No Motion for New Trial? Issues Waived.

Where plaintiffs failed to file any post-trial motions, most of the issues they tried to raise on appeal were waived.

In Smith v. Benihana National Corp., No. W2018-00992-COA-R3-CV (Tenn. Ct. App. Aug. 9, 2019), plaintiffs filed suit on behalf of decedent’s family members after decedent died while dining at a Benihana restaurant. Plaintiffs essentially alleged that defendant knew that decedent was allergic to seafood, and that they were negligent in preparing his food and allowing seafood particles to be present and/or in allowing him to inhale seafood particles through steam at the restaurant.

This case had a long procedural history, but it was finally tried in front of a jury who returned a verdict for defendant, finding that the restaurant was not liable for decedent’s death. Plaintiffs did not file any post-trial motions, but did appeal the case.

The majority of the Court of Appeal’s opinion explained that issues raised by plaintiffs in their appellate brief were waived because plaintiffs did not file a motion for a new trial. “[I]n all civil cases tried to a jury, any ground not cited in the motion for a new trial has been waived for the purposes of appeal.” (internal citation and quotation omitted). Here, issues regarding jury instructions and the admissibility of certain expert witnesses were waived on this basis.

One of the only issues that received any real analysis by the Court of Appeals was plaintiffs’ assertion that the trial court erred by dismissing their premises liability claim. Plaintiffs argued that defendant “was negligent in its preparation of Decedent’s meal” and that defendant “was aware that customers could potentially suffer an allergic reaction by inhaling smoke from the hibachi grill at the restaurant.” Defendant asserted that these arguments sounded in negligence, not premises liability, and the Court of Appeals agreed.

[T]here are simply no allegations contained therein that suggest that a dangerous condition actually existed on the premises. While the complaint appears to allege that the cause of Decedent’s death was [defendant’s] failure to properly prepare Decedent’s dinner, nowhere in the complaint is there an allegation that this failure somehow amounts to a dangerous or hazardous condition on [defendant’s] premises. Rather, the allegations…suggest that the alleged harm to Decedent was caused by conduct of [defendant’s] employees in the course of preparing Decedent’s food. As such, [Plaintiffs] conflate premises liability…with a typical common law negligence claim.

(internal citations and quotations omitted). The Court thus affirmed the trial court’s dismissal of the premises liability claim and the jury’s verdict as a whole.

In its concluding paragraph, the Court of Appeals stated: “[W]e would caution future litigants that the case-at-bar highlights the great importance of filing a motion for new trial.” (internal citation omitted). Plaintiffs’ decision not to file such a motion here was fatal to the many of the issues raised in the appeal.

One important aspect of trying cases is being familiar with how to preserve error, whether committed by the trial court or the opposing party.  At the risk of being accused of unabashed self-promotion, I recommend that lawyers who try civil cases purchase and read my book, Tennessee Law of Civil Trial, to learn, inter alia, how to make a record that can be reviewed on appeal.   The second edition of the 500+ page book was released on September 1, 2019.

NOTE:  to aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers.   Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented.

In this case, the opinion was released approximately seven weeks after oral argument.