Court of Appeals Rules in Favor of Injured Families in Selmer Dragster Case

In a unanimous opinion released today (Sept. 27, 2011), the Western Section Court of Appeals of Tennessee ruled in Ginny Beth King et al v. Flowmaster, Inc.  that a trial court should not have dismissed Flowmaster from the case based on additional jury questions yet to be decided.  The trial court had dismissed Flowmaster on the theory that they had no legal duty to protect spectators at the 2007 Cars for Kids event held in Selmer, Tennessee.

The event was to feature exhibition burnouts by professional drag race drivers including Troy Critchley, whose 3000 horse power car veered into the crowd, killing six and injuring more than twenty others.  The Court of Appeals ruled that there were in fact questions for a jury to decide on, including three theories: negligence; ultra-hazardous liability; and the legal definition of drag racing.

Negligence

As to the negligence theory, the Court of Appeals ruled that Flowmaster did have a legal duty of care to spectators, contrary to the ruling of the trial court.  The evidence before the Court demonstrated that while Flowmaster was not the event organizer, Flowmaster was a title sponsor of the event and had taken steps to invite professional drag race drivers to Selmer.  The Court noted that under Tennessee law, the plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the defendant’s power more probably than not would have prevented the injury (…quoting Tedder v. Raskin, 728 S.W.2d 343, 348 (Tenn. Ct. App. 1987).  The Court reasoned that the law does not require Flowmaster to be an equal participant in an event, so long as they meet other factors establishing a legal duty to others.

In this case, the Court of Appeals found that Flowmaster had not negated their legal duty to act on behalf of spectators, and therefore it was a mistake for the trial court to dismiss Flowmaster on those grounds.

Ultra-hazardous liability

Ultra-hazardous liability is a legal theory in Tennessee that holds that defendants engaged in ultra-hazardous activities are held strictly liable for the injuries caused (Leatherwood v. Wadley, 121 S.W.3d 682, 699 (Tenn. Ct. App. 2003).  The negligence or care exercised by the defendant in carrying out the activity is irrelevant.  Flowmaster argued that its lack of control over the Cars for Kids event meant it could not be responsible.  However, the Court of Appeals disagreed, noting that evidence presented demonstrated that questions of material fact existed as to whether Flowmaster requested Troy Critchley perform the burnout that killed and injured so many spectators.

As a result, the Court said it was a mistake for the trial court to dismiss Flowmaster from the case on this theory as well.

Legal Definition of Drag Racing

The Court of Appeals also made reference to Tenn. Code Ann. 55-10-501(1) which defines drag racing in Tennessee.  Under the law, drag racing is broader than two cars speeding down a course.  Instead, drag racing is participation by one (1) or more motor vehicles for the purpose of outgaining another, accepting or carrying out a challenge, and use of a vehicle to determine the maximum speed within a certain distance or time limit.  Tennessee law also defines a drag race participant in equally broad terms:

“. . . and also any person or persons who arrange for, supervise, or in any way and manner set in motion any “drag racing”, regardless of whether or not such person or persons may be the operator of, or be a passenger in, any motor vehicle participating in “drag racing.”  Tenn. Code Ann. 55-10-501(2).

The Court of Appeals found that sufficient evidence existed as to create a jury question for whether or not the burnout performed by Troy Critchley constituted drag racing, and also a question of whether Flowmaster’s contact with Critchley requesting he perform the burnout equates to “participation” as defined by Tenn. Code Ann. 55-10-501(2).

Finding three situations where the trial court made mistakes in its ruling, the Court of Appeals reversed the trial court decision and remanded the case back to McNairy County Circuit Court for further proceedings.

This ruling is significant because rarely does a Tennessee court have the opportunity to reaffirm and extend the concept of legal duty as it relates to recreational events.  Even more rare is the chance to discuss duty in the context of motor sports, and particularly aggressive motor sport activities like drag racing and exhibition burnouts, and discuss them in the context of ultra-hazardous liability.  The Court of Appeals stopped short of calling the activity in this case ultra-hazardous, instead leaving that decision for a McNairy County jury.

R. Christopher Gilreath along with founding partner Sidney Gilreath argued the case for the injured and deceased plaintiffs before the Court of Appeals.  On behalf of the eight families we represent, we are pleased that they have been given a renewed opportunity to present their story to a McNairy County jury, and that the Court recognized that companies who directly participate to create events that cause harm can be held accountable under the law.

(Full opinion available here: http://www.tncourts.gov/sites/default/files/kingginnybethopn.pdf)

Child Safety Latches and Outlet Covers Subject of Recall

The U.S. Consumer Product Safety Commission (http://www.cpsc.gov) announced today that Prime-Line Products, an importer located in Redlands, California, had agreed to a voluntary recall of 37,000 child safety latches and outlet covers, based on the discovery that screws on the safety latches can loosen and/or break, allowing young children to gain access to unprotected electrical outlets and small loose parts they could ingest.  The products were sold under the name Child Safe.  The recall includes child safety drawer and cabinet latches, as well as outlet covers with rotating receptacle covers.

Identification of unit numbers can be found here: http://www.prnewswire.com/news-releases/child-safety-latches-and-outlet-covers-recalled-by-prime-line-screw-breaks-can-allow-unintended-access-126251038.html

Prime-Line was the importer of the products, all of which were made in China.  The products were sold at various big box hardware retailers, including Ace Hardware, Friedman Brothers, Menards, Orgill, True Value, Do-It-Best, and others.

Photos of the subject products can be seen here: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11284.html

Gilreath & Associates is experienced in handling serious injury cases caused by product failures and defects.  If you believe a lived one has been injured or killed as a result of a product failure or defect, please contact us to discuss your situation in detail at 1-800-637-7024.

185,000 Pounds of Ground Turkey Recalled Due to Salmonella

As the nation remembered the harrowing events of Sept. 11, 2001, a recall for 185,000 pounds of ground turkey produced by Cargill was issued by the U.S. Food Safety & Inspection Service.

Issuing the Class I recall on Sunday, the food inspection agency claims the turkey contains Salmonella Heidelberg, the same strain that prompted a similar recall in August. The recall affects fresh ground turkey sold nationwide, including Kroger stores here in Tennessee.

All of the products under this recall were produced at Cargill’s plant in Springdale, Arkansas. The original recall issued on August 3rd for an astounding 36 million pounds of ground turkey halted production at the plant for two weeks. State and federal health inspectors tracked the source of a salmonella outbreak to meat produced at the plant.

But after only a few weeks back online, the plant is once again under fire.

The latest recall is for ground turkey produced at the plant on August 23-24 and August 30-31. Considering the same type of salmonella bacteria is still in the meat, the source of the contamination is either at the Springdale plant or somewhere in the chain of production.

While there haven’t been any illnesses associated with this latest recall, at least 107 illnesses and one death were reported in connection with the original recall.  As of this writing, two lawsuits – one by a man in Arizona and another from a toddler’s parents in Oregon – have been filed against Cargill.

Affected products will have an establishment number of P-963 inside the packaging’s USDA mark of inspection. Specific products will have use or freeze by dates ranging from 9/11/2011 through 9/21/2011. Products specifically sold at Kroger stores include:

  • 48.0 oz. (3 lb.) trays of Kroger Ground Turkey Fresh 85/15 with Use or Freeze by Dates of 09/17/2011, 09/18/2011 and 09/19/2011
  • 16 oz. (1 lb.) trays of Kroger Ground Seasoned Turkey Patties Fresh 85/15 with a Use or Freeze by Date of 09/17/2011

A Class I product recall is the highest level issued by the FSIS and means there’s a reasonable chance of illness and maybe even death, especially in young children and the elderly.

Any questions regarding this recall should be directed toward Cargill consumer relations hotline at (888) 812-1646.

Prevention is your best protection against salmonella and other food-borne illnesses. Wash your hands with warm, soapy water for at least 20 seconds before and after handling raw meat. And cook ground turkey and beef to an internal temperature of 165 degrees Fahrenheit.

If you’ve purchased one of the products affected by this recall, return it to the store for a full refund. And if you or a loved one fallen ill due to contaminated products like this, you may be entitled to legal compensation. Contact defective product attorneys at Gilreath Law in Nashville, Knoxville and Memphis today for a free consultation.

Playground Safety

As a Plaintiff’s law firm we routinely receive calls from the parents of young a child who has fallen on a playground, received a serious head injury and is being treated for seizures.  We start an investigation to see if the accident could have been prevented had someone, some company or some governmental agency had used due care.  As lawyers we look to see if the negligence of the defendant was the cause of the accident. Many times the playground is owned by the city, municipality or the county government.  This brings into play a statute known as the “governmental tort liability act,” which limits the amount of recovery that can be obtained against a governmental entity.  This statute also limits the theories on which the Plaintiff may recover medical expenses.

As a part of our investigation, we have to go back in time and survey the circumstances including the playground itself, the activity of the child, and who owned or designed the playground.  Photographs of the scene at the time of the accident are important to help determine the condition of the playground. We then look to see what the medical records show about the injury, the mechanism of the injury and how the conditions of the playground contributed to the injury.

The actions of the parents are also important.  Were they partially responsible? Under the law in Tennessee, if there is negligence on part of an owner of the playground and also negligence on the part of the parent, that will reduce the amount of recovery to the child.

We know from government statistics that a child dies from a preventable injury on our nation’s playground every month.  These deaths are caused as follows:  51% when a child is accidentally hanged, 21% when a child falls with an injury involving head trauma, 16% when equipment tips over or collapses.  According to the US Consumer Products Safety Commission a child is rushed to an emergency room with a playground injury every 2 ½ minutes.  That is more than 200,000 preschool and elementary children a year in the United States, 79% of these injuries involve falls.  The severity of an injury from a fall is determined by the height from which the child fell and the surface on which the child lands.

When it comes to playground safety, don’t assume your child is protected.  Playground safety laws and regulations are as varied as toddlers’ mood swings.  For example, many cities will have safety codes, but counties will not; even though the city and counties playgrounds are close together.  According to the National Playground Safety Institute, children and their parents should be capable of recognizing unsafe conditions with simple guidance.  The question is, does the playground operator or owner provide that guidance.

Playgrounds should be regularly inspected, either by the owners or the people using it.  These inspections should consider the following elements:

1.         Condition of the Equipment: Are there broken or missing components? Is the paint missing or peeling? Are the swing seats made or heavy or rigid material such as wood or metal, the can seriously injure a child? Seats should be made of rubber or canvas.

2.         Surfaces must be Smooth:  Are the surfaces rough or ragged?  Are the surfaces designed to absorb impact?  Are there sharp points or cornices, edges, nails or splinters?  Are there protruding nuts or bolts?

3.         Trip Hazards: Are there any objects children might trip over?  Are there exposed footings, anchoring devices, or environmental obstacles such as tree roots?

4.         Tipping: Is any equipment not properly secured and might tip?  Are the foundations of slides, monkey bars, and swings loose or moveable?

5.         Adequate Fall Zones:  A fall zone is a soften area around the equipment where a child could fall.  Are there buried foundations in the fall zone?  Does the surface material extend at least six feet from the equipment in each direction?  For slides, the surface must extend the height of the slide plus four feet.  For swings, the surface must extend twice the height, in front and behind the swing.  Concrete is never appropriate for a fall zone.

6.         Gaps or Spaces:  Are there gaps or spaces in equipment in which a child could get caught or that could catch clothing?  Are there open spaces in S hooks?  You should not be able to slide even a dime or credit card in this space.  Are there gaps and protrusions in slide areas?  Could a child get caught in between ladder rungs? Rung space should be smaller than 3 ½ inches or larger than 9 inches.

7.         Electrical Wires:  Are there exposed electrical wires in or around the playground?

8.         Dangerous Tree Limbs:  Is there evidence of diseased or dying branches of trees over hanging or surrounding the play area?

9.         Surface Areas Safe and Uniform:  What is the surface area of the play equipment; woodchips, sand, grass, cement, pavement?  Does the surface cover the area uniformly?  Is the surface covering at least 12 inches deep with woodchips, mulch, sand, shredded rubber or pea gravel and safety tested rubber mats?

10.       Hazards Removed:  Are there any of the following found on the playground; unsecured climbing ropes, swing trapeze bars, exercise rings, or trampolines?

In looking over these hazards from a legal standpoint, I quote the following phrase, “It’s better to have a fence at the top of the cliff than to have an ambulance at the bottom.”   The exercise of due care by the owners of the playground or the vigilance of parents, may prevent a tragic injury with lifetime consequences to a child.