Motor Vehicle Cases

July 31, 2019

Lay Witness Opinion on Source of Gravel on Road Admissible

Lay witness testimony should have been admitted regarding the likely source of gravel on a road after road construction, and summary judgment in this case was overturned.

In Flagg v. Hudson Construction Company, No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019), plaintiff crashed his motorcycle on a recently paved section of a state highway. Plaintiff alleged that an excessive amount of loose gravel left over from the construction caused the crash, and he brought negligence suits against the construction company and the state. The trial court granted summary judgment to defendants on all claims, holding that lay witness testimony regarding the likely source of the loose gravel on the road should be excluded, but the Court of Appeals reversed.

The evidence at trial showed that defendant construction company was contracted to resurface the road, and that the process involved laying rock chips and adhesive materials on the road, “followed by a thin layer of microsurfacing for a smoother driving surface.” The company “periodically cleaned excess gravel and debris from the road throughout the paving process,” but at the end it “only cleaned those portions of the road it deemed necessary for the permanent striping to adhere properly.” The stripes were put on the road on October 16th and 17th, and a TDOT supervisor inspected the project on October 19^th. He stated that he “looked for excess gravel, overall cleanliness, and the integrity of the permanent striping,” but that he did the majority of his inspection while driving his vehicle and only stopped and got out “when he deemed it necessary.” He found no problems and notified the construction company that the work was acceptable that day.

November 27, 2017

Court Rejects Assertion that Video of Crash Determined Fault Allocation as a Matter of Law

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

Even with video showing the crash, a court may find that there are issues of fact concerning fault allocation surrounding a car accident.

In Trammell v. Peoples, No. M2016-02198-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2017), plaintiffs were involved in a car accident with defendant. Defendant was driving a box truck “in the course and scope of his employment,” and the truck was equipped with a camera on the dash. The camera recorded twelve seconds, including the eight seconds before the crash and the four seconds after. The video showed defendant “traveling at a speed of approximately 60 miles per hour in a middle lane while passing a construction scene monitored by police vehicles immediately to the right.” Plaintiffs were shown traveling ahead of defendant in the far left lane. “In the four seconds before impact, [plaintiff driver] initiates his turn signal and begins to merge into [defendant’s] lane. Unable to slow in time, [defendant’s] truck collides with the vehicle operated by [plaintiff], causing it to spin.”

Plaintiffs filed this negligence suit alleging that defendant’s failure to keep his truck “under proper and reasonable control” was the cause of the accident. Defendants (the driver and his employer) filed a motion for summary judgment, relying on the video to show that plaintiff “was more than 50 percent at fault and that [defendant] acted as a reasonably prudent person would have under the circumstances…” In a deposition, defendant driver testified that plaintiff “swerved his vehicle into my lane of traffic directly in front of the box truck that I was driving causing my truck to collide with the read end of [plaintiffs’] vehicle,” and that there were no signs as he approached the construction on the side of the road indicating a speed limit of less than 65 miles per hour.

October 17, 2017

UM Carrier Obtains Dismissal Because of Failure to Obtain Service on Driver

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

Where plaintiff failed to have service issued for over a year against the defendant driver in a car accident case, her claim against her uninsured motorist insurance carrier was barred.

In Davis v. Grange Mutual Casualty Group, No. M2016-02239-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2017), plaintiff filed suit on March 20, 2015 after a car accident, naming both the defendant driver and her uninsured motorist carrier. The suit was filed within the one-year statute of limitations for personal injury actions, but plaintiff “did not cause a summons to issue to either defendant” until April 19, 2016, which was thirteen months after the complaint was filed. The summons was issued to the driver at his last known address and was returned unserved on April 21^st by the sheriff with a notation that the driver was “not to be found in my county.”

On April 25^th, “the trial court sua sponte dismissed the action for failure to prosecute.” Plaintiff filed a motion to set the dismissal aside on May 24^th, and on the same day process for the insurance company was returned unserved. Second summonses were issued for both defendants on June 6^th and 7^th, and the driver’s was returned unserved indicating that he had died.

September 21, 2017

Exculpatory Provision Enforced in Transportation Agreement

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

An exculpatory agreement contained in a contract for transportation services may be enforceable against a plaintiff claiming ordinary negligence.

In Copeland v. Healthsouth/Methodist Rehabilitation Hospital, L.P., No. W2016-02499-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2017), plaintiff was recovering from knee surgery in a hospital and had a follow-up appointment with his surgeon. The hospital helped arrange for defendant transportation service to take plaintiff to this appointment. “After the appointment, [plaintiff] was injured when he fell while getting back into the MedicOne transport van.” Before being transported by defendant, plaintiff signed several documents. One stated that the van provided was “not an ambulance and no care will be given by the…technician.” The second specified that it was for “transportation services” and that “there are inherent risks associated with such transportation which pose a risk of harm or injury.” This agreement also contained a release, which stated that plaintiff “SPECIFICALLY DISCHARGES MEDIC ONE RELATED PARTIES FROM ANY AND ALL CLAIMS ARISING DIRECTLY FROM OR AS A RESULT OF THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ) OF MEDIC ONE RELATED PARTIES.”

Plaintiff filed this negligence suit against the transportation company and the hospital that arranged the service. The trial court granted summary judgment to both defendants, finding that the release was enforceable and waived all claims of ordinary negligence. Plaintiff appealed, but only as to defendant transportation company, and summary judgment was affirmed.

August 31, 2017

Tennessee Uninsured Motorist Claims Subject to Six-Year Statute of Limitations

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

While a case for personal injuries resulting from a car accident must be filed within one year, a claim against an insurance company for uninsured motorist coverage arising from the same incident is not subject to that one-year statute of limitations.

In Bates v. Greene, No. W2016-01868-COA-R3-CV (Tenn. Ct. App. July 27, 2017), plaintiff had been injured in a car accident. Plaintiff filed a timely suit less than one year after the accident against the driver of the other car, but the civil warrant was returned unserved. An “alias civil warrant was issued for [the driver], but it was also returned unserved.” Two years after the accident, an amended warrant was issued, adding plaintiff’s uninsured motorist insurance carrier as a defendant.

Defendant insurance company filed a motion for summary judgment, “asserting that the claim against it was barred by the one-year statute of limitations applicable to personal injury actions.” Plaintiff responded that “she was asserting a contract claim…, subject to a six-year statute of limitations, rather than a tort claim…” The trial court granted the motion for summary judgment, but the Court of Appeals reversed.

July 12, 2017

Jury Verdict For Defendant Affirmed in Brentwood Car Wreck Case

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

In Higgs v. Green, No. M2016-01369-COA-R3-CV (Tenn. Ct. App. May 11, 2017), the Court of Appeals affirmed a jury verdict for defendant in a car accident case.

Plaintiff and defendant were involved in a two-car accident in Brentwood. “The accident occurred as Defendant was making a left-hand turn across Plaintiff’s lane of traffic to enter a gas station when the front of Plaintiff’s vehicle collided with the rear quadrant of the passenger’s side of Defendant’s vehicle.” Plaintiff alleged in her complaint that the accident was due to defendant’s failure to yield, failure to keep a proper lookout, failure to keep his car under control, and turning without making sure it was safe to do so. Further, plaintiff cited four statutes that she alleged defendant violated, asserting that defendant had thus committed negligence per se.

The jury returned a verdict finding plaintiff 75% at fault and defendant 25% at fault, and judgment was thus entered for defendant. Plaintiff moved for a new trial, which the trial court denied, and this appeal followed. On appeal, plaintiff presented two issues, one dealing with the exclusion of certain testimony from a police officer and one dealing with potential juror misconduct.

During the trial, but while the jury was not present, the investigating officer who plaintiff planned to call as a witness was questioned. The officer testified that “he had no independent recollection of the accident other than what was written in his police report and the police report did not indicate that Defendant had crossed a double-yellow line when he made his left turn to cross Plaintiff’s lane of traffic.” The officer further testified that defendant was not issued a citation after the accident. Despite these admissions, the officer stated that he was familiar with the area and that “there was a double-yellow line” where the accident occurred, that the double-yellow line would indicate “a continuation of a median,” and that it was illegal to turn across a median.

June 6, 2017

No Emotional Distress Claim Based on Negligent Destruction of Property

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

In a recent case where plaintiff was seeking damages for emotional injuries, the Court of Appeals affirmed summary judgment for defendant, holding that plaintiff could not recover for negligent infliction of emotional distress when the claim was based on the negligent destruction of property.

In Lane v. Estate of Leggett, No. M2016-00448-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2017), plaintiff owned an antique and gift shop. Defendant was driving when he rear-ended the car in front of him, veered off the road, and ran into plaintiff’s store. During the accident, defendant hit a gas meter, causing a fire that completely destroyed plaintiff’s store and killed defendant. Plaintiff was not at the store when the accident occurred but arrived shortly after the fire began.

Plaintiff brought suit against the defendant’s estate for negligence resulting in property damage and emotional injuries (the property damage claim was dismissed under the doctrine of prior suit pending, as a case had already been filed by the relevant insurance company). The complaint stated that “as a result of observing the fire and the circumstances surrounding the same, including having narrowly escaped being present when the incident occurred, the Plaintiff has been caused severe mental and emotional injuries and has had to seek the assistance of a psychologist and psychiatrist…and has been diagnosed with Post Traumatic Stress Disorder and Anxiety.” Defendant moved for summary judgment on the claims for emotional injuries, asserting that plaintiff was claiming negligent infliction of emotional distress, and that such a claim “is not a cause of action intended to permit recovery for emotional distress arising in connection with property damage.” The trial court granted summary judgment, and the Court of Appeals affirmed.

June 2, 2017

Enforcing Tennessee Settlement Agreements in Injury Cases

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

In Goan v. Mills, No. E2016-01206-COA-R3-CV (Tenn. Ct. App. Mar. 24, 2017), the Court of Appeals affirmed the trial court’s decision to enforce a settlement agreement in a car accident case.

Plaintiff was rear-ended by defendant while plaintiff was delivering mail. Plaintiff brought this action, and settlement negotiations between the parties’ attorneys ensued. Plaintiff’s counsel sent a letter in April 2013 stating that plaintiff “had an agreement with comp that we can settle this case now…If there is only $100,000 in insurance, I would demand the policy limits primarily because of workers comp.” In August, plaintiff’s lawyer again wrote: “I go back to demanding the limits which I believe is $100,000 but as we discussed I need a firm number from you to figure out compromising the comp claim.” Plaintiff’s counsel wrote two more times demanding the policy limit of $100,000, and in December 2013, defense counsel wrote a letter accepting the settlement demand.

June 1, 2017

Tennessee Court Studies Independent Contractor Rules

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

In Rogers v. Hadju, No. W2016-00850-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2017), the Court of Appeals affirmed summary judgment in a negligence case, finding that defendant companies could not be held liable for the actions for what was determined to be an independent contractor.

Ford Construction was hired by the state to perform road construction. Ford subcontracted with Traf-Mark Industries for part of the work; Traf-Mark subcontracted with Kerr Brothers; and Kerr Brothers subcontracted with RDH Contracting. On the job site, an employee of RDH Contracting was backing up a truck when he hit an employee of Ford Construction. The injured Ford Construction employee filed this negligence suit against Traf-Mark, Kerr Brothers, RDH Contracting and the driver, arguing that the defendant companies were vicariously liable for the incident because the driver of the truck “was acting in the scope of his employment with them at the time of the incident.”

Traf-Mark and Kerr Brothers filed a motion for summary judgment, asserting that they were not liable for the driver’s negligence because RDH Contracting and the driver were independent contractors. The trial court granted summary judgment, and the Court of Appeals affirmed.

In Tennessee, “the doctrine of respondeat superior permits a principal to be held liable for the negligent acts of its agent.” (internal citation omitted). “While an employer may be held liable for the negligence of its employee, however, they are generally not liable for the negligence of independent contractors.” (internal citation omitted). When determining whether an employment or independent contractor relationship exists, courts should consider “(1) the right to control the conduct of the work, (2) the right of termination, (3) method of payment, (4) whether or not the worker furnishes his own helpers, (5) whether or not the worker furnishes his own tools, (6) self-scheduling of working hours, and (7) freedom to render services to other entities.” (citing Goodale v. Langenberg, 243 S.W.3d 575 (Tenn. Ct. App. 2007)).

March 1, 2017

Plaintiff’s Verdict Affirmed in Head-On Crash Caused by Police

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

In Turner v. City of Memphis, No. W2015-02510-COA-R3-CV (Tenn. Ct. App. Dec. 20, 2016), the Court of Appeals affirmed a verdict for plaintiff following a Tennessee head-on car wreck between plaintiff and a police officer.

In December 2012, plaintiff and a Memphis police officer were traveling in opposite directions along the same road at just after midnight. The road had five lanes, two going in each direction and one turn lane. Plaintiff was driving south in the lane closest to the turn lane, while the officer was driving north in the outer lane. According to plaintiff, the officer “negligently and without warning crossed traffic and struck the vehicle being driven by [plaintiff] head on.” The accident caused plaintiff’s airbag to deploy and both drivers were knocked unconscious. Plaintiff was transported to the hospital by ambulance and was “subjected to a full trauma work-up, was given a neck brace because of whiplash, was given an I.V. for dehydration, and was administered considerable pain medication.” Plaintiff testified that he eventually was treated by a chiropractor and that the accident caused him pain that he had “never experienced before on that scale.” According to plaintiff, his injuries had improved, but they had “decreased his ability to engage in physical activities including cooking, cleaning, and getting his son to and from school, and he still suffered from frequent headaches, anxiety attacks, and unease of rest.”

Plaintiff brought this action against the city of Memphis under the GTLA for the officer’s alleged negligence in causing the accident. Plaintiff sought $300,000 in damages, including $28,421.18 in medical expenses.