Day on Torts

January 29, 2010

Tennessee Adult Protection Act

The Tennessee Adult Protection Act, T. C. A. Sec. 71-6-101 et seq, creates civil action for compensatory and, as appropriate, punitive damages when "adults" covered by the act are victims of abuse or neglect, sexual abuse or exploitation and for theft of money or property whether by fraud, deceit, coercion or otherwise. Those covered by the Act fall within this definition of adult:

“Adult” means a person eighteen (18) years of age or older who because of mental or physical dysfunctioning or advanced age is unable to manage such person’s own resources, carry out the activities of daily living, or protect such person from neglect, hazardous or abusive situations without assistance from others and who has no available, willing, and responsibly able person for assistance and who may be in need of protective services; provided, however, that a person eighteen (18) years of age or older who is mentally impaired but still competent shall be deemed to be a person with mental dysfunction for the purposes of this chapter

The Act also permits recovery of attorneys’ fees in certain circumstances.

January 27, 2010

Truck Drivers – No More Texting

by The Law Offices of John Day, P.C.

Truck drivers who text while on the road are now violating federal law. On January 26, 2010, the federal Transportation Department said it is prohibiting truck and bus drivers from sending text messages on hand-held devices while operating commercial vehicles.

Tennessee banned texting while driving effective July 1, 2009.

The Transportation Department said that "FMCSA research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting. At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road. Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers."

January 26, 2010

2009 Medical Malpractice Claims Report Released

by The Law Offices of John Day, P.C.

The Tennessee Department of Commerce and Insurance has released the 2009 Medical Malpractice Claims Report. Despite its title, the Report reveals data for calendar year 2008.

This is the fifth report issued by the Department and contains more different types of data than released in previous years because of a change in the reporting law. Today I will report on some of the data and will address the balance in later posts.

In 2008, there were 3154 medical malpractice claims closed in Tennessee. (More than one "claim" can arise in a single case; a claim is defined as "a demand for money damages for injury or death caused by medical malpractice; or a voluntary indemnity payment for injury or death caused by medical malpractice.") Of those claims 43 were resolved through ADR, 459 were resolved through settlement, 425 were resolved through judgment, and 2227 were otherwise resolved.

January 22, 2010

Tennessee Injury Claims Against Foster Parents

by The Law Offices of John Day, P.C.

As a Tennessee injury lawyer I receive calls from time to time from parents of children who have been injured by a foster parent. Indeed, several years ago our firm represented a parent of a pregnant teenager who was killed as a result of careless driving by her foster parent.

Can a person injured by the negligence of a foster parent sue the foster parent? Can the parents of a foster child sue the foster parent if the foster parent negligently causes the death of the foster child? In Tennessee, the answer is "no."

Under Tennessee law, a foster parent is deemed to be a state employee and is immune from a lawsuit for injuries or death caused by the negligence of the foster parent. Here is the provision from the Tennessee Code that defines "state employee" to include foster parents:

January 20, 2010

Tip Concerning Trying Cases Away From Home

by The Law Offices of John Day, P.C.

Trial Lawyer Tips has a great post about steps to take to before picking a jury in another city, county, or state.

An excerpt:

To get familiar with my out of town trial venues, I used to order the local paper several months before trial and read it each day or week. By the time trial rolled around, I knew more about the local news than most of the jurors.

January 18, 2010

Distraction.Gov – A Website About Distracted Driving

by The Law Offices of John Day, P.C.

The National Highway Traffic Safety Administration has set up a website called "Distraction.Gov."

The website reveals some interesting statistics:

In 2008, there were a total of 34,017 fatal crashes in which 37,261 individuals were killed.
In 2008, 5,870 people were killed in crashes involving driver distraction (16% of total fatalities).
The proportion of drivers reportedly distracted at the time of the fatal crashes has increased from 8 percent in 2004 to 11 percent in 2008.
The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group (12%).
Motorcyclists and drivers of light trucks had the greatest percentage of total drivers reported as distracted at the time of the fatal crashes (12%).
An estimated 21 percent of 1,630,000 injury crashes were reported to have involved distracted driving.
Nationwide, those drivers observed visibly manipulating hand-held electronic devices increased from 0.7 percent to 1.0 percent.
Some 1.7 percent of drivers 16 to 24 years old were observed visibly manipulating hand-held electronic devices, up from 1.0 percent the previous year.
More drivers in Western States were observed manipulating hand-held electronic devices (2.1%) than in the other regions of the country (from 0.4% in the Northeast to 0.8% in the Midwest).
The use of hand-held devices increased the most in the West, from 0.6 percent in 2007 to 2.1 percent in 2008.
The observed use rate of hand-held electronic devices was higher among females (1.2%) than among males (0.8%).

The site also contains a list of states which ban driving while using cell phones or while texting.

January 18, 2010

Proposed Consumer Product Safety Commission Database Concerns Product Liability Defense Lawyers

by The Law Offices of John Day, P.C.

Thompson Hine is a 99-year old law firm with offices in eight different cities. Its products liability lawyers work do work in the aerospace, automotive, chemical, electrical, mechanical, medical device and pharmaceutical areas.

And they are concerned about the implications of Section 212 of the Consumer Product Safety Improvement Act of 2008, which requires the Consumer Product Safety Commission (CPSC) to implement a publicly accessible, searchable database of consumer product incident reports.

The firm reports that:

January 15, 2010

A Wise Word From a Wise Lawyer: “Always Draft Angry Briefs. Never File Them.”

by The Law Offices of John Day, P.C.

If you do not regularly read Max Kennerly’s Litigation and Trial blog you are not taking advantage of a wonderful opportunity to learn. I have never met Max, but his blog is well-written, thoughtful, and informative.

Need to be convinced? Read his post titled "Always Draft Angry Briefs. Never File Them."

An excerpt:

January 15, 2010

Doctors and Hospitals Seek Special Treatment for Emergency Room Malpractice

by The Law Offices of John Day, P.C.

Legislation has been introduced that would require a patient suing an emergency room doctor, on-call specialist, or hospital providing emergency room services to prove that the negligence of the provider rose to level of gross negligence.

Given the declining number of medical malpractice cases and the fact that there are only 6 or 7 verdicts for patients in any given year, one must wonder about the need for such legislation. It springs from arrogance, greed, or both.

That being said, I support the legislation, with one little amendment that says this:

January 14, 2010

List of Themes For Use at Trial

by The Law Offices of John Day, P.C.

The Civil Litigation Blog has shared a list of themes that can be used in personal injury trials. While there is nothing particularly original on the list, I do not recall ever seeing such a list of potential themes in one place.