Articles Posted in General Negligence Action

A recent Court of Appeals case reminds plaintiffs’ attorneys of the importance of diligently reading any answer filed and working quickly to remedy problems related to the proper party being named and/or service of process. In Urban v. Nichols, No. E2014-00907-COA-R3-CV (Tenn. Ct. App. Sept. 4, 2015), plaintiff filed a negligence claim after injuring her foot and heel while using a waterslide at Willow Brook Lodge. In her complaint, filed on July 11, 2012 (which was exactly one year to the date from her injury), plaintiff named Robin Nichols and Willow Brook Lodge as defendants. It was undisputed that the complaint was only served, however, by personal service to Robin Nichols’s son.

The named defendants filed an answer on August 27, 2012. Therein, they asserted that the Lodge was actually owned by Accommodations by Willow Brook Lodge, LLC and that Ms. Nichols was not an owner. Further, they plead “insufficiency of process and insufficiency of service of process.”

Plaintiff’s counsel sent a letter to counsel for defendants on November 7, 2012, requesting permission to amend the complaint. Defendants responded by letter one week later denying the request. Plaintiff’s counsel took no further action in the case until February 7, 2013, again sending a letter requesting to amend the complaint to defendants. Defendants’ attorney sent another denial on July 22, 2013. Finally, on August 21, 2013, plaintiffs filed a motion to amend with the trial court. In response, defendants filed a motion for summary judgment on the grounds that the “failure to correctly serve process on either Ms. Nichols or the Lodge required the dismissal of the action.” The trial court granted summary judgment to defendants, and the Court of Appeals affirmed.

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In a somewhat rare move, the Tennessee Court of Appeals recently overturned a trial court’s ruling for plaintiff in a negligence case. In Tenn. Farmers Mut. Ins. Co. a/s/o Couch v. Jackson Madison School System Bd. of Educ., No. W2014-02218-COA-R3-CV (Tenn. Ct. App. June 15, 2015), plaintiff was driving a crop sprayer on a narrow, rural, unlined road. Plaintiff saw a school bus turn onto the road traveling towards the crop sprayer, and both parties agreed that there was not room for both vehicles on the road. According to the trial testimony, the sprayer would have had time to stop but chose not to do so. Plaintiff testified that had he stopped, the accident probably would have been avoided. Instead, plaintiff moved the right tires of the sprayer off the road and, after clearing the bus, the shoulder gave way and the sprayer fell into a ditch, causing fairly significant property damage. Plaintiff sued the bus driver for negligence, alleging that there was more unpaved shoulder on the bus’s side of the road and that the bus driver did not take reasonable care to move his vehicle as far right as possible to avoid the accident.

The trial court ruled that defendant bus driver “was negligent in failing to take reasonable action to avoid an accident under the circumstances that existed at the time of the accident and that the [bus driver] could have foreseen an accident happening through the use of reasonable care.” The Court of Appeals, however, overturned this ruling.

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In Hayes v. Coopertown’s Mastersweep, Inc., No. W2014-00783-COA-R3-CV (Tenn. Ct. App. April 17, 2015), plaintiffs brought a negligence claim based on the alleged negligent inspection of their fireplace. Two issues were addressed on appeal—whether defendant owed a duty of care to plaintiffs and whether this case fell under the four-year statute of repose applicable to injuries to real property related to deficient design and construction.

In 2000, plaintiffs purchased a house built in 1964 that had a fireplace, which plaintiffs had remodeled by a third party. Part of this remodel included lowering the firebox to be flush with the floor. The remodeled fireplace did not work well, allowing smoke to escape into the den, the upper floors and the attic. Plaintiffs thus hired defendant to inspect the fireplace and determine what was causing the smoke issues. Plaintiffs did not tell defendant about the previous fireplace renovations or that the firebox had been lowered. Defendant performed the inspection requested, and part of the defendant’s work “went beyond the inspection that [plaintiffs] contracted for,” including inspecting beneath the fireplace from the crawlspace and drilling into the fireplace to determine whether any combustible material was coming into contact with the fireplace. Because of the design and construction of the fireplace, however, “there were areas underneath the fireplace that could not be seen or inspected” by defendant. Defendant made certain redesign recommendations based on his inspection, and plaintiffs hired defendant to perform the recommended work. Defendant completed this work on October 8, 2003. Subsequently, on January 17, 2005, plaintiffs’ home was damaged by fire when “wooden floor joists that had been in contact with the firebox ignited from exposure to heat generated by the fireplace,” a problem related to the first remodel done by the unnamed third party.

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Under what circumstances can a franchisor be held vicariously liable for torts that occur on the premises of a franchisee?

A relatively recent court opinion has an excellent discussion of the law in this area, addressing not only the law of the state where the cause of action arose (New Mexico) but also the law from around the nation.  In Estate of Anderson v. Denny’s, 2013 WL 6506319 (D.N.M. Nov. 13, 2013) the court held that a genuine issue of material fact existed on the issue of whether the franchisor was vicariously liable for the franchisee’s alleged negligence, turning on the issue of right of control.


The plaintiff in Akers v. McLemore Auction Co., LLC, No. M2012-02398-COA-R3-CV (Tenn. Ct. App. May 27, 2014) chose to hire an auction company to sell his real and personal property that the plaintiff valued at more than $350,000, but chose to go pro se in suing the auction company. That might explain why the appellate opinion needed ten pages to summarize – and affirm – the trial court’s Tenn. R. Civ. P. 12.02(6) dismissals on the plaintiff’s four claims against more than twenty defendants.

One potentially helpful nugget for other cases is the appellate court’s discussion of the dismissal of claims against an individual defendant affiliated with the auction company. The plaintiff alleged, in pertinent part, that the individual defendant was a “person” who called himself the auction company’s President, but who was really the sole member of the auction company’s LLC. The trial court dismissed the claims against the individual defendant under Rule 12.02(6), finding there were no facts to support the plaintiff’s allegation that the defendant “was acting outside his capacity as agent for [the auction company] at any time.”

The Court of Appeals concluded that the trial court erred on this point. A trial court is bound to review only the complaint for purposes of Rule 12.02(6), and nothing in the complaint alleged that the individual defendant was ever acting on behalf of the auction company. For this reason, he should not have been dismissed.

At trial, however, the same claims that the plaintiff made against the individual defendant – negligent and professional misrepresentation – were tried against the auction company, and resulted in a defense verdict. Since the trial court had concluded that any conduct by the individual defendant must be imputed to the auction company as his principal, that meant the plaintiff effectively lost on the proof anyway. Accordingly, the Court of Appeals affirmed the trial court in all respects.

I am not sure why the trial court would dismiss the individual defendant even if the individual was alleged to be acting in the course and scope of his agency relationship with the company. For tort claims like misrepresentation, a plaintiff may sue the principal, the agent, or both. An agent cannot evade personal financial responsibility for torts like misrepresentation merely because it was committed partly or fully for the benefit of the principal. The result in this case, though, is still the same – the misrepresentation claims were tried by the plaintiff and lost on the facts, and there’s no reason for a do-over.

A recent opinion of the Tennessee Court of Appeals in case reminds us that a company’s internal policies, while not dispositive, are relevant to the standard of care for its employees.

After a bench trial, the trial court found Defendant was not negligent, and the Court of Appeals reversed based on the testimony of Defendant’s employees.  Defendant provides door-to-door transportation services, with many of the passengers elderly or disabled. Defendant’s driver testified that he was aware of Defendant’s policies and procedures, particularly those requiring the driver to be aware of any walking surfaces that the passenger must travel upon, and those requiring the driver to keep a passenger within the driver’s line of vision in case the driver needs assistance. The driver also admitted that Defendant had a written policy requiring the driver to stay close to the passenger while walking in case the passenger needed assistance.

In this case, the driver testified that he noticed before picking up the passenger that there was frost on the ramp the passenger would use to exit her home. While the passenger was on the ramp, the driver turned back into the passenger’s home to get a bag for her. When he turned back, he saw that she was falling but she was six to eight feet away from him, which the driver admitted was not close enough to provide assistance. The Court of Appeals found this evidence preponderated against the trial court’s finding that the driver was not negligent.

The Court quoted its prior holding regarding the relevance of company policies to determining the duty owed by company employees:

Courts customarily define the scope of a duty or a particular standard of care by looking to the statutes, regulations, principles, and other precedents that make up the law. Dill v. Gamble Asphalt Materials, 594 S.W.2d 719, 721 (Tenn. Ct. App. 1979); Restatement (Second) of Torts § 285 (1964). However, they may also consider evidence that tends to establish a custom representing the common judgment concerning the risks of a particular situation and the precautions required to meet them. Restatement (Second) of Torts § 295A cmt. b (1964). Thus, company work rules, while not controlling, are admissible to demonstrate what the company’s employees should have done in a particular situation. 3 Fowler V. Harper, et al., The Law of Torts § 17.3 at 587 (2d ed. 1986); Fleming James, Jr. & David K. Sigerson, Particularizing Standards of Conduct in Negligence Trials, 5 Vand. L. Rev. 697, 712-13 (1952);  , 215 Conn. 377, 576 A.2d 474, 479 (1990).

White v. Metro. Gov’t of Nashville & Davidson Cty., 860 S.W.2d 49, 52 (Tenn. Ct. App. 1993).

The case is Wilson v. East Tennessee Human Resource Agency, Inc.,  No. E2010-0172-COA-R3-CV (Tenn. Ct. App. April 29, 2011).  Use this decision as a weapon not only to introduce those policies and procedures into evidence but also to be permitted to discover their existence.

The Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Tennessee Judiciary.   Over the next few days I will share some data from the Report.

We begin with medical malpractice cases.  In the fiscal year ending June 30, 2010, 429 medical malpractice cases were resolved by judgment, settlement or dismissal.  Only 324 new cases were filed.  

There were only 30 medical malpractice cases actually tried in state court in Tennessee during the fiscal year.  The total awards for the patient in those cases were $7,128,800.  Unfortunately, the Report does not indicate the number of cases won by the patient or by the health care provider.  Historically, that number is about 20% of all trials.

Here are the medical malpractice filings and dispositions for the larger counties"

County                              Filings                                 Dispositions

Davidson                            67                                           107

Shelby                                100                                          117

Knox                                     33                                           45

Hamilton                             14                                           25

Sullivan                                11                                           16

Madison                                 6                                            8

Washington                           9                                           10

Green                                      0                                             2

These numbers are exactly what we would expect given prior data after the adoption of the pre-suit notice and certificate of good faith statutes.  For example, in the fiscal year ending June 30, 2008, the last fiscal year before the reform act went into effect October 1, 2008, there were 537 cases filed.  The data once again demonstrates that there are an extremely few number of medical malpractices cases filed in Tennessee state courts and that the number is dropping.

If you had the feeling that the defense is pushing more cases to trial you are correct.  For example, in 2007-08 only 20 medical malpractice cases were tried in state court.

The data also confirms the complaints of the medical malpractice defense bar.  The number of cases being filed is down significantly and the number of pending cases is also declining (because dispositions exceed new filings).   This is one reason why we see defense lawyers working existing cases harder – they simply have less to do.  

Tomorrow I will file a post on tort cases in general.

What does tort law tell us about liability for injuries arising during sporting events and, in particular, contact sports?  The recent case of Feld v. Borkowski gives us the answer, at least from the standpoint of the Iowa Supreme Court.

Plaintiff and defendant were playing intramural softball .  Defendant hit the ball and let go of the bat at the same time.  The bat flew through the area, striking and injuring plaintiff (who was playing first base).  Plaintiff filed a negligence suit, and defendant sought dismissal of the suit arguing that softball was a contact sport and thus he could only be sued if his conduct was reckless.

The Iowa Supreme Court agreed, saying that 

[w]hile the duty to exercise reasonable care accompanies each individual in most all activities of life, some activities or circumstances have been excepted from the reasonable-care duty in favor of the imposition of a less stringent duty of care for participants in the activity to protect others from injury.  . . . One such activity that has been identified as an exception is contact sports. Prior to our decision in Thompson to follow the analytical framework of the Restatement (Third) of Torts for claims of negligence involving physical harm, we followed other states in excepting participants in contact sports from constraining their actions under the conventional duty to act as a reasonable person. See Leonard ex rel. Meyer v. Behrens, 601 N.W.2d 76, 81 (Iowa 1999).  In finding the game of paintball to be a contact sport in Leonard, we imposed a duty for participants in the sport to merely refrain from reckless or intentional conduct. Id. at 81 …  This standard recognizes that known risks associated with a contact sport are assumed by participants in the sport, and it is inapposite to the competitiveness of contact sports to impose a duty on participants to protect coparticipants from such known and accepted risks through the exercise of reasonable care.  See Leonard, 601 N.W.2d at 79 & n.3 (noting assumption of the risk in its primary sense is a defense to negligence). The standard also recognizes that athletes who step onto the playing field to compete are not completely free from legal responsibility for their conduct that creates a risk of injury, but are restrained under a substantially lower duty of care. See Nabozny v. Barnhill, 334 N.E.2d 258, 260-61 (Ill. App. Ct. 1975).   (Footnotes omitted).

A majority of the Iowa Court went on to conclude that   "softball for purposes of tort liability is a contact sport, and this conclusion is sufficient to transform liability for an injury sustained by a participant while engaged in the sport from a standard of negligence to a standard of recklessness. Clearly, batting is normal activity in the sport of softball and creates a risk of harm to participants in a number of ways, including a risk that the bat will be released during the swing in some way and will become an instrument of harm to participants in some way."   Thus, the Court held that the plaintiff had to demonstrate that defendant was reckless before liability could be imposed for the injuries.

Finally, the Court concluded that reasonable minds could differ on whether as to whether defendant’s swing and release of the bat was reckless, and thus reversed the earlier dismissal of the case.

The case is Feld v. Borkowski,  No. 07-133 (Iowa Oct. 22, 2010).

The Iowa Supreme Court has released an opinion in Thompson v. Kaczinski, 2009 WL 3786632 (Iowa 2009) and adopted the Restatement (Third) of Torts approach to both duty and causation. The case arose after  "a motorist lost control of his car on a rural gravel road and crashed upon encountering a trampoline that had been displaced by the wind from an adjoining yard to the surface of the road. He and his spouse sued the owners of the trampoline."  The lower court dismissed the case, holding that the defendants did not owe a duty to the plaintiffs and that causation did not exist as a matter of law.

“An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liab. for Physical Harm § 7(a), at 90 (Proposed Final Draft No. 1, 2005).  As the Court explained, "

[I]n most cases involving physical harm, courts “need not concern themselves with the existence or content of this ordinary duty,” but instead may proceed directly to the elements of liability set forth in section 6. Id. § 6 cmt. f, at 81. The general duty of reasonable care will apply in most cases, and thus courts “can rely directly on § 6 and need not refer to duty on a case-by-case basis.” Id. § 7 cmt. a, at 90.

The Court went on to explain that 

The drafters [of the Restatement] acknowledge that courts have frequently used foreseeability in no-duty determinations, but have now explicitly disapproved the practice in the Restatement (Third) and limited no-duty rulings to “articulated policy or principle in order to facilitate more transparent explanations of the reasons for a no-duty ruling and to protect the traditional function of the jury as factfinder.” Id. at 98–99. We find the drafters’ clarification of the duty analysis in the Restatement (Third) compelling, and we now, therefore, adopt it.

The Iowa Court then had to confront the issue of causation and once again turned to the Restatement (Third) to clarify its law on the issue.   In the Restatement, 

the drafters have opted to address factual cause and scope of liability (proximate cause) separately. Restatement (Third) ch. 6 Special Note on Proximate Cause, at 575. The assessment of scope of liability under the Restatement (Third) no longer includes a determination of whether the actor’s conduct was a substantial factor in causing the harm at issue, a question properly addressed under the factual cause rubric. See id. § 27 cmt. j, at 427–29. 

Most importantly, the drafters of the Restatement (Third) have clarified the essential role of policy considerations in the determination of the scope of liability. “An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” Id. § 29, at 575. This principle, referred to as the “risk standard,” is intended to prevent the unjustified imposition of liability by “confining liability’s scope to the reasons for holding the actor liable in the first place.” Id. § 29 cmt. d, at 579–80.

So the facts, did the landowners have a duty to the motorist?  Yes, under the Restatement test they had a duty to protect others from a risk of foreseeable harm.  Should the case have dismissed on the causation issue?

We conclude the question of whether a serious injury to a motorist was within the range of harms risked by disassembling the trampoline and leaving it untethered for a few weeks on the yard less than forty feet from the road is not so clear in this case as to justify the district court’s resolution of the issue as a matter of law at the summary judgment stage. A reasonable fact finder could determine [defendants] should have known high winds occasionally occur in Iowa in September and a strong gust of wind could displace the unsecured trampoline parts the short distance from the yard to the roadway and endanger motorists. Although they were in their home for several hours after the storm passed and approximately two-and-a-half hours after daybreak, Kaczinski and Lockwood did not discover their property on the nearby roadway, remove it, or warn approaching motorists of it. On this record, viewed in the light most favorable to the Thompsons, we conclude a reasonable fact finder could find the harm suffered by the Thompsons resulted from the risks that made the defendants’ conduct negligent.

I would urge my fellow tort law lovers to read this opinion.  Many of you who are also Tennesseans would note that the approach to duty adopted by the Iowa Supreme Court is one that Chief Justice Janice Holder has (unsuccessfully) urged on her colleagues at the Tennessee Supreme Court for many, many years. For but one example, read then-Justice Holder’s dissent  in Hale v. Ostrow, 166 S.W. 3rd 713 (Tenn. 2005).

Thanks to Torts Prof for bringing this opinion to my attention.