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Articles Posted in Cases Against the Government

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A recent New York Times article discussed how the health care industry was attempting to teach medical professionals the art of “radical listening”.   What is radical listening?   And why is it so important especially for professionals like doctors and lawyers. Continue reading

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Let’s face it, the pandemic is leaving an indelible mark on almost everything, so there is no reason to believe jury awards in injury and death cases will be any different.  Jury and trial consulting firms have been conducting surveys since the inception of the pandemic and they have some theories on how the pandemic will affect the amount of jury awards, how it will impact medical malpractice cases and whether it will generally be better for the defendant or the injury victim.

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You may have heard this phrase on advertisements by lawyers or on a TV show, but what does it mean and, more importantly, if you have an injury case, how do you prove it?  Pain and suffering is exactly what it sounds like: it is the pain and problems you have encountered following an accident.  While it is related to your medical treatment it is a distinctly different item of damages and is entitled to separate compensation, but there is not a mathematical formula for calculating it.  So, if you have sustained a serious injury after an accident that was not your fault, you need an experienced injury lawyer to help you prove your pain and suffering to an insurance company, a jury or a judge so that you can maximize your compensation.  Read on to understand the basics of this part of your injury case. Continue reading

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At dinner one night, when our son was little, he told a story about how a company had made a toy that did not perform as expected.  He concluded his tale with an indignant “They don’t care about us; they just want our money”.  From the mouths of babes, right?  We all laughed but the sad truth is that every day in the headlines we see where corporations put profits over safety.  To some, financial growth is the sole objective.  So what can be done? Continue reading

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At this time of year, especially with a shortened season between Thanksgiving and Christmas, it is easy to feel overwhelmed.  Shopping, wrapping, addressing, baking and all the other things that need to be squeezed into our already busy schedules can become stressful.  But it is important to take a step back, take a deep breath and realize that this type of overwhelmed is rooted in something joyful.  We buy the presents, send the cards, bake the cookies, etc. because it is part of a season of joy and festivities.  But, there is another type of overwhelmed. Continue reading

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At The Law Offices of John Day, P.C., we have two intake specialists, Penny Whitaker and Lauren Bates. When people call into the offices for a free consultation, Lauren and Penny take the basic accident information for a free review by one of our award-winning attorneys. Let me say, Penny and Lauren do a great job; they understand that when people call our office they are often confused about their rights and options, scared about what the future may bring and looking for help. And, we desperately want to help. But all too often, we can’t and that is where the disappointment comes in. This is never truer than when someone did do something wrong and injuries or death resulted. Let me explain. Continue reading

We wrote just a few days ago about the bus crash in Nashville involving a school bus in Chester County.  That school bus wreck was bad enough, but today’s school bus accident in Chattanooga is even more tragic.

Apparently, a school bus filled with 35 children crashed into a tree.  It has been reported that six children have died in the crash off Talley Road in Hamilton County and many others have been injured, some in critical condition.  The students attended Woodmore Elementary School.

No information about the cause of the crash is currently publicly available, although speed is being investigated as a factor.  Reportedly the school bus driver is cooperating with authorities. UPDATE:  CNN reports that the bus driver, Johnthony Walker, 24, has been charged with five counts of vehicular homicide, reckless endangerment and reckless driving and that the National Transportation Safety Board will be investigating on Tuesday November 22. Continue reading

The Chester County school bus crash in Nashville injuring 23 students (with 20 more seeking a medical evaluation) provides a good opportunity to remind our readers of one of the most unfair provisions of Tennessee law.  That’s saying a lot – there are lots of unfair parts of Tennessee personal injury and wrongful death law – but this one is a biggie.

Most people think that people and companies who harm others should be held accountable for the harm they cause.  But, when a local government causes harm, its accountability is very limited.  Local governments (and the state and federal government) can only be sued under certain circumstances and when they can be sued special rules apply.  The special rules are set forth in the Tennessee governmental tort liability act and the relevant case law.  (Claims against the State of Tennessee are addressed in a separate law.)

The Chester County school bus crash shines the light on two of the special rules.  Before I discuss them please know that I know nothing of the facts of the accident.  I have seen the news reports, but cannot vouch for their accuracy or completeness.

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If you have been seriously injured in an accident with a state or local government employee, your case is subject to a number of special rules and procedures. Below is an explanation of two of the special rules and a practical hurdle our office sees time and time again. 

The first special rule is that a local  government does not have any liability if the employee who injured you was performing a discretionary function. What is the discretionary function? The discretionary function exception to liability is meant to protect the government from tort liability in situations in which special social, scientific, economic, professional or political policy issues are involved.   In short, policy and planning decisions are typically protected, but operational acts in which an employee is simply following a policy or regulation are not immune from liability.   (The discretionary function rules are not applicable to claims against the State of Tennessee, only local governmental entities.)

The next special rule involves damage caps. The State of Tennessee’s damages have been capped by statute at $1,000,000 per accident and $300,000 per person.  Local government liability is capped by statute at $300,000 per person and $700,000 per accident.  These damage caps have been not increased in over a decade  and are woefully short of compensating an injury victim with serious or catastrophic damages. (Note:  there is no cap on damages in cases against the federal government.  However, there are other special rules applicable to that type of case as well. Search this site for information about claims against the federal government.)

The horrific bus accident that took place on Interstate 40 between Knoxville and the North Carolina / Tennessee border gives rise to lots of questions.  The media has indicated that a bus tire failed, resulting is a loss of control that in turn resulted in the bus going through a wire median barrier and into oncoming traffic.   The bus then collided with an SUV and a tractor trailer.  

One question  that will be explored is whether the wire median barrier should have prevented the bus from going into oncoming traffic.  Wire median barriers, also called cable barriers or safety cable barriers, are installed in medians.  The cables are installed on metal posts.   The barriers are intended to stop, slow down or redirect vehicles which strike them.  

Safety barriers are tested in accordance with National Cooperative Highway Research Program Report No. 350.

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