Tennessee Injury Law Center : Lawyers for Personal Injury and Wrongful Death : Serving Memphis, Nashville, Knoxville

Child abuse injuries resulted in 4,500 hospitalizations and 300 fatalities in just one year in the United States, researchers from Yale School of Medicine reported in the journal Pediatrics. This is the first study that has quantified abuse severity and how many children ended up in hospital, the authors added. 

The researchers found that 

• 4,569 kids where admitted to hospital in 2006 because of serious abuse
• 300 of them did not survive
• Those at the highest risk of being hospitalized were aged twelve months or less (58.2 per 100,000 kids compared to the average 6.2 per 100,000)

Child abuse can give rise to both criminal and civil liability.  An abuser can be held liable for monetary damages for the harm caused by the abuse, including medical bills, pain and suffering, disability, disfigurement, lost earning capacity, and loss of enjoyment of life.  Abuse so severe that it causes death of the child can also result in liability for damages.

Ordinarily, a child who is abused must file a lawsuit against the responsible party within one year of the date of the child's 18th birthday.  However, because the passage of time often complicates the prosecution of abuse claims, we strongly urge that an experienced child abuse attorney be contacted promptly after the abuse is discovered.

Our firm has represented children who have suffered abuse at the hands of others.  We offer a free consultation in these cases and, in the case has merit, will accept representation on a contingent fee basis.

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Does Tennessee have any limits on punitive damages in personal injury and wrongful death cases?

Yes, for all injuries and deaths that occur as a result of reckless or malicious acts on or after October 1, 2011.

Under the new law, punitive damages are limited to $500,000 or two times the compensatory damages awarded in the case, whichever is more.  Punitive damages are not limited in cases involving those who cause harm while under the influence of drugs and alcohol and those who intend to cause physical injury.  Punitive damages are prohibited in certain other types of cases.

If the injury or death occurred before October 1, 2011, there is no statutory limit on the amount of punitive damages that can be awarded.

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My 8-year old daughter was killed in a car wreck six months ago.  I have been avoiding it forever but I need to hire a lawyer.  I go to church with a lawyer and she says she can do a great job for me because she has a special relationship with the judge.  That seems important to me.  Should I hire her?

No.  Lawyers who say such things are scumbags. 99.9% of judges would never allow their personal feelings for a lawyer to directly affect the outcome of the case. To do so would be unethical, and 99.9% of judges would never consider acting in such a fashion.

It is true, of course, that judges tend to respect lawyers who are prepared, who show up to court on time, who understand law and court procedure, and who answer the judge’s questions directly and honestly. And judges, like every other human, would tend to more readily accept the word of a lawyer who earned respect than a lawyer who demonstrated that he or she was not entitled to respect. But disregard the facts or the law simply because of a personal relationship? No,  it rarely happens.

Finally, think about it this way: If you were a judge and learned that your lawyer “friend” was going around suggesting to people that she could improperly influence you in a case, how would you feel about it?

No, stay away from this type of lawyer. Like the lawyer who evaluates a case too early, this lawyer is trying too hard to get your case and, at the end of the day, you are very likely to be disappointed in the service you actually receive.

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My daughter was injured in a fireworks show put on by our neighbors last night.  What responsibility does the neighbor have to pay her medical bills and other losses? 

Your neighbor's responsibility depends on whether or not he was negligent in his use of the fireworks.  Your neighbor had the duty to exercise reasonable care while using the fireworks and, indeed, an argument can be made in the law that he had the duty to use the highest degree of care because fireworks are so dangerous.

So, before I can tell you want responsibility your neighbor has, if any, I need to know a whole lot more about how the injury occurred.  I also would need to know the age of your daughter and what she was doing at the time the injury occurred. 

A careful investigation by an experienced personal injury lawyer will determine whether your neighbor is liable for the injuries to your daughter.

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I live in a neighborhood where one person has a backyard portable pool that is a couple feet deep.  However, there are lots of little kids in the neighborhood - one of them is mine.  There is no fence around the yard where the pool is located.  I am worried sick about a kid falling in the pool and drowning, but when I spoke to the property owner about it he said "if you keep an eye on your kids nothing will happen."  What can I do about this?

Recent news articles have demonstrated the risk of such pools, reporting that one child drowns every five days in portable pools.  However, unless local zoning rules or homeowner association rules require that the pool be fenced, there is no way you can force your neighbor to fence in the pool or keep it drained when it is not being actively supervised by an adult.

The law requires that the property owner exercises reasonable care for the safety of those who come on his property.  In my view, the pool creates what is known as an "attractive nuisance,"  meaning that it is an instrument of danger that the owner knows that children will want to play in.  This puts the property owner at high risk of being sued if a child is injured or dies in his pool.

All you can do (absent a zoning or home owner's rule) is do your best to keep a eye on your kids.  As soon as they are an appropriate age get them swimming lessons. And, hope and pray that your neighbor will have the good sense to either drain the pool when it is not being used under adult supervision or place a fence around it.

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My daughter, a high school student, was  run off the road by a tractor trailer.   She was badly hurt and had to miss a semester of school.  It looks like she will have permanent injuries as a result of the wreck.  What damages can she recover?

At the outset, let me remind you that no damages can be recovered unless you can prove that the truck driver negligently caused your injury.  The case you describe can be difficult, particularly if there was no impact between your vehicle and the truck and if there are no witnesses to the event. An experienced personal injury lawyer can help you determine the likelihood of success of your case.

Now, back to your question.  In a personal injury cases arising from accidents with trucks, you can recover monetary damages for past and future medical bills incurred because of the injuries, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

A significant part of many personal injury claims in the recovery of the reasonable medical bills necessarily incurred as a result of the incident. To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

Physical pain and suffering is physical discomfort caused by an injury. In the event you suffer an injury that will cause pain in the months and years after a settlement or trial, you can recover damages for that as well.

Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities you once enjoyed.

Disability is the loss of your ability to do the same physical things that you did before you were injured.

Loss of earning capacity is the loss of your ability to work and earn money. It may be an amount equal to your lost wages as a result of the injuries you received in the incident. If you have suffered permanent injuries that affect your ability to work and earn money, it includes those monies you are likely to lose in the future because of your injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a high student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at the local Sonic. Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

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My son was bit by a neighbor's dog.  What rights do I have in a lawsuit against the dog owner? 

You have the right to recover medical expenses that you paid or were paid by your insurance company.  (You almost certainly have to repay your health insurance company out of the settlement or judgment.)  You can also recover damages for loss of services of your child.

Under Tennessee law, you cannot recover damages loss of the relationship between you and your child because of the injuries or for your emotional distress at seeing your child deal with his injuries.  

However, you may be able to recover damages for emotional distress if you saw or heard the dog attack your son or came up on the scene of the event shortly after the dog attack occurred.    An experienced personal injury lawyer can tell you whether you qualify for recovery of this type of damages - they are dependent of the details of your case and your emotional injuries, if any.

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My former spouse was driving our child to school, ran a red light, and was in a wreck.  Our child was seriously injured.  Can I help my son file a lawsuit against his father to collect money for the injuries received in the wreck?

Yes, under Tennessee law a child can sue a parent for injuries that arise out of an auto wreck.  You, as a parent, would have to file suit on behalf of your son because a minor cannot bring a lawsuit on his own behalf.  (Alternatively, the court could appoint a guardian to file suit on behalf of your son.)

The problem is that most auto liability insurance policies in Tennessee do not provide insurance coverage for injuries caused to family members.  Thus, if you and your son can prove that his dad caused the wreck you would have to collect any judgment you receive out of the father's assets and future income.  

Obviously, this is going to materially affect family harmony.   You and your son need to think long and hard about taking this type of legal action.  An experienced lawyer can help guide you through all of the factors you should consider before taking this type of action.

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I gave birth to my son two and one-half years ago in a Tennessee hospital.  The delivery was very traumatic.  My son was blue when he was born.  He was resuscitated but spent months in NICU.  He is very far behind developmentally and now I have been told that he suffered a brain injury during delivery from lack of oxygen.  Is it too late to have a lawyer investigate to see whether my son has a malpractice case?

No, but your son's deadline is approaching very fast.  Under current law if your son was injured by negligence during his birth appropriate legal action  against the health care providers who caused the injury within three years of the date of the negligence.  The first step in this process is giving formal notice of the claim to the responsible health care providers.  Do not attempt to do this on your own - it is more complicated than sending a letter or calling the providers on the phone.  You will need the help of a lawyer to get this done.

More importantly, you need the help of a lawyer to investigate this matter.  Investigating birth-injury cases is a time-consuming effort, and thus I urge you to contact a competent lawyer as soon as possible.

The three- year deadline is an absolute deadline.  That is, unless all health care providers who caused you son's injury (if investigation reveals that the injury was caused by negligence) have appropriate legal action taken against them within three years of the date of the negligence your son's rights will be lost.  There are two exceptions to this absolute deadline.  One is not applicable to the facts as you have stated them because it requires that a foreign object be left in the patient that results in injury.   The other exception is fraudulent concealment of the claim by the health care providers.  This is an extremely complicated area of the law and you need the advice of a lawyer to determine if this exception applies to the facts of your case.  

Do not, under any circumstances, assume that "fraudulent concealment" applies to your set of facts unless a competent lawyer advises you that it does.  Thus, you should assume that your child's rights, if any, will be lost three years after the date of the medical error and thus take prompt action to determine whether there is a valid lawsuit under the facts.

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I was hurt in a car wreck six months ago.  It wasn't my fault.  I have been waiting for over a year for the case to settle.  I lost three months of wages and have had to pay some medical bills that were not covered by my health insurance.  Can I get the insurance company to pay interest on my settlement?  It doesn't seem fair that they can delay my settlement and not have to pay interest.

Not under Tennessee law.   Tennessee law does not permit the recovery of interest in personal injury or wrongful death lawsuits.  

The only exception to this rule is if you win a case and a judgment is entered by the court you are permitted to recover interest.  Interest accrues at the rate of 10% per year on the amount of the judgment that is unpaid.  

For example, if you win a judgment of $365,000 at a jury trial in Tennessee you are entitled to collect interest of $100 per day from the date of the jury verdict until the date the judgment is paid.  If a partial payment of the judgment is made the interest is payable only on the unpaid portion of the judgment.  (Note:  you have to pay income taxes on the interest that you are paid.  Be sure to talk with you tax advisor about this.)

The inability to collect interest on personal injury and wrongful death lawsuits (unless a judgment is entered) is yet another reason why you want to hire a lawyer who will work to finish your case promptly.  

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I was in a car wreck yesterday.  I thought I was ok but I woke up this morning and feel absolutely horrible.   Should I go to the doctor, or should I just tough it out?

You should see your doctor and accurately report the nature and extent of your concerns.   Call and make an appointment to get in and see the doctor as soon as you can.

Why?   There are three reasons.  First, your doctor may uncover a problem that is more serious than you think it is.  

Second, your doctor may prescribe some sort of treatment or therapy that will help you heal faster and minimize the impact of the injury on your life.  

Third, in the event that your physical problems continue the at-fault driver's insurance company will expect to see prompt consultation with a doctor about your problems.  The failure to promptly see a doctor may lead the insurance company to conclude that you were not hurt in the wreck or at least not seriously hurt.   More importantly, a jury may see it the same way.  Remember, the burden is on you to prove that the injuries you claim you had occurred as a result of the wreck.   And, whether it is fair or not, jurors (and insurance companies) are more likely to link the injuries to the wreck if prompt medical attention is sought.

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My brother got killed in a car wreck.  Can I file a wrongful death lawsuit for him?

You can file a wrongful death lawsuit for your brother under only limited circumstances.  First, if you are named the executor of his will you have the right to file suit.  Second, if the court names you the administrator of your brother's estate you will have the right to file suit.  Third, if you brother was not married, had no children, and your parents are dead you would be considered "next of kin" and you would have a right to file suit.  

The right to file suit is different from the right to control the litigation. For instance, if your brother was married and his wife is competent, it is very possible that a court would let your sister-in-law control the lawsuit even if you were named executor of your brother's estate.

The right to file suit is different than the right to receive any money that results from a wrongful death lawsuit.  For example, under Tennessee law, a sibling will receive proceeds from a wrongful death lawsuit only if the decedent was unmarried, had no children and was predeceased by his parents.

All of this can get a little complicated.  An lawyer who has experience with wrongful death claims can guide you through the process.  Under Tennessee law, you should assume that a wrongful death claim must be filed within one year of the date of the injury that later results in death unless and until a lawyer familiar with all of the facts tells you that you have more time.

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I was hurt in a head-on automobile accident.  The driver that crossed the centerline and hit me died in the wreck.   Do I have legal rights against him even if he is dead?

Yes.   Although you can't sue someone who is dead, you can sue his estate.   If an estate is not opened for him, you (through your lawyer) can petition the court to have an estate opened so that you can sue it and collect the monies you are entitled to recover.

The fact that the person who hit you died does not relieve his insurance company of the obligation to defend the case and pay the monies to you that you are entitled to receive under the law (up to the liability insurance policy limits). 

An experienced personal injury lawyer will know how to help you through this process.   Remember that in Tennessee a personal injury claim must be filed against the responsible people within one year of the date of the accident.   Under these circumstances you will need act even more promptly than usual because the lawyer you hire will need to do extra work to get an estate opened for the decedent so that suit can be filed within one year of the date of the accident.

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My child has been injured. How long do I have to bring a lawsuit on behalf of my child?

Under the law in Tennessee, there are time limits on which any person can bring a lawsuit against another. The general rule is that a child has until one year after his or her eighteenth birthday to bring a lawsuit to recover for a personal injury. Some people argue, however, that a parent’s claim for medical expenses incurred on behalf of the child must be filed by the parent within one year of the incident causing the injury, and thus it makes sense to consult with a lawyer promptly about any injury to your child that you believe was caused by someone else’s negligence.

If the child was injured as a result of medical malpractice, different rules apply. Medical malpractice claims are subject to a statute of repose. A statute of repose imposes an absolute time limit for bringing a claim regardless of the age of the injured person. The statute of repose for bringing a medical malpractice claim is three years. This means that a medical malpractice claim must be initiated within three years of the date of the malpractice regardless of the age of the injured person. Therefore, for example, a medical malpractice claim for a child injured during birth must be initiated within three years of the date of the birth of the child. There are certain other types of lawsuits where a minor must take legal action before his or her 19th birthday.

A new Tennessee law requires that medical providers be given 60 days advance, formal notice before being sued for medical malpractice. The notice must be given before the expiration of the time limit for initiating the claim. If proper notice is given, the deadline for filing the lawsuit is then automatically extended by 120 days.

Determining the deadline for filing suit in a particular case is very complicated. The consequence of a late filing – even by one day – is the loss of your legal rights. Therefore, the safest course of action is to contact an experienced attorney as soon as possible if you believe your child may have a claim. Most lawyers do not charge for this type of consultation

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My child was killed by a drunk driver.   He was 10 years old. I want to file a lawsuit.  His no-good father, who never paid child support as ordered by the court and did not visit my son for the for the five year period after our divorce, says he is going to file a lawsuit, too.   Can he do that?  Does Tennessee law permit him to get money from the death of our son when he had nothing to do with our son when he was alive?

Unless you have some physical or mental health issue that you have not mentioned, you will have the right to bring the lawsuit. 

Tennessee law provides that a parent who has a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period is not permitted to recover damages for the death of the child.  Thus, to cut off the father's right to money out of any recovery you make, you will have to demonstrate that (a) there was a child support order; (b) the father intentionally did not pay for at least 2 years; and (c) he intentionally did not visit the child.

At an absolute minimum you will be able to recover your unpaid child support.  Tennessee law provides that parent cannot recover damages from a wrongful death suit  until all child support arrearages have been paid in full to the parent ordered to receive the support (plus interest).    Thus,  if your child's father had visited your child within the last two years or but had not been paying child support he would have to re-pay you out of the any portion of the money he was entitled to receive.

An experienced wrongful death lawyer can help you navigate through these issues.

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My daughter was hurt in a soccer game because the ref refused to reign in a reckless player on the opposing team.  Can I sue?  My son is devastated because he was improperly called out on strikes by a blind umpire.  Can I sue?

Setting aside the merits of these complaints, or the wisdom of pursing such a claim, Tennessee law gives a relatively high level of immunity to sports officials.  Under Tennessee Code Annotated Section 62-50-201, a “'sports official' means "any person who serves as referee, umpire, linesperson or in any similar capacity in supervising or administering a sports event and who is registered as a member of a local, state, regional or national organization that provides training and educational opportunities for sports officials."

Section 62-50-202 provides that "[a] sports official who administers or supervises a sports event at any level of competition is not liable to any person or entity in any civil action for damages to a player, participant or spectator as a result of the sports official's act of commission or omission arising out of the sports official's duties or activities."

Section 62-50-203 limits Section 202 and says that "civil immunity [is not granted] to a sports official who intentionally or by gross negligence inflicts injury or damage to a person or entity."

Thus, under Tennessee law, a person trying to sue a ref has a very difficult hill to climb.  Indeed, absent intentional conduct or misconduct under the influence of drugs or alcohol, I have a difficult time imagining how a claim against a ref would be successful.  

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My child  temporarily went into the Tennessee foster care program.  While she was in the care of her foster parent the foster parent ran a red light and my child was severely injured.  Can I sue the foster parent for harming my child?

In Tennessee you cannot sue the foster parent for causing this wreck and injuring your child but you can sue the State of Tennessee.  

Under Tennessee law foster parents are considered employees of the state.  If a state employee who is on the job causes a car accident and a person is hurt, the state employee cannot be sued but a claim can be filed with the State of Tennessee Claims Commission.  The claims process is similar to a lawsuit, but the case is decided by a judge (called a commissioner) and not a jury and the damages that can be awarded to any one person for any claim are limited to $300,000.  

Therefore, so long as you have not lost your parental rights concerning the child you can bring a claim on behalf of your child.  Unless you have paid medical expenses or can prove a loss of services, any money you recover ordinarily will be held by the Court for the benefit of your child.

As indicated above, the claims process is very much like any other lawsuit.  There are rules of evidence and procedure that apply.  The State of Tennessee will be defended by the Attorney General.   You will almost certainly need an experienced personal injury lawyer to help you with this type of matter.

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