Injuries to Trespassing Children

injuries trespassing children, personal injury lawyer

Attractive Nuisance Doctrine

In most states, there are special rules addressing injuries to trespassing children.  In Tennessee, for example, there is the “attractive nuisance doctrine,” recently codified in Tenn. Code. Ann. 29-34-208.

In summary, that doctrine holds that a land owner or possessor is liable for injuries to children who trespass if all of the following elements are present:

(1) The owner maintained a dangerous condition that was not a natural condition and knew or should have known that the condition posed a risk of death or serious bodily harm to trespassing kids;

(2) The owner knew or should have known children were likely to trespass onto the property, either because they would be lured there by the dangerous condition or because children regularly play on the property;

(3) The dangerous condition was not apparent, or children, because of their youth, would be unlikely to discover and comprehend the risk;

(4) The usefulness to the owner of maintaining the dangerous condition and the burden of eliminating the danger were significantly outweighed by the risk of harm to kids who would foreseeably trespass onto the property; and

(5) The owner failed to use reasonable care to eliminate the danger or otherwise protect the children.

This statute does not create or increase liability or affect any immunity from or defense to liability established by other statutes or common law to which a landowner may be entitled.

Even Trespassing Children are Protected by the Law

If your child was injured on someone else’s property by a dangerous condition, you should speak with a personal injury lawyer. Cases like this are very fact-dependent and are handled and settled on a case-by-case basis. Depending on the circumstances, you may be able to recover compensation to help you pay for your child’s medical bills and other damages, even if your child was trespassing.

We represent injured children and their families.

The attorneys at Wiseman Bray PLLC not only know how to deal effectively and efficiently with insurance companies, but we are also experienced trial lawyers.  We’d be honored to represent you and your family if your child has been injured. Please call us today for a free consultation at 901-372-5003. Or, if you aren’t a fan of the telephone, please feel free to email our team of injury lawyers.

We serve clients throughout Tennessee and Mississippi, including Bartlett, Cordova, Lakeland, Germantown, Collierville, Munford, Covington, Arlington, Nashville, Brentwood, and the surrounding counties and rural areas.  Sign up to receive our blog posts via email.

Wrongful Death of a Child

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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.

Does Health Insurance Cover Injuries from a Car Accident?

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Health Insurance vs. Car Insurance

Almost every state in this country requires a motor vehicle driver to carry insurance, except for New Hampshire and Virginia. Whenever you need to go to the hospital, you expect to utilize the services you pay for to cover your care. But what happens when you seek medical treatment as a result of a car accident? Does your medical insurance still cover this bill, or do you turn to your car insurance for assistance?

Which Insurance Company Covers the Bills?

This question is really quite detailed, and many factors come into play. In most cases, whoever is at fault is responsible for the medical bills. If someone else hits you and is cited for the accident, it is their insurance that is responsible for paying your medical bills. Now, let us suppose that you are hit by someone who did not have insurance coverage.

Uninsured/Underinsured Motorists

For situations where the at-fault party has little to no coverage, carrying an insurance policy known as uninsured or underinsured motorists coverage can help alleviate the stress of mounting medical bills. This coverage can allow your motor vehicle insurance to cover the medical portion of whatever the at-fault drivers could not. This can be especially important if injuries have lasting or permanent effects.

Initial Medical Costs Are Not Always Final

When it comes to a car accident and medical costs, the initial costs of treatment may not be the final total on care. Oftentimes, people do not realize how severely injured they are until days or even weeks after the incident.

Furthermore, if you have had to take time off of work due to your injuries, or have a possibly disabling condition; you may be entitled to further compensation for those damages as well. A DC car accident lawyer can stand beside you and fight for a compensation package that may be able to better recuperate damages you’ve suffered.

Why You May Need an Attorney

An insurance company wants to settle the claim as quickly and as quietly as possible. They do not want to go to court, and do not want to pay a dime more than they have to. Your best interest is not their priority; their main focus is to protect their bottom line. An attorney may be able to help combat attempts to settle your claim with a low-ball offer, expedite the settlement award process, and offer peace of mind by professionally managing all of the complexities of your case.

A top attorney should be able to examine your potential case and determine the path to compensation. They may also be able to assist in determining who is responsible for the medical bills based on your unique situation. There are always loopholes and all sorts of red tape when it comes to an auto accident; which is why having a legal adviser can be so beneficial.

Do you need a Personal Injury Lawyer?

Please call Wiseman Bray PLLC for a free consultation at 901-372-5003. We are personal injury lawyers in Memphis and Nashville and have extensive experience handling car accident cases. Tell us about your car accident case and let us help you. Sign up for email notifications of our blog post!

 

Thanks to our friends and contributors at Cohen & Cohen, P.C. for their additional insight into car accident and personal injury practice.

Neck Injuries from Slip and Fall Accidents

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The Costs of Slip and Fall Accidents

Most of us in our life have at some time slipped and fallen down with no long lasting effects, but a slip and fall accident can potentially result in a serious neck injury. When it can be proven that the cause of a slip and fall accident was due to someone’s negligence, that person or their company can be held liable. This includes the victim’s company if it can be determined that the slip and fall accident was caused by unsafe work conditions. Neck injuries can be serious.

A “simple” slip and fall accident may not have simple consequences. Serious neck injuries can result and wreak havoc on the victim’s long term health and well-being. The associated damages can be high as a result of:

  1. Ambulance transportation from the accident scene to the emergency room.
  2. Examination and x-ray fees plus any additional diagnostic tests.
  3. Medical costs associated with immediate, short and long term treatments.
  4. Physical rehabilitation.
  5. Surgery
  6. Lost wages from the present into the future.
  7. Lost benefits as a result of not being able to work.

Symptoms of a Neck Injury

Immediately after experiencing a slip and fall accident, seek medical attention. There’s no substitute for qualified medical expertise to diagnose the extent of your injury. If you suspect you may have sustained a neck injury, any of the following symptoms may be present but their absence does not mean your neck isn’t injured:

  • A dull aching in the neck
  • Pain when turning your head or moving it in any direction
  • Shooting pains, tenderness, numbness, or tingling in the neck area
  • Difficulty swallowing
  • Headache
  • Facial pain
  • Shoulder pain
  • Numbness or tingling in the arm

Types of Neck Injuries

A neck injury may affect the nervous system as well as the spinal cord. In the worst case scenarios, neck injuries can cause paralysis or death.

  • Whiplash can be caused by the head forcibly and suddenly moving in one direction and then snapping backward.
  • Neck fracture. A slip and fall accident can result in a break of the cervical bone, resulting in a neck fracture. The elderly and those suffering from osteoporosis are at greater risk of this injury due to the brittleness of their bones.

Who can be held accountable for a slip and fall accident?

This will largely depend on where the accident occurred, the circumstances of the accident, and who owns the property on which the slip and fall occurred. Negligence must also be proven. The following are only general guidelines and are in no way a substitute for legal advice:

  • If on private property, was the owner aware of the dangerous conditions but did nothing to address them?
  • If at your workplace, did your employers ignore unsafe working conditions?
  • If on public property, were those responsible for its maintenance knowingly ignore dangerous conditions that led to your slip and fall injury?

Statute of Limitations

Most slip and fall accidents will fall under the statute of limitations which limits how long you can wait before you seek legal recourse. If the at-fault party is a government entity, the statute of limitations period may be even shorter. It’s important that if you have had a slip and fall accident and suffered a neck injury as a result that you immediately consider contacting a Washington DC slip and fall lawyer.

Need a Memphis Personal Injury Lawyer?

Call Wiseman Bray PLLC at 901-372-5003 or email us here.

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0 COHEN

Thanks to our friends and contributors at Cohen & Cohen, P.C. for their additional insight into neck injuries as a result of a slip and fall accident.

Will I have to pay taxes on my settlement?

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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.

 

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

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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

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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.

 

Injured by a Drunk Driver?

drunk driver personal injury lawyer

The Sad Truth About Drunk Driving

Chances are, you either have been or will be the victim of a drunk driver in your lifetime. We know that intoxicated drivers cause personal injuries and deaths every day, but they also cause property damage. Even if you are not injured, your property may be. For example, drunk drivers often cause damage to other cars, houses, businesses, guardrails, signs, yards, and landscaping.

Drunk Driving Statistics

What are the odds that you have been or will be affected by a drunk or intoxicated driver? Take a look at these harrowing  statistics:

  • Every 2 minutes, a person is injured in a drunk driving crash.
  • On average, 2 in 3 people will be involved in a drunk driving crash in their lifetime.
  • The rate of drunk driving is highest among 26-29 year olds at 20.7%.
  • In 2014, 9,967 people died in drunk driving crashes. That’s one every 53 minutes. Another 290,000 were injured in drunk driving crashes.
  • Drunk driving costs the U.S. $132 Billion a year.
  • In 2010, drunk driving alone accounted for 18% of the total economic loss from motor vehicle crashes, costing the economy as much as $199 billion in direct and quality-of-life losses.

What does Drunk or “Intoxicated” Mean?

Tennessee law provides that a person is intoxicated when his or her physical and mental abilities are impaired as a result of drinking or drug use. The impairment must be to the extent that the person can’t act with ordinary and reasonable care like a sober person would under similar circumstances.

Can a Drunk Driver or Person Be Negligent?

Yes!  A drunk person is held to the same standard as a sober person.  Being intoxicated is no excuse for failure to act as a reasonably careful person.

We Represent Victims of Drunk Driving.

As a victim, you 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.  We are victim attorneys and we represent people who have been injured or damaged by drunk or intoxicated drivers. If you need help, we have offices in Memphis and Nashville Tennessee.  Please call us at 901-372-5003 or email us here.