Day on Torts

June 5, 2023

Parents could not file suit on behalf of adult child.

Where plaintiff was in a car accident when she was four years old, and her parents filed a personal injury suit purporting to represent her once she turned 18, the trial court properly granted summary judgment based on the statute of limitations. The parents, who were not attorneys, could not represent plaintiff, and by the time the motion to dismiss had been filed more than one year had passed since plaintiff turned 18, so any claim was time-barred.

In McCall v. United Parcel Service, No. M2022-01112-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff was in a car accident when she was four, and after she turned 18, her mother and father filed this personal injury action on her behalf. Plaintiff did not sign the complaint, and neither parent was an attorney. Defendant filed a motion to dismiss based on the one-year statute of limitations. At the hearing, the mother stated that plaintiff had been on an IEP in school but “had never been adjudicated incompetent or disabled.” The trial court granted dismissal, and the Court of Appeals affirmed.

On appeal, the Court first analyzed whether it would consider certain post-judgment facts submitted by plaintiff. Tenn. R. App. P. 14 provides that “the consideration of post-judgment facts that are ‘unrelated to the merits and not genuinely disputed’ may be ‘necessary to keep the record up to date.’” Post-judgment facts that “could be disputed in the trial court or from which different conclusions could be drawn” should not be considered. (internal citation omitted). The facts presented by plaintiff included a school psychoeducational evaluation, an IEP, a psychologist evaluation, and letters of guardianship and letters of conservatorship dated after the order of dismissal was entered. The Court of Appeals declined to consider any of this evidence, finding that the school evaluation and IEP “existed at the time of the trial court’s ruling” and that the psychologist evaluation and letters were “offered to establish [plaintiff’s] competency, which is a disputed issue in this case,” so did not qualify as being “unrelated to the merits and not genuinely disputed.

June 1, 2023

Pre-Impact Terror in Plane Crash Litigation

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

A federal judge in Chicago has agreed to allow a jury to consider whether airplane crash victims experience preimpact terror before their deaths.

Faced with no Illinois law directly on point, the federal court determined that the reasoning in Haley v.

Pan American World Airways, Inc., 746 F.2d 311, 314-15 (5th Cir. 1984), was persuasive. The Haley could found the courts of Louisiana would permit recovery for emotional distress “during a negligently produced ordeal”

May 31, 2023

Amended Complaint Removed Defendants From Suit.

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

Where plaintiff originally filed a health care liability suit under the GTLA against multiple defendants, but before any responsive pleading was filed plaintiff filed an amended complaint naming only the physician as a defendant, a subsequent notice and order of voluntary dismissal entered as to the defendants not named in the amended complaint were “of no legal effect.” The original defendants other than the physician were removed from the action through the filing of the amended complaint.

In Ingram v. Gallagher, — S.W.3d —, No. E2020-01222-SC-R11-CV (Tenn. May 17, 2023), plaintiff filed an HCLA suit against multiple defendants, including the physician and the hospital at which the physician worked. Because the hospital was a governmental entity, the GTLA applied to this case. After filing his original complaint but before any responsive pleading had been filed, plaintiff filed an amended complaint naming only the physician as a defendant. Five minutes after the amended complaint was filed, plaintiff filed a notice of voluntary dismissal as to the hospital and other defendants, and an order of voluntary dismissal was entered the following day.

When defendant physician filed his answer to the amended complaint, he raised as a defense that the complaint should be dismissed under the GTLA, as Tenn. Code Ann. § 29-20-310(b) required that since the physician was an employee of a governmental entity, the governmental entity must also be a party to the action. Subsequently, plaintiff “filed a motion to amend his complaint in an effort to reinstate [the hospital] as a defendant.” Plaintiff also “filed a motion to alter or amend the order dismissing [the hospital] as a defendant on the grounds that ‘[the hospital] was inadvertently dismissed in light of the affirmative defense assertation by a co-defendant…that [the hospital] is a necessary party to this action.’” The trial court denied the motion to alter or amend the dismissal order, but it eventually allowed plaintiff to amend his complaint after a second motion to amend was filed.

May 26, 2023

Psychologist selected by mother pursuant to court order immune from later HCLA suit.

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

Court appointed psychologists enjoy immunity in Tennessee. Where a juvenile court ordered that a mother select a new psychologist to replace the existing one in a custody case, the psychologist selected by the mother was entitled to summary judgment based on immunity in a later suit brought by the father based on the psychologist’s treatment of the minor and parents in the underlying custody case.

In Justice v. Hanaway, No. E2022-00447-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff filed an HCLA case against defendant psychologist based on the psychologist’s treatment and involvement in an underlying child custody case. Plaintiff was the father in the child custody case, and after the first court-appointed psychologist was removed from the case, the juvenile court asked the mother to select a new psychologist. The juvenile court’s order stated: “There will be a transition from the current therapist…to a new therapist to be selected by the Mother. …The parties shall sign releases for the new therapist to speak with [the former therapist.] …Once the transition to the new therapist is made, the therapist shall set out a goal and a plan as to how the therapy shall be conducted.” The mother selected defendant psychologist, who went on to have sessions with the mother, father, and minor and to testify in the custody case. This HCLA claim by the father followed.

The trial court granted summary judgment to defendant based on his role as a court-appointed psychologist. The trial court found that it was “reasonable from the record to conclude that Defendant was replacing the court-appointed therapist…and would therefore be stepping into [her] shoes and occupying the same status as that which [she] had enjoyed,” and that defendant was “entitled to the same benefit of the doctrine of [judicial]immunity as that which could have been claimed” by the original court-appointed therapist. On appeal, this ruling was affirmed.

May 24, 2023

Stats About Personal Injury and Wrongful Death Cases and Verdicts in Dyer County, Tennessee

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

Information is now available on the number of personal injury and wrongful death trials and jury verdicts in Dyer County, Tennessee (county seat: Dyersburg) for the fiscal year ending June 30, 2022.

There were 64 personal injury and wrongful death cases closed in closed in Dyer County (not including health care liability act cases) and only 1 tort trials. Here is how that compares with prior years:

dyer1-1024x598
But look at the graph below. Not only did the plaintiff not recover in the sole trial that occurred last year (which is not that unusual) but a plaintiff has not prevailed in a single personal injury or wrongful death case in Dyer County in the last six fiscal years (fourteen total trials).

May 23, 2023

City ordinance violation does not extend Tennessee’s typical one-year personal injury statute of limitations.

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

Ordinarily and subject to several important exceptions, the statute of limitations in Tennessee personal injury cases is one year. One exception to that rule is Tenn. Code Ann. § 28-3-104(a(2), which addresses situations where the civil defendant faced criminal charges as a result of a incident giving rise to the cause of action. However, a new decision declares that where a defendant in a car accident case received a traffic citation for violation of a city code ordinance, the statute of limitations for filing a claim related to that accident was not extended under Tenn. Code Ann. § 28-3-104(a)(2).

In Glover v. Duckhorn, No. W2022-00697-COA-R3-CV (Tenn. Ct. App. May 2, 2023), plaintiff and defendant were involved in a car accident, and defendant received a traffic citation for violation of a city code ordinance for failure to maintain a safe lookout. No other citation was issued. One year and one day after the accident, plaintiff filed this personal injury action, and defendant filed a motion to dismiss based on the one-year statute of limitations. Plaintiff asserted that the limitations period was extended to two years under Tenn. Code Ann. § 28-3-104(a)(2), but the trial court granted dismissal, and the Court of Appeals affirmed.

Personal injury suits are subject to a one-year statute of limitations under Tenn. Code Ann. § 28-3-104, but subsection (a)(2) extends the limitations period to two years under certain circumstances:

May 22, 2023

Tennessee GTLA case that includes non-governmental entity defendants can be heard by a jury.

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

Where a GTLA case involves both governmental and non-governmental defendants and a party demands a jury trial, the entire case is to be heard by the jury.

In Vandyke v. Cheek, No. M2022-00938-COA-R10-CV (Tenn. Ct. App. May 3, 2023), plaintiff filed suit after a car accident caused in part by a malfunctioning traffic light. Defendants in the case included Montgomery County and other governmental entities as well as the other driver, a non-governmental entity. Plaintiff requested a jury trial, and the governmental entities asked for the case to be severed so that the claims against the governmental entities would be heard in a bench trial. The trial court granted the motion, but in this extraordinary appeal, the Court of Appeals reversed the order severing the claims and remanded the case to be heard by a jury as a whole.

Before 1994, the GTLA provided that cases against governmental entities were to be heard “without the intervention of a jury,” and it provided that jury demands for claims against non-governmental entities could be severed and heard separately from claims against governmental parties. In 1994, however, the GTLA was amended.

May 18, 2023

Stats About Personal Injury and Wrongful Death Cases and Verdicts in Wilson County, Tennessee

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

Information is now available on the number of personal injury and wrongful death trials and jury verdicts in Wilson County, Tennessee (county seat: Lebanon) for the fiscal year ending June 30, 2022.

There were 201 personal injury and wrongful death cases closed in Wilson County (not including health care liability act cases) and 2 tort trials. Here is how that compares with prior years:

wilson1-1024x606
Note that in recent years about 1 – 2 % of all closed cases in Wilson County are tried to judgment. When your client asks you “what are the odds my Madison County case will go to trial” you can say that, on average 98-99% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

May 16, 2023

Stats About Personal Injury and Wrongful Death Cases and Verdicts in Montgomery County, Tennessee

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

Information is now available on the number of personal injury and wrongful death trials and jury verdicts in Montgomery County, Tennessee (county seat: Clarksville) for the fiscal year ending June 30, 2022.

There were 315 personal injury and wrongful death cases closed in Montgomery County (not including health care liability act cases) and 2 tort trials (which was materially down from prior years). This graph illustrates the relevant data:

montgomery1-1024x626
Note that historically about 3% of all closed cases in Montgomery County are tried to judgment, a number which is generally consistent with past years. When your client asks you “what are the odds my Madison County case will go to trial” you can say that, on average 97% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

May 15, 2023

Stats of Personal Injury and Wrongful Death Cases and Jury Verdicts in Robertson County, Tennessee

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

Information is now available on the number of tort trials and jury verdicts in Robertson County, Tennessee (county seat: Springfield) for the fiscal year ending June 30, 2022.

There were 82 tort cases closed in Robertson County (not including health care liability act cases) and 0 tort trials. Here is how that compares with prior years:

robertson1-1024x610
Note that in the last six years there have been a little less than 550 personal injury and wrongful death cases closed and only 7 trials. There have been no personal injury or wrongful death trials in the last two fiscal years. When your client asks you “what are the odds my Robertson County personal injury case will go to trial” you can say that, on average over 98% of closed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.