Articles Posted in Premises Liability

This is a liquor liability case against a bar in East Tennessee known as the Electric Cowboy.   After a night of drinking, Ashley Langworthy was driving her vehicle at a speed in the range of 83 to 94 mph when she lost control and struck a tree causing her vehicle to go airborne and crash in to the corner of a brick apartment killing the plaintiff’s 71 year old decedent.  Ms. Langworthy had to be extricated from the vehicle. By the time she arrived at the hospital, her BAC was still .18.  

Following discovery, the following facts about the events leading up to the crash were undisputed:

·        Langworthy and a friend had consumed two margaritas while eating dinner at Chili’s. They then purchased some Smirnoff Ice Coolers and Ms. Langworthy drank two of those in the parking lot of the Electric Cowboy.

The Rhode Island Supreme Court has held that a 17-year old young man could not rely on the attractive nuisance doctrine to impose liability on the State of Rhode Island.

The plaintiff and some friends entered a closed mental health facility that was locked and marked "No Trespass."  Along the way, he was burned when a bottle of sulfuric acid in the building burst.  The trial court rejected his case, and Rhode Island’s highest court affirmed the dismissal.

Plaintiff Martin was an apprentice lineman for Upper Cumberland Electrical Membership Cooperative. He agreed to help a neighbor move an electrical line to a barn. As the plaintiff climbed the electrical pole which had been installed by the neighbor, the pole fell over and the Plaintiff sustained serious injuries from the fall. The plaintiff filed suit against his neighbor alleging negligence in the installation of the pole. Specifically, the plaintiff alleged the pole had not been set at a sufficient depth to ensure stability. The neighbor defended claiming the accident was a result of the plaintiff’s failure to follow proper safety protocols and ensure the stability of the pole before climbing it.  

During discovery, the plaintiff testified about the steps he took to ensure the safety of the pole before climbing it. Thereafter, the defense filed a motion for summary judgment supported by affidavits of experienced linemen who opined the plaintiff had not followed basic safety requirements.   In response, the plaintiff submitted three affidavits to establish the subject pole had not been set at the proper depth per established standards and that the plaintiff had followed proper safety procedures in checking the stability of the pole before climbing it. The trial court granted the defendant neighbor’s motion for summary judgment finding (1) there was no material issue of fact and (2) despite the affidavits indicating the plaintiff had followed proper safety protocols before climbing the pole, the court was of the opinion he did not, (3) and that electrical work was an "ultrahazardous activity".

The Court of Appeals reversed noting that while they had several times noted that electricity was inherently dangerous they had never held it to be an "ultrahazardous activity". Moreover, the defendant’s injuries had not been caused by electricity but instead were caused solely by the fall.   Second, the Court of Appeals concluded the plaintiff had established the neighbor had a duty to either ensure the safety of the premises or to warn the plaintiff of any dangers. Since the neighbor had been the one to actually set the pole, he was on notice of its depth. In addition, proof was adduced to show the neighbor had removed some dirt from around the pole thereby making it less stable. On the issue of whether the plaintiff had followed safety protocols, the competing affidavits created an issue of fact and had to be viewed in the light most favorable to the non-moving party.   As for the defendant’s argument regarding the application of the contractor exception (a contract of repair is sufficient by itself to impart notice of a danger), the Court of Appeals noted that the plaintiff was not repairing anything but instead simply moving the line; therefore, the exception did not apply.

Should a county bear any financial responsibility when it fails to release a jail inmate on time and the inmate gets injured in an altercation when he should no longer have been in jail and therefore not in the position to be harmed.

The Tennessee Supreme Court recently decided such a case. King, an inmate of the Anderson County Detention Center, sued following an attack by another inmate in which he sustained injuries including an eye injury that required surgery and a broken nose.  He maintained he should not have been in jail at the time of the attack.

The trial court determined that both the Plaintiff Inmate and the Defendant County were responsible for Plaintiff’s injuries and assigned 45% fault to the Plaintiff for instigating the fight and 55% fault to the Defendant for failing to timely release the Plaintiff. The Court of Appeals upheld the judgment of the trial court. The Defendant County appealed to the Tennessee Supreme Court.

The Connecticut Supreme Court has ruled that a landlord may be held liable for injuries caused by vicious dogs owned by its tenant.

In Giacalone v. Housing Authority of the Town of Wallingford, No. SC 18669 (Conn. Sept. 18, 2102), plaintiff tenant sued defendant landlord for injuries sustained after plaintiff was attacked by a dog owned by another tenant of defendant.  Defendant allegedly knew of the dog’s dangerous propensities, but did not have direct care of, or control over, the dog.  Plaintiff brought the claim against landlord on a common law premises liability theory.

Under Connecticut common law, knowledge of a domestic animal’s vicious propensity imposes a duty on the owner to restrain that animal, and failure to do so is treated as negligence, triggering liability for damage caused by the animal.   The rule has been changed by recent statutes, but those statutes do not address the liability of landlords.

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."