Articles Posted in Tort Law Tidbits

In 2011, the Tennessee legislature amended Tenn. Code. Ann. § 28-1-106 regarding tolling of statutes of limitations, replacing the language “of unsound mind” and “after the removal of such disability” with “adjudicated incompetent” and “after legal rights are restored.” The current version of the statute reads:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person’s representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

Recently, the Tennessee Court of Appeals analyzed the meaning of this language change, marking the first time a state court has interpreted the new terms.

 

In Johnson v. UHS of Lakeside, LLC, No. W2015-01022-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff filed an HCLA claim related to her late husband’s fall at defendant’s facility. It was uncontested that she gave pre-suit notice more than one year after the cause of action accrued, and that she filed the complaint more than one year and 120 days after the same. Defendant moved to dismiss the claim based on the statute of limitations. Plaintiff opposed the motion on the basis that her husband met the criteria of § 28-1-106 and that the statute of limitations was thus tolled. The trial court dismissed the action, and the Court of Appeals affirmed.

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A couple years ago I wrote this post about how to exercise preemptory challenges.  Last week, I got a call from a lawyer on this issue once again, and thought I should re-run it.

It is always a good idea to ask the trial judge at the pretrial conference or on the morning of trial how he or she handles peremptory challenges.  But recall that Rule 47 of  Tennessee Rules of Civil Procedure was amended in 2003 to address these issues.

Here is the entire  text of Rule 47:

 What is the name of the case that tells us that violation of a statute is negligence per se? Cook By and Through Uithoven v. Spinnaker’s of Rivergate, 878 S.W.2d 934, 937 (Tenn. 1994). What about the violation of a regulation? Long by Cotton v. Brookside Manor, 885 S.W.2d 70, 73-74 (Tenn. App. 1994). An ordinance? Kim v. Boucher, 55 S.W.2d 551 (Tenn. App. 2001).

(Originally appeared May 39, 2005).

Did you know that there was a statute that permits you to use demonstrative aids during closing argument (and probably during opening statement as well)?  Here is a  statute for your trial notebook.

T.C.A. Sec. 20-9-303 permits a lawyer "to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury…." The statute prohibits a lawyer from making an argument "in writing" that could not properly be made orally.

I believe that Powerpoint constitutes  a "similar device" in the 21st century.  Therefore, if you get an objection like "she can’t use that Powerpoint presentation – its not in evidence" your argument is "I am permitted to illustrate my contentions under Sec. 20-9-303."

T.C.A. Sec. 29-11-105 (b) says as follows:  "No evidence of a release or covenant not to sue received by another tort-feasor or payment therefor may be introduced by a defendant at the trial of an action by a claimant for injury or wrongful death, but may be introduced upon motion after judgment to reduce a judgment by the amount stipulated by the release or the covenant or by the amount of the consideration paid for it, whichever is greater."

Does this prohibit a defendant from introducing evidence of a settlement with another defendant but permit a plaintiff to do so (at plaintiff’s option)?  If so, can the plaintiff introduce the fact of settlement, the amount of the settlement, or both?

T.C.A. Sec. 28-1-115 gives a plaintiff who is bounced out of federal courts for lack of jurisdiction one year from the dismissal to re-file the action in state court.

Here is the exact text of the statute:  "Notwithstanding any applicable statute of limitation to the contrary, any party filing an action in a federal court that is subsequently dismissed for lack of jurisdiction shall have one (1) year from the date of such dismissal to timely file such action in an appropriate state court."

Did you know a litigant is limited to no more than two "new trials" in any action?

The relevant statute is T.C.A. Sec. 27-2-101.  Here it is:

"Not more than two (2) new trials shall be granted to the same party in an action at law, or upon the trial by jury of an issue of fact in equity."

Did you know that there is a cause of action for malicious harrassment in Tennessee? 

The malicious harassment statute, Tennessee Code Annotated, section 4-21-701, provides: "(a) There is hereby created a civil cause of action for malicious harassment. (b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney’s fees and costs, and punitive damages."  Tenn. Code Ann. § 4-21-701 (1998).

The elements of the tort created by this statute were outlined by the Tennessee Supreme Court in Washington v. Robertson County:

I got a call today from a lawyer who asked about the method by which peremptory challenges are exercised in state court. 

It is always a good idea to ask the trial judge at the pretrial conference or on the morning of trial how he or she handles peremptory challenges.  But recall that Rule 47 of  Tennessee Rules of Civil Procedure was amended in 2003 to address these issues.

Here is the entire  text of Rule 47: