Day on Torts

August 8, 2022

Nursing home arbitration agreement ruled unenforceable.

In a recent HCLA case, the Court of Appeals affirmed the trial court’s denial of defendant’s motion to compel arbitration, agreeing that the arbitration agreement was an unenforceable contract of adhesion.

In Stancil v. Dominion Crossville, LLC, No. E2021-01378-COA-R3-CV (Tenn. Ct. App. July 29, 2022), plaintiff filed an HCLA claim on behalf of her mother (who died while this litigation was pending) based on the care she received at defendant nursing home. At the time of the mother’s admission to the nursing home, she had dementia, so plaintiff signed the admission documents on her behalf as her durable general power of attorney and durable power of attorney for health care.

After plaintiff filed this suit, defendant filed a motion to compel arbitration based on an arbitration provision in the admission contract. Considering the evidence presented, the trial court denied the motion, and the Court of Appeals affirmed this denial.

August 2, 2022

Conversion claim was time-barred due to plaintiffs’ constructive notice of claim.

by The Law Offices of John Day, P.C.

Where plaintiffs could have discovered in October 2009 that funds had been transferred out of an account payable to them upon decedent’s death and into an account payable to defendant, the conversion claim filed in 2019 was time-barred.

In Kidd v. Lewis, No. E2021-01156-COA-R3-CV, 2022 WL 2866006 (Tenn. Ct. App. July 21, 2022), plaintiffs were the adult daughters of decedent and defendant was the widow of decedent. During the later years of decedent’s life, he suffered from Alzheimer’s and his competency was disputed.

August 1, 2022

Premises liability summary judgment affirmed where divot complained of was a minor aberration.

by The Law Offices of John Day, P.C.

Where a premises liability plaintiff tripped when her shoe heel went into a small divot in an outdoor stairway that was “mere centimeters thick,” summary judgment for defendant was affirmed on the basis that the divot “amounted to a minor aberration and…the defendants did not owe her a duty of care.”

In Tino v. Walker, No. M2021-01230-COA-R3-CV, 2022 WL 2794096 (Tenn. Ct. App. July 18, 2022), plaintiff was shopping at a shopping center area in Nashville. After leaving one store, she exited down a set of outdoor brick stairs, and the heel of her shoe caught in a small divot in the brick on the second-to-last step, causing her to fall.

Plaintiff filed this premises liability suit, and defendants filed a motion for summary judgment. The trial court granted summary judgment to defendants, finding that “because the defects complained of were small aberrations, the foreseeability and gravity of harm considerations [did] not support a finding of liability on the part of Defendants,” and the Court of Appeals affirmed.

July 26, 2022

No civil liability for sharing truthful information about matter of public concern.

by The Law Offices of John Day, P.C.

Where defendant shared truthful information that was a matter of public record “concerning a matter of public significance,” summary judgment on plaintiffs’ claims for intentional and/or negligent infliction of emotional distress and invasion of privacy was affirmed.

In Adreacchio v. Hamilton, No. M2021-01021-COA-R3-CV, 2022 WL 2718659 (Tenn. Ct. App. July 13, 2022), plaintiffs’ son died and the local police department ruled the death a suicide. Plaintiffs believed the death was actually a homicide, and they went on a podcast and television series to discuss the death and investigation. Defendant was a private citizen who agreed with investigators that the death was a suicide, and he created a Facebook page “to counter plaintiffs’ assertions.” In the context of countering plaintiffs’ assertion that the death was a homicide, defendant shared autopsy photographs of the son as well as some of his text messages, both of which were public records released by the Mississippi Attorney General’s Office.

July 22, 2022

Res judicata dismissal of tort claims reversed.

by The Law Offices of John Day, P.C.

Where plaintiffs filed tort claims related to a car accident, and those tort claims were not compulsory counterclaims in a previous action filed by defendant against plaintiffs based on the same accident, the ruling that plaintiffs’ claims were barred by the doctrine of res judicata was reversed.

In Albers v. Powers, No. M2021-00577-COA-R3-CV (Tenn. Ct. App. July 12, 2022), plaintiff wife and defendant were in a car accident. Defendant had previously filed a personal injury suit against plaintiff wife seeking damages related to the car accident. That suit was settled, and the trial court entered an Agreed Order of Dismissal which stated that “all claims asserted in this suit by Richard Powers against defendants, Lori Albers…are dismissed WITH PREJUDICE.”

Two weeks after this order was entered, plaintiffs filed the present action, asserting claims of negligence and loss of consortium. Defendant filed a motion to dismiss, arguing that the suit was barred by the doctrine of res judicata. The trial court agreed, dismissing plaintiffs’ claims, but the Court of Appeals reversed dismissal.

July 15, 2022

Legal malpractice claim fails without expert support.

by The Law Offices of John Day, P.C.

Where defendant attorneys filed an affidavit stating that they had complied with the applicable standard of care, and plaintiff failed to respond with any expert evidence contradicting this affidavit in support of his legal malpractice claim, summary judgment was affirmed.

In Grose v. Kustoff, No. W2021-00427-COA-R3-CV, 2022 WL 2347798 (Tenn. Ct. App. June 29, 2022), plaintiffs had previously been represented by defendants in a wrongful death case concerning plaintiffs’ mother. During that case, plaintiffs and defendants had a disagreement regarding the direction of the case, and defendants moved to withdraw as counsel, which was granted. More than a year later, plaintiffs filed this pro se legal malpractice claim against defendants.

After a motion to dismiss was granted, appealed, and vacated on appeal, defendants filed a motion for summary judgment. In support of this motion, defendant David Kustoff filed his own affidavit stating that “he and his late father had complied with the applicable standard of care at all times” in the underlying representation. Plaintiffs responded to the motion, but failed to include any expert affidavit or other expert opinion in the response. The trial court granted summary judgment to defendants, and the ruling was affirmed on appeal.

July 13, 2022

Lawyer Sanctioned for Misconduct During Deposition

by The Law Offices of John Day, P.C.

A lawyer who surreptitiously helped his client during a remote deposition was sanctioned by the court. The lawyer was disqualified from the case and the plaintiff will be permitted to the right to play and highlight to the jury the recorded exchanges of [lawyer’s] witness-leading comments . . . .” The court also referred to matter to the presiding judge of the district for review and possible further disciplinary action.

The decision may be viewed by clicking on the link.

July 12, 2022

Seminar For Newer Lawyers Interesting in Learning About the Art of Trial Lawyering

by The Law Offices of John Day, P.C.

The Law Offices of John Day, P.C. is pleased to announce that we’re back with our Fundamentals of Civil Litigation in Tennessee seminar! This is a two-day program designed to help new lawyers grasp practical matters of civil litigation. In addition to hearing lectures on many substantive and procedural aspects of Tennessee civil litigation, you will be provided with useful forms, checklists, and other documents to help you in your daily practice. You will learn how to organize your case and how to prepare for all aspects of litigation with efficiency and excellence. The seminar is not slanted towards any particular type of litigation or side of the case. Rather, the course focuses on basic information and techniques for all civil litigators.

This seminar is sponsored by the Law Offices of John Day, P.C. to share our collective years of experience in courtrooms across Tennessee. We believe that “a rising tide lifts all boats” and that the public and profession are best served by reducing the learning curve faced by all new lawyers when entering the practice of law. Attendance for the seminar is limited to enhance opportunities for interaction between the speakers and attendees, and registration at the door cannot be accommodated. The cost to attend is $199.99. We hope you will join us on August 24 – 25, 2022 at the Nashville School of Law for this program.

Here is the schedule:

June 29, 2022

Changes to Tennessee Rules of Procedure and Evidence

by The Law Offices of John Day, P.C.

On July 1, 2022 there are changes to the rules of civil procedure, evidence, appellate procedure, and criminal procedure. Click on the link to see the court order setting forth the changes.

BirdDog Law offers free access to the rules, available 24/7/365 on your desktop, notebook, or phone. The rules have been updated on BirdDog to reflect the changes effective July 1.

Tennessee Rules of Civil Procedure

June 28, 2022

Tennessee Supreme Court Releases Opinion on Attorney Fee Awards After Motion to Dismiss

by The Law Offices of John Day, P.C.

Yesterday the Tennessee Supreme Court remanded a Davidson County Chancery Court case to the trial court to determine the amount of fees that should be awarded after a successful motion to dismiss for failure to state a claim upon which relief may be granted. The statute at issue is Tenn. Code Ann. § 20-12-119(c)

In Donovan v. Hastings, Plaintiff persuaded the trial court to dismiss the defendant’s counterclaim on a Rule 12.02(6) motion, but the trial judge awarded fees incurred only for time spent after the defendant filed an amended counterclaim, and not considering time invested in researching the issues after the original counterclaim was filed. The Court of Appeals affirmed the trial judge in a 2-1 decision. The Supreme Court reversed, interpreting the statute in such a way that fees incurred in gaining the dismissal (up to the statutory cap) were recoverable. The amount of the fees to be awarded on remand will be based on the factors set forth in Tenn. Sup. Ct. R. 8, RPC 1.5(a).

There are fourteen civil and and eleven cases currently pending before the Tennessee Supreme Court. You can find the current status of each of those cases by consulting this free resource, Cases Pending Before the Tennessee Supreme Court, on BirdDog Law.