FAQs About Suing My Child’s School

Personal Injury Lawyer

Was your child injured, bullied or harmed in some way at school? You may be wondering if you can sue the school, teacher, staff or parents of another child. If you’re like most people, you don’t have a lawyer on retainer. So our experienced team of lawyers created this document to answer some of the most frequently asked questions parents may have if their child has sustained injury at school.

A lot can happen on the playground, and kids can get hurt. It’s normal and to be expected. That’s why many states have laws prohibiting lawsuits against schools for student injury. But when does it become a matter of negligence or intentional harm?

Here are answers to some of the most frequently asked questions we receive from new clients:

  • Can I sue if my child was accidentally injured at school? Possibly, if you can prove negligence on the part of the school or school officials caused the harm to your child.
  • Can I sue if my child was emotionally injured at school? Did a teacher or school official shame your child or make an unfair example of your child? Was a school employee verbally abusive to your child? Has there been sexual harassment? Did the school allow your child to be bullied by another student or students? Can you prove this abuse caused academic problems for your child?  These kinds of cases can be difficult to prove, but not impossible.
  • Can I sue another child’s parents if their child harms my child? It is unlikely you will be successful in suing another child or their parents. Young children typically are not held legally responsible for their conduct. Exceptions do exist, such as in the case of older, teenage children, sexual harassment or especially egregious situations.
  • Can I be sued if my child harms another child? See the above answer. Again, it is unlikely, but not impossible.
  • Can I still sue for negligence if I signed a liability waiver? In some cases, yes. Even if you sign a liability waiver for school sports or a field trip, the school can still be held responsible if they acted negligently.
  • Can I sue a private school? In many cases, yes. Private schools are not under the same laws and mandates as publicly funded schools.
  • What kinds of damages can I recover? Damages can be difficult to prove. There are three main types of recoverable damages in a personal injury case: compensatory, general and punitive damages.

Every situation is unique. It is imperative that you consult with the best personal injury law firm in Philadelphia to discuss the specifics of your child’s potential case. Laws vary widely between different states and counties. If you can prove negligence and suffered documented damages, you may have a case.

 


 

Thank you to our friends and contributors at Wieand Law Firm, LLC for their insight into school injuries and personal injury cases.

Why You Need an Attorney During Estate Litigation After a Loved One Passes

Estate Planning Lawyer Memphis, TN

Estate litigation often involves disagreements between family members of the testator regarding legitimacy, or what is included in the will. An attorney understands just how painful this can be, especially when family members are trying to grieve the loss of their loved one. They will do what they can to answer any questions you have, and represent you during the case if needed.

Here are just a few examples of the types of questions estate planning attorneys hear during consultations with clients regarding estate litigation:

What does it mean for someone to have the mental capacity to write a will?

A person who creates a will must be aware of the extent of their assets and be able to identify beneficiaries. A family member that believes the testator was not of sound mind when he or she wrote the will, may come forward to request estate litigation.

If the testator had a mental illness, is that the same as mental incapacity?

If a person has a mental illness, this does not necessarily mean they are not able to make sound decisions. A testator that has been diagnosed with depression, anxiety, paranoia or another type of mental illness, may still have the ability to write a valid will to carry on their legacy to loved ones.

Why may the validity of a will be questioned?

Estate litigation may happen for multiple reasons. A relative of the deceased who thought they would receive a portion of the estate, but came to find out he or she did not after all, may contest a will out of pure spite of being left out. The will may be questioned if there were no witnesses present when the document was signed, or if a family member worries that coercion may have been a factor.

What does it mean if a testator was coerced in regards to their will?

The testator may have been pressured by another party to write certain things into the will, so that the coercer can receive a portion of the assets they desire. Those who are particularly susceptible to coercion are those of elderly age, are easily manipulated, or have a disability.

What if the will executor is not following the wishes of the testator?

Beneficiaries and loved ones of the deceased may come forward to report that the appointed executor has been negligent with the estate. The executor may be failing to abide by the testator’s written wishes, withholding rightful assets designated to certain beneficiaries, or otherwise acting in a manner that is for one’s own benefit.

Please reach out to Wiseman Bray, PLLC today to book your consultation with an estate planning lawyer Memphis, TN trusts so that they can assist during your healing process to make estate litigation a little bit easier.

Estate Planning with a Personal Injury Settlement

Memphis Estate Planning Lawyer

Winning a personal injury lawsuit or receiving a personal injury settlement is great. Whatever your accident and injuries, the lawsuit or settlement will greatly help you in your recovery process.

But it can impact your estate planning in many ways.

Medical Expenses

Depending on the severity of your injury, your current and future medical expenses could be costly. Your settlement will help with those costs. You need to be certain your settlement properly accounts for your medical expenses or your settlement funds could be improperly categorized as income to you. Not only will this decrease the amount of money you’ll have for your medical expenses, it will also increase the amount of tax you owe as your income will be greater. This is where the skill of an experienced estate planning attorney can greatly assist you.

Taxes

As discussed above, the size of your settlement could increase your taxes. This is important to consider when creating your estate plan so you minimize your tax liability. Your personal injury settlement is there for your recovery and your medical expenses – not to pay your increase in taxes.

Using the services of a law firm will help you to ensure your taxes are minimized and your settlement is used for the purpose it was intended – your recovery and your medical expenses.

Succession Planning

In a perfect world, your settlement funds will exceed your need for them. This doesn’t mean you have to give them back. But you should plan for having leftover money at your disposal.

This is important to consider in your estate planning because you want to make sure your heirs are taken care of after you’re gone. By setting up a trust to not only care for yourself during your lifetime, you are able to ensure your heirs are cared for after you’re gone. You have the ability to set up a trust for your benefit to manage the settlement proceeds and pay your medical and recovery expenses.

In addition, you have the ability to be your own trustee during your lifetime. The benefit to this approach is that you don’t have to give up control of your assets. Another major benefit is that you can have greater control over what happens to your assets after you’re gone. Finally, setting up a trust ensures you can make your money work for you. While you are not using funds, you can invest them. Even if your settlement proceeds are only put in a savings account, you can still earn interest on this money, ensuring that you make your money work for you.

Contact a trusted estate planning attorney

Your ability to plan for your future is limited only by the skill and experience of your Memphis estate planning lawyer. Choosing your estate planning attorney from Wiseman Bray, PLLC to guide you through the protection of your settlement funds and planning for your future is an incredibly important step.

Tennessee Awards of Alimony in Divorce

Tennessee Awards of Alimony in Divorce

Alimony is a legal obligation to pay a spouse or former spouse support. A court may require payments of alimony or spousal support on a temporary or permanent basis, during a divorce proceeding or after the divorce is granted. In addition to the monthly amount and length of term of payments, the type of alimony is very important. There are four types of alimony in Tennessee: alimony in futuro (also called periodic alimony), transitional alimony, rehabilitative alimony, and alimony in solido (also called lump-sum alimony). The type of alimony dictates whether the award may be modified after the divorce and under what circumstances the alimony obligation terminates.

Alimony in futuro (aka periodic alimony)

As a general rule, alimony in futuro (or periodic alimony) is a long-term alimony award when there is a significant disparity in earnings and wealth, and when rehabilitation is not possible. Tennessee law says that alimony in futuro will be owed when the person receiving support cannot expect to have a standard of living comparable to that enjoyed during the marriage.

Alimony in futuro can be modified by the court upon a showing of a change of circumstances. If the supported spouse cohabitates with a third-party, then the court may consider that the support may no longer be needed. Alimony in futuro automatically terminates upon the death of the receiving party or upon the recipient’s remarriage.

Alimony in solido (aka lump-sum alimony)

Alimony in solido, is also a form of long-term support. Alimony in solido is a unique form of alimony used most often to balance out a lop-sided property division, usually caused by a large indivisible asset going to one spouse (for instance, the marital home). Courts may also order attorney fees incurred by one spouse be paid by the other spouse using an award of alimony in solido. Depending on the circumstances, Courts may prefer awarding alimony in solido over an award of alimony in futuro.

Most often though, a party will receive an award of alimony in solido when parties settle in mediation and seek to avoid the risks of trial. The payments are either a single lump-sum or a series of payments over time. Alimony in solido is not modifiable. Furthermore, the obligation does not terminate upon the death of the recipient or payor.

Transitional alimony

Transitional alimony, is appropriate when a court finds that rehabilitation is not required but that the economically disadvantaged spouse needs financial assistance in adjusting to the economic consequences of the divorce.  Simply put, this type of alimony aids the person in the transition to the status of a single person. Transitional alimony lasts only for a certain period of time and generally terminates upon the death of the recipient or payor, unless otherwise specifically stated in the divorce decree. Transitional alimony cannot be modified, unless the parties agree to make it modifiable at the time of the initial order of divorce. For many, transitional alimony will be an attractive option because of its certainty and predictability.

Rehabilitative alimony

Rehabilitative alimony helps a former spouse obtain additional education, training, or experience to rejoin the workforce. This way the former spouse will be able to earn an income to achieve a standard of living comparable to that enjoyed during the marriage. In application, most judges will find self-sufficiency is more the goal than equal standards of living after divorce.

Rehabilitative alimony may be modified by the courts upon a showing of changed circumstances. Additionally, the length of the alimony award can be extended if it is shown that the recipient spouse did make a reasonable effort at rehabilitation, but that effort was unsuccessful. Rehabilitative alimony will terminate upon the death of the payor or recipient.

Tennessee’s alimony factors

In considering a divorce case and whether alimony should be awarded, and if so, the type of alimony to be awarded, including the amount and duration, Court are to consider the following factors:

  • The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit-sharing or retirement plans and all other sources;
  • The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party’s earning capacity to a reasonable level;
  • The duration of the marriage;
  • The age and mental condition of each party;
  • The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic, debilitating disease;
  • The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;
  • The separate assets of each party, both real and personal, tangible and intangible;
  • The marital property division;
  • The standard of living of the parties established during the marriage;
  • The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
  • The relative fault of the parties (who is more to blame) in cases where the court, in its discretion, deems it appropriate to do so; and
  • Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Basically everything is considered in determining an award of alimony. Need and ability to pay are often the two most important considerations.

Truck Driver Sentence for Horrific VA Crash

Auto Accident Lawyer

A food truck driver has been sentenced to 11.5 years in prison for his role in a Virginia crash that took the life of a local woman, reports NBC Washington.

On September 8, 2017, Tony Dane was driving a school bus that had been converted under the banner of his business, Dane’s Great American Hamburger, in Leesburg, Virginia. At close to 5:00 pm, Dane ran a stop sign and hit an Audi station wagon that was being driven by 39-year-old Erin Kaplan. She was killed, and her passengers – her mother, her teenage son and her two daughters – were also injured in the accident.

According to first responders, the family’s Audi was trapped underneath the ten-ton school bus. A wrecker had to be brought in to get the bus off of the car. It took emergency workers three hours to free the family from the twisted frame of their automobile, but unfortunately, Erin Kaplan was pronounced dead at the accident site. Given the devastating scene, Kaplan’s family members were lucky to survive.

Dane was injured in the crash, spending close to two months in the hospital before being transferred to a rehab facility. His grandmother and sisters, who were in his truck at the time of accident, also had brief stays in the hospital with crash-related injuries.

The 11.5-year sentence was the jury’s recommendation, and the judge rejected Dane’s request for leniency in the sentencing. According to the prosecution, the food truck operator drove with a complete disregard for public safety, with no insurance, no inspection and faulty brakes at the time of the accident. The judge apparently agreed and went with the maximum sentences.

The food business the truck belonged to was started by Dane and based in Winchester, Virginia. According to its website, Dane bought the bus and converted it into a food truck so he was able to travel with his family. Since the accident, the website has been taken down.

The tragic accident and the death of Kaplan shocked the local community, which raised thousands of dollars to help the family cover the medical costs related to the crash. The teenage victim of the accident, Ben Kaplan, added that he was very grateful for all the support the family has received.

After the incident, the state’s transportation department made improvements for safety at the intersection where the crash occurred, and a local county sheriff’s office stepped up enforcement in the area.

Running a stop sign may seem like an innocent mistake, but as this devastating crash shows, people can be seriously injured or lose their lives when a driver doesn’t stop at the designated sign or light. Reckless driving endangers everyone else on the road, and the actions of just one person can cause injuries to countless others.

If you or someone you care about has been hurt in an accident with a careless or reckless driver, contact an auto accident lawyer Denver, CO trusts about your rights and your case today. You may be entitled to receive compensation for your suffering, pain and losses stemming from your accident.

 


 

Thank you to our friends and contributors at Richard J. Banta, P.C. for their insight into truck accident claims.

Workers Compensation and Back Injuries

Workers Compensation and Back Injuries

If you suffered a back injury while on the job, you’re already aware that back injuries can be extremely painful. They can also make it impossible to perform even simply tasks such as tying one’s shoes or cooking. It can also make it impractical to return to work. A workers compensation lawyer is very familiar with this scenario, and it is one that is all too common. If you sustained a serious injury at work, a lawyer may be able to help you get a settlement which can replace your lost income and pay for all of your injury-related costs.

Workers Compensation Benefits

In a perfect world, every worker who sustains any kind of injury receives sufficient benefits from workers compensation to pay for all of their lost wages and accident costs such as medical care. However, that rarely happens. In fact, workers compensation does not pay you your full wages, even if you are unable to work because of a work injury for which you were not at fault. This can be unfair, and if you are denied any benefits for one or more reasons, you may be unable to afford proper medical care to treat your condition. If your personal health insurance does not cover your injury related costs, you may have to seek less than acceptable medical care and insufficient or no medications. As a result, you may not heal as fast or as fully as you might otherwise. For these reasons, it’s important to contact a workers compensation lawyer as soon as possible.

The Nature of Back Injuries

Many back injuries are mild and do not require significant care or recovery time. In those cases, the worker’s physician may recommend that the employee stays home from work for a minimal period of time and take over-the-counter anti-inflammatory medication. However, more serious back injuries can require significant recovery time and necessitate staying home for an extended period. If this describes you, workers compensation benefits may not be enough to pay for your injury treatment and everyday bills because you’re not able to generate your normal level of income. You may have options available to you in lieu of workers compensation.

Personal Injury Claims

A workers compensation lawyer New York trusts can help you get the compensation they deserve after suffering a terrible injury while on the job. Depending on the circumstances of your case, you may qualify for a settlement as a result of a successful personal injury claim. In lieu of workers compensation, you may be better off filing a claim against the party responsible for your injury. Very often such a settlement is far greater than what you might hope to receive from workers compensation benefits. It requires an experienced workers compensation lawyer to analyze the details of your case and make this determination.


Thank you to our friends and contributors at Polsky, Shouldice & Rosen, PC for their insight into workers compensation.

Workers Compensation Lawyer

Workers Compensation Lawyer

Being injured at work can cause anxiety, stress, and confusion. You might wonder what will happen while you recover from your injuries? How will you cover your medical bills and expenses? What about your job; will you be fired?

As a workers compensation attorney, we understand your concerns and would like to explain your legal rights and options to you during a free and confidential consultation. Lawyers help injured workers get maximum compensation for claims including:

  • Temporary disability
  • Total permanent disability
  • Loss of limb
  • Loss of eyesight
  • Loss of hearing
  • Neck, spine, or back injuries
  • Head injuries
  • Broken bones
  • Torn muscles and ligaments
  • Lacerations
  • Burns
  • Wrongful death
  • + More

We know that your job and injury could have you anxious, and you’re scared about what the future holds. Rest assured as a workers compensation lawyer, we will work tenaciously to ensure your claim gets approved and you receive compensation that covers your living and medical expenses.

Workers Compensation Benefits

Every state has workers compensation laws that allow workers who have been injured on the job to recover a certain amount of compensation regardless of who is at fault. This protects both the employer and employee. While on workers compensation, a workers can receive medical care, treatment, and rehabilitation. He or she is also compensated, up to a certain percentage, of their salary. In turn, the employer is protected from a lawsuit being filed against them. Benefits that may be available include:

Medical Care – Including surgery, hospital visits, doctors visits, medication, lab work, rehabilitation, etc.

Disability – Coverage for workers who are no longer able to work, or have been partially disabled.

Permanent Loss – Including loss of limb or one of the five senses.

Death – Benefits are paid to the surviving family members when a worker loses his or her life.

Not every employee will be able to claim workers compensation. For example independent contractors are generally not covered by these benefits. A workers compensation lawyer can discuss the qualification requirements in further detail.

Let a Workers Compensation Lawyer Review Your Case

The workers compensation process is not as straightforward as it might seem. It is very common for claims to be denied at first which not only delays you in getting the money you need, but also requires you to go through a tedious appeals process.

Furthermore, you have limited windows of time to initiate the process. If you miss this short deadline, you can be barred from collecting workers compensation. Finally, there is a chance that by filing workers compensation on your own, you could lose out on money that you need and deserve. For this reason you should ask a workers compensation lawyer to help you with the process. A St. Lucie County work injury lawyer can ensure all documentation is correctly completed and filed in a timely manner. He or she can also maintain communication with your employer and their insurance company; thereby, protect your legal rights to the fullest.


Thank you to our friends and contributors at the Law Offices of Franks, Koenig & Neuwelt for their insight into workers compensation benefits.

It’s Summertime, and Vibrio is a Problem

vibrio lawyer medical treatment

Vibrio Lawyer Tennessee

If there is one thing a vibrio lawyer will tell you is that a vibrio infection is not a day at the beach. But when most people think about vibrio, they think about raw seafood – oyster, clams, scallops, and shellfish in general. They do not usually think about the beach, or rather, ocean water.

But if you have been watching the news this summer, you probably have heard of the term “flesh-eating bacteria.” Flesh-eating bacteria is actually a species of vibrio, called vibrio vulnificus. It does not actually “eat” flesh, but rather kills it. A long-term complication of this type of infection causes skin around the infected area to slowly die, called necrosis fasciitis. This can also lead to the potential for limb amputation, and possibly, death. According to the CDC, many cases are diagnosed across the United States each year, requiring quick antibiotic treatment for survival. There have been cases from Florida, Alabama, Texas, and other Gulf Coast states in the news recently linked to swimming in ocean waters. Vibrio, which loves warm, salty, brackish water, infected those who became ill through open wounds.

Summer is especially a concerning time for vibrio, due to the warming of coastal waters. Vibrio vulnificus is not because of pollution, and is not unique to the Gulf of Mexico.

What Are Vibrio Symptoms?

Vibrio symptoms typically begin within 24 hours of infection.  Vibrio symptoms include: watery diarrhea, nausea, vomiting, abdominal cramping, fever, and chills.  Symptoms often last about three days.

However, Vibrio can lead to severe infections, amputations, and even death in vulnerable people.  Vibrio can infect and sicken anyone.  But people with any of the following conditions are more likely to get Vibrio infections and, once infected, are more likely to suffer severe (even life threatening) complications:

  • People undergoing any type of immune-suppressing therapy as part of their medical treatment;
  • People taking medicine to reduce levels of stomach acids;
  • People who have recently had stomach surgery; and
  • People with liver disease, cancer, diabetes, thalassemia, or HIV.

People with any of these conditions are at an especially high risk from Vibrio infections.

How Common is Vibrio?

According to the CDC, each year approximately 80,000 Americans are infected with Vibrio.  Approximately 100 Americans die from Vibrio infections each year.

How Is Vibrio Diagnosed?

Vibrio infections are diagnosed by testing the stool, blood, or wound of a patient.

Prevention

But vibrio infections of this kind are preventable. According to the Galveston County Department of Health,

“People who suffer cuts while in natural bodies of water anywhere should immediately leave the water, thoroughly clean the wound and do not return until the wound heals. It’s important to keep an eye on the area for infection or swelling. If either occur, medical attention should be obtained immediately. Vibrio vulnificus infections are treatable, especially if caught early. Wearing water shoes while swimming and gloves or waders while fishing can help prevent cuts.”

Thanks to our friends and contributors from Make Food Safe for their insight into Vibrio injuries.

When Uber Fails to Give You a Safe Ride

When Uber Fails to Give You a Safe Ride

Many people take Uber as a way to get home after a party, to work if their car is in the shop, or if they enjoy having another person shuttle them to and from. Uber has become a popular resource that is often viewed as a safe form of travel. If a rider were to ever be involved in an accident, he or she may be unsure of how to respond. It can take people by surprise to be in the middle of an Uber lift, and then be part of an unexpected car crash. Any person who was in a car accident, whether as driver or passenger, should put their health first and get a medical exam right away.

Here in this article, we have answered a few questions about Uber rides, and what you can do to take action if you suffered injuries as a rider.

If my Uber driver gets hit in an accident, how should I respond?

Those who were riding as an innocent passenger in an Uber, may have an urge to flee the scene of an accident. But, by doing so you could be greatly hindering your chances of receiving compensation if you found out later you did in fact suffer injuries due to the fault of another. It may be best to respond just as if you were part of any other kind of accident by doing the following:

    1. Call 911 so police and an ambulance can arrive for support and officially document the collision.
    1. Examine yourself for injuries, and if you have sustained any ask the medical team to do an exam at the scene.
    1. Gather the information of the Uber driver and the other driver involved in the crash, including their name, method of contact, insurance carrier, driver’s license number, and vehicle details.
    1. Keep an eye out for any aches, soreness or bruises that may arise in the days following the incident, and go to your doctor for another exam if you have any concerns.
  1. Consider meeting with an attorney for legal advice if your injuries cost you money, as you may be eligible for monetary compensation.

If I am going to meet with an attorney, what information should I bring?

The more information you bring to your car accident lawyer Dekalb County, GA residents trust about the accident, the better he or she can advise you on what steps to take next. An attorney can not only provide guidance, but representation too if you decide to file a lawsuit after all. If this is your first time talking with an attorney, you should bring along the following details:

    • Copy of the accident report taken by officer
    • Contact information of any witnesses or other riders who were with you at the time of the crash
    • Receipts for medical costs, emergency care and/or hospitalization
    • Doctor’s exams and diagnostics regarding your accident injuries
    • Other damages or related information about what happened
    • Receipt of costs if you had paid for the Uber ride
  • Photographs of the scene and/or visible injuries

Thank you to our friends and contributors at Andrew R. Lynch, P.C. for their insight into personal injury and uber riding.

Whose fault is it anyway? Pedestrian hit by a vehicle.

Whose fault is it anyway? Pedestrian hit by a vehicle.

We have all heard news reports of a pedestrian being struck by a vehicle.  Here in Memphis, it seems pedestrians are hit at alarming rates.

In one common scenario, the injured pedestrian is hit while crossing a public street outside of the designated crosswalk.  That is precisely what happened to a friend of mine last year.  He was “jaywalking” when he was hit by a speeding vehicle.  Thankfully, he recovered well and is back at work.

Interestingly, when I talked about his accident with our common friends, most assumed that because he was jaywalking, he is at fault and cannot recover for his injuries.  However, despite what you might initially think, these types of accidents are not so straightforward.  Drivers are not allowed to plow into pedestrians simply because they are crossing the street outside of a designated crosswalk.  Indeed, these matters are highly fact-dependent.  Was the driver talking on his or her cell phone, speeding?  Was he or she under the influence of drugs or alcohol that might have slowed his or her reaction time down?  What other factors might have contributed to the accident?

In a case involving a jaywalking pedestrian, whose fault is it anyway?

Tennessee law – comparative fault generally

Historically, the general rule was that if a plaintiff contributed to the accident, he could not recover for his injuries.  In Tennessee, the rule initially stated that “if a party, by his own gross negligence, brings an injury upon himself, or contributes to such injury, he cannot recover;” for, in such cases, the party “must be regarded as the author of his own misfortune.” Whirley v. Whiteman, 38 Tenn. 610, 619 (1858). Subsequent court decisions followed that same general rule that a plaintiff’s contributory negligence completely barred recovery (citations omitted).

In 1992, the Tennessee Supreme Court overturned that general rule, commonly referred to as contributory negligence, and “conclude[d] that it [was] time to abandon the outmoded and unjust common law doctrine of contributory negligence and adopt in its place a system of comparative fault.” McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992).  The Supreme Court discussed the two (2) different types of comparative fault systems used in various states around the country (i.e. pure comparative fault and modified comparative fault).  Under a pure comparative fault system, “a plaintiff [that is] responsible for 90 percent of the negligence that caused his injuries nevertheless may recover 10 percent of his damages.” Id.  In a modified system, “plaintiffs recover . . . only if the plaintiff’s negligence either (1) does not exceed (“50 percent” jurisdictions) or (2) is less than (“49 percent” jurisdictions) the defendant’s negligence.” Id.  Ultimately, the Tennessee Supreme Court rejected the pure form of comparative fault choosing instead to adopt a modified comparative fault system.

More specifically, the Supreme Court held that “so long as a plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.” Id.

What does Tennessee’s comparative fault system mean for injured plaintiffs?

Ultimately, the jury, as the factfinder, determines what fault, if any, to attribute to the plaintiff.  The plaintiff’s proportional fault is then used to offset his or her ultimate recovery.

In a case involving a jaywalking plaintiff, the jury will undoubtedly hear about the plaintiff’s own fault for walking out into traffic, but that fact alone does not necessarily mean he cannot recover for his injuries.  Of course, that does not mean the jury will ignore his fault.  Indeed, a jury is likely to attribute some portion of fault to the plaintiff.  The amount of fault a jury may give the plaintiff will, of course, vary from case to case.

To illustrate how a plaintiff’s fault effects his recovery, let’s assume a jury determines that a jaywalking plaintiff is 25% at fault and the driver defendant is 75% at fault, then the plaintiff’s recovery would be reduced by 25% of the total damages.  Therefore, if the jury awarded $100,000 in damages, the plaintiff’s net recovery would be $75,000 (before case expenses & fees) taking into account his 25% fault.

Of course, these types of cases are highly fact dependent and, often times, difficult to prove.  If you or someone you know was involved in an accident as a pedestrian or otherwise, you need an experienced attorney to help you analyze your potential case and guide you through the legal process.

If you need help with a potential personal injury claim, call us today at (901) 372-5003 for a free consultation.