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Where a premises liability plaintiff did not provide sufficient proof that a sewer cleanout cap in a sidewalk was a dangerous or defective condition, summary judgment for defendants was affirmed.

In Garamella v. City of Lebanon, No. M2021-00262-COA-R3-CV, 2022 WL 202641 (Tenn. Ct. App. Jan. 24, 2022), plaintiff was walking on a sidewalk in a residential neighborhood when she tripped and fell over a sewer cleanout cap that protruded from the middle of the sidewalk. Plaintiff was walking her dog at the time and admitted in discovery that she was distracted by her dog and “probably would have seen the cleanout cap had she been looking forward as she walked.”

The sidewalk was located in a neighborhood constructed by defendant Goodall Homes. Goodall had contracted with a construction company to build the sidewalk, which was substantially completed in September 2006. The City of Lebanon, who was also named as a defendant, completed a final surface inspection of the area in November 2009 and thereafter “assumed responsibility for the maintenance of the sidewalk.” The evidence in this case showed that an unnamed homeowner had also potentially tripped over the cap at some point in the past, but that the cap placement was “compliant with the applicable code” and that if such a previous trip had occurred, it was not reported to the City. Defendants Goodall and the City both filed motions for summary judgment, which the trial court granted, and the Court of Appeals affirmed.

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Tennessee’s tort and health care liability action trials came near to a screeching half for the fiscal year ending June 30, 2021.

There were only 31 jury and 113 nonjury tort trials in twelve months, and only 1 jury and 7 nonjury health care liability cases tried during the same period.  Jury trials in tort cases were down over 70% from the year ending June 1, 2020 (108 to 31) and nonjury trials were down only slightly (121 to 113).  HCLA jury trials were down over 80% (6 to 1) and nonjury HCLA cases were up slightly from 3 to 7).

In the HCLA cases, damages were awarded to the plaintiff in only one case (12.5% of cases).

In the tort cases,  damages were awarded in 43 cases (29.9% of cases).

(We cannot say that the plaintiff “won” the cases in which damages were awarded.  The plaintiff “prevailed” in those cases, but a “winning” is different than “prevailing.”)

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Because Tenn. Code Ann. § 56-7-135(a) creates a rebuttable presumption that a person who signs an insurance contract “has read, understands, and accepts the contents of such document,” and plaintiff did not rebut that presumption, the trial court properly granted summary judgment to defendants on plaintiff’s claims for negligence and negligent misrepresentation.

In Vanquish Worldwide, LLC v. Sentinel Insurance Company, LTD, No. E2020-01650-COA-R3-CV, 2022 WL 189791 (Tenn. Ct. App. Jan. 21, 2022), plaintiff provided certain services to the U.S. government, and it subcontracted some of these services to another company. Plaintiff purchased insurance through defendant insurance agent Steve Hardin, who met with plaintiff and was told that plaintiff “sought business liability coverage for the contract administration and claims bookkeeping that [plaintiff] performed under the trucking contract.” A policy was issued through defendant insurance company, which a representative of plaintiff executed.

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Last week, the Tennessee Supreme Court agreed to hear two new cases.

One is a tort case.  Kenneth J. Mynatt v. National Treasury Employees Union, Chapter 39  addresses the torts of malicious prosecution and civil conspiracy.

The other, City of Knoxville, Tennessee v. Netflix, Inc. addresses the the right to regulate Netflix and Hulu (and similar concerns) by local governments.  The Court accepted certification of a question of state law from the United States District Court in Knoxville.

BirdDog Law, the new leading resource center for Tennessee trial lawyer s and judges, now has free access to a user-friendly version of the Tennessee Rules of Criminal Procedure.   Access the rules from your desktop, notebook, tablet or cell phone 24/7 anywhere you have access to the internet.

BirdDog Law is designed to help trial lawyers have ready, 24/7 access to materials they use everyday.   BirdDog is still growing, but is quickly becoming the site of choice for Tennessee trial lawyers to access information they need to serve their clients.

Bookmark BirdDog!

The parties in Djeneba Sidibe et al. v. Sutter Health, Case No. 3:12-cv-04854-LB, a civil antitrust case in federal court in San Francisco, are in a dispute over whether a case ready for trial should be tried virtually.  Plaintiff seeks an immediate virtual trial.  Defendant opposes it.

The joint submission by the parties on the issue includes arguments for and against virtual jury civil jury trials and a host of case law on the issue.  This 16-page letter , which includes an exhibit for remote and safety protocols for the trial, cost tens of thousands of dollars in lawyer time to prepare.

And you get the benefit of the work at no cost.

Colorado’s highest court has ruled that in cases involving an unemancipated minor child, either the child or the child’s parents may recover the child’s pre-majority medical expenses  Double recovery is not permitted.  The case is Rudnicki v. Bianco.

The Tennessee will be holding oral argument soon on a related issue in Borngne ex rel Hyter v. Chattanooga-Hamilton County Hospital Authority.  

NOTE:  The link to the Borngne  case is a link to the status of case provided by my new site, www.birddoglaw.com.  BirdDog Law provides multiple free resources to Tennessee lawyers, one of which is “Status of Cases Pending Before the Tennessee Supreme Court.”

I am pleased to announce the launch of BirdDog Law, a massive online resource center for Tennessee lawyers, particularly those who do trial work.

The website includes free access to the Tennessee Rules of Civil Procedure, the Tennessee Rules of Appellate Procedure, and the Tennessee Rules of Evidence,  as well as the Tennessee Rules of Professional Conduct.   I believe readers will find the these resources on this site to much more user-friendly than those found on any other website.

Another free section of the website is the Tennessee Rules of Civil Procedure (As Modified for Use in the Claims Commission).   Those of us who practice before the Tennessee Claims Commission know that the Tennessee Rules of Civil Procedure generally apply to cases before the Commission but have been modified by regulation in several respects.  I know of no other place where the two bodies of rules have combined into one user-friendly recourse for the benefit of Tennessee lawyers.

I am pleased to announce, after over a year of work, that I have completed the creation of a new website for Tennessee lawyers.

The website is called BirdDog Law.  The website is designed to help Tennessee lawyers better serve their clients while saving themselves time and money.  A major component of the site is free access to the rules of evidence, civil procedure, and appellate procedure.  These resources are available at no charge on other sites, but in my judgment the sites are not user-friendly.  I worked to design the BirdDog Law website to provide information the way that lawyers seek information.  I am sure it is not perfect (and I intend to keep working to make it better), but I am convinced that it is a material improvement over any other free site and, if I may say, just as user-friendly as sites you must pay to access.

There are two things BirdDog gives you for free what you can’t readily get anywhere else.  First, BirdDog has combined the rules of civil procedure with the Claims Commission regulations modifying the rules of procedure for use in Claims Commission so that you can look at one document to see the rules of civil procedure applicable in the Claims Commission.  Second, BirdDog creates a list of cases pending before the Tennessee Supreme Court and gives you the current status of this case.  This permits you to determine in less than one minute what cases (and issues) are before the Court and determine the case’s likely decision date.  This information is publicly available, elsewhere but it is cumbersome to find.

Penny White, Joe Riley and I will be hosting our annual three-city, 15-hour seminar program again the Fall.   The program will be held in-person in Knoxville (Dec. 2-3), Nashville (Dec. 9-10), and Memphis (Dec. 16-17.

We will also be offering the same 15 hours of CLE via video.  Those interested in remote learning can purchase all fifteen hours, individual hours, or bundles of hours.

Check out the Justice Programs website to learn more.

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