In Omni Ins. Co. v. Nickoloff, No. E2015-01450-COA-R3-CV (Tenn. Ct. App. June 2, 2016), the Court of Appeals overturned a trial court’s finding of negligence when a vehicle struck a pedestrian walking on a sidewalk.  Specifically, it was asserted that plaintiff  was walking west on a sidewalk at 10:40 p.m., and defendant was driving west on the road beside the sidewalk. Defendant’s vehicle hit plaintiff, and plaintiff asserted that defendant was liable on the theories of negligence and negligence per se, “due to his violation of Tennessee Code Annotated 55-8-136, which provides in pertinent part that ‘every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway.’”

After a bench trial, the trial court found defendant liable. In its order, the trial court stated: “There was an automobile collision… Plaintiff’’s insured…was walking on the sidewalk. Defendant…acknowledged that he hit [plaintiff] with his vehicle.” Defendant appealed and submitted a statement of the evidence, which was “approved by the trial court as a true and accurate record of the proceedings” and received no objection by plaintiff. The statement of evidence provided only that:

  • Plaintiff was walking on the sidewalk;

A Tennessee truck crash case found its way to a jury trial, a plaintiff’s verdict, and a trip to the Tennessee Court of Appeals. In Bachar v. Partin, No. M2015-00724-COA-R3-CV (Tenn. Ct. App. May 27, 2016), the Court of Appeals affirmed a jury verdict finding defendant 60 percent liable for a car accident.

The underlying facts of the case were that defendant truck driver “failed to stop in obedience to a stop sign and drove his truck into the intersection, causing [plaintiff], who had the right-of-way, to swerve and collide with another vehicle.” Although plaintiff and defendant did not actually collide, plaintiff brought suit against defendant alleging that his negligence had caused the accident. After a jury trial, defendant was found to be 60 percent at fault, while plaintiff was held 40 percent liable, and damages were awarded accordingly. Defendant appealed this decision on three grounds: (1) that the evidence did not support the jury’s liability findings; (2) that the evidence did not support the jury’s award of past and future lost wages for plaintiff; and (3) that juror misconduct occurred.

First, the Court of Appeals affirmed the liability apportionment. The Court noted that the evidence showed that the police officer responding to the accident estimated plaintiff’s speed at 43 miles per hour, while the speed limit was 30 miles per hour. The evidence also showed, however, that plaintiff had the right-of-way and that defendant “did not stop or attempt to stop” before entering the intersection. The Court held that “[t]aking the strongest view of the evidence in support of the verdict and affording reasonable inferences to sustain it, the evidence support[ed]” the jury’s finding of fault.

In Dennis v. Donelson Corp. Centre I, LP, No. M2015-01878-COA-R3-CV (Tenn. Ct. App. May 13, 2016), the Court of Appeals affirmed summary judgment in a negligence case revolving around injuries plaintiff sustained when exiting an elevator. On appeal, the only relevant defendant was the elevator maintenance company, who provided maintenance to the elevator in question pursuant to a contract with the building owner.

According to plaintiff, she was riding the elevator and, when it stopped, it “did not stop level with the floor.” Plaintiff claimed that the uneven step caused her to fall while exiting the elevator, “resulting in injuries to her knee, ankle and leg.” Maintenance logs stated that the employee of defendant who was assigned to this building had completed routine maintenance on the elevator just two days before, finding no issues, and that no issues had been found on the elevator during the year preceding the accident. After the fall but on the same day, defendant’s employee and a state inspector went to the building to inspect the elevator. “During their inspection, they were unable to recreate the scenario where the elevator stopped three or four inches below the floor.” Defendant’s employee did find that the elevator had a leaking valve, which was replaced, but that was unrelated to the alleged issue that caused the fall.

After discovery, defendant maintenance company moved for summary judgment, which the trial court granted. Plaintiff appealed on two bases: 1) “that a reasonable juror could have concluded that [defendant] was negligent under the doctrine of res ipsa loquitur,” and 2) that plaintiff had “presented evidence creating a genuine issue of material fact as to a witness’s credibility.”

A recent health care liability case illustrates the importance of putting your best case forward the first time around and not depending on appeals or “do-overs” to save your claims.

In Shipley ex rel. Shipley v. Williams, No. M2014-02279-COA-R3-CV (Tenn. Ct. App. May 19, 2016), plaintiff brought suit in 2002 alleging that defendant doctor was negligent in failing to assess her condition, failing to provide proper care, failing to admit her to the hospital, and failing to properly follow-up. In 2006, the trial court granted summary judgment to defendant on the failure to admit claim, and after granting defendant’s motion to exclude plaintiff’s expert witnesses, the trial court also granted summary judgment on the remaining claims. The Court of Appeals reversed all of the summary judgment rulings, but the Supreme Court reinstated summary judgment as to the failure to admit claim, allowed the plaintiff’s experts to testify, and allowed the balance of the case to go to the jury. The case was remanded and tried, and the jury found for defendant doctor. Plaintiff appealed.

The first issue on appeal related to the summary judgment on the failure to admit claim. On remand, the trial court initially set aside the summary judgment, “applying the ‘substantially different evidence’ exception to the law of the case doctrine.” After more discovery, though, summary judgment was reinstated, and the Court of Appeals affirmed this decision. The Court noted that the law of the case doctrine means that “an appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal.” (internal citation omitted).

In an extremely short opinion in a recent premises liability case, the Court of Appeals overturned a trial court and ordered summary judgment be entered for defendant on remand due to a release agreement plaintiff had signed.

In Gibson v. Young Men’s Christian Association of Middle Tennessee, No. M2015-01465-COA-R9-CV (Tenn. Ct. App. May 16, 2016), plaintiff had joined her local YMCA. To become a member, plaintiff had signed a Membership Application, which stated:

In consideration of gaining membership and/or being allowed to participate in the activities and programs of the YMCA…, I do hereby waive, release, and forever discharge the YMCA…from any and all responsibility or liability for injuries or damages resulting from participation in such activities or programs or my use of such facilities, equipment or machinery, even if such damage or injury results from a negligent act or omission.

The crash of the driverless Tesla car has made big news and has helped to generate additional,  necessary discussion about the role such vehicles will play in our lives.

There is little doubt that autonomous vehicles will be a part of our streets and highways – the push is too broad and too strong to stop the effort. There is also little doubt that driverless vehicles will have a huge impact on our economy.  For example, what will happen to our 3.5Tesla-_Model-X-xlarge_trans++fpvSC7BqNnJWN23iofxb3-N6q_fd7OqvRI3e7BcHZf0 million truck drivers when driverless trucks are able to operate on our nation’s roadways?

But the crash of the Tesla car raises a potential liability issue that there has been little public discussion about:  how does a person who believes that he or she has been injured or killed by a software or hardware glitch in an autonomous or semi-autonomous vehicle get access to information to determine if his or her belief is true?

In Credential Leasing Corp. of Tenn., Inc. v. White, No. E2015-01129-COA-R3-CV (Tenn. Ct. App. May 17, 2016), plaintiff lender brought various claims against defendant lawyer, including claims for professional negligence and fraudulent misrepresentation, related to the drafting of a deed of trust. Defendant attorney prepared a 2010 deed of trust in favor of plaintiff, conveying title to a parcel of land owned in part by defendant’s brother. Defendant stated that he would do the title work, prepare the deed of trust, and issue title insurance for the property at issue, though he never actually issued any title insurance.

The property was actually owned by the brother and another man as tenants in common. In 2007 a deed of trust had been executed on the same property to secure a loan from another bank, and defendant attorney had notarized the signatures of the grantors (and correct property owners) on that deed. Despite the fact that the brother only owned a half interest in the property, the 2010 deed of trust did not mention the other owner’s interest. Instead, it listed the brother and the brother’s wife as grantors, even though the wife had no interest in the property. Further, while the warranty deed and previous deed of trust used a “lot and block” description of the property, the 2010 deed of trust described the property by metes and bounds.

In 2011, the brother declared bankruptcy. Plaintiff received a notice of the bankruptcy filing, which showed the other creditor having a first lien, which plaintiff was already aware of. Almost two years later, however, plaintiff learned that the property had been sold at foreclosure, and plaintiff had not received notice. Only after learning of this sale did plaintiff find out that the brother had only owned a one-half interest in the property, and that their deed of trust thus had not covered the entire property.

In Mooney v. Genuine Parts Co. d/b/a National Automotive Association, Inc., No., W2015-02080-COA-R3-CV (Tenn. Ct. App. May 11, 2016), the Tennessee Court of Appeals affirmed summary judgment for defendant retail store in a premises liability action.

Plaintiff had entered the automotive parts store to apply for a job. After being told the position was filled, she left through the same door she had previously entered and fell. Plaintiff filed a premises liability suit, claiming that the doorway constituted a dangerous condition. Plaintiff alleged that the concrete outside the store was 3.5 inches below the interior floor, that the drop-off is what caused her fall, and that the dangerous condition “could have been remedied by a ramp, contrasting floor material or paint, handrails, or warning signs.”

Defendant moved for summary judgment, claiming they “had no duty to warn [plaintiff] of the three-and-on-half-inch step-down at the doorway because it was not foreseeable that anyone would fall because of it.” In support of its motion, defendant pointed to evidence that no one had ever fallen during the 26 years the store manager had worked there, that plaintiff herself had traversed the doorway just a few minutes earlier, and that plaintiff had admitted that “she was not looking down at the step when she exited the door and fell.” In replying to this motion, plaintiff relied on her own deposition testimony, the store manager’s testimony that he had stumbled before going out the door, and a former employee’s testimony that he could see where the decline could cause someone to fall. The trial court granted defendant’s motion for summary judgment, and the Court of Appeals affirmed.

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A recent Court of Appeals case serves as a reminder of the difficulty of proving actual malice in a false light claim made by a public official.

In Eisenstein v. WTVF-TV, No. M2015-00422-COA-R3-CV (Tenn. Ct. App. May 3, 2016), plaintiff was a Davidson County General Sessions Judge suing a TV station and various reporters regarding a story aired in 2011. The story focused on whether plaintiff “hired an unlicensed individual to act as a psychologist for the drug court program.” The Court of Appeals opinion contained a transcript of the broadcast, which revolved around a Dr. Casey who was paid by the drug court and allegedly held out to some drug court defendants to be a psychologist, but who was not in fact licensed as a psychologist in Tennessee. The report included a statement that plaintiff judge “wanted to put Casey on staff using federal money, writing in this memo that Casey had proven himself an excellent psychologist.” The broadcast showed the reporter approaching plaintiff judge, and plaintiff not answering questions posed by the reporter.

Plaintiff argued that the “broadcast placed him in a false light by implying that he lied on a federal grant application and by indicating that he was uncooperative.” Because plaintiff was a public figure, he had to show actual malice to prove his false light claim, and defendants moved for summary judgment on the basis of plaintiff’s inability to make such a showing.

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In a 40-plus page opinion that reads like a prince-handing-out-gold email scam, the Tennessee Supreme Court affirmed a trial court’s judgment that a plaintiff had not proven intentional misrepresentation because his reliance on the statements made could not possibly have been reasonable.

In Estate of Lambert v. Fitzgerald, No. E2015-00905-COA-R3-CV (Tenn. Ct. App. April 28, 2016), plaintiff had known defendant attorney for over forty years. Defendant somehow became involved with an “investment” scheme wherein he was promised astronomical returns on his money. Defendant was giving large sums of cash to a “diplomat” in London, who had obtained possession of six crates containing a total of $150,000,000 in U.S. currency from a man in South Africa. The money, though, allegedly had to be washed and go through various other procedures to be released. Upon its release, defendant said he had been promised $25,000,000. At some point, defendant got plaintiff involved with the promise that plaintiff too would receive $25,000,000, and plaintiff began writing large checks to defendant when asked to do so for the investment. The head of this investment scheme, Brindley, kept giving reasons it failed to close when promised—an additional license was needed, the money had to be moved to a mint in Scotland, he had to get an anti-terrorism certificate from the government—and asking for more money to help accomplish the eventual release of the cash. All information plaintiff received about the investment came from defendant, and plaintiff only spoke to Brindley two times on the phone. Even after multiple promised payout dates fell through, plaintiff continued to give more money to the scheme. Plaintiff ultimately “invested” more than $500,000 in the scheme through defendant, and defendant alleged that he invested $517,000 of his own money as well.

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