Personal Injury 

PERSONAL INJURY

 

I. Personal Injury
 

In general, in Tennessee, an individual who is injured due to the actions of another person is allowed to recover damages from that person for the injury. The doctrine of comparative fault allows the injured party to recover if he is less than half at fault for the injury. There are many theories for personal injury causes of action including negligence, products liability, and workers’ compensation. Damages for personal injury are compensatory and generally consist of lost wages, medical bills, and pain and suffering. Also, a spouse of the injured party may have a cause of action, called loss of consortium. This loss of consortium damages includes loss of companionship and loss of sexual relations.

 

II. Statute of Limitations
 

For most personal injuries there exists a one-year statute of limitations, which means that the injured party must file a lawsuit within one year of the date of the injury. If the suit is not filed within that one year, the plaintiff cannot sue for the injury and cannot recover any damages. Some statutes of limitation begin on the date of the injury; some on the date of discovery of the injury or the date the injury should have been discovered. If a minor is injured, the statute of limitations begins to run at the child’s eighteenth birthday. In other words, an injured minor has one year from the time he reaches majority age to sue. For cases involving an occupational diseases, such as cancer caused by exposure to chemicals at work, the discovery rule applies. This means that the injured party has one year in which to sue from the time he realizes or should have realized what cased the injury.

 

III. Negligence
 

The plaintiff, who is the injured party, must prove that the actions of the defendant in causing an accident were either intentional, reckless, or negligent. The lowest and most common standard that a plaintiff may show and still recover damages is negligence.

Under Tennessee law, the Plaintiff must prove to have a case based on negligence. First, the defendant must have owed the plaintiff a duty of care such as keeping a proper lookout in driving an automobile or producing a reasonable safe product in manufacturing. Second, the defendant must have breached that duty of care. This breach occurs, for example, when the driver of a car does not keep a proper lookout and causes an accident. Third, the plaintiff must suffer an injury or loss as a result of the defendant’s breach of duty. The injury or loss may be measured by medical bills, pain and suffering, and other factors. Fourth, the defendant’s actions or omissions must be the actual cause of the injury. In other words, the defendant’s failure to keep a proper lookout must be what cased the injuries to the plaintiff. The harm would not have occurred “but for” the defendant’s negligence. Fifth, the actions must be the proximate or legal cause of the injury. Once cause in fact is established, proximate cause is used to determine whether legal liability should be imposed in the particular situation. Legal responsibility is imposed when the actions of the defendant are of such significance that the court is justified in imposing liability on the defendant. Each of these five elements must be proven by the injured party in order to establish negligence.

 

IV. Comparative Negligence
 

In an attempt at more fairness to injured parties, Tennessee adopted a system of liability called comparative negligence; whereby, percentages of fault for an injury are attributed to the plaintiff and defendant. In other words, each person who helped cause an injury is responsible for the part he played. If a driver were seventy percent at fault in hitting a car that merged into his lane, then the driver is responsible for paying seventy percent of the injured person’s damages. The plaintiff can never recover to the percentage of his own fault. Therefore, if the plaintiff is twenty percent at fault, then the plaintiff cannot recover twenty percent of his damages from the defendant. The judge or jury hearing the case determines the percentages of fault.

In Tennessee, an injured party may recover only if he is less than fifty percent at fault. If the plaintiff is forty-nine percent or less at fault, then he can recover for his injuries. However, if he is fifty percent or greater at fault, then the plaintiff can not recover for his injuries. The plaintiff’s fault must be less than the defendant’s fault for recovery.

In instances where there is more than one defendant, the fault of all defendants is added together before it is compared to the plaintiff’s. In other words, the plaintiff must be less at fault than all other parties combined. For example, if a plaintiff is forty percent at fault while defendant one is thirty percent at fault and defendant two is thirty percent at fault, then the plaintiff can recover of his injuries from each defendant for a total of sixty percent of his injuries. Therefore, if more than one party caused an injury to an individual, then the individual must sue all of the parties involved to receive full recovery.

 

V. Products Liability

In Tennessee, if a person is injured by a product, then he may have a right of recovery against the manufacturer and/or seller of the product. In order for a manufacturer to be liable, the injured party must prove one of two things. First, the product was defective when it left the manufacturer’s control. Second, the product was unreasonably dangerous. The unreasonable danger may be proved two ways. Either the product is more dangerous than an ordinary consumer would expect it to be, or the product is so dangerous that a prudent manufacturer with knowledge of the danger would not place the product on the market. In either case, the manufacturer has no duty to warn of or prevent dangers if the danger is obvious to an average or normal user of the product. If a manufacturer has a duty to warn, then the manufacturer is strictly liable for injuries caused, meaning the injured party need not prove any negligence on the part of the manufacturer.

In general, there is what is called a statute of repose of ten years, meaning that the product must cause the injury within ten years of its purchase for the manufacturer to retain liability. If the product were made to last a shorter period of time, then the manufacturer has liability of one year longer than the expected life of the product. For silicone gel breast implants, the statute of repose is twenty-five years. For asbestos exposure, there is not time limitation. The statute of limitations still applies, as well.


VI. Workers’ Compensation

For most occupations in Tennessee, an employer is liable to an employee for any work-related injury regardless of fault. This is true of any injury which “arises out of” or “in the course of” employment. In these cases, the employee does not have to prove that the employer did anything wrong. When an injury does not fit into these categories, the employee may sue under common law tort principles. For workers’ compensation benefits to extend to employees, an employer must have at least five regular employees.

For workers’ compensation cases, fault is not an issue. The workers’ compensation benefits provided by the employer are viewed as a cost of doing business for the employer. By the same token, the employee is limited in his recovery to statutory levels and cannot seek common law damages which may be higher.

The law is compulsory for employees covered by it and provides the employee his exclusive remedy for his work-related injury. Benefits include medical, disability, and death.

In general, the law applies to all employees and employers under “any contract for hire or apprenticeship, written or implied”. Volunteers do not receive workers’ compensation benefits. Independent contractors, domestic servants, farm or agricultural workers, and unpaid ski patrolmen are not covered. State, city, and county employees are not covered unless the governmental entity which employs them so chooses. Also, interstate common carriers like railway employees are not covered. If an employee is not covered by workers’ compensation then he may sue in tort; however, in tort cases, the employee must prove fault on the part of the employer to recover.

 

VII. Defenses

Several defenses exist for the defendant who is sued for a personal injury. As previously discussed, there is a one year statute of limitations from the date of the injury, meaning that the plaintiff must sue within one year. Also, comparative fault is another defense in which the defendant’s fault is lessened by the fault of the plaintiff in causing the injury. The defendant can reduce the damages he owes by showing that the plaintiff contributed a certain percentage to the injury. If the plaintiff is more than forty-nine percent at fault, then he cannot recover for his injuries. A traditional defense which has been incorporated into comparative fault but which still may be involved is assumption of the risk. For assumption of the risk, the defendant argues that the plaintiff realized the dangers of risks involved and acted anyway; therefore, the plaintiff is responsible, at least in part, for his injuries.

The defendant may also argue waiver, saying that the plaintiff voluntarily relinquished his known rights after the injury. Release is argued when the injured party relinquishes his right before the injury occurs such as by signing a document before taking part in a dangerous activity. Consent is a similar defense in such cases as sports injuries in which a player consented to take part in activities that may cause injury.

The defendant may argue duress, saying that another party exercised an unlawful constraint over the defendant, forcing him to perform an action that he otherwise would not have done. Self-defense is a related defense in which a party may protect himself from harm and be immune from tort liability for hurting his assailant, provided the force used is deemed necessary for the situation. In causing an injury, the defendant may also protect another person from harm which is called defense of another.

The defendant may argue the theories of judicata or collateral estoppel if the plaintiff has previously sued for the injury. In that way, the plaintiff has only one opportunity to sue the defendant, and the defendant cannot be sued a second time if the plaintiff loses. The defendant may also present as a defense a general denial, contending that the actions or events causing the injury did not occur. Similarly, the defendant could argue fraud, stating that the plaintiff had misrepresented the truth about the cause or extent of the injury.