A Quick Guide To Tennessee Premise Litigation

1. A Quick Guide To Tennessee Premise Litigation

2. Statute of Limitations • The following actions shall be commenced within one year after the cause of actions accrued: • Actions for libel, for injuries to the person, false imprisonment, malicious prosecution, breach of marriage promise. T.C.A. § 28-3-104 • If the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or such person's representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability. T. C. A. § 28-1-106 • A counterclaim or third party complaint or cross-claim is not barred by the applicable statute of limitations or any statutory limitation of time, however characterized, if it was not barred at the time the claims asserted in the complaint were interposed. T. C. A. § 28-1-114

3. Summary Judgments TRCP 56 Summary judgment should be granted only when, with the facts viewed in favor of the nonmoving party, it is clear that no genuine issue of material fact exists. On a motion for summary judgment in Tennessee, to shift the burden of production the moving party must either affirmatively negate an essential element of the nonmoving party's claim or show that the nonmoving party cannot establish an essential element of the claim at trial, and the burden of production cannot be shifted by simply asserting that the opposing party will not be able to produce sufficient evidence at trial, i.e., challenging the nonmoving party to put up or shut up. Rules Civ.Proc., Rule 56.04. Hannan v. Alltel Publishing Co. 270 S.W.3d 1(Tenn. 2008).

4. Comparative Fault (51%-49%) We therefore hold that so long as a plaintiff's negligence remains less than the defendant's negligence the plaintiff may recover; in such a case, plaintiff's damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff. However, we feel the “49 percent rule” ameliorates the harshness of the common law rule while remaining compatible with a fault-based tort system.

5. 49 Percent Rule In Action • In Eaton v. McLain, 891 S.W.2d 587 (Tenn.1995), the Tennessee Supreme Court addressed the circumstances in which a trial or appellate court could hold, as a matter of law, that the plaintiff's degree of fault was equal to or greater than the defendant's. The Court held that, under the system of comparative fault, the percentage of fault assigned to each party: should be dependent upon all the circumstances of the case, including such factors as: (1) the relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff; (2) the reasonableness of the party's conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it; (3) the extent to which the defendant failed to reasonably use an existing opportunity to avoid injury to the plaintiff; (4) the existence of a sudden emergency requiring a hasty decision; (5) the significance of what the party was trying to accomplish by the conduct, such as an attempt to save another's life; and (6) the party's particular capacities, such as age, maturity, training, education, and so forth

6. Premises Liability DID YOU KNOW?

7. Premises Liability One who owns, occupies or leases property is under a duty to use ordinary care, which is the care that ordinarily careful persons would use to avoid injury to themselves or others under the same or similar circumstances. There is no duty to guarantee the safety of those entering upon the property. The owner of a retail store or other premises is not responsible for an injury to a customer who is injured by a defect unless it is shown that the owner had actual or constructive notice of the existence of the defect. Henson v. F. W. Woolworth's Co., 537 S.W.2d 923 (Tenn.App. 1974); Byrd v. State, 905 S.W.2d 195 (Tenn. App. 1995)

8. Premises Liability – Case Study If liability is to be predicated on constructive knowledge of the defendant, the proof must show the dangerous or defective condition existed for such a length of time that the defendant knew or in the exercise of ordinary care, should have known, of its existence. Worsham v. Pilot Oil Corp., 728 S.W.2d 19 (Tenn. App. 1987).

9. Premises Liability- Case Study The notice requirement is met when plaintiff can prove that defendant's method of operation created a hazardous situation foreseeably harmful to others. Martin v. Washmaster Auto Center, 946 S.W.2d 314 (Tenn. App. 1996).

10. Premises Liability- Case Study "In light of the nature of the snowstorm in this case, we have concluded that it was reasonably  foreseeable that most persons would avoid venturing out to conduct routine business transactions.   Thus, it would have been reasonable for Crye-Leike to assume that its tenants’ customers would have stayed at home and avoided unnecessary travel during the snowstorm. Therefore, Crye-Leike did not act unreasonably when it decided not to begin its efforts to remove the accumulated snow or to survey all of the properties it owned or managed to determine whether the snowstorm had created  conditions that would be abnormally dangerous to the public. The difficulty and expense of these  remedial measures outweighed the possibility that a customer, like Mr. Clifford, who decided to  brave the winter weather might injure himself by slipping on the side of a wheelchair ramp concealed under the fallen snow. Accordingly, under the facts of this case, the trial court correctly concluded  that Crye-Leike did not have a duty to warn persons doing business at the State Farm office of the  presence of the wheelchair ramp that was concealed by the snow. Clifford v. Crye-Leike Commercial, Inc. 213 S.W.3d 846 ,Tenn.Ct.App.(2006).

11. Premises Liability- Case Study BORED YET??? THERE IS MORE…..

12. Premises Liability- Case Study In Blair v. West Towne Mall, 130 S.W.3d 761 (Tenn. 2004), the Tennessee Supreme Court held that plaintiff may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence. This decision is an express adoption of what used to be called the "method of operation theory" of proving constructive notice. The owner, a third person, or nature may cause the condition.

13. Premises Liability- Case Study "We accepted this appeal of a premises liability case to determine whether the “independent contractor rule” adopted in Blair v. Campbell, 924 S.W.2d 75 (Tenn. 1996), relieves a premises owner from liability when a premises owner provides an independent contractor inaccurate information germane to the contractor’s work. We hold that a property owner has a duty of reasonable care to provide accurate information to an independent contractor if the owner provides specific information germane to the repair after engaging the contractor. Bennett v. Trevecca Nazarene University, 216 S.W.3d 293 (Tenn.,2007).

14. Criminal Acts Is your property safe?

15. Criminal Acts The standard we adopt is the product of attempts by many jurisdictions to deal with this admittedly difficult issue. While embracing neither the totality of the circumstances*903 nor the prior incidents tests in toto, we have retained the desirable features of both approaches, while avoiding the inherent problems associated with each. For example, we have preserved the primary advantage of the prior incidents rule by not creating an environment where businesses are essentially held strictly liable for customer safety. At the same time, our approach should enable meritorious cases to proceed to the jury which is typical of deserving cases tried under the totality of the circumstances approach. Moreover, rather than having an incentive to do nothing (out of fear of having assumed a duty), businesses will be encouraged to take reasonable security precautions, another characteristic of the totality of the circumstances test.FN9 The merchant is in the best position to know the extent of crime on the premises and is better equipped than customers to take measures to thwart it and to distribute the costs. Craig v. A.A.R. Realty Corp., 576 A.2d at 693.FN10

16. Criminal Acts FN9. As stated by one of the amicus participants in this case, “[i]f the premises owner does nothing to make himself or herself aware of the potential imminent probability of harm to a customer, then no liability will extend under the [current] rule. The effect is that ignorance translates into nonliability and economic bliss for merchants, while business patrons can easily be victimized by criminals who stalk the malls and parking lots of shopping and retail centers.” See also 31 So. Tex. L.Rev. at 110-11 ( “Only by imposing a duty to protect will business proprietors have the necessary incentive to take measures that will limit the number of crimes committed.... While very generalized economic incentives will encourage owners to take some steps to reassure customers about their safety, common experience demonstrates that these incentives are not enough to encourage efficient crime prevention.”)

17. Criminal Acts FN10. Of all the involved parties, the cost of crime reduction is cheapest to the landowner. For the criminal, imposing civil liability on him in addition to existing criminal sanctions does not deter him from committing the crime. Imposing duty on the patron, so that he must protect and compensate himself, may result in crime reduction, but only at the expensive cost of the patron staying home. While the patron can prevent crime by not going out at night, the price of staying home is high not only for him but also for society in general. As opposed to the transient patron, who has little information about the crime problem on the landowner's premises and little ability to directly influence it, the landowner can be much more effective in dealing with the problem. While the patron holds just one expensive option, staying home, the landowner holds many options ranging from installation of better lighting, fences, or guard service, to even varying hours of operation. All of these options should be less expensive and much more effective in deterring crime than the patron's sole choice of staying home.

18. Just a Thought…. A jury consists of twelve persons chosen to decide who has the better lawyer. -Robert Frost