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Day on Torts

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Security Guards and the Independent Contractor Rule

In Estate of Cunningham v. Epstein Enterprises LLC, No. W2015-00498-COA-R3-CV (Tenn. Ct. App. June 30, 2016), the Court of Appeals affirmed summary judgment in a premises liability case where an armed security guard was shot and killed while on duty at an apartment complex. The guard worked for a security…

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Statute of Limitations Bars Legal Malpractice Claim

In Athena of S.C., LLC v. Macri, No. E2016-00224-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2016), the Court of Appeals affirmed the dismissal of a Tennessee  legal malpractice claim on the basis that the claim was barred by the one-year statute of limitations. In the underlying matter, plaintiffs had purchased promissory…

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Notice and HIPAA Form Also Required for Re-Filed HCLA Claim

Tennessee Courts continue to make it clear that each time you re-file a previously dismissed Tennessee medical malpractice (now health care liability) claim, you must abide by the statutory requirements. In Cright v. Overly, No. E2015-01215-COA-R3-CV (Tenn. Ct. App. Oct. 17, 2016), the Court of Appeals addressed the need for…

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Suit Against Local Government Over Sewer Issues

In Nickels v. Metropolitan Govt. of Nashville and Davidson County, No. M2015-01938-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2016), the Court of Appeals went through a thorough analysis of Tennessee’s  Governmental Tort Liability Act (GTLA) as it related to a claim regarding the malfunction of a sewer and stormwater system. Though…

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Ex Parte Communications With Treating Physicians – TN Statute Ruled Unconstitutional

Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional.    Memorandum Order – Judge Brothers The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered  ex parte communications with the plaintiff’s non-party health care providers.   The code section was…

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Tennessee Jury Verdict More Than 40 Times Medical Expenses Affirmed

In Glasgow v. K-VA-T Food Stores, Inc., No. E2015-01653-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2016), the Court of Appeals affirmed a jury award in the full amount of compensatory damages sought by a Tennessee premises liability plaintiff. While using the restroom in a grocery store, plaintiff lost his balance while…

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Nonsuit OK When Motion to Dismiss is Pending in Medical Malpractice Case

In Hurley v. Pickens, No. E2015-02089-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2016), the Court of Appeals once again held that a plaintiff in a medical malpractice case can take a voluntary nonsuit without prejudice while a motion to dismiss based on an insufficient certificate of good faith is pending. This…

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Upcoming Seminar – Justice Programs

Justice Programs will present its annual seminar program in Knoxville, Nashville and Memphis in a few weeks.   Former Justice Penny White and former Judge Joe Riley and I started this seminar over a decade ago.  Famed mediator Howard Vogel joins us as a participant this year. I will be…

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