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Articles Posted in Miscellaneous

Where plaintiff claimed that defendant created a nuisance by allowing debris to drain onto her land and by causing a sewage smell, but the only evidence consisted of conflicting witness testimony with the trial court crediting defendant’s testimony, dismissal of the nuisance claim was affirmed.

In Magness v. Couser, No. M2019-01138-COA-R3-CV (Tenn. Ct. App. April 27, 2020), the parties were neighbors who had been involved in contentious litigation since 2004, including claims and counterclaims from both parties. At issue in this appeal was Ms. Couser’s (hereinafter plaintiff) nuisance claim against Mr. Magness (hereinafter defendant). In June 2004, defendant had begun constructing a large commercial building on his property that was located close to plaintiff’s property line. Plaintiff alleged that “the construction of the large building resulted in gravel and debris draining onto her land” even after the completion of the construction in 2006. Plaintiff alleged that the runoff created a gully on her property, destroyed her fence, and that it was destroying a natural spring. In addition to the claim based on runoff, plaintiff alleged defendant created a nuisance by incorrectly installing a septic tank and causing a “sewage smell and foul odor” to permeate her property.

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We have seen several wrongful death lawsuits filed the the families of deceased employees, claiming that the employers negligently caused the death of the decedents by, for example, “knowing” about the decedent’s COVID-19 symptoms and disregarding them.  Here is an example on one such lawsuit in Illinois.   

The Illinois lawsuit alleges “The lawsuit alleges Walmart was negligent because it did not adequately clean the store, enforce social distancing, notify employees about colleagues who were showing coronavirus symptoms and provide protective gear, such as gloves and masks.”

Candidly, we don’t know anything about Illinois law, but we can tell you that dog won’t hunt in Tennessee.  Tennessee has a very strong “exclusivity doctrine,” which means that subject to several exceptions (discrimination lawsuits, for example – see Anderson v. Save-A-Lot, Ltd., 989 S.W.2d 277 (Tenn. 1999)) an employee (or in the event of death an employee’s family) only right to sue an employer for conduct in the workplace that gives rise to injury or death is under the law of worker’s compensation (not the law of negligence).

Where a plaintiff was injured while working on a construction site owned by defendant, but the trial court ruled that plaintiff was actually an employee of an independent contractor retained by defendant, the Court of Appeals affirmed a jury verdict finding defendant only 10% at fault for plaintiff’s injuries.

In Helton v. Lawson, No. E2018-2119-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2019), Defendant was having a house built on a piece of property that he owned, and he had retained “local handyman Gene Housewright” to help. Housewright was then contacted by plaintiff, who was looking for a job, and Housewright told him he needed laborers for defendant’s house project. On November 6, 2012, Housewright and another worker had assembled bracing to be used when working on the house. Later than day, plaintiff was standing on the bracing and was injured when the bracing pulled loose from the house, causing him to fall.

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The Tennessee Court of Appeals recently held that “the statute of limitations for false imprisonment claims does not begin to run until the imprisonment ends.”

In Lovell v. Warren County, Tennessee, No. M2019-00582-COA-R3-CV (Tenn. Ct. App. Dec. 16, 2019), plaintiff had been arrested and put in jail on August 16, 2012. Later, the charges against her were dismissed and she was released from jail on August 5, 2013. She filed this false imprisonment claim on June 6, 2014. Defendant filed a motion for summary judgment based on the one-year statute of limitations, which the trial court granted, but the Court of Appeals reversed.

There was no dispute that the statute of limitations for false imprisonment was one year, but the parties disagreed over when the one year time period began to run. Defendant argued that the cause of action accrued when plaintiff was first put in jail, but plaintiff asserted that the limitations period did not begin until her release.

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Where an attorney working for a bank gave the bank president advice about his resignation but also recommended that he seek independent counsel, the Court of Appeals affirmed summary judgment on a negligent misrepresentation claim.

In Batten v. Community Trust and Banking Company, No. E2017-00279-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2019), plaintiff was the president and CEO of defendant bank. Plaintiff had an employment contract with the bank that included a provision allowing him to resign and receive 36 months of additional compensation. When the Tennessee Department of Financial Institutions (TDFI) examined the bank, it found serious problems, eventually declaring that the bank was in a troubled condition.

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Where defendants’ truck rolled into a duplex owned by plaintiff causing real property damage, a directed verdict for defendants on all but plaintiff’s negligence claim as well as a jury verdict for diminution in value to the property was affirmed.

In Twenty Holdings, LLC v. Land South LLC and Brandon Majors, No. M2018-01903-COA-R3-CV (Tenn. Ct. App. Sept. 5, 2019), plaintiff owned a duplex in Nashville, and defendant Majors lived nearby. Majors drove a tractor trailer truck for defendant Land South, and on the day of the incident, he “parked the truck, with an attached 53 foot trailer…, near his residence at the top of a steep hill with the front of the truck pointing toward the drop off of the hill and toward Plaintiff’s property.” Within hours of the truck being parked, it rolled down the hill. The trailer detached from the truck, but the truck portion struck the duplex and stopped in one of the living rooms, causing significant damage to the building. According to Majors, he had parked the truck on a safe area and “took various precautions in securing the tractor-trailer, including engaging the parking brake, placing garden timbers under the wheels, letting the trailer down, and placing the tractor-trailer in reverse.”

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Where a commercial plaintiff suffered only economic damages due to the purchase of allegedly defective trucks, its fraud claim was barred by the economic loss doctrine. In Milan Supply Chain Solutions Inc. F/K/A Milan Express Inc. v. Navistar Inc., No. W2018-00084-COA-R3-CV (Tenn. Ct. App. Aug. 14, 2019), plaintiff purchased over 200 trucks from defendant to use in its logistics and hauling company. The trucks were covered by a standard “Limited Warranty,” and plaintiff purchased “Optional Service Contracts.” Under these agreements, defendant “agreed to repair or replace parts of the trucks that proved defective,” but the documents also stated that “no warranties were given beyond those described in the warranty documents…”

Plaintiff filed suit against defendants alleging that the trucks were defective and that that defendant had made “a number of misrepresentations concerning the trucks.” The complaint included claims for breach of contract, breach of express and implied warranties, violation of the Tennessee Consumer Protection Act, and fraud. While several claims were dismissed prior to trial, the claims against defendant Navistar proceeded to jury trial, and the jury entered a verdict for plaintiff on the intentional misrepresentation claim. The Court of Appeals, however, reversed, finding that the “asserted fraud claims [were] barred by the economic loss doctrine.”

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The Florida Supreme Court ruled that it is appropriate for a lawyer to pay professionals who were fact witnesses in a commercial litigation controversy for their assistance directly related to case and discovery preparation.

In Trial Practices, Inc. v. Hahn, Loeser & Parks, LLC, the court addressed the issue of whether the disciplinary rules in effect at the time of the events permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation that is not directly related to the witness preparing for, attending, or testifying at proceedings.  The answer: no – a party may pay only for assistance directly related to the witness preparing for, attending, or testifying at proceedings.

Thus, it was appropriate to compensation the lawyers and accountants involved (who were fact witnesses) for time invested by them in responding to discovery, deposition preparation, etc.  but not time in reviewing motions.

 

 

 

A defendant can be liable for nuisance damages even when the nuisance occurred on property that neither plaintiff nor defendant owned.

In Ryan v. Soucie, No. E2018-01121-COA-R3-CV (Tenn. Ct. App. July 18, 2019), plaintiff filed a claim for nuisance and intentional interference with business relationships after defendant blocked a right-of-way plaintiff used to access his business. Plaintiff operated a business on property that had been rezoned from residential to commercial in 1995, and defendant owned a home on property nearby. Plaintiff informed defendant that he operated a heat and air business on his property, and that he used a right-of-way over state-owned property to provide access to his supplier and his waste management company. Believing that the property was all zoned as residential, defendant impeded plaintiff’s use of the right-of-way by planting trees on it and parking a trailer in front of the gate to plaintiff’s property.

The trial court found for plaintiff on both claims and awarded him over $14,000 in damages, and the Court of Appeals affirmed.

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