Articles Posted in Premises Liability

Rarely have so many resources been spent defending a claim that has a maximum value of $300,000, the cap on damages under the Tennessee Governmental Tort Liability Act.  

This case already wound its way to the Supreme Court in 2009, with the Court reaching a critical holding on duty in negligence cases. In this Giggers Redux edition, the Supreme Court provides a brief outline for Tennessee state courts to analyze implied federal preemption. More importantly, the Supreme Court makes clear that the GTLA discretionary function exception does not apply to a governmental entity’s decision to reject having a policy and instead leave decisions up to its employees on a case-by-case basis.

Briefly, the case involves a claim for wrongful death under the GTLA.  Plaintiffs alleged that Defendant should have evicted a tenant, Assailant, after Assailant was committed an aggravated assault against another tenant. Four years later, Plaintiffs’ Decedent was killed by a stray bullet fired by Assailant.

Tennessee personal injury lawyers will read with interest this opinion from the Maryland Court of Appeals that declares that pit bulls are inherently dangerous and thus are not subject to the "first-bite" rule.  

In Tracey v. Solesky, No. 53 (MD. Ct. of App. Apr. 26, 2012) the dog bite arose from "an attack by a pit bull named Clifford. Notwithstanding his relatively benign name, Clifford possessed the aggressive and vicious characteristics of both Trouble and Rampage."

The Court examined the history of pit bulls and cited to various sources to document the dangerous propensities of these animals.  After a careful, thorough examination of the law and public policy, the Court concluded as follows:

" Sleep Tight, Don’t Let the Bed Bugs Bite – The Impact of Bed Bugs on Our Daily and Legal Lives" is the new go-to resource on bed bug litigation.  David E. Cassidy and others wrote this article for the Fall 2011 edition of FDCC Quarterly published by the Federation of Defense and Corporate Counsel.

The Introduction gives us this summary of the rest of the article:

Part II provides an overview of how bed bugs have re-entered our society and outlines information that everyone should know about this pest. Part III explains the history and biology of bed bugs. Part IV highlights how bed bugs have impacted the hotel industry and addresses how to keep the workplace safe to keep productivity up and liability claims down. Part V provides an overview of the growing field of bed bug litigation. Part VI discusses the relevant statutes and regulations that impact employers and protect employees from bed bugs in the workplace environment.

The Court of Appeals of Mississippi has ruled that a plaintiff injured when her vehicle collided with a horse on a dark roadway must prove that the horse owner was negligent is allowing the horse to be on the road.  In other words, the mere fact that the fence did not hold the animal on the owner’s property was not, in an of itself, proof of negligence of the owner.

Defendant landowner proved that he had appropriately fenced in the horses and they had been secure in the fence for over two years.  He had no explanation for how or why  the horses had knocked down  the fence and escaped.  The Court of Appeals said his proof entitled him to summary judgment, since plaintiff

did not produce any evidence, such as testimony, exhibits, expert opinions, product warnings, or recognized industry standards, to rebut Hester’s evidence that the field fence was adequate for containing horses under the circumstances. The "[nonmoving] party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict." 

There has been lots of discussion about those responsible for the tragedy that occurred on August 13, 2011 at the Indiana State Fair, where multiple people died and many others were injured after a stage collapsed at a concert.  At last count, seven people died and another 40 people were injured in the collapse.

The Governor  and the Attorney General of the State of Indiana stepped up and said that even though the horrific tragedy was a "fluke event" the State would pay $5,000,000 to the victims.  Why $5,000,000?  That is the cap on damages for claims against the State of Indiana provided by statute.  The damages cap put in place by the Indiana Legislature has not been updated since 2003.  No single victim can receive more than $700,000 under the law.

To be sure, the Indianapolis Star reports efforts are going to be made to increase the cap.  And perhaps that will be done – it happened in Minnesota several years ago when the I-35W bridge collapsed, killing 13 and injuring another 100 people.

Many plaintiff’s  lawyers limit themselves to reading only legal articles written by lawyers who also represent plaintiffs. 

Big mistake.

There  are lots of good resources out there written by members of the defense bar.  This article, by Richards H. Ford, is a fine example.  Titled "Negligent Security:  When is Crime Your Problem,"  Ford provides an overview of the circumstances under which negligent security cases can arise and the applicable law.  To be sure, the law of each state is a little different.   But, if you are thinking about accepting representation in on of these cases, you will get off to a good start by reading this article.  At an absolute minimum you will get a solid handle on how your opponent will undertake to defend the case.

Tennesseans are clearing the grocery stores of bread, milk and other essentials as the National Weather Service informs us that snow will cover the state.

The threat of bad weather gives us the opportunity to review the law of Tennessee concerning the liability of possessors of land concerning ice and snow.  Here is a nice summary of that law from Bowman v. State:

Dangerous conditions caused by the natural accumulation of snow and ice are considered to be among the ‘normal hazards of life.’  Grizzell v. Foxx, 48 Tenn.App. 462, 467, 348 S.W.2d 815, 817 (1960) (citing Goodman v. Corn Exchange Nat’l Bank & Trust, 331 Pa. 587, 200 A. 642, 643 (1938)). Accordingly, the courts employ the same principles to determine the scope of a property owner’s duty with regard to natural accumulations of snow and ice that they use to establish the property owner’s duty with regard to other dangerous conditions.