In a decision handed down Dec. 20, 2018, the Tennessee Supreme Court adopted a new standard for determining the legality of exculpatory clauses. [Copeland v. HealthSouth/Methodist Rehabilitation Hospital, LP, 565 S.W.3d 260 (Tenn. 2018)] The Court ruled that the five factors that it had identified in Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977) were still valid but expanded the factors to be considered to a “totality of the circumstances” test, in its first look at exculpatory clauses in 25 years. I handled the appeal at the request of Memphis colleague David Gordon. The Plaintiff, Frederick Copeland, 77 years old, was in a rehab hospital in Memphis a couple of days after knee replacement surgery. The hospital called a wheelchair van to transport him to see his doctor for his first post-surgery visit. The wheelchair van company required Mr. Copeland to sign an exculpatory agreement as a condition for the transportation. Unfortunately, the driver did not assist Mr. Copeland when he tried to get into the van and Mr. Copeland fell, resulting in a very serious injury, including ruining his new artificial knee. The wheelchair van company defended by arguing that Mr. Copeland had signed away his right to sue when he signed the exculpatory agreement. The trial court accepted the wheelchair van’s argument and dismissed the case, holding that the exculpatory clause was good and valid, barring Mr. Copeland’s suit. We appealed to the Tennessee Court of Appeals which unfortunately affirmed the trial court’s decision.

We then filed an application for permission to appeal to the Tennessee Supreme Court. The jurisdiction of Supreme Court is generally by permission only. In other words, there is no right to appeal; you can only appeal if the Court grants permission. If the Court thinks that the case will advance the development of Tennessee law, it will grant permission to appeal and then hear the case. Otherwise the decision of the Court of Appeals is the final decision. The Supreme Court accepts very few decisions for appeal. In this case we were fortunate in that the Court did accept the case for review. The question presented was a classic contest between two well-established legal principles: freedom of contract versus the public policy against allowing a party to escape the consequences of his own negligence in the context of a contract of adhesion. With permission to appeal in hand, we filed new briefs followed by oral argument in the Supreme Court. But this was no ordinary oral argument. It was held at Girls’ State at David Lipscomb University in Nashville as part of the Court’s S.C.A.L.E.S program, the program where the Court holds argument at places other than its usual courtroom to educate high school students about the judicial branch of government. https://www.tncourts.gov/programs/scales-project That meant that the argument was held in an auditorium full of several hundred high school girls, which added another dimension to the already tense atmosphere of arguing in the Supreme Court. But all went well in the oral argument and the Court ultimately handed down its decision reversing both the trial court and the Court of Appeals, ruling that the exculpatory clause was invalid and unenforceable, replacing the Olson v. Molzen five-factor analysis with a standard of the consideration of the “totality of the circumstances.” The Court held that exculpatory clauses in contracts for recreational or non-essential activities like sky-diving, motorcycle racing, aerial sight-seeing, white-water rafting and riding mechanical bulls were enforceable, but that exculpatory clauses in contracts for essential services, like hospital or medical treatment, or transportation for hospital or medical treatment, were not enforceable.

In a decision handed down Sept. 20, 2019, the Tennessee Supreme Court reversed the trial court’s dismissed of a workers’ compensation case where the trial court had ruled that the statute of limitations had expired when the action was initiated. Williams v. SWS LLC d/b/a SecureWatch, 2019 WL 4740106. I handled the appeal at the request of my Knoxville-based colleague Martin Ellis. This was a direct appeal to the Tennessee Supreme Court by was of T.C.A. 50-6-225. This statute provides that appeals in workers’ compensation cases are appealed directly to the Supreme Court, bypassing the Court of Appeals. The statute also provides that the Supreme Court may, by order, refer the appeal to a panel known as the Special Workers’ Compensation Appeals Panel, which consists of three judges designated by the Chief Justice, at least one of which must be a member of the Supreme Court. Once the panel reviews the briefs and hears oral argument, it issues a decision which becomes the decision of the Court unless a party requests appeal to the entire Supreme Court, or unless the Supreme Court decides, on its own initiative, to hear the case. In this case the appeal was referred to the Special Workers’ Compensation Appeals Panel, which heard the case sitting in Knoxville.

The case highlights the difficulty in discerning whether a particular case involves a gradually-occurring injury or an occupational disease. The wording of the statutes of limitation for the two types of cases is at least different, although it is debatable whether the meaning is different. The Defendant argued that the statute of limitation had accrued when the employee realized or discovered that she had a compensable injury. But the Panel disagreed, holding that the discovery rule had no application. If the discovery rule were applied in cases of gradually occurring injury or occupational disease, the employee would be required to file suit as soon as he noticed any symptoms and believed them to be caused by his or her work. For example, the employee might be forced to file suit as soon as he noticed any pain in his back, however minor. Instead, the trial court is to apply the “last day worked” rule, under which the statute does not run until the employee is prevented from working due to the injury. In the case at bar, the Panel ruled that the discovery rule had no application. Neither party requested review by the full Supreme Court and this ruling became the ruling of the Court.

On March 3, Ed Marcum at the Knoxville News Sentinel did a front-page story on the case that was picked up by USA Today Network.лучшие игровыеинтернет магазины детских игрушек украина

In response to the lawsuit, TVA has announced that it is going to publish an environmental impact statement that will address changes to its vegetation management policy, including a “border to border” approach by which it would clear the entire right-of-way, including the historic buffer zones, which include vast numbers of 50-100-year-old trees. The Plaintiffs earlier submitted their comments on the scope of the EIS [2017-03-18 Comment on scope of EIS, and yesterday submitted a supplemental comment. 2017-03-22 Supplemental Comment on scope of EIS Also yesterday, the Tennessee Chapter of the Sierra Club submitted its comment on the scope of TVA’s proposed environmental impact statement on its vegetation management program. 2017-03-22 Sierra Club EIS comment

The key thing to realize is that unless there is sustained and widespread opposition, TVA will likely adopt the border-to-border approach and destroy all of the trees in the right-of-way. If you own property on the right-of-way, or know someone who does, now would be a good time to get involved. Go to the TVA Trees Facebook page. Today is the last day to comment on the scope of the EIS but there will be other opportunities to comment, including public meetins all over the TVA region.translate toигрушки

Yesterday we filed the Plaintiffs’ response to TVA’s confession of judgment and motion for judgment in favor of the Plaintiffs. 2017-03-23 Doc. 386 Plaintiffs’ Response to TVA’s Motion for Judgment in Plaintiffs’ Favor We, of course, agree that judgment should be entered in favor of the Plaintiffs, but we think that it should go further than what TVA offered. We think that the injunction should not only enjoin TVA from further implementing its new practice known as the 15-foot rule, but should also order TVA to revert to its prior practices, and define what those prior practices were. The prior practices included leaving the buffer zones, generally 25 feet on the edges of the right-of-way that was left in its natural state, including vast numbers of 50-100-year old trees. Under the 15-foot-rule, also called the right-of-way widening initiative, or “reclaiming” the full width of the right-of-way, TVA was systematically clearing the buffer zones, destroying millions of trees on thousands of miles of right-of-way, and doing so straight through wildlife nesting season, indiscriminately killing probably hundreds of thousands of baby birds and wildlife of all descriptions.

Here is why we think the injunction should go further than what TVA has proposed: The lawsuit forced TVA to advise the Court that it had suspended the 15-foot rule and reverted to its prior practices. But after so advising the Court, TVA simply continued clearing the buffer zones. We proved this by aerial video at Land Between the Lakes where TVA cleared 31 miles of buffer zones right after it told the Court that it had suspended the 15-foot rule and reverted to its prior practices. As we stated in our Response, “Either TVA is misrepresenting itself to the Court, and simply continuing with the 15-foot rule, or it is using ‘lawyer gyrations’ to concoct a remarkable definition of the 15-foot rule, a definition that would somehow allow it to cut down the same trees either with or without the 15-foot rule.”

So simply ordering TVA not to further implement the 15-foot rule is not enough. We also need to order TVA to revert to its prior practices, and define what those practices are, including leaving the buffer zones and allowing landowners to trim their own trees.правила укладки ламината своими рукамиигры для девочкам 6 лет

Interesting development yesterday. TVA, the defendant in the case, filed a “Confession of Judgment in Plaintiffs’ Favor” 2017-03-01 Doc. 377 Confession of Judgment in Plaintiffs’ Favor and a “Motion for Judgment in Plaintiffs’ Favor.” 2017-03-01 Doc. 378 Motion for Judgment in Plaintiffs’ Favor. They also filed a supporting brief. 2017-03-01 Doc. 379 Brief in Support of TVA’s Motion for Judgment in Plaintiffs’ Favor. A little unusual to ask for judgment to be entered in favor of the opposing party. It was an official surrender. It is what TVA should have done five years ago, at the beginning of the case. We arrive at this point after two appeals to the United States Court of Appeals for the Sixth Circuit in Cincinnati. TVA lost both appeals. So yesterday, TVA filed papers consenting to the entry of a judgment enjoining itself from further implementing the 15-foot rule until it publishes an appropriate environmental impact statement.

Although it looks like a complete surrender, there is a possible catch. The other side of the coin for ending the 15-foot rule is that TVA must revert to its prior practices, that is, the practices that it followed prior to the 15-foot rule. Those practices included leaving the buffer zones, and allowing landowners to trim their own trees. After assuring the Court at an earlier stage of the litigation (an assurance that continues to this day), that it had suspended the 15-foot rule, and reverted to its prior practices, TVA proceeded to wipe out the buffer zones at Land Between the Lakes from one end to the other, destroying vast numbers of 40-100-year-old trees that had been left under TVA’s prior practices. It also wiped out Billy Anderson’s orchard in Paducah, Kentucky, which he had tended under the wires for more than 30 years under TVA’s prior practices, always keeping his fruit and nut trees pruned to no more than 17 feet tall. These appear to be violations of TVA’s assurance to the Court that it had suspended the 15-foot rule and reverted to its prior practices. So the concern with TVA’s confession of judgment is that, having consented to a judgment enjoining itself from further implementing the 15-foot rule, it might simply continue eliminating the buffer zones like it did at Land Between the Lakes and Tellico Dam, and destroying the trees of people like Mr. Anderson, just as it has done for the last five years.

If you have have information that TVA is continuing to destroy the buffer zones or other trees that it allowed under its prior practices you are invited to post your information or experience at http://www.facebook.com/tvatrees [TVA Trees@tvatrees]владимир мунтян отзывыфильтр насос с

There is an especially ugly dimension to the 15-foot rule that I would like to highlight, using Land Between the Lakes as an illustration. The destruction at Land Between the Lakes – cutting down every tree in the right-of-way, thousands of trees, including vast numbers of 40-100-year-old trees – was accomplished between February and July of 2015. […]

It isn’t often that a United States District Court is reversed twice in the same case, but that is exactly what has happened. The Sixth Circuit again ruled in our favor, reversing the District Court. The issues were simple. After the first appeal, TVA claimed that it had suspended the 15-foot rule (clear-cutting its entire right-of-way) and reverted to its prior practices. These prior practices included leaving its historic buffer zones at the edges of the right-of-way. We knew that TVA was not telling the truth. We knew that it was continuing with the 15-foot rule, continuing to remove the historic buffer zones and continuing to cut down virtually all of the trees in the right-of-way. For example we knew that TVA was clear-cutting its entire right-of-way at Land Between the Lakes National Recreation Area in Tennessee and Kentucky, eliminating the historic buffer zone from one end to the other. To prove the point, we hired a private plane, a pilot, and a video camera operator to fly the entire 31-mile right-of-way. The result was undeniable video evidence that TVA had clear-cut the right-of-way from one end to the other, including vast numbers of 50-100-year old trees, leaving a 31-mile path of destruction plainly visible from the air.

In this entry, I am writing about Sherwood v. TVA, an appeal that I am handling and that is pending right now in the Sixth Circuit. (See http://www.vowell-law.com/cases-on-appeal/) We are now in the second appeal in the case. The case has generated huge public interest. If you simply google “TVA tree cutting” you will find endless articles from all over TVA’s 7-state region with titles like these: http://whnt.com/2013/02/01/huntsville-leaders-fight-tva-plans-to-cut-down-trees/ or http://theknoxvillejournal.com/tva-clear-cutters-bully-property-owners/ or http://www.timesfreepress.com/news/news/story/2012/apr/12/tva-tree-cutting-plan-riles-residents/75266/ or http://www.wrcbtv.com/story/18446524/homeowners-city-leaders-stand-up-against-tvas-tree-cutting-policy or http://wkrn.com/2014/07/25/tva-plans-to-cut-down-community-christmas-tree/.

In the lawsuit, the Plaintiffs, a group of landowners from all over Tennessee, are challenging TVA’s attempt to remove virtually all of the millions of trees in its 15,900 mile right-of-way, including the elimination of its historic buffer zones on the edges of the right-of-way, for the first time in its 76-year history, without preparing the environmental impact statement that is mandated by Federal law. The District Court dismissed the Plaintiffs’ challenge to this unlawful activity, and the Plaintiffs appealed and won, forcing TVA to announce that it had suspended the policy, and reverted to its prior practices. The second appeal, now pending, questions whether TVA really has suspended the 15-foot rule and reverted to its prior practices or whether, to the contrary, it is continuing to clear-cut the right-of-way and eliminate the buffer zones and virtually all of the trees in the wire zone, the area directly under the wires.

TVA called its new policy the “15-foot rule,” meaning that it was going to eliminate every tree in its right-of-way that was either 15 feet tall or might ever grow to be 15 feet tall. That would obviously include every tree in the right-of-way (other than exotic species like Japanese maples), because every native tree in TVA’s 7-state region, including dogwoods and crepe myrtles, has the potential to reach 15 feet tall at maturity. TVA’s own documentation states that the 15-foot rule would remove “virtually all” of the trees in its right-of-way, which would be a complete and total clear-cut of its right-of-way for the first time in its 76-year history, including the destruction of vast numbers of 100-year-old trees that had been left standing when TVA initially installed the power lines beginning in the 30’s. The impact of this new policy was enormous. The TVA right-of-way is 15,900 miles long and usually 200 feet wide. It would stretch from New York to Los Angeles six or seven times. The area to be clear-cut is 406 square miles, approximately half the size of the Great Smoky Mountains National Park. That is a vast forest of trees to be destroyed, countless millions of trees. The cost of the project was enormous, $10,000-$12,000 per mile, according to TVA, or $159,000,000 to nearly $20,000,000 for the entire 15,900 mile right-of-way, a project so large that even with a multitude of cutting crews in operation, it would take 5-6 years to complete, according to TVA estimates.

The 15-foot rule would wipe out millions of trees in the “wire zone” (the area directly under the wires) as well as a vastly greater number of trees in the “buffer zones” (the areas at the edges of the right-of-way). When TVA originally installed the lines, beginning in the 1930’s, it removed just enough of the trees to allow for construction of the lines and a safe distance between the wires and the remaining trees. That safe distance is about 15 feet according to current TVA documentation. TVA generally left at least a 25-foot buffer zone of trees growing at the outer edges of the right-of-way. But under its new policy, TVA was going to eliminate the historic buffer zones, including vast numbers of 100-year-old trees that had been left standing when it initially installed the lines.

The 15-foot rule has been a monumental ecological disaster. It is ironic that TVA, one of the leading burners of coal in the world, would, at the same time it is burning the coal, and putting vast amounts of carbon dioxide into the atmosphere and making a huge contribution towards global warming, eliminate millions of trees that, if left standing, would serve as a check on global warming. As far as global warming is concerned, removing millions of trees in the TVA right-of-way would have the same environmental effect as destroying an equal amount of trees in the Brazilian rain forest. But besides the horrendous effect on global warming, the elimination of the trees in the right-of-way poses an additional problems. Power line rights-of-way are excellent and abundant habitat for birds and other wildlife. With humankind taking over more and more of the globe, there is less and less habitat available for birds and other wildlife. These rights-of-way have become a refuge for birds and other wildlife. Besides the sheer destruction of this habitat, TVA has not even had the decency to suspend the policy during the spring nesting season. Instead it has continued to mow down the trees straight through what is now 5 spring nesting seasons, destroying millions of active bird nests and nests of other kinds of animals, killing vast numbers of baby birds and wildlife of all descriptions. Last but not least is the effect that the 15-foot rule has had on the thousands of people who own the land where the right-of-way is located. In its efforts to remove virtually all of the trees in the right-of-way, TVA has literally ruined the property of thousands of landowners along the right-of-way, destroying their shade trees and orchards, causing horrendous erosion problems and sedimentation of creeks and watersheds throughout the region, reducing property value across the region by millions of dollars.

That is a general description of TVA’s attempt to eliminate virtually all of the trees in its right-of-way, which is the subject matter of the lawsuit and of the current (second) appeal. This leaves several unanswered questions that I will address in future blog entries, including the following: 1) What in the world would motivate TVA to embark on such a seemingly senseless course of action? 2) Is TVA totally unconcerned about global warming, the destruction of wildlife habitat, and the ruination of the landowners’ property? 3) How could TVA have embarked on a course of action with such a vast environmental impact without submitting an environmental impact statement? 4) What excuse did TVA come up with once it became clear that it had not submitted an environmental impact statement? 5) Who at TVA made the decision to implement the new policy? 6) Why did the Federal district court (the trial court) initially dismiss the case, and allow TVA to proceed with the 15-foot rule, and why did the court of appeals reverse the trial court’s decision? 7) Is TVA continuing to remove virtually all of the trees in the right-of-way including the elimination of the historic buffer zones, even after announcing that it has suspended the 15-foot rule, and reverted to its prior practices?фото видеокамеригрушку купить