Top 8 Things to Know About Tennessee Residential Property Disclosure Law

Top 8 Things to Know About Tennessee Residential Property Disclosure Law

property disclosure lawyer in memphis tennessee If you are thinking of buying or selling a home, you may have questions about the basics on Tennessee property disclosure law. The Tennessee Residential Property Disclosure Act, Tenn. Code Ann. 66-5-201, et. seq., requires the Seller of a home to provide the Buyer with a Property Disclosure Statement.  Despite this law, there is still a large amount of civil litigation arising from defects discovered in a home after the Buyer has moved in. Be aware of these top things to know about Tennessee real estate property disclosure law:

Tennessee Property Disclosure Law

  1. Sellers are required to disclose the condition of the home, including any “material defects.” What does “material” mean? Generally, any fact or condition that might affect a Buyer’s decision to purchase the home.
  2. Sellers are only required to disclose based on the information they have.  Sellers are not required to have a home inspection, hire experts, or conduct an independent investigation to discover everything that might be wrong with their home.
  3. The Disclosure Statement is not a warranty. The disclosure form is not a substitute for a thorough home inspection.  If you are the Buyer, you shouldn’t just rely on the disclosure form. Hire your own home inspector.
  4. Some sellers are exempt from making disclosures. Common exceptions include sales or transfers between co-owners, new construction, purchases from lenders after foreclosure, auction sales, or if the Seller has not lived in the home within the 3 years before the Closing.
  5. Sellers are NOT Required to Repair Items listed in the Disclosure.  If you are the Buyer, be aware that Sellers don’t have to fix anything listed as broken or defective. If you want an item repaired, you must contract for it. In other words, both Buyer and Seller must agree in the final contract that an item will be repaired by the Seller before closing.
  6. Sellers ARE required to update their disclosures before closing. Sellers must update to address any material changes that have taken place since the original date of disclosure, or to confirm to the buyer that the original form is still accurate. Tenn. Code. Ann. 66-5-205.  If you are the Buyer, you should not close on a home without seeing an updated Disclosure Form signed and dated by the Seller.
  7. Representations in the Disclosure Form are those of the Seller only, and not the Real Estate Agents.  The Disclosure Act applies only to Sellers.  An agent can’t be sued under the Disclosure Act for information contained in a Seller’s disclosure form unless the agent is a signatory. Tenn. Code. Ann. 66-5-202; 66-5-208. However, real estate agents have certain disclosure duties pursuant to the Tennessee Real Estate Broker License Act of 1973.   Under the Real Estate Broker License Act, a real estate agent is required to “[d]isclose to each party to the transaction any “adverse facts” of which the licensee has actual notice or knowledge.”  Tenn. Code Ann. § 62-13-403.  What are adverse facts? Both Acts define adverse facts as conditions or occurrences generally recognized by competent agents that significantly reduce the structural integrity of improvements to real property or present a significant health risk to occupants of the property. Tenn. Code Ann. § 62–13–102(2); § 66–5–206. However, the definition of adverse facts found in the Real Estate Broker License Act also contains a third prong, for conditions or occurrences that “have negative impact on the value of the real estate.” Tenn. Code Ann. §62-13-102(2). See Ledbetter v. Schacht, 395 S.W.3d 130, 136 (Tenn. Ct. App. 2012).
  8. Any lawsuit against a Seller for a misrepresentation in a Disclosure Statement must be filed within one (1) year.  Any cause of action based directly on the disclosure law statutes will be lost if not filed within one (1) year from the date the buyer received the disclosure statement or the date of closing, or occupancy, whichever occurs first. Tenn. Code Ann. § 66-5-208.

Discovered a problem after closing?

If there is “trouble in paradise” with your new home and you think the Seller or a Real Estate Agent made a misrepresentation concerning the home, speak with an attorney as soon as possible.

While a lawsuit is not always necessary to resolve a legal issue, remember there are deadlines within which to file a lawsuit, if necessary.  An experienced litigation attorney can advise you of your options based on the particular facts of your situation.

Want to speak with an Attorney?

The attorneys at Wiseman Bray PLLC are experienced litigation and contract lawyers. We understand real estate transactions and sales, and we know the disclosure laws applying to both home sellers and real estate agents and brokers in Tennessee.  Call us today at (901) 372-5003.

Additional RESOURCES:

Read more about Lawsuit Deadlines: How Long Do I have to File a Lawsuit in Tennessee?

Wrongful Death of a Child

wrongful death of a child attorney

Info From Wiseman Bray About the Wrongful Death of a Child

No one should have to ever think about the wrongful death of a child. As a mother of two young children, I can’t think of anything more unbearable than the loss of a child. But according to the American Association for Marriage and Family Therapy, over 57,000 children under the age of 19 die every year in the United States.

Our law firm represents parents who have lost a child due to the fault of another person or company. The legal term for a death caused by someone else’s negligence or wrongdoing is “wrongful death.”

Who can File Suit for Wrongful Death of a Child?

In Tennessee, only certain people have the right to file a lawsuit to recover damages for the wrongful death of a child. As a general matter, the child’s parents can file suit against the responsible party.  If the parents are divorced, special rules apply. Usually, the parent with “primary custody” has the right to file suit. An administrator can also file the lawsuit. Tenn. Code Ann. Section Tennessee Code Annotated Section 20-5-106 provides that the wrongful death cause of action:

shall pass to . . .the [child’s] natural parents or parent or next of kin if at the time of death [the child] was in the custody of the natural parents or parent and had not been legally surrendered or abandoned by [the parents] pursuant to any court order removing [the child] from the custody of [the parents or parent]; or otherwise to the [child’s] legally adoptive parents or parent, or to the administrator for the use and benefit of the adoptive parents or parent; the funds recovered in either case to be free from the claims of creditors.

Occasionally, due to family circumstances, wrongful death cases involving children can become very complicated. Sometimes disputes arise between divorced parents or among family members as to how the case should be handled. Also, even if you aren’t the person to file the lawsuit, you may still be entitled to recover a portion of the damages awarded. Likewise, the person who files the lawsuit may or may not be entitled to a portion of the money damages awarded. An experienced wrongful death attorney can talk with you, learn about your family situation, and advise you on your potential rights.

What are the Damages in a Wrongful Death Case Involving a Child?

Damages in a case involving the wrongful death of a child are determined on a case by case basis. A jury will look at all of the facts and circumstances and make an award. Legally speaking though, the types of damages recoverable in a wrongful death case are statutory and are set forth in Tennessee Code Annotated Section 20-5-113. The general categories are:

(1)     Injuries Suffered by the Child from Time of Injury Until Death

This classification allows recovery for medical expenses, physical and mental pain and suffering, funeral expenses, and loss of earning capacity during the period from injury to death.

(2)     Incidental Damages Sustained by Child’s Next of Kin

This classification of damages includes the pecuniary value of the child’s life.  The “pecuniary value” of a deceased child’s life represents the value of the child’s probable future financial accumulations at the time of the child’s death.  To determine the pecuniary value of a decedent’s life, a court considers the following factors: life expectancy and age, condition of health, capacity for earning money through a skill, art, trade, profession, occupation or business, and personal habits regarding sobriety and industry. The amount should then be reduced by deducting the decedent’s probable living expenses had the decedent lived.

In the case of a wrongful death of a child, the analysis is a bit different. Living expenses are the costs associated with child-rearing. In the case of a very young child, estimates of the child’s future earnings and contributions are speculative at best. For this reason, it can be helpful to have expert testimony concerning the valuation of a child’s pecuniary losses.

Loss of Consortium (Filial Consortium Damages)

Pecuniary value also includes the value of human companionship. Parents of a deceased child are entitled to recover for loss of consortium.  However, these claims for loss of consortium cannot exist independently from the claim that a defendant’s negligence caused the child’s death. Thus, parents cannot recover for the sorrow and anguish endured as a result of the child’s death. Rather, the “pecuniary value” of the child’s life includes a value for the parents’ loss of consortium

In determining the amount of consortium damages, courts consider the benefits the child bestowed on the family, such as companionship, comfort, society, attention, cooperation, affection, care and love. Because it is impossible to generalize on the extent to which family members enjoy each other’s companionship and society, the measurement of a particular parent’s loss of a particular child’s consortium is decided on a case by case basis.

Punitive Damages

If the child’s death was caused by reckless or intentional conduct, parents can seek punitive damages. Punitive damages are designed to punish the responsible person and deter similar behavior.

Negligent Infliction of Emotional Distress

Depending on the facts of the case, parents of a deceased child may be able to assert independent claims for “negligent infliction of emotional distress.” An experienced wrongful death lawyer can advise you further about this and other claims you may have.

Limits on Damages in Tennessee Due to Tort Reform

As a general rule, the most that parents can recover for “loss of consortium” damages for the wrongful death of a child is $750,000. Punitive damages are usually limited to $500,000 or two times the compensatory damages, whichever is greater. One of our Memphis wrongful death attorneys can discuss your case and explain the rules on damages in Tennessee, as well as the various limitations in effect due to Tennessee Tort Reform.

Looking for a Caring and Compassionate Wrongful Death Lawyer?

If you’d like to speak with a caring and compassionate wrongful death lawyer in the Memphis or Nashville area, please call our office at 901-372-5003. We’re not your everyday law firm. We are mothers and fathers just like you and we treat our clients like family. There is never any charge for an initial consultation or meeting.

Will I have to pay taxes on my settlement?

personal injury settlement

Will the IRS make me pay taxes on my settlement?

Many of our Memphis and Tennessee injury clients ask – will I have to pay taxes on my settlement for personal injuries?  The general answer is NO.

Here is what the IRS currently says about Settlements and Taxability:

If you receive a settlement for personal physical injuries or physical sickness and did not take an itemized deduction for medical expenses related to the injury or sickness in prior years, the full amount is non-taxable. Do not include the settlement proceeds in your income.

What if I did take an itemized deduction for related medical bills in prior years?

Will I have to pay taxes on my settlement if I did?  You must include in income the part of the settlement that is for medical expenses you deducted in any prior year to the extent the deduction provided a tax benefit. For detailed information on how to report this, we recommend that you speak with your accountant or tax professional.

What about settlements for Emotional Distress or Mental Anguish?

If you receive a settlement for emotional distress or mental anguish stemming from a personal physical injury or sickness, then the settlement is treated the same as a personal injury, as noted above above. However, if the settlement for emotional distress or anguish does not arise out of a personal injury or sickness, then you must include the proceeds in your income. Here is what the IRS states on this issue:

If the proceeds you receive for emotional distress or mental anguish do not originate from a personal physical injury or physical sickness, you must include them in your income. However, the amount you must include is reduced by: (1) amounts paid for medical expenses attributable to emotional distress or mental anguish not previously deducted and (2) previously deducted medical expenses for such distress and anguish that did not provide a tax benefit. Attach to your return a statement showing the entire settlement amount less related medical costs not previously deducted and medical costs deducted for which there was no tax benefit. The net taxable amount should be reported as “Other Income.”

Punitive Damages are Taxable

If you receive an actual court award of punitive damages, those proceeds are taxable and should be reported as “Other Income.”  This is true even if the award stems from personal injury or sickness.

Recovery of Lost Wages is Taxable

If your personal injury settlement is itemized to include recovery for lost wages, then that portion of the settlement is taxable and should be reported as income.  During the negotiation phase, most attorneys are careful to clarify and/or minimize, if not eliminate, any apportionment of the settlement to wages.  You would likely also receive a Form 1099 for any recovery attributable to lost wages.  [Note: Wages and/or settlements paid in connection with work comp are not taxable.]

Interest on a Settlement is Taxable

What if the other side doesn’t pay my settlement all at once? Will I have to pay taxes on my settlement if they pay me interest? Yes. Interest you are paid on any settlement is taxable as “Interest Income.”

Do I have to tell my CPA or Tax Preparer about my settlement?

We advise that you do, so that he or she can advise you on the most up-to-date reporting requirements applying to your specific settlement.

Injured and seeking legal representation?

Call us at 901-372-5003 or email us here. We handle a wide range of personal injury cases.  Our approach to handling cases is what sets our firm apart. While some injury lawyers and firms take on hundreds of cases, and may seem more interested in quickly settling the case than seeking full and fair compensation for their client, we focus on identifying great clients and great relationships.

Victims need a lawyer with the experience, drive, and knowledge necessary to compete with the insurance companies who are handling your claim. Otherwise, you’ll end up being a victim twice, and you might not even realize it until it’s already too late. Our personal injury practice is led by Harvard-educated attorney Lang Wiseman. We know how to get fair and just results.

Click here to learn more about the work we do.

 

Property Damage by Tree Limbs and Roots

Property Damage by Tree Limbs and Roots

property damage by trees, property damage lawyerHave you ever wondered about property damage caused by tree limbs or roots?

First, let’s talk for a moment about your neighbor’s tree limbs.  Suppose the tree itself is on your neighbor’s property, but the limbs are hanging over your fence, casting unwanted shade or shedding leaves you don’t want to pick up.  This really bothers you. Can you trim the limbs even though the tree belongs to your neighbor and is on his property?

The quick answer is yes. But don’t ask your neighbor to pay for it. And don’t trim the limbs beyond the property line. If it’s a more serious matter, you might have a nuisance action for property damage.

Option 1: Self-Help—Trim the Branches Yourself

Under Tennessee law, you may, at your own expense, cut away intruding vegetation to the property line whether or not it constitutes a nuisance or is otherwise causing harm to your property.

Option 2: Nuisance Action—Bring Suit to Make Your Neighbor Pay Damages and Fix the Problem

In some cases, you may have a cause of action for nuisance. A nuisance lawsuit may be brought when tree branches or roots from the adjacent property encroach upon and damage your property. Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 356-57 (Tenn. 2002).

What is a Nuisance?

In Tennessee, a private nuisance is anything which disturbs the free use of your property, or which renders its ordinary use or physical occupation uncomfortable. This extends to problems that endanger life or health, give offense to the senses, violate the laws of decency, or obstruct the reasonable and comfortable use of property.

Encroaching trees and plants are not nuisances just because they cast shade, drop leaves, flowers, or fruit, or just because they intrude upon your property either above or below the ground. However, the problem may be a nuisance if it causes actual harm or poses an imminent danger of actual harm to your property.

Example of a Nuisance Case

The Lane case represents a pretty extreme case of nuisance. In that case, the trees at issue caused a hole in the plaintiff’s roof and water from that hole ruined her ceilings and stove. In addition, the plaintiff had severe plumbing problems as a result of encroaching tree roots. She was not able to use her bathroom sink or tub for two years. Nor could she flush her toilet. Even worse, raw sewage bubbled up into her bathtub and the floor had to be replaced because the toilet continually backed up. The Court stated:

Clearly, the defendant’s encroaching trees have adversely affected the plaintiff’s reasonable and ordinary use and occupation of her home, not to mention posing hazards to the plaintiff’s health and safety. Accordingly, we reject the defendant’s assertion that its trees do not constitute a nuisance.

What’s the end result of a nuisance lawsuit?

The owner of the offending tree may be held responsible for harm caused and may also be required to cut back the encroaching branches or roots if a court finds that the encroaching vegetation is a nuisance.

If you are successful in a private nuisance action, you may be entitled to several types of remedies. A court might order that the nuisance be stopped (injunctive relief). You may also be entitled to money damages for the cost of restoring your property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of your property.

Read more about tree limbs and the law in Tennessee by reading our previous blog post titled, “Law FAQ: My Neighbor’s Tree Hangs Over the Property Line. Do I have the right to cut back the branches?” 

Need a Property Damage Lawyer?

Disputes between neighbors can be very uncomfortable. We can help, whether that means facilitating communication, fashioning an amicable resolution, or, if all else fails, filing a lawsuit. We’re here to help you find a solution that works for YOU!  Call us at 901-372-5003 or email us here if you need a property damage lawyer.

Meet the Wiseman Bray PLLC team by clicking here.

 

Who is the best lawyer near me?

best lawyer in memphis

You may have been hurt in an auto accident or truck accident and wondering:

 

  • Who is the best injury lawyer or best accident lawyer in Memphis, or Nashville?
  • Who is the best injury attorney near me?
  • Who is the best car wreck lawyer in Cordova, or Bartlett, or Germantown?
  • Who is the best car wreck attorney near me?

You may have been injured and Googled those questions, or perhaps others:

  • Who is the best personal injury attorney or wrongful death lawyer in Memphis?
  • Who is the best spinal cord injury lawyer, or brain injury lawyer near me, or in Memphis, or in Tennessee?
  • Who is the best lawyer to negotiate with an insurance company for damages for your injury?

Right question. Wrong answer.

You won’t ever hear any lawyer or attorney at Wiseman Bray PLLC claim that we are the “best” in Memphis – for a couple of different reasons. First, because there are plenty of fine lawyers and attorneys in the Memphis and Nashville, Tennessee area, including in Cordova, Bartlett, Germantown, Arlington, Millington, Collierville, and Lakeland.  We would seriously question any injury lawyer with the temerity to proclaim himself “the best.”

Second, based on Rule 7 of the Rules of Professional Conduct, the Tennessee Board of Professional Responsibility back in 2004 specifically prohibited such self-serving, subjective statements by attorneys, including statements that a lawyer is “most qualified,” “excellent,” “top,” “most experienced,” “preferred”, or an “expert” in a particular field of law, such as personal injury, auto accident, or wrongful death.  The Board’s opinion was based on provisions of Rule 7 that have since been revised, and thus it is not entirely clear whether an outright prohibition is still technically enforceable. However, most reputable lawyers still find such statements to be highly questionable, and certainly in poor taste.

So, the next time you hear an attorney refer to herself or himself as an expert, or say that he or she is the best lawyer in a Tennessee town – whether on TV or on a website or in marketing materials – you should know that that lawyer is not only humility-challenged, but also possibly in violation of the basic Rules governing attorney conduct.

The right answer?

At Wiseman Bray PLLC, you’ll only hear us talk about our experience in Memphis and Nashville, Tennessee injury claims, and about our unique and selective approach to personal injury and wrongful death claims. When it comes to injury cases, we’re not a high-volume, low-dollar settlement firm. We only take serious claims involving serious injuries or death, and we purposefully keep our caseload small so we can give our clients the attention they deserve.

Swimming Pool Injury and Drowning Cases in TN

pool injury lawyer, pool injury attorney, drowning victim attorney

Swimming 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.

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).

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

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

memphis injury lawyer jury trial

Why You Don’t Hear About Liability Insurance in a 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

What You Need to Know About Prom Season

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.

 

The Other Side is Lying. Can I Sue for Defamation?

The Other Side is Lying. Can I Sue for Defamation?

defamation, slander, libel, attorney“Can we sue them for defamation?” That is a question we receive very frequently from both Plaintiffs and Defendants we are representing in pending litigation. Typically, the question is a reaction to reading or hearing something alleged in the lawsuit, whether in a complaint, answer, discovery responses, or during courtroom or deposition testimony.  The client asking that question usually feels that his or her integrity is being questioned, is very upset, and wants to know if he or she can “counter-sue.”   In the context of litigation, the answer is no.  Let’s explore why.

What is Defamation?

To win a defamation case, you must prove that:

(1) Someone “published” a statement about you. (“Publication” is a legal term of art meaning the communication of the subject defamatory matter to a third person.)

(2) The publication occurred with knowledge that the statement was false and defaming to you, or with reckless disregard for the truth, or with negligence in failing to ascertain the truth.

(3) Your reputation was injured.  Damages from false or inaccurate statements cannot be presumed. Actual damages must be suffered and proved.

Brown v. Christian Bros. Univ., 428 S.W.3d 38 (Tenn. Ct. App. 2013). A statement is not defamatory just because it is annoying, offensive or embarrassing. Rather, the statement must be a serious threat to your reputation. Defamation includes both libel and slander. Libel is written defamation. Slander is spoken defamation.

But wait . . . there’s the Judicial Proceeding Exception

Statements made in the course of judicial proceedings which are relevant and pertinent to the issues cannot be used as a basis for a libel action for damages. This is true even if the statements are known to be false or even malicious.

The policy behind this rule is the paramount importance of access to the judicial process and the freedom to institute, defend, and participate in a lawsuit without fear of being sued for defamation.  This exception in Tennessee may leave a wronged individual with no remedy, but our courts have determined that the rights of the individual must be sacrificed for the public good. Desgranges v. Meyer, No. E2003-02006-COA-R3CV, 2004 WL 1056603, at *5 (Tenn. Ct. App. May 11, 2004).

What should I do if I think I have a defamation, libel, or slander case?

Call a lawyer to discuss your case as soon as possible. The deadline for filing a slander suit is 6 months from the time the words are spoken. The deadline for filing a libel suit is 1 year after the words are written. Gathering and preserving your evidence is crucial. Remember you must prove not only that someone defamed you, but that you suffered actual damages.

Wiseman Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003

Visit our website to learn why we’re not your everyday law firm.

We have offices in Memphis and Nashville and represent clients in Lakeland, Arlington, Cordova, Bartlett, Germantown, Collierville, and many other areas throughout Tennessee and Mississippi.

Top 8 Ways to Save Money on Attorney Fees

Top 8 Ways to Save Money on Attorney Fees

attorney fees, attorney's fees, legal fees

Let’s talk about attorney fees. When confronted with a legal claim or issue, some people simply want to “turn it over to the lawyer and be done with it.” Others prefer a more hands-on approach, and they prefer to work closely with legal counsel.  Some clients want to resolve a matter as quickly and cost-efficiently as possible, while others desire vindication and want nothing short of a judicial ruling or jury verdict. However, there is one thing that all clients probably agree on.  The lower the attorney fees, the better. 

How do you keep legal fees in check?

Make sure your goals and legal strategy are clear. Lawyers work for clients, and attorney fees are based on the amount of work the lawyer performs for the client.  Clear communication and responsiveness from both the lawyer and the client is critical.  Above all, you must make sure you communicate clear goals, and then to listen and understand what actions your lawyer is suggesting.

What can I do to save money on attorney fees?

There are also a few things you can do to reduce attorney fees, legal costs, and expenses:

(1)  Come prepared.  Each time you meet with your lawyer, anticipate questions and come prepared with information. Bring a timeline, notes, a list of witnesses and contact information, and relevant documents.  Don’t make your lawyer beg for the information he or she will need in order to best represent you.

(2)  Obtain, review and organize your documents.  The overwhelming majority of cases can be boiled down to a few key documents. You don’t want to pay your lawyer to obtain documents you could get yourself. Nor do you want to pay a lawyer to “find a needle in a haystack” or to review unorganized or unnecessary documents searching for one relevant piece of information.

(3)  Promptly do what your lawyer asks you to do.  Respond quickly to information and discovery requests from your attorney.  Failure to do so drives up costs immeasurably.  It can lead to unnecessary communications between opposing lawyers, and between clients and lawyers, and often leads to unnecessary motions being filed by opposing counsel.

(4)  Stay on top of your case. Keep copies of all papers, letters, and pleadings.  Take notes when you talk to your attorney.  Keep yourself informed about your case.  You’d be shocked at how often clients call and/or ask for meetings to re-review things they should already know, or to get copies of papers they already have.

(5)  Be an “information gatherer.”  This one is especially true for companies and small businesses. You know your business, employees, and contacts better than your lawyer. Utilize your knowledge and relationships. You can often obtain information and documents much more easily and cost efficiently than your lawyer can.

(6)  Utilize your lawyer’s assistant.  Many of your questions and phone calls can be directed to your lawyer’s assistant, most of which is not recorded as billable time.  For example, questions about scheduling, getting copies of documents, or coordinating meetings and events can easily be handled by a legal assistant much more cheaply than talking to the lawyer every time.

(7)  Understand the difference between legal advice and counseling.  It is obviously critical that you communicate effectively with your lawyer, but keep communications to the point. Oftentimes clients complain or vent about the opposing party, the unfairness of the situation and/or the legal process, or the tactics of the other lawyer.  It’s perfectly okay if you want to pay your attorney to be a sympathetic ear for you, but understand that you pay for your attorney’s time, and that you can very likely get a sympathetic ear elsewhere for free.

(8)  Compromise. Litigation is expensive. Realize that “wins” come in varying shapes and sizes, and that negotiating from a position of strength borne out of effective and thorough preparation can lead to the best long-term outcome.  Indeed, a lengthy lawsuit may not be the best long-term strategy even though you think might have a slam dunk case at trial two years from now.  Winning the battle isn’t worth losing the war.  Smart and tactical compromise can be a virtue, particularly when taking into account both the direct and indirect costs of litigation.

Wiseman Bray has offices in Memphis and Nashville, Tennessee.  Call us today at 901-372-5003.