Articles Posted in Miscellaneous

Where the jury found the defendant not liable but also added a statement to the verdict that the defendant and others in the industry should look into safer practices, the verdict for defendant was affirmed. In Chase v. Ober Gatlinburg, Inc., No. E2020-00649-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2021), plaintiff filed this negligence suit against defendant ski resort after being injured in a snowboarding accident. According to plaintiff, she attempted to avoid a collision with another skier and fell, sliding into “one of the posts in a fence marking the edge of the ski slope.” While the post furthest uphill was padded, the lower post that plaintiff fell into was a square 4×4 with no padding. Plaintiff asserted that the use of square, unpadded posts constituted negligence on defendant’s part.

At trial, defendant presented testimony from an expert on ski area operations, safety, and risk management. The expert stated that “Defendant’s fencing practices were consistent with, or exceeded, the general practices in the ski resort industry,” and he presented photos of at least three other resorts that used similar fencing.

While the jury was deliberating, it asked if could make a comment in addition to the reading of the verdict, which the trial court allowed after no objections from either sides’ counsel. The jury ultimately returned a verdict finding that defendant was not at fault, but added as a comment: “We, the jury, are in one accord that Ober and the ski industry should look into using materials for posts with rounded corners or more padding.” On appeal, the defense verdict was affirmed.

Where plaintiff only presented proof that his property was damaged during shipment but did not present any proof sufficient to allow the trial court to assess his damages, involuntary dismissal was affirmed. In Matthews v. UPS Store Center 3138, No. E2020-00255-COA-R3-CV (Tenn. Ct. App. June 25, 2021), plaintiff filed suit after his personal property was damaged during shipment. Plaintiff had taken a stereo receiver to defendant store to be shipped, and he purchased the packing materials recommended by the clerk. The store clerk packed the receiver, but plaintiff was later informed by the recipient that the receiver was damaged during the shipment.

Plaintiff filed suit against the UPS store and the clerk in general sessions court, where he won, but he appealed to the circuit court for a new trial. After plaintiff closed his proof, defendants moved for dismissal, which the trial court granted and the Court of Appeals affirmed.

The trial court granted dismissal based on plaintiff’s failure to present sufficient proof of his damages. Plaintiff argued that the trial court erred by excluding two affidavits from the recipient of the damaged package, as well as photographs of the damaged receiver. Without ruling on the admissibility of the excluded evidence, the Court ruled that dismissal was appropriate here. The Court explained:

Where the landlord misrepresented the state of a building’s roof at the time the lease was executed, knowing that it could not be quickly repaired and that previous repair attempts had failed, the trial court’s finding for the tenant on the negligent misrepresentation claim was affirmed.

In Pryority Partnership v. AMT Properties, LLC, No. E2020-00511-COA-R3-CV (Tenn. Ct. App. Mar. 10, 2021), landlord and tenant executed a lease agreement for a commercial warehouse with the understanding that the tenant would operate a factory/machine shop in the building. At the time the lease was executed, the tenant knew that the roof leaked, but the landlord had represented that the roof would be quickly repaired. When the roof was not repaired six months into the lease, tenant did not make the scheduled payment under the lease, and the landlord brought this suit for breach of contract. The tenant filed a counter-complaint for breach of contract and negligent misrepresentation, and the trial court found for the tenant on both claims, which the Court of Appeals affirmed.

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Where plaintiff’s tort claims against the church and church elders where he was previously pastor were all connected to the church’s termination of plaintiff as pastor and his resistance to that termination, the claims were barred by the ecclesiastical abstention doctrine.

In Maize v. Friendship Community Church, Inc., No. E2019-00183-COA-R3-CV (Tenn. Ct. App. Oct. 19, 2020), plaintiff was the former pastor at defendant church. After plaintiff had inappropriate communications with a female church member on Facebook, the church elders (also named as defendants) met and subsequently requested plaintiff’s resignation. Plaintiff refused and was then given a termination letter, which he “refused to abide by.” After a second termination letter was delivered to plaintiff, the church elders held another meeting, wherein “it was suggested that [the termination] had to be done through a church vote in order to be effective.” Because plaintiff was refusing to acknowledge his termination, the church sent an email to its members explaining the termination and stating that plaintiff was likely to attempt to hold church services.

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Where the correct acreage of a piece of real property was contained on a publicly recorded plat, plaintiffs could not maintain a cause of action for misrepresentation or concealment based on the seller or realtor stating that the property was larger than it actually was.

In Archer v. The Home Team, Inc., No. M2019-01898-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020), plaintiffs alleged that the seller and realtor of a piece of property they purchased represented that the property was 1.9 acres, when it was actually 1.16 acres. They filed suit against both the seller and realtor for multiple causes of action, including misrepresentation, concealment, and breach of contract. The trial court granted summary judgment to the defendants based on the fact that the correct acreage was listed on a publicly recorded plat, and the Court of Appeals affirmed.

For claims of either intentional or negligent misrepresentation, a plaintiff must show that he reasonably relied on the alleged misrepresentations. (internal citations omitted). In relation to the seller, plaintiffs alleged that the seller made one oral misrepresentation that the property was around 2 acres, but testimony showed that this statement was made “between middle of March to sometime before closing.” Plaintiffs, however, had signed the purchase and sale agreement on February 23rd, which was well before this oral statement was made. The Court thus ruled that “no reasonable trier of fact could find that Plaintiffs relied on [the seller’s] alleged misrepresentation of the acreage when deciding to purchase the property” and affirmed summary judgment.

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Where plaintiff fell and broke her hip in a grocery store due to her shopping cart missing a wheel, yet she mostly recovered from the injury, a jury verdict of approximately $90,000 in medical expenses and the maximum allowable amount of $750,000 in noneconomic damages was affirmed.

In Wortham v. Kroger Limited Partnership I, No. W2019-00496-COA-R3-CV (Tenn. Ct. App. July 16, 2020), plaintiff, an 88-year-old woman, went to defendant grocery store with her adult daughter. The daughter retrieved a shopping cart from the vestibule for plaintiff’s use, and plaintiff proceeded to shop for around thirty minutes. Near the end of her shopping trip, plaintiff turned her cart to the right and it tipped over, causing her to fall. After plaintiff fell, it was discovered that the shopping cart was missing one wheel, and despite searching the property, the missing wheel and/or parts that would have held the wheel in place were not found. Plaintiff broke a bone and injured her hip in the fall, and she required surgery. She spent time four days in the hospital and fourteen days in a rehabilitation center, and despite doing well, she testified that the she still had some pain and had lost much of her independence due to the fall.

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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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