I’m often asked whether a party can disclaim negligence in a contract. The answer is “yes” unless you are providing professional services, such as legal services, medical treatment or home inspections. The following is a brief highlight of the law that applies. Continue reading
There is no duty to prevent an employee from leaving the premises driving his own vehicle while intoxicated. Thompson v. Best Buy Stores, 2016 WL 6946786 (Tenn. Ct. App., June 21, 2016). This is a companion case to Lett v. Collis Foods Inc., 60 S.W.3d 95 (Tenn. Ct. App. 2001), which addressed for the first time the question of an employer’s duty to an injured third person to prevent an impaired employee from driving his or her own vehicle. See also Williams V. Walmart Stores East LP, 832 F. Supp. 2d 923, 928 (E.D. Tenn. 2011). Continue reading
This is a good summary judgment ruling from the Davidson County Circuit Court in a slip and fall case. Boykin v. Moorehead Living Trust, 2015 WL 3455433 (Tennessee Court of Appeals, May 29, 2015). This case came out of Sixth Circuit in Davidson County Tennessee. The Court of Appeal affirmed summary judgment in favor of the property owner after plaintiff tripped and fell on a concrete landing pad in a parking lot. Continue reading
There is an interesting premise liability case filed last year in the Circuit Court of Appeals of Tennessee at Knoxville that found vomit on the floor of a Hardee’s restaurant for approximately three minutes was a sufficient length of time to charge defendant with constructive notice of the dangerous condition. Continue reading
The Tennessee Court of Appeals recently ruled on a curious case of slip-and-fall. In the case of Petros Goumas v. Jimmy Mayse, et al., the Tennessee Court of Appeals in Knoxville found that the Trial Court correctly granted summary judgments to the defendants. The plaintiff was the fiancé of the daughter of the defendants, Jimmy Mayse and wife, Barri Mayse. Goumas was staying with his future in-laws when he slipped on a rock and broke his arm. It was daylight and dry at the time of the accident. Goumas had worked on the property before and knew where the rock was located. Continue reading
The doctrine of spoliation of evidence can cause major problems for both plaintiffs and defendants in civil litigation. Often times, months or years pass before the defendant is notified of a claim. As a result, defendants may have no notice that there is a duty to preserve evidence relevant to future litigation until after the evidence is discarded, lost or destroyed during the normal course of business. It is paramount, therefore, that businesses understand the rules associated with spoliation of evidence and adopt sound policies and procedures to (a) identify a potential claim; and (b) take reasonable steps to preserve evidence material to the claim. Continue reading
A colleague of mine, Josh Offutt, tried an intriguing case of golf negligence this year. The case, Cook v. McKenzie, involved a golfer getting beaned in the skull by golf ball while he was on the practice green at Willow Creek Golf Club in Knoxville. The defendant, a sixty-year-old doctor from Knoxville, was chip balls onto the practice green from 25 to 50 yards away. According to testimony, Dr. McKenzie looked at the practice green before swinging his club and did not notice Cook until after he struck his ball. At that time, he noticed Cook wondering toward the pin. Dr. McKenzie yelled “heads up!” Unfortunately, Cook look up just in time to get hit square in the forehead by the incoming ball. He was knocked unconscious and suffered a minor head injury.
At trial, the defense elected not to call a “golf etiquette” expert, and instead, simply argued that Cook had a duty to look out for other golfers. After a day of proof, the jury quickly returned with its verdict, finding both parties equally at fault for not paying attention to their surroundings. As a result, under Tennessee’s comparative fault system, a defense verdict was entered and Cook took nothing. According to Mr. Offutt, none of the jurors were golfers. Still, in the end, this Knoxville jury got it right. All golfers have an equal responsibility to pay attention on course. Coming from a rookie golfer who makes regular use of mulligans, I feel better knowing I won’t lose my house over a wayward shot.
The Tennessee Court of Appeals has penned a new decision addressing the duty of a bar to protect its patrons from the foreseeable criminal acts of third parties. The case name is Nicole Goeser, et al., v. Live Holdings Corporation, et al., (No. M2012-01241-COA-R3-CV; September 4, 2013). This appeal came out of Judge Hamilton Gayden’s court in Nashville after granting summary judgment to the defendants. Continue reading
In the recent case of Greg Parker, et al. v. Holiday Hospitality Franchising, Inc., et al., the Tennessee Court of Appeals addressed liability for a premise owner arising out of the negligent work completed by an independent contractor. This case was appealed from the Circuit Court for Roane County following summary judgment in favor of the hotel.
Rule – a premise owner may not be liable for negligent construction of the premises unless he or she caused the condition or had some notice of the condition prior to the accident. Continue reading
Until recently, there was no duty in Tennessee to prevent patrons from driving drunk. However, a recent Court of Appeals decision calls into question whether premises owners have a duty to take action when a patron is obviously drunk and likely to leave the premises in a vehicle. See JOLYN CULLUM, ET. AL. v. JAN McCOOL, ET. AL. In this case, the defendant, McCool, entered Wal-Mart and attempted to buy prescription medication. The Wal-Mart employees refused to sell McCool prescription drugs because McCool was obviously inebriated. McCool then lost her cool, became belligerent, and was ordered her to leave the premises. She subsequently backed her car into an unsuspecting patron who was loading groceries into the back of her vehicle. Continue reading