In Tatham v. Bridgestone Americas Holding, Inc., No. W2013-02604-SC-R11-CV (Tenn. Oct. 30, 2015), plaintiff brought a product liability action against defendants after her tire blew out and caused her to have a car accident, breaking her back. Plaintiff purchased rear tires for her vehicle from Firestone Complete Auto Care. She chose the tires because they were “the best value,” but could not remember whether the sales associate discussed any warranties with her. After having the tires installed, plaintiff never tested the air pressure and did not recall running over anything or having any problems with the tires. Less than three months after purchasing the tires, plaintiff was driving on the interstate when one of the tires suddenly failed, causing her to hit the guardrail and flip her car. According to a witness driving behind plaintiff, plaintiff was driving normally and a piece of black was flapping from the tire before the accident. When plaintiff’s car began to veer off the road, the witness saw something black that looked like pieces of a blow-out come out from under plaintiff’s car.

After the accident, a wrecker service towed plaintiff’s car, and her insurance company informed her the car was totaled. At the recommendation of her insurance company, plaintiff signed the title of her car over to the wrecker service, who subsequently destroyed the vehicle and tire. At this time, plaintiff had not yet hired an attorney. Eventually plaintiff did retain counsel and brought this product liability action on the grounds of strict liability, negligence, and breaches of the implied warranty of fitness, implied warranty of merchantability, and duty to warn.

Defendants moved for summary judgment two times, which the trial court denied. Defendants appealed, citing three issues: 1) whether the case should have been dismissed as a sanction for spoliation of evidence with regards to the destruction of the tire; 2) whether the trial court should have granted summary judgment as to causation and the issue of whether the tire was defective or unreasonably dangerous; and 3) whether the trial court should have granted summary judgment because Tennessee allegedly does not recognize the apparent manufacture doctrine.

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In Garner v. Coffee County Bank, No. M2014-01956-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2015), the Court of Appeals partially overturned a trial court’s grant of summary judgment to defendants on several claims, including the torts of conversion and trespass to chattels.

Plaintiff and his former wife had purchased a home together, but wife moved out in 2009, taking her belongings with her. The home and its contents were damaged by fire in 2010. Wife was named on the insurance policy, so the checks from the insurer were made to both plaintiff and wife. The checks were for home damage, property loss and living expenses. Plaintiff believed that wife was not entitled to any of the proceeds for personal property loss and living expenses, since wife was not living at the home at the time and did not have any of her belongings there. According to plaintiff, however, the president of the bank where the home mortgage was held told plaintiff that he could not cash the checks and get any money unless he gave wife half of the proceeds. Plaintiff averred that, feeling coerced, he gave wife half the proceeds, and that money was used to pay down wife’s separate loan from the bank. The bank ultimately foreclosed on plaintiff’s home, and plaintiff filed suit for conversion, trespass to chattels, and conspiracy, among other causes of action.

Defendants moved for summary judgment on all of plaintiff’s claims. Plaintiff, however, failed to file any response to the summary judgment motion until after the time required by Tennessee Rule of Civil Procedure 56.03, and the trial court refused to use its discretion to excuse this delay. While the court acknowledged that plaintiff had been sick in the days leading up to the hearing and that could have affected his ability to sign his affidavit, it also pointed out that no other papers not requiring plaintiff’s signature and no motion for an extension of time were filed. Accordingly, plaintiff’s late-filed responsive documents were not considered in the summary judgment decision.

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In Winslow v. Saltsman, No. M2014-00574-COA-R3-CV (Tenn. Ct. App. Oct. 21, 2015), plaintiff brought claims against two defendants, a political candidate and his campaign advertising consultant, alleging false light and defamation. Finding that the defendants negated the element of actual malice, the Court of appeals affirmed summary judgment for defendants.

Plaintiff was Chief of Staff for the Tennessee Republican Party (TRP) and was given an employment agreement by his boss before she resigned to run for Congress. The new TRP chair offered plaintiff a different position, but instead plaintiff chose to negotiate a severance based on his employment agreement and leave his employment with the party. Shortly thereafter, he began working for his old boss’s campaign. The defendant democratic candidate for the Congress seat hired the defendant consultant for advertising, and at some point the consultant obtained copies of a financial review of the TRP, plaintiff’s employment agreement, and a document drafted by plaintiff while negotiating his severance. These documents showed that the TRP had extensive debt and overdrafts.

Before the primary elections, the democratic campaign ran advertisements on TV and in print stating that the opposing candidate and former TRP chair “left the state Republican party over $100,000 in debt” and “gave her future Congressional campaign staff lavish bonuses.”  In a radio interview, defendant consultant stated that plaintiff “was paid out of Republican Party funds for three months while he was working for [his former boss’s] campaign,” and that such an arrangement was “at worse, illegal and, at best, just plain wrong.” The democratic campaign also launched a website where they published the TRP financial records, records showing payments to plaintiff, plaintiff’s employment agreement and the document he drafted when negotiating his severance. Based on these statements, plaintiff filed suit against the democratic candidate and his consultant for false light.

To prove his claim, plaintiff had to show that the false light he was placed in “would be highly offensive to a reasonable person” and that defendants “acted in reckless disregard as to the falsity of the publicized matter and the false light in which [plaintiff] would be placed.” Importantly, here plaintiff conceded that he was at least a limited public figure, so the standard for his false light claims was actual malice. “Actual malice exists where the defendant publishes or makes a statement with knowledge that it was false or with reckless disregard of whether it was false or not.” (internal quotations and citation omitted). Failure to investigate information alone, however, is not enough to establish actual malice.

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The Court of Appeals recently overturned a trial court’s decision that a somewhat recently reconstructed road constituted a dangerous road condition. In Church v. Charles Blalock & Sons, Inc., No. E2014-02077-COA-R3-CV (Tenn. Ct. App. Oct. 9, 2015), plaintiffs filed suit on behalf of two women who died in an automobile accident. The facts showed that a highway had been reconfigured to bypass a town. Before the construction, highway drivers had no stop signs and simply proceeded on a curvy road. The new configuration, which included a stop sign at a “T” style intersection and a subsequent turn, opened on July 13, 2009. When it opened, the new roadway had a stop sign, a white stop bar on the pavement, and a “stop ahead” sign.

After the road opened, the State learned that many drivers were failing to stop at the new sign. In an email from a TDOT engineer to superintendent of maintenance, the engineer said that rumble strips had been suggested as a possible solution at the intersection. Rumble strips were never added, but changes were made following an accident in October 2009. In December, a junction sign was added before the intersection; large “stop ahead” signs were placed 320 feet before the intersection on both sides of the road; a directional sign with an arrow was placed before the intersection; two larger stop signs were placed on both sides of the road; and a two-headed arrow sign was placed across from the intersection.

On January 23, 2010, the driver here failed to stop her car at the stop sign and instead immediately proceeded to the right. She entered the path of oncoming traffic, causing a collision which killed her and her passenger. The evidence suggested that this was most likely her first time to drive through the newly constructed intersection, as she had been recovering from a back surgery.

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Several cases have now held that the 2011 amendments to the Health Care Liability Act (HCLA), which added language referring to governmental entities, allow plaintiffs bringing an HCLA claim under the GTLA to take advantage of the 120-day extension of the statute of limitations after giving proper pre-suit notice. Recently, though, a plaintiff whose claim arose before the enactment of this amendment tried to creatively argue that she too should be allowed the extra 120 days.

In Miller ex rel. Miller v. Cookeville Regional Med. Ctr., No. M2014-01917-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015), plaintiff’s husband had died after being given an excessive dose of blood thinners. The husband died on May 18, 2010.   Plaintiff gave pre-suit notice on May 11, 2011, and then filed suit on September 8, 2011, one year and 113 days after the death. Upon motion by the defendant, the trial court dismissed the claim as untimely, relying on the Tennessee Supreme Court’s decision in Cunningham v. Williamson County Hospital District, 405 S.W.3d 41 (Tenn. 2013). In Cunningham, the Supreme Court held that the HCLA as it existed prior to the 2011 amendments did not allow GTLA plaintiffs to take advantage of the 120-day statute of limitations extension.

In the present case, the Court noted that “the relevant date in determining whether the 2011 amendment to the HCLA applies to a case is the date on which the cause of action accrues.” Since the injury here occurred in May 2010, well before the October 1, 2011 enactment date of the 2011 amendment, “the statute of limitations was not extended by giving pre-suit notice[.]”

Plaintiff argued, however, that the Cunningham decision should only be applied prospectively, and since she filed suit before it was decided the ruling should not apply to her claim. The Court rejected this argument, though, noting that when the plaintiff filed suit was not the important date; instead, the focus was on when the cause of action accrued. If the cause of action arose before the enactment of the 2011 amendments, then the reasoning of Cunningham was relevant and the 120-day extension was not available for GTLA plaintiffs.

While this produced a harsh result, the Court of Appeals correctly applied the law as it had been interpreted by the Supreme Court. Fortunately this hole was fixed by the 2011 amendment to the HCLA, and now GTLA plaintiffs can utilize the 120-day extension afforded to other HCLA claimants.

This week, the Tennessee Supreme Court overruled Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), “return[ing] to a summary judgment standard consistent with Rule 56 of the Federal Rules of Civil Procedure.”

In Rye v. Women’s Care Center of Memphis, PLLC, No. W2013-00804-R11-CV (Oct. 26, 2015), plaintiff had Rh negative blood, and defendant failed to test and subsequently treat her with a specific injection during her third pregnancy. Because she was not treated, plaintiff became Rh-sensitized. The record contained extensive testimony regarding the risks to plaintiff and to any future pregnancies. Essentially, regarding future children, the evidence showed that if several contingencies occurred—“a future pregnancy, an Rh positive fetus, antibodies crossing the placenta—it [was] undisputed that the unborn fetus would face a number of risks, ranging from mild to severe.” Because plaintiff and her husband were Catholic, they asserted that they were limited in what steps they could take to avoid future pregnancies. Regarding the harm or risks to plaintiff herself, plaintiff’s own expert testified that the risk to her was that if she had an emergency situation and needed blood, the transfusion process could be longer because finding a match for sensitized blood could take more time.

Plaintiffs’ complaint asserted causes of action for health care liability, negligent infliction of emotional distress (NIED) for both plaintiff and her husband, and disruption of family planning. Defendants moved for summary judgment, arguing that the plaintiffs had “no existing actual injuries or damages resulting from the deviation,” that plaintiffs had “failed to allege future injuries to a reasonable medical certainty,” and that plaintiffs did not properly support their NIED claims. The trial court granted summary judgment as to all claims “for future damages to [plaintiff] arising from blood transfusions or future pregnancies,” finding that those damages had “yet to be sustained” and were speculative. The trial court also granted summary judgment on husband’s NIED claim, as he had not suffered physical injury and had not offered the required expert proof for an emotional distress action. Finally, the trial court granted summary judgment as to plaintiff’s “independent cause of action for disruption of family planning,” finding that Tennessee did not recognize such a claim. The court, however, denied summary judgment on plaintiff wife’s NIED claim, ruling that there was a genuine issue of material fact as to whether the change in her blood constituted a physical injury and also holding that she would be allowed to present evidence regarding how her family plans had changed as an element of her damages.

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In Jenkins v. Big City Remodeling, No. E2014-01612-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015), plaintiffs had hired defendant general contractor to construct a home for them.  General contractor, in turn, had hired defendant flooring subcontractor for the project. When the home was almost complete, it caught fire and resulted in a total loss. Plaintiffs sued the general contractor and subcontractor for negligence, including negligence based on the doctrine of res ipsa loquitur. The trial court granted summary judgment to all defendants. On appeal, the Court of Appeals affirmed summary judgment as to the general contractor but reversed as to the claim of negligence against the flooring subcontractor.

The facts established that the day before the fire, the owners had been in the home, and they had retained a key during construction. Further, the construction site was not fenced or otherwise blocked from public access. When the fire occurred, one of the only remaining projects was to stain the wood floors in the home. On the day of the fire, several subcontractors had been working on the house, including Julian Luu, who was working on the floor stain. Based on camera footage from a neighboring property, Mr. Luu was the last person to leave the property at around 6:10 p.m., and the fire started around 7:50 p.m.

Plaintiffs’ theory was that the flooring subcontractors, who had been known to smoke a lot on the site, “allowed flammable rags to remain on or near the exterior deck and also smoked cigarettes in the area.” Plaintiffs claimed that “the improper disposal of cigarette butts resulted in the stain-soaked rags igniting, causing the fire.” Although the fire destroyed any evidence of rags, buckets with staining rags and cigarette butts were found in a dumpster on the property. Plaintiffs’ expert testified that “he believed the fire began on the exterior deck,” but the expert admitted that he could not be certain and that he could not conclusively rule out arson or electrical problems.

The Court of Appeals first examined the negligence claim against the contractor, which was based on the doctrine of res ipsa loquitur. Res ipsa loquitur typically involves claims wherein “the injury was probably the result of negligence, even though the exact nature of the negligence is unknown and…it was probably the defendant who was the negligent person.” (internal citation omitted). To rely on this theory, the plaintiff must show: “(1) there is a ‘thing’ that caused the injury; (2) the ‘thing’ that caused the injury was under the exclusive control of the defendant at the time the injury occurred; and (3) the thing ‘was of such a nature to not occur without negligence.’” (internal citation omitted). Here, the Court affirmed summary judgment as to the contractor because plaintiffs could not show that the contractor had exclusive control. At the time of the fire, plaintiffs, subcontractors, and potentially the general public had access to the property. Under such circumstances, the contractor was not “responsible for or in control of all possible causes of the fire,” and thus could not be held liable for negligence under the res ipsa loquitur theory.

The Court next looked to the claims against the flooring subcontractor. While plaintiffs could not rely on res ipsa loquitur to proceed against the subcontractor based on the lack of exclusive control, the Court determined that plaintiffs’ negligence claim could proceed. The Court agreed with plaintiffs that “the circumstantial evidence related to the cause of the fire was sufficient to withstand the Flooring Subcontractor’s motion for summary judgment.” Here, the facts showed that Mr. Luu was the last person to leave the property shortly before the fire began; that Mr. Luu and his crew had smoked near the exterior deck before; and that the expert witness believed the ignition of staining rags could have caused the fire. The Court found that, because “negligence may be proven by circumstantial evidence,” plaintiffs had created a genuine issue of material fact to preclude summary judgment.*

Plaintiffs faced a common problem in this case—lack of evidence. Clearly someone did something wrong, but there was no hard evidence to establish who the faulty party was. The Court of Appeals, however, correctly concluded that negligence can be based on circumstantial evidence. Plaintiffs here had put enough together against the subcontractor to get past a summary judgment motion and proceed with their claims.

*Note: Justice Susano wrote a separate opinion concurring in part and dissenting in part, stating that he believed summary judgment as to the subcontractors should have been affirmed, as the “record does not contain evidence to support ‘but for’ causation.”

The Tennessee Supreme Court has ruled that the constitutionality of the artifical cap on non-economic damages in tort cases should not be examined by the courts until after a plaintiff receives a verdict in excess of the cap.

The decision comes in the Clark case out of Chattanooga.   The trial judge in that case ruled that the caps were unconstitutional.  Tennesssee’s High Court said the ruling was premature.  The Order can be reviewed by clicking on the link below

From a practical standpoint, this means that a supreme court review of the caps is at least two years off.  Why?  Because that is how long it takes, on average, from a verdict to go through the entire appellate process.   It is possible that a case with a verdict over the caps is in the pipeline right now but I have not heard of such a pending case.   Please let me know via a comment if you are aware of one.

Thanks to Jon Peeler for bringing this Order to my attention.

Supreme Court order

The Tennessee Supreme Court just issued an important decision regarding how to decide whether a claim falls under the Health Care Liability Act (HCLA) or ordinary negligence. In Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV (Tenn. Oct. 8, 2015), the Court held that the previous nuanced approach detailed in Estate of French v. Stratford House, 33 S.W.3d 546 (Tenn. 2011) had been abrogated by the HCLA amendments passed by the Tennessee legislature in 2011, and that the definition contained in the HCLA is now the authority under which a court should determine whether a claim falls under the HCLA.

In Ellithorpe, plaintiffs were the biological parents of a minor child but had lost custody of the child. The custodian arranged for and/or permitted defendant social worker to provide counseling to the child without the parents’ knowledge or consent. When the parents found out about the counseling, they brought this claim against defendant social worker. It was undisputed that the parents did not give pre-suit notice or file a certificate of good faith pursuant to the HCLA.

Defendant filed a motion to dismiss based on parents’ failure to comply with the HCLA, to which parents responded that their claims sounded in ordinary negligence. The trial court, however, granted defendant’s motion and dismissed the complaint, verbally ruling that “the THCLA was very broad and encompassed Parents’ claims because they related to the provision of health care services by a health care provider as those terms are defined by statute.”

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In Moreno v. City of Clarksville, No. M2013-01465-SC-R11-CV (Tenn. Sept. 18, 2015), the central issue surrounded the interplay of the 90-day window provided by Tenn. Code Ann. § 20-1-119 to add a non-party named by a defendant as a comparative tortfeasor and the process for filing a claim under the Tennessee Claims Commission Act.

Plaintiff was injured when a tree fell on his car as he was driving across a bridge on December 24, 2009. Within one year of the accident, plaintiff followed the procedure outlined by the Claims Commission and filed written notice of his claim against the State of Tennessee with the appropriate authority, the Division of Claims. The Division of Claims neither honored nor denied plaintiff’s claim within the 90-day period set out in the Claims Commission Act, and the claim was accordingly transferred to the administrative clerk of the Claims Commission. Plaintiff received an order from the Claims Commissioner on March 30, 2011, stating that he needed to file a complaint, which he did on April 14, 2011. The State filed an answer to the complaint on May 18, 2011, but did not mention comparative tortfeasors. On September 18, 2012, sixteen months after the initial answer, however, the State moved to amend its answer to name the City of Clarksville as being comparatively at fault. Pursuant to this new answer, plaintiff initially filed a motion to amend his complaint in the Claims Commission to add the City of Clarksville. He later, however, withdrew this amendment and instead filed suit against the City of Clarksville in Circuit Court.

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