negligence

Recreational Use Statute

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In Wilson v. Dossett, 2013 Tenn.App. Lexis 389 (Tenn.Ct.App. June 13, 2013), the court addressed the applicability of TCA 70-7-102 to a case where the plaintiff suffered severe injuries in an accident while operating a motorcycle on a trail located on the defendant’s property.  The reviewing court held that TCA 70-7-102 protected the defendant from liability because the plaintiff was engaged in recreational activities on the defendant’s property.

TCA 70-7-102 provides:

(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 hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant’s own use, nature and historical studies and research, rock climbing, skeet and trap shooting, skiing, off-road vehicle riding, and cutting or removing wood for the participant’s own use, 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, except as provided in § 70-7-104.

In Wilson, the plaintiff unsuccessfully argued that the statute did not apply where the landowner created or maintained the propertywhich in this instance, consisted of launch ramps on the premises used by riders to jump their motorcycles.  The plaintiff’s injuries occurred while jumping a series of ramps, possibly constructed or built by the defendant.

The Plaintiff also argued that the statute only applied to the State of Tennessee.  The Court rejected said argument.

The Court held that the activity of riding a motorcycle “constituted recreational activity under the statute.”

The Court concluded as follows:

The facts of this case are troubling in that a young man received a severe injury while engaged in a recreational activity. However, our General Assembly made the policy decision with respect to liability, as it has the authority to do, by enacting Tenn. Code Ann. § 70-7-101 et seq. to provide a defense for landowners in circumstances such as  these. Wilson availed himself of Dossett’s property for the recreational purpose of riding a motorcycle. This activity falls squarely within the parameters of the statute’s protection for landowners. Additionally, there was no gross negligence in this case that would serve to negate the affirmative defense available to Dossett. When viewing the facts in the light most favorable to Wilson, we conclude, as did the Trial Court, that summary judgment is appropriate in this case. We affirm the judgment of the Trial Court.

Sudden Emergency Doctrine in Tennessee

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In Smith v. General Tire, 2013 Tenn.App. Lexis 364 (Tenn.Ct.App. May 30, 2013), the Tennessee Court of Appeals upheld summary judgment dismissing the plaintiff’s case where the defendant driver unexpectedly blacked out just prior to a collision. The defendant driver’s treating specialist opined that the defendant’s diabetic condition caused a “state of cognitive dysfunction” and that such condition was not foreseeable. Relying primarily on McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995), the Court affirmed the granting of summary judgment. McCall stands for the proposition that an unforeseeable sudden loss of consciousness or physical incapacity while driving is a defense to a negligence action. In any case involving this defense, the McCall case must be carefully examined.
If the trial court had refused to grant summary judgment, it seems unlikely that the decision would have been reversed (or even reviewed on interlocutory appeal) by the appellate court. Both sides had expert testimony, and there was some indication by the defendant that she had suffered episodes of “light-headedness” before the wreck. The question of whether the event was foreseeable is an objective, as opposed to subjective, determination.  Thus, such a determination would normally be a question for the jury. In this case, however, the trial court and reviewing court felt summary judgment was appropriate.

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