In Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016-00447-COA-R9-CV (Tenn. Ct. App. Jan. 9, 2017), the Court of Appeals addressed the issue of whether parents in Tennessee may “bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements,” affirming the existing common law rule such agreements were not enforceable against a child when signed by a parent.  The Court also discussed whether a minor had the right to seek recovery of medical expenses in a personal injury case.

Mother took her son to defendant trampoline park, and on their first visit mother was required to sign a “Customer Release of Liability and Assumption of Risk.” This form purported to waive liability for any injury on behalf of both mother and son, and it contained a choice of law provision naming California law as governing the agreement as well as a forum selection provision stating that litigation would be brought in California. The release stated that it would be effective until the son was eighteen. At a later visit, son was injured, and son and mother both brought this action against defendant trampoline park in the Davidson County Circuit Court.

Defendant filed a motion to enforce the contract in the trial court, arguing that the claims had been waived and that the case had to be brought in California and governed by California law. Mother voluntarily dismissed her claim against defendant, and the trial court subsequently denied defendant’s motion to enforce the contract. The trial court found that “neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has ‘a more significant relationship to the facts surrounding this case.’” The trial court also held that the liability waiver did not operate to waive son’s claims, as “such a contract is not permissible in Tennessee.” In a lengthy decision, the Court of Appeals ultimately affirmed all three of these holdings.

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So now medical residents in hospitals will be able to work up to 28 hours in a shift.

I understand the arguments in favor of this proposal.  Longer, and more traditional, hours allow more continuity of care and permits the residents to learn more.  If this is true, why not make the limit 36 hours, allowing the young people to get 30% more education?

Because people need sleep to function, that is why.  And while continuity of care is important (although most patient care in hospitals are caused by nurses, but they tend  to work only 12 hour shifts), the earlier doctors learn about the ability to effectively communicate with other health care professionals the better, given the number of errors caused by failure to communicate.

In Sakaan v. FedEx Corporation, Inc., No. W2016-00648-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2016), the Court of Appeals affirmed dismissal of a misrepresentation claim based on the statute of limitations.

Plaintiff had previously been employed by defendant FedEx, and had been presented with a severance package as part of a cost-cutting initiative by the company. Before signing the severance agreement, plaintiff asked about how it would affect his ability to work on FedEx projects that were staffed by third-party vendors, and he “allege[d] he was assured that his acceptance of the severance agreement would not prohibit him from working on FedEx projects sourced through a third-party vendor.” Plaintiff signed the agreement in March 2013, officially left his employment in November 2013, and was hired by a company that contracted with FedEx. In his role with this new company, he attended a meeting at FedEx on December 19, 2013. When members of the FedEx legal team recognized him, they had him removed from the premises, and “he has not worked on a FedEx project since that time.”

Plaintiff filed suit on April 21, 2015, making claims for intentional and negligent misrepresentation. After filing their answers, defendants moved for judgment on the pleadings based on the statute of limitations, which the trial court granted. The trial court determined that the one-year statute of limitations found in Tenn. Code Ann. § 28-3-104(a)(1) applied to this matter, and that the claims were thus time-barred. The Court of Appeals affirmed.

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In Turner v. City of Memphis, No. W2015-02510-COA-R3-CV (Tenn. Ct. App. Dec. 20, 2016), the Court of Appeals affirmed a verdict for plaintiff following a Tennessee head-on car wreck between plaintiff and a police officer.

In December 2012, plaintiff and a Memphis police officer were traveling in opposite directions along the same road at just after midnight. The road had five lanes, two going in each direction and one turn lane. Plaintiff was driving south in the lane closest to the turn lane, while the officer was driving north in the outer lane. According to plaintiff, the officer “negligently and without warning crossed traffic and struck the vehicle being driven by [plaintiff] head on.” The accident caused plaintiff’s airbag to deploy and both drivers were knocked unconscious. Plaintiff was transported to the hospital by ambulance and was “subjected to a full trauma work-up, was given a neck brace because of whiplash, was given an I.V. for dehydration, and was administered considerable pain medication.” Plaintiff testified that he eventually was treated by a chiropractor and that the accident caused him pain that he had “never experienced before on that scale.” According to plaintiff, his injuries had improved, but they had “decreased his ability to engage in physical activities including cooking, cleaning, and getting his son to and from school, and he still suffered from frequent headaches, anxiety attacks, and unease of rest.”

Plaintiff brought this action against the city of Memphis under the GTLA for the officer’s alleged negligence in causing the accident. Plaintiff sought $300,000 in damages, including $28,421.18 in medical expenses.

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In K.G.R. v. Union City School District, No. W2016-01056-COA-R9-CV (Tenn. Ct. App. Dec. 14, 2016), the Court of Appeals overturned a denial of summary judgment, determining that the incident that occurred was not foreseeable and that defendant had no duty to protect the minor plaintiff from a sexual assault.

Plaintiff was a sixth grade student enrolled in the special education program at defendant school. Near the end of the school year in 2012, a student told the special education teacher that plaintiff and another boy were in a bathroom stall together. The teacher went to the bathroom, where she found the other student leaving the bathroom, and eventually took both boys to the principal’s office. During an interview of plaintiff, he alleged that the other student had sexually assaulted him in the bathroom.

Plaintiff’s parents brought this negligence action, alleging that the school had a duty to protect plaintiff. The school filed a motion for summary judgment, arguing that “the acts against [plaintiff] were not foreseeable.” Three weeks before the incident, plaintiff’s mother wrote a letter to the school principal regarding her concerns that plaintiff was being bullied, specifically naming two students as the perpetrators (neither of which was the student involved in the assault), and stating that plaintiff “was being punched by these students.” According to the mother’s testimony, “she wrote the letter because other students were stealing [plaintiff’s] pencils, picking on him, and calling him names.”

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Not every fall results in a successful premises liability case, as the plaintiffs in a recent Tennessee Court of Appeals case were reminded.

In Woodgett v. Vaughan, No. M2016-00250-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2016), plaintiff filed suit after falling while she was viewing defendants’ home, which was listed for sale. Plaintiff’s husband was a realtor, so he contacted the listing agent about viewing defendants’ home. Defendants had already moved out and removed all of their belongings, so plaintiff and her husband were allowed to view the home on their own. In the upstairs bonus room there was a door that led to the attic access. The landing that accessed the attic was raised, so defendants had hired someone to build a wooden box to use as a step to get to the landing. The step was made with two-by-twelves, measured 9.5 inches high, 39 inches wide and 10.75 inches deep, and was covered with carpet. The step could be moved out of the way and was not affixed to the landing, as it was sometimes moved to accommodate furniture passing through the area. Defendants had “used the step for twenty years without incident.” According to plaintiff, when she used the step while viewing the home, it “gave way” and made her fall.

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In Holmes v. Christ Community Health Services, Inc., No. W2016-00207-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2016), the Court of Appeals overturned the exclusion of expert testimony in an HCLA case.

In 2004, plaintiff fell and hurt her right shoulder, and she did not seek treatment until five days after her fall. When she visited defendant doctor, he examined her shoulder and diagnosed her with bursitis, never ordering an x-ray or other scan. Defendant doctor recommended an exercise program to plaintiff. Plaintiff’s pain continued to worsen, and she saw a different doctor a month later. This doctor took an x-ray of her shoulder and referred her to an orthopedic surgeon, who ordered a CT scan. The scan showed that plaintiff had a fracture dislocation. She was then sent to Dr. Weiss, a surgeon specializing in shoulder injuries, who performed open reduction surgery on plaintiff. During surgery, Dr. Weiss determined that plaintiff’s shoulder socket was “so badly damaged that it had to be repaired utilizing a cadaver bone piece and surgical screws.” Plaintiff suffered many complications, including a severe infection, an additional surgery, and a PICC line for antibiotics. After her shoulder healed, plaintiff was left with a “partial physical impairment.”

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Citing the Rule of Sevens, the Court of Appeals recently affirmed a finding that a 13-year-old was solely responsible for his injury when he fell on the bleachers at his school.

In Crockett v. Sumner County Board of Educ., No. M2015-02227-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2016), injured plaintiff and his parents sued his school after he fell on bleachers in the gym. Plaintiff was attending summer school, and the day before his injury someone had intentionally caused flooding in a boys’ bathroom. Because no one would confess, two coaches had all of the eighth grade boys help clean the bathroom and pick up trash from the bleachers. According to plaintiff, he mopped the bathroom and then was told to begin helping in the bleachers, though the coach supervising the work testified that plaintiff was not told to work in the bleachers after mopping.

At the time of his injury, plaintiff was using the bleacher seats as stairs, rather than using the designated stairway on the bleachers. Plaintiff stated that the coach had left the gym when he fell, but the coach testified that he had left for a couple of minutes to retrieve a dry mop and had returned to the gym by the time of plaintiff’s accident.

During a bench trial, plaintiff testified that “he knew from the time he was a little kid that he was not supposed to use the bleacher seats as steps,” and that such usage could cause injury. He further testified that he “just wasn’t thinking about it” at the time of the accident. Two coaches from his school testified that they had told the students on many occasions not to use the seats as steps but to instead use the designated steps, which had non-slip material on them.

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In Parvin v. Newman, No. E2016-00549-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2016), the Court of Appeals affirmed summary judgment for defendant in an abuse of process claim.

Husband and wife had litigated a contentious divorce, and during the course of that proceeding, wife had filed a Motion to Impose Sanctions for Contempt. Nine months and many filings later, a Final Judgment of Divorce was entered in the case, with the parties stipulating to the terms of the divorce. Particularly of note, the divorce judgment stated that “the parties had reached an agreement to settle and compromise all of the matters in dispute between them and that they [had] freely, voluntarily and knowingly entered into an agreement that is reflected” in the final judgment.

Three months after the divorce was finalized, husband filed this abuse of process claim against wife, alleging that “Wife’s purpose in filing her July 2014 contempt motion had been to harass him, cause him to incur unnecessary expenses to defend the motion, weaken his resolve to continue litigation of the divorce, and settle for terms favorable to wife.” Wife argued, however, that “husband’s complaint should be dismissed on the basis of res judicata and because the undisputed facts negate the essential elements of husband’s claims for abuse of process.”

The trial court ultimately granted summary judgment to wife on the basis of both res judicata and husband’s inability to prove his case, and the Court of Appeals affirmed.

Plaintiff husband argued that his abuse of process claim was a separate tort claim that he had not had the opportunity to litigate in the divorce case. He stated in an affidavit to the trial court that “if [he] had amended [his] divorce complaint to allege abuse of process it would have hardened wife’s position toward settlement.” He also asserted that he “entered into the divorce settlement under duress,” as he “did not want to have to defend [himself] against charges that might [have] land[ed] [him] in jail.” The Court, though, rejected this argument.

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In Miller v. Jackson-Madison County General Hospital District, No. W2016-01170-COA-R3-CV (Tenn. Ct. App. Dec. 8, 2016), the Tennessee Court of Appeals affirmed summary judgment in a slip and fall case based on a lack of proof of notice of the dangerous condition.

Plaintiff was visiting her brother at defendant hospital when she left his room to find a nurse. In the hallway, she allegedly slipped and fell in water and injured herself, which was the basis for this premises liability suit. According to plaintiff’s trial testimony, she did not see anything on the floor before she fell, but after her fall she noticed a “trail of water [that] led to a food cart against the wall in the hallway.” Plaintiff did not inspect the cart, and she “did not know whether the water was leaking from the food cart or had been spilled near it.” She also did not know how long the water had been there or whether any hospital employees knew about the water.

After a bench trial, the trial court “found the evidence insufficient to demonstrate that the Hospital or its employees caused or had actual or constructive notice of the water on the floor prior to [plaintiff’s] fall,” and thus entered judgment for defendant. The Court of Appeals affirmed this decision.

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