property, because they are not remuneration for employment and thus do not fall under the statutory language classifying such payments made as recovery for wages lost during the marriage as marital property.

Continue reading " Supplemental Security Income is Not Marital Property " »

Recognizing the need to balance the leeway that governmental entities need in order to properly serve the public interest against the fact that governmental entities may occasionally act in ways that are unacceptable and cause harm to citizens, Tennessee adopted the Tennessee Governmental Tort Liability Act (TGTLA) to define when governmental entities are immune from tort liability.

The TGTLA basically says that governmental entities are immune from suit for injuries that arise from the carrying out of a governmental function. However, there are several statutory exceptions to governmental immunity, including where the entity has caused injury through negligence. The Tennessee Attorneys Memo highlights a case recently decided by the Tennessee Court of Appeals where a plaintiff asserted that the County of Marion had been negligent in failing to post a police officer outside the juvenile court and thus the County was liable for damages the plaintiff sustained as a result of being assaulted outside the court.

The primary issue before the Court was whether or not posting a police officer outside the court was considered a “discretionary function” under the TGTLA. While the TGTLA generally removes immunity for governmental entities where their negligence proximately causes personal injury in Tennessee, it allows such entities to retain immunity from suit if the injury arises out of “the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused.” Thus, if the decision about where to post a police officer was a discretionary function, Marion County would be immune from liability for any injuries caused by the making of that decision.

The Court of Appeals turned to a prior decision by the Tennessee Supreme Court in Bowers v. City of Chattanooga to determine whether or not the injury in this case arose from the exercise of a discretionary function. Bowers established a “planning-operational” test for determining whether a governmental action or decision would be considered a discretionary function. To summarize this test, the Bowers court stated: “[d]ecisions that rise to the level of planning or policy-making are considered discretionary acts […] while decisions that are merely operational are not considered discretionary acts[…]” To determine whether a decision is a planning or operational one, the court will look to the actual decision-making process itself, not the identity of the decision-maker.

Continue reading " County Not Liable Under TGTLA for Decisions Regarding Placement of Police Officers " »

From October 2007 to July of 2009, QVC sold cast iron cookware endorsed by gregarious celebrity chef Paula Deen, but now they want it back. A recall has been issued for Paula Deen Hammered Cast Iron Cookware, specifically the 11-inch cast iron griddles and grill pans (QVC items K14984, K11970 and K135024) with the Paula Deen logo engraved on the bottom. QVC is encouraging its customers to return the cookware, originally sold for between thirty-five to fifty-five dollars, and receive a full refund after the United States Consumer Product Safety Commission said that the cookware can crack or shatter when heated and poses a risk of burns and cuts to consumers. Meyer Trading Inc., the manufacturer of the cookware, and QVC informed the government that they had received reports of seventy-nine incidents involving the cookware. It is likely that most such incidents go unreported by the consumer, so the actual number of injurious incidents involving the cookware may be much higher. QVC indicated that it has contacted known purchasers of the cookware to inform them of the recall.

Clearly a cast iron pan that can crack or shatter when heated poses a danger to consumers. Primarily, consumers of the product bear the risk that the cookware will explode or crack, causing searing hot cast iron fragments to come into contact with or cut the skin. Consumers who have recently purchased this cookware should return it immediately to avoid the risk of being injured in such a fashion.

Continue reading " Consumer Products Safety Commission Recalls Cookware " »

The Food and Drug Administration regulates almost every aspect of prescription drugs in the United States, including manufacturing, labeling, and marketing. To obtain FDA approval for a drug, the manufacturer must demonstrate to the FDA that the drug is safe and effective for its intended use. If the company can demonstrate that the drug is safe for a particular use, the FDA will approve the drug to be advertised and promoted for that intended use. However, once a drug hits the market, it will often be discovered that the drug can be used in ways not contemplated by the manufacturer or submitted to the FDA for approval. Such use is called “off-label” use and accounts for approximately twenty percent of all drug prescriptions in the United States. Off-label use of drugs is not illegal in the U.S., but drug makers are not supposed to advertise off-label uses or attempt to persuade physicians to prescribe their drugs for such uses, as it can be a crime.

Allergen, Inc., the maker of Botox and its sister drug Botox Cosmetic, recently filed a lawsuit against the United States seeking to enjoin the government from preventing drug companies from providing information on off-label uses to the medical community. Allergen contends that it is protected by the First Amendment of the United States Constitution from being prevented from disseminating truthful information to the medical community about effective uses of its drugs, even if they are considered off-label uses. Botox is FDA approved to treat certain types of spasms involving the eye but has other medically accepted, but non-approved, uses such as relieving certain types of spasticity in adults and children. Botox contends that since such “off-label” uses are legal, they should be able to work with the medical community in evaluating the risks and benefits of off-label uses.

Continue reading " Off-Label Advertising Ban Sparks Lawsuit " »

An experienced Tennessee car accident attorney will work hard to make sure that a client’s claims are fully investigated. Toward that end, an attorney will gather data from a variety of sources—from accident reports to expert analysis of skid marks. When necessary and available, a lawyer will also gather information from a vehicle’s Event Data Recorder (EDR), which is commonly referred to as a Black Box similar to the ones found in commercial airliners.

What is an EDR? In many vehicles manufactured from about 2003 onward, there is a small device connected to the Airbag Control Module or Powertrain Control Module that records certain crash data. The type and amount of information it records varies depending on the year, make, and model of the vehicle, but often records such crash data as:

• Vehicular speed at the time of a Tennessee car wreck;


• Whether the airbag and restraint system engaged;


• Brake application; and


• Throttle application.

In a Tennessee car wreck case, this information can be collected from the EDR and analyzed to help determine what the vehicle was doing before, during and after the crash. Such information helps a court determine the relative measure of fault shared between the parties and award fault accordingly. This information can also be used during settlement discussions between the parties and their insurance carriers.

Continue reading " Black Box Evidence in Tennessee Car Wreck Litigation " »

Did you know that several thousands of eye injuries occur each year in the United States? Many of these injuries, in fact, are preventable, occurring as a result of someone else’s negligence. When an eye injury is caused by another’s negligent acts, eye injury lawyers can hold the negligent party responsible by ensuring that you receive fair and just compensation, including compensation for your medical bills, treatment costs and emotional damages.

Compensation, however, will depend on several factors—too detailed to discuss here. But you should know that eye injuries often occur on-the-job, particularly on construction jobs. Work-related injuries in Tennessee are covered under Tennessee’s workers’ compensation system. Under this system, you can be entitled to medical expenses, reasonable and necessary therapy and treatment, lost present and future wages, and other associated costs.

Since the comp laws are based on a no-fault system, you may be entitled to benefits for your eye injury even if you were at fault. Workers who have suffered an eye injury on-the-job may find it helpful to seek legal representation from a skilled East Tennessee workers compensation attorney.

Continue reading " East Tennessee Eye Injury Lawyer " »

On this blog, I often provide you with information on specific products that have been found to be defective and dangerous. However, I often neglect to lay out some of the basic elements on how a person injured by a defective product can succeed in a products liability claim in Tennessee. The basic law is laid out in Title 29, Chapter 28, Part 1 of the Tennessee code.
As in any products liability case, a plaintiff must show that the product was actually defective at the time of accident. In this article, I focus on proving defectiveness by showing that the product was unreasonably dangerous.

To succeed in a products liability case in Tennessee against either or both the manufacturer or seller of a product, the plaintiff must prove that the product was in a “defective condition” or “unreasonably dangerous” at the time that it left the control of the manufacturer or seller.

The latter part referring to the time the product “left the control of the manufacturer or seller” simply means that a defendant may not be liable if substantial alterations, modifications or repairs were made to the product subsequent to purchase. The other requirement—that the product must be in a defective condition or unreasonably dangerous—is the real “meat and potatoes” of the act and poses two alternative theories for proving that a product was defective at or near the time of purchase or when the product left the manufacturer’s control. I focus here on the “unreasonably dangerous” element of a product liability claim in Tennessee.

A manufacturer can be liable if the product is found to be “unreasonably dangerous.” Unreasonably dangerous means under the Code that a “product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.”

The unreasonably dangerous requirement thus contains two tests for determining whether a product is unreasonably dangerous, referred to in the law as the “consumer expectation test” and the “prudent manufacturer test.” The consumer expectation test often applies to simple products where something unexpectedly happens that causes an injury to the user of the product. Under this test, for example, when you sit on a chair, you expect that the chair will sustain your weight. But, if the chair collapses when you sit down, then your expectation of it supporting your weight is not upset. Consumer expectations are thus not satisfied and the manufacturer may likely be liable if injury were incurred.

Continue reading " Overview of Tennessee Products Liability Law: Products Unreasonably Dangerous " »

On Tuesday, September 29, Toyota along with the NHTSA issued a safety advisory applicable to approximately 3.8 million Toyota and Lexis vehicles. The advisory warns car owners of a potential unexpected acceleration of the vehicle caused by certain defects in the floor mat, which can result in a car crash, serious injury or death.

To date, NHTSA has received reports of 102 incidents in which the accelerator may have become stuck, causing the vehicle to accelerate. 13 crashes, 17 injuries and 5 fatalities have been reported. (These reports likely include accidents involving Toyota accessory “all-weather” floor mats that were subject to a recall from 2007 to 2008.)

The most notorious incident—and the one prompting the safety warning—involved a family that leased a vehicle from Toyota—a 2009 Lexus ES 350—near San Diego, California. Apparently, while operating the vehicle, the floor mat covered the accelerator pedal and caused it to accelerate out of control, strike an SUV, launch off an embankment and burst into flames. Four people were killed. The precise cause of the accident, however, is still under investigation.

On the NHTSA website, individuals can review incident reports/complaints by Toyota vehicle owners. One customer had this to say:

“I was first in line at a red light. The light turned green. I accelerated aggressively in order to change lanes as I pulled way. When I was across the intersection, I lifted my foot off the gas pedal and it continued to accelerate. Shocked, I depressed the brake, but had no effect on the acceleration. There was nothing in front of me so I pulled to the right side of the road and hit the power button and the car stopped.” She further reported that she took it to her Toyota dealer and they could find nothing wrong. No injuries or deaths were reported, but she says she hasn’t driven the car since.

Continue reading " Toyota and Lexus Warn Tennessee Car Owners of Floor Mat Hazard " »

A recent case published in the Tennessee Attorney’s Memo, provides a very good explanation of a city’s liability for dangerous conditions found on property that it owns and controls. The case, Petty v. City of White House, involved a plaintiff falling into a hole located on city property and breaking her ankle.

One of the main obstacles the plaintiff had to overcome was the city’s governmental immunity under TCA 29-20-204, which provides: “all governmental entities shall be immune from suit for any injury which may result from [governmental activities] wherein [they] are engaged in the exercise and discharge of any of their [governmental functions].” To get around the city’s immunity, the plaintiff had to prove facts qualifying her case under one of the exceptions provided for under Tennessee’s GTLA statutes. The statute applicable in Petty was TCA 29-20-204, and essentially states that a city can be liable for injuries caused by “dangerous or defective conditions” found on public improvements provided that the city was on either actual or constructive notice of the defective conditions.

Finding that the hole located in the field wherein the plaintiff fell was a “public improvement,” the court assessed whether the city was on constructive notice of a defective condition. Proving constructive notice requires a showing that either the dangerous condition was created by the government, or that the condition should have been discovered by the city’s employees or agents through the exercise of “due diligence or “ordinary care”.

Continue reading " Tennessee City Responsible for Injuries Sustained on City Property Despite Lack of Evidence of Prior Accidents: Petty v. City of White House " »

The recently passed Consumer Product Safety Improvement Act of 2008 (CPSIA) requires the Consumer Product Safety Commission (CPSC) to implement a publicly accessible, searchable database of consumer product incident reports. The new database will provide a central location where Tennessee consumers can evaluate product safety by seeing what others have said about a particular product.

The new site is provisionally called SaferProducts.gov and is scheduled to come online sometime in 2011. A recent report by the CPSC details its current progress and can be viewed at, www.cpsc.gov/cpscpub/pubs/reports/cpsia212.pdf.

According to the report, SaferProducts.gov will provide the public with “powerful new tools to report, analyze and respond to consumer products that pose potential hazards.” Currently, consumers can report hazardous products and file incident reports and can search for recalls of consumer products; however, consumers don’t have the ability to actually view the incident reports filed by other consumers. Finding product recall information can also be a bit difficult. The new site, when launched, will (allegedly) allow consumers easy access to current recall information in addition to being able to view the details of incident reports previously filed—and all in one location!

Continue reading " Upcoming Consumer Product Database to Aid Consumers in Reporting and Responding to Potentially Dangerous Products in Tennessee " »

The Consumer Product Safety Commission recently issued a press release instructing parents to inspect and secure televisions, furniture and appliances to prevent tip-over deaths and injuries. According to the CPSC, there are an estimated 16 thousand children under 5 years of age who were treated in emergency rooms because of injuries associated with tip-overs in the home in 2006. From 2000 to 2006, there were 134 tip-over related deaths reported to the CPSC, and, in 2007, the CPSC staff recollected 30 media reports of tip-over deaths since 2007.

Tip over accidents are often caused when a child plays in or around a TV stand, shelving, bookcases, and furniture. In some instances, televisions placed on top of furniture can tip over and cause severe traumatic bodily injuries to a child. Sometimes, furniture can tip over onto a child, and, by its weight, suffocate the child.

Truly, this is a hazard not immediately foreseeable by many parents across the state of Tennessee. But, you can be sure manufacturers are aware of the risk and can potentially be held liable for failing to warn consumers of the risk of tip-over. The CPSC suggests some things you can do to prevent tip-over injuries:

• Furniture should be stable on its own.


• For added security, anchor chests or dressers, TV stands, bookcases and entertainment units to the floor or attach them to a wall.


• Place TVs on a sturdy, low-rise base. Avoid flimsy shelves.


• Push the TV as far back as possible.

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Earlier this year, the pharmaceutical industry suffered a crushing defeat at the hands of the Federal Supreme Court. In a 6-3 decision, the Supreme Court upheld a Vermont court’s decision awarding 6.7 million in damages to Ms. Levine for the defendant pharmaceutical company’s (Wyeth’s) failure to provide sufficient warnings for its promethazine hydrochloride injections. The narrow issue for the court to decide was whether federal drug labeling laws “preempt” or prevent an injured plaintiff from suing a drug firm in state court. The court held that it does not.

In Wyeth v. Levine, a Vermont court found the pharmaceutical giant, Wyeth, responsible for the loss of Ms. Levine’s arm caused by an intravenous injection of Phenergan using the IV-drip method. Phenergan is the brand name for promethazine hydrochloride, which is an antihistamine often used to treat nausea. It can be administered either intramuscularly or intravenously using either the IV-push or IV-drip method.

Apparently, the IV-drip method presents a danger of gangrene because Phenergan is corrosive to arterial walls, and the IV-drip method presents greater risk of accidental arterial injection. This is what happened to Ms. Levine.

Counsel for Ms. Levine argued that Phenergen’s labeling lacked sufficient warnings and, due to the lack of sufficient warning, the clinician administering the drug wasn’t aware of the risks of using the IV-push. In fact, nothing in the labeling contained any specific warning connecting the IV-push method with the increased risk of gangrene to extremities. As such, Wyeth should have contraindicated intravenous use even though the FDA had not required the drug maker to indicate as such.

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