Articles Posted in Miscellaneous

Where plaintiff was the passenger in a car accident that occurred when the vehicle she was riding in crashed into fencing and construction equipment owned by defendant construction company that was located in the right lane of a street, and plaintiff had settled with and executed a release of the driver and the driver’s insurance company, the trial court’s grant of summary judgment to defendant construction company based on the release was reversed.

In Neal v. Patton & Taylor Enterprises, LLC, No. W2022-01144-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2024), plaintiff was riding in the passenger seat of a car when the car crashed into fencing and construction materials located in the right lane of the street. Plaintiff settled with the driver of the car and the driver’s insurance company, and she executed a release. The release listed the driver and insurance company, but it also contained some broad language releasing “all other persons, firms or corporations of and from any claim, demand, right or cause of action,…on account of or in any way growing out of any and all personal injuries…resulting from [the] accident[.]”

Sometime after the release was executed, plaintiff filed suit against defendant construction company, claiming its negligence and negligence per se in the placement of and warnings about the construction equipment caused her injuries. Defendant moved for summary judgment, which the trial court granted based on the release executed by plaintiff. On appeal, this ruling was reversed.

Where a trial court’s judgment did not include a finding of joint-and-several liability, a defendant against whom a judgment was entered could not be credited with payments made by another defendant or by a non-party.

In Gerrish & McCreary, P.C. v. Lane, No. W2022-01441-COA-R3-CV (Tenn. Ct. App. Dec. 5, 2023), plaintiff originally filed suit against defendant, who was plaintiff’s bookkeeper, for fraud, misrepresentation, conversion, and negligence. Plaintiff also brought a claim against defendant’s husband for conversion. The trial court found for plaintiff, and it entered a judgment for over $600,000 against defendant. A judgment of approximately $44,000 was entered against defendant’s husband. The judgment was entered in 2003 and did not find defendant and her husband jointly and severally liable. Later, in 2005, an order of judgment satisfied was entered as to the husband, and the order specifically noted that it was “not intended, nor shall it be construed, as having any applicability to the separate judgment rendered against the other defendant in this cause[.]”

In addition to the case against defendant and her husband, plaintiff reached a confidential settlement with a bank related to the fraud. The settlement was for $140,000, but the bank was never made a party to this action.

There are seven tort cases pending before the Tennessee Supreme Court.  Here is a list of the cases and the summary of the holding of the Tennessee Court of Appeals (if applicable) in each case:

1. Style: Williams v. Smyrna Residential, LLC et al.

   TSC Docket Number: M2021-00927-SC-R11-CV

A Tennessee plaintiff asserting a claim for invasion of privacy based on intrusion upon seclusion was not required to show actual damages, as actual damages are not an essential element of an intrusion upon seclusion claim.

In Jones v. Life Care Centers of America d/b/a Life Care Center of Tullahoma, No. M2022-00471-COA-R3-CV (Tenn. Ct. App. May 16, 2023), plaintiff was a resident at defendant nursing home, and she brought this case through her conservator based on her naked body being exposed during a video call made by a nursing home employee. Plaintiff, who was cognitively limited, was being assisted in showering by defendant’s employees. One of the employees received a video call from her boyfriend, who was incarcerated, and the employee propped the phone on a shelf and continued helping plaintiff. During the call, plaintiff’s naked body was seen on the video feed. A sheriff’s department employee was monitoring the phone call and noticed that plaintiff could be seen, and defendant was accordingly alerted. Although plaintiff was admittedly unaware that she had been exposed, and never became aware, her daughter/ conservator was informed, and this suit was filed.

Plaintiff’s initial complaint asserted a claim of “Negligence Pursuant to the Tennessee Medical Malpractice Act” and a general claim for invasion of privacy. After defendant filed a motion for summary judgment, plaintiff filed a motion seeking to amend her complaint to assert claims for invasion of privacy based on intrusion upon seclusion and negligent supervision. The trial court granted summary judgment to defendant, finding that plaintiff could not “prove the existence of any cognizable injury or damages from the incident,” and it denied plaintiff’s motion to amend, ruling that a claim for invasion of privacy requires actual damages and thus the amendment would be futile. On appeal, those rulings were reversed.

My newest article, “Gender-Affirming Care Creates Tort Liability,” as published in the Tennessee Bar Journal.

One thing you can do to become a great trial lawyer is to listen to great trial lawyers speak about the profession.

The American College of Trial Lawyers has a podcast that does just that.  The podcast will be starting its sixth season this summer, but there are over 20 podcasts of great trial lawyers already available.

The most recent podcast interviewed Tennessee’s own J. Houston Gordon.

Where plaintiff alleged that her son’s body was buried in the wrong place within a cemetery and brought several claims, including negligent mishandling of a dead human body, against defendant funeral home, summary judgment for the funeral home was affirmed based on the finding that the funeral home “had no common law duty to direct or supervise the burial and disposition” of the body and that the funeral home “conformed to the reasonable person standard of care under all of the circumstances.”

In Mathes v. N.J. Ford and Sons Funeral Home, Inc., No. W2021-00368-COA-R3-CV, 2023 WL 117729 (Tenn. Ct. App. Jan. 6, 2023), plaintiff asserted claims for mishandling of her dead son’s body. Plaintiff had purchased an interment plot from the cemetery prior to her son’s passing and had executed certain documents related to that purchase. One such document provided that “all interments and disinterments…shall be made only by [the Cemetery] unless otherwise approved by cemetery company.” The cemetery and funeral home were not related to each other in any way.

After the son’s death, plaintiff contracted with defendant funeral home to handle the funeral and body preparation. Plaintiff also signed an additional authorization with the cemetery and went to view the pre-selected plot at the cemetery.

I strongly encourage you to add “Trial Tested” to your list of podcasts.

“Trial Tested” is a podcast sponsored by the American College of Trial Lawyers.  It “presents enlightening discussions about life and law through interviews with prominent trial lawyers and significant figures in the world of trial law.”  The interviewees are accomplished trial lawyers (with a couple of non-lawyers thrown in for good measure) interviewed by one of three College Fellows –   Amy Gunn, Mike Herring, or Dave Paul.

Click here to see a list of the podcasts offered to date.   Tennessee’s own Mike Cody is interviewed for today’s podcast.