Basic Elements of Negligence by Justin Steele

Today I would like to talk to you about snow blindness in cats.  This is a serious issue that needs to be dealt with the utmost care and sincerity.  

No, I’m just kidding with you.  Today, we are going to run though the elements of negligence for tort liability.  Negligence is defined as a failure to exercise reasonable care to avoid injury or damage to another person or property.  Reasonable care is typically determined by the reasonable man standard, which is to say, an average person in a community who has average skills and who is in a similar circumstance.  We aren’t talking about Jesus and we aren’t talking about Jim Jones.  Typically a jury would determine what a reasonable man would do.

               Negligence is a standard that has to be reached for a party to be liable for several different types of torts and we won’t discuss that here.  However, there are several elements of negligence that I want to discuss.  Elements are the questions that the jury should be asking themselves to determine if the person acted reasonably.

11.)   Duty – Whether the defendant owe the plaintiff a duty to not act unreasonably.

a.      This duty can arise by statute, but more commonly are raised by common law decisions.

22.)   Breach – Whether or not the defendant breached that duty by acting unreasonably.

a.      Meaning, would a reasonable person act this way considering:

                                                    i.     Foreseeable risk of injury

                                                  ii.     The extent of risk posed by the content

                                                iii.     Likelihood of a risk actually causing the harm

                                                 iv.     Alternatives to the conduct causing the harm

                                                   v.     Cost benefit analysis of acts – is it economically feasible to act in a safer manner.

33.)   Cause – there are two types of cause:

a.      Direct cause – cause in fact

b.     Proximate cause – if it makes legal sense to hold defendant liable

                                                    i.     This is probable best done by example:

1.     If you throw away a glass bottle full of grease and a dog comes and takes that bottle away.  Subsequently a tornado picks up that glass bottle and throws it into someone’s house.  Here there is not proximate cause for you putting the bottle in the trash.  The proximate cause was an act of God.

44.)   Damage – plaintiff was actually damaged by the defendant’s breach of duty

A plaintiff has to prove that the defendant has to prove that the defendant had a duty to not actually unreasonably. They did act unreasonably either directly or proximately, and this breach caused the plaintiff damage.  If one of these elements is missing there should be no liability for negligence.

These are the basic elements of negligence I hope you learned something useful, until next time.

Justin  Steele

Memphis Divorce Attorney Larry Rice: on Marital Dissolution Agreements in Tennessee

Memphis Divorce Attorney Larry Rice discusses how spouses should approach negotiating before signing the Marital Dissolution Agreement (MDA). He explains the complexity of the MDA and advises couples to seek counsel when it is time to draft the MDA. Larry Rice also suggests the appropriate setting for a successful negotiation between spouses before signing the Marital Dissolution Agreement.

 

The Words We Say and The Words We Mean, by Jennifer Bicknell

            As attorneys, or wanna-be attorney in my case, we live by words.  We live by the words we say and we live by the words we write.  Often, the words we use are carefully chosen to convey a specific meaning and achieve a specific result.  When done correctly, these words have a powerful effect over the lives of our clients, and can get them the results they want.  Conversely, these carefully chosen words can also backfire and take away from our client the result they want.

            Recently, Jennifer Bellott, an attorney in our firm, brought to our attention a recent decision of the Tennessee Supreme Court in Bowron v. Hill, 2013 Tenn. App. LEXIS 681,  2013 WL 5604359 (Tenn. Ct. App. Oct. 11, 2013).  The case stemmed from a dispute over payment of college tuition and living expenses pursuant to the parent’s Marital Dissolution Agreement (“MDA”).  The agreement stated that each parent would jointly take part in the college decisions of their children. Bowron v. Hill, 2013 Tenn. App. Lexis 681 at 2.  In this instance, Ms. Bellott brought to our attention not so much the words written in the agreement but the words omitted from the agreement.  In this case, there was no provision for a veto of the choice of the child’s college leaving the father responsible for paying half of the out-of-state college tuition plus room and board.  This amount well exceeded his ability to pay without borrowing against the equity in his home.  This one word, “veto”, or an equivalent word choice, could have made all the difference in the outcome of this case, and even prevented it from being brought in the first place.

            Another point brought out by Ms. Bellott is that when writing agreements such as MDA’s and Parenting Plans, it is not enough to look merely into the immediate future of separating property and deciding who the children will spend Christmas with this year.  These agreements require attorneys to look far into the future and predict what circumstances might come up, especially as regards the children from a marriage.  The words chosen on these agreements not only affect them immediately, but can affect those children beyond their minority and into their young adult lives.

            They say a picture says a thousand words but it is also true that a word can have a thousand meanings (well, not that many but definitely more than one at any rate).  So be careful in choosing words and think through all the ramifications of those words both in the present and into the future.  

When You Fail to Plan, Plan to Fail by Courtney Sharp

As my previous blog entries reflect, I am a planner at heart (a fact that is only strengthened through my employment here with Larry Rice). While law school and work give me plenty of opportunities to perfect my organizational skills, I am quickly learning how essential planning is to virtually every part of my life.

            I am a strong believe that a planner (or a personal assistant if you can afford one), is key to maximizing productivity and minimizing unnecessary stress in one fell swoop. Planners are where the ‘to dos’ that seem overwhelming, go to find their time slots and be put to rest.

By planning, tasks become MANAGEABLE: You can see all your goals, both long term and short term, in one place. You can feel the satisfaction of crossing an assignment off your list, which is sure to motivate you to keep moving to the next. When you organize all the errands in your head neatly on a piece of paper, they become manageable, and you can conquer them instead of worrying about them.

By planning, you better utilize your ENERGY: When we learn how to manage our errand/assignment/tasks, it frees up energy that we can use on something that would actually be productive to ourselves. It is so easy to get caught up with worrying about how we are going to accomplish our ‘to do’ list, that at times we can spend more time stressing out about our workload than we would actually accomplishing it. Not to say we should rush through any given task so we can spend our energy doing what we want, but we should be encouraged that we would have much more time and energy if we planned ahead on the front end.

By planning, you tell your time where to go, instead of wondering where it went: Everyone knows how quickly time slips by. We can have the best intentions, but if we fail to plan, we can almost count on ‘something coming up’ or just simply forgetting. I am an advocate of planning out my time both for school, work, and my life in general. I often look at my calendar and put my time in at the beginning of the week, that way I know exactly how I will spend my time, instead of wondering at the end of the week “Where did my time go?” My generation, especially, seems fond of the idea of “spontaneity.” If I have learned anything in my mid-age, though, it’s that if you sit around and wait for something to be “spontaneous,” you will be sitting around for a long time. You have to MAKE something happen if it is a priority. If you want to make something happen, plan it ahead of time. If going to dinner with a friend is a priority, I plan it. If calling my grandmother is a priority, I put it on the calendar. If treating myself to Sonic is a priority, you bet it’s on the calendar. This holds me accountable, ensures that I have time for it, and lets me know that it will get done.

I am convinced that when you better manage your time, it sets off a series of dominoes. When you plan ahead, you have less to worry about, when you have less to worry about, you tend to be happier. When you tend to be happier, you enjoy being around your loved ones more (and they certainly enjoy being around you more). From my perspective, few things can go wrong with being a planner, and planning your priorities ahead of time. I am thankful that I get to hone my planning and time management skills in the hectic area of Divorce law. I am more thankful that I have Larry Rice and his team to look up to for help in this area because they seem to have gotten this “being organized, planning ahead, juggling work while being happy people” thing down pat.

Go Out and Friend Someone Today by Jennifer Bicknell

Larry Rice has many opportunities to lecture throughout the country but sometimes he does not have to travel too far from home. In this case, he only had to travel up one flight of stairs to conduct his latest Continuing Legal Education (“CLE”) Seminar where Larry hosted lawyers from the Memphis area Wednesday afternoon. The topic of the CLE was “How to Love Social Media.” It focused on how to use social media to your advantage in your law practice. While lecturing on Facebook, Larry focused first on how to get “friends” on your Facebook site because the more friends on Facebook the greater your visibility. Next, Larry spoke about the ethics involved with Facebook and a lawyer’s duty under the Rules of Professional Conduct. Besides name-recognition, Larry also discussed the tools on Facebook that a law firm can use in advertising. Larry talked about how to utilize these tools to reach the maximum number of people. After discussing how to use Facebook to your advantage, Larry gave some helpful tips on the use of Facebook such as when the best time to post is and the types of posts that earn the most “likes.” After discussing Facebook, Larry also spoke about Linkedin and Avvo and the professional networking opportunities available on these sites. As times change, the way attorneys used to get clients (yellow page ads mainly) just do not cut it anymore. More and more, people look to the web for advice and if they find a name that they are familiar with they are more likely to choose that person. The moral of this story; go out and “friend” someone today.