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November 29, 2011 In Personal Injury

Law FAQ: What is negligence? What is a legal duty? (Part 2)

Law FAQ: What is negligence? What is a legal duty? (Part 2)

In yesterday’s blog post, I listed the 5 basic elements for a negligence claim: duty, breach, injury, causation, and proximate/legal cause.

Today’s post will focus on the first 2 elements which, for the most part, comprise the most interesting and difficult issues that arise in connection with negligence claims:  duty and breach.

As noted yesterday, negligence is commonly referred to as the “reasonable man” standard.  Stated differently, you would be considered negligent if you took an action that most average people would deem unreasonable under the circumstances.  Moreover, negligence can be predicated both on acts of commission (e.g. running a red light) and also acts of omission (e.g. a chiropractor failing to follow correct protocols).

Basically, the rules of negligence boil down to requiring people to follow society’s basic “rules of the road” for reasonable conduct.  For the most part, it’s commonsense-type stuff.  The law of negligence is about reasonableness and balance.  It does recognize, for example, that some injuries are simply unforeseeable and/or sometimes unavoidable.

Stated in legal terms, a court considers the issue of legal duty in the context of what is known as “reasonable foreseeability.”  This means that if your conduct would create a “reasonably foreseeable risk of injury” then you would have a societal duty either to avoid the conduct, or to take reasonable precautions to protect innocent bystanders from the risk.  The rule is really nothing different than The Golden Rule that churches, mothers and fathers teach their children every day.

For example, will you be held liable for negligence if the brakes on your truck suddenly and without warning fail, and you wind up in a wreck?  No, because the risk wasn’t foreseeable and you didn’t act unreasonably.  However, what if your brakes had been acting up previously, and you’d almost been a wreck just a few days prior, and yet kept on driving the truck instead of taking it to the shop for repairs?  In that case, you would be negligent because you failed to take reasonable steps to protect others against a known risk of harm.  In other words, you would be deemed to have breached your societal duty to those around you, and therefore you should rightfully be expected to make good on the injuries and damages you unilaterally imposed on an innocent person.

Note that the law of negligence is a far cry from the daily dose of nonsense you get from both ends of the spectrum.  Indeed, it is NOT the type of automatic, jackpot money grab that the ambulance-chasing TV lawyers seem to imply, and that the so-called tort reformers would likewise have you believe as part of selling their grossly exaggerated claim that “the sky is falling with lawsuits.”  To the contrary, the law does not provide for automatic liability whenever an injury occurs.  Likewise, it does NOT impose a duty to eliminate each and every one of life’s many risks.

The law of negligence is simply about the common sense “reasonable man” standard which is very much akin the Golden Rule — “Do unto others as you would have them do unto you.”

Stay tuned for more about the question of how the law determines the winner of a lawsuit when — as is often the case in real life situations — both parties are somewhat negligent.   This is referred to as the issue of comparative fault.  Stay tuned.

November 28, 2011 In Personal Injury

Law FAQ: What is negligence?

Law FAQ: What is negligence?

Negligence is the legal term for failing to exercise reasonable care and caution under a given set of circumstances.  It is commonly referred to as “the ordinary, reasonable man” standard.  Legal liability is assessed when a person fails to follow society’s most basic “rules of the road” so to speak.

Some examples of negligence might include:

  • Running a red light and causing a wreck.
  • A hurried doctor who fails to follow correct protocol and thus fails to diagnose a curable disease.
  • A nurse who fails to check the medical chart and who then dispenses the wrong medication.
  • A store owner who fails to mop up a known puddle on the floor.
  • A pharmacist who dispenses the wrong dosage of medication.
  • A contractor who fails to adhere to building plans or skirts building codes.
  • A child care center that fails to conduct background checks before hiring employees to care for children unsupervised.
  • A lawyer who fails to file his client’s lawsuit before the statute of limitations expires.

In a negligence case, a plaintiff is required to prove five elements:

  1. that a duty of care was owed by the defendant;
  2. that the defendant failed to live up to that duty (i.e. referred to as a “breach of duty”);
  3. that an injury or loss occurred;
  4. that the breach of duty actually caused the injury or loss; and,
  5. proximate or legal cause.

More on these five elements tomorrow….

November 15, 2011 In Estate Planning

Who are my Beneficiaries? A critical question in planning for the future.

How does Property Pass to Beneficiaries?

Do you know who your beneficiaries are? When we ask clients this question, their first response is often quick and affirmative. However, we frequently discover through the estate planning process that the beneficiaries listed on our clients’ life insurance policies and retirement accounts are not who they think they are, nor are they the intended recipients of the property.

One of the most common misconceptions we see is how property passes at someone’s death.  Accounts that have beneficiary designations  pass to the beneficiary or beneficiaries named on the beneficiary designation form for that account regardless of what your will or trust says.  So, for example, if my Will says that everything passes to my spouse at my death, but my beneficiary form on my life insurance names my children as beneficiaries, my life insurance proceeds  pass to my children and not to my spouse. Here are some examples of accounts that typically designate beneficiaries:

  • life insurance
  • retirement accounts
  • transfer on death accounts (TOD)
  • payable on death accounts (POD)

Periodically Review Your Beneficiary Designations

The  Supreme Court case of Kennedy v. Plan Administrator of DuPont highlights the unintended results that may occur if your beneficiary designations are not reviewed periodically.  In this case, William Kennedy named his wife, Liv, as the sole beneficiary of his pension and retirement savings plans at DuPont.  When the couple later divorced, the Qualified Domestic Relations Order (QDRO) provided that Liv gave up her rights to receive any benefits from William’s pension and retirement plan.  Unfortunately, however, the court order was never submitted to DuPont and the beneficiary was never changed.  When William later died, DuPont paid out the plan benefits to his ex-wife, Liv.  Their daughter, Keri, was appointed as Executor of William’s Estate and filed suit claiming that the Estate should receive his retirement benefits because the QDRO clearly provided that Liv had waived any interest she might have in those benefits.  The Supreme Court upheld the ruling of the Circuit Court in saying that DuPont properly paid the benefits to Liv and that Liv was entitled to the pension and retirement funds even though the parties were not married at the time of William’s death and the QDRO clearly provided otherwise.

Moral of the Story

The moral to the story is that the beneficiary designation governs. Thus, it is very important that you know who is named on your various beneficiary forms so that your property goes to the beneficiary or beneficiaries that you intend for it to go to.  It is clear that William did not intend for his benefits to go to his ex-wife instead of his daughter, but the Supreme Court held that the beneficiary designation governed and that DuPont properly paid the benefits to Liv.

Tips for Beneficiary Designation Forms

Here are some tips and common problems to watch out for with your beneficiary designation forms:

1. Do you know where the form is? Generally, employers maintain records of the form, but if they cannot find their form when the time comes, the burden may be on you to produce a copy of the form.

2. Is the form up to date? Changes in your life may require you to review the forms periodically. If you have had a recent marriage, divorce, birth or death in your family, it is important to review your beneficiary designations. And remember, your Will does not change who the beneficiary is on an account or insurance policy.

3. Do you have a contingent beneficiary named? If the beneficiary you have named dies before you or is involved in a common accident with you, you may not know who the benefits will go to if you do not name a contingent or secondary beneficiary.

4. Have you named a minor as a beneficiary? Minors cannot legally hold title to property, including these benefits. If you have named a minor, a guardianship may have to be established and administered through the Probate Court concerning applicable funds.

Want to talk it over with an Estate Planning and Probate Lawyer?

If you have questions regarding your beneficiary designations and how they factor into your Estate Plan, please call us at 901-372-5003 or email us today. We’re ready to help you plan for the future.

 

November 1, 2011 In Estate Planning

Is Tennessee a Community Property State for Estate Planning?

Tennessee is NOT a Community Property State

Community property states such as California and Texas, permit assets to receive a step-up in basis to the current fair market value (FMV) at the death of the first spouse to die regardless of which spouse owns the assets.

Tennessee is a separate property state. This means that only the separate assets of the deceased spouse (titled in his or her name), or 1/2  of any jointly-owned property,  are entitled to a step-up in basis to the current FMV at the death of the first spouse to die.

Tennessee Community Property Act of 2010

But wait—this Act allows for ownership of assets in a Tennessee Community Property Trust.  Although this type of ownership of assets between a husband and wife is not always beneficial, it can provide a significant advantage in the right circumstances, especially for property with a very low tax basis.Provided the Trust meets certain requirements, the property owned by the Trust will be treated as community property.

Advantage

The most significant advantage of this type of ownership is that both spouses’ interests receive a step-up in basis up to the FMV of the property upon the death of the first spouse.  In contrast, if the property was owned jointly or as tenants by the entireties, only 1/2 of the property would receive a step-up in basis at the first death. Thus, community property ownership can significantly reduce or even eliminate capital gains upon the death of a spouse.

We can advise you further.

Call us today at 901-372-5003 or email us here. We can talk with you about your assets and the best way to structure an Estate Plan that fits your family’s particular circumstances.

October 31, 2011 In Uncategorized

Law Talk: Halloween – Your Legal Duty of Reasonable Care

Halloween – Your Legal Duty of Reasonable Care

Halloween is always a great time of year – costumes, hayrides, haunted houses, and candy!  However, homeowners should be mindful of the responsibility they owe visitors to their property.

Later this evening, many of you will have a variety of ghosts, princesses, vampires, and angry birds trick-or-treating at your doorstep.  Halloween night poses a great many risks for homeowners because you are essentially opening your home to the public for a unique once-a-year open house event.  As you may or may not know, you owe what lawyers call a ‘duty of reasonable care’ to each of those children that come onto your property.  This leaves you vulnerable to potential liability.

Here are some commonsense tips that you can follow to better protect the trick-or-treaters on your property this year:

  1. Keep Your Property Well-Lit – Be mindful that trick-or-treaters will be cutting through all parts of your property to find your front door, so try to make sure that your front porch is adequately lit for them to easily find their destination.  By keeping the path to your home and front step well-lit, you can prevent potential slip-and-falls by trick-or-treaters wondering into other parts of your yard.  Also, those who are up to no good on Halloween are typically less likely to bother well-lit property.
  2. Keep Property Unobstructed – In addition to keeping your property well-lit, it is always a good idea to keep your property unobstructed while trick-or-treaters seek the most efficient pathways between houses handing out candy.  This includes such ideas as picking up yard debris, filling gopher holes, winding up hoses, and picking up toys left in the yard.
  3. Restrain Pets – Another overlooked Halloween safety tip is to be sure to keep your pets away from the front porch, where they might get excited and jump on or bite trick-or-treaters.
  4. Pumpkin Safety – The traditional Jack-O-Lantern presents many potential hazards.  For example, it is often very easy for a guest or child to kick the pumpkin and candle over if they’re not looking where they’re going.  This type of accident could cause a slip-and-fall or present a fire hazard.  One way that you could protect the trick-or-treaters, your family, and your home is to consider purchasing a battery-powered light for your pumpkin instead of a traditional candle.
  5. Use Your Home Security System – Halloween presents a prime opportunity for vandals and burglars to damage your property.  Thus, it is recommended that you make sure that you have a reliable home security system that can deter others from causing harm to your home.
  6. Check Homeowners Insurance – Lastly, it would not hurt to contact your home insurance agent to request additional homeowners coverage on the one night a year where a variety of people will be visiting your property.

While Halloween is a fun holiday, homeowners should make sure to eliminate any potential risks for a child injury.  Be sure to protect all your visitors by keeping your property clean and safe.

Most of all, have a fun and safe Halloween!

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October 28, 2011 In General

Law FAQ: My neighbor’s tree hangs over the property line. Do I have the right to cut back the branches?

Law FAQ: My neighbor’s tree hangs over the property line. Do I have the right to cut back the branches?

Yes.  The Tennessee Supreme Court made clear in 2002 that you definitely have the right to cut away any branches or vegetation to the extent it hangs over onto your property.  In other words, you may cut branches up to the property line; however, you may not cut over into your neighbor’s property.

The case is Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002).

The more difficult issue that typically arises in this context is whether your neighbor has a duty to cut back the branches him/herself.  The answer to that question is a bit more fact dependent, but the summary of the law by the Tennessee Supreme Court is as follows:

Encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground.  However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.  If so, the owner of the tree or plant may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.  We do not, however, alter existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.

Also, there’s a helpful distinction in Footnote 9 in the case relating to rotten/dead trees, which fall into their own special category:

It is important to note, however, that dead or decaying trees that cause harm are in a category of their own and require a different analysis.  Unlike the cases involving harm caused by live trees, which are based on nuisance or trespass principles, cases involving dead or decaying trees are typically analyzed according to negligence concepts.  Thus, liability usually turns on whether the defendant landowner lived in an urban or rural area, and whether the defendant knew or should have known that the tree was dead or decaying and therefore was on notice that the tree might fall.  See, e.g., Staples v. Duell, 329 S.C. 503, 494 S.E.2d 639 (App. 1997); Taylor v. Higley, No. 02A01-9207-CV-00194, 1993 WL 137593 (Tenn.Ct.App. May 3, 1993); see also Restatement (Second) of Torts § 363(2) (1965); Dan B. Dobbs, The Law of Torts 588-89 (2000).  The trees involved in the present case are live, healthy trees.  Thus, we do not reach the question in this case whether or to what extent liability may be imposed for harm caused by a dead or decaying tree.  That subject must await an appropriate case.

October 25, 2011 In Estate Planning

Law FAQ: Can I Place My Assets in a Trust and Protect Them from My Creditors?

Law FAQ: Can I Place My Assets in a Trust and Protect Them from My Creditors?

Before 2007, if an individual created a trust under which he is a beneficiary, the assets of the trust were subject to the claims of his creditors. As a result, an individual could not protect his wealth from creditors and lawsuits while retaining control of his assets. With the passing of the “Tennessee Investment Services Act,” Tennessee has become one of a few states in the nation to enact legislation permitting the creation of self-created (self-settled) asset protection trusts.
The law allows this protection by permitting the individual to create a self-settled asset protection trust referred to as an “Investment Services Trust” (IST).

An IST is an irrevocable trust into which an individual transfers assets while retaining the following rights: ability to direct the investment of the IST assets; receive distributions of principal upon the discretion of the Trustee; live in a home owned by the trust; veto distributions to any other permissible beneficiaries; direct the distribution of the trust assets upon death to any one or more persons; remove the Trustee and other trust advisors and appoint their successors under certain provisions. The settlor may not serve as the Trustee of the IST.

The Trustee must be either an individual residing in Tennessee or a corporate Trustee who is authorized to conduct business in Tennessee. At least a portion of the assets of the IST must be administered in Tennessee. At the creation of an IST, the settlor must provide an affidavit stating under oath that he does not intend to defraud a creditor and that he does not have any pending or threatened court action against him.

The Tennessee Investment Services Act provides an asset protection opportunity for individuals who are concerned about the loss of their assets due to unforeseen creditors. An IST presents a unique solution to those who wish to protect their assets during their lifetime while still retaining the ability to manage those assets and benefit from them.

If you are interested in protecting your assets from future creditors, please contact our office to schedule an appointment to discuss the use of an IST in your estate plan.

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October 24, 2011 In Uncategorized

Law FAQ: Am I liable for a car accident caused by my child or spouse?

Am I liable for a Car Accident Caused by my Child or Spouse?

It depends!  Tennessee follows the family purpose doctrine, which can result in a family member, such as a parent or spouse, being held liable for damages caused by another family member’s negligent operation of a vehicle if certain factors are present.  To be liable, a family member must satisfy the following three factors: 1) he/she must be considered the “head of household”; 2) the vehicle must be maintained for comfort or pleasure of the family; & 3) the vehicle must have been used with his/her express or implied consent.  Yet, while these factors might seem simple at first glance, they have been interpreted more broadly than you might think.

First, the “head of household” can be more than one parent, including a parent that does not even live at the same address as the family member who was driving the vehicle at the time of the accident.  This broad definition means that parents with kids in college, and even divorced parents without primary custody of their child can still be considered “head of household” for liability purposes.  Typically, though, the court will consider whether the owner of the vehicle and the driver share a family relationship and whether the owner has some duty to support the driver.

One of the arguments often made by parents is that the vehicle was provided solely for their child and not the comfort or pleasure of the family.  Indeed, this argument was made in a recent case decided by the Tennessee Supreme Court.  In Arlene R. Starr v. Paul B. Hill, Sr., et al., the Court held in part that “[e]ven though Father may have subjectively intended to give the vehicle just to Son for Son’s sole use, in doing so, he provided a benefit to the family unit by providing Son with a source of transportation.”  Given this interpretation, it will be difficult for any parent to argue that a vehicle used by only one family member is not maintained for the comfort or pleasure of the family.

Lastly, the vehicle must be used with the express or implied consent of the “head of household.”  This means that the “head of household” must have some level of control over the use of the vehicle, such as the ability to provide conditions upon when, where, and how the vehicle may be used and/or the ability to forbid the vehicle’s use.  This factor is especially important for non-custodial divorced parents because the custodial parent may attempt to override limitations on the vehicle’s use.  Ironically, this might relieve the non-custodial parent of liability under the family purpose doctrine.

Parents and spouses, whether married or divorced, should consider the family purpose doctrine when purchasing insurance to make sure all persons and vehicles are properly covered.  It is also important to remember that the family purpose doctrine can mean that the parents of a child who causes an accident can be held liable under Tennessee law.

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October 20, 2011 In General

Breast Cancer Awareness Month: Quick Facts

Breast Cancer Awareness Month: Quick Facts

Breast cancer is the second most common cancer in American women, behind skin cancers.

Breast cancer is the second leading cause of cancer death in women, behind lung cancer.

The lifetime chance of developing invasive breast cancer is approximately 1 in 8, or 12%.

Estimated number of new cases of breast cancer in US women in 2011 is 230,480.

Of these 230,480 new cases, about 57,650 will be carcinoma in situ (the earliest non-invasive form of breast cancer) while approximately 39,520 women will die from breast cancer each year.

Death rates secondary to breast cancer have been declining since 1990, believed to be the result of earlier detection through screening and awareness, as well as improved treatment.

Breast cancer causes about 4,500 deaths annually in women ages 40-49, and is one of the leading causes of death in women in this age group.

Overall, caucasion women have slightly higher risk of developing breast cancer,  but African American women are more likely to die from breast cancer.

Asian, Hispanic, and Native-American women have a lower risk of developing and dying from breast cancer.

Only about 5-10% of breast cancer cases are thought to be hereditary (resulting from genes inherited from a parent); this means that 90% of breast cancer cases occur in women who have no family history of breast cancer.

The biggest risk factors for developing breast cancer are being female and advancing age.

Other risk factors include having first-degree relatives (mother, sister or daughter) with breast cancer, family member with breast cancer at a young age, having dense breast tissue, early age at start of first menstrual period, late age of menopause, long term use of hormone replacement therapy, never having babies or having first baby after the age of 30, having chest radiation treatment.

Women who avoid alcohol and smoking, who exercise regularly and maintain a healthy body weight, and who breast feed for several months have a lower risk of getting breast cancer.

Other than lifestyle changes, the most important action a woman can take is to follow early detection guidelines.  Following early detection guidelines will not prevent breast cancer, but can help find cancers at early stage, while it is curable (before the cancer has spread).

Elements of early detection include yearly breast exam by your doctor, monthly self breast exams, and screening mammography.

A screening mammogram uses x rays to look at the breast tissue, and is used to detect cancer before there are any breast symptoms obvious on breast exam.  By the time symptoms appear, cancer may have already spread.

The ACR (American College of Radiology) and SBI (Society of Breast Imaging) recommend screening mammography should begin at age 40 for women with average-risk of breast cancer. Women at higher-risk should begin by age 30, but no sooner than 25.

There has been approximately a 30% decrease in death caused by breast cancer since 1990, due primarily to early detection of breast cancer through screening mammography.  Evidence to support the recommendation for regular annual screening mammography comes from results of multiple large randomized trials in Europe and North America involving 500,000 women.

If a screening test result is abnormal, you may need to have more tests done to find out if you have cancer.  These diagnostic tests may include tests such as diagnostic mammography, ultrasound, percutaneous needle biopsy and MRI.

OCTOBER IS BREAST CANCER AWARENESS MONTH, SCHEDULE YOUR SCREENING MAMMOGRAM TODAY!

October 20, 2011 In Estate Planning

Capacity to Make a Will in Tennessee

Capacity to Make a Will in Tennessee

As an estate planning and probate lawyer, I’ve handled cases from time to time where a person’s capacity at the time he or she created a Will or Trust was an issue. The elderly have increasingly become targets for those looking to prey on their physical and/or mental weaknesses. Additionally, people are living longer, and Alzheimer’s and dementia are becoming more and more common. Given all these factors, it is likely to continue to be an issue, especially when a person of advanced age changes or attempts to change beneficiaries.

What is a Self-Proving Will?

In most cases, a Will prepared by a lawyer includes the statements of 2 witnesses and a notary so that the Will is what is referred to as “self-proving.”  If the Will is not self-proving, it must be “proven” after the person dies.  In any case where there are handwritten notations or the document is totally handwritten, capacity of the person making the Will must be established.

Standard for Testamentary Capacity to Execute a Will in Tennessee

The general standard in Tennessee for capacity to execute a Will or a Trust is that the Testator (i.e., the person leaving the Will) be “of sound mind and disposing memory.” A person who does not have the capacity to conduct general business transactions or to enter into a contract can still have the required testamentary capacity to execute a Will or Trust. Two key factors in determining whether this standard is met are that the person must understand (1) the nature and effect of the act, and (2) the extent of the property the person is seeking to dispose of.

Whether a person is “of sound mind and disposing memory” is easy to determine when he or she is at one end of the spectrum or the other. Unfortunately, capacity is often not an all-or-nothing deal but falls somewhere in between the two.  When a person whose capacity is questionable tries to make notes or create or modify a Will or Trust, it can be very hard to determine after the fact. Obviously, the opinion of the person’s physician is always preferable and can often help prevent questions later.

Without capacity to make or modify a Will, the person’s intent may not be able to be carried out, even if there is no question as to what he or she wanted or was attempting to accomplish.

Your Legacy is Too Important to Leave to Chance.

Proper execution of  testamentary documents (i.e., Will, Trust, etc.) can avoid confusion later after you die, which is why it is important to consult an attorney when planning for your beneficiaries. The goal of testamentary documents is to accomplish your goals and objectives. What a shame if your intentions are not fulfilled due to a legal technicality or because a document was not executed properly.

If you would like to learn more about planning for your estate, please call us at 901-372-5003 or visit the Estate Planning page on our website.