ATV Property Claims in Tennessee

ATVs RIDING ON YOUR PROPERTY

A Tennessee Court of Appeals case sheds light on the new law when someone is hurt riding ATVs on your property. Mr. McCaig sustained multiple injuries while operating an all-terrain vehicle (ATV) on Mr. Whitmore‘s property. Mr. Whitmore‘s property consists of approximately seven acres of land and a residence. With the exception of the residence, the property is largely undeveloped. Mr. McCaig and his family were attending a social gathering at Mr. Whitmore‘s home when the accident occurred. While riding Mr. Whitmore‘s ATV, Mr. McCaig flipped the vehicle, which landed on top of him. Mr. McCaig sustained significant injuries, including nerve damage to his spine, legs, feet, and hands that prevent him from walking unassisted.

In his lawsuit against Mr. Whitmore, the McCaigs allege that Mr. Whitmore is liable to them for negligence as a result of failing to properly instruct Mr. McCaig on how to operate the ATV and by failing to warn Mr. McCaig of dangerous and concealed conditions like bumps in the lawn, to avoid the edges of the concrete driveway, and to avoid steel guide wires, all of which he alleges were concealed to him, but known to Mr. Whitmore.

Mr. Whitmore’s homeowner’s insurance attorneys filed his answer, in which he denied any liability for Mr. McCaig‘s injuries and claimed that the recent Recreational Use Statute, TCA 70-7-104, bars any recovery by the McCaigs against Mr. Whitmore. Mr. Whitmore filed a motion for summary judgment alleging that he owed no duty to Mr. McCaig and the trial court agreed to throw out the case.

In this appeal, the Court stated that in order to bring a successful suit based on a claim of negligence, the plaintiff must establish: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal cause. The first element that must be established is ―a duty of care owed by the defendant to the plaintiff-- the legal obligation of a defendant to conform to a reasonable person‘s standard of care in order to protect against unreasonable risks of harm. establish a negligence claim.
The new  Tennessee Recreational Use Statute codified at Tenn. Code Ann. §70-7-101 states that (a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as . . . off-road vehicle riding, . . . and nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes…
There are exceptions to this law, but none were found to apply here. Therefore the land-owner, Mr. Whitmore, won the appeal as well.

Shelby County, Tennessee Jury Verdicts in 2015

Shelby County Verdicts 2015

We are all inundated by often-tacky lawyer commercials anytime we watch television or listen to radio. Legal ads now are topping taxis, smiling down from billboards and are spilling down the side of buses.

One would think that the Shelby County courthouse is just handing out free money to claimants and their well-dressed attorneys. But is the perception of “jackpot justice” a reality?

How about a test?

1. How many $100,000.00+ jury verdicts in car accidents do you think there are each year in Shelby County?
a. 6-10
b. 11-15
c. 16-20
d. 21 or more
e. None of the Above.
In mid to late 2015, for instance, reported cases I reviewed from Shelby County revealed zero (0) jury verdicts in car accident cases higher than $75,000.

2. How many jury verdicts for the patient in medical malpractice do you think there are each year in Shelby County?
f. 6-10
g. 11-15
h. 16-20
i. 21 or more
j. None of the Above.
In mid to late 2015, reported cases I reviewed from Shelby County revealed zero (0) jury verdicts for the Plaintiff. Doctors won two outright and a mistrial was caused by a hung jury on the third.

Granted, there are significant out-of-court settlements that are not reported. I personally had several larger cases in the $100,000- $900,000 category in 2015 that are not listed anywhere.  But it is worth pointing out that the system seems to be geared towards resolving cases short of trial more often than not. And when trial is had, more often than not the defendants have picked a case to oppose that has shortcomings they maybe able to exploit for a lower verdict.

Juries are not as loose with the pocketbook as you might have thought. Notice, however, the large drop in litigation and verdicts has not reduced our insurance premiums one little bit.

Locally Shot Movie Truly Moving

“The Grace Card”

I had the opportunity to attend a private preview of a Memphis movie that does not come out in theaters till February 25, 2011.

It is called THE GRACE CARD. It is the very first movie from Graceworks Pictures located right here in Shelby County. Graceworks is the vision of Memphis optometrist Dr. David Evans, who directed and also served as the executive producer of THE GRACE CARD. Calvary Pictures is a ministry of Calvary, a Church of the Nazarene, led by Pastor Lynn Holmes in Cordova.

The church-based moviemaking ministry that spawned Fireproof inspired Memphis' own Calvary Church to make this movie.

It is about two Memphis policemen who have very different backgrounds and beliefs. And they have one other difference—the color of their skin.

Set in present day Memphis, we first see a Caucasian father endure the tragedy of losing a child senselessly. It is clear, as we fast-forward about 17 years; this event shaped him almost exclusively. He is now a Memphis cop that reminded me a lot of the type of cop that the O.J. Simpson defense team made Mark Fuhrman out to be. Angry. Racist. Distant. Bitter.

Then, thanks to a supervisor (played by Shelby County Commissioner, Chris Thomas) this atheistic racist cop is paired with--of all people—an African American part time preacher.

While award-winning actor Louis Gossett, Jr. maybe the only face or name you will recognize in this moving drama, the acting by amateurs is still superb.

There is a transparency in the way the home life of these two men is portrayed that seems so real. It is like you are a fly on the wall of their homes. Troubles with a rebellious teen, struggles with money and the pressure of career plans all are laid bare, with a ring of truth. While the movie earned a PG-13 rating due to its police action, I still believe it to be a family movie suitable for kids several years younger.

But forgiveness and grace are not normal Hollywood commodities. The movies will not have a large release, but neither did similar movies like Facing the Giants and Fireproof. If you want to see if it is near you, see the website at www.TheGraceCardMovie.com.

If you don't see your town on the list, contact actionsquads@providentfilms.org to help bring the theater to your town.

Grace is not easy and it is not cheap, though desired by us all. Living here in Shelby County, we know how often the so-called “race card” is played…What about playing a “Grace Card?”

You won’t regret it.