Swimming Pool Injury and Drowning Cases in TN

pool injury lawyer, pool injury attorney, drowning victim attorneySwimming pool injury cases are serious. One of the most heartbreaking cases I have ever handled involved the accidental drowning death of a teenage boy. The parents of the young drowning victim grappled with death of their son at what started out as a fun swimming party with friends.  The owner of the pool and the other party guests felt enormous grief, but at the same time, they did not know what they could have done differently. While the case was eventually settled, everyone involved was devastated, and the effects of the young man’s death were far-reaching.  I will never forget the emotions of all of the parties and witnesses involved in that case.

Most people have no idea just how dangerous a swimming pool can be. Drowning and other swimming pool injuries happen quickly and quietly.  Look at these statistics from the CDC:

Drowning Statistics

  • Every day, about 10 people die from drowning.
  • About 1 in 5 of those are kids 14 and under.
  • Nearly 80% of drowning victims are male.
  • Children ages 1-4 have the highest drowning rates. Among children ages 1-4, most drownings occur in home swimming pools.
  • The drowning rate for African Americans is significantly higher across all ages. The disparity is widest among children ages 5-14.

swimming pool lawyer, drowning victim lawyerPool Drains Can Be Deadly

Drowning isn’t the only swimming pool safety concern. Pool drains can also cause significant injuries and death.  In fact, there is federal legislation governing public pool drains because of the serious risk of harm and death.  The legislation is known as the Virginia Graeme Baker Pool & Spa Safety Act  and it is named after a young girl who drowned after she was trapped under water by suction from a hot tub drain.  The suction from the drain was so strong that her mother tried to pull her from the drain but could not. The two men who eventually freed the girl pulled so hard that the drain cover broke from the force. The little girl died from drowning, but the real cause of her death was suction entrapment due to a faulty drain cover.  To watch a short video explaining the danger of pool drains, click here.

For additional drowning death and swimming pool injury statistics and supporting graphics, click here.

What to Do After a Swimming Pool Injury or Drowning

If you or a loved one has been injured in a swimming pool or hot tub, you may be entitled to compensation for your damages.   Here are some pointers about what to do:

  • Take photos of the scene. Include the pool, equipment, fencing, gates, toys, surrounding area, etc. It is extremely important to document the scene of the injury or death before the pool owners make any changes.
  • Write down names, phone numbers, and addresses of any witnesses. If you decide to pursue a claim, your attorney will need to be able to contact and interview witnesses.
  • Talk with a Swimming Pool Injury Lawyer. An experienced lawyer can examine the facts of a case and advise you of your legal rights and options.

Legal Info on Drowning and Pool Injury Lawsuits

In Tennessee, swimming pool owners have a duty to exercise reasonable care for the safety of persons using or accessing a swimming pool, hot tub, or spa.  If a swimming pool owner is negligent, or fails to act with reasonable care, and a person drowns or is injured as a result, the pool owner will be liable for damages.

Every case is unique.  Outcomes and liability assessments depend on the specific facts involved. A swimming pool injury lawyer will be able to talk with you about the circumstances under which the injury or drowning occurred and can give you the appropriate legal advice.   Some of the factors that will influence the outcome of a Swimming Pool Injury or drowning case are:

  • Age of the victim
  • Swimming experience of the victim
  • How the victim entered the property
  • How the victim entered the pool
  • Time frames
  • Fencing around the property and/or pool
  • Condition of the pool water, i.e., was it murky or cloudy?
  • Gates and access mechanisms for entry to backyard or pool area
  • Characteristics of property, i.e., visibility from public areas, presence of toys.
  • Safety equipment available
  • Type of supervision provided
  • Involvement of alcohol
  • Type of pool drain and other maintenance equipment
  • Whether the pool was public or privately owned
  • Training of lifeguards and other staff
  • Notice to pool owners of dangers, access problems, or prior trespassing
  • Local ordinances and codes that apply to swimming pools

pool injury lawyer memphis - drowning victim lawyer

Examples of Tennessee Court Cases on Drowning

Case outcomes are dependent on the facts and the proof or lack thereof that is presented in Court by the trial lawyers for the parties.  Below are just a couple of examples of Tennessee drowning cases, either one of which might have turned out another way had the facts been slightly different:

Harper v. Elliott (1999).  Four year-old boy wandered onto the pool owners’ property and drowned in their pool.  The owners had a 46 inch high wrought iron fence with vertical bars surrounding the pool and access was through 2 gates with simple latches. The pool had a diving board and a slide and there were colorful inflatable toys in and around the pool. The subject street was a busy four lane and the child lived a few doors down. He had left his home while his father was away on a job interview and his mother was asleep. There was no evidence of the route the child took, or how he entered the pool area. A police officer speculated that he squeezed between the bars of the fence, took off his clothes, and slid down the slide into the pool. There was no evidence of what the child could have seen from public spaces. The judge said that it was too much to say that the pool owners knew or should have known that children were likely to trespass on their property. In all the years since they built the pool, they had never known of a child coming onto their property uninvited. Also, the street at issue was a busy, four-lane street, making it highly improbable that a child small enough to fail to appreciate the danger of a swimming pool would be wandering alone in the neighborhood. The judge granted summary judgment in favor of the pool owners and the jury never heard the case. Harper v. Elliott, No. 01-A-01-9809-CV00503, 1999 WL 499737, at *1 (Tenn. Ct. App. July 16, 1999).

Toney v. Cunningham (1999).  A 19 month-old baby girl drowned while attending a Memorial Day celebration. The child’s grandmother agreed to watch her while the mother worked and took her over to the home of the defendants for a party.  The grandmother took the child to one of the bedrooms in the home for a nap and then went outside to watch some other guests play tennis. On 2-3 occasions, the grandmother checked on the child, each time finding that she was asleep. During the tennis match, a ball was hit over the fence. A party guest attempted to retrieve the ball and saw the child floating face down in the swimming pool.  The child’s mother filed a wrongful death suit against the pool owners. The court granted summary judgment to the pool owners because it did not think that, under the facts of the case, that the particular injury experienced by the baby was foreseeable to the pool owners. This was because at the time of the accident, the baby was under the supervision of her grandmother. Additionally, the pool owners and several guests were on or near the tennis court when the accident occurred. From the tennis court, the swimming pool is easily visible. It was unlikely that the baby would open the back door, walk to the swimming pool, and fall in without being seen or heard.  Also, the pool owners knew that the baby was in the care of her grandmother and had every right to believe and expect that the grandmother would supervise the child. Balancing the factors, the court granted summary judgment in favor of the owners, meaning the case was never heard by a jury. Toney v. Cunningham, No. 02A01-9801-CV-00005, 1999 WL 188291, at *5-6 (Tenn. Ct. App. Apr. 6, 1999).

Other Helpful Info

Stay Safe In and Around Swimming Pools 

Safety Barrier Guidelines For Residential Pools 

 

We Handle Swimming Pool Injury and Drowning Lawsuits

We represent pool injury victims and the families of those who have lost loved ones due to accidental drowning. If you need a Swimming Pool Injury Lawyer or an Accidental Drowning Lawyer in the Memphis or Nashville area, please call us at 901-372-5003 or email us here.  Our work is personal. Our clients become family. Either I or one of our other experienced attorneys will meet with you and provide a free consultation.  We will examine the facts of your case and advise you on your legal rights and options.

 

By: Erin Melton Shea

 

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.WisemanBray.com

 

 

Basic Asset Protection in Tennessee

asset protection lawyer, asset protection attorney, memphis How do you achieve asset protection? How do you best limit your liability and protect the assets and investments you have spent so much of your life building up?  While you cannot completely eliminate exposure to potential liability, you can achieve asset protection through the use of simple techniques, like buying the right kind of insurance, or through the use of more sophisticated tools like asset protection trusts.

General Layers of Asset Protection Planning

  1. Purchase Protective Insurance.  Examples: long-term care insurance, professional liability insurance, and umbrella personal liability coverage. Insurance is the simplest and most affordable way to protect your assets.  When our clients ask us if we think they have enough insurance, we always tell them that you can never be over insured.
  2. Utilize Statutory Law Protections.  Examples: ownership of real estate as tenants by the entireties, homestead exemptions, retirement plans, and life insurance or annuities.  Real property owned by a husband and wife as tenants by the entirety is exempt from the separate creditors of each spouse.  Additionally, other statutory protections provide that specific assets may be protected from creditors in certain circumstances.  For example, in Tennessee, life insurance passing to a surviving spouse or child passes free of the claims of a decedent’s creditors.  You should consult an attorney to find out which of your assets may be statutorily protected.
  3. Domestic Asset Protection Trusts.  Tennessee is only one of a handful of states that has a specific statute allowing an individual to create a self-settled asset protection trust.  This means that a person can create the trust, have control over certain aspects of the trust, and also be a beneficiary of a trust.  The rules governing these types of trusts are very specific.  These types of trusts are also available in Mississippi, Delaware, Alaska, and Nevada. If you are interested in learning more, click here.
  4. Domestic Entity Planning.  Example: Wyoming Close LLC.  An LLC, unlike a corporation, allows the members of the entity to separate their personal liability from their liability as members of the company.  The most enticing feature of an LLC is the fact that a creditor of the LLC cannot attach the personal assets of the LLC’s members.  We prefer using a Wyoming LLC because the laws in Wyoming are among the most favorable in terms of the protection an LLC provides.

Need an Asset Protection Attorney to Help Protect Your Assets?

We are experienced asset protection attorneys with offices in Memphis and Nashville. We can help develop a plan to best suit your individual needs. Call us today at 901-372-5003 or email us here. 

 carlisle dale, memphis asset protection

By:      Carlisle Dale

Wiseman Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.WisemanBray.com

 

 

Small Business Tip: Include Provision in Your Contracts to Recover Attorneys’ Fees

small business lawyer, small business attorneyYou’re running a small business. You have a form, purchase order, or other short contract you always use.  Take a moment to look at your forms and contracts. Do they include an attorney fee provision?  If not, we recommend that you add one.

Reason to Add an Attorney Fee Provision

If someone fails to pay you, you might need to file a lawsuit to recover what you are owed. Going to court is expensive.  In Tennessee, each party is responsible for paying their own attorney fees. That’s right–even if you win in court, you generally can’t make the other side pay your attorney fees unless you have an attorney fee provision in your contract.  For more information on attorney fees, read this blog post.

Sample Attorney Fee Provision

If any party institutes any action or proceeding to enforce any provision of this contract by reason of any alleged breach of any provision herein, the prevailing party shall be entitled to receive from the losing party all legal fees and costs incurred in connection with any such proceeding.

We are Small Business Lawyers.

Check out our team at Wiseman Bray PLLC.  If you need help with your small business contracts, agreements, or forms, or if you have a question about business litigation or the recovery of attorney fees in a lawsuit, please call us at 901-372-5003 or email us here. We have offices in Memphis and Nashville TN.

 

 

Why You Don’t Hear About Liability Insurance in a Jury Trial

memphis injury lawyer jury trial Did you know that during most Tennessee state court jury trials, you will never hear the word “insurance?”  That’s because 99% of the time, evidence of liability insurance is not admissible under the Tennessee Rules of Evidence.

Tennessee Rule of Evidence 411 provides that:

Evidence that a person was or was not insured against liability is not admissible upon issues of negligence or other wrongful conduct. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Rationale

Rule 411 is based on the notion that disputes should be resolved based on the conduct of the people involved, not based on whether they have insurance.

Insurance Jury Instruction

Not everyone has insurance. Some people have some insurance, but not enough.  Sometimes a person will have purchased an insurance policy only to find out that it won’t apply to pay damages in certain kinds of lawsuits. Sometimes the Judge will issue a jury instruction in Tennessee to help guard against improper consideration of insurance.  When the instruction is used, the Judge tells the jury that:

[W]hether or not insurance exists has no bearing upon any issue in this case. You may not discuss insurance or speculate about insurance based on your general knowledge.  There are sound reasons for this rule. A party is no more or less likely to be negligent because a party does or does not have insurance. Injuries and damages, if any, are not increased or decreased because a party does or does not have insurance.

Tennessee Pattern Jury Instruction – Civil 1.05.

Insurance Information Is Still Useful

Just because we can’t use evidence of insurance in jury trials doesn’t mean we can’t make good use of the information.  Knowing whether parties are insured, and to what extent, helps us develop an efficient strategy for resolving a dispute, and it helps us give sound advice to our clients who are wondering if they should settle a claim or file a lawsuit.

Need help settling a claim with a liability insurance carrier?

We can help you. Wiseman Bray has offices in Memphis and Nashville Tennessee. Call us at 901-372-5003 or email us here.

It’s Prom Season: Liquor Liability for Allowing Minors to Drink Alcohol

liquor liability for prom party

Since it’s Prom Season, let’s talk about liquor liability for social hosts.

Let’s say you’re one of those parents who thinks, “teenagers are going to drink, so I’m going to allow my kids to drink in my home so they won’t do it somewhere else.”  Your teenager asks you if he can have a “Prom After-Party” at your home with a few friends. You agree. You also agree that they can “drink a little.” You tell your son that no one will be allowed to drive.

Now consider this, let’s say your daughter was in a car accident on her way home from Starbucks after her Prom.  Other than coffee, she hadn’t had a drop to drink. The other driver was an underage intoxicated teenage girl who had just left a “Prom After-Party” at a private home where alcohol was served. She disregarded the “no one is driving home” rule that the parents set for the evening.

So, what’s the law on parents who allow minors to drink in their homes?

Social Host Liquor Liability

In general, if you host a party and serve free alcohol to your guests, you’re not going to be liable if they become intoxicated and injure someone on the way home.  Tennessee Liquor Liability statutes are designed to apply mainly to bars, restaurants, and liquor stores, so there’s a distinction between selling alcohol and otherwise providing it. Tenn. Code Ann. 57-10-102.  However, as is usually the case, there are exceptions, meaning that even if you don’t sell alcohol, you could still become liable under certain circumstances.

Serving Alcohol to Minors

If you have a party at your home and serve alcohol to a minor who becomes intoxicated, you could be held liable if that minor causes injury or damage to a third person.  You could even be liable if you don’t provide the alcohol, but you know the minors are drinking it. This is because, in some cases, the law considers an adult host to be in a “special relationship” with a minor guest, such that the adult host owes a duty to ensure the safety of the minor guest, as well as to keep the minor from driving while intoxicated.

social host liquor liability

Liquor Liability Law in Tennessee is Complex

It is important to contact an attorney as soon as possible if you have a potential Liquor Liability case.  While underage drinking is certainly illegal, civil liability implications are extremely fact-intensive and liability varies from case to case.

Wiseman Bray has offices in Memphis and Nashville TN. If you have a question about liquor liability, the Dram Shop Act, or social host laws in Tennessee, please call us at 901-372-5003 or email us here.

Example of a Liquor Liability Case Involving Minors

For an example of a liquor liability case involving minors and alcohol, read the Biscan v. Brown case.