Areas of Practice
The law is an extensive and ever-changing set of practices. To best serve our clients, our Tennessee Law Firm frequently practices and litigates in the following areas of the law. Click on the following links for detailed information on each area:
Areas of Practice
- Personal Injury
- Car, Motorcycle & Truck Wrecks
- Work Related Injuries
- Catastrophic Injuries & Wrongful Death
- Long-Term Disability Claims & Benefits
- Premises Liability
- Pedestrian Accidents
- Dog Bites
- Commercial Litigation
- Eminent Domain
- Mediation (Civil Cases)
- Product Liability Injuries
- Wills & Estates
PERSONAL INJURY
Experienced Tennessee Lawyer Assists Personal Injury Victims
ACCOMPLISHED MURFREESBORO FIRM ETHICALLY PROVIDES GUIDANCE TO PLAINTIFFS
An injury that you suffer because someone else was irresponsible creates problems beyond those you would expect. Of course, physical healing is paramount, but, after that, financial concerns mount as you seek the funds to pay for medical expenses, cover lost wages, and account for other types of harm. At the Thomas Law Firm in Murfreesboro, we have been fighting on behalf of personal injury victims since 1978. Whether you’ve been hurt in a car crash, because of a defective product, have a slip, trip, and fall injury, or are injured in some other way, we are caring advocates who are here to help you. In every case, we take a hands-on approach to getting clients full compensation in a verdict or settlement.
AGGRESSIVE ADVOCATE OBTAINS COMPENSATION FROM NEGLIGENT PARTIES
Respected by judges and colleagues, attorney D. Russell Thomas has earned an
AV© Preeminent Peer Review Rating by Martindale-Hubbell®, a recognition of his legal ability and ethics by attorneys familiar with his work. That means our firm handles any complex issue relating to your personal injury claim, including:
- Catastrophic harm – Incidents that result in paralysis, loss of limbs or other types of catastrophic harm demand an attorney who can analyze sophisticated medical evidence and press powerful adversaries for compensation that truly addresses current and future needs. Our firm has a long track record of winning exceptional results in these cases.
- Long-term disability – If your medical impairment persists for more than six months, we can help you obtain the long-term disability benefits you are entitled to under your LTD Contract.
EFFECTIVE ATTORNEY HANDLES AUTO ACCIDENT LAWSUITS AND INSURANCE CLAIMS
After a vehicle crash, Tennessee’s fault-based insurance system makes it important to determine who caused the collision. We have the experience and resources to unearth the truth and represent our clients’ interests during litigation and insurance claims against their own carrier or the insurer for the driver who was at fault. If the accident involved a large truck, we’ll conduct a review to see if any of the rules governing commercial vehicles were violated.
KNOWLEDGEABLE ADVISORS REPRESENT PEOPLE HURT BY DEFECTIVE PRODUCTS
Any flaws during the design, manufacturing or labeling process could result in dangerous product defects, leading to severe injuries. In products liability cases involving household items and other goods, we take on negligent companies and individuals. Don’t be pressured into a settlement that isn’t fair. After examining the situation, we can advise you of the true value of a potential claim.
Contact a proven Tennessee personal injury lawyer for a free consultation.
The Thomas Law Firm represents Tennessee clients in a full range of personal injury matters, including cases relating to vehicle accidents and defective products. Please call us at 615-848-1818 or contact us online to make an appointment at our office in Murfreesboro.
Home/Areas of Practice/Car, Motorcycle & Truck Wrecks
Tennessee Car, Motorcycle & Truck Wreck Law Firm Fights for Full Compensation
MURFREESBORO AUTO ACCIDENT LAWYER ADVOCATING STRONGLY FOR YOU
A car wreck can affect your life physically, emotionally and financially. A negligent driver has the potential to cause damage to your vehicle and serious injury to you or your passengers. After an accident, you need legal representation that will aggressively fight on your behalf.
If you have been injured in an auto accident, the skilled personal injury attorney at the Thomas Law Firm in Murfreesboro can help you secure the compensation you deserve for past and future medical expenses, lost income, pain and suffering, disability, disfigurement and emotional distress. We draw upon vast experience to obtain favorable settlements and verdicts for clients throughout Tennessee.
MOST COMMON CAUSES OF CAR ACCIDENTS IN TENNESSEE
There are many different ways in which an auto accident can occur. The most common causes of an accident include:
- Distracted driving
- Speeding
- Drunk driving
- Reckless driving
- Weather conditions
- Auto part defects
Our firm has the necessary skills to advocate for you after an auto accident.
AGGRESSIVELY NEGOTIATING YOUR INSURANCE CLAIM
Whether you file a claim with an at-fault driver’s insurance company or your own, getting the compensation you deserve will be a struggle. Insurance companies, their adjusters and their attorneys are determined to pay the minimum amount of accident compensation whenever possible, especially for serious and catastrophic claims. Often, the insurance company’s reticence rises to the level of actionable bad faith. But even when an insurer seems to be cooperative, you’ll need an aggressive, experienced lawyer to achieve the best outcome possible for your case.
EXPERTS IN VARIOUS FIELDS SUPPORT YOUR DAMAGE CLAIM
To establish liability for the accident and substantiate the severity of your injuries, our attorney brings in top experts in various fields. Our many contacts include trauma doctors, chiropractors, forensics engineers, vocational experts, mechanics, accident reconstruction analysts, who help build your case and obtain the best possible outcome. Our goal is to engage articulate experts to deliver compelling testimony about the cause of your accident and the extent of your injuries which enhances your prospects for a full, fair recovery.
Contact our aggressive auto accident attorney in Tennessee.
Consult a personal injury attorney now at the Thomas Law Firm to get your case moving forward. To schedule a consultation at the Murfreesboro office of the Thomas Law Firm, call 615-848-1818 or contact us online.
WORK RELATED INJURYS
The Tennessee Workers’ Compensation Act was established to protect employees who are injured on the job. A workers’ compensation matter is one in which an individual was injured as a result of their work activity. There are three varieties which are deemed compensable under the Tennessee Workers’ Compensation Act:
Injuries arising “entirely” out of work activity either in a single episode or gradually;
Injuries in which a latent condition was brought into clinical awareness as a result of work activity;
Injuries which were pre-existing and known and were advanced, aggravated, exacerbated, or accelerated by the work activity. Thus, if there has ben an “anatomical advancement” of an underlying condition due to work activity, this is compensable.
The Tennessee Workers’ Compensation Act has recently changed significantly in the procedure for pursuing a claim for the maximum limits on recovery. For more information on workers’ compensation feel free to visit the Tennessee Department of Labor and Workforce Development website at:
https://www.tn.gov/workforce.html
Attorney D. Russell Thomas has over 46 years of experience in pursuing workers’ compensation actions on behalf of injured workers. If you have been injured while in the course and scope of your usual employment, please contact us for a free case evaluation.
CASTROPHIC INJURIES & WRONGFUL DEATH
Death caused by a negligent, careless, intentional or reckless act of another person or corporation is referred to as a wrongful death case. In most states, if the death of a relative was caused by the wrongful act of another, immediate family members may have the right to recover money damages for the death for loss of companionship/consortium.
An award of damages depends upon the earnings the deceased person made and other factors such as whether or not surviving family members were dependent upon this income for support. Also to be considered is the loss of consortium of the spouse and children.
Attorney D. Russell Thomas has over 46 years of experience in handling wrongful death matters. If you are a surviving family member of someone who has died as a result of another person’s acts or failures to act, please call for a free case evaluation.
LONG-TERM DISABILITY CLAIMS & BENEFITS
Long term disability claims are based on an insurance contract between an insurance company and an employee. Most of these arise out of employment situations in large factories where one is part of a group. Some of the group plans are furnished completely by the employer. Some are furnished by the employer with premium contribution payments made by the insured employee. There are also disability policies which can be privately purchased to furnish long term disability benefits, the discussion below is based upon typical group plans most commonly provided by large employers.
Short-Term Benefits
Under the typical group plan there will usually be a short-term disability plan, sometimes called accident and sickness pay. These benefits run for a period of 26 weeks (6 months). The employee will be paid a portion of their normal wages while they are unable to do their normal work. If the disability continues beyond the 26 weeks of benefits, then the employee would be eligible for long term disability. Some employees are only provided with short term disability, and some receive both. It is important to read the materials provided by the employer and ask the benefits coordinator to explain the ins and outs of the policy so that an employee knows what it does and what it covers.
Long Term Benefits
Most long-term disability policies break down coverage into two different categories: (a) specific occupation, and (b) any occupation.
Under the specific occupation coverage, an employee will receive benefits for months 7 through 24 (after the first 6 months of short term have expired) if that employee is unable to do their regular occupation. If the employee is a tire builder at a tire building factory, and he or she can no longer build tires, then they would be entitled to benefits from being disabled from their “specific occupation” up to 24 months after the disability began.
After the 24-month period the usual policy then converts to an “any occupation” policy. This means the disability of the employee is re-evaluated to determine if they are disabled from not only their own occupation, but ANY occupation in the open labor market. In the above example, if the tire builder cannot return to working as a tire builder, but could work as a fork lift driver, then the disability benefits are terminated at that time as he or she can perform lighter duty types of work.
Long Term Disability and Social Security Disability
Most Long-Term Disability policies require the employee to file for Social Security Disability. The standards for Long Term Disability are similar to that of Social Security, but a Long-Term Disability policy is often more restrictive than Social Security. Social Security will allow an individual to make up to $2,000.00 a month and still be considered disabled. Long Term Disability policies may allow for some wages as a percentage of what they were previously making or they may not. Under some Long-Term Disability policies any ability to perform any type of work, no matter how little one could earn from it, may disqualify someone from benefits.
Offsets and Long-Term Disability
Long-Term Disability policies seek a reimbursement and offset of benefits received from Social Security Disability. If a disabled person receives $1,600 per month from their Long-Term Disability policy and later receives an award from Social Security Disability, there may be an offset under the Long-Term Disability Plan.
A difficult and frustrating situation occurs where a person receives Long Term Disability payments for 2 years while waiting for a Social Security appeal. When the Social Security is finally granted, there may be a substantial back pay award which will be completely offset by the Long-Term Disability carrier. The Long-Term Disability carrier may simply request that the entire back pay award from Social Security be turned over to the Long-Term Disability carrier.
In the alternative, the Long-Term Disability carrier may simply cut off benefits until they have “offset” the money owed. Unfortunately, the Long-Term Disability carrier will often try to offset the Social Security before the Social Security Administration completes their months of paperwork and waiting periods before they finally render a decision. Disabled persons pursuing these claims need to be aware of this possibility and prepare accordingly for the bumpy transition periods. Most policies for Long-Term Disability have a minimum payment of $50 per month that they will make even with an offset that would otherwise take the entire monthly benefit.
Long Term Disability benefits can make an individual ineligible for SSI benefits. Regular Social Security Disability does not consider Long Term Disability benefits as income. But for SSI, these benefits are an asset that often prevents an individual from meeting the income requirements of SSI.
Other Offsets
Workers’ compensation benefits may be offset against Long-Term Disability and Social Security Disability. The offset issues have to be looked at closely and determined on a case by case basis. For Long-Term Disability cases, offsets depend on the wording of the policy and the circumstances of who has paid for the policy together with other factors concerning the type of workers’ compensation benefit.
Presenting a Claim
If a claim for Long Term Disability is denied, it is important to build a strong case by building the claim file in your favor. This will increase your chances of winning an appeal of the denial. Read any letters of denial carefully for time limitations on appeals. Once all of the internal appeals are done within the framework of the policy, then suit is filed in Federal Court. A Federal Magistrate or Judge will only review the documents in the claim file to determine whether there was “substantial evidence” for the denial of the claim. This is a non-jury proceeding and the only issue is whether the denial is supported by the information that was available to the insurance carrier. It is crucial to provide as much medical evidence as is possible to support the claim.
Attorney D. Russell Thomas has over 46 years of experience in pursuing long-term disability actions on behalf of injured workers. If you have been injured while in the course and scope of your usual employment, please contact us for a free case evaluation.
PREMISES LIABILITY
Tenacious Representation in Tennessee Premises Liability Claims
MURFREESBORO SLIP AND FALL ATTORNEY AGGRESSIVELY PURSUES COMPENSATION FOR INJURED CLIENTS
Under Tennessee premises liability law, those who own, rent or manage commercial and residential property have a duty to ensure their buildings and grounds do not pose risks to others’ safety and good health. Their failure to do so – or to inform you of known hazards – gives you the right to file a lawsuit for damages if you have been harmed because of their negligence. The Thomas Law Firm forwards the rights of plaintiffs in premises liability lawsuits. Our attorney builds strong cases for clients by:
- Photographing the scene of your accident and preserving other evidence, such as bloodied clothing
- Consulting medical professionals to verify the extent of your injuries and the cost of recovery
- Researching whether anyone else has been injured in the same location, or if anyone has previously complained about the property’s condition
We employ investigators to ensure you receive the maximum compensation possible, and we do not rest unless we are certain we have unearthed any factors that may be beneficial to the outcome of your case. We will even see your claim through to the appellate court level if need be.
WHO CAN SUE
Regardless of whether you were visiting a friend’s home for a party or trespassing on someone else’s land, you have the right to pursue damages for your injuries. An attorney from our firm can meet with you to discuss the circumstances surrounding your accident and evaluate whether you are likely to receive a favorable verdict or settlement by pressing charges. If so, your attorney can explain what steps are next in this process. We have helped clients pursue compensation for accidents resulting from:
- Unsafe walkways
- Snow and ice
- Dangerous construction zones
- Poor retail store maintenance
- Unsafe structures
- Fires
- Explosions
- Building collapses
- Falling objects
- Falling ceilings
- Elevator or escalator failures
- Electrocution
- Exposure to toxic substances
- Poor security
- Wet floors
- Unstable floors
- Dog bites
Contact our Murfreesboro premises liability lawyer.
Contact the Thomas Law Firm online or at 615-848-1818 to schedule a consultation at our Murfreesboro, Tennessee office. We are committed to ensuring our clients receive the compensation they deserve.
PEDESTRIAN ACCIDENTS
Murfreesboro Personal Injury Attorney Represents Injured Pedestrians
TENNESSEE ACCIDENT LAWYER GETS JUSTICE FOR THOSE HIT BY CARS AND OTHER VEHICLES
When you walk around your neighborhood, you expect to be safe. Crosswalks, stop signs and traffic signals all help to protect you from vehicles in the roadway. Unfortunately, sometimes drivers ignore red lights or don’t stop at crosswalks. In these situations, pedestrians can be hit and may suffer serious injuries. The Murfreesboro personal injury attorney at the Thomas Law Firm provides aggressive legal representation to injured pedestrians and their families.
CAUSES OF TENNESSEE ACCIDENTS INVOLVING PEDESTRIANS
Pedestrians can be hurt nearly anywhere that people walk. From driveways and parking lots to sidewalks and crosswalks, there is always a possibility of danger. Drivers of cars, motorcycles, buses and trucks often hit pedestrians. Some of the most common reasons for these accidents include:
- Distracted drivers. Drivers cannot pay full attention to the road when they are using a cell phone or other electronic device. They may also be distracted by passengers, food or even the button on a car radio.
- Fatigued drivers. Drowsy driving is nearly as dangerous as drunk driving and results in drivers who aren’t fully focused on the road or the pedestrians in front of them.
- Intoxicated drivers. The use of alcohol or other intoxicants by drivers frequently leads to serious or deadly accidents.
- Negligence. Drivers often speed, disregard traffic laws or otherwise operate their vehicles recklessly. In these cases, they may be found to be negligent under the law.
Our firm holds drivers accountable for their dangerous behavior and helps victims of pedestrian accidents get the justice they deserve.
UNDERSTANDING PEDESTRIAN INJURIES
Those injured in hit-and-runs and other pedestrian accidents may suffer a variety of serious injuries. Broken bones are common, as are injuries to the hands, feet, back and neck. Many pedestrians hit their head during accidents. The head may impact a vehicle, the road or other surfaces. Traumatic brain injuries come in many forms and can range from a minor concussion to serious and debilitating forms of brain damage. Many serious head injuries result in coma or death. At the Thomas Law Firm, our Murfreesboro injury attorney aggressively pursues justice through serious injury or wrongful death lawsuits for families who have lost a loved one in a pedestrian accident.
GETTING JUSTICE AFTER AN ACCIDENT
In some situations, pedestrians can recover their medical expenses from their own insurance company. In many states including Tennessee, pedestrians may recover from the driver who was at fault or that driver’s insurer. Victims who have suffered serious injuries are able to recover damages in a lawsuit. These damages usually cover the cost of medical expenses, lost past wages and loss of earning capacity. Compensation for mental anguish and physical pain are often awarded in a lawsuit or agreed upon in settlement. Some states also allow for punitive damages when the driver was intoxicated or speeding. Our firm will help you understand your rights under Tennessee law and work hard to get you justice.
If you or a loved one has been hit by a car, call us today.
At the Thomas Law Firm, we provide vigorous and persuasive representation to injured pedestrians and victims of hi-and-run accidents. If you or a loved one has sustained injuries due to the negligence of a driver, we can help. Call us at 615-848-1818 or contact us online to schedule a consultation.
DOG BITES
Aggressive Murfreesboro Lawyer Pursues Justice for Victims of Dog Bites
TENNESSEE ATTORNEY BATTLES FOR COMPENSATION WHEN ANIMALS ATTACK
Dog bites can occur without warning, causing sever physical and emotional damage. These attacks might also create a risk of disease or infection. At the Thomas Law Firm in Murfreesboro we treat dog-bite cases with the seriousness they deserve. Our attorney understands the relevant law and the standards of care that pet owners must observe. If you have been hurt after being bitten by a dog or another type of pet, prompt legal advice can give you the best chance of obtaining fair compensation.
COMMITTED ADVOCATE HELPS CLIENTS UNDERSTAND PET OWNER LIABILITY ISSUES
From the moment we take your case, we perform a complete investigation of the incident and determine where the legal responsibility lies. This an include an analysis of:
- The pet’s history of attacks on people and other animals
- Failure of the owner to use proper safeguards such as leashes and muzzles
- Awareness of the specific dog breed’s tendencies toward aggression
- Mistreatment of the animal by the owner as a possible cause for its behavior
- Commands given or not given by the owner during the attack
Our experienced lawyer will develop a complete narrative to give you the strongest chance of winning a favorable result in court or through a settlement.
LAW FIRM FIGHTS TO OBTAIN FULL COMPENSATION FOR THE HARM CAUSED BY DOG BITES
For many years, we have helped provide financial relief to dog-bite victims. Depending on the specific circumstances, we can help you pursue:
- Reimbursement for past and future medical expenses
- Compensation for lost wages
- Damages for pain and suffering
- Payment for expenses associated with the injury
We understand how overwhelming it can be to recover from the harm of a serious dog bite and advocate for a resolution that covers each aspect of that harm.
Tenacious Tennessee personal injury attorney helps victims of pet attacks seek justice.
COMMERCIAL LITIGATION
Commercial litigation as the name implies is generally a business suing a business. In our particular area, much of this is seen within the context of land developers, and/or building contracts which have been breached. Our firm does handle fraud, breach of contract, and other suits between businesses as well as some individuals vs businesses.
EMINENT DOMAIN
Eminent domain is the inherent power of a government entity to take privately owned property. The doctrine in which the government takes property pertains to land and personal property. The property is usually converted to public use although recent case law allows for a government entity to take land to be developed by private corporations. Regardless of the reason for the taking of privately owned property, the government entity must pay reasonable compensation.
The term is said to have originated from a 17th century legal scholar who believed that the state possessed the inherent ability to take or destroy property for the benefit of the citizens. Often this power is used to construct schools, roads, electric utilities, and other services that benefit the general population.
There has been interesting litigation argued before the U.S. Supreme Court to extend the doctrine to condemnation of property for a private use if it benefits the governmental entity where the taking occurs. However, the standard sort of case our firms sees is a taking by the Tennessee Department of Transportation for a roadway project, Consolidated Utility District’s condemnation for utility easements and/or the county or city otherwise condemning a piece of property for public use such as a school, courthouse or some other public project.
The government entity begins the proceeding by filing a suit to condemn the property and take possession. When this occurs there is a “tender” of what the city, county, or state believes the value of the property taken to have been at the time of the taking.
This is paid into court with the petition for condemnation. They must serve the owner of the property with the petition and notify them of the tender. There is usually a very short period of time consisting of five days to object to condemnation. Almost no one does because the power of eminent domain is vast and extremely difficult to overcome. The issue then is almost always the amount of compensation rather than the legitimacy of the taking.
Where a five-acre tract of land is taken the government entity may determine it to be worth $10,000.00 per acre. Thus, they will tender $50,000.00 into the court. If the property is later found to be worth $15,000.00 an acre then there would be an additional judgment awarded by a jury for the additional $25,000.00. This shortfall also bears interest at a statutory rate of US Prime on the day of the taking + 2%. This rate has historically been higher than what one may ear on CD’s so that interest is usually a substantial factor in determining the value of the case if it has gone on for any length of time. The land owner has a right to wait until the project is completed to discover if there are any incidental damages to the property as a result of the project.
Incidental damages (sometimes called consequential damages) are where the property taken creates a detriment to the remaining land. This could be the result of water drainage changes, the project being built up substantially from the remaining ground level, odd shaped remaining pieces of land that can no longer be developed, or any number of other problems that can occur. However, the government entity can also argue that the project has improved the remaining property to decrease damages. Whether to wait for the project to be completed or move for trial before completion depends heavily upon the specific circumstances.
A partial taking may occur in an easement situation. Does a utility completely destroy the use of the value of the property? The best answer is, it depends. It depends on the use of the property, location of easement, the proximity to major landmarks as to what the property is being used for, the nature of easement, etc. Each case must be looked at on a case by case basis.
The owner may testify and give an opinion as to the value of the land and any harm done to the land. It Is not necessary to have an expert witness. In most cases the land owner does use an expert witness who presents testimony about the value. The decision to obtain an expert witness is usually driven by whether the government entity will have an expert witness. Most attorneys feel the need to present an expert at trial. Under some particular circumstances if the opposing expert is weak and/or if the clients is extremely persuasive and/or knowledgeable in the field of real estate sales, it may not be necessary to have an expert.
While it may be legal for the government to take private land, it does not always seem fair. Juries in the community are torn between their sense of justice and their desire to keep government projects cheap so that taxes stay low. These are cases that need legal representation to present the case to a jury so that the land owner can get a fair shake.
MEDIATION (CIVIL CASES)
Often referred to as a primary method of Alternative Dispute Resolution (ADR), mediation provides a setting in which the parties can be the decision makers. Frequently touted as less expensive than litigation, mediation is also more successful in giving parties a sense of actually being heard since there are no rules about what can "come in" to the discussion as there generally are when matters are litigated.
As a voluntary process, mediation also excels in achieving results that are more satisfying to the parties since they are directly involved in the decision-making process, as opposed to turning that task over to a judge or jury as would happen in court.
Mediation is a useful tool for resolving a wide range of legal issues in contractual matters and personal injury cases. In contested civil matters, mediation will often get the case settled reasonably. When mediation fails, the option to try the case is still available.
Fees are quoted depending upon the type of case and the length of time which the mediator is expected to spend on a case. I am a certified Rule 31 mediator approved by the Tennessee Supreme Court to mediate, but I use that training to help me participate in mediations representing plaintiffs.
Home/Areas of Practice/Products Liability
Products liability cases involve some type of product failure or malfunction. The damages for product liability cases fall into two categories: personal injury or property damage. Tennessee has a Products Liability Act which is set forth in Tennessee Code Annotated. By definition products liability actions under Tennessee Law include (1) strict liability in tort, (2) negligence, (3) breach of warranty, (4) breach of express or implied warranty (5) failure to warn or instruct whether negligent or innocent, (6) misrepresentation, (7) defective design (8) non-disclosure whether negligent or innocent, and (9) any other theory in tort or contract. It is broad and includes the consumer expectation test.
STRICT LIABILITY
The above definition covers a lot of ground. In my mind I first look for strict liability under the Second Restatement of Torts. Thus, if the XYZ car corporation manufacturers a vehicle which has an accelerator that sticks to the floorboard which causes the car to accelerate up to 120 miles per hour, the XYZ company will be liable for accidents resulting from that defect. If the car goes off the road because of the accelerator sticking to the floorboard, h it’s a rock wall and kills someone on the interstate, the injured persons need only show the product was defective and/or unreasonably dangerous in order to make the XYZ corporation pay for damages.
To be strictly liable the manufacturer or seller must sell a product in a defective or unreasonably dangerous condition at the time it left the control of the manufacturer or seller. Alteration of the product after it leaves the manufacturer can be a defense to strict liability.
DEFENSE TO STRICT LIABILITY
The “sealed container doctrine” is an interest defense. Where the product is acquired by the manufacturer and sold by a retailer under circumstances where the seller did not have the opportunity to inspect the product, strict liability may not be asserted against an intermediate seller. However, the breach of warranty, express or implied, may be argued against the seller.
MULTIPLE CAUSES OF ACTION
Typically, cases involving products can fit into several different theories of claims as listed above. In most lawsuits against the manufacturer of a product, the injured person will allege any of the following:
- Strict liability;
- Express breach of warranty (if there is a written warranty or words spoken during the sale that create a warranty);
- Implied warranties of merchantability (usually as part of the Uniform Commercial Code which in broad terms means that the product should be of a fair and average quality);
- Implied warranties of fitness for particular purpose (the seller knew of the particular purpose for which the goods were to be used and claimed that the goods would serve the purposes);
- Common negligence;
- Misrepresentation or failure to disclose information about the product (which leads to injuries);
- Defective design (which may be argued as either negligence or strict liability);
- Consumer expectations of an ordinary consumer not met.
EVIDENCE AND SUMMARY JUDGMENT
The particular elements an injured person must prove to satisfy any of these claims are usually the same with only one or two small additional facts. Therefore, until all of the facts are known, it is best to bring suit for every type of claim possible under the facts known at the time suit is filed and then see what additional facts are developed during the discovery phase of the lawsuit. CAUTION: Under both Federal law and the new Tennessee Statute governing summary judgment standards, a plaintiff must have enough factual proof at the time the suit is filed to make a good faith claim against a manufacturer or seller. If the defendants file for summary judgment, then the burden of proving the case is legitimate and should not be tossed out is on the plaintiff. This is what is sometimes called the “put up or shut up” rule. Plaintiffs do not have much time in which to gather the factual information before the case is put to the test in summary judgment.
SPECIFIC TENNESSEE LAW
Tennessee has an interesting doctrine not seen in all jurisdictions called the “consumer expectation test”. The consumer’s expectations are taken into consideration as to whether the product is unreasonably dangerous. Tennessee also recognizes the “prudent manufacturer test”. Under Tennessee law, the consumer expectation test and the prudent manufacturer test are not exclusive of one another. The jury may review both tests in light of the proof to determine whether or not the product was unreasonably dangerous.
The consumer expectation test requires a showing that the product’s performance was below reasonable minimum safety expectations of the ordinary consumer having ordinary or common knowledge as to the product’s characteristics. This test may not be used where complex products not familiar to the ordinary consumers are involved. In the event of a complex product, the court would permit the jury to consider only the prudent manufacturing test.
Products liability cases extend to practically all goods manufactured and/or sold in the market place including machinery, clothing, drugs, food, cards, building materials, etc. Because there are so many types of products and retailers, this area of law is vast and complex. Many manufacturers are located in a different state than the injured party, so most cases removed to Federal Court rather than State Court. The Federal procedures vary from Tennessee law and create their own array of concerns. Additionally, most manufacturers and retailers have deep pockets for legal teams to defend these cases. Persons injured by products who believe they have a claim need experienced legal representation to pursue these matters.
WILLS & ESTATES
We all want the peace of mind to know that provisions have been made to take care of our loved ones when are no longer able to do that. Assuring that we all have an effective will, advanced directive and perhaps some basic trusts to ensure our family’s financial safety are the most basic steps toward obtaining this peace of mind.
Having someone with whom we feel comfortable in discussing these delicate topics is vital. At the Thomas Law Firm, we strive not only for excellence in our work product, but also in creating a comfortable atmosphere which reassures our clients that they will be fully heard and that their matters will be handled with the utmost integrity. Services for wills, advanced directives, trusts and similar services are quoted on an individual’s situation and needs.