Articles Posted in Comparative Fault

In Brown v. Mercer-Defriese, No. E2015-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2016), plaintiff was touring a home that she was considering renting when she tripped over a threshold/step. The threshold joined two rooms in the house, and the elevation difference from one floor to the other was three inches. The flooring in one room was tile, while the adjoining room was hardwood and the threshold itself was wood, but the evidence suggested that the flooring was all very similar in color.

Plaintiff had already traversed the threshold once, but testified that she did not notice the elevation change at that time, and that when she was traversing it a second time she did not notice the threshold and tripped, suffering serious injuries. Plaintiff brought this premises liability action, alleging that this step constituted an unreasonably dangerous condition. Plaintiff stressed the similarity in color between the two adjoining floors, and noted that the fall occurred when it was getting darker outside and thus more difficult to see. Plaintiff’s expert testified that the step in question was a “tripping hazard” due to its height and the fact that the entire area was essentially the same color. He further testified that the Consumer Product Safety Commission “has determined that stairs, ramps and landings are among the most hazardous consumer products in the United States, and classified a step with a riser less than 6.25 inches high as high risk.” (internal quotations omitted).

In response, the defendants asserted that the threshold was open and obvious and that it did not violate the relevant building code. Defendants also alleged that the threshold was a stair, which is a “common feature in homes and…not inherently dangerous[.]” (citation omitted). Defendants called two experts to testify, and both stressed that the threshold did not violate building code, but one admitted that he believed the step to be a “trip hazard.”

In Jones v. Bradley County, No. E2015-00204-COA-R3-CV (Tenn. Ct. App. Jan. 15, 2016), plaintiff sued Bradley County after she collided with a truck responding to a fire at a red-light intersection. Plaintiff had the green light at the intersection. Defendant, a fire rescue employee, was driving a Ford F-250 truck that was equipped with a siren and emergency lights. Defendant proceeded to turn left against a red-light, at which time plaintiff’s car collided with defendant’s truck, causing plaintiff significant injuries.

Bradley County relied on Tenn. Code Ann. § 55-8-108, which “provides privileges to emergency vehicle drivers under certain circumstances.” This statute allows emergency vehicle drivers to “proceed past a red or stop signal[,]” but still requires the driver “to drive with due regard for the safety of all persons[.]” While analyzing this case, though, the Court pointed out that that “[t]he obligation to exercise due care is, thus, not excused by the fact that the [emergency] driver is responding to an emergency call.” (citation omitted).

Bradley County further asserted that the sole cause of this accident was plaintiff’s failure to comply with Tenn. Code Ann. § 55-8-132, which provides that “upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals…the driver of every other vehicle shall yield the right-of-way.” The Court pointed out that, when previously applying this statute, the Court has “noted the requirement of due care when entering an intersection even under authority of a green light” and “observed that if plaintiff should have heard the siren or should have seen the blue lights flashing, she…cannot evade her duty to yield to an emergency vehicle by saying that she did not hear and did not see because she did not look.” (citation and internal quotations omitted). In response to this argument, plaintiff pointed to the County Rescue Service operations manual, claiming that defendant violated the portions of the manual that stated that emergency drivers should “slow to a safe speed at which a stop could be made, and insure that all traffic has yielded” and “change the siren mode” when approaching an intersection. Plaintiff further argued that the evidence showed that defendant did not drive with due care through the intersection.

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The Tennessee Bar Association has published my article about the recent Moreno decision and the unintended consequences of that decision.

The article is titled “Donald Margolis, “Moreno,’ and Unintended Consequences.”

An excerpt:

In Hall v. Owens, No. W2014-02214-COA-R3-CV (Tenn. Ct. App. Nov. 20, 2015), the Tennessee Court of Appeals affirmed summary judgment for defendant where plaintiff ran a red light and turned in front of defendant’s truck. As plaintiff approached an intersection, he had a red arrow for turning left. Defendant was approaching the same intersection driving a tractor-trailer truck, and defendant had a green light. Despite the red arrow, plaintiff proceeded into the intersection and turned left, at which time he was hit by defendant’s truck and severely injured.

 

Plaintiff sued defendant and his employer for negligence, asserting that defendant’s negligence was the “direct and proximate cause of the collision.” Defendant moved for summary judgment, relying heavily on the footage of the accident from two traffic cameras. Based on the footage, two experts for defendant testified that defendant was driving approximately 52 miles per hour in the 55 mile per hour zone. Further, it was undisputed that defendant had a green light and plaintiff had a red arrow. It was also undisputed that defendant’s truck was well-illuminated and visible.

 

In response to the motion for summary judgment, plaintiff submitted expert testimony from an accident reconstructionist asserting that defendant was traveling 60-65 miles per hour, and that defendant had “six to nine seconds of clear visibility of [plaintiff’s] car.” In light of the evidence, the trial court granted defendant’s motion for summary judgment, finding that “no reasonable minds could find anything other than the fact that [plaintiff’s] actions in driving that morning of the accident constituted negligence, and negligence per se, and that his actions were the proximate cause of the accident, at least to the extent of 50% of fault.” The trial court further found that plaintiff’s expert’s testimony regarding defendant’s speed was “fundamentally flawed” in that it failed to consider several relevant factors.

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The Tennessee Court of Appeals recently vacated a judgment in a car accident case after finding that the “jury’s damages award [was] not supported by material evidence.” In Naraghian v. Wilson, No. W2014-02002-COA-R3-CV (Tenn. Ct. App. Nov. 12, 2015), plaintiff’s car was struck from behind by defendant’s vehicle. According to plaintiff, she had come to a complete stop at a red light and was then hit. Defendant asserted, though, that he slowed down for the red light, but the light then changed to green and plaintiff began driving off, only to suddenly stop and cause the accident.

At trial, plaintiff presented evidence regarding her medical damages. Her treating chiropractor testified that “the treatments he provided were reasonable and necessary and stated that [plaintiff’s] injuries were the result of the traffic accident involving [defendant].” The total bill for plaintiff’s treatment was $13,440, and there was no real dispute at trial regarding the reasonableness or necessity of the charges. “Defense counsel did not submit any witness controverting the reasonableness of the charges that were billed, nor did defense counsel submit any proof rebutting the medical opinions testified to by [the chiropractor] as to the reasonableness or necessity of the treatment or as to the medical causation as a result of this accident.”

The jury found in favor of plaintiff and found her damages to be $7,831.67. Although the jury found defendant to be responsible, they also apportioned 44.58% of the fault to plaintiff, so her damages were accordingly decreased. After having her motion for a new trial denied, plaintiff appealed, asserting that “the damages awarded by the jury were disproportionate to the amount of damages proven at trial.”

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In Tatham v. Bridgestone Americas Holding, Inc., No. W2013-02604-SC-R11-CV (Tenn. Oct. 30, 2015), plaintiff brought a product liability action against defendants after her tire blew out and caused her to have a car accident, breaking her back. Plaintiff purchased rear tires for her vehicle from Firestone Complete Auto Care. She chose the tires because they were “the best value,” but could not remember whether the sales associate discussed any warranties with her. After having the tires installed, plaintiff never tested the air pressure and did not recall running over anything or having any problems with the tires. Less than three months after purchasing the tires, plaintiff was driving on the interstate when one of the tires suddenly failed, causing her to hit the guardrail and flip her car. According to a witness driving behind plaintiff, plaintiff was driving normally and a piece of black was flapping from the tire before the accident. When plaintiff’s car began to veer off the road, the witness saw something black that looked like pieces of a blow-out come out from under plaintiff’s car.

After the accident, a wrecker service towed plaintiff’s car, and her insurance company informed her the car was totaled. At the recommendation of her insurance company, plaintiff signed the title of her car over to the wrecker service, who subsequently destroyed the vehicle and tire. At this time, plaintiff had not yet hired an attorney. Eventually plaintiff did retain counsel and brought this product liability action on the grounds of strict liability, negligence, and breaches of the implied warranty of fitness, implied warranty of merchantability, and duty to warn.

Defendants moved for summary judgment two times, which the trial court denied. Defendants appealed, citing three issues: 1) whether the case should have been dismissed as a sanction for spoliation of evidence with regards to the destruction of the tire; 2) whether the trial court should have granted summary judgment as to causation and the issue of whether the tire was defective or unreasonably dangerous; and 3) whether the trial court should have granted summary judgment because Tennessee allegedly does not recognize the apparent manufacture doctrine.

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The Court of Appeals recently overturned a trial court’s decision that a somewhat recently reconstructed road constituted a dangerous road condition. In Church v. Charles Blalock & Sons, Inc., No. E2014-02077-COA-R3-CV (Tenn. Ct. App. Oct. 9, 2015), plaintiffs filed suit on behalf of two women who died in an automobile accident. The facts showed that a highway had been reconfigured to bypass a town. Before the construction, highway drivers had no stop signs and simply proceeded on a curvy road. The new configuration, which included a stop sign at a “T” style intersection and a subsequent turn, opened on July 13, 2009. When it opened, the new roadway had a stop sign, a white stop bar on the pavement, and a “stop ahead” sign.

After the road opened, the State learned that many drivers were failing to stop at the new sign. In an email from a TDOT engineer to superintendent of maintenance, the engineer said that rumble strips had been suggested as a possible solution at the intersection. Rumble strips were never added, but changes were made following an accident in October 2009. In December, a junction sign was added before the intersection; large “stop ahead” signs were placed 320 feet before the intersection on both sides of the road; a directional sign with an arrow was placed before the intersection; two larger stop signs were placed on both sides of the road; and a two-headed arrow sign was placed across from the intersection.

On January 23, 2010, the driver here failed to stop her car at the stop sign and instead immediately proceeded to the right. She entered the path of oncoming traffic, causing a collision which killed her and her passenger. The evidence suggested that this was most likely her first time to drive through the newly constructed intersection, as she had been recovering from a back surgery.

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In Moreno v. City of Clarksville, No. M2013-01465-SC-R11-CV (Tenn. Sept. 18, 2015), the central issue surrounded the interplay of the 90-day window provided by Tenn. Code Ann. § 20-1-119 to add a non-party named by a defendant as a comparative tortfeasor and the process for filing a claim under the Tennessee Claims Commission Act.

Plaintiff was injured when a tree fell on his car as he was driving across a bridge on December 24, 2009. Within one year of the accident, plaintiff followed the procedure outlined by the Claims Commission and filed written notice of his claim against the State of Tennessee with the appropriate authority, the Division of Claims. The Division of Claims neither honored nor denied plaintiff’s claim within the 90-day period set out in the Claims Commission Act, and the claim was accordingly transferred to the administrative clerk of the Claims Commission. Plaintiff received an order from the Claims Commissioner on March 30, 2011, stating that he needed to file a complaint, which he did on April 14, 2011. The State filed an answer to the complaint on May 18, 2011, but did not mention comparative tortfeasors. On September 18, 2012, sixteen months after the initial answer, however, the State moved to amend its answer to name the City of Clarksville as being comparatively at fault. Pursuant to this new answer, plaintiff initially filed a motion to amend his complaint in the Claims Commission to add the City of Clarksville. He later, however, withdrew this amendment and instead filed suit against the City of Clarksville in Circuit Court.

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In Parsons v. Wilson County, No. M2014-00521-COA-R3-CV (Tenn. Ct. App. Sept. 3, 2015), plaintiff fell from the top bunk bed he was assigned while he was an inmate at Wilson County jail, and he sued the county under the Governmental Tort Liability Act (GTLA) for negligence in failing to assign him to a bottom bunk. According to plaintiff, he informed employees at the jail of his need for a bottom bunk during the intake procedure, citing “existing shoulder and neck injuries.” When he was assigned to a cell, though, he was assigned a top bunk. While getting out of the bunk after sleeping in it, he fell and injured his shoulder.

At trial, the county employee who oversaw management of the jail testified that “a procedure was in place to determine which inmates received a bottom bunk.” The procedure included forms completed during intake, which were then sent to a medical unit where nurses could “review the forms, meet with inmates, determine whether an inmate is able to be placed in the general population in that jail, and make the decision about whether or not the inmate’s medical needs necessitate that the inmate be assigned a bottom bunk.” Based on the testimony of this employee, plaintiff, and a physician, the trial court ruled in the County’s favor. The trial court ruled that the county was performing a discretionary function under the GTLA and thus retained immunity; that the county “had no duty in this case to provide Plaintiff with a bottom bunk;” that there was no breach of duty to plaintiff; that it was not foreseeable that plaintiff would jump from his bed; and that “Plaintiff was guilty of more than fifty percent (50%) of the fault.” While the Court of Appeals affirmed the ruling in the County’s favor regarding duty, it also reversed two of the trial court’s specific rulings.

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The Court of Appeals recently released an extensive opinion in a Tennessee car accident case, full of issues regarding evidence and trial questions. Three of the findings in this opinion are critical for tort lawyers to familiarize themselves with: (1) that where there is evidence that a plaintiff could not see an approaching car, a directed verdict for the defendant was not negligent would not be appropriate; (2) that long-term care damages can be causally related to the accident and recoverable, despite the age of the plaintiff; and (3) that an award of non-economic damages should be reduced by any comparative fault finding before the statutory cap is applied.

In Monypeny v. Kheiv, No. W2014-00656-COA-R3-CV (Tenn. Ct App. April 1, 2015), a married couple who were 82 and 90 years old were driving in a vehicle that was struck by defendant. Evidence showed that prior to the accident, the husband and wife were both quite active and lived completely independently. Following the accident, however, the wife died a few months later in the hospital as a result of injuries sustained therein, and the husband went through the hospital, rehabilitation facility, and then an assisted living center, never able to live independently again. Plaintiffs filed suit for economic and non-economic damages, asserting that defendant’s driving caused the crash, while defendant responded that plaintiff husband (the driver at the time) was at fault. Because the driver of the other car was not insured, plaintiffs’ uninsured motorist carrier acted as defendant. At trial, the jury found for plaintiffs, and the Court of Appeals affirmed.

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