Day on Torts

January 13, 2015

Certificates of Good Faith After Defendant Alleges Fault

Yet another case about the Tennessee law requiring certificates of good faith in medical malpractice (now called health care liability) cases, this one with a twist.

In Sirbaugh v. Vanderbilt Univ., d/b/a Vanderbilt Univ. Med. Ctr., No. M2014-00153-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014), plaintiff originally brought suit against two defendants related to a surgical sponge being left in her body. In this initial filing, plaintiff gave proper pre-suit notice to the defendants and attached a certificate of good faith to her complaint in accordance with the Health Care Liability Act. When the original defendants filed their answer, they asserted comparative fault against two non-parties. Pursuant to Tenn. Code Ann. § 29-26-122(b), these original defendants were required to file a certificate of good faith regarding their comparative fault allegations against the new non-parties, but plaintiff chose to waive that requirement under § 29-26-122(c).

After the answer was filed, plaintiff amended her complaint to add the two non-parties that defendant had named. When filing her amended complaint, though, she did not file a new certificate of good faith. The new defendants moved to dismiss based on this failure. Plaintiff argued that the requirement to file a good faith certificate only applied to the initial complaint, with plaintiff’s counsel asserting that if the legislature “had meant that Plaintiff had to file a certificate of good faith upon waiving the Defendant’s obligation to do so, they would have said that.” Plaintiff argued that the statute made a distinction between the process for filing an initial health care liability complaint and filing an amended complaint based on an allegation of comparative fault. If the processes did not vary, plaintiff’s counsel asserted that the statutes allowing for waiver would essentially have no meaning. The new defendants, however, argued that plaintiff’s “waiver of the Original Defendants’ requirement to file a certificate of good faith addressing their comparative fault claims did not release her from the obligation to file a certificate of good faith when she added the New Defendants to the lawsuit.”

January 12, 2015

Business Owners who Ejected Patrons into Street Just Before Shootout Avoid Liability

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

In Akridge v. Fathom, No. E2014-0071-COA-R9-CV (Tenn. Ct. App. Jan. 7, 2015), plaintiffs filed a premises liability action after being injured in a shooting that occurred just outside defendants’ business. Defendants operated a music venue/club targeted to at-risk youth including gang members. Plaintiffs attended a public event there on Christmas Eve, and during the event some of the attendees wore gang colors and an altercation broke out inside the building. Defendants’ security personnel stopped the event and made everyone, including plaintiffs, leave the building. Upon exiting, plaintiffs were “caught in the crossfire of a shootout” and were injured.

Defendants moved to dismiss the complaint, arguing that they only owned and occupied the building and that the tortious conduct alleged happened outside the building. Thus, defendants argued, they could not be held liable. Plaintiffs responded that defendants had a duty to operate their business in a reasonably safe manner and that such duty had been violated. Because both parties submitted materials outside the pleadings, the motion was converted to one for summary judgment, which the trial court denied. The trial court found that since the shooting occurred just steps outside defendants’ business and since defendants’ employees had made plaintiffs exit the building into this foreseeably dangerous situation, liability could exist. On interlocutory appeal, however, the Court of Appeals overturned this ruling.

The key issue in this case was whether “defendants owed a duty of care to plaintiffs, who were injured by the criminal acts of third parties that occurred outside the premises occupied by [one defendant] and owned by [two others].” The Court of Appeals recognized that a special relationship giving rise to a “duty to control the conduct of a third party so as to prevent the third party from causing harm” may exist in a factual scenario such as this, where plaintiffs were invitees of defendants who held premises open to the public. Where the Court of Appeals disagreed with the trial court, however, was regarding whether “such a duty continued once the invitees exited defendants’ business premises.” The Court stated that there was no Tennessee precedent for extending a business owners’ duty of care to its patrons after the patrons left the premises.

January 11, 2015

Local Rule Changes in the 21st Judicial District

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

The Judges in the Chancery and Circuit Courts for Williamson, Hickman, Perry and Lewis Counties have announced substantial changes to the local rules of court. The changes were effective December 1, 2014.

Among other significant changes, the local rules now require that one who objects to a motion filed by an opponent file written opposition to the motion. Rule 5.03(c). Regular motions must be filed at least fourteen days before a hearing, and opposition to the motion filed and served at least 4 days before the hearing.

January 6, 2015

City Immune from Suit where it does not Own or Control Property Where Injury Occurred

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

Under the Governmental Tort Liability Act (GTLA), governmental immunity is removed in specific circumstances. Where the government does not own or control the property on which the alleged injury took place, however, the GTLA does not apply and immunity remains intact.

In Turner v. City of Bean Station, No. E2013-02630-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014), plaintiff sued the city, among others, for injuries allegedly sustained while playing softball in a charity tournament. The city moved for summary judgment on the basis that it neither controlled nor owned the field, and that the GTLA therefore did not apply and the city was immune from suit. The trial court denied the motion, but the Court of Appeals reversed that decision and dismissed the case against the city.

The city had presented evidence that the field in question was owned by the Tennessee Valley Authority, which had given the city a license to occupy and use the field as a recreational ball park. The city, in turn, leased the license to the local little league, and the little league oversaw the maintenance of the park and field. On the date of the alleged injury, the little league had “subleased” its license to the person running the charity tournament (another of the defendants in this case).

January 5, 2015

“Magic Words” and Medical Malpractice Litigation

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

While a plaintiff in a health care liability action must prove certain elements through an expert witness, that expert witness is not necessarily required to use “precise legal language.” A medical expert’s failure to use perfect terminology will not automatically result in a victory for defendant, as recently illustrated by the case of Dickson v. Kriger, No. W2013-02830-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2014).

In Dickson, plaintiff sued an ophthalmologist for complications allegedly caused by the negligent performance of LASIK surgery. The case went to trial, and after plaintiff’s proof, the trial court granted defendant’s motion for directed verdict on the basis that plaintiff had failed to establish (1) the standard of care for ophthalmologists in the area at the time of the procedure and (2) that defendant’s negligence was the proximate cause of the damages. The Court of Appeals, however, reversed this directed verdict, finding that the trial court had held plaintiff’s expert to too specific of a language requirement.

“Directed verdicts are only appropriate when reasonable minds could reach only one conclusion from the evidence.” If there is any material evidence to support plaintiff’s theories, then plaintiff should survive a motion for directed verdict. Here, the Court of Appeals found that a reasonable juror could find that plaintiff established the necessary elements of his case.

January 2, 2015

Statute of Limitations – One Day Late Too Late

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

In Redmond v. Walmart Stores, Inc., No. M2014-00871-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2014), plaintiff filed a premises liability claim after she slipped and fell on a puddle of water in a Nashville Wal-Mart. The incident occurred on August 12, 2012, but during plaintiff’s first conversation with her attorney he recorded that it had occurred on August 13^th. On August 13, 2013, plaintiff’s attorney filed the complaint in this action.

Defendant moved for summary judgment on the basis that the action was time-barred by the one-year statute of limitations. The trial court granted the motion. Plaintiff appealed, asserting that the discovery rule tolled the statute of limitations and that “the trial court should have granted an enlargement of the statute of limitations under Tennessee Rule of Civil Procedure 6.02.” The Court of Appeals, however, rejected both of these arguments and affirmed the trial court’s decision.

Plaintiff’s first argument was that even though she was injured in the initial fall, she had additional injuries that she could not have discovered on the day of the incident, and thus the statute of limitations should have been tolled by the discovery rule as to at least those injuries. The Court explained, though, that “a plaintiff’s cause of action accrues when he or she knows or, in the exercise of reasonable care and diligence should know, that he or she has sustained an injury as a result of the defendant’s wrongful conduct.” Here, plaintiff was aware on the day of the fall that she had sustained an injury; she filed a report with the store on the day she fell and suffered from pain and bruising. Accordingly, she knew that her fall “would support an action for tort against the tortfeasor” and the discovery rule did not apply. The fact that her injuries got worse following the day of her fall did not entitle her to invoke the discovery rule to escape the one-year statute of limitations.

December 29, 2014

A Website and a Unilateral Phone Call – No Personal Jurisdiction

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

The Court of Appeals recently addressed the requirements of personal jurisdiction within the context of a misrepresentation case. In Wall Transportation, LLC v. Damiron Corp., No. M2014-00487-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2014), plaintiff was a Tennessee limited liability company and defendant was an Indiana corporation. Defendant had a website where it listed heavy-duty trucks for sale, and plaintiff located a truck on said website that it was interested in purchasing. Plaintiff called defendant’s Indiana location from Tennessee to inquire about the truck and was allegedly told certain things about its condition and mileage. Thereafter, plaintiff traveled to Indiana where he inspected the truck, negotiated a price, entered into a contract for sale, and took delivery of the truck.

Several months later plaintiff filed suit in Robertson County, Tennessee alleging that defendant had made “false and fraudulent representations about the truck concerning its mileage, gear ratio, and the condition of the truck’s body[.]” Defendant made a special appearance for the sole purpose of filing a motion to dismiss for lack of personal jurisdiction under Tennessee Rule of Civil Procedure 12.02(2). The trial court granted this motion, finding specifically that defendant was an Indiana corporation, did not routinely do business in Tennessee, did not own property or have employees in Tennessee, did not direct advertising to Tennessee, did not purchase substantial amounts of materials from Tennessee, and did not routinely sell products to Tennessee customers. Further, the trial court found that all of the events related to the sale of the truck occurred in Indiana except for the initial phone call, which was initiated in Tennessee by plaintiff. Accordingly, the trial court held that defendant did not have the minimum contacts sufficient to establish personal jurisdiction.

Based on the same facts cited by the trial court, the Court of Appeals affirmed the lack of personal jurisdiction finding. The Court explained that personal jurisdiction is based on the existence of minimum contacts, and that it can be established through either specific or general jurisdiction. Specific personal jurisdiction exists where a plaintiff can “show that the nonresident defendant has purposely established significant contact with the forum state and that the plaintiff’s cause of action arises out of or is related to those activities or contacts.” General personal jurisdiction requires a showing that the defendant had “continuous and systematic” contacts in the state. Here, neither requirements were met. The Court called defendant’s contacts with Tennessee “tenuous at best,” noting that it was not registered to do business in Tennessee and had no office, employees, vehicles, contact information, or bank accounts in Tennessee. Although defendant’s website could clearly be accessed from Tennessee, the Court specifically stated that “[t]he mere existence of a website is not a sufficient basis to support a finding that [defendant] could reasonably anticipate being haled into court [here].” (internal quotations omitted).

December 27, 2014

The Contiguous State Rule for Expert Witnesses

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

The Tennessee Health Care Liability Act requires that health care professionals testifying as experts, in addition to other requirements, be licensed to practice in Tennessee or a bordering state. Tenn. Code Ann. § 29-26-115. In a recent decision, the Tennessee Supreme Court found that a trial court’s refusal to waive this requirement was not so far removed from the “usual course of judicial proceedings” so as to qualify for a Rule 10 appeal.

In Gilbert v. Wessels, No. E2013-00255-SC-R11-CV (Tenn. Dec. 18, 2014), plaintiff filed a health care liability action against an ophthalmologist who had performed YAG laser surgery on him. Less than a month before trial, the defendant doctor filed a motion to waive the contiguous state requirement. Defendant sought to have a doctor from Florida testify who was alleged to be one of the three doctors in the country with the most experience with this procedure. Defendant supported his motion with an affidavit saying that defense counsel had spent 35 hours attempting to identify an expert in Tennessee or a contiguous state, an affidavit from a Tennessee ophthalmologist stating that testimony should be provided by someone who had performed the procedure, and a portion of plaintiff’s expert’s deposition acknowledging that the Florida doctor was one of the most experienced in the county at the relevant procedure.

Plaintiff opposed defendant’s motion, and the trial court declined to waive the contiguous state requirement, finding that defendant “had not established that appropriate witnesses would otherwise be unavailable.” The trial court denied defendant’s petition for interlocutory appeal, but the Court of Appeals subsequently granted defendant’s application for a Rule 10 extraordinary appeal. After considering the case, the Court of Appeals held that the trial court did not abuse its discretion when it declined to waive the contiguous state requirement. The Supreme Court then granted defendant’s Rule 11 appeal.

December 20, 2014

Medical Malpractice Notice – Incomplete HIPAA Form

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

As Tennessee Courts continue to grapple with what exactly constitutes substantial compliance when sending pre-suit notice of a healthcare liability action, a recent case provides hope that a reasoned approach may ultimately prevail – a HIPAA form sent with the pre-suit notice letter was found to substantially comply with the notice statue despite the failure to Include the date on the form.

In Hamilton v. Abercombie Radiological Consultants, Inc., No. E2014-00433-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2014), plaintiff sent a timely pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121 before filing her health care liability action. Defendant, however, moved to dismiss because plaintiff had signed the HIPAA release form but had left the date blank open. Plaintiff asserted that the date line was intentionally left blank so that defendant could fill it in and the “release form would not become stale.” The trial court, though, agreed with defendant and dismissed the case with prejudice, finding that the form was non-HIPAA compliant.

In its analysis, the Court of Appeals quoted heavily from Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014), which expounded upon the Supreme Court’s Stevens decision, the first decision in which the Court held that the content requirements of pre-suit notice could be satisfied with substantial compliance. According to Thurmond, “unless strict compliance with a notice content requirement is essential to avoid prejudicing an opposing litigant, substantial compliance with a content requirement will suffice.” “Non-substantive errors and omissions” and “a plaintiff’s less-than-perfect compliance with subsection 29-26-121(a)(2)(E) will not derail a healthcare liability claim so long as the medical authorization provided is sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” Stevens v. Hickman Cmty. Healthcare Serv., Inc., 418 S.W.3d 547 (Tenn. 2013).

December 18, 2014

Seeking Reconsideration of Summary Judgment Motions in Tennessee

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

In Bilbo v. Ocoee Place Condominium Homeowners Ass’n, No. E2013-02532-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2014), plaintiffs filed suit alleging negligent construction of condos. Defendant HOA filed a motion for summary judgment stating that it did not own the property the condos were built on and that the HOA had no control over the construction of the condos. For the purposes of the summary judgment motion, plaintiffs agreed that defendant “had no decision-making authority,” “did not have any role whatsoever in the construction,” and “did not own the land…upon which the condominiums were constructed.”

Based on these facts, the trial court granted defendant summary judgment. Plaintiffs subsequently filed a motion to alter or amend the summary judgment pursuant to Tennessee Rules of Civil Procedure 54.02 and 60.02 claiming to have newly discovered evidence. The Court of Appeals affirmed the trial court’s grant of summary judgment.

When a motion is made to alter summary judgment based on additional evidence under Rule 54.02, a court should consider: