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Articles Posted in Tort Law Tidbits

Did you know that there is a cause of action for malicious harrassment in Tennessee? 

The malicious harassment statute, Tennessee Code Annotated, section 4-21-701, provides: "(a) There is hereby created a civil cause of action for malicious harassment. (b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney’s fees and costs, and punitive damages."  Tenn. Code Ann. § 4-21-701 (1998).

The elements of the tort created by this statute were outlined by the Tennessee Supreme Court in Washington v. Robertson County:

I got a call today from a lawyer who asked about the method by which peremptory challenges are exercised in state court. 

It is always a good idea to ask the trial judge at the pretrial conference or on the morning of trial how he or she handles peremptory challenges.  But recall that Rule 47 of  Tennessee Rules of Civil Procedure was amended in 2003 to address these issues.

Here is the entire  text of Rule 47:

Under the definitions in most insurance policies a loss of consortium claim is included as part of a personal injury claim and therefore the two claims count as one claim for purposes of liability coverage.

Did you know that under the Governmental Tort Liability Act loss of consortium is a seperate claim and therefore a spouse for an injured plaintiff can seek recovery under a “seperate” cap? The case reaching this conclusion is Swafford v. City of Chattanooga, 743 S.W.2d 174, 178-79 (Tenn. App. 1987).

The relevant language: “Although a husband’s or wife’s claim for loss of consortium will always be “derivative” in the sense that the injuries to his or her spouse are an element and must be proved, the right to recover for loss of consortium is a right independent of the spouse’s right to recover for the injuries themselves. The Tennessee Governmental Tort Liability Act reads in pertinent part as follows: ” ‘injury’ means death, injury to a person, damage to or loss of property or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent.” T.C.A. ㋔ 29-20-102(4) (1980 and Supp.1986). Although ㋔ 29-20- 403 refers only to “bodily injury or death” in setting the minimum limits of liability coverage under the Act, we think that the specific removal of immunity upon which recovery here rests–that of removal of immunity for injury from unsafe streets and highways of ㋔ 29-20-203–controls. It reads that “immunity from suit of a governmental entity is removed for any injury caused by defective, unsafe, or dangerous condition….” (emphasis added). To hold that the language “bodily injury or death” of ㋔ 29-20-403 controlled would create an exception to the clear removals of immunity created by ㋔㋔ 29-20-201, -202, -203, -204, and -205. We therefore remand this case to the trial court to award judgment to Ms. Swafford for her damages due to loss of consortium.”

A friend of mine who is a defense lawyer told me that in 50 % of the cases he defends he is not served written discovery.

I can imagine that there might be a tactical reason not to serve written discovery in a particular case. I can also say that that situation has not arise in my 24 years of practice.

I have found it best to almost always serve written discovery with the complaint. In many cases, we also serve a notice to depose the individual defendant or a corporate representative at a date we estimate to be 60 days after service of the complaint, when we will have an answer and the discovery in hand. We will almost always modify the date to accomodate the defendant and the defendant’s lawyer, but we like to get the case moving right off the bat.

The Manual on Uniform Traffic Control Devices is available, free of charge, online at the Federal Highway Administration website. The site not only has the latest 2003 edition, but goes back as far as the 1993 revisions. You should be able to find the right edition to address any pending or potential claim for a roadway that is dangerously unmarked. Compliance with the MUTCD is necessary, but not always sufficient. The MUTCD and the law still require reasonableness by a contractor or highway planner.

The MUTCD is incorporated by reference into the regulations of the Tennessee Department of Transportation. Therefore, violation of the MUTCD is negligence per se.

As a lawyer who has done medical malpractice work for 24 years I am embarrassed to say this, but I came across this little tidbit a couple weeks ago while preparing for an argument in the Tennessee Supreme Court.

Do we have the discovery rule for med mal cases? “Yes.” What is the test? “Plaintiff must file suit within one year of the date that plaintiff knew or reasonably should have known about the injury.” Right? Wrong. (Well, it might be wrong.)

The statute (T.C.A. Sec. 29-26-116(a)(2)) says “In the event that the injury is not discovered within such one (1) year period, the period of limitation shall be one (1) year from the date of such discovery.” The test appears to be subjective, not objective.

What is the name of the case that tells us that violation of a statute is negligence per se? Cook By and Through Uithoven v. Spinnaker’s of Rivergate, 878 S.W.2d 934, 937 (Tenn. 1994). What about the violation of a regulation? Long by Cotton v. Brookside Manor, 885 S.W.2d 70, 73-74 (Tenn. App. 1994). An ordinance? Kim v. Boucher, 55 S.W.2d 551 (Tenn. App. 2001).

What is a tort law tidbit?

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