Day on Torts

The Tennessee Court of Appeals has affirmed an en banc ruling of the Tennessee Claims Commission and ruled that the the State was liable for damages suffered by a college student as a result of being beaten after she left a parking garage on the University of Tennessee campus.

To reach that result, the Court first held that the McClung decision was applicable to the State of Tennessee.  The Court then examined the evidence and determined that the plaintiff met the burden of proving that "(1) that there was a negligently created or maintained dangerous condition on state controlled real property; (2) the risk was foreseeable; and (3) that notice was given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures."  Finally, the Court found that legal cause was present under the facts.

The decision is a nice reminder of what a plaintiff must prove to impose liability on a premises owner for failure to guard against criminal conduct by third persons.  Read the opinion here.

The Supreme Court of Florida recently issued an interesting opinion. In Williams v. Davis,  No. SC05-1817 ( Fl. S.Ct.  Nov. 21, 2007) the Court initially notes that "all property owners owe a duty ... not to permit the growth of foliage on their property to extend outside the bounds of the property and into the public right-of-way so as to interfere with a motorist’s ability to safely travel on the adjacent roadway."  But this case was not about foliage that extended beyond the property line but rather foliage on the property that obstructed the view of a motorist.

Here is more:  "courts must remain alert to the changes in our society that may give rise to the recognition of a duty even where none existed before. Absolute rules, while predictable in the outcomes they produce, may not be suitable to protect societal interests. This is especially true as we attempt to cope with the carnage on our highways. While a strict rule of immunity from liability for harms caused by conditions on land adjacent to roadways may have once been a practical necessity for an agrarian society and economy, it is markedly less so in Florida’s modern society and landscape. See Keeton et. al., supra, § 57, at 391. In the modern landscape it has become an inescapable fact that people rely heavily, if not exclusively, on the automobile for transportation both in rural and urban communities.  We simply cannot ignore the fact that every year highway accidents kill thousands and injure millions of our citizens, while inflicting economic costs in the billions of dollars. Under these circumstances, the dominance of the automobile and the dangers incident thereto have become a modern fact of life  that make it more likely that a dangerous condition on private property at a highway intersection may cause harm to those on adjacent roadways."

Nevertheless, the Court went on to say that "we can see little basis for imposing liability on the owner of a wooded residential lot for passively permitting the property to remain in its natural condition so long as the growth does not extend beyond the property’s boundaries. Unlike the situation in Whitt, wherein we concluded that it should be foreseeable to the operator of a commercial service station that obstructions to the vision of an exiting motorist could constitute a danger to adjacent pedestrians, we find it unlikely that a residential landowner would foresee that adjacent motorists would be endangered by the mere presence of foliage on the property."

Want to read more?  Gohere.

Pharmacist persuades a female customer to stay over night at his house.  When his wife is gone.  Girlfriend is unaware he has a wife and, indeed, is told to the contrary. Wife appears at an inopportune time.  Fight ensues.  Girlfriend gets hurt.  Lawsuit follows.  Girlfriend seeks to hold wife and husband responsible for her injuries.

Husband:  "I owe no duty to that woman."   Dinner?  "Yes."  Flowers?  "Yes."  Warm B & B by candlelight while nestled in a king-size bed playfully wrapped  in a leopard skin comforter with Rod Stewart's "Great American Songbook Collection" playing softly in the background?  "Yes."  Duty?  "Now just a damn minute."

The trial judge disagreed and a jury popped him with a percentage of fault for the injuries for her significant injuries.  Judge Lee wrote the opinion for our Court of Appeals and affirmed.  She quickly found a duty existed, and said this on the issue of breach of duty:

"[W]e find that the record contains material evidence from which the jury could have reasonably concluded that Mr. Bell breached the duty of care he owed to Ms. Carter in that while she was in a physically and mentally vulnerable condition he deceived her into entering into a relationship that she would have otherwise rejected and thereby eventually lured her into his house and exposed her to a likelihood of harm at the hands of his wife, whom he knew to have a propensity for violence."

Judge Lee did not have as much fun with this opinion as she could have as she could have.  These facts could readily result in an opinion that could give rise to disciplinary action against the entire panel.  Don't get me wrong - she did the right thing.  But I wonder if , deep down inside, she was tempted to grab a glass of Cabernet and let the words flow.

Judge Lee did include one particularly memorable phrase in this opinion. The plaintiff (Ms. Carter) was picking up a prescription for anxiety and pain from the local Rite Aid when she meet the male defendant pharmacist, Mr. Bell.  Mr. Bell  then used what apparently is a tried and true method for picking up women in New Tazwell : he "engaged her in friendly conversation and offered her cigarettes."

And I thought that only worked in the automotive aisle at Wal-Mart. 

Want to read the entire opinion?  Go here to enjoy Carter v. Bell, No. E2006-02671-COA-R3-CV  (August 15, 2007).

i wrote several weeks ago about the lawsuit Robert Bork filed against the Yale Club. I mentioned that the some issues I had with the suit, including the request for punitive damages.

Eric Turkewitz wrote a much better post than I.  As a New York personal injury lawyer, he wrote what was wrong with the complaint filed on behalf of Judge Bork. 

The original complaint has been amended, and it still does not pass muster in Eric's mind.  Here is his latest post that explains what was wrong with the original complaint and what the amended complaint missed.

The wonderful thing about this post is not just that it has a little fun at the expense of Judge Bork's lawyers.  It points out how good lawyers think when they draft a complaint.  It can be a "short, plain statement upon which relief may be granted."  It can also be be an instrument to establish facts and identify issues on which discovery is necessary.

Good job, Eric.

The Tennessee General Assembly has passed a new dog bite liability statute, known as the "“Dianna Acklen Act of 2007”.

Section 44-8-413. (a) (1) The owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another.

(2) Such a person may be held liable regardless of whether the dog has shown any dangerous propensities or whether the dog’s owner knew or should have known of the dog’s
dangerous propensities.

(b) The provisions of subsection (a) shall not be construed to impose liability upon the owner of the dog if:

(1) The dog is a police or military dog, the injury occurred during the course of the dog’s official duties and the person injured was a party to, a participant in or suspected of being a party to or participant in the act or conduct that prompted the police or military to utilize the services of the dog;

(2) The injured person was trespassing upon the private, nonresidential property of the dog’s owner;

(3) The injury occurred while the dog was protecting the dog’s owner or other innocent party from attack by the injured person or a dog owned by the injured person;

(4) The injury occurred while the dog was securely confined in a kennel, crate or other enclosure; or

(5) The injury occurred as a result of the injured person enticing, disturbing, alarming, harassing, or otherwise provoking the dog.

(c) (1) If a dog causes damage to a person while the person is on residential, farm or other noncommercial property, and the dog’s owner is the owner of the property, or is on such property by
permission of the owner or as a lawful tenant or lessee, in any civil action based upon such damages brought against the owner of the dog, the claimant shall be required to establish that the dog’s owner knew or should have known of the dog’s dangerous propensities.

(2) The element of proof required by subsection (1) shall be in addition to any other elements the claimant may be required to prove in order to establish a claim under the prevailing Tennessee law of premises liability or comparative fault.

(d) The statute of limitations for an action brought pursuant to this section shall be the same as provided in § 28-3-104, for personal injury actions.

(e) As used in this section: (1) “Owner” means a person who, at the time of the damage caused to another, regularly harbors, keeps or exercises control over the dog, but does not include a person who, at the time of the damage, is temporarily harboring, keeping or exercising control over the dog.

(2) “Running at large” means a dog goes uncontrolled by the dog’s owner upon the premises of another without the consent of the owner of such premises, or other person authorized to give
consent, or goes uncontrolled by the owner upon a highway, public road, street or any other place open to the public generally.

The legislation, known as Public Chapter 276, goes into effect July 1, 2007.

Dianna Acklen was killed by two dogs in May of 2006.  Read more here.

In Lane v. Atchison Heritage Conference Center, Inc., No. 94634 (March 16, 2007),  the Kansas Supreme Court held that "mmunity from liability under the recreational use exception to the [Kansas Tort Claims Act] does not depend upon the "primary use" of the property but rather depends on the character of the property in question."  Therefore, the Court ruled that "the recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o), applies when property is "intended or permitted" to be used for recreational purposes. The correct test to be applied under K.S.A. 2006 Supp. 75-6104(o) is whether the property has been used for recreational purposes in the past or whether recreation has been encouraged."

The Court then applied the statute to bar and slip-and-fall claim against the convention center which had hosted dances, card tournements, sewing demonstrations, local Bar meetings, etc.  The plaintiff in the case was injured at a New Year's Eve Party.

Read the decision here.

Fortunately, our recreational use statute is not as broad as Kansas' statute governing recreational uses on public property.  Here is our statute, which is applicable to public and private property.

The Tennessee Supreme Court has issued an opinion in Bennett v. Trevacca Nazarene University.

The summary:

"We accepted this appeal of a premises liability case to determine whether the “independent contractor rule” adopted in Blair v. Campbell, 924 S.W.2d 75 (Tenn. 1996), relieves a premises owner from liability when a premises owner provides an independent contractor inaccurate information germane to the contractor’s work. We hold that a property owner has a duty of reasonable care to provide accurate information to an independent contractor if the owner provides specific information germane to the repair after engaging the contractor. Because material facts remain in dispute between the parties in this case about what information the premises owner provided, the trial court erred when it granted summary judgment to the defendant. We affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion."

The opinion goes off on voluntary assumption of duty and Section 552 of the Restatement.  A sample: "Although the Court of Appeals fashioned a new “voluntary speech rule” to cover the facts of this case, we rely on two well-established principles of Tennessee tort law, the voluntary assumption of a duty and negligent misrepresentation, to impose a duty of reasonable care on a premises owner to provide accurate information to an independent contractor if the owner provides specific information germane to the repair after engaging the contractor."

Read the opinion here.

The Sixth Circuit Court of Appeals has affirmed a verdict in a case where a bus driver was attacked by a knife-wielding passenger, resulting a bus crash that resulted in several injuries and the death of the bus driver.  A trial resulted in a verdict for the plaintiff passenger.

First, the defendant challenged the admissibility of plaintiff's experts; the Court of Appeals found no error in permitting the experts to testify.

Second, the defendant argued that prior incidents should not have been admitted into evidence.  This is the Court's ruling on this point:

"In the case at bar, Plaintiff sought to introduce evidence of prior incidents on Defendant’s buses to show Defendant had been on notice of incidents likely to lead to the kind of injury suffered by Plaintiff. Plaintiff suffered injury when Defendant’s driver lost control of the bus after being attacked by another passenger on the bus, and after that passenger attempted to take control of the wheel. The prior incidents admitted by the district court were substantially similar to the October 3, 2001 incident because they involved either passenger interference with the bus driver, or a passenger’s attempt to take control of the bus’s steering wheel or brakes. Those incidents therefore occurred under “similar circumstances” or “share the same cause” as the October 3, 2001 incident."

There are several other points raised in the opinion, but these are the most important ones.

The case is Surles v. Greyhound Lines, Inc.,  Nos. 05-6713/6743 (6th Cir.  January 18, 2007).  Read it here.

The Oregon Supreme Court has ruled that  a state recreational use statute does not bar a claim by a plaintiff who was injured while crossing the defendant's land after engaging in recreational activity on an adjacent property.

The facts:  "Plaintiffs and their families drove on Highway 6 to a paved turnout along the highway near the "Fisherman's Bridge" area of the Wilson River. Plaintiffs parked their cars in the turnout area and walked along an asphalt path that is parallel to the roadway and between the road's guardrail and a chain link fence. On the other side of the fence is a steep slope. The asphalt path and the underlying land is owned by defendant, the State of Oregon Department of Transportation. Plaintiffs and their families used the path to gain access to a footbridge that crosses the river to a riverside beach area owned by Willamette Industries and Kenneth Fan Rad. Willamette and Rad had opened the beach area to the public for recreational purposes. After swimming and relaxing at the beach area, plaintiffs re-crossed the footbridge and used the path owned by defendant to return to their cars. While walking on that path, the asphalt under plaintiffs' feet crumbled and plaintiffs slid under the fence and down the steep slope approximately 40 feet, sustaining injuries."

An Oregon statute provides that, subject to several exceptions, "an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, woodcutting or the harvest of special forest products. ..."

The Oregon Supreme Court reversed a dismissal of the case and said as follows:

"We therefore disagree with defendant and the Court of Appeals that "recreational purposes" includes crossing one land parcel to gain access to another land parcel on which one will engage in a recreational activity such as swimming. The definition in Webster's of "purpose" as an "object" or "aim" is one common meaning of the word, but that meaning does not answer the dispositive question in this case -- it simply removes it one step. Although it is apparent that plaintiffs' ultimate "aim" or "object" in walking on the path was to swim -- a recreational activity listed in ORS 105.672(5) -- that conclusion only leads to a further question, "What was plaintiffs' purpose, aim, or object in entering defendant's land, which was not where the recreation was to take place?" Based on our analysis of the statute and the summary judgment record, we agree with plaintiffs that the "purpose" of plaintiffs' crossing of defendant's land was to travel to the land on which plaintiffs would engage in recreation. The activity of crossing a parcel of land, by itself, is not a recreational purpose. For that reason, we hold that ORS 105.682 does not grant immunity to defendant. "

The case is Liberty v. State,  SC S53232 (Or. S. C. November 24, 2006).  Read it  here.

Tennessee's recreational use statute may be found at T.C.A. Sec. 70-7-101 et seq.  The Court of Appeals ruled a little over one year ago that the statute barred a claim from someone who was injured while walking on State of Tennessee land on the way to a recreational event on that land.  Matthews v. State,  2005 WL 3479318 (Tenn. Ct. App. Dec. 19, 2005). 

The South Carolina Supreme Court has ruled that a spectator at a hockey game may not sue when he is hit in the face by a puck, and cited Tennessee law in reaching its conclusion.

The South Carolina Court said: "Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a particular activity.” Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 81, 508 S.E.2d 565, 570 (1998) (emphasis in original).[1] The Davenport Court further explained the doctrine as follows:

[Perez v. McConkey, 872 S.W.2d 897, 902 (Tenn. 1994)].

The Court went on to say that "[u]nder the doctrine of implied primary assumption of risk, Respondents’ duty of care did not encompass the risk involved. The risk of a hockey spectator being struck by a flying puck is inherent to the game of hockey and is also a common, expected, and frequent risk of hockey."  The case was dismissed.

The case is Hurst v. East Coast Hockey League, Inc., Opinion No. 26222 (S.C. S. Ct. Nov. 13, 2006).  You can read the opinion here.

Did Burger King have a duty to design its stand-alone restaurant in such a way to protect its in-house dining customers from being struck by a car that came through the building's wall?

The Illinois Supreme Court  addressed this problem in the case of Marshall v. Burger King Corporation,  Docket No. 100372, ( Ill. S.Ct. June 22, 2006). The Court started its analysis this way:

"The touchstone of this court's duty analysis is to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.  This court often discusses the policy considerations that inform this inquiry in terms of four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. " [Citations omitted.]

The Court examined those factors and concluded that "plaintiff's complaint alleges facts sufficient to establish that defendants owed a duty of care to the decedent."  The Court explained that "[t]he complaint alleges that while the decedent was a customer at a restaurant owned and operated by defendants, he was injured by the negligent act of a third person-namely, Fritz's act of driving her car into the restaurant. Defendants' business, a restaurant, is undoubtedly of such a nature that it places defendants in a special relationship with their customers, as it is an establishment open to the general public for business purposes. In addition, the duty of care that arises from the business invitor-invitee relationship encompasses the type of risk-i.e., the negligent act of a third person-that led to the decedent's injuries."  [Citation omitted.] 

The Court rejected the defendant's attempt to create an exception to the general rule and in doing so clearly stated something that is all too frequently missing from discussions of the law of duty in many opinions:

 "[T]he extensive costs to businesses and to the public that defendants claim will arise by not creating an exemption from the applicable duty of care are speculative at best. Defendants argue that businesses will incur an immense financial burden if required to protect their invitees from out-of-control automobiles and that the protective measures businesses take will make buildings everywhere less aesthetically pleasing. These arguments are based on mistaken assumptions about the nature of a duty of care. Recognizing that the duty of reasonable care that businesses owe to their invitees applies to cases where invitees are injured by out-of-control automobiles is not the same as concluding the duty has been breached because a business failed to take a certain level of precaution. Nor is it the same as concluding that the breach was the proximate cause of an invitee's injuries. In short, merely concluding that the duty applies does not constitute an automatic, broad-based declaration of negligence liability.

Further, to the extent defendants suggest we could create a rule of law narrower than the exemption discussed above to absolve them of liability, they are actually requesting that we determine, as a matter of law, that they did not breach their duty of care. It is inadvisable for courts to conflate the concepts of duty and breach in this manner. Courts could, after all, 'state an infinite number of duties if they spoke in highly particular terms,' and while particularized statements of duty may be comprehensible, 'they use the term duty to state conclusions about the facts of particular cases, not as a general standard.' 1 D. Dobbs, Torts §226, at 577 (2001); see also 54 Vand. L. Rev. at 712-17 (discussing problems associated with using the duty element of negligence to render decisions that no breach occurred as a matter of law). Thus, the issue in this case is not whether defendants had a duty to install protective poles, or a duty to prevent a car from entering the restaurant, or some such other fact-specific formulation. Because of the special relationship between defendants and the decedent, they owed the decedent a duty of reasonable care. The issue is whether, in light of the particular circumstances of this case, defendants breached that duty. That question cannot be answered at this stage of the proceedings."

Read the entire opinion (and the dissent) here.

I suggest that the method of resolution of this case is similar to that which Tennessee Supreme Court Justice Janice Holder would use.  Unfortunately, she has historically offered her opinion of duty analysis in dissenting opinions.

The Massachusetts Supreme Judicial Court has ruled that a homeowner "owed a duty of reasonable care to the plaintiff relative to the storage of firearms kept in her home, to which a mentally unstable and violent person was given unsupervised access."  Accordindly, the Court reversed a grant of summary judgment in favor of the homeowner and remanded the case for trial.

The opinion has a fascinating discussion about the law of duty.

The Court said that  "there is a significant social benefit to be realized by recognizing a duty of the person in control of the premises to exercise due care with regard to the storage of guns on the premises, particularly with respect to those who have been granted regular access to it."  The Court also stated that " [a]t the very least, Kask should have foreseen that Jason [the shooter]-- whom she knew had a history of violence, had recent problems with the law, and had been under psychiatric observation -- might use his unsupervised access to the house to take a weapon from the basement gun cabinet, and subsequently use this weapon in the commission of a violent crime."

The case is Jupin v. Kask, SJC-09538 (Mass. S.J.Ct. June 30, 2006).  Read the opinion here.

The Court rejected that arguments that the law of strict liability or public nuisance was applicable to the case.

Here is the latest premises case involving freshly fallen snow.

In Clifford v. Crye-Lieke Commercial, Inc., No. M2005-00376-COA-R3-CV (Tenn. App. M.S. July 11, 2006), Judge Koch and his colleagues affirmed a grant of summary judgment in favor of the defendant in a slip and fall case involving freshly fallen snow.

The holding:

"In light of the nature of the snowstorm in this case, we have concluded that it was reasonably  foreseeable that most persons would avoid venturing out to conduct routine business transactions.   Thus, it would have been reasonable for Crye-Leike to assume that its tenants’ customers would have stayed at home and avoided unnecessary travel during the snowstorm. Therefore, Crye-Leike did not act unreasonably when it decided not to begin its efforts to remove the accumulated snow or to survey all of the properties it owned or managed to determine whether the snowstorm had created  conditions that would be abnormally dangerous to the public. The difficulty and expense of these  remedial measures outweighed the possibility that a customer, like Mr. Clifford, who decided to  brave the winter weather might injure himself by slipping on the side of a wheelchair ramp concealed under the fallen snow. Accordingly, under the facts of this case, the trial court correctly concluded  that Crye-Leike did not have a duty to warn persons doing business at the State Farm office of the  presence of the wheelchair ramp that was concealed by the snow."

Read this opinion before you take one of these cases.  If you accept representation in a slip and fall case that arose during a snow or ice storm please call your trust officer and make sure that you can receive an extraordinary distribution from grandma's trust - you are going to need the money after you lose.  If you are not a beneficiary of a trust I suggest you politely advise the client to seek help from someone else.

Here is a great opinion out of California that does a nice job of handling the "causation" issue in a case against a security guard company that is alleged to have failed to provide proper protection to a c-store employee.

The case is Mukthar v. Latin American Security Company, B183968 (Cal App. 2nd Div. 5/8/06).

An excerpt: "We disagree with the trial court that it is conjectural whether a "security guard could have prevented the attack on the Plaintiff." The issue is whether it is a question of fact whether the woman would have struck Mukthar in the face, if an armed, uniformed security guard, equipped with a baton and handcuffs, would have stood next to Mukthar. (There is no dispute about the fact that the guard's station was at the door, where Mukthar was standing when he was struck.) We think the inferences are not evenly balanced on this issue. It is more likely than not that the woman would not have hit Mukthar in the face in the close proximity of an armed guard who had the ready means at hand to respond physically to violence. Be that as it may, it is not for us to decide this question of fact, which is consigned to the trier of fact."

Thanks to Shaun Martin at California Appellate Report.

You have undoubtedly heard about the claim against a Benihana restaurant where a man allegedly died because he was hit in the face by a shrimp. The jury did not hold the restaurant liable.

These were the facts according to the article at www.law.com: "On Jan. 27, 2001, Mr. Colaitis, his wife Jacqueline and his two sons and others went to the Munsey Park location of the popular eatery to celebrate one of the boy's birthdays. According to testimony given by Ms. Colaitis, the sons, Christos and John Alexander, and at least two other members of the dinner party had been struck and burned by pieces of food tossed by the unidentified chef. After the second burning, Mr. Colaitis asked the chef to stop. Instead, the chef allegedly flung one more piece of shrimp at Mr. Colaitis' head. Jerking away from it, he wrenched two vertebrae in his neck. He had the first operation six months later." Mr. Colaitis later died, allegedly from complications of the neck injury.

The only thing my experience tells me about hibachi-style restaurants is that they never have a table until you have had at least one drink. Then, when you walk behind the curtain, there are lots of empty tables.

When a employee is working on the property of another and is injured there is always a fight over whether the employee can sue the property owner who hired the injured person's employer to perform the work.

Here is a case out of California that the issue this way: "when, if ever, is a landowner that hires an independent contractor liable to an employee of that contractor who is injured as the result of hazardous conditions on the landowner's premises? Specifically, in this case we must decide whether a carpenter employed by an independent contractor that installed scaffolding for workers who replaced asbestos insulation in an oil refinery facility
may sue the refinery owners for injuries caused by exposure to asbestos, when it is claimed that only the refinery owner knew the carpenter was being exposed to a hazardous substance."

The 33-page opinion gave rise to this result: "a landowner that hires an independent contractor may be liable to the contractor's employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting
hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition." [Footnote omitted.]

Read it all here.

Thanks to Safetylex for informing me about this opinion.

The Vioxx litigation is heating up in a public way again.

There is a trial in state court in Texas involving the death of a 71 year old man - he allegedly took 25 mg of Vioxx daily for seven days sometime in the last 30 days before he had an MI. The trial starts January 24

The first federal MDL trial that was mis-tried in Houston will be retried in New Orleans on February 6.

Read more here.

"If you have to go to the bathroom, you have to go, water on the floor or not." That comes to us from Judge Susano, writing a concurring opinion in a new slip and fall case out of East Tennessee.

The incarcerated plaintiff got up at 1:00 A.M. to use the bathroom, slipped and fell and was seriously injured. He alleged that he fell because of water that was leaking into and accumulating on the floor in the room he was confined. There is no doubt: both the Defendant and the Plaintiff knew the water was there. The trial judge split the fault 50-50, but the Court of Appeals reversed, holding that the County was 100% at fault. The Plaintiff knew about the water but, in the words of Judge Lee the plaintiff "had little, if any, choice in encountering the risk of walking on a wet floor, a dangerous condition caused by the action of the Defendants. Obviously, [Plaintiff] had no choice but to remain in his cell and could not
voluntarily leave the premises." Read Judge Lee's majority opinion here.

Judge Franks dissented, holding that the evidence supported a 50% fault allocation on an assumption of risk analysis.

There is more of a factual dispute than set forth above and the majority opinion and the dissenting opinion disagree as to the significance of the dispute. Suffice it to say that this opinion is worthy of note because it is one of the few opinions where (a) a trial judge is reversed on a fault allocation and (b) a person who knowingly encountered a hazard is found to be fault-free.

Then again - and this is the point of Judge Lee and Judge Susano - when you are in jail it is not like you are in the position of using a different restroom or insisting that the floor kept safe.

The New Jersey Supreme Court has held that a plaintiff is entitled to a res ipsa instruction in an case in which an automatic door unexpectantly closed and caused injury. Because of that determination, the plaintiff was entitled to get by a summary judgment motion and have a jury decide the case.

More precisely, the Court put the issue this way: "whether the doctrine of res ipsa loquitur permits a jury to infer, based on common knowledge, that a supermarket's automatic doors ordinarily do not malfunction and close on a customer unless negligently maintained by the store owner, or whether the res ipsa inference is preconditioned on expert testimony first explaining the door's mechanics."

The case arose from a malpractice action against an attorney who filed a premises suit on behalf of the plaintiff but allowed the case to be dismissed because of a failure to respond to discovery requests. When the plaintiff discovered the dismissal, she sued her attorney.

The attorney argued that plaintiff could not prove the automatic door that closed on her unexpectantly was defective. In other words, the defendant maintained that plaintiff could not prove "the case within the case."

The Court said that "[e]quitable principles suggest that a business that invites a plaintiff onto its property for financial gain and that has exclusive control of an automatic door and superior knowledge about its maintenance should give an account of what went wrong. An automatic door may be a sophisticated piece of machinery, but it probably does not close on an innocent patron unless the premises' owner negligently maintained it. That conclusion can be reached without resort to expert testimony. If someone other than the premises' owner is at fault, the owner is in the best position to demonstrate that fact."

On the issue of whether the plaintiffs had to call an expert to be entitled to proceed on a res ipsa theory. The Court held that an expert was unnecessary. "An automatic door may be a highly sophisticated piece of machinery, but it probably does not close on an innocent patron causing injury unless the premises' owner negligently maintained it. That conclusion can be reached based on common knowledge without resort to expert testimony. A jury does not need an expert to tell it what it already knows. If the premises' owner, who has exclusive control over the automatic door, has proof that he is not to blame and that another is at fault, he must come forward to rebut the inference. For example, the owner is in the better position to say whether the malfunction was the result of improper inspection or a product defect for which others should be answerable." [Emphasis supplied.] The Court when on to say that "[o]nly when the res ipsa inference falls outside of the common knowledge of the factfinder and depends on scientific, technical, or other specialized knowledge is expert testimony required."

This decision is a great read. Click here to read it in its entirety.

There has been a lot of talk about the decision of the Tennessee Supreme Court in the case of West v. East Tennessee Pioneer Oil Co.; even the Tennessesan has weighed in with an editorial.

The Court held that convenience store employees owe a duty of reasonable care to persons on the roadways when the employees sell gasoline to an obviously intoxicated person and / or assist the driver in pummping gas into his vehicle.

An employee of a c-store refused to sell Tarver beer because he was too intoxicated. Then, some level of physical assistance was given to Tarver to purchase $3.00 worth of gasoline for his vehicle. Tarver left the seen, drove 2.8 miles, and hit the plaintiffs' vehicle head on, causing both plaintiffs' serious injuries.

Plaintiff's expert testified that, without the $3.00 worth of fuel purchased at the defendant's store, Tarver's vehicle would have run out of gas before coming into contact with the Plaintiffs.

The Tennessee Supreme Court held that there is a jury issue on the issue of negligence and negligent entrustment. Drunk drivers kill and injure, and the Court held that if the clerk knew (or reasonably should have known) the driver was intoxicated a jury could hold the defendant liable.

This decision makes perfect sense to me. We live in a world with other people. We know the harm that drunk drivers can cause? Why in heaven's name would you sell gas to someone who was too intoxicated to buy beer?

This fact situation is a once-in-a-million year occurrence. The odds of cause in fact being present are less. But that does not make this opinion wrong. Indeed, it shows the beauty of the flexability of the common law.

This opinion by Judge Koch does a great job summarizing the "slip and fall" law as it exists in Tennessee. This decision does not include a discussion of the so-called "method of operation" theory; that particular topic is addressed in a recent decision of the Tennessee Supreme Court.

If you read these two opinions you know what you need to know about this area of the law.

There is a change coming in fire safety codes - sprinkler systems will now be required in nursing homes, certain nightclubs and 1-2 family dwellings. The changes were adopted by the National Fire Protection Association and go into effect August 18, 2005. You can read about the changes in this article.

Here is the press release, with links to the changes themselves, from the NFPA.

Subject to several exceptions, Rule 407 prohibits the introduction into evidence of subsequent remedial measures. The Third Circuit Court of Appeals has just joined several other circuits in holding that the exclusionary rule does not apply when the remedial measures are made by a third party.

Judge Smith wrote that "The rule recognizes that manufacturers will be discouraged from improving the safety of their products if such changes can be introduced as evidence that their previous designs were defective." He went on to say that "this policy is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit." Judge Smith explained that every federal circuit to address the issue -- the 1st, 4th, 5th, 7th, 9th and 10th -- has likewise concluded that Rule 407 does not apply to subsequent remedial measures taken by a nonparty.

The Tennessee Supreme Court has released another important tort opinion, Biscan v. Brown.

This opinion examined several important questions, including "whether an adult who hosts a party for minors and knows in advance that alcohol will be consumed has or may voluntarily assume a duty of care towards the minor guests." The Court held that the defendant adult host had such a duty of care even though he did not furnish any alcohol.

The Court also held that the "trial court did not err in excluding evidence regarding the minor plaintiff's prior alcohol-related offenses and her prior experience with alcohol and that the trial court did not err in determining that the plaintiff's sister was not at fault as a matter of law pursuant to Tennessee's statutory shield for furnishers of alcoholic beverages."

In Blair v. West Towne Mall, 130 S.W.3d 761 (Tenn. 2004), the Tennessee Supreme Court held that plaintiff may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence. This decision is an express adoption of what used to be called the "method of operation theory" of proving constructive notice. The owner, a third person, or nature may cause the condition. You may read the text of the opinion by clicking here.