Articles Posted in Cases Against the Government


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.

Personal injury and wrongful death lawsuits against the State of Tennessee can arise from car accidents, slip and fall accidents, medical negligence, and a host of other circumstances.  Special rules apply to bringing claims against the State of Tennessee and there are limits on the amount of damages that can be awarded in such cases.

One special rule is that ordinarily a personal injury or wrongful death claim against the State of Tennessee cannot be filed in court.   Instead, a claim form must be completed and filed with the Division of Claims Administration of the Tennessee Department of Treasury in Nashville.  It is advisable to use the claim form provided for such purposes.  Click on the link to see a copy of the form using for filing a claim with the State of Tennessee.

Failure to properly file a claim on time will result in a loss of your rights.  If you have a serious claim you should seek the advice of an experienced injury lawyer to assist you in completing the form and navigating through the claim process, which typically involves a trial before a judge (called a "Claims Commissioner").

Tennessee law provides that when a city employee negligently causes a car or truck accident while they are working for the city  the city is responsible for the harm caused.  Thus, the a lawsuit can be filed against the city (not against the driver) and damages for medical expenses, lost wages, pain, suffering and other losses can be recovered.  Click on the link for more information on the types of damages that can be recovered in a Tennessee personal injury case.  Click on the link for more information about wrongful death cases in Tennessee.

Tragically, the law limits the liability of any Tennessee city to $300,000 for any one person who is injured or killed as a result of the negligent driving by one of its employee’s while he or she is working for the city.  Thus, even if your medical expenses are $500,000, the law will not permit you to recover more than $300,000 from the city whose employee caused the accident.

A lawsuit against the city must be filed within one year of the date of the accident causing an injury or death.  Failure to file a lawsuit on time will result in the loss of your rights.

Tennesseans have been surprised to learn that thirty-one children who had interaction with the Tennessee Department of Children’s Services have died this year.  Apparently,  202 children that DCS officials said died in two previous years after having had some interaction with the agency when they were alive.

According to the Tennessean, DCS  data revealed that 10 infants who died were the subjects of open case files by DCS workers died between January and June, 2012.   An additional 17 children died who had been investigated by DCS in the past. Four children died in state custody during the same time period.

DCS is alleged to have violated the law by failing to report these deaths, according to an article in the Tennessean.

Suing the State of Tennessee in a personal injury or wrongful death case is different than suing a person or business in a personal injury case.  Here are some of the major differences:

1. Formal notice must be given before a lawsuit is filed with the Division of Claims Administration.  Failure to give written notice in the correct way will result in the loss of the right to bring a claim.  Notice typically must be given within one year of the date of the incident causing injury or death, although this area of the law is very complicated.  The actual deadline that applies in your case should be determined by an experienced Tennessee personal injury and wrongful death lawyer who has been made aware of all of the facts.

2. After notice is filed, the injured person must wait 90 days before taking other legal action.  The State may settle or deny the claim during this 90-day period.  (I have filed claims against the State of Tennessee many times over my 30+ years as a lawyer and they have never settled a claim in this 89 day period.)  If the claim is not settled or denied, proper papers must be filed with the Tennessee Claims Commission.

I was in a car accident caused a guy driving a dump truck for Springfield (Robertson County), Tennessee public works department.  Can I sue the city and recover damages for the injuries I received?

Yes.  In Tennessee, local governments cannot be sued under many circumstances but they can be sued if an employee driving a vehicle on the business of the city (or county) causes an accident and there is property damage or personal injury as a result.

However, the damages in such a lawsuit are limited to no more than $300,000 for any one person injured or killed in the accident and no more than $700,000 total if multiple people are injured or killed.  Property damage claims are limited to $100,000.