TN COA REVERSES DISMISSAL OF SLIP AND FALL CASE INVOLVING INADEQUATE LIGHTING

On November 30, 2010, Plaintiff Cynthia Christian was an invited guest for a function at Ms. Lassie's Lodge in Campbell County, Tennessee.  The Lodge was regularly rented for parties and other functions via the nearby Hampton Inn.  Ms. Christian arrived when it was still daylight, and the function ended after dark.

Before or during the function, an owner of The Lodge in charge of the event turned on some exterior lights.  However, the lights installed and  intended to illuminate the parking area and walkway leading to The Lodge were not operative.  As Ms. Christian walked from The Lodge to her car she stepped into a hole in the parking area which could not be seen in the dark.  She suffered personal injuries which resulted in more than $50,000 in medical expenses.  She later sued The Lodge for its negligence in failing to provide adequate lighting on the walkway and parking area for guests.

The Lodge asked the Circuit Court for Campbell County to dismiss the case claiming that: (1) it had no notice that the lights in question were out and (2) despite the lack of lighting Ms. Christian was more than 50 percent at fault for her fall and injuries.  In other words, the company who operated The Lodge for profit claimed that it had no idea its lights did not work and that if Ms. Christian could not see in the dark that was her problem.  The Lodge maintained this disingenuous defense even after The Lodge staff testified that: 1) the owner was in fact aware that the lights for the walkway and parking area were inoperative before the evening function; 2) they had no procedure for the inspection and maintenance of the exterior lights; and 3) the day after the fall and injury The Lodge staff inspected the lights and found as many as 14 exterior flood lights inoperative including those for the walkway and parking area.

Despite The Lodge's clear and actual notice of its inoperable lights, its failure to inspect or replace the lights, and the danger created by the lack of lighting, the Circuit Court inexplicably dismissed the case.  The Circuit Court found that there was insufficient evidence to show that The Lodge had notice of the lighting issue prior to Ms. Christian's fall - despite The Lodge's own apparent admission to the contrary.

Ms. Christian appealed, and on March 28, 2014, the Tennessee Court of Appeals reversed the decision of the Circuit Court properly finding that a jury could reasonably find that : 1) The Lodge had actual notice of the inoperative lights, the associated danger and a duty to act reasonably to remedy the issue; and/or 2) the lighting problem existed long enough that The Lodge through reasonable care and diligence should have discovered the danger and replaced the lights.  The case was remanded for trial by jury on all issues. Read the full opinion here.

Tractor Trailer Collision Leads to Record Settlememt

In one of the biggest personal injury settlements in Pennsylvania history, a family that suffered death and injuries after being rear-ended by a tractor trailer has received a $26.1 million settlement.

In 2010, the three Plaintiffs were driving on I-80 in Pennsylvania when they came upon stalled construction traffic.  While Plaintiffs were stopped on the highway the Defendant tractor trailer driver failed to stop and slammed into the rear of Plaintiffs' car at over 70 miles per hour.  One Plaintiff was killed instantly and another suffered a TBA (traumatic brain injury).

The driver was operating his tractor-trailer for GLC Transportation Inc. and Great Lake Cheese companies in Ohio and New York.  The amount of the settlement is primarily based on the wrongful death and lifelong injuries and care ($8 million life care plan) which resulted from the collision.  In addition, it was shown that the tractor trailer driver  ignored construction signs as he pressed his rig in excess of 72 miles per hour in the construction zone.  

Obtaining a settlement of this magnitude is the result of a huge amount of work on the part of tractor-trailer and truck injury attorneys.  Many truck drivers and trucking companies maintain only minimum trucking insurance limits of $750,000-$2 million.  The trucking accident attorneys of the Law Office of Stephen A. Burroughs are familiar with trucking insurance and Federal Motor Carrier Safety Regulations which help those injured in truck accidents access multiple levels of insurance coverage in trucking cases.  By holding truck drivers, trucking companies, trucking brokers, and sometimes even the shipping customers, accountable for negligent brokering, negligent loading or illegally ordering truck drivers to speed or to drive while fatigued additional layers of insurance coverage are triggered.  If you or a loved one has been injured due to a negligent or reckless truck driver - make sure you hire an attorney experienced in trucking accidents.  Remember -a  trucking accident is not just another car wreck.      

CPSC IMPROVES SAFETY STANDARDS FOR STROLLERS AND CARRIAGES

The Consumer Product Safety Commission (CPSC) has approved a new federal safety standard that will improve the safety of all carriages and strollers sold after September 10, 2015.

The new standard was developed due to the CPSC’s review of more than 1,300 stroller safety incidents involving children 4 years old and younger from 2008 through 2013.  Many of these incidents led to product liability cases based on stroller design and manufacturing defects and failure to warn.  The incident numbers to-date  show that defective strollers and carriages resulted in 4 child deaths, 14 hospitalizations, and 391 injuries.  The most common injury was severe pinching or amputations due to hinge design and placement.

The new safety standard requires that all strollers and carriages be made, tested and labeled to minimize the hazards seen in such incidents.  The design changes will include:

Hinges which will not pinch, cut, or amputate fingers or arms

Wheels resistant to breakage and detachment

Better parking brakes and redesigned locking mechanisms

Child-proof restraints and more secure seat belts

Structural integrity and improved stability

If you have any doubt that your child’s current stroller is safe check with the CPSC for recalled models.  Many manufacturers will repair or replace their product to protect your child.  

NHTSA, CONGRESS AND JUSTICE DEPT WANT TO KNOW IF GM WITHHELD DATA ON DEFECTIVE IGNITION CRASHES

The AP is reporting that the National Highway Transportation Safety Agency (NHTSA),  two congressional committees and the Justice Department are investigating why it took so long for GM to recall 1.6 million cars with defective ignition switches.  GM has acknowledged knowing about deadly ignition switches at least a decade ago, but it intentionally or negligently failed to recall the affected compact cars until February 2014.  In the interim, competing reports relate between 13 and more than 300 injuries or deaths to the defective ignition switches. Read the full AP story here.   

The product liability attorneys of the Law Office of Stephen A. Burroughs are actively following the developments in the GM defective ignition hearings and litigation. The firm handles Tennessee product liability cases throughout the state. Tennessee has a one (1) year statute of limitations and a ten (10) year statute of repose for injuries or deaths related to defective products such as GM's Chevy Cobalt, Pontiac G5, Saturn Ion, Chevy HHR, Pontiac Solstice or Saturn Sky.  This means that if you or someone you know was seriously injured due to a defective GM ignition switch, and you just recently learned of the problem, you can likely still bring a claim against GM in Tennessee or another state.  Call attorney Bryan L. Capps or Stephen A. Burroughs for a free consultation.    

GEORGIA NURSE'S DEATH CAUSED BY DEFECTIVE GM INGNITION

GM knew as early as 2001 that its ignition switches could fail during normal operation.  GM knew that when the ignition failed that the driver would lose the use of power steering, anti-lock brakes, and airbags.  They investigated and found a "partial fix" leaving hundreds of thousands of GM owners unknowingly vulnerable to the defective ignition and associated dangers.  It then knew of and failed to act on multiple deaths caused by the failures as it denied and defended against suits alleging the defect.  GM now says it made a "business decision" not to act.    Read the full story here. 

WATCHDOG GROUP FINDS 303 DEATHS RELATED TO GM DEFECTIVE IGNITION DEVICES

Reuters reports that U.S. safety regulators have recorded 303 deaths when airbags failed to deploy in 1.6 million compact cars recalled last month by General Motors Co, according to a study released Thursday night by a safety watchdog group.

Evidence is mounting that GM knowingly sold vehicles while withholding the truth about defects in its ignition system.  
Read the full story here - 303 Deaths related to GM ignition

GM Defective Ignition Key - 13 Wrongful Deaths To-Date

On February 13, 2014, General Motors (GM) recalled 780,000 Chevrolet Cobalts and various Pontiac models for repair of a faulty ignition switch that has been found to cause the ignition key to slip out of the run position.  GM is aware of situations where the key has slipped due to heavy key chains and due to the vehicles hitting hard bumps in the road.  When this occurs, the engine can shut off leading to loss of power to vital systems such as power steering, airbags and anti-lock brakes.

On February 25, 2014, GM expanded the recall to cover certain Chevy, Pontiac, and Saturn cars, bringing the total recall to as high as 1.4 million vehicles.

GM has acknowledged the defect caused or contributed to 31 crashes involving airbags which did not deploy and the deaths of 13 motorists. Evidence from civil lawsuits shows that GM knew about the Cobalt ignition defect as far back as 2004, but GM issued no recall.  This and other evidence has led to the U.S. Attorney's Office in New York opening a criminal investigation into GM’s knowledge of the ignition defect.

If you or someone you know has been injured as a result of this defect in a Chevy Cobalt, Pontiac G5, Saturn Ion, Chevy HHR, Pontiac Solstice or Saturn Sky, please call the Law Office of Stephen A. Burroughs  for a free consultation.  GM may have culpability based on the defect and the failure to warn consumers of the known danger.  

DENIAL OF BENEFITS UNDER AN ERISA HEALTH INSURANCE PLAN?

Have you been denied health, disability or life insurance benefits through your employer-sponsored health plan?  Have you been to told you have an ERISA plan and must follow the claim and appeal procedures in your ERISA policy?  If so, you may need a Knoxville ERISA lawyer to help you understand the ERISA claim and appeal process.

ERISA stands for the Employee Retirement Income Security Act of 1974.  It was designed to protect the interests of employees/participants and their beneficiaries who depend on benefits from private employee benefit plans.  Unfortunately the law is often used to successfully deny needed health insurance benefits.   ERISA sets rules and standards for how insurance companies and/or businesses administer ERISA-based health, disability and life insurance plans.  These standards include clearly written rules and procedures for denial of claims or benefits and an appeal process to challenge such denials. 

If you are denied health insurance or other benefits, your ERISA plan administrator must give you the reason for denial in writing and in a manner you can understand.  It also must give you a reasonable opportunity for a fair and full review of the decision.  An employee or plan member must exhaust the appeal process before any lawsuit can be filed for benefit denial.  Generally any such suit must be filed in federal court following a complex procedure to prepare the case for judicial review. 

If you believe you have been improperly denied benefits under an ERISA policy or plan, how you build the record during the ERISA appeal process is key to whether you win the appeal and to whether you  win an ERISA lawsuit.  The Law Office of Stephen A. Burroughs handles ERISA appeals and suits and can give you advice on how to proceed during the appeal phase.  You may also want to view the following for information on your ERISA plan and the appeal and lawsuit process.

http://www.dol.gov/ebsa/publications/how_to_file_claim.html

   http://www.michbar.org/younglawyers/pdfs/erisa_materials.pdf

Manufactured Home Arbitration Clause Held Unconscionable and Unenforceable

The Tennessee Court of Appeals in Richard A. Berent v. CMH Homes, Inc., et al., ruled that an arbitration clause which forces all of plaintiff home buyer's claims to arbitration but allows finance company access to courts is unconscionable and unenforceable.  Applying the Tennessee Supreme Court's holding in Taylor v. Butler, 142 S.W.3d 277 (Tenn. 1996), the Court of Appeals held against CMH Homes, Inc. and Vanderbilt Mortgage ruling that the arbitration clause must fail.  The opinion seems to invite review by the TSC as to whether its holding in Taylor remains viable.  Read the full opinion here.

GM Recalls 200,000 More SUVs Due to Fire Risk

General Motors has issued a recall of an additional 200,000 SUVs due to a defect in the power window and door module that can lead to a fire. The company said that moisture can seep into the driver-side door and cause the electronics to overheat and short circuit, posing a fire risk. The recall covers 2006-07 models of the Chevrolet Trailblazer, GMC Envoy, Buick Rainier, Saab 9-7x, Isuzu Ascender, 2006 Chevrolet Trailblazer EXT and GMC Envoy XL.  
Full Story at:
http://www.usatoday.com/story/money/cars/2013/06/16/general-motors-chevrolet-buick-saab-gmc-isuzu-suv-recall/2428061/

TWCA reviews whether an employee suffered a compensable injury that left him partially disabled

STEPHEN D. GOOD v. SUNKOTE PLASTIC COATINGS CORPORATION ET AL. (TWCA December 19, 2012)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

The employee sought workers' compensation benefits, alleging that he injured his back at work on September 30, 2008, and is now totally and permanently disabled. The employer denied that the employee sustained a compensable work-related injury, but alternatively argued that the employee is not totally and permanently disabled.

The trial court concluded that the employee sustained a compensable work-related injury and awarded 80% permanent partial disability benefits. The employer has appealed, arguing that the evidence preponderates against the trial court's finding that the injury was compensable and that, even if the employee proved a compensable injury, the evidence preponderates against the award of 80% permanent partial disability benefits. We affirm the trial court's judgment.

Opinion available at:
https://www.tba.org/sites/default/files/goods_121912.pdf

Court reviews a case involving an automobile accident

EDNA H. IRWIN, v. CHRISTOPHER MARTIN ANDERSON (Tenn. Ct. App. December 18, 2012)

Plaintiff received serious injuries in an automobile accident, when she turned left in front of the oncoming vehicle operated by defendant. The suit resulted in a jury trial wherein the jury returned a verdict for defendant, which was approved by the Trial Judge. On appeal, we affirm the Trial Judge's Judgment.

Opinion available at:
https://www.tba.org/sites/default/files/irwine_121812.pdf

Court reviews a case involving battery, intentional infliction of emotional distress, and business-related claims

SARAH HURST v. COLMAN S. HOCHMAN, ET AL. (Tenn. Ct. App. December 14, 2012)

Sarah Hurst ("Hurst") sued Colman S. Hochman ("Hochman") and Hochman Family Partners, L.P. ("the Partnership") alleging that Hochman had committed a battery upon her, and seeking damages for battery and intentional infliction of emotional distress among other things.

After a trial, the Trial Court entered its Final Decree that, inter alia, awarded Hurst damages of $2,500 against Hochman for battery; denied Hurst's claims for intentional infliction of emotional distress, discrimination under the Fair Housing Act, and punitive damages; and dismissed Hurst's claims against the Partnership. Hurst appeals raising issues regarding whether the Trial Court erred in denying her claim of discrimination under the Fair Housing Act and in dismissing her claims against the Partnership. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/hursts_121412.pdf

Court reviews whether the trial court had proper jurisdiction to review an administrative order from the Labor Department

C.H. GUENTHER & SON, INC. v. SUE ANN HEAD ET AL. (Tenn. Ct. App. December 10, 2012)

An employee appeals the trial court’s decision to void a final administrative order by the Department of Labor awarding the employee attorney fees with respect to the employee’s actions to enforce a workers’ compensation settlement. We have determined that the applicable request for assistance process does not constitute a contested case under the Uniform Administrative Procedures Act and that the trial court therefore lacked subject matter jurisdiction to hear this matter. We reverse the decision of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/chguenther.pdf

TWCA reviews whether an employee's injury was compensable.

SCOTT D. STRAIN v. MR. BULT’S, INC. ET AL. (TWCA November 29, 2012)

An employee alleged that he sustained an injury to his back. His employer denied the claim. The trial court found the injury to be compensable and awarded the employee 30% permanent partial disability benefits. The employer has appealed contending that the evidence preponderates against the trial court’s finding that the injury is compensable. On appeal, the employee asserts that the award of benefits was inadequate. After review of the record, we affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/strains_112912.pdf

Court reviews a medical malpractice case re-filed by the original plaintiff's heir following her death

DARLA BULLOCK, as next of kin and sole surviving heir of Linda H. Lobertini v. UNIVERSITY HEALTH SYSTEMS, INC. (Tenn. Ct. App. November 27, 2012)

This is an appeal in a medical malpractice case. The original plaintiff, the decedent, filed the initial malpractice action against the defendant, but the case was dismissed after the decedent passed away during the pendency of the suit.

Her sole surviving heir re-filed the action without complying with Tennessee Code Annotated sections 29-26-121 and 122, which require a plaintiff who files a medical malpractice suit (1) to give a health care provider who is to be named in the suit notice of the claim sixty days before filing the suit, and (2) to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendant filed a motion to dismiss, and the trial court dismissed the case. The plaintiff appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/bullockd_112712.pdf

Court reviews the appropriate classification of employees for worker's compensation insurance coverage

ADVANTAGE PERSONNEL CONSULTANTS, INC. v. TENNESSEE DEPARTMENT OF COMMERCE ET AL. (Tenn. Ct. App. November 27, 2012)

This matter involves a disagreement between an insurer and an insured over the proper classification of employees for the purpose of workers’ compensation insurance. The decision of the Department of Commerce and Insurance was in favor of the insurer. The insured appealed to the trial court, which affirmed the Department. We find that the decision of the Department of Commerce and Insurance is supported by substantial and material evidence and affirm the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/advantage_112712.pdf

TWCA reviews whether the right to reconsideration of a settlement is triggered by an across-the-board wage reduction

RON W. ROBINSON v. BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (TWCA November 21, 2012)

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tenn. Sup. Ct. R. 51.

The employee injured his neck in the course of his employment in 2005. He returned to work for his pre-injury employer and settled his claim subject to the one and one-half times impairment cap.

In 2009, the employer entered into a new collective bargaining agreement in which the hourly wages of all production workers were reduced. Thereafter, the employee sought reconsideration on his earlier settlement pursuant to Tenn. Code Ann. § 50-6-241(d)(1)(B) (2008). The trial court held that the across-the-board wage reduction did not trigger the right to reconsideration and denied the employee’s claim. We affirm the judgment.

Opinion available at:
https://www.tba.org/sites/default/files/robinsonr_112112.pdf

Court reviews competing claims to the proceeds of a life insurance policy.

STONEBRIDGE LIFE INSURANCE COMPANY, GWENDOLYN R. WILLIAMS v. ONZIE O. HORNE, III (Tenn. Ct. App. November 21, 2012)

This is an interpleader action resulting from competing claims to the proceeds of a life insurance policy. The trial court granted summary judgment to the Insured’s mother, finding that, because she was the only named beneficiary of the policy, she was entitled to the proceeds.

Insured’s husband appeals, arguing that, because Insured’s mother was only named as a contingent beneficiary, the default provisions of the policy remained in effect, resulting in him being the primary beneficiary of the policy. Husband also appeals the trial court’s dismissal of his bad faith claim against the insurer.

We affirm the dismissal of the bad faith claim, but conclude that the contract at issue is ambiguous and the issue in this case is not properly decided on summary judgment. Affirmed in part, reversed in part, and remanded.

Opinion available at:
https://www.tba.org/sites/default/files/williamsg_11212012.pdf

Court reviews the dismissal of a medical malpractice case based on the exclusion of expert testimony

SHIRLEEN NEVELS v. JOSEPH CONTARINO, M.D. ET AL. (Tenn. Ct. App. November 19, 2012)

The trial court dismissed this medical malpractice claim on the defendants’ motion for summary judgment and motion to dismiss, after excluding the testimony of the plaintiff’s expert witness. Because the trial court erred in its application of the locality rule and Rule 702 of the Rules of Evidence, we reverse.

Opinion available at:
https://www.tba.org/sites/default/files/nevelss_111912.pdf