Comparative Fault

November 23, 2015

Impact of Lost Product Under Tennessee Products Liabilty Law

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.

November 9, 2015

Alleged Road Defect Case Rejected by Tennessee Court of Appeals

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

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.

October 6, 2015

Tennessee Effectively Reduces Statute of Limitations in Claims Filed Against the State

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

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.

September 22, 2015

Following Established Procedure Not A Discretionary Function Under Tennessee GTLA

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

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.

April 23, 2015

Is Plaintiff’s Fault Percentage Applied Before or After Tort Reform Damage Cap?

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

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.

April 12, 2015

Ill-Maintained Bridge Leads to Premises Liability for City

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

Tennessee cities, counties and other types of governmental entities are generally immune from suit for damages arising from personal injury and wrongful death claims. However, a special law, the Governmental Tort Liability Act (GTLA), allows Tennessee cites and counties to be sued for pseronal injury or wrongful death under certain circumstances by removing that immunity.

One special circumstance where a city or county can be held responsible for a personal injury is where injury is caused by “the dangerous or defective condition of any public building, structure,…or other public improvement owned and controlled by such governmental entity.” Tenn. Code Ann. § 29-20-204(a). In order for liability to be removed pursuant to this statute, the governmental entity in question must have had actual or constructive notice of the dangerous condition. “[A] governmental entity will be charged with constructive notice of a fact or information, if the fact or information could have been discovered by reasonable diligence and the governmental entity had a duty to exercise reasonable diligence to inquire into the matter.” (Quoting Hawks v. City of Westmoreland, 960 S.W.2d 10 (Tenn. 1997)).

In Kee v. City of Jackson, No. W2013-02754-COA-R3-CV (Tenn. Ct. App. March 30, 2015), plaintiff was injured while walking across a wooden bridge from a parking area to the city fairgrounds during a flea market. The bridge was owned and maintained by the city. Plaintiff brought a premises liability claim against the city, and the trial court found for plaintiff, deeming the city liable but finding that plaintiff was 40% comparatively negligent and reducing her award accordingly. The city appealed, and the Court of Appeals affirmed the trial court’s judgment.

Plaintiff alleged that the bridge had a “broken rotten runner,” “nails sticking up in more than one place,” and that “the planks were not even and that gaps exist between the boards in various places on the bridge,” as shown by pictures taken two days after the incident. Although there was no allegation or evidence that the city had actual notice of the dangerous condition of the bridge, the Court determined that plaintiff was proceeding under the “common occurrence” theory, meaning that “a plaintiff can show constructive notice by proving that a pattern of conduct, recurring incident, or general continuing condition caused the dangerous condition.” (Quoting Benn v. Public Bldg. Authority of Knox County, 2010 WL 2593932 (Tenn. Ct. App. June 28, 2010)). Continue reading

May 29, 2014

Negligent Failure to Have a Nightlight? Nope

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

The Tennessee Court of Appeals recently affirmed the dismissal of plaintiff’s premises case in Smith v. Stanley, No. E2013-00886-COA-R3-CV (Tenn. Ct. App. May 12, 2014).

Plaintiff visited a cabin with her sister and cousin. The cabin was owned by defendants, who are plaintiff’s aunt and uncle. Plaintiff was the first to enter the cabin after her cousin opened and held the door open for her. It was nighttime, and the inside of the cabin was completely black. There were light switches inside the cabin beside the entry way, but plaintiff did not turn them on. Plaintiff took at least one step and probably several more before she fell backwards down a staircase. She was knocked unconscious from the fall and suffered multiple injuries.

The trial court granted summary judgment after finding that defendants did not owe plaintiff any duty. Relying on the Tennessee Supreme Court case of Eaton v. McLain, 891 SW.2d 587 (Tenn. 1994), the trial court ruled that it was not reasonably foreseeable that plaintiff would enter an unfamiliar area in the dark without turning on any lights.

January 7, 2014

You Only Get One Shot with Tenn. Code Ann. § 20-1-119 – The 90-day Extension is Based on the Date of Filing of the First Answer

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

Tennessee has a unique statute that allows a plaintiff to sue a nonparty tortfeasor alleged to have fault in a negligence case after the expiration of the one-year statute of limitations. the statute is triggered if a defendant sued within the original statute of limitations period blames the nonparty and the plaintiff either files an amendment to the pending lawsuit or files a separate lawsuit within 90 days of the filing date of the defendant’s answer raising an allegation of the nonparty’s fault. The statute is Tenn. Code Ann. § 20-1-119.

This statute has been the subject of many appeals in Tennessee, and was most recently addressed by the Middle Section of our Court of Appeals in Morris v. Phillips.

In this case, the Plaintiff was injured in a multi-vehicle wreck in August of 2010. Plaintiff sued the Driver and the Record Owner of the vehicle. In December 2011, Record Owner filed an answer alleging the fault of three Other Tortfeasors. In July 2012, Driver filed an answer also alleging the fault of the same three Other Tortfeasors. Plaintiff filed an amended complaint bringing the Other Tortfeasors into the lawsuit in August 2012, which was more than 90 days after the first answer alleging the fault of Other Tortfeasors was filed. One of the Other Tortfeasors filed a motion to dismiss on grounds that the statute of limitations had expired because of Plaintiff’s failure to file an amended complaint within 90 days of the first allegation of fault against Other Tortfeasors.

January 1, 2014

Statutes of Repose and Comparative Fault in Tennessee

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

The Tennessee Bar Association has published the most recent edition of the Tennessee Bar Journal, which includes my latest article "Protecting Yourself From Statutes of Repose."

The article discusses the impact of statutes of repose on tort recoveries in cases involving comparative fault and gives tips to lawyers on how to avoid adverse consequences of statutes of repose.

Ironically, and in the very same edition of the Tennessee Bar Journal in which I criticize statute of repose, the Tennessee Bar Association announces that it has decided to ask the Tennessee General Assembly to grant one to lawyers. From the TBA President:

May 4, 2012

Tennessee Comparative Fault Law is 20 Years Old Today!6

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

Today, May 4, 2012, is the 20th anniversary of the landmark McIntyre v. Balentine opinion, the case where the Tennessee Supreme Court adopted modified comparative fault.

All in all, most would say that the comparative fault scheme in Tennessee improved the quality of the civil justice in Tennessee. I agree. For the most part, the Tennessee Supreme Court has done a fine job developing the common law in this important field.

There is one notable exception, although it is not entirely the Tennessee Supreme Court’s fault.