Day on Torts

May 2, 2015

Real Estate Statute of Repose Wipes Out Fire Loss Case

In Hayes v. Coopertown’s Mastersweep, Inc., No. W2014-00783-COA-R3-CV (Tenn. Ct. App. April 17, 2015), plaintiffs brought a negligence claim based on the alleged negligent inspection of their fireplace. Two issues were addressed on appeal—whether defendant owed a duty of care to plaintiffs and whether this case fell under the four-year statute of repose applicable to injuries to real property related to deficient design and construction.

In 2000, plaintiffs purchased a house built in 1964 that had a fireplace, which plaintiffs had remodeled by a third party. Part of this remodel included lowering the firebox to be flush with the floor. The remodeled fireplace did not work well, allowing smoke to escape into the den, the upper floors and the attic. Plaintiffs thus hired defendant to inspect the fireplace and determine what was causing the smoke issues. Plaintiffs did not tell defendant about the previous fireplace renovations or that the firebox had been lowered. Defendant performed the inspection requested, and part of the defendant’s work “went beyond the inspection that [plaintiffs] contracted for,” including inspecting beneath the fireplace from the crawlspace and drilling into the fireplace to determine whether any combustible material was coming into contact with the fireplace. Because of the design and construction of the fireplace, however, “there were areas underneath the fireplace that could not be seen or inspected” by defendant. Defendant made certain redesign recommendations based on his inspection, and plaintiffs hired defendant to perform the recommended work. Defendant completed this work on October 8, 2003. Subsequently, on January 17, 2005, plaintiffs’ home was damaged by fire when “wooden floor joists that had been in contact with the firebox ignited from exposure to heat generated by the fireplace,” a problem related to the first remodel done by the unnamed third party.

April 28, 2015

Signing an “As Is” Agreement Negates Reliance on Alleged Misrepresentation

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

Justifiable reliance is one of four elements a plaintiff must prove in a negligent misrepresentation case. In the recent case of Pritchett v. Comas Montgomery Realty & Auction Co., Inc., No. M2014-00583-COA-R3-CV (Tenn. Ct. App. April 15, 2015), the Court of Appeals held that a plaintiff who signed an agreement stating that the sale of real estate was “as is” and that he would only rely upon his own inspection could not prove this essential reliance element of his negligent misrepresentation claim.

The plaintiff in Pritchett went to an auction for commercial real estate that had been advertised as being 11,556 square feet. Before the auction began, plaintiff signed a “Terms of Sale” form that stated that everything was being sold “as is” and that “buyer shall rely entirely on their own inspection and information.” The auctioneer also announced that all property was sold “as is.” Plaintiff was the highest bidder and thus signed a contract of sale. The contract stated that “buyer specifically acknowledges herein that the property is being purchased ‘as is’ and that neither the Seller nor [Defendant] makes any warranties or representations, express or implied, as to the habitability or condition of the real property contained herein.” The sales contract did not state the square feet of the building. After taking possession of the property, plaintiff discovered that the building was actually only 9,353 square feet and accordingly brought this negligent misrepresentation claim. The trial court granted summary judgment to defendant, and the Court of Appeals affirmed, although on different grounds.

April 23, 2015

Is Plaintiff’s Fault Percentage Applied Before or After Tort Reform Damage Cap?

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

The Court of Appeals recently released an extensive opinion in a Tennessee car accident case, full of issues regarding evidence and trial questions. Three of the findings in this opinion are critical for tort lawyers to familiarize themselves with: (1) that where there is evidence that a plaintiff could not see an approaching car, a directed verdict for the defendant was not negligent would not be appropriate; (2) that long-term care damages can be causally related to the accident and recoverable, despite the age of the plaintiff; and (3) that an award of non-economic damages should be reduced by any comparative fault finding before the statutory cap is applied.

In Monypeny v. Kheiv, No. W2014-00656-COA-R3-CV (Tenn. Ct App. April 1, 2015), a married couple who were 82 and 90 years old were driving in a vehicle that was struck by defendant. Evidence showed that prior to the accident, the husband and wife were both quite active and lived completely independently. Following the accident, however, the wife died a few months later in the hospital as a result of injuries sustained therein, and the husband went through the hospital, rehabilitation facility, and then an assisted living center, never able to live independently again. Plaintiffs filed suit for economic and non-economic damages, asserting that defendant’s driving caused the crash, while defendant responded that plaintiff husband (the driver at the time) was at fault. Because the driver of the other car was not insured, plaintiffs’ uninsured motorist carrier acted as defendant. At trial, the jury found for plaintiffs, and the Court of Appeals affirmed.

April 21, 2015

Tort Cases Pending Before the Tennessee Supreme Court

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

The Tennessee Supreme Court is currently reviewing the twelve cases of interest to Tennessee personal injury and wrongful death lawyers. Click on the “continue reading”link to see the full list.

April 21, 2015

Email Blasts and Personal Jurisdiction

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

At what point do email blasts from one state into another allow a defendant to be sued in the state where the emails were sent (and where the plaintiff resides)?

Plaintiff lived in Illinois and was injured at a ski resort in Wisconsin. He sued the resort in Illinois and the resort moved to dismiss for lack of personal jurisdiction.

The evidence indicated that 65 – 70% of the guests at the ski resort were from Illinois and that representatives of the resort attended a trade show in Chicago each year. The resort did no print or other ads in Illinois. It did collect email addresses from people, including those from Illinois, and did email blasts in an effort to solicit customers. It also had a website where people from Illinois and elsewhere could reserve rooms (but not purchase lift tickets. Finally, it offered tour packages from Chicago to the resort.

April 19, 2015

Tennessee Wrongful Death Law – Rights of Spouse Who Is Not in Household

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

In 2011, a subsection was added to our state statutes regarding surviving spouses’ rights to institute and collect proceeds from Tennessee wrongful death actions:

Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.

If the period of two (2) years has passed since the time of abandonment or willful withdrawal, then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.

Tenn. Code Ann. § 20-5-106(c). Until recently, this new subsection had not been interpreted by Tennessee courts, but the Court of Appeals took up the task of analyzing the statute in Baugh v. United Parcel Service, Inc., No. M2014-00353-COA-R3-CV (Tenn. Ct. App. March 31, 2015).

April 15, 2015

Expert Affidavit Does Not Satisfy Certificate of Good Faith Requirement

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

While some parts of the Health Care Liability Act (HCLA) are making their way towards substantial compliance, the Court of Appeals recently reiterated that the requirement to file a certificate of good faith under Tenn. Code Ann. § 29-26-122 is mandatory. In Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. March 31, 2015), plaintiffs filed an HCLA claim against defendant. Defendant filed a motion to dismiss on the grounds (1) that plaintiffs did not comply with the pre-suit notice requirements because plaintiffs did not attach a HIPAA compliant authorization form to the notice letter, did not attach a list of all heath care providers receiving notice, and did not list the address of the claimant, and (2) that plaintiffs failed to file a certificate of good faith and failed to disclose the number of prior disclosure violations under § 29-26-122(d)(4). The trial court granted defendant’s motion to dismiss, and the Court of Appeals affirmed.

On appeal, the Court focused solely on the certificate of good faith issue, as failure to comply with the certificate of good faith requirements leads to dismissal with prejudice and would therefore be dispositive of the case. Plaintiffs here “concede[d] in their brief on appeal that instead of filing a certificate of good faith in compliance with the statute, plaintiffs filed a statement signed by their expert.” According to plaintiffs, this filing “over-complied by providing more information than the statute requires.” Essentially, plaintiffs argued that they provided the required information plus some and thus should be excused for not technically complying with the statute. The Court firmly disagreed.

April 14, 2015

Enforceability of Settlements Announced in Open Court

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

When do statements by counsel to a Tennessee judge in open court give rise to a binding settlement between the parties?

In Harvey v. Turner, No. M2014-00368-COA-R3-CV (Tenn. Ct. App. March 26, 2014), three parties had been involved in protracted litigation regarding property issues for six years. The matter finally went to trial, and after three days of testimony, the trial went on a short hiatus. During that time, counsel for all the parties exchanged emails and phone calls and eventually came to an agreement in principle. When the trial resumed, the attorneys appeared to announce the settlement to the court. By agreement, the parties themselves did not attend. The attorneys announced the terms to the court and affirmed to the court that their parties had agreed to the settlement, the parties agreed that the trial court would retain jurisdiction to enforce the settlement, and the court accepted the settlement.

Subsequently, the parties were unable to come to an agreement on a final written settlement document, so a hearing was held. The defendant asserted that a sewer line was supposed to be included in the agreement, but the trial court disagreed. The trial court found that “there was a meeting of the minds and that that issue was not part of it.” The trial court held that there was an enforceable settlement agreement, and defendant appealed.

April 12, 2015

Ill-Maintained Bridge Leads to Premises Liability for City

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

Tennessee cities, counties and other types of governmental entities are generally immune from suit for damages arising from personal injury and wrongful death claims. However, a special law, the Governmental Tort Liability Act (GTLA), allows Tennessee cites and counties to be sued for pseronal injury or wrongful death under certain circumstances by removing that immunity.

One special circumstance where a city or county can be held responsible for a personal injury is where injury is caused by “the dangerous or defective condition of any public building, structure,…or other public improvement owned and controlled by such governmental entity.” Tenn. Code Ann. § 29-20-204(a). In order for liability to be removed pursuant to this statute, the governmental entity in question must have had actual or constructive notice of the dangerous condition. “[A] governmental entity will be charged with constructive notice of a fact or information, if the fact or information could have been discovered by reasonable diligence and the governmental entity had a duty to exercise reasonable diligence to inquire into the matter.” (Quoting Hawks v. City of Westmoreland, 960 S.W.2d 10 (Tenn. 1997)).

In Kee v. City of Jackson, No. W2013-02754-COA-R3-CV (Tenn. Ct. App. March 30, 2015), plaintiff was injured while walking across a wooden bridge from a parking area to the city fairgrounds during a flea market. The bridge was owned and maintained by the city. Plaintiff brought a premises liability claim against the city, and the trial court found for plaintiff, deeming the city liable but finding that plaintiff was 40% comparatively negligent and reducing her award accordingly. The city appealed, and the Court of Appeals affirmed the trial court’s judgment.

Plaintiff alleged that the bridge had a “broken rotten runner,” “nails sticking up in more than one place,” and that “the planks were not even and that gaps exist between the boards in various places on the bridge,” as shown by pictures taken two days after the incident. Although there was no allegation or evidence that the city had actual notice of the dangerous condition of the bridge, the Court determined that plaintiff was proceeding under the “common occurrence” theory, meaning that “a plaintiff can show constructive notice by proving that a pattern of conduct, recurring incident, or general continuing condition caused the dangerous condition.” (Quoting Benn v. Public Bldg. Authority of Knox County, 2010 WL 2593932 (Tenn. Ct. App. June 28, 2010)). Continue reading

April 7, 2015

Personal Injury Plaintiff Wins Summary Judgment

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

Although summary judgment is often thought of as a tool for defendants, plaintiffs in personal injury cases should remember that motions for summary judgment can be beneficial and successful for them as well. In Bloomfield v. Metro. Govt. of Nashville and Davidson Co., No. M2014-00438-COA-R3-CV (Tenn. Ct. App. March 26, 2015), plaintiff was a firefighter employed by Metro. He responded to a call regarding an elderly patient who was in a wheelchair. When a paramedic arrived to assist in moving the patient, the plaintiff and the paramedic moved the patient in the wheelchair towards the door of the home, where they realized that the patient would have to be lifted to clear a door threshold and step down. Plaintiff was at the head of the chair while the paramedic was at the foot. Plaintiff told the paramedic to hold on a second and turned to get information from family members, but the paramedic lifted the foot of the wheelchair without communicating to plaintiff first. When plaintiff saw that the chair was about to tip backwards he grabbed it, injuring himself.

Because the paramedic was also employed by Metro, plaintiff sued Metro for the injuries he alleged to have sustained due to the paramedic’s negligence. Plaintiff used the deposition testimony of several Metro employees to show that there was a standard for lifting a patient in a wheelchair and that the person at the head of the wheelchair was responsible for initiating the lift. Further, plaintiff used the paramedic’s own deposition testimony, wherein he admitted that he violated procedure by lifting at the foot before everyone was ready. Relying on these facts, plaintiff successfully moved for summary judgment as to liability for the paramedic’s negligence, and a trial was conducted on damages only, wherein plaintiff was awarded the maximum amount allowed under the Governmental Tort Liability Act.