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Day on Torts

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No Response to Statement of Undisputed Material Facts Results in Loss

In a case based on an altercation that occurred while a worker was attempting to recover an unreturned cable modem, defendant cable company filed a motion for summary judgment with supporting proof that the worker was an independent contractor of a separate entity. Because plaintiff failed to respond to defendant’s…

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Injury Plaintiff Indispensable Party in Insurer / Insured Dispute

A person who was injured in a car accident with an insured party and who had filed suit against the insured party was an indispensable party in a declaratory judgment action between the insured and his insurer regarding coverage of the accident. In Tennessee Farmers Mutual Insurance Company v. DeBruce,…

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No Duty to Help Plaintiff With Service of Process

When a sheriff’s deputy delivered service of process to an office employee at a front desk, that employee and clinic had no duty to assist plaintiff in ensuring that process was served in the proper manner. In Koczera v. Steele, No. E2017-02056-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2018), plaintiff had…

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“Discovery Rule” Analyzed in Cancer Treatment Case

The statute of limitations on a Tennessee HCLA claim begins to run “once the plaintiff has information sufficient to alert a reasonable person of the need to investigate the injury[.]” (internal citation omitted). In Dondero v. Accuray Incorporated, No. E2017-01741-COA-R3-CV (Tenn. Ct. App. July 26, 2018), plaintiff had been diagnosed…

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Plaintiff’s Past Medical Records Should Have Be Allowed as Evidence

Where defendant had the proper affidavit to authenticate plaintiff’s medical records related to treatment she received prior to a car accident, the trial court erred by excluding the evidence. In Goodwin v. Hanebis, No. M2017-01689-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2018), plaintiff was injured in a car accident with defendant.…

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No Attorney’s Fee Award Permitted in Trespass Case

Attorney’s fees are not recoverable in a claim for trespass in Tennessee. In Perlaky v. Chapin, No. E2017-01995-COA-R3-CV (Tenn. Ct. App. July 27, 2018), plaintiff owned land on a mountain with easement rights to access the land by a specific road. When defendants bought property on the same mountain, they…

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“Scope of Employment” and the Tennessee GTLA

  Where an ROTC instructor pulled a stool from beneath a student, his actions were not within the scope of his employment and immunity was not removed under the GTLA. In O’Brian v. Rutherford County Board of Education, No. M2017-00527-COA-R3-CV (Tenn. Ct. App. July 31, 2018), plaintiff was a sophomore…

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County Immune From Liability for Injury on Inmate Work Program

Tennessee law “grants counties that allow inmates to work on road details and other projects immunity from liability for injuries,” and that immunity overrides provisions of the GTLA. In Trojan v. Wayne County, Tennessee, No. M2017-00415-COA-R3-CV (Tenn. Ct. App. July 23, 2018), plaintiff was an inmate in Wayne County jail…

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Court Requires Production of Pre-suit Expert Statement Supporting Certificate of Good Faith

When a defendant files a motion “requesting the court to compel the plaintiff or his counsel to provide the court with a copy of the expert’s signed written statement that was relied upon in executing the certificate of good faith” pursuant to Tenn. Code Ann. Section 29-26-122 of the HCLA,…

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