Memphis Injury Lawyer Blog

Close your eyes and imagine an empty seat at the Thanksgiving table; your youngest child's graduation from college; walking all alone down the aisle at your wedding. Think how empty your bed would be each and every night from this day forward without your spouse, best friend and lover. Can you conceive the horror of telling your children that Mom or Dad is dead? How would you cope with mounting bills and the loss of an income stream?

That is the emotional side of a relatively emotionless process. In Tennessee, as in most states, a claim for the wrongful death of a spouse or child belongs to the survivor of the decedent. Husband, wife, mother, etc. can seek a recovery for the death of their loved one.

The tricky part is identifying and proving what lawyers call the "pecuniary value" of a human life. This phrase can be defined as: “The ‘pecuniary value’ of a decedent's life represents the value of the decedent's probable future financial accumulations at the time of the decedent's death.” This typically involves the use of an expert in making this calculation because the accumulation is a net figure. That is, in its most elementary form: average income + years of work life remaining + any increase or decrease in value of the total earnings due to inflation etc. - taxes, the cost of living = the pecuniary (dollar) value of the departed's life.

This all boils down to an expert opinion in the area of forensic economics. Under our rules of evidence an expert is a person who based upon his or her knowledge, training, skill, experience and education is likely to be able to help the jury better understand a fact that requires such help.Experts in Court This process is only a part of the analysis.

Pain and suffering of the lost loved one from the time of injury to death is crucial. The lost to the remaining family (loss of consortium) of the nurture, support, guidance and affection is a significant factor as well. Nonetheless, one cannot ignore that the crucible of a trial heats emotions and hearts as the trial progresses. In other words, the cost of reliving the loss and its consequences can often outweigh any financial recovery. Before traveling down this road, please consider that which you have to gain in light of what you have already lost.

In early January, American Suzuki recalled its high end motorcycle. Memphis trial lawyers have come to know that the front fork assembly can crack and break. This can send a Mid-South user headlong into serious injuries and medical expenses. The recall focuses on defects brought about by high impact uses, i.e. Wheelies, coming down hard on the front wheel after being off the ground, etc.

An article in a motorcycle enthusiast magazine recently commented:

Although Suzuki GSX-R1000s tend to be bullet-proof mechanically and can stand tens of thousands of miles of hard use, the finish isn’t quite as good as the competition. The paintwork on the panels and engine casings is thin and the GSX-R1000K7’s new twin pipes look particularly cheap – although Suzuki is probably assuming people will get rid of them anyway in favour of replacement cans.

Whether or not the bike is truly "bullet-proof mechanically" is reality or salesmanship really doesn't matter in the face of this recall.The details of the recall can be found at the Consumer Affairs website. Dangerous products cases are always a challenge.If you have suffered a loss due to this bike's failure, there may be a way to recover your losses. Contact a knowledgeable trial lawyer without delay!

Memphis Trial lawyers, as well as, Tennessee trial lawyers face both the civil law and criminal law results of violent crime. Not only do the victims of such events seek legal counsel, but if the property where the violent crime happens is a leased apartment, for example, then the owner of this premises may have severe legal consequences too. Usually, liability for injuries of this type boils down to a question of "foreseeability".

For example, on March 7, 2002, at approximately 11:45 a.m., L.C. Miller, a tenant in Jefferson Square,one of several public housing projects owned by the Memphis Housing Authority (“MHA”), argued with the housing project’s security guard, fired shots in the direction of his office, and struck and killed Charles Cornelius Brown, Sr., another tenant at the facility who happened to be in the office area at that time. Brown was not involved in the argument. Miller was subsequently shot by the security guard, who was an employee of Scruggs Security and Patrol, LLC (“Scruggs”), a private company which provided security at the facility at the time of the shooting. A wrongful death lawsuit followed against the MHA and the guard company.

The trial court held that neither the internal policies of MHA nor the contents of the criminal background check of Miller created any duty to the Plaintiffs under these circumstances. Moreover,after observing that a policy excluding those with prior records(from renting) would result in “a massive underclass of ex-convicts homeless due to an inability to find housing,” the trial court rejected the Plaintiffs’ argument that there was an affirmative duty on the part of MHA to conduct a criminal background check on prospective residents.

The Court of Appeals affirmed the dismissal in favor of MHA, holding that “an isolated violent outburst by . . . Miller was [in]sufficient to notify MHA that criminal acts against its tenants were reasonably foreseeable, either generally or at some particular time” and, in consequence, insufficient to give rise to a duty (on the part of MHA) in these circumstances.

The Tennessee Supreme Court granted permission to appeal. They noted, that the landlord and tenant qualify as having a special relationship. Further, violence in a housing project is, generally speaking, foreseeable. Poverty is common in such areas. In consequence, precautions are warranted. The Court found that the record establishes that MHA, aware of this potential danger, took some measures to guard against violence. In 1996, criminal background checks extending over a period of three years, a credit history report, and a home visit were warranted for a variety of reasons, including safety. The question, of course, is whether MHA, with some general knowledge of criminal activity within its housing complexes and a particular knowledge of Miller’s altercation with another tenant four years earlier, could have reasonably foreseen the probability of a violent act. We think so.Giggers v. MHA case opinion.

In order to guard against becoming a victim, the following video will provide some important information:

Violence & Street Crime: Violent Crime Safety

School teachers have daily contact with our children. Almost all of these under paid educators are not only molding our young, but are protectors of them as well. Sadly, as a Memphis trial lawyer who tries cases all over our state, I have seen predators in sheep's clothing: teachers who rape their students. Whether this abuse is by consent of the child, the physical contact is not only criminal battery but it is also grounds for a civil lawsuit. But, not all situations are the same in all states. A Washington state appeals court has recently decided that their criminal law of rape of a child by a school teacher was only designed to protect students who were under the age of 18.

This issue is not isolated from the mid-south. A Sumner County school teacher has been arrested for allegedly having sex with several of her students who were under 18 at the time of the supposed conduct. Whether this woman (who must be presumed innocent until proven guilty beyond a reasonable doubt) is found guilty or not, the situation does highlight the problem for all of us.

Tennessee sexual battery by an authority figure law and Tennessee rape statutes both provide ample authority to punish those who take advantage of their positions of trust. In Memphis,if a child is sexually abuse by a teacher-predator, the law is there to deal with the situation from the criminal law perspective. However, such a convicted teacher can also be sued in civil court for the horrible injuries that result from such conduct:

CIVIL 8.02 Definition—Battery
A battery is any intentional, unlawful, and harmful [or offensive] physical contact by one person with another person. The intent required for a battery is not an intent to cause harm. It is an intent to do the act that causes the harm.
CIVIL 8.03 Right to Recover
A plaintiff who has suffered any bodily harm legally caused by a battery by a
defendant is entitled to recover damages from the defendant for that injury.

So if the wrongful physical contact is sexual or if the offensive behavior is hitting a child, there is a remedy. These types of violations do occur and parents need to be aware of what can be done so that another child does not fall victim.

If you are injured in a car wreck; have a contract dispute that winds up in court; or are an accused in a criminal case, a Memphis or Tennessee trial lawyer could not only represent you, but could also be a member of your jury. That is, if the trial lawyer doesn't have a bad case of body odor or if perhaps he or she may have already formed an opinion on the case. In a recent Massachusetts appellate court ruling, the trial judge was upheld for removing a juror because she had a case of felony body odor:

"There was a juror seated in seat No. 10, juror 6-5, . . . who I'd made inquiry of earlier. And I just want the record to reflect, I guess, to be blunt, [the juror], for whatever reason, had some very bad, I guess to be blunt again, body odor, which was extremely strong, and I was able to detect in my lobby, as was the clerk, which is a personal matter for that potential juror, but for the fact that her personal problem was [of] such a magnitude that other jurors who had already been picked . . . either by act or words had indicated discomfort with that problem." I know that this humorous example is extreme, to say the least, but some rather wild excuses have been tried in several cases both in Memphis trials and around the country.

In the Chicago R. Kelly trial, let's see what some creative citizens tried:

1. I have a teenage daughter. Several axed jurors provided this explanation for why they couldn't give Kelly a fair trial. "I would have a hard time see anything involving a child without thinking of my child," one man said.
2. I save lives. An oncologist was excused from duty after he told the judge that jury service would create a logistical nightmare for his patients.
3. I'm a cop One Niles police officer lasted only about two minutes in the interview room before he was dismissed because of his profession.
4. I'll change my vacation plans. Overeagerness to serve on the jury is a definite red flag to attorneys. When one man offered to rearrange a trip to see his parents, the prosecution bounced him for being starstruck.
5. I'm getting married! The judge dismissed one woman whose wedding was set for the end of June. He didn't believe she could concentrate on the trial amid all the pre-wedding prep. The woman, who sported a nice size diamond on her left hand, looked thrilled to be released.
6. Please call my mom When one juror failed to show up for service, deputies called his house and his mother answered. She told the court that she didn't know where her son was and that he hadn't been "right" since he was shot in the head a while back. The judge and attorneys agreed to let him off the hook.
7. I blame R. Kelly for Sept. 11. When the judge asked one prospective juror about his feelings regarding Kelly, he cryptically answered: "R. Kelly may have led the Taliban in attacking us on 911, but you can't prove it." You're right, we can't. In fact, we're fairly certain that no one has ever tried.

Juror selection or voir dire ( latin for "speak the truth") is probably the single most important part of trials. It is an art and not a science. The pool of potential jurors is first qualified for service based upon the language of the new statute. The Shelby County Jury Commissioner, Clyde "Kit" Carson, administers the methods used to select a fair cross-section of those who are included as potential jurors for each term of both civil and criminal courts. We are fortunate to have such a knowledgeable and dedicated public servant. Kit has, as a result of years of experience, heard every possible excuse. Suffice it to say,that if you attempt to shirk your duty (and privilege) of jury service with the old excuse that "My dog ate my notice to serve." you will face not only our commissioner but also a Judge. Each panel is examined by a sitting Judge whose duty it is to call the balls and strikes concerning both the qualifications of persons to serve, as well as the valid exemptions from jury service. By the way, it is a crime in Tennessee to ignore your notice to appear for jury service.

You may recall that just last week I blogged about a daycare fire and its connection to the dangers of space heaters. Time and again, Tennessee trial attorneys are called upon to deal with the aftermath of fire disasters that are brought about by falling temperatures and these potentially dangerous products. Just today there has been a house fire in the Cooper-Young neighborhood. . To further highlight the importance of precautions, another house fire that is suspected to have been caused by a space heater happened yesterday, as well.

Please remember that as the holiday season progresses, you can save your own life and the lives of your loved ones too. Just be sure that there is a three foot safety zone around your space heater. Don't allow anything that can burn in that area and be sure that if something is tipped over, say a rack of clothes drying, that it will not fall onto the heater. Happy and safe holidays to everyone.

Yesterday, an Alamo, Tennessee off-duty police officer was driving by a daycare when he noticed smoke coming from the building. Without regard for his own safety, the officer rescued three children from a fire that has been tentatively determined to have been started by a space heater. The most severely injured child was airlifted to Memphis for treatment of burns. Whether or not the space heater was a dangerous or defective product or the fire was started due to consumer error, remains to be determined.

Trial lawyers deal with these sorts of issues on a daily basis. However, regardless of the cause of the fire, the absence of the daycare owner at the time of the fire could subject the facility to paying damages. Fire cases are a peculiar blend of facts and science. I have handled many of these cases through the years in most parts of West Tennessee and the surrounding area. It is also unusual for a fire to be discovered as was this one:

From 1990 to 1997. 57 children died as a result of daycare fault according to a recent study by the U.S. government. 13 million children are placed in non-parental daycare each year. Similarly, 25,000 residential fires are caused by space heaters each year resulting in 300 deaths according to another national study by the United States Consumer Product Safety Commission.

The joinder of these two "accidents looking for a place to happen" can be deadly. Should one of your loved ones or friends suffer harm from either or both of these dangers, consult a qualified and experienced trial lawyer. We can help.

The golden years are supposed to hold a time for Memphis elders to enjoy the fruits of their labors. As we age, and we all do, many Mid Southerners become caretakers for their elderly parents. This can result in being required to deal with Tennessee nursing care facilities. A sad sign of our times, remains the abuse of our senior citizens by those into whose care we place our mothers and fathers. Recently, trial lawyers have come to know just how horrible these situations can become. In Jackson, a Mississippi nursing home worker has been charged with abuse of her elderly patients. Due to modern technology, some of these incidents have been caught on camera, as you will see below:

In a recent study of 35 complaints of nursing home or elder abuse, some startling results were uncovered. It was found that the most common victim of this deviation from the reasonable expectations of care was a 76 year old white female. African American women of the same age were equally likely to be at risk, as well.

In response to these issues, Tennessee has established the Abuse Registry. Tennessee law defines abuse or neglect rather specifically. This link will allow you to both investigate and report incidents of neglect or abuse of your friends and family. In the event that you become convinced that abuse has occurred, please consult a trial lawyer who has experience in protecting the rights of those who are so vulnerable and unprotected. We can help.

As a Memphis trial lawyer, during the holiday season, I see many Tennesseans who have become ill due to food poisoning. This is, more properly, an illness that arises from a food borne pathogen. In private homes, restaurants and schools, special goodies will be prepared and stored. Many of these products can become the source of "food poisoning" (aka Montezuma's Revenge). While some can die from salmonella and others, most victims just feel as though they wish that they would die so that they can feel better. There are ways to protect your family from these stomach-wrenching conditions.

What follows, are some methods to prevent the growth of the micro-organisms which cause these illnesses.

Having been reminded of how to prevent the conditions, next we turn to the signs and symptoms of this group of conditions, when prevention fails.

I can assure you that no one loves to eat more than I. I can also assure you that eat, drink and be merry, is my holiday motto. Yet, what with food recalls (even chocolate Teddy Bears for goodness sake!) and food borne illness issues, I will still be cautious of what I eat and where I drink and with whom I am making merry. Happy holidays to all!

When a new client approaches me to handle their Memphis personal injuries resulting from a careless Tennessee truck driver, I always try to fully and carefully investigate each matter personally. Sometimes, this involves more than just going to the scene in order to get the facts "in my head". Of course, the earlier that the investigation is begun the better for a Mid South person who has suffered a personal injury.

I can guarantee you that the trucking company will have someone on the scene to protect their interests before the tires have stopped smoking. However, since the early 1990's cars and trucks as well have a device that is essentially the same as the "little black box" that is installed in commercial aircraft. For example, the following video illustrates not only the importance but the value of a thorough investigation:

Technology can help a careful analysis of a crash to focus on the issues of fault and the responsible parties for that fault. However, the "black box" is not the only tool that is available to a well prepared and knowledgeable trial lawyer. Since September 11, the Department of Homeland Security (nationally) and the Tennessee Department of Transportation (locally) have installed literally hundreds of video cameras across our roads and highways. In Tennessee, the Smartway program has provided access to a real time record of crashes that can be accessed to help prove a case. Remember though, these videos are not kept forever, so an injured person must move swiftly in order to protect their future safety and security.

Chess nuts roasting by and open fire. The yule log all aglow. Sounds inviting, doesn't it. However, if your Memphis chess nuts are roasting by the fire from your living room couch, the picture is not quite so cozy.The National Christmas Tree Association estimates 36 million trees are sold each year. Christmas trees are involved in about 400 fires annually, resulting in 10 deaths, 80 injuries and more than $15 million in property damage.

The figures for Tennessee are shockingly similar. As a Shelby County trial lawyer who handles fire cases, I can tell you all that there is no more gruesome image than that of a horribly burned child or elderly adult. For example, 16 people were killed in Tennessee in 1989 during a single fire incident at a Johnson City Nursing home. It is amazing and frightening to see how quickly a Christmas Tree fueled fire can spread, as this video shows:

Rather than face a wall of flame, one must take a few simple precautions. The American Academy Of Pediatrics has a few common sense ideas on holiday safety or (en espanol). During this joyous time of year, we can only hope that our future is bright and that our precious families are safe and secure. Happy Holidays to all of you.

Last week a North Memphis family reported that a neighbor's two pit bulls entered their home and attacked them. Memphis has seen her citizens mauled to death by pit bulls in the past. As a trial lawyer who regularly practices in all Shelby County courts, I have seen my clients injured by dogs on occasion. However, as a dog lover myself and a Tennessee resident, I wondered whether or not some breeds of dogs were more likely than others to attack Memphis residents.

For example, in 1990 Betty Lou Stidham was attacked and mauled to death by two pit bulls in a quiet Memphis neighborhood. In this case, the dogs had a history of violent tendencies. They had previously attacked their owner sending him to the Emergency Room of a local hospital for treatment of his injuries.

Jefferey J. Sachs, M.D., MPH for the United States Centers for Disease Control studied various breeds that had injured or killed people. In Sachs' article, he analyzed many breeds of dogs that had attacked people over an extended period of time. This article is best summarized by a Chart of Bites by breed that is a part of the results of the study. As you can see, far and away the most dangerous breed was the pit bull. For example, animal control officers must approach this breed with the following event in mind:

In response to these kinds of situations, the Tennessee Legislature in 2007 amended the existing laws respecting animals that are likely to cause harm to others. Under T.C.A. 44-8-413, new standards were set with an eye towards protecting persons and property from the dangers we have seen above. The law requires owners to keep their animals under "reasonable control" and to prevent them from "running at large". The most interesting feature for lawyers, and perhaps the injured, is that the owner can be liable even if the dog has never shown violent or dangerous characteristics prior to the event in question. This new act may well protect a valuable asset: our peace of mind and our future safety.

The Memphis Commercial Appeal reported today that a young man has been charged with a crime in the accidental hunting incident that I commented on yesterday. As a trial lawyer who handles both personal injury and criminal cases in Tennessee, I thought that the interplay between these two types of matters, might well illustrate what can happen a case such as this.

The Arrest Affidavit charges the hunter under:

39-13-103. Reckless endangerment. (a) A person commits an offense who recklessly engages in conduct that places or may place another person in imminent danger of death or serious bodily injury. (b) Reckless endangerment is a Class A misdemeanor; however, reckless endangerment committed with a deadly weapon is a Class E felony.

Reckless conduct is generally defined, in both the criminal and civil law contexts, as being a conscious disregard for the health, care or safety of others. You can see how closely these issues are connected by reading the Tennessee Pattern Jury instruction of the law that would be given to the jury to guide their deliberations.

From this incident you can see that a criminal charge, if it results in a guilty plea, can have a parallel civil action attached to it. If the injured person files such a lawsuit, the criminally charged defendant may not have significant assets from which to recover on the civil lawsuit side. However, many Homeowner's Insurance policies and some Renter's Insurance policies, may provide a source of not only payment to the injured party, but also can require the insurance company to provide a defense attorney to the hunter when (and if) he or she is sued civilly. This is yet another case where a bit of prior thought can help to protect your most precious asset: your future.

We all know that every driver in Tennessee has to have liability insurance, right? Wrong. To those of us who live in and around Memphis, it seems that the insured cars have a great, big red bull's eye painted on both sides of the vehicle. This target is apparently placed there just so uninsured motorists have a really good aim point. Tennessee is one of a handful of states that does not necessarily require a driver to have liability insurance, but rather must show proof of "Financial Responsibility."

I know that we all think that we have to carry insurance cards in our purse or wallet to show to the nice police person when and if we are stopped for a traffic violation. And, I know that this seems to be in direct contradiction to the paragraph above, but we shall see that the law is unphased by this small detail. Tennessee law section 55-12-139(b) requires every driver to show proof:

For the purposes of this section, “financial responsibility” means: (1) Documentation, such as the declaration page of an insurance policy, an insurance binder, or an insurance card from an insurance company authorized to do business in Tennessee, stating that a policy of insurance meeting the requirements of this chapter, has been issued; (2) A certificate, valid for one (1) year, issued by the commissioner of safety, stating that a cash deposit or bond in the amount required by this chapter, has been paid or filed with the commissioner, or has qualified as a self-insurer under § 55-12-111; or (3) The motor vehicle being operated at the time of the violation was owned by a carrier subject to the jurisdiction of the department of safety or the interstate commerce commission, or was owned by the United States, this state or any political subdivision thereof, and that such motor vehicle was being operated with the owner's consent.

One can only wonder how many Memphians happen to have a copy of the bond posted with the Commissioner of Safety in their glove box. But I digress. If you are injured by an Uninsured Motorist (UM), all is not lost. Under Tennessee law, many of you are already covered for such an unhappy event and probably don't even know about it. Unless you specifically opt out of UM coverage when you buy your policy or renew it, you are covered for being hit in the bull's eye by a person who has,in every sense of the words, a lack of Financial Responsibility. The minimum amounts of coverage are set by state law. In a following entry, we will find out about how to make a UM claim.