Miscellaneous

December 8, 2015

Parents Win Dismissal of Case For Allowing Minor Daughter to Drive ATV

In Ward v. Ward, No. M2014-02237-COA-R3-CV (Tenn. Ct. App. Oct. 30, 2015), plaintiff sued for injuries her daughter sustained in an ATV accident. Daughter, who was 15 years old, was staying with her step-grandmother, the defendant in this action. Defendant gave daughter permission to drive defendant’s ATV to accompany defendant’s nephew as he drove a friend home. The destination was approximately one mile from defendant’s home. Daughter’s friend rode on the ATV with her. Daughter drove to the destination, but before returning to defendant’s home daughter switched with her friend and her friend drove on the return trip. The friend failed to make a turn and drove the ATV off a cliff.

Plaintiff asserted several theories of liability, but the only claims at issue on appeal were for negligent entrustment and negligent supervision. The trial court granted summary judgment to defendant on both of these claims, and the Court of Appeals affirmed.

To prove negligent entrustment, “a plaintiff must demonstrate that (1) a chattel was entrusted, (2) to a person incompetent to use it, (3) with knowledge that the person is incompetent, and (4) that its use is the proximate cause of injury or damage to another.” (internal citation omitted). Defendant first asserted that she was entitled to summary judgment because she only entrusted the ATV to daughter, not to the friend. Defendant pointed to testimony given by daughter in her first deposition where she testified that Defendant told her to drive. Plaintiff refuted this fact, though, with evidence that during daughter’s second deposition she testified that defendant did not specify who was supposed to drive, and that defendant told daughter and friend that “they” could use the ATV. The Court found that this evidence created a genuine issue of material fact, so summary judgment was not appropriate based on the argument that defendant did not entrust the ATV to the friend.

November 29, 2015

On Eulogies and Obituaries

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

Keith Lee at Associate’s Mind has a great post titled “Do You Feed Your Resume or Your Eulogy?” He was inspired to write the post by this column written by David Brooks.

Keith starts his post with these words from Brocks’ column: “It occurred to me that there were two sets of virtues, the résumé virtues and the eulogy virtues. The résumé virtues are the skills you bring to the marketplace.”The eulogy virtues are the ones that are talked about at your funeral ….”

Both the column and the post are worth the read. About ten years ago I started moving down the “eulogy” path, deciding I would not undertake any new professional association, etc. work unless it was something I wanted to do and wanted in my obituary. There are just too many demands and too little time. As a result, I have turned down many opportunities that were presented to me but have managed to spend more time with my family and on my practice.

October 22, 2015

Circumstantial Evidence and Summary Judgment

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

In Jenkins v. Big City Remodeling, No. E2014-01612-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015), plaintiffs had hired defendant general contractor to construct a home for them. General contractor, in turn, had hired defendant flooring subcontractor for the project. When the home was almost complete, it caught fire and resulted in a total loss. Plaintiffs sued the general contractor and subcontractor for negligence, including negligence based on the doctrine of res ipsa loquitur. The trial court granted summary judgment to all defendants. On appeal, the Court of Appeals affirmed summary judgment as to the general contractor but reversed as to the claim of negligence against the flooring subcontractor.

The facts established that the day before the fire, the owners had been in the home, and they had retained a key during construction. Further, the construction site was not fenced or otherwise blocked from public access. When the fire occurred, one of the only remaining projects was to stain the wood floors in the home. On the day of the fire, several subcontractors had been working on the house, including Julian Luu, who was working on the floor stain. Based on camera footage from a neighboring property, Mr. Luu was the last person to leave the property at around 6:10 p.m., and the fire started around 7:50 p.m.

Plaintiffs’ theory was that the flooring subcontractors, who had been known to smoke a lot on the site, “allowed flammable rags to remain on or near the exterior deck and also smoked cigarettes in the area.” Plaintiffs claimed that “the improper disposal of cigarette butts resulted in the stain-soaked rags igniting, causing the fire.” Although the fire destroyed any evidence of rags, buckets with staining rags and cigarette butts were found in a dumpster on the property. Plaintiffs’ expert testified that “he believed the fire began on the exterior deck,” but the expert admitted that he could not be certain and that he could not conclusively rule out arson or electrical problems.

July 1, 2015

The Probable Cause Defense to Malicious Prosecution Claims

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

A recent Court of Appeals decision serves as a good refresher on the elements and defenses in a malicious prosecution case. In Preston v. Blalock, No. M2014-01739-COA-R3-CV (Tenn. Ct. App. May 29, 2015), tenant’s plastic surgery business had signed a lease to rent landlord’s office suite. Tenant stopped paying rent, and landlord filed a breach of contract claim for rent, build-out costs and attorneys’ fees. Landlord was awarded a default judgment, and tenant eventually paid to satisfy that judgment. Landlord subsequently filed another complaint seeking additional attorneys’ fees. Landlord then nonsuited that complaint but filed again seeking additional rent that he claimed had come due.

While this complaint was pending, tenant filed an abuse of process complaint against landlord. The factual basis for tenant’s complaint was that landlord had filed against tenant personally as a guarantor before filing against the business as the principal, that landlord had filed a document entitled partial satisfaction of judgment when tenant had paid the entire judgment, that landlord had given “false and misleading testimony at depositions,” and that landlord had filed “a multiplicity of claims in order to drive up the amount of attorney’s fees.” The trial court granted summary judgment to landlord in the abuse of process case.

After the abuse of process case was finalized, landlord filed a complaint alleging malicious prosecution against tenant and tenant’s lawyer. He asserted that “defendants filed the abuse of process suit…for an improper purpose and without probable cause in an attempt to gain an advantage in the pending breach of lease litigation[.]” The trial court granted summary judgment to tenant/defendant, and the Court of Appeals affirmed.

March 16, 2015

Sandy Hook Parents Sue Mother of Murderer

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

The parents of the Sandy Hook Elementary School shooting have sued the shooter’s mother.

The complaint alleges that the late Nancy Lanza, mother of Adam Lanza, negligently allowed her son access to the Bushmaster A-15 used in the shootings when she knew or should have known made her son a danger to others.

The shootings resulted in the deaths of twenty children and six adults.

February 4, 2015

Tennessee Supreme Court Oral Arguments Scheduled

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

Here are the civil cases set for oral argument in Nashville on February 4 and 5, 2015:

The Chattanooga-Hamilton Co. Hospital Authority d/b/a Erlanger Health Systems v. United Healthcare Plan of the River Valley, Inc. d/b/a Americhoice and TN Attorney General – Erlanger Hospital in Chattanooga filed suit against Americhoice claiming that the TennCare-managed health plan did not pay in full for services rendered in its emergency room. Americhoice, which did not have a contract with the hospital, said they were only responsible for the rates specified in the TennCare regulations. The hospital’s claims were dismissed by the trial court, but the Court of Appeals reversed. The Supreme Court will hear the appeal of Americhoice and the Tennessee Attorney General.
Action Chiropractic Clinic, LLC v. Prentice Delon Hyler & Erie Ins. Exchange– This case involves a patient of Action Chiropractic Clinic of Nashville who assigned his rights to an insurance settlement over to the clinic, which was treating him for injuries caused in an automobile accident. Erie Insurance Exchange did not honor the assignment. Action Chiropractic Clinic sued, but the trial court ruled for Erie. The Court of Appeals agreed. The Supreme Court will consider whether such assignment of insurance proceeds is allowed.
Richard Moreno v. City of Clarksville – Mr. Moreno filed a claim with the State Division of Claims Administration after a tree on state property fell on his car and injured him. The claim was then passed along to the Claims Commission and Mr. Moreno filed a complaint there. The state then alleged that the City of Clarksville was also to blame for the injury. When Mr. Moreno filed suit against the City of Clarksville, the city said the deadline for filing a complaint had passed. The trial court agreed, but the Court of Appeals said he had met the requirements by filing the original Claims Commission complaint on time. The Supreme Court will consider whether the requirements were indeed fulfilled.
In re Estate of Sarah Margaret Wilkins – This case from Robertson County considers whether a son who had a health care power of attorney for his mother was required to submit to arbitration before proceeding with a lawsuit against the nursing home for abuse and neglect of his mother. The trial court said the arbitration was required, but the Court of Appeals disagreed. The Supreme Court will determine if the son was authorized to execute an arbitration agreement on behalf of his mother.

January 18, 2015

2015 Tennessee Tort Reform Compendium Available

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

The most recent version of my book, Compendium of Tort Reform Statutes and Related Case Law, 2008-2014, is now available.

The book includes tort reform statutes enacted by the Tennessee General Assembly in the period indicated and reference to the appellate court decisions to-date that have interpreted those laws;

The book contains over 200 pages of references to important changes in Tennessee common law of torts and statutory changes to the law of civil procedure that impact tort lawyers.

December 18, 2014

Seeking Reconsideration of Summary Judgment Motions in Tennessee

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

In Bilbo v. Ocoee Place Condominium Homeowners Ass’n, No. E2013-02532-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2014), plaintiffs filed suit alleging negligent construction of condos. Defendant HOA filed a motion for summary judgment stating that it did not own the property the condos were built on and that the HOA had no control over the construction of the condos. For the purposes of the summary judgment motion, plaintiffs agreed that defendant “had no decision-making authority,” “did not have any role whatsoever in the construction,” and “did not own the land…upon which the condominiums were constructed.”

Based on these facts, the trial court granted defendant summary judgment. Plaintiffs subsequently filed a motion to alter or amend the summary judgment pursuant to Tennessee Rules of Civil Procedure 54.02 and 60.02 claiming to have newly discovered evidence. The Court of Appeals affirmed the trial court’s grant of summary judgment.

When a motion is made to alter summary judgment based on additional evidence under Rule 54.02, a court should consider:

December 15, 2014

Conversion of Motions to Dismiss Into Motions for Summary Judgment

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

In Tennessee, trial judges are allowed to convert Rule 12 Motions to Dismiss into Motions for Summary Judgment, but this action “should be taken only in rare cases and with meticulous care.” Thomas v. Transp. Ins. Co., 532 S.W.2d 266 (Tenn. 1976). The Court of Appeals recently overturned such a summary judgment in In Re Conservatorship of Starnes, No. W2013-02614-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2014), because the trial court did not permit proper discovery before granting a motion it had converted from a motion to dismiss into a motion for summary judgment.

Petitioner in the Starnes case was a daughter who alleged that her father needed a conservator after his health declined following a stroke. Father filed a motion to dismiss, which the court declined to rule on until a guardian ad litem had been appointed. After appointment and his own discovery, the guardian ad litem filed a report finding that father did not need a conservator. Daughter filed an objection to this report, and father renewed his motion to dismiss. In an in-chambers conference with counsel, the trial judge determined that a physician should review father’s medical records, and the court chose a Dr. Golden to do so. After reviewing the records, Dr. Golden issued a report stating that father was “capable of making decisions directing his own affairs.” Daughter, on appeal, alleges that this report is not supported by an accompanying affidavit and relies largely on hearsay.

In September 2013, the trial court held a hearing on father’s motion to dismiss. The next month the judge issued an opinion and order dismissing daughter’s conservatorship petition. The trial court concluded that daughter’s petition was “legally sufficient and adequately set[] forth the requisite requirements for a petition to appoint a conservator” pursuant to Rule 12.02(6), but then went on to acknowledge that it considered evidence outside the pleadings and thus converted the motion, sua sponte, to one for summary judgment pursuant to Rule 56. Specifically, the court considered a copy of a doctor’s letter submitted by father, three affidavits submitted by father (two from doctors), the guardian ad litem report, and Dr. Golden’s report.

September 10, 2014

Tennessee Tort Buffet

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

The recent Tennessee Court of Appeals opinion n Davis v. Covenant Presbyterian Church discussed a host of issues.

What is Required to Properly Allege Vicarious Liability?

The Court of Appeals affirmed dismissal of vicarious liability claims against two religious organizations (one unincorporated and one a nonprofit corporation). The plaintiffs’ allegations against both organizations were essentially that each defendant existed under the laws of a state and had a principal place of business there, and had “actual and/or apparent authority” over another corporation, Covenant. The plaintiffs’ complaint did not explain how either defendant had authority over Covenant or anything else factual to create a principal/agent relationship with Covenant. Nonetheless, the plaintiffs alleged that both of the religious organization defendants were vicariously liable for Covenant and all of Covenant’s employees and agents. Because the plaintiffs’ complaint lacked any factual basis for asserting vicarious liability, the Court of Appeals affirmed dismissal of both religious organizations.