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May 22, 2012 In Auto Accident, Personal Injury

Partially at Fault in a Car Wreck in Tennessee?

Partially at Fault in a Car Wreck in Tennessee?

partially at fault, car wreck lawyer in memphisLaw FAQ: I was in a car wreck in Tennessee, and I may be partially at fault. Do I still have a legal claim?

ANSWER:   Maybe.

You can take comfort in the fact that “slam dunk” cases rarely exist.  There are 2 sides to almost every story.  Indeed, real life is never quite so neat and tidy.  Many car crashes are the result of a number of related factors, circumstances and events on both sides that – when combined together – cause accidents to occur.

For example, someone might have run a red light and pulled out in front of you; however, you might have contributed to the problem by speeding, or not wearing your seat belt, or not paying as close attention to the road as perhaps you should have been.  Thus, while you didn’t necessarily cause the wreck, you may be wondering whether your own speed or inattention may have increased the amount of damage or injury caused.

And so the question is: do you still have a legal claim for your car accident or personal injury?

Well, the answer is: it depends.  Many people are partially at fault and some of them are still able to recover damages in a car wreck case.

Doctrine of Comparative Fault

Under Tennessee law, a defendant in a car wreck case is entitled to point the finger at another person (or multiple persons), including the plaintiff.  In other words, a defendant can ask a jury to assign fault for an accident, either in whole or in part, to someone else.  Legally, this is referred to as the “doctrine of comparative fault” – i.e. the jury is asked to literally compare the fault of the parties.

In practice, this means that the jury will listen to all of the competing evidence and then assign a percentage of fault or negligence to each person alleged to have contributed to the accident.   The total of the percentages must add up to 100%.  The jury is then asked to affix the amount of total damages suffered/incurred.

These fault allocations and damage findings determine whether, and to what extent, a plaintiff is entitled to recover.  Specifically, the damages recoverable by the plaintiff are based on the percentage of fault assigned to the defendant.

  • Example: If the jury finds that there were total damages of $100, and the defendant is assigned 75% of the fault compared to only 25% fault for the plaintiff, then the plaintiff would recover $75 (75% x $100).  The plaintiff wouldn’t be entitled to recover the percentage of damage that he himself caused.

Modified Comparative Fault

Note also that Tennessee follows the doctrine of modified comparative fault.  This means that if the plaintiff is found to be  50% at fault for an accident, then he or she is prohibited from recovering any damages at all. So, even if you are partially at fault for an accident, as long as you’re not 50% at fault, you can still recover.

  • Example:  Using the scenario above involving damages of $100, if the jury were to find the plaintiff and defendant equally at fault (50/50), then the plaintiff would recover $0.

Pure Comparative Fault in Other States

By comparison, some states like Mississippi utilize the doctrine of pure comparative fault, which means that the plaintiff can recover for any fault of the defendant, even a mere 1%.

  • Example:  Using the scenario above, if the car wreck  occurred in Mississippi and the defendant was 1% at fault, then the plaintiff would be able to recover $1, even though the plaintiff was 99% at fault.

Partially at Fault But Think the Other Driver was Responsible?

Each case is unique. It sounds cliche, but it’s the truth. At Patterson Bray, we will look at your case and advise you on the best way to proceed. If you have a question involving a  car or trucking accident or a wreck involving serious personal injury, please feel free to call our office at (901) 372-5003 for a FREE consultation.

We Represent Victims of Car Wrecks.

Visit our website to learn more about our work for car accident victims. You can meet our team by clicking here.

April 26, 2012 In General

Law FAQ: Negligence – Is the Other Driver At Fault for the Car Wreck? (Part II)

Law FAQ: Negligence – Is the Other Driver At Fault for the Car Wreck? (Part II)

In yesterday’s blog post, I listed the 5 basic elements for a negligence claim: duty, breach, injury, causation, and proximate/legal cause.

Today’s post will focus on the first 2 elements which, for the most part, comprise the most interesting and difficult issues that arise in connection with negligence claims:  duty and breach.

Negligence is commonly referred to as the “reasonable man” standard.  Stated differently, a driver involved in a car wreck would be considered negligent if taking some action that most average people would deem unreasonable under the circumstances.  Negligence can be predicated both on acts of commission (e.g. running a red light), as well as acts of omission (e.g. failing to pay appropriate attention to the road).

Basically, the rules of negligence boil down to requiring people to follow society’s basic “rules of the road” for reasonable conduct.  For the most part, it’s commonsense-type stuff.  The law of negligence is about reasonableness and balance.  It does recognize, for example, that some injuries are simply unforeseeable and/or sometimes unavoidable.

Stated in legal terms, a court will consider the issue of legal duty in terms of what is known as “reasonable foreseeability.”  This means that if your conduct would create a “reasonably foreseeable risk of injury” then you would naturally have an obligation to avoid the conduct, or to take reasonable precautions to protect innocent bystanders from the risk.  The rule is really nothing different than The Golden Rule that churches, mothers and fathers teach their children every day.

For example, will a driver be held liable if the brakes on his truck suddenly and without warning fail, and he winds up in a car accident?  Probably not, because the risk wasn’t necessarily foreseeable.   By comparison, though, if the brakes had been acting up previously, and the driver just ignored it and kept on driving the truck instead of taking it to the shop for repairs, then he probably would be deemed negligent in that situation.  Indeed, there was a known risk and he failed to take reasonable steps to protect others against a foreseeable risk of harm.

In other words, that driver would have breached his duty to those around him, and therefore he should rightfully be expected to make good on the injuries and damages unilaterally imposed on an innocent person.

This same analysis would apply to all sorts of things such as speeding, texting while driving, weaving too quickly in and out of traffic — i.e. things which impose an unreasonable and foreseeable risk of harm.

Note that the law of negligence is a far cry from the daily dose of nonsense you get from TV advertising, and from politicians.  Indeed, it is NOT the type of automatic, jackpot money grab that the ambulance-chasing TV lawyers seem to imply, and that the so-called tort reformers would likewise have you believe as part of selling their grossly exaggerated claim that “the sky is falling with lawsuits.”  To the contrary, the law does not provide for automatic liability whenever an injury occurs.  Likewise, it does NOT impose a duty to eliminate each and every one of life’s many risks.

The law of negligence is simply about the common sense “reasonable man” standard which is very much akin the Golden Rule — “Do unto others as you would have them do unto you.”

Stay tuned for more about the question of how the law determines the winner of a lawsuit when — as is often the case in real life situations — both parties are somewhat negligent.   This is referred to as the issue of comparative fault.  Stay tuned.

April 25, 2012 In Auto Accident

Car Wreck Case- What is negligence by the other driver?

Car Wreck Case- What is negligence by the other driver?

car wreck case lawyer in memphisIn a car wreck case, or any other case, “negligence” is the legal term for failing to exercise reasonable care and caution under a given set of circumstances.  It is commonly referred to as “the ordinary, reasonable person” standard.  Legal liability is assessed when a person fails to follow society’s most basic “rules of the road” so to speak.

Examples of negligence

Some examples of negligence might include:

  • Running a red light and causing a car wreck.
  • A hurried doctor who fails to follow correct protocol and thus fails to diagnose a curable disease.
  • A nurse who fails to check the medical chart and who then dispenses the wrong medication.
  • A store owner who fails to mop up a known puddle on the floor.
  • A pharmacist who dispenses the wrong dosage of medication.
  • A contractor who fails to adhere to building plans or skirts building codes.
  • A child care center that fails to conduct background checks before hiring employees to care for children unsupervised.
  • A lawyer who fails to file his client’s lawsuit before the statute of limitations expires.

Elements of Negligence in a Car Wreck Case

In a negligence case, a plaintiff is required to prove five elements:

  1. that a duty of care was owed by the defendant;
  2. that the defendant failed to live up to that duty (i.e. referred to as a “breach of duty”);
  3. that an injury or loss occurred;
  4. that the breach of duty actually caused the injury or loss; and,
  5. proximate or legal cause.

Would you like to talk with a Car Wreck Case Lawyer?

Please call our office at 901-372-5003 to speak with one of our experienced car wreck case lawyers. We would be honored to represent you.

Visit our website to learn more about the work we do representing victims of car accidents.  We even have a “Frequently Asked Questions About Car Accidents” page you can visit to get answers to your basic questions.

 

Patterson Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

 

March 30, 2012 In General

Politics in the Workplace: Wiseman Quoted in Memphis Daily News

Let’s talk politics. Or not. Regardless of the outcome, the 2016 Presidential Election is set to go down in history.  You have probably learned about (or are inundated with!) the political positions of many of your friends through social media accounts like Facebook and Twitter.

But what about politics in the workplace?

In 2012, Reporter Andy Meek wrote an insightful article for the Memphis Daily News about the need for employers to carefully monitor the discussion of politics in the workplace. It’s worth pointing out again during this election cycle.

Patterson Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.pattersonbray.com

The Attorneys of Patterson Bray handle personal injury cases, auto accidents, apartment crime cases, estate planning, asset protection, charitable planning, business litigation, business organization, business counseling, and many other general legal services.  Please visit our website to learn more about our attorneys and the work we do for our clients.

 

March 29, 2012 In Uncategorized

ObamaCare at the Supreme Court: Day 3 Recap

ObamaCare at the Supreme Court

Sorry to be running late with this post concerning the final day of argument at the Supreme Court yesterday, but I wanted to again pass along the post by my friend Hans von Spakovsky at the Heritage Foundation who’s been following the hearings in DC.

There’s been lots of talk by pundits and prognosticators about how the seeming skepticism expressed by the Justices during oral argument means that the ObamaCare law will inevitably be struck down.  I disagree.  Not because I believe it will be upheld, but rather because I believe there’s no way to tell much of anything simply by listening to the questions asked by Judges during their hearing of an appeal.

Mind you, while some of the questioning in this particular case has been unusually illuminating, I’ve been involved in numerous appellate hearings, many of which occurred while I was “on the inside” as a law clerk working for Judge on the federal Sixth Circuit Court of Appeals.  And based on my experience, I can tell you that a Judge’s questioning is often just that:  questioning.  It doesn’t necessarily indicate an opinion one way or another.  Indeed, sometimes the toughest questions are not from a Judge trying to signal what side he/she is on, but rather from a Judge who is genuinely trying really hard to make up his/her mind, and perhaps playing devil’s advocate or trying to rule out any doubts they might have.

Moreover, in this case, the legal theories could make for some interesting combinations of opinions by the Justices.  Some of the most conservative members of the Court, for example, may be inclined to allow their preference for judicial restraint to trump their misgivings over possible constitutional issues withe ObamaCare.

The best prediction is to simply stay tuned.  The Court’s Term will be over in a few weeks, and the latest that their rulings are handed down for a particular Term are usually in June.  So, we’ll know pretty soon what the answer is.

March 28, 2012 In Uncategorized

ObamaCare at the Supreme Court: Recap of Day 2

ObamaCare at the Supreme Court: Recap of Day 2

My friend Hans von Spakovsky has been attending the oral argument at the Supreme Court and has summary of what how things went yesterday in his article over at PJ Media.

One interesting quote in particular from the article:

Both before and after the arguments, I had revealing conversations with a liberal professor in the courtroom.  He agreed that the government’s chief problem is that it had not provided a limiting factor or boundary line in any of its previous arguments.  Thus, if the Supreme Court agrees that Congress has the power to compel the purchase of an insurance policy from a private company, it could compel the purchase of virtually anything considered good or prudent.  After the arguments ended, the professor agreed that Verrelli had been unable to come up with a concise and reasonable answer to that question, which was asked of him multiple times by different justices.

March 26, 2012 In General

ObamaCare Before Supreme Court Starting Today: Brief Guide

ObamaCare Before Supreme Court Starting Today: Brief Guide

My friend Hans Von Spakovsky has a great rundown of the Supreme Court’s schedule as they hear argument over the course of the next three days on the various legal issues implicated by ObamaCare.  Check out the article over at PJ Media.

As for the most pressing substantive issue in the case — the Commerce Clause of the U.S. Constitution — there is a very good summary of the “evolution” of the Court’s interpretation of the Clause over the course of the past century over at The Atlantic.

March 14, 2012 In General

Legal Tip: Take Photos of the Contents of Your Wallet and Store Them on Your Smartphone

Legal Tip: Take Photos of the Contents of Your Wallet and Store Them on Your Smartphone

Identity theft is rampant.  You hear horror stories over and over again.  To protect yourself, you should avoid supplying personal and financial information online except in connection with verifiable, reputable sites.

But what about “old style” identity theft?  Indeed, sometimes despite your best efforts, there are occasions where your wallet, purse or briefcase is lost or stolen.

One way to protect yourself is to take a photo of the contents of your wallet or and store them in a password protected app on your smartphone — e.g. take a photo of the front and back sides of your credit cards, your license, and your health insurance card.  Indeed, in the unfortunate event your wallet is stolen, you will need to call your bank and credit card companies to cancel your cards, and it would be helpful to have their customer service numbers readily available along with your account information.  Having photos will also enable you simply to remember what cards are actually in your wallet, too.  (Not to mention, having the photos on your smartphone can be handy for those times when you forget your wallet and need your ID or health insurance card, for example.)

CAUTION: Store photos of your cards only if access to your phone is password protected, or if you use an phone app that is password protected. The last thing you want is to have your phone stolen or lost — as if that isn’t bad enough — and to compound that problem by having your credit card info inadvertently available to the thief as well.

Either way, though — whether it involves online or “old style” identity theft — you should timely and carefully monitor your credit card and bank statements for unauthorized or fraudulent transactions.  Under the law, you are NOT responsible for fraudulent transactions if you timely discover and report them.

March 13, 2012 In General

The Obamacare case to be heard by the Supreme Court in only 2 weeks

The Obamacare case to be heard by the Supreme Court in only 2 weeks

I posted previously about the Obamacare cases that were on a collision course to the Supreme Court.  The most eagerly anticipated question before the Court is the constitutionality of the individual mandate — that is, does the federal government have the power to require someone to purchase something?

Three of the 13 federal appellate courts have now ruled on Obamacare.  The 4th and the 6th Circuits upheld the individual mandate, whereas the 11th Circuit deemed it unconstitutional.  (The 6th Circuit is where I clerked.  It covers Tennessee, Kentucky, Ohio and Michigan).

It’s a fascinating issue with all sorts of wide-ranging legal and historical implications, and it’s now set to finally be heard by the Court on Monday, March 26th.

An article in The New York Times offers a glimpse into the importance of the case — and to the legacy in particular of Chief Justice Roberts — noting that “[t]he six hours the court will devote to arguments is a testament to the case’s importance.  The last time the court heard longer arguments in a politically charged case was in 1966, over the Voting Rights Act, a crowning achievement of the civil rights movement. And the last time the Supreme Court ruled that a major piece of economic legislation was beyond Congressional power to regulate commerce was in 1936, when the court struck down minimum-wage and maximum-hour requirements in the coal industry.”

The case will have important political implications as well.  Indeed, considering the length of time it generally takes for the court to issue their written decisions following argument, the case opinion will likely be handed down just in time for the final stretch run of the upcoming presidential race.

Stay tuned for a short summary and primer on the precise legal issues involved.

In the meantime the lawyer for the parties challenging Obamacare.  He is a former law school classmate of President Obama, and a former Justice Department official in charge of appearing before the Supreme Court to defend similar laws passed by Congress.

March 8, 2012 In General, Personal Injury

Outrageous & Frivolous Lawsuit Verdicts – Fact or Urban Myth?

Outrageous & Frivolous Lawsuit Verdicts – Fact or Urban Myth?

Everybody has probably seen them at one time or another — The Stella Awards — an annual list of the most outrageous lawsuits. The Awards are named after Stella Liebeck, the lady who sued and won a multi-million dollar verdict against McDonald’s for spilling hot coffee on herself.

Some of the more noteworthy Stella Award winners include:

  • The woman who won $1.7 million from Winnebago after putting her RV on cruise control at 70 mph, and then getting up to go make herself a sandwich in the back. She claimed that Winnebago should have warned her that she couldn’t leave the driver’s seat after putting the cruise control on.
  • A 19 year old in Los Angeles won $74,000 in medical expenses when his neighbor ran over his hand with a Honda Accord while the teenager was trying to steal a hubcap.
  • A woman who was awarded $80,000 after breaking her ankle tripping over a toddler who was running inside a furniture store, even though the toddler was her own son.

These examples are humorous, and indeed, the list goes on and on with other silly examples. The only problem is that ALL OF THESE LAWSUITS ARE ENTIRELY FALSE!

Even the underlying McDonald’s hot coffee case itself has reached unwarranted levels of urban myth-ism.  If you want the REAL story behind the case, click here for more info on why the final verdict in that case was actually quite reasonable under the circumstances.

Why do I bring up these awards? Because you wouldn’t believe the number of people I talk to who bring up these “cases” as examples of what’s wrong with our legal system.

The problem is that these wild misconceptions foster the type of false notion perpetuated by insurance companies and politicians who claim that there’s no rhyme or reason to our judicial system — which, of course, is the sort of “problem” that they just happen to have a government solution for.  How convenient.

Well, take it from a lawyer who’s in the trenches everyday: despite what you may hear — the concept of jackpot justice is exceedingly rare.  Are there occasionally exceptions and outlier verdicts? Absolutely. Just like there are times when clearly negligent defendants get away with maiming people.  But both situations are exceptions and hardly the norm.

Is the system expensive and in need of tweaking here and there?  Sure.  Just like everything else in life, it can be improved.

But good policy decisions aren’t made by throwing out the baby with the bathwater — and cutting off people’s legal rights in the meantime — based on urban myths perpetuated as fact.  That makes absolutely no sense at all.

So, don’t believe the hype.  Do your own homework before you fall hook, line and sinker for a story that sounds too crazy to be true.  Because most times, it isn’t.