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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 … Read the rest

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November 29, 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 … Read the rest

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November 28, 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

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November 15, 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 … Read the rest

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November 1, 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
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October 31, 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

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October 28, 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 … Read the rest

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October 25, 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 … Read the rest

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October 24, 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 … Read the rest

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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

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October 20, 2011