Bedbugs and the Law: Use this Helpful Website to Check your Hotel Before you Travel

Bedbugs and the Law: Use this Helpful Website to Check your Hotel Before you Travel

Lawyer John Day at the Day on Torts Blog has an interesting post today about a recent article concerning bed bug litigation fueled by an explosion in hotel bed bug infestations across the country.  He cites these statistics from the article:

Although hotels have become familiar with the surge of bed bug claims in recent years, the volume and nature of such claims are expected to continue to grow. Bed bug infestations are reported to have increased 300% nationally between 2000 and 2001, 70% between 2001 and 2002, and 70% between 2002 and 2003.22 Approximately 20,000 bed bug reports have been made to since summer 2010 for hotels throughout the United States.

The most interesting part of the quote? — a website where travelers and consumers can check out prospective hotels.

You can bet I’ll be using that website before I travel.

Law Talk: Submit your claim online to recover free money/property!

Law Talk: Submit your claim online to recover free money/property!

Ever wonder what happens to money and property that gets “lost in the shuffle” so to speak?

Examples: that old utility deposit or lease deposit you or your wife forgot to follow up on before you moved; or the last interest payment that was due in your old savings account that you closed; or maybe your mom or dad forgot about an old safety deposit box containing old jewelry or family heirlooms?

It’s actually VERY common.  Indeed, if you forgot about a deposit (or didn’t even know about it), how could you possibly even know to claim your refund, right?

Ever wonder what happens to that money or property?

This is referred to legally as “unclaimed property,” and by law the holder of the property (i.e. the bank, the landlord, the utility, etc.) must turn it over to the State along with information about the name and last known address of the owner.  They CANNOT keep the property; however, they are not required to track down the owner, either.  They can simply turn it over to the State and be done with it.

Literally MILLIONS of dollars in unclaimed funds are turned over to the State of Tennessee each year.  But here’s the good news — the State maintains a website where you can do a name search and then claim your property at no cost.  You can search for yourself, your parents, your kids, your friends, etc.  And then just submit a claim form with identifying information as needed and the State will turn the property over to you.

As noted above, it is QUITE common for people to forget about small deposits here and there.  I personally learned about an old utility deposit from back when I was in college and got my refund!  It wasn’t much, but every little bit helps!

Use the Comment section below and share any success stories you have finding old/lost property or funds.

[TIP: Be sure to also search in other states where you may have lived, transacted business, or maintained accounts. Just type in Google the words “unclaimed property” and the state you want to search.]

Click the “Like” and “Share” buttons below to let your friends know about this post.  And take advantage of our Law FAQ series by submitting questions or topics that you want to know more about.

25 Documents to have before you die

25 Documents to have before you die

I ran across this Wall Street Journal list today and am reminded of how important it is to get certain life affairs in order.  The start of the new year is as good of a time as any.

Number one on their list should come as no surprise.  An original will is the most important document to keep on file.  If you don’t have a will and you do have kids, call a lawyer and make an appointment.  If you do have a will, pull it out and read it.  You may want to update certain provisions or maybe even remove certain beneficiaries who haven’t been as nice to you as you would like.

If you need help organizing your estate, call us.  There is no fee for our initial estate planning meetings.

What is a Deposition? Law FAQ

Deposition victim attorney in memphis

What is a Deposition?

A deposition is similar to a witness testifying in court, except that it occurs in an out-of-court setting.  A witness at a deposition is referred to as the “deponent.”  A deposition usually takes place in a lawyer’s conference room, although I’ve personally been involved in depositions that took place in homes, hospitals, and even over the telephone.

It’s a chance for lawyers to ask questions and get answers from a witness under oath.  A court reporter is present to make a record of the questions and answers, which is then usually reduced to writing in what’s called a “transcript” of the proceedings. Sometimes a videographer will also be there to film the testimony.

Depositions are part of the “discovery” process of a lawsuit.  Each side has the right to discover information about the other side’s allegations. This is accomplished by things like written questions, production of documents, inspection of property, independent medical exams, and depositions.  Rule 30 of the Tennessee Rules of Civil Procedure governs depositions in Tennessee.

Do we really need a deposition? Isn’t it expensive?

A deposition can be expensive, but it’s perhaps the most useful tool in a lawyer’s discovery toolbox because it allows for real-time follow-up and feedback.   One of the most useful benefits is that, with some exceptions, it can be used to preserve and/or “lock in” crucial testimony.  A transcript can be admitted as evidence in court if the witness later becomes unavailable for trial (e.g. death, incapacity, outside the reach of court’s jurisdiction, immune from subpoena, etc.).  A transcript can also be used to impeach and cross-examine a witness who shows up for trial with a different version of events.

Depositions are Serious Business.

A deposition is a very serious matter with serious potential consequences.  Remember, the transcript may be used in court. If you are the deponent, you should treat your deposition as if your testimony is occurring right in the courtroom in front of the judge and jury.

Need a lawyer in Memphis?

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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.

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.


Be careful what you ask for at the Chiropractor

Be careful what you ask for at the Chiropractor

Many people visit the chiropractor for an alternative treatment to many issues ranging from back pain and headaches to allergies and fatigue. An experienced chiropractor will spend time determining why someone is experiencing such poor health and offer a treatment regimen designed to address those specific symptoms.  The examination will likely include x-rays and the treatment may involve spinal manipulation. Spinal misalignments can be a major cause of a person’s pain and spinal manipulations are designed to address these problems.

While millions of folks successfully visit their chiropractor on a regular basis for the maintenance of their good health, there are those instances when things can and do go very wrong.

One serious complication that can occur after spinal manipulation is a stroke.  Manipulations of the cervical region of the neck/back can cause a pinching or tearing of the arteries that feed blood to the brain.   If an artery to the brain becomes blocked or ruptures by a clot that has been stretched or from a rotation of the cervical spine, this could lead to a stroke.

As most people know, a stroke can be very serious health concern. It can lead to long-term brain damage, debilitating muscle weakness and even death. If you are experiencing any symptoms after a chiropractic visit, please let your doctor know immediately.

Symptoms include: weakness, sudden numbness or paralysis on one side of your body including your face; dizziness, loss of balance and coordination; stiff neck and pain around your eyes; vomiting, severe headache and difficulty with speaking or writing; confusion, memory problems, spacial and perception issues.

Also, remember that there could be a delay of many days between your chiropractic visit and the onset of symptoms.

Fortunately, strokes are a rare complication from chiropractic manipulations.  However, they do occur, especially during those occasions when a chiropractor doesn’t use the appropriate amount of force or has the patient in the wrong  position during his treatment.

If you have discovered that you could be the victim of chiropractic malpractice you need to speak to an attorney to understand your legal rights.  Our attorneys have extensive experience representing individuals injured during chiropractic procedures gone wrong.  Call us to see if we can help you.

Is Obamacare constitutional? Will the Supreme Court uphold the individual mandate?

Is Obamacare constitutional? Will the Supreme Court uphold the individual mandate?

Three of the 13 federal appellate courts have now ruled on Obamacare.  The 4th and the 6th Circuits upheld the individual mandate, whereas the 11th Circuit deemed it unconstitutional.  (The 6th Circuit is where I clerked.  It covers Tennessee, Kentucky, Ohio and Michigan).

In order to resolve the split amongst the circuits, the U.S. Supreme Court will likely hear and decide the dispute during the next Term of court that starts this month.  The Term runs for approximately 9 months, which means that a decision on the issue — assuming the Court ultimately agrees to hear the cases during this next Term — would be handed down no later than the end of June 2012.

The timing of the decision would be key.  Indeed, Obamacare will no doubt be a central issue for both sides as they head down the final stretch of the presidential campaign, and a timely decision by the Court would provide needed certainty on the issue, which would in turn allow the candidates to engage in more informed debate about how to move forward.

Below is an interesting excerpt from an article by Professor Erwin Chemerinsky in this month’s edition of the ABA Journal:

The most eagerly anticipated cases, though, are those involving the constitutionality of the individual mandate in the Affordable Care Act. Three circuits have decided the issue, and they have come out three different ways. In June, the 6th U.S. Circuit Court of Appeals, in a 2-1 decision, upheld the individual mandate as constitutional. Thomas More Society v. Obama. By contrast, in August, the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, declared this unconstitutional. Florida ex rel. Attorney General v. U.S. Department of Health and Human Services.

And in September, the 4th U.S. Circuit Court of Appeals, in a 2-1 ruling, found that the individual mandate is actually a tax and thus cannot be enjoined under a federal law, the Anti-Injunction Act, which prohibits federal courts from enjoining the collection of taxes. Liberty University v. Geithner. The issue was argued Sept. 22 before a panel of the U.S. Court of Appeals for the D.C. Circuit. A fourth decision is likely to be forthcoming soon.

In light of the importance of the issue and the split among the circuits, it seems certain that the court will hear the issue this term. Already petitions for certiorari have been filed from the 6th and 11th Circuit cases.

It is interesting that, with one exception, every federal judge appointed by a Democratic president has voted to uphold the individual mandate, and, with one exception, every federal judge appointed by a Republican president has voted to declare it unconstitutional. If the Supreme Court were to follow this pattern, the law would be struck down 5-4. But that may be far too simplistic because the court is likely to consider this the most important challenge to the scope of congressional power since the mid-1930s.

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Law FAQ: NFL & NBA Labor Issues – what is a “CBA” and a lockout? And why would players want to decertify their own union?

Law FAQ: NFL & NBA Labor Issues – what is a “CBA” and a lockout? And why would players want to decertify their own union?

What is a Collective Bargaining Agreement?

The NFL and the NBA players belong to unions which negotiate with owners to establish, among other things, player wages and working conditions.  The contract between the owners and the union is called a Collective Bargaining Agreement, or “CBA” for short.

What are the owners & players fighting about?

There are various issues at the margins – e.g. free agency rules, trade rules, maximum player contract amounts, etc.  However, the big dispute is over money – i.e. the amount of the salary cap that has historically been in included as part of the CBAs for the NFL and the NBA.

What is a salary cap?

A salary cap is the limit on total payroll a team can pay to all players combined.  For example, the salary cap for an NBA team was $58.044 million for the 2010-11 season. There are different types of salary as well, ranging from what is referred to as “hard cap” (an absolute, no-exceptions total dollar limit like in the NFL), to a “soft cap” (a total dollar limit with many, many exceptions like in the NBA).  By comparison, the MLB does not have a salary cap – which is why the Yankees and Red Sox are able year-in and year-out to essentially buy titles by signing multiple players to exorbitant contracts that no other team can possibly pay.

What is the dispute over the salary cap?

The players would prefer not to have a salary cap at all because that would permit wild-west-MLB-style bidding frenzies that would drive up player salaries.  Due to historic momentum, though, it isn’t realistic to expect the cap to be eliminated in the NBA or NFL anytime soon.  Generally speaking, the players are satisfied with the way things are.  The real dispute is over setting the dollar amount of the cap, which is generally negotiated as a percentage of estimated league revenues.  In the NBA, for example, last year’s salary cap of $58.044 million represents 51% of estimated league revenues. The dispute, though, centers not only on the percentage amount – i.e. what constitutes a fair “piece of the pie” for each side – but also on how the underlying estimate of league revenues is calculated.  The owners constantly argue that they are losing money and are thus seeking changes to the CBA, whereas the players believe that the owners purposely under-calculate and/or under-report their revenue figures.

What is a lockout? 

A lockout is where the employer prevents the employees from working – i.e. literally locks out employees who are otherwise willing to come to work.  A lockout is essentially the opposite of a strike, which is where the employees refuse to come to work.

Why would the owners lock out the players?

A lockout is about leverage.  Indeed, since players are locked out and not working, they no longer get a paycheck.  This obviously puts pressure on the players to agree to changes to the CBA in order to get the money flowing again.

What is decertification?

Decertification is where the players vote to basically disband or dissolve their union and thus, at least as a legal matter, put an end to bargaining with the owners as a collective unit.

Why would players vote to voluntarily decertify or disband their own union?  How could that possibly help them? 

Contrary to how it may appear on the surface, a vote to decertify does not necessarily mean that the players lack confidence in the union’s position, or that they somehow desire to “go their own way individually” or “each do their own thing” so to speak.  Decertification is a legal tactic.  Under labor law, there is an exemption/exception to antitrust rules so long as employees are engaged in collective bargaining.  Once the players decertify they can file a lawsuit charging antitrust violations against the owners, which is exactly what occurred during the NFL labor dispute when top players like Tom Brady and Peyton Manning agreed to be the named plaintiffs in a lawsuit filed against the NFL.  Legal experts disagree on whether the antitrust charges would have ultimately been upheld by the courts; however, the idea is that the charges do at least shift some of leverage back to the players.  There is also an argument to be made that if the players were to decertify before the owners declared a lockout (which didn’t occur in either the NFL or the NBA scenario), then the decertification might legally prevent the owners from being able to enforce a lockout.

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Law FAQ: I run a small landscape business. Do I need a contractor’s license?

Law FAQ: I run a small landscape business. Do I need a contractor’s license?

In Tennessee, The Board for Licensing Contractors enacts and enforces administrative rules pertaining to the licensing of various contractors operating within the state.  Typically most of us think of a contractor as being someone who builds or remodels a home, perhaps a roofer or brick mason.  But the Board has recently started enforcing certain provisions against smaller companies that until recently have been overlooked or otherwise ignored by the Board.

The most common type of business to get the attention of the Board is the small to mid-size landscape company.  Now, depending on various factors, even small companies that do nothing but cut grass in the summertime may need to obtain a contractor’s license from the Board.  Specifically, grass cutters need the “BC-29” license.  Failure to obtain the license can be costly.  Indeed, I have represented multiple landscape companies after they have been cited and fined by the Board for operating without the required license.  The fines imposed can be expensive – i.e. several thousand dollars.

If you operate a small business that you think may need to be licensed, contact our office.  We can assist you in determining whether or not you need a license and also help walk you through the process.