Premises Liability

September 27, 2011

What Would The State Of Tennessee’s Liability Be If The Indiana State Fair Tragedy Happened in Nashville?

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.

June 15, 2011

Negligent Security at Hotels, Motels, Apartment Complexes and Other Places

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

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.

November 1, 2010

Lawsuits Arising From Participation in Athletic Activities

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

What does tort law tell us about liability for injuries arising during sporting events and, in particular, contact sports? The recent case of Feld v. Borkowski gives us the answer, at least from the standpoint of the Iowa Supreme Court.

Plaintiff and defendant were playing intramural softball . Defendant hit the ball and let go of the bat at the same time. The bat flew through the area, striking and injuring plaintiff (who was playing first base). Plaintiff filed a negligence suit, and defendant sought dismissal of the suit arguing that softball was a contact sport and thus he could only be sued if his conduct was reckless.

The Iowa Supreme Court agreed, saying that

January 7, 2010

Ice, Snow and Premises Liability in Tennessee

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

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.

October 22, 2009

Liability in the Sweat Lodge Case

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

By now most of us have heard of the Sweat Lodge incident.

The Huffington Post article says that "[m]ore than 50 followers of spiritual guru James Arthur Ray had just endured five strenuous days of fasting, sleep-deprivation and mind-altering breathing exercises [were] into a sweat lodge ceremony" that is said to have resulted in the deaths of three people. The "Spiritual Warrior" event apparently cost $9,000-plus for each participant. One survivor, Beverly Bunn, said that "Ray pushed for participants to go without sleep, enter into altered states of mind through breathing exercises and meditation, compete in a game in which he played God and fast for 36 hours during a vision quest." Bunn also said that "people were vomiting in the stifling heat, gasping for air, and lying lifeless on the sand and gravel floor" in the 415-square-foot sweat lodge. Apparently, people were not forced to stay inside but were highly encouraged. Bunn said "it was all about mind over matter, you’re stronger than your body."

Who is James Arthur Ray? He says he is "an internationally-renowned Personal Success Strategist, Visionary and New York Times Best-Selling Author who has traveled the globe dedicating over two decades of his life to studying the thoughts, actions, and habits of those who create true wealth in every area of their life [who] delivers his practical teachings to hundreds of thousands of individuals and business leaders every year." I confess I never heard of him before this incident, but if his website says he is internationally-renowed I suppose it must be true.

October 4, 2009

Videos of Erin Andrews and the Nashville Connection

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

It was reported several months ago that nude videos of ESPN reporter Erin Andrews were circulating on the Internet. The pictures were taken in several hotels. The man accused of taking the videos, Michael David Barrett, has been arrested.

It turns out that a majority of the videos were taken at the Nashville Marriott at Vanderbilt University. Apparently, the photographer was able to learn which room Ms. Andrews was staying in and was able to rent a room next door. He allegedly modified the peep hole in the room to be able to video Ms. Andrews. Read more in The Tennessean.

Several interesting questions arise in the mind of the reasonably prudent tort lawyer. First, how was Mr. Barrett (or whoever took the videos) able to learn Ms. Andrews’ room number? Most hotels will not give anyone, even an alleged spouse, the room number of a guest. Indeed, most hotels will not even announce your room number when you check in, preferring instead to write it on the inside of document that holds the card key that permits you to enter your room. I wonder how Mr. Barrett (or whoever) was able to obtain the room number of a celebrity?

September 24, 2009

Lawsuit By Coyote Ugly Bar Patron

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

A former patron at the Coyote Ugly Saloon in Nashville has sued the entity, claiming she was injured when she fell off a slippery bar. She claims that the bar surface should have been kept dry (and therefore safe) because she was invited to dance on it by employees. She suffered a head injury and lost her sense of smell.

Here is a big surprise for you: the plaintiff "had had a few drinks." Her lawyer claims she was not intoxicated, a fact that, if true, may actually hurt her case if in fact she was invited to dance of the bar by Coyote Ugly employees as she claims. Why would that hurt her case? If she was obviously intoxicated one could argue that the employees should not have invited her to dance on the bar because they should have known that she could not do so carefully. If she was sober and appeared that way, they will argue that (a) she had the ability to make a judgment about whether she wanted to do so and assumed the risk of falling; and (b) she had the ability and opportunity to see what hazards, if any, existed on the bar and either avoid the hazards or stop dancing.

I have never been to the Coyote Ugly Saloon, in Nashville or any of its other locations. I have never seen the Coyote Ugly movie. But I have been in lots of bars in lots of places, and a fair number of bars where, from time to time, patrons jumped up and danced on the bar. I have tended bar in four different places, and indeed I was known in my youth to occasionally grab a bottle of booze and walk up and down the length of the bar, pouring booze down the throats of blurry-eyed but eager college students, their necks protruding and mouths wide open, like baby birds in the nest waiting for mama bird to bring a juicy grub home for breakfast. My point: there is little I haven’t seen in some bar somewhere at sometime.

August 20, 2009

Blaming the Plaintff

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

We have seen much of this story happen before. Woman is raped at gunpoint in a hotel parking garage. Woman sues hotel for negligent failure to keep premises secure. Hotel blames woman for failing to exercise due care – how dare she assume that the hotel parking garage was secure.

What you don’t see very often is the response of the co-defendant franchisor – the Marriott International. This is from the Washington Post story about the litigation:

Marriott said it has pressured the legal team [hired by the insurance company for the hotel franchisee] to withdraw the filings, saying in a statement Tuesday that it was ‘a mistake to suggest that the victim of this tragic incident was responsible for the vicious crime against her.’

August 12, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 8

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

This is Post 8 in my review of the legislation of interest to tort lawyers that was passed by the General Assembly in 2009. Want to see more? Look at the Legislation 2009 category.

This legislation is of interest to those who bring or defend dram shop cases. The new act modifies TCA Section 57-3-406 and TCA Section 57-5-301. Here is a summary of the bill:

Present law prohibits an alcoholic beverage retailer from selling any alcoholic beverages to any person who is drunk and from selling alcoholic beverages to any person accompanied by a person who is drunk. This bill revises this provision to refer to persons who are "visibly intoxicated" instead of persons who are "drunk."

August 10, 2009

Dog Bite Case Website

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

I admire people who have the foresight and courage to pick a practice area and learn it, inside out. I greatly admire those who share the knowledge they have to help other lawyers and the public.

Here is a fine example: Dog Bite Law by Kenneth Phillips. He limits his cases to representing people who have been bitten by dogs and "accept [s] only cases where a person has been bitten in the face, or has become disabled — or where a person has been killed."

Kenneth shares lots of information for victims of dog bites, down owners, parents, journalists and other lawyers. He also sells what appears to be a very comprehensive form book. He also sells videos and books for lawyers. For those who have relatively minor cases, Kenneth sells forms to aid the injured party in resolving his own case.