Texting while driving… some practical solutions

Every cell phone owner has repeatedly heard about the dangers of texting while driving, yet texting continues to be one of the major contributing factors in vehicle accidents.  Here are some eye-opening facts that show the true dangers of texting while driving:

  • Five seconds is the average time your eyes are off the road while texting. When traveling at 55mph, that’s enough time to cover the length of a football field. (2009, VTTI)
  • A texting driver is 23 times more likely to get into a crash than a non-texting driver. (2009, VTTI)
  •  Of those killed in distracted-driving-related crashes, 995 involved reports of a cell phone as a distraction (18% of fatalities in distraction-related crashes). (2009, NHTSA)
  • Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (2005, Insurance Institute for Highway Safety)
  • 49% of drivers with cell phones under the age of 35 send or read text messages while driving. (2011, Harris Poll)
  • 60% of drivers use cell phones while driving. (2011, Harris Poll)

While the best solution is to turn your cell phone off as you drive, here are a few free smart phone apps that have been designed to lessen the dangers associated with texting while driving:

  • http://www.parkthephone.org/ – This free app is great for parents of teenage drivers.  It has the ability to detect when a person is in a vehicle, and if the person is driving, the app will silence the phone, auto reply to text messages, send calls to voice mail, and monitor speed and report speeding exceptions [Note: this app is not yet available for the iphone].
  • http://www.drivesafe.ly/ – DriveSafe.ly is a free mobile app that reads text (SMS) messages and emails aloud in real time and automatically responds without drivers touching the mobile phone.
  • http://www.vlingo.com/ – This app has been likened to Siri on the iPhone 4S.  For driving purposes, this app will allow you to speak a text message or ask for directions without having to type anything on your phone.

If this post was helpful, please share it by clicking one of the buttons below!

  • Add our blog address to your Google/RSS feeder.
  • Facebook: Click here & hit the “Like” button.
  • Twitter: Click here & hit the “Follow” button.

Law FAQ: I bought a car yesterday but now think I made a bad decision. I have 3 days to get my money back, right?

No.  There is no “cooling off” period in Tennessee that gives you the right to back out of a car purchase simply because you’ve had a change of heart.

Of course, if the Dealer offers a return policy – i.e. a money-back guarantee or a “return with no questions asked” policy – then you may indeed have a contractual right to return the vehicle, but that would have nothing to do with a so-called “cooling off” law.  You should remember to get a written copy of the policy when you purchase the vehicle and then read it very carefully.

If you’re talking about a defective vehicle, or a vehicle that doesn’t live up to its warranty, then you’re not necessarily dealing with a “cooling off” issue, but rather a warranty claim.  Speak to the Dealer to see if your complaint can be resolved, or perhaps even the manufacturer if necessary.  If your new vehicle has had to have the same part repaired 3 times in the first year of ownership, you may even have a lemon law claim.  For more information concerning Tennessee’s Lemon Law, please refer to my blog post last week.  Be diligent in your efforts to correct the problem and speak with an attorney so that you don’t miss any deadlines to pursue your claim.

While there is a Tennessee “cooling-off” law and a federal “cooling-off” law, they only apply to home solicitations.  In addition, both “cooling-off” laws specifically exclude automobiles.

If this post was helpful, please share it by clicking one of the buttons below!

Law FAQ: Is my car a lemon?

Tennessee’s Lemon Law is intended to protect new car purchasers from the occasional vehicle that, for some reason or another, has problems that are beyond repair.

The core of the Lemon Law is at T.C.A. § 55-24-102, which states as follows:

If a new motor vehicle does not conform to all applicable express warranties and the consumer reports the nonconformity, defect or condition to the manufacturer, its agent or its authorized dealer during the term of protection, the manufacturer, its agent or its authorized dealer shall correct the nonconformity, defect or condition at no charge to the consumer, notwithstanding the fact that the repairs are made after the expiration of the term. Any corrections or attempted corrections undertaken by an authorized dealer under this section shall be treated as warranty work and billed by the dealer to the manufacturer in the same manner as other work under warranty is billed.

[Note: many internet sites wrongly reference the old law: T.C.A. § 55-24-201 et seq.

Please be careful when following this statute, as it contains many specific provisions that could make or break your case, such as which particular consumers or vehicles are protected by the Lemon Law.  Indeed, I would recommend that you consult with an attorney before proceeding with a Lemon Law claim.

Here are some of the important highlights from Tennessee’s Lemon Law:

  • Basically, you MAY have a Lemon Law claim if you purchase a new motor vehicle or motorcycle that is ‘substantially impaired.’
  • A ‘substantially impaired’ vehicle is one with problem(s) so pervasive that it is unreliable or unsafe for normal operation, or that reduce its resale market value below the average resale value for comparable vehicles.
  • A vehicle is presumed to be ‘substantially impaired’ if either:
    • The vehicle is out of service by reason of repair for a cumulative total of 30 or more calendar days during the term of protection; OR
    • The manufacturer, its agent, or its authorized dealer has made 3 or more repair attempts for the same nonconformity and the nonconformity remains.
  • In order to claim that a vehicle is substantially impaired, the owner must notify the manufacturer of the need to correct or repair the problem via certified mail.  After the notice has been sent, the manufacturer has 10 days to correct or repair the nonconformity.
    • If the manufacturer has an approved informal dispute settlement procedure, the vehicle owner MUST participate in the procedure.  Yet, the decision reached is nonbinding, therefore if the owner is not happy with the result, he/she may simply file a lawsuit under Tennessee’s Lemon Law.
    • If the manufacturer does not have an approved informal dispute settlement procedure and it does not correct or repair the nonconformity within 10 days, the vehicle owner may file a lawsuit asserting the Lemon Law within the applicable time period.
  • A consumer must file a lawsuit asserting the Lemon Law within 6 months of the expiration of the express warranty term or 1 year following the date of the vehicle’s original deliver to a consumer, whichever is later.  The limitations period does not include the time during which a consumer participates in a manufacturer’s informal dispute resolution procedure.
  • In the lawsuit, a consumer may request either a replacement vehicle or reimbursement of the purchase price.
  • Lastly, even if a consumer has an otherwise valid claim, a manufacturer can defeat the claim if it proves either of the following:
    • That the nonconformity does not ‘substantially impair’ the vehicle; or
    • That the nonconformity was caused by a consumer’s abuse, neglect, or unauthorized modification or alteration of the vehicle.

If you think that you may have a Lemon Law claim, feel free to contact our office.

You can easily follow our Blog by adding our blog address to your Google/RSS feeder, or you can follow along on Facebook by clicking here and then hitting the “Like” button.  You can also keep up with the series on Twitter by clicking here and then hitting the “Follow” button.

Do us a favor and click on the Facebook “Recommend” button below to share this post!

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!

If you like this Blog post, click on the Facebook “Recommend” button below!

  • Add our blog address to your Google/RSS feeder.
  • Facebook: Click here & hit the “Like” button.
  • Twitter: Click here & hit the “Follow” button.

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.

You can easily follow our Blog by adding our blog address to your Google/RSS feeder, or you can follow along on Facebook by clicking here and then hitting the “Like” button.  You can also keep up with the series on Twitter by clicking here and then hitting the “Follow” button.

Do us a favor and click on the Facebook “Recommend” button below to share this post!

Are Oral Contracts Enforceable?

oral contracts

Elements of a Contract in Tennessee

With a few limited exceptions oral contracts are enforceable in Tennessee just like a written contract.  Of course, a written contract is much easier to prove because there is hard evidence of the agreement.  However, an oral contract IS enforceable in most cases.  The parties and/or their witnesses can testify about the terms of the agreement, and things such as partial performance or “normal course of dealing” can serve as powerful circumstantial evidence of the terms of the deal.

A contract is a contract – oral or written – so long as it has the following elements:

  1. A legal purpose (e.g. Tennessee courts will not enforce a contract between neighbors to illegally use one cable box);
  2. A mutual agreement that is free from fraud or undue influence;
  3. Terms that are definite enough to be enforced (e.g. a promise to work for a person’s lifetime would be too vague because a lifetime is not a definite duration); and,
  4. Adequate value exchanged by both parties (referred to as “consideration” in legal terms).

Contracts Required to be in Writing

There are certain contracts that are required to be in writing under a legal doctrine called the “Statute of Frauds.”  In Tennessee, the six types of contracts that must be in writing include contracts for the following:

  1. Marriage;
  2. Contracts with a term greater than 1 year (i.e. a 2 year lease must be in writing);
  3. Sale of land/property;
  4. Executor’s/Administrator’s promise to pay debts of the estate;
  5. Sale of Goods/Personal Property that costs $500 or more; and
  6. Suretyship agreements (i.e. a promise to guarantee payment of the debts of another person).

Even after you have successfully navigated all of the above requirements, you should still be careful to file a lawsuit for a violation of an oral contract within 6 years in Tennessee – the same statute of limitation as a written contract.  Additionally,  oral contracts often require the testimony of a witness to verify the terms of the agreement.

We advise avoiding oral contracts.

While oral contracts are enforceable, you should avoid them, if at all possible, simply because written contracts are so much easier to prove and enforce.  Contracts can be difficult to navigate, and if you have any doubts when drafting or entering into a contract, it is best to consult an experienced contract attorney.  If you need help in negotiations, contract drafting, or even contract disputes, please give us a call at 901-372-5003.

 

Wiseman Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.WisemanBray.com

Law FAQ: What are the duties of landlords under Tennessee law?

A frequent question that clients ask is what obligations does their landlord owe to them.  Tennessee has adopted an act referred to as URLTA (“Uniform Residential Landlord Tenant Act”) that is limited to certain counties in Tennessee, including Davidson and Shelby counties, and that only applies to residential leases.  While URLTA includes many detailed provisions, the most common problems stem from inadequate maintenance by landlords.

Under URLTA, a landlord must do the following:

  • Comply with requirements of applicable building and housing codes materially affecting health and safety;
  • Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;
  • Keep all common areas of the premises in a clean and safe condition; and
  • In multi-unit complexes of four (4) or more units, provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish and other waste from common points of collection.

Tenants should also note that URLTA allows the landlord and tenant to make a written agreement where the tenant agrees to perform specified repairs, maintenance tasks, alterations, and remodeling.  While such an agreement cannot be made by the landlord to escape the above obligations, it does allow the tenant to have a degree of control over how such maintenance is performed.

If your landlord fails to do any of the above, you should immediately give him/her written notice of the URLTA violation.  Depending on how your landlord responds, you should then consider contacting an attorney for legal guidance.  There are various remedies available to tenants when landlords fail to meet the above obligations.  Our firm handles a wide variety of such issues.  If you feel that your landlord has violated URLTA, please give us a call.

To read find out more about URLTA, its provisions can be found in T.C.A. § 66-28-101 et seq.

You can easily follow our Blog by adding our blog address to your Google/RSS feeder, or you can follow along on Facebook by clicking here and then hitting the “Like” button.  You can also keep up with the series on Twitter by clicking here and then hitting the “Follow” button.

Do us a favor and click on the Facebook “Recommend” button below to share this post!