In Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016), the Tennessee Court of Appeals held that nothing about the Health Care Liability Act (HCLA)  certificate of good faith requirement prohibited a plaintiff from taking a TRCP Rule 41 voluntary nonsuit while a motion to dismiss was pending.

Here, a pro se plaintiff filed a health care liability suit against fourteen healthcare providers. When filing his complaint, however, he failed to attach a certificate of good faith as required by Tenn. Code Ann. § 29-26-122. Several of the defendants filed motions to dismiss on this basis. In response, and before any hearing on the motions to dismiss, plaintiff filed a notice of voluntary nonsuit and proposed order. Some of the defendants “opposed [plaintiff’s] notice of nonsuit on the ground that his complaint should be dismissed with prejudice because of the missing certificate of good faith,” as that is the appropriate penalty under the statute. After a hearing, the trial court dismissed without prejudice the claims against the non-objecting defendants, but dismissed with prejudice the claims against the defendants who objected to the nonsuit.

On appeal, the Court noted that Tenn. R. Civ. P. 41.01 governs voluntary nonsuits and precludes a nonsuit in certain situations, including “in a class action case, in a shareholder derivative action, in a case in which a receiver has been appointed, or while an opposing party’s motion for summary judgment is pending,” or “when it would deprive the defendant of some vested right.” (citation omitted). Otherwise, a plaintiff’s ability to take a voluntary nonsuit is “free and unrestricted…before the jury retires.” (citation omitted).

In Peters-Asbury v. Knoxville Area Transit, Inc., No. E2015-01816-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2016), the Court of Appeals overturned a bench trial negligence verdict.

Plaintiff was a student at the University of Tennessee with limited mobility due to a previous knee injury. For students with disabilities, UT provided transportation through an agreement with Knoxville Area Transit, Inc. (“KAT”), who was the defendant in this case. On the morning of the incident, plaintiff called the KAT operator and asked to be taken to the Office of Disability Services. Disability Services was located in Dunford Hall, which had a main entrance and a side entrance. The side entrance was closest to the Disability Services Office. A bus came to pick up plaintiff, and she repeated to the driver that she wanted to be taken to Disability Services. Accordingly, the driver took her to the side entrance of Dunford Hall. As plaintiff took her first step off the bus, she fell and fractured her right ankle. Plaintiff suffered many complications from the fall, eventually withdrawing from UT for the semester and moving to a single-level home with her family, and having surgery more than a year and a half after the fall.

Plaintiff brought this negligence action against defendant, asserting in her original complaint that the driver “had acted negligently in dropping [plaintiff] off at the side entrance to Dunford Hall, which [she] asserted was ‘an inappropriate and unreasonably dangerous location,’ rather than at the building’s main entrance.” After discovery, during which defendant produced a low-quality video of the incident taken from inside the bus, plaintiff amended her complaint to also allege that the driver negligently caused her to fall “by moving the bus forward as she was exiting the bus onto the pavement.”

During the trial, evidence was presented regarding both negligence theories. On her theory that she was dropped off in an unsafe area, plaintiff “testified that the main entrance was the safer of the two locations for mobility impaired students because the area around it was flat and clear, while the area around the side entrance was inclined and surrounded by landscaping.” Plaintiff alleged that debris could wash down onto the side entrance, but admitted on cross-examination that she did not step on any debris when she fell.

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In Fowler v. City of Memphis, No. W2015-01637-COA-R3-CV (Tenn. Ct. App. Aug. 11, 2016), the Court of Appeals analyzed a case falling under the GTLA, ultimately holding that while plaintiff appeared to be making a premises liability claim, the case actually fell under a different provision of the Act.

Plaintiff was injured when he fell into an uncovered water meter in a sidewalk near his home. Plaintiff filed suit against various entities, but the one at issue on this appeal was Memphis Light, Gas, and Water. “According to the complaint the uncovered water meter was a dangerous condition of which [defendant] had actual and constructive knowledge.”

Defendant filed a motion for summary judgment, arguing that it “had no notice that the water meter box cover had been tampered with or that a dangerous condition existed at the location of [plaintiff’s] fall.” Defendant asserted that the water meter at issue had been taken out of service in 2007, and a cover had been put over it.

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In Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV (Tenn. Ct. App. July 27, 2016), the Court of Appeals affirmed the dismissal with prejudice of a medical malpractice (now known as a “health care liability” or “HCLA”) claim because the plaintiff failed to file a certificate of good faith, and expert testimony was required in the case.

Plaintiff sued various companies that provided nursing and medical staff to a psychiatric facility. According to the complaint, plaintiff’s husband, who was a patient and resident at the facility, sustained life-ending injuries when he was attacked by another resident. Plaintiff alleged that defendants were negligence because her husband, who died, was supposed to have one-to-one care and supposed to have a wheelchair, yet had neither. She also alleged that the attacker was supposed to have one-to-one care and was known to be violent, and that defendants failed to take measures to protect the patients from the attacker.

When plaintiff filed her complaint, she did not give pre-suit notice or attach a certificate of good faith to her complaint, as required by the HCLA. At the time of this appeal, it was uncontested that this claim fell under the HCLA.

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In Denton v. Taylor, No. E2015-01726-COA-R3-CV (Tenn. Ct. App. July 25, 2016), the Court of Appeals affirmed summary judgment in a car accident case because “plaintiff provided no evidence establishing that the decedent’s negligence caused the accident.”

Plaintiff and the decedent, whose wife was the defendant here, were involved in a car accident in March 2013. Plaintiff could not remember anything about the accident, and the other driver was pronounced dead at the scene. In March 2014, plaintiff filed this negligence action.

Defendant moved for summary judgment fifteen months after the complaint was filed, submitting an affidavit from a sheriff’s deputy who stated that there were no witnesses to the accident and that a review of photographs and other evidence “was not able to determine the point of impact.” Defendant argued that plaintiff could not show that decedent’s alleged negligence had caused the accident. Plaintiff responded, relying on the post-mortem toxicology results that showed that decedent had hydrocodone and hydromorphone in his system.

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In Reynolds v. Rich, No. E2015-01245-COA-R3-CV (Tenn. Ct. App. July 22, 2016), the Court of Appeals overturned summary judgment in a negligence case, finding that defendants did owe plaintiff a duty and that there were genuine issues of material fact regarding whether defendants breached that duty.

Defendant father gifted a piece of land to defendant daughter, and the father had taken charge of building a house on the land for the daughter. Defendants tried to secure as much labor as possible through family, friends and volunteers. Defendant father worked with plaintiff at the same company and had known plaintiff “for a number of years.” Father knew that plaintiff had previously re-roofed his own house with metal roofing, so he “asked plaintiff if he would like to help in view of his prior experience in installing such roofing on his own residence, and he agreed.” Plaintiff was not paid for this work, and while he and others were installing the roofing, plaintiff fell and suffered extremely serious injuries. Plaintiff then brought this negligence action.

Defendant father submitted an affidavit that stated that he asked all the volunteers, including plaintiff, whether they had any reservations about the job, and that none voiced any concerns. He averred that he offered plaintiff gloves, but that plaintiff refused, and that he told plaintiff he should stand on the felt material instead of the metal when affixing the metal roofing, but that plaintiff said his shoes were providing good traction. According to the father, “plaintiff did not request any assistance, tools, equipment, harness, rope, scaffold, support, any type of restraint or anything else.” Defendant stated that he did not know what made plaintiff fall, and plaintiff likewise stated that he could not identify the cause of his fall.

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The Court of Appeals recently affirmed summary judgment in a premises liability case where plaintiff could not prove defendant’s actual or constructive knowledge of the allegedly dangerous condition.

In Landrum v. Methodist Medical Center, No. E2015-01733-COA-R3-CV (Tenn. Ct. App. July 25, 2016), plaintiff was visiting her mother, who was a patient at defendant hospital, when she slipped and fell in a puddle of water on the floor. The puddle was near the 5th floor nurses’ station and was fairly large, estimated to be two to three square feet in size. Plaintiff fell when returning to her mother’s room on the 5th floor, having left the room 15 minutes earlier by the same route. Plaintiff testified that when leaving the room, she did not notice the puddle, and that she did not see it until she had already fallen. Plaintiff “did not know what caused the puddle or how long the puddle had existed.”

Defendant hospital submitted depositions from two employees, both of whom were at the nearby nurses’ station when plaintiff fell. One stated that he did not see the puddle until plaintiff fell and that he “had no knowledge regarding what caused the puddle or how long the puddle had existed.” The other testified that the puddle was “large,” and that she did not see the puddle until after the fall and had no knowledge of what caused it or how long it had been there.

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The Court of Appeals recently examined whether the sickness and death of a lawyer’s child constituted extraordinary cause under the HCLA, finding that it did in fact excuse noncompliance with the statute.

In Kirby v. Sumner Regional Medical Center, No. M2015-01181-COA-R3-CV (Tenn. Ct. App. July 12, 2016), plaintiff was treated at the defendant hospital in June 2013, and plaintiff alleged that the treatment she received fell short of the required standard of care. Well before the one-year statute of limitations, on January 31, 2014, plaintiff’s counsel sent a fax to defendant regarding the claim. No other correspondence was sent, but on the day the one-year statute of limitations was to expire, plaintiff filed suit. Plaintiff attached a certificate of good faith to her complaint, but she admittedly had not served the statutorily required pre-suit notice with attached HIPAA release.

Defendant moved to dismiss the case based on the lack of pre-suit notice. In response, plaintiff’s counsel pointed out that his son was born on March 6, 2014, and subsequently died on June 20, 2014, just days before the statute of limitations was set to expire on this claim. Counsel stated that “[f]or the few months my son lived, there were frequent periodic indications that each day could be his last, including a few serious hospitalizations.” In his memorandum opposing dismissal, plaintiff’s counsel asserted:

In Boshears v. Brooks, No. E2015-01915-COA-R3-CV (Tenn. Ct. App. July 6, 2016), plaintiff asserted on appeal that the trial judge had given incorrect jury instructions in the underlying jury trial. The Court of Appeals, however, affirmed.

Plaintiff was riding in a car with his girlfriend when they were hit by a vehicle driven by defendant. Defendant was 78-years-old and blind in one eye, and he had been to his doctor that day to report blurry vision. His doctor had referred him to the ER, and the accident occurred after defendant had been released from the ER. Defendant’s theory at trial was that he had a stroke while driving, “which resulted in an unforeseeable loss of consciousness leading to the accident.” Defendant presented expert testimony supporting his theory of the case. Plaintiff, on the other hand, attempted to show that defendant “had suffered vision problems for years, and that, essentially, he had no business driving on the day of the accident.” Plaintiff “attempted to cast doubt on whether [defendant] had been unconscious during the accident,” and witness statements regarding defendant’s condition after the wreck varied.

While charging the jury, the trial court included instructions on both sudden emergency and loss of consciousness. The jury instructions included the following:

…A person faced with a sudden emergency is required to act as a reasonably careful person placed in a similar position. A sudden emergency will not excuse the actions of a person whose own negligence created the emergency.

If you find there was a sudden emergency that was not caused by any fault of the person whose actions you are judging, you must consider this factor in determining and comparing fault.

A sudden loss of consciousness or physical incapacity experienced while driving which is not reasonably foreseeable is a defense to a negligent action. …To constitute a defense, the defendant must establish that the sudden loss of consciousness or physical capacity was not reasonably foreseeable to a prudent person…

After deliberation, the jury found defendant not at fault for the accident.

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Tennessee law requires that personal injury cases for minors be approved by the court.

Tenn. Code Ann. § 29-34-105 provides:

(a) Notwithstanding any other law or rule to the contrary, a judge or chancellor may sign an order approving any tort claim settlement involving a minor that is less than ten thousand dollars ($10,000) by relying on affidavits from the legal guardian. The court shall conduct a chambers hearing at which the minor and legal guardian are present to approve any tort claim settlement involving a minor that is ten thousand dollars ($10,000) or more.