Law Talk: Halloween – Your Legal Duty of Reasonable Care

Halloween is always a great time of year – costumes, hayrides, haunted houses, and candy!  However, homeowners should be mindful of the responsibility they owe visitors to their property.

Later this evening, many of you will have a variety of ghosts, princesses, vampires, and angry birds trick-or-treating at your doorstep.  Halloween night poses a great many risks for homeowners because you are essentially opening your home to the public for a unique once-a-year open house event.  As you may or may not know, you owe what lawyers call a ‘duty of reasonable care’ to each of those children that come onto your property.  This leaves you vulnerable to potential liability.

Here are some commonsense tips that you can follow to better protect the trick-or-treaters on your property this year:

  1. Keep Your Property Well-Lit – Be mindful that trick-or-treaters will be cutting through all parts of your property to find your front door, so try to make sure that your front porch is adequately lit for them to easily find their destination.  By keeping the path to your home and front step well-lit, you can prevent potential slip-and-falls by trick-or-treaters wondering into other parts of your yard.  Also, those who are up to no good on Halloween are typically less likely to bother well-lit property.
  2. Keep Property Unobstructed – In addition to keeping your property well-lit, it is always a good idea to keep your property unobstructed while trick-or-treaters seek the most efficient pathways between houses handing out candy.  This includes such ideas as picking up yard debris, filling gopher holes, winding up hoses, and picking up toys left in the yard.
  3. Restrain Pets – Another overlooked Halloween safety tip is to be sure to keep your pets away from the front porch, where they might get excited and jump on or bite trick-or-treaters.
  4. Pumpkin Safety – The traditional Jack-O-Lantern presents many potential hazards.  For example, it is often very easy for a guest or child to kick the pumpkin and candle over if they’re not looking where they’re going.  This type of accident could cause a slip-and-fall or present a fire hazard.  One way that you could protect the trick-or-treaters, your family, and your home is to consider purchasing a battery-powered light for your pumpkin instead of a traditional candle.
  5. Use Your Home Security System – Halloween presents a prime opportunity for vandals and burglars to damage your property.  Thus, it is recommended that you make sure that you have a reliable home security system that can deter others from causing harm to your home.
  6. Check Homeowners Insurance – Lastly, it would not hurt to contact your home insurance agent to request additional homeowners coverage on the one night a year where a variety of people will be visiting your property.

While Halloween is a fun holiday, homeowners should make sure to eliminate any potential risks for a child injury.  Be sure to protect all your visitors by keeping your property clean and safe.

Most of all, have a fun and safe Halloween!

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Law FAQ: My neighbor’s tree hangs over the property line. Do I have the right to cut back the branches?

Yes.  The Tennessee Supreme Court made clear in 2002 that you definitely have the right to cut away any branches or vegetation to the extent it hangs over onto your property.  In other words, you may cut branches up to the property line; however, you may not cut over into your neighbor’s property.

The case is Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002).

The more difficult issue that typically arises in this context is whether your neighbor has a duty to cut back the branches him/herself.  The answer to that question is a bit more fact dependent, but the summary of the law by the Tennessee Supreme Court is as follows:

Encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground.  However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.  If so, the owner of the tree or plant may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.  We do not, however, alter existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.

Also, there’s a helpful distinction in Footnote 9 in the case relating to rotten/dead trees, which fall into their own special category:

It is important to note, however, that dead or decaying trees that cause harm are in a category of their own and require a different analysis.  Unlike the cases involving harm caused by live trees, which are based on nuisance or trespass principles, cases involving dead or decaying trees are typically analyzed according to negligence concepts.  Thus, liability usually turns on whether the defendant landowner lived in an urban or rural area, and whether the defendant knew or should have known that the tree was dead or decaying and therefore was on notice that the tree might fall.  See, e.g., Staples v. Duell, 329 S.C. 503, 494 S.E.2d 639 (App. 1997); Taylor v. Higley, No. 02A01-9207-CV-00194, 1993 WL 137593 (Tenn.Ct.App. May 3, 1993); see also Restatement (Second) of Torts § 363(2) (1965); Dan B. Dobbs, The Law of Torts 588-89 (2000).  The trees involved in the present case are live, healthy trees.  Thus, we do not reach the question in this case whether or to what extent liability may be imposed for harm caused by a dead or decaying tree.  That subject must await an appropriate case.

Law FAQ: Can I Place My Assets in a Trust and Protect Them from My Creditors?

Before 2007, if an individual created a trust under which he is a beneficiary, the assets of the trust were subject to the claims of his creditors. As a result, an individual could not protect his wealth from creditors and lawsuits while retaining control of his assets. With the passing of the “Tennessee Investment Services Act,” Tennessee has become one of a few states in the nation to enact legislation permitting the creation of self-created (self-settled) asset protection trusts.
The law allows this protection by permitting the individual to create a self-settled asset protection trust referred to as an “Investment Services Trust” (IST).

An IST is an irrevocable trust into which an individual transfers assets while retaining the following rights: ability to direct the investment of the IST assets; receive distributions of principal upon the discretion of the Trustee; live in a home owned by the trust; veto distributions to any other permissible beneficiaries; direct the distribution of the trust assets upon death to any one or more persons; remove the Trustee and other trust advisors and appoint their successors under certain provisions. The settlor may not serve as the Trustee of the IST.

The Trustee must be either an individual residing in Tennessee or a corporate Trustee who is authorized to conduct business in Tennessee. At least a portion of the assets of the IST must be administered in Tennessee. At the creation of an IST, the settlor must provide an affidavit stating under oath that he does not intend to defraud a creditor and that he does not have any pending or threatened court action against him.

The Tennessee Investment Services Act provides an asset protection opportunity for individuals who are concerned about the loss of their assets due to unforeseen creditors. An IST presents a unique solution to those who wish to protect their assets during their lifetime while still retaining the ability to manage those assets and benefit from them.

If you are interested in protecting your assets from future creditors, please contact our office to schedule an appointment to discuss the use of an IST in your estate plan.

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Law FAQ: Am I liable for a car accident caused by my child or spouse?

It depends!  Tennessee follows the family purpose doctrine, which can result in a family member, such as a parent or spouse, being held liable for damages caused by another family member’s negligent operation of a vehicle if certain factors are present.  To be liable, a family member must satisfy the following three factors: 1) he/she must be considered the “head of household”; 2) the vehicle must be maintained for comfort or pleasure of the family; & 3) the vehicle must have been used with his/her express or implied consent.  Yet, while these factors might seem simple at first glance, they have been interpreted more broadly than you might think.

First, the “head of household” can be more than one parent, including a parent that does not even live at the same address as the family member who was driving the vehicle at the time of the accident.  This broad definition means that parents with kids in college, and even divorced parents without primary custody of their child can still be considered “head of household” for liability purposes.  Typically, though, the court will consider whether the owner of the vehicle and the driver share a family relationship and whether the owner has some duty to support the driver.

One of the arguments often made by parents is that the vehicle was provided solely for their child and not the comfort or pleasure of the family.  Indeed, this argument was made in a recent case decided by the Tennessee Supreme Court.  In Arlene R. Starr v. Paul B. Hill, Sr., et al., the Court held in part that “[e]ven though Father may have subjectively intended to give the vehicle just to Son for Son’s sole use, in doing so, he provided a benefit to the family unit by providing Son with a source of transportation.”  Given this interpretation, it will be difficult for any parent to argue that a vehicle used by only one family member is not maintained for the comfort or pleasure of the family.

Lastly, the vehicle must be used with the express or implied consent of the “head of household.”  This means that the “head of household” must have some level of control over the use of the vehicle, such as the ability to provide conditions upon when, where, and how the vehicle may be used and/or the ability to forbid the vehicle’s use.  This factor is especially important for non-custodial divorced parents because the custodial parent may attempt to override limitations on the vehicle’s use.  Ironically, this might relieve the non-custodial parent of liability under the family purpose doctrine.

Parents and spouses, whether married or divorced, should consider the family purpose doctrine when purchasing insurance to make sure all persons and vehicles are properly covered.  It is also important to remember that the family purpose doctrine can mean that the parents of a child who causes an accident can be held liable under Tennessee law.

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Breast Cancer Awareness Month: Quick Facts

Breast cancer is the second most common cancer in American women, behind skin cancers.

Breast cancer is the second leading cause of cancer death in women, behind lung cancer.

The lifetime chance of developing invasive breast cancer is approximately 1 in 8, or 12%.

Estimated number of new cases of breast cancer in US women in 2011 is 230,480.

Of these 230,480 new cases, about 57,650 will be carcinoma in situ (the earliest non-invasive form of breast cancer) while approximately 39,520 women will die from breast cancer each year.

Death rates secondary to breast cancer have been declining since 1990, believed to be the result of earlier detection through screening and awareness, as well as improved treatment.

Breast cancer causes about 4,500 deaths annually in women ages 40-49, and is one of the leading causes of death in women in this age group.

Overall, caucasion women have slightly higher risk of developing breast cancer,  but African American women are more likely to die from breast cancer.

Asian, Hispanic, and Native-American women have a lower risk of developing and dying from breast cancer.

Only about 5-10% of breast cancer cases are thought to be hereditary (resulting from genes inherited from a parent); this means that 90% of breast cancer cases occur in women who have no family history of breast cancer.

The biggest risk factors for developing breast cancer are being female and advancing age. 

Other risk factors include having first-degree relatives (mother, sister or daughter) with breast cancer, family member with breast cancer at a young age, having dense breast tissue, early age at start of first menstrual period, late age of menopause, long term use of hormone replacement therapy, never having babies or having first baby after the age of 30, having chest radiation treatment.

Women who avoid alcohol and smoking, who exercise regularly and maintain a healthy body weight, and who breast feed for several months have a lower risk of getting breast cancer.

Other than lifestyle changes, the most important action a woman can take is to follow early detection guidelines.  Following early detection guidelines will not prevent breast cancer, but can help find cancers at early stage, while it is curable (before the cancer has spread).

Elements of early detection include yearly breast exam by your doctor, monthly self breast exams, and screening mammography.

A screening mammogram uses x rays to look at the breast tissue, and is used to detect cancer before there are any breast symptoms obvious on breast exam.  By the time symptoms appear, cancer may have already spread. 

The ACR (American College of Radiology) and SBI (Society of Breast Imaging) recommend screening mammography should begin at age 40 for women with average-risk of breast cancer. Women at higher-risk should begin by age 30, but no sooner than 25.

There has been approximately a 30% decrease in death caused by breast cancer since 1990, due primarily to early detection of breast cancer through screening mammography.  Evidence to support the recommendation for regular annual screening mammography comes from results of multiple large randomized trials in Europe and North America involving 500,000 women. 

If a screening test result is abnormal, you may need to have more tests done to find out if you have cancer.  These diagnostic tests may include tests such as diagnostic mammography, ultrasound, percutaneous needle biopsy and MRI.


Wiseman quoted in The Memphis Daily News concerning possible FedEx Forum lawsuit

Earlier this week the Memphis City Council took the unusual step of authorizing its counsel to explore possible legal claims against the NBA in connection with the ongoing NBA lockout and the negative impact on revenues relied upon to repay the bonds that financed construction of the FedEx Forum.  Click here to read reporter Andy Meek’s article in The Memphis Daily News. 

Wiseman Bray PLLC attorney, Lang Wiseman, who is a member of the Memphis-Shelby County Sports Authority that oversees the financing of the FedEx Forum, was quoted in the article. 

The council’s resolution also addressed that, by saying “the cancellation of games will cause a loss (of) revenues available for debt service, which may necessitate the appropriation of public revenues to cover the shortfall.”

A day or so before the council took its action, sports authority board member Lang Wiseman went back to PFM and asked that they consider preparing some forecasts built around incrementally higher percentage growth in the revenue streams that help pay the forum bonds.

He thought some of what they already presented the authority with was “too conservative” – even though he said being conservative is an appropriate tack when dealing with public money.

He just wants to see what effect a slightly higher forecast will have on any potential shortfall down the line.

“What I’ve asked them to do, I met with them (the day before the council vote) and asked them to do some further sensitivity analysis and to include a bigger growth rate” in the revenue streams that pay the forum bonds,” Wiseman said.

A group of about half a dozen sources of revenue were created to pay back the forum bonds largely in the hope that fluctuations in any one funding stream could be mitigated by having additional funding sources.

Wiseman, a founding partner of the law firm Wiseman Bray PLLC, said the potential of a lawsuit against the NBA “strikes me as a very creative claim.”

“It’s an interesting legal discussion – but if there’s anybody who can take it and do something with it, it’s Allan,” Wiseman said, referring to the council’s attorney Wade.

Capacity to Make a Will in Tennessee

capacity to make will, TN estate planning lawyer

Capacity to Make a Will in Tennessee

As an estate planning and probate lawyer, I’ve handled cases from time to time where a person’s capacity at the time he or she created a Will or Trust was an issue. The elderly have increasingly become targets for those looking to prey on their physical and/or mental weaknesses. Additionally, people are living longer, and Alzheimer’s and dementia are becoming more and more common. Given all these factors, it is likely to continue to be an issue, especially when a person of advanced age changes or attempts to change beneficiaries.

What is a Self-Proving Will?

In most cases, a Will prepared by a lawyer includes the statements of 2 witnesses and a notary so that the Will is what is referred to as “self-proving.”  If the Will is not self-proving, it must be “proven” after the person dies.  In any case where there are handwritten notations or the document is totally handwritten, capacity of the person making the Will must be established.

Standard for Testamentary Capacity to Execute a Will in Tennessee

The general standard in Tennessee for capacity to execute a Will or a Trust is that the Testator (i.e., the person leaving the Will) be “of sound mind and disposing memory.” A person who does not have the capacity to conduct general business transactions or to enter into a contract can still have the required testamentary capacity to execute a Will or Trust. Two key factors in determining whether this standard is met are that the person must understand (1) the nature and effect of the act, and (2) the extent of the property the person is seeking to dispose of.

Whether a person is “of sound mind and disposing memory” is easy to determine when he or she is at one end of the spectrum or the other. Unfortunately, capacity is often not an all-or-nothing deal but falls somewhere in between the two.  When a person whose capacity is questionable tries to make notes or create or modify a Will or Trust, it can be very hard to determine after the fact. Obviously, the opinion of the person’s physician is always preferable and can often help prevent questions later.

Without capacity to make or modify a Will, the person’s intent may not be able to be carried out, even if there is no question as to what he or she wanted or was attempting to accomplish.

Your Legacy is Too Important to Leave to Chance.

Proper execution of  testamentary documents (i.e., Will, Trust, etc.) can avoid confusion later after you die, which is why it is important to consult an attorney when planning for your beneficiaries. The goal of testamentary documents is to accomplish your goals and objectives. What a shame if your intentions are not fulfilled due to a legal technicality or because a document was not executed properly.

If you would like to learn more about planning for your estate, please call us at 901-372-5003 or visit the Estate Planning page on our website.

Law FAQ: Can I Sell My House to My Children for $1 to Avoid Gift Tax?

Many clients and others have asked if they could sell their house to their children for $1 to avoid gift tax.  The short answer to that question is “no”.  Any transfer for less than fair market value to an individual is a gift.  For example, if the residence being gifted is valued by a real estate appraiser to be $100,000, and the residence is sold to children for $1; there will be a transfer subject to gift tax of $99,999!

Whether or not a transfer results in the payment of gift tax depends on several factors.  Under both Federal gift tax law and Tennessee gift tax law, each individual can gift up to $13,000 to each child without incurring a gift tax.  This is referred to as the Annual Gift Tax Exemption amount.  However, Federal law and Tennessee law differ on how gifts in excess of the Annual Gift Tax Exemption are taxed.

Federal law currently provides for an additional lifetime gift exemption amount of $5 million.  Any exemption not used during lifetime can be used at death.  But Tennessee law does not provide for an additional lifetime gift exemption amount.  In other words, any gifts from an individual to a child in excess of the Annual Gift Tax Exemption amount will be subject to Tennessee gift tax at rates ranging from 5.5% to 9.5% depending on the total value of the taxable gift.  Each state has separate gift tax laws, so residents of states other than Tennessee and gifts made of real estate located in other states may have different tax rules that apply.

Therefore, making gifts (or sales for less than fair market value) to children of assets, especially real estate, can be wrought with potential gift tax traps.  Please contact us if you need assistance in making tax-efficient gifts to your children or if you have any related questions.

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LAW FAQ: I was hurt at work in a freak accident that wasn’t really anybody’s fault. Does that mean I can’t get work comp benefits?

I got hurt on the job and it’s getting tough to pay the bills because I haven’t been able to work for a few weeks.  I need some help, but my injury was a freak accident that wasn’t really anybody’s fault. Does that mean I can’t get work comp benefits?

No.  Work comp benefits are available regardless of fault or negligence.  In fact, you can receive work comp benefits even if a workplace accident is due to your own mistake.

That may or may not seem fair that employers are liable for claims regardless of fault; however, most employers are required by law to carry work comp insurance to cover such claims.  Plus, there’s a trade off at play here.  There are inherent risks involved with working, and the employer creates, controls and ultimately benefits from the work environment.  Moreover, in exchange for covering all workplace injuries without regard to fault, the law provides a more limited amount of damages that may be recovered in the work comp scenario compared to a “normal” injury claim.

If you require help with an on the job injury claim, please call (901-372-5003) or Email us with questions and/or a free consultation.

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Be careful what you ask for at the Chiropractor

Many people visit the chiropractor for an alternative treatment to many issues ranging from back pain and headaches to allergies and fatigue. An experienced chiropractor will spend time determining why someone is experiencing such poor health and offer a treatment regimen designed to address those specific symptoms.  The examination will likely include x-rays and the treatment may involve spinal manipulation. Spinal misalignments can be a major cause of a person’s pain and spinal manipulations are designed to address these problems.

While millions of folks successfully visit their chiropractor on a regular basis for the maintenance of their good health, there are those instances when things can and do go very wrong.

One serious complication that can occur after spinal manipulation is a stroke.  Manipulations of the cervical region of the neck/back can cause a pinching or tearing of the arteries that feed blood to the brain.   If an artery to the brain becomes blocked or ruptures by a clot that has been stretched or from a rotation of the cervical spine, this could lead to a stroke.

As most people know, a stroke can be very serious health concern. It can lead to long-term brain damage, debilitating muscle weakness and even death. If you are experiencing any symptoms after a chiropractic visit, please let your doctor know immediately.

Symptoms include: weakness, sudden numbness or paralysis on one side of your body including your face; dizziness, loss of balance and coordination; stiff neck and pain around your eyes; vomiting, severe headache and difficulty with speaking or writing; confusion, memory problems, spacial and perception issues.

Also, remember that there could be a delay of many days between your chiropractic visit and the onset of symptoms.

Fortunately, strokes are a rare complication from chiropractic manipulations.  However, they do occur, especially during those occasions when a chiropractor doesn’t use the appropriate amount of force or has the patient in the wrong  position during his treatment.

If you have discovered that you could be the victim of chiropractic malpractice you need to speak to an attorney to understand your legal rights.  Our attorneys have extensive experience representing individuals injured during chiropractic procedures gone wrong.  Call us to see if we can help you.