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Where a plaintiff who fell in a grocery store presented no evidence in her premises liability case beyond the fact that there was a pallet in the aisle over which she tripped, the Court of Appeals affirmed summary judgment for defendant grocery store.

In Hunter v. Kroger Limited Partnership, No. W2017-01789-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2018), plaintiff was shopping in defendant grocery store when she tripped on a pallet and fell. Plaintiff had been bent over in a freezer searching for an item. As she straightened up, she stepped backwards 3-4 steps to allow another customer to pass, and in doing so she “tripped on a wooden pallet that was left on the floor in the center of the aisle.” Evidence showed that the pallet was wooden and had been used for stocking the shelves, and that nothing was blocking plaintiff’s view of the pallet.

Plaintiff filed this premises liability action asserting that defendant “owed her an affirmative duty of care to protect her from the dangerous condition created by the pallet.” The trial court granted summary judgment for defendant, and the Court of Appeals affirmed.

In its memorandum supporting the motion for summary judgment, defendant argued that the pallet was not a dangerous condition and that plaintiff’s “allegation that this pallet was a dangerous condition is not based on anything other than the fact that she tripped.” Defendant filed a statement of undisputed facts, which included the facts that plaintiff was walking backwards and had taken around 4 steps before she hit the pallet and fell, and that there was nothing blocking the pallet from view. Plaintiff admitted all of these facts and “proffered no additional material facts, and submitted no additional evidence.” On appeal, this lack of evidence proved fatal to plaintiff’s case.

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Where a plaintiff made a tactical decision to withhold certain evidence during its case-in-chief and instead attempted to introduce the testimony as rebuttal evidence, the evidence was not be allowed and was deemed to “contradict [plaintiff’s] own proof.”

In Alumbaugh v. Wackenhut Corporation, No. M2016-01530-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2018), plaintiff’s father was shot and killed by an armed security guard at a Pilot travel center, and plaintiff filed this wrongful death action against the security guard company who employed the shooter. On the night of the incident, decedent and a female companion had been drinking heavily and were traveling home when decedent pulled his vehicle into the back lot of a Pilot, which was reserved for tractor-trailer trucks. During plaintiff’s case-in-chief, she presented the videotaped testimony of decedent’s female companion, who testified that decedent was standing in the passenger doorway of the car when the guard approached and that the altercation only lasted a few minutes. According to this testimony, decedent was the aggressor, the guard tried to calm decedent down, and the guard tried to handcuff decedent. While the guard was trying to call someone, decedent pushed the guard against a truck, overpowered him, and was on top of him when the guard pulled out his gun and shot decedent.

In defendant’s case-in-chief, it presented evidence that the guard had previously been in the army and that it had not received any complaints about the guard’s job performance, although a supervisor at Pilot “admitted that he had intervened between [the guard] and others on occasion.” The guard testified that on the night in question he tried to call for assistance, but that “the next thing he knew, [decedent] was on top of him, hitting his head and face,” and that “he felt a tug on his belt and believed the man was reaching for his gun” before the guard shot decedent.

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When an HCLA plaintiff proceeds under a res ipsa loquitur theory, her expert is not required to opine on the same elements as in a traditional HCLA claim.

In Anderson v. Wang, No. M2018-00184-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2018), plaintiff had laser cataract surgery performed on both eyes by defendant doctor. After the second surgery on her right eye, plaintiff experienced serious complications, including extreme loss of endothelial cells and corneal decomposition that required a corneal transplant.

Plaintiff brought this HCLA case under Tenn. Code Ann. § 29-26-115(c), which governs HCLA res ipsa loquitur claims. This section states that “there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant’s…exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.” The trial court granted defendant’s motion for summary judgment, finding that plaintiff’s expert “never defined the applicable standard of care or how any instrumentality could have been improperly used contrary to the applicable standard of care.” The Court of Appeals, however, reversed.

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When a plaintiff’s lawyer terminates his representation just weeks before the statute of limitations is set to expire on a health care liability claim, this termination may constitute extraordinary cause to excuse the plaintiff’s noncompliance with certain pre-suit notice and certificate of good faith requirements.

In Reed v. West Tennessee Healthcare, Inc., No. W2018-00227-COA-R9-CV (Tenn. Ct App. Oct. 8, 2018), plaintiff was injured when he fell while in the hospital being treated for a different injury on October 18, 2015. He retained counsel over four months before the statute of limitations was set to run on his health care liability claim, but just a few weeks before it expired, the attorney terminated his representation of plaintiff. Plaintiff then sent a letter dated October 7, 2016 to a hospital executive stating that he had been injured and demanding compensation. He subsequently filed his HCLA complaint on October 14, 2016, which was within the one-year statute of limitations, but he did not attach a Certificate of Good Faith to his complaint. After he filed his complaint, he hired a new attorney.

Defendant filed two motions to dismiss, one based on plaintiff’s failure to attach a Certificate of Good Faith and one based on plaintiff’s failure to follow the pre-suit notice requirements by failing to give his notice 60 days before he filed the complaint, failing to provide a HIPAA authorization, failing to provide an affidavit from the party who mailed the notice, and failing to state that he had complied with the statute. The trial court denied both motions, finding that the termination of representation just weeks before the statute of limitations ran constituted extraordinary cause under the HCLA and thus excused compliance with these requirements. The Court of Appeals affirmed.

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The American College of Trial Lawyers has released its latest white paper on the law of attorney-client privilege.

Titled “Attorney-Client Privilege Update:  Current and Recurring Issues,” the 50-page paper was compiled by the College’s Attorney-Client Relationships Committee, led by Joe Arellano of Portland, Oregon.   The paper summarizes the law of attorney-client privilege, supporting its conclusions with citations to over 100 court decisions from around the nation.

Here is the Table of Contents:

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A premises owner’s duty generally does not include the duty to protect “from criminal acts occurring off [the] defendant premises owner’s property.” In Collier v. Legends Park LP, No. W2017-02313-COA-R3-CV (Tenn. Ct. App. Oct. 3, 2018), plaintiff was a resident at defendant’s apartment building. Plaintiff was sitting in his car, which was parked on a public street, with a female companion. Another car pulled next to plaintiff’s car, and the female companion got into that car. When plaintiff then exited the vehicle, he was approached from behind by a second female holding a gun and demanding money. Plaintiff had several thousand dollars on him, but told the robber that the money was in his car. Plaintiff was eventually shot in both legs, and the robber got into the car with the other two people and drove away.

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Where a plaintiff knew that her father had escaped from a hospital where his family had requested a mental evaluation and then killed his wife and himself, the plaintiff had constructive knowledge of her claim against the treating doctor and hospital as of the day she learned about the murder-suicide.

In Herpst v. Parkridge Medical Center, No. E2017-00419-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2018), plaintiff and her family members took her father to defendant hospital because he was experiencing “paranoia and delusional episodes” and had discussed committing suicide. They chose this specific hospital because it was “the only hospital in Chattanooga that has a dedicated and secured floor for mental evaluations.” Plaintiff and her family requested a mental evaluation of her father and told his treating physician that he was a danger to himself.

On the day after the father’s admission, plaintiff inquired about when the evaluation would be done and did not get an answer. The next day, he had become agitated and plaintiff again got no answers from the nurses, who allegedly stated: “we don’t know, we don’t care, we’re tired of fooling with him…he’s crazy.” Three days after his admission, the father pulled his I.V. out and left the hospital. Sometime in the following two days, he killed his wife and himself, and plaintiff was notified of her parents’ death on July 3, 2013.

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Where questions of fact remained regarding when plaintiff should have reasonably been put on notice of defendants’ fraud, summary judgment was inappropriate.

In Coffey v. Coffey, No. E2017-00988-COA-R3-CV (Tenn. Ct. App. Sept. 20, 2018), plaintiff filed suit in 2015 over an alleged fraud that dated back twenty years. In 1995, plaintiff’s husband and mother were killed in a plane crash. Plaintiff’s husband had founded and built two successful companies. The husband’s father was named executor of the estate, and through a series of complicated events, plaintiff alleged that he purchased the two companies for his own benefit and eventually sold them for $45 million, putting the money in a trust for his own heirs, which included the husband’s two children but not plaintiff as the founder’s widow.

According to the complaint, plaintiff was falsely told that there were no buyers for the company and the father’s purchase of the company was characterized as a risk and a favor. Plaintiff asserted that she never saw the full valuation that was done, and that the only copy she was ever given was in a box of documents about the plane crash, which she put into her attic without examining. Plaintiff alleged that she loved and trusted her father-in-law and had no reason to suspect he was fraudulently deceiving her. Plaintiff stated in the complaint that she was assured many times throughout the twenty-year period that everything was done legally and fairly by both the father and her late husband’s brother, who had taken on a role at the companies. Plaintiff also asserted that she asked for the valuation a few times, but that the entire thing was never provided. In 2014, plaintiff’s son, now an adult with a master’s degree in business, alerted her that the companies were being sold for $45 million. At this point, plaintiff located a copy of the valuation in the box of documents related to the crash, and when her son reviewed the documents, he “concluded there had been foul play.”

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Where the trial court refused to give special jury instructions requested by plaintiff in a premises liability case, but the relevant issues were sufficiently covered in instructions that basically mirrored the Tennessee Civil Pattern Jury Instructions, the trial court did not err and the jury verdict for defendant was affirmed.

In Creech v. RMRTN Chatt, LLC, No. W2017-01541-COA-R3-CV (Tenn. Ct. App. Sept. 11, 2018), plaintiff was contracted to do HVAC work on a building owned by defendant when a roof-access ladder he was using detached from the building and fell. Plaintiff brought this premises liability suit, alleging that defendant “failed to properly inspect and maintain its ladder in good condition,” but defendant argued during a jury trial that plaintiff “was familiar with the store and its roof-access ladder,” that it had performed proper inspections of the ladder, and that plaintiff’s actions “were the proximate and legal cause of his injury.” After a six-day trial, the jury returned a verdict for defendant.

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The taxability of Tennessee personal injury and Tennessee wrongful death settlements and judgments is governed by  Section 104 of the Internal Revenue Code.

Generally, compensatory damages for personal injury and wrongful death are excludable from federal taxation if they arise from personal injury or sickness.  Thus, in most personal injury and wrongful death cases arising from a personal injury or sickness, a settlement which includes only compensatory damages will not be subject to federal taxation.

One exception to that rule is if the taxpayer / plaintiff previously deducted medical expenses from her taxable income and then recovered those expenses in a personal injury or wrongful death case.  In such cases, the taxpayer / plaintiff would have tax liability because she had previously gained a tax advantage from the deduction of the medical expenses and then was reimbursed for those expenses in a compensatory damages award.

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