Articles Posted in General Negligence Action

The plaintiff in Akers v. McLemore Auction Co., LLC, No. M2012-02398-COA-R3-CV (Tenn. Ct. App. May 27, 2014) chose to hire an auction company to sell his real and personal property that the plaintiff valued at more than $350,000, but chose to go pro se in suing the auction company. That might explain why the appellate opinion needed ten pages to summarize – and affirm – the trial court’s Tenn. R. Civ. P. 12.02(6) dismissals on the plaintiff’s four claims against more than twenty defendants.

One potentially helpful nugget for other cases is the appellate court’s discussion of the dismissal of claims against an individual defendant affiliated with the auction company. The plaintiff alleged, in pertinent part, that the individual defendant was a “person” who called himself the auction company’s President, but who was really the sole member of the auction company’s LLC. The trial court dismissed the claims against the individual defendant under Rule 12.02(6), finding there were no facts to support the plaintiff’s allegation that the defendant “was acting outside his capacity as agent for [the auction company] at any time.”

The Court of Appeals concluded that the trial court erred on this point. A trial court is bound to review only the complaint for purposes of Rule 12.02(6), and nothing in the complaint alleged that the individual defendant was ever acting on behalf of the auction company. For this reason, he should not have been dismissed.

A recent opinion of the Tennessee Court of Appeals in case reminds us that a company’s internal policies, while not dispositive, are relevant to the standard of care for its employees.

After a bench trial, the trial court found Defendant was not negligent, and the Court of Appeals reversed based on the testimony of Defendant’s employees.  Defendant provides door-to-door transportation services, with many of the passengers elderly or disabled. Defendant’s driver testified that he was aware of Defendant’s policies and procedures, particularly those requiring the driver to be aware of any walking surfaces that the passenger must travel upon, and those requiring the driver to keep a passenger within the driver’s line of vision in case the driver needs assistance. The driver also admitted that Defendant had a written policy requiring the driver to stay close to the passenger while walking in case the passenger needed assistance.

In this case, the driver testified that he noticed before picking up the passenger that there was frost on the ramp the passenger would use to exit her home. While the passenger was on the ramp, the driver turned back into the passenger’s home to get a bag for her. When he turned back, he saw that she was falling but she was six to eight feet away from him, which the driver admitted was not close enough to provide assistance. The Court of Appeals found this evidence preponderated against the trial court’s finding that the driver was not negligent.

The Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Tennessee Judiciary.   Over the next few days I will share some data from the Report.

We begin with medical malpractice cases.  In the fiscal year ending June 30, 2010, 429 medical malpractice cases were resolved by judgment, settlement or dismissal.  Only 324 new cases were filed.  

There were only 30 medical malpractice cases actually tried in state court in Tennessee during the fiscal year.  The total awards for the patient in those cases were $7,128,800.  Unfortunately, the Report does not indicate the number of cases won by the patient or by the health care provider.  Historically, that number is about 20% of all trials.

What does tort law tell us about liability for injuries arising during sporting events and, in particular, contact sports?  The recent case of Feld v. Borkowski gives us the answer, at least from the standpoint of the Iowa Supreme Court.

Plaintiff and defendant were playing intramural softball .  Defendant hit the ball and let go of the bat at the same time.  The bat flew through the area, striking and injuring plaintiff (who was playing first base).  Plaintiff filed a negligence suit, and defendant sought dismissal of the suit arguing that softball was a contact sport and thus he could only be sued if his conduct was reckless.

The Iowa Supreme Court agreed, saying that 

The Iowa Supreme Court has released an opinion in Thompson v. Kaczinski, 2009 WL 3786632 (Iowa 2009) and adopted the Restatement (Third) of Torts approach to both duty and causation. The case arose after  "a motorist lost control of his car on a rural gravel road and crashed upon encountering a trampoline that had been displaced by the wind from an adjoining yard to the surface of the road. He and his spouse sued the owners of the trampoline."  The lower court dismissed the case, holding that the defendants did not owe a duty to the plaintiffs and that causation did not exist as a matter of law.

“An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liab. for Physical Harm § 7(a), at 90 (Proposed Final Draft No. 1, 2005).  As the Court explained, "

[I]n most cases involving physical harm, courts “need not concern themselves with the existence or content of this ordinary duty,” but instead may proceed directly to the elements of liability set forth in section 6. Id. § 6 cmt. f, at 81. The general duty of reasonable care will apply in most cases, and thus courts “can rely directly on § 6 and need not refer to duty on a case-by-case basis.” Id. § 7 cmt. a, at 90.

I grew up in Spencer, Wisconsin, a village of about 1000 (less in the 1960 census, more in the 1970 census) in North Central Wisconsin.  The closest city was Marshfield, at eight miles to the south on Highway 13,  which at the time had about 15,000 people, a J.C. Penny store,  a mail order-only Sears store and, by the time I was a senior in high school in 1973-74, a McDonald’s.   My home county had more dairy cows than people.  When I tease my wife about her hometown (Karns, Tennessee), she quickly reminds me that at least her birthplace had a red light and a Hardee’s.  We had neither, although from time to time in some summers we had a local family run a root beer stand that we referred to as the "ringworm stand" because of a physical affliction suffered by several employees.

You get the picture.

Every June we had a three-day festival called "Spencerama," which provided not only a parade, a Spencerama Queen, and a carnival but, most importantly, a three-day excuse to drink beer to excess in an outdoor public place (as opposed to a indoor public place offered by one of the six bars in town).  This extravaganza was held in the Spencer Village Park, just across the parking lot from the fire station.  The carnival surrounded a wooden pavilion built to house (you guessed it) the beer garden.

Can a motorcycle dealer be held liable for selling a motorcycle to a person who did not have a motorcycle license?

Not in Mississippi.  The Mississippi Supreme Court recently considered a case where a dealer sold a motorcycle to an 18-year who it knew was not a licensed operator.  A representative of the dealer who knew the buyer was not licensed allowed him to leave the dealership on the bike and saw him operating it in town.  The buyer died in a motorcycle wreck three days later.

The Court first rejected a claim for negligent entrustment, saying that it did not exist in the context of a sales transaction.  It also found no duty under the common law for selling the motorcycle to an unlicensed driver. 

The statute of limitations is tolled when the plaintiff is of unsound mind.  Tenn. Code Ann. §  28-1-106.  Does the fact that a Durable Power of Attorney (executed before the incompetency) is in existence trump the tolling statute and require the attorney-in-fact to take action within the original statute?

The Tennessee Court of Appeals said "no" in Sullivan v. Chattanooga Medical Investors, L.P.,  No. M2004-02264-COA-R3-CV –  (January 26, 2006).   See the original opinion here.

Judge Susano put the issue this way:  "Is the tolling effect  of Tenn. Code Ann. § 28-1-106 implicated when an individual, while competent, grants another a  durable power of attorney, including the power to act for the grantor with respect to “claims and  litigation”? The crux of both the defendant’s argument and the trial court’s holding in opposition  to the application of § 28-1-106 is that, by granting a durable power of attorney, the deceased  removed himself and the plaintiff from the ambit and protection of § 28-1-106."

The Kentucky Supreme Court has just released an opinion that discusses the elements of the tort of negligent supervision of a minor.

This is the law in Kentucky: “A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.”

The Court held that “It is not negligent supervision per se for parents to fail to monitor their teenager twenty-four hours a day when the parents are not aware of, and have no reason to be aware of, any particular risk necessitating such intensive monitoring. Parents owe no duty to third parties to supervise or control their minor child to prevent the child from harming others unless the parents know, or should know, of the need and opportunity to exercise such control and the parents have the ability to exercise such control. The mere fact that the parents do not have the ability to exercise control is not, in and of itself, proof that the parents violated a duty to control their child to prevent him from harming others. The Fritz appellants have not presented any evidence to establish either that the Hugenbergs knew, or should have known, of a need to prevent Mikael from drinking and driving and of an opportunity to prevent him from doing so or that the Hugenbergs had the actual, physical ability to have prevented Mikael from drinking and driving on the evening of September 18, 1999. Therefore, summary judgment was properly granted on the negligent supervision claim.”