The Tennessee Supreme Court yielded to the Legislature’s decision to impose a cap on the amount of money that can be awarded to people harmed by the carelessness of others. The law was passed in 2011. The law requires judges to reduce jury awards for human losses (called “noneconomic damages by the legislation) to $750,000 in most cases.
The 3-2 decision was authored by Chief Justice Bivins. There was one concurring opinion and two dissents. Click on the links below to read them.
Want a primer on the law of compensatory damages in Tennessee? Then look at Hyde v. South Central Tennessee Development District, No. M2015-02466-COA-R3-CV (Tenn. Ct. App. July 14, 2017), defendant admitted liability for a car accident but challenged the damages awarded to plaintiff by the trial court.
On June 14, 2013, defendant’s employee ran a red light and hit the driver’s side of plaintiff’s car. On the day of the accident, plaintiff was taken to a hospital and “was diagnosed with a strain in her thoracic spine and a contusion to her right leg, and discharged with pain medication.” Two days later plaintiff went to a different hospital complaining of head pain and was diagnosed with a headache. Five days after the accident, plaintiff went to a chiropractor “complaining of muscle spasms in her lumbar spine and aches throughout her body.” Plaintiff treated with the chiropractor from June 19 until October 10. In addition to her treatment with the chiropractor, plaintiff went to her primary care doctor on August 20 and November 20, as well as January 27 of the following year.
Defendant admitted liability and a bench trial was held as to damages. The trial court awarded plaintiff $271,378.95 in compensatory damages, and this appeal followed, with defendant challenging the trial court’s damage calculations.
Who has the right to recover medical expenses incurred for personal injuries to children in Tennessee? The parents? The minor? Either but not both? Does it make any difference if there is a holder of a subrogation interest which has a right to assert a claim against either the parents or the minor?
My recent article on the subject appears on PDF Page 38 of a recent edition of the Tennessee Bar Journal.
An excerpt:
In West v. Epiphany Salon & Day Spa, LLC, No. E2016-01860-COA-R3-CV (Tenn. Ct. App. April 25, 2017), the Court of Appeals affirmed a large remittitur in a negligence case, reducing the jury’s award by over 61%.
Plaintiff had gone to defendant salon for a facial treatment in 2012. According to her testimony, her “face began burning upon application of the treatment” and she “rushed home in pain.” She filed this negligence action, alleging that her face never recovered from the treatment.
In Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016-00447-COA-R9-CV (Tenn. Ct. App. Jan. 9, 2017), the Court of Appeals addressed the issue of whether parents in Tennessee may “bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements,” affirming the existing common law rule such agreements were not enforceable against a child when signed by a parent. The Court also discussed whether a minor had the right to seek recovery of medical expenses in a personal injury case.
Mother took her son to defendant trampoline park, and on their first visit mother was required to sign a “Customer Release of Liability and Assumption of Risk.” This form purported to waive liability for any injury on behalf of both mother and son, and it contained a choice of law provision naming California law as governing the agreement as well as a forum selection provision stating that litigation would be brought in California. The release stated that it would be effective until the son was eighteen. At a later visit, son was injured, and son and mother both brought this action against defendant trampoline park in the Davidson County Circuit Court.
Defendant filed a motion to enforce the contract in the trial court, arguing that the claims had been waived and that the case had to be brought in California and governed by California law. Mother voluntarily dismissed her claim against defendant, and the trial court subsequently denied defendant’s motion to enforce the contract. The trial court found that “neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has ‘a more significant relationship to the facts surrounding this case.’” The trial court also held that the liability waiver did not operate to waive son’s claims, as “such a contract is not permissible in Tennessee.” In a lengthy decision, the Court of Appeals ultimately affirmed all three of these holdings.
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 standing up. He grabbed the handrail, which pulled out of the wall, causing him to fall and hit his head. Plaintiff presented testimony from himself and a doctor who had treated him both before and after the incident, as well as a deposition from the neurologist he saw after the fall. Plaintiff presented evidence that since the fall, he had experienced migraines and light sensitivity. He testified that this affected his life in several ways. He had to abandon his 14-year career in television production and instead go into radio because of his light sensitivity. Plaintiff asserted that the migraines were “debilitating, requiring him to ‘get out of the light’ and stay in a dark, cool space until the pain subsides.” Plaintiff admitted at trial that he was “not actively seeking treatment from a physician for his migraines and that he currently use[d] over-the-counter medication to treat his condition.”
At trial, the parties stipulated that plaintiff’s medical expenses were $5,310 and that he had a life expectancy of 38.36 years.
In State Farm Mutual Auto. Ins. Co. v. Blondin, No. M2014-01756-COA-R3-CV (Tenn. Ct. App. Mar. 14, 2016), the central issue was whether plaintiff had asserted its claim for personal injury damages in a timely fashion. State Farm was subrogated to its insured’s right to recovery following an accident between the insured and defendant’s daughter. The accident occurred on July 7, 2009, and State Farm filed a civil warrant in general sessions court on May 17, 2010. The warrant stated that State Farm brought the action “to recover damages to the property of plaintiff’s insured, Jenny R. Rone, caused by the negligence of the defendant. The date of loss was July 7, 2009. The amount of damages totaled $7,371.22…”
On July 15, 2010, more than one year after the accident, State Farm filed a motion to amend the warrant to say: “Suit to recover damages to the property and person of plaintiff’s insured…. The amount of damages totaled $24, 999.99…” The general sessions judge denied the motion to amend, writing on the motion that it was “denied as to personal injuries. Statute of limitations has expired.”
Following the denial of the motion to amend, State Farm filed a motion to remove the case to circuit court, which was also denied. State Farm then voluntarily dismissed the case without prejudice. State Farm refiled in general sessions court within the one-year allowed by the savings statute, but this time the warrant stated that it was “to recover damages to the person and/or property of plaintiff’s insured.” This warrant listed damages at $7,371.22. Defendant moved to dismiss this action based on timeliness, and the general sessions court dismissed the case. State Farm appealed to the circuit court and also filed an Amended Complaint seeking $44,124.57 in damages. Defendant again moved to dismiss, which was denied, and ultimately State Farm got a judgment for $20,575, which was reduced by 20% because the court found the insured to be 20% at fault. Defendant then appealed to the Court of Appeals, which ultimately dismissed the personal injury portion of State Farm’s claim.
In Garvin v. Malone, No. M2015-00856-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2016), plaintiffs sued defendant after defendant’s van ran into the rear of plaintiffs’ car. After a jury found for defendant, the issue on appeal was whether photographs showing damage to the vehicles should have been admitted since plaintiffs had not made a claim for property damage.
Defendant was traveling behind plaintiffs, a husband and wife, when a police car traveling in the opposite lane allegedly crossed into plaintiffs’ path. Plaintiff husband was driving and slammed on the brakes. Defendant hit her brakes as well, but “was unable to prevent her van from hitting the rear bumper of the [plaintiffs’] vehicle.” Plaintiffs brought a negligence claim seeking personal injury damages and loss of consortium–$825,000 for husband and $75,000 for wife.
During trial, plaintiff husband testified that he felt a “heavy impact,” and that the accident “impacted [him] heavily.” He admitted that he had no cuts or bruises, and that his body did not touch anything during the accident, but that he was “moved around in [his] vehicle.” Likewise, plaintiff wife testified: “I wasn’t thrown; I was just thrown forward…my body didn’t hit anything except to just react.” Defendant testified, however, that the accident was much less substantial, stating that she “tapped the passenger side rear bumper, about maybe an eight-inch mark, but didn’t see any paint off or anything.”
Here are some of the most recent statistics concerning tort claims and trials in the Tennessee court system for the fiscal year ending June 30, 2015:
The Tennessee Supreme Court has ruled that the constitutionality of the artifical cap on non-economic damages in tort cases should not be examined by the courts until after a plaintiff receives a verdict in excess of the cap.
The decision comes in the Clark case out of Chattanooga. The trial judge in that case ruled that the caps were unconstitutional. Tennesssee’s High Court said the ruling was premature. The Order can be reviewed by clicking on the link below
From a practical standpoint, this means that a supreme court review of the caps is at least two years off. Why? Because that is how long it takes, on average, from a verdict to go through the entire appellate process. It is possible that a case with a verdict over the caps is in the pipeline right now but I have not heard of such a pending case. Please let me know via a comment if you are aware of one.
Day on Torts