Day on Torts

January 8, 2014

If You Tell The Judge You Want To Go Home, Don’t Be Upset When He Lets you (And You Lose)

This case is a good illustration of a couple of points: (1) proceeding pro se is in a Tennessee personal injury case is dangerous business, and (2) judges at both the trial court and appellate level can be very patient folks.

Plaintiff Jennifer Al-Athari was involved in a motor vehicle accident with a tractor-trailer driven by Mr. Gamboa who was an employee of Morgan Southern. Mrs. Al-Athari and her husband filed suit against Mr. Gambo and Morgan Southern After burning through two attorneys, the plaintiffs elected to proceed pro se. Thereafter, things went awry.

Judge Brothers entered a scheduling order which specified dates for medical proof. Plaintiff failed to produce any medical proof, so Morgan Southern moved in limine to exclude any medical evidence at trial. Plaintiffs did not appear at the hearing and the trial court granted the motion. In addition, shortly before the trial, Morgan Southern moved in limine to exclude settlement offers, liability insurance and any reference to Mr. Gamboa’s legal status in the United States or the process by which he was hired by Morgan Southern. All of these motions in limine were also granted.

January 7, 2014

You Only Get One Shot with Tenn. Code Ann. § 20-1-119 – The 90-day Extension is Based on the Date of Filing of the First Answer

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

Tennessee has a unique statute that allows a plaintiff to sue a nonparty tortfeasor alleged to have fault in a negligence case after the expiration of the one-year statute of limitations. the statute is triggered if a defendant sued within the original statute of limitations period blames the nonparty and the plaintiff either files an amendment to the pending lawsuit or files a separate lawsuit within 90 days of the filing date of the defendant’s answer raising an allegation of the nonparty’s fault. The statute is Tenn. Code Ann. § 20-1-119.

This statute has been the subject of many appeals in Tennessee, and was most recently addressed by the Middle Section of our Court of Appeals in Morris v. Phillips.

In this case, the Plaintiff was injured in a multi-vehicle wreck in August of 2010. Plaintiff sued the Driver and the Record Owner of the vehicle. In December 2011, Record Owner filed an answer alleging the fault of three Other Tortfeasors. In July 2012, Driver filed an answer also alleging the fault of the same three Other Tortfeasors. Plaintiff filed an amended complaint bringing the Other Tortfeasors into the lawsuit in August 2012, which was more than 90 days after the first answer alleging the fault of Other Tortfeasors was filed. One of the Other Tortfeasors filed a motion to dismiss on grounds that the statute of limitations had expired because of Plaintiff’s failure to file an amended complaint within 90 days of the first allegation of fault against Other Tortfeasors.

January 6, 2014

Reassurances that Lawyer Would Fix Mistake Do Not Toll Legal Malpractice Statute of Limitations in Tennessee

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

The statute of limitations for legal malpractice claims in Tennessee is one year from the date the action accrues. Tenn. Code Ann. § 28-3-104(a)(2). The “discovery rule” determines when the action accrues in most legal malpractice cases. Tennessee’s discovery rule says that a plaintiff’s time limit to file suit does not start to run until the plaintiff knows or in the exercise of reasonable diligence should know that he or she has an injury as a result of wrongful conduct by a defendant.

Recently, in Aleo v. Weyant, the Tennessee Court of Appeals examined a case involving a legal malpractice claim against a family law Attorney for failing to include a provision in a marital dissolution agreement and final decree of divorce specifying that the Wife would receive 50% of the Husband’s military pension and that she would be named as beneficiary of the pension. Attorney raised a statute of limitations defense and the trial court granted summary judgment.

The record showed that Wife went to a Staff Judge Advocate more than a year before she filed suit against Attorney and was advised by the Staff Judge Advocate that she would not get part of Husband’s pension benefits because the divorce decree was silent about that asset. Since the malpractice lawsuit was not filed within one year of Wife learning that she would not receive pension benefits, the Court of Appeals agreed with the Trial Court and upheld summary judgment.

January 5, 2014

Book Collecting Tennessee Tort Reform Statutes and Related Case Law

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

Tennessee personal injury and wrongful death lawyers may be interested in my newest book, Compendium of Tennessee Tort Reform Statutes and Related Case Law, 2009-2013 (2nd ed.)

The title says it all: the 180+ page book is a collection of Tennessee tort reform statutes and the cases interpreting those statutes. The case law citations are current through September 15, 2013. Hundreds of the first edition of the book were sold last year and interest remains high this year.

The fact of the matter is that Tennessee tort law is slowly being codified and those tort lawyers who ignore statutory changes in the law will quickly find themselves in trouble. Simply skimming the Table of Contents in this book might help you avoid bringing a claim that either no longer exists or that has been severely limited under the revised law. (By the way, one of those new statutes provides that if a motion to dismiss is granted your client may be held liable for up to $10,000 of the defendant’s attorneys’ fees.)

January 3, 2014

Nashville Tennessee Ordinance Has A Special Provision on Reckless Driving

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

Many people are unaware that local governments often have ordinances that can form the basis of a negligence per se case – ordinances that may create a responsibility greater than that imposed by state statues or the common law.

Consider this ordinance from Nashville and Davidson County, Tennessee:

It is unlawful for any person to drive any vehicle upon the streets of the metropolitan government or upon any private road or driveway or parking area in a wilful and wanton disregard for the safety of persons or property. Any person who drives any vehicle at a speed of fifteen or more miles per hour than the posted speed limit upon any streets of metropolitan government or upon any private road or driveway or parking area in any residence district shall be presumed to be driving in a wilful and wanton disregard for the safety of persons or property and the burden of proof shall be upon the driver to establish that they were not driving with such disregard.

Code, 12.68.180 Reckless driving(emphasis added).

January 2, 2014

Tennessee Law and the Pre-Existing Injury Instrution

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

For more than a century, Tennessee courts have recognized that a tortfeasor “must accept the person as he finds him” and have allowed injured parties to recover all damages proximately caused by tortfeasors. This means that injured victims of negligence are allowed to recover damages for aggravation of pre-existing injuries as long as there is expert medical proof linking the additional harm suffered by the injured person to the acts of the wrongdoer.

In the case of Pyle v. Mullins, No. E2012-02502-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2013), the plaintiff was injured in a car crash and at trial received a jury verdict for $15,000 (an amount less than his claimed medical expenses). Plaintiff believed the verdict was too low and appealed the judgment. One reason for the low damage award, according to the plaintiff’s appeal, was that the judge refused to instruct the jury regarding the defendant’s liability for aggravation of the plaintiff’s pre-existing neck condition. (Note: while it is the jury who determines the amount of compensation to award an injured plaintiff, it is the judge who makes the legal determination on the types of damages that can be awarded. Exactly why the plaintiff thought the award would have been larger if the jury had been charged on aggravation of a pre-existing condition is not clear.) The plaintiff argued that the jury should have been allowed to award additional damages because, he claimed, proof at trial showed the crash caused his pre-existing degenerative disc disease to become a chronic condition requiring extended treatment.

After reviewing the evidence at trial with a focus on the testimony of plaintiff’s medical expert, the court of appeals disagreed with the plaintiff and affirmed the trial court’s decision to not instruct the jury on plaintiff’s pre-existing neck condition. While the plaintiff’s medical expert testified that a person with degenerative changes like the plaintiff’s is more susceptible to injury and that car crashes commonly cause neck pain to manifest itself in a person with degenerative changes, the medical expert did not testify, as required by law, that the plaintiff’s car crash aggravated his degenerative disc disease or had any specific effect on it at all. In other words, the medical expert’s testimony about general observations and correlations between neck pain and car crashes was insufficient and not material because it did not specifically relate to the plaintiff’s injury.

January 1, 2014

Statutes of Repose and Comparative Fault in Tennessee

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

The Tennessee Bar Association has published the most recent edition of the Tennessee Bar Journal, which includes my latest article "Protecting Yourself From Statutes of Repose."

The article discusses the impact of statutes of repose on tort recoveries in cases involving comparative fault and gives tips to lawyers on how to avoid adverse consequences of statutes of repose.

Ironically, and in the very same edition of the Tennessee Bar Journal in which I criticize statute of repose, the Tennessee Bar Association announces that it has decided to ask the Tennessee General Assembly to grant one to lawyers. From the TBA President:

December 31, 2013

Tennessee Court of Appeals Gives Guidance on Motions to Amend and Motions to Intervene

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

Do you need to file (or oppose) a motion to amend or a motion to intervene in Tennessee state court? If so, start your research with this new case from the Eastern Section of the Tennessee Court of Appeals.

The appeal arises from the sale of residential real estate. Plaintiff alleged fraud and negligent misrepresentation by the defendants for failing to disclose water drainage issues, water damage and basement flooding in the Tennessee Residential Disclosure form. During discovery, the defendants moved for summary judgment claiming the plaintiff lacked standing to pursue the case. Plaintiff opposed the motion and moved to amend her complaint. In addition, the plaintiff’s sons moved to intervene. The trial court denied the motion to amend and the motion to intervene and granted the defendants’ motion for summary judgment. The court based the ruling on the plaintiff’s lack of standing. The court also concluded the intervention would not correct the standing issue since the sons were not parties to the contract for the sale of the property.

Below are the key facts:

December 31, 2013

Rhode Island Supreme Court Rejects Burn Injury Case – “Attractive Nuisance” Doctrine Not Applicable

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

The Rhode Island Supreme Court has held that a 17-year old young man could not rely on the attractive nuisance doctrine to impose liability on the State of Rhode Island.

The plaintiff and some friends entered a closed mental health facility that was locked and marked "No Trespass." Along the way, he was burned when a bottle of sulfuric acid in the building burst. The trial court rejected his case, and Rhode Island’s highest court affirmed the dismissal.

Regrettably, plaintiff was old enough to appreciate the risk of breaking into an abandoned building and of transporting a substance he “had reason to believe” was hazardous; his injury was the result of a failure to protect himself, rather than an inability to protect himself. Accordingly, it was not clearly erroneous for the trial justice to hold that plaintiff failed to establish that he was too young to appreciate the risk, and thus that the doctrine of attractive nuisance is inapplicable to this case.

December 30, 2013

Tennessee Court of Appeals Explains How to Sue Someone Who Died After Causing Car Wreck

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

When someone is harmed by another person who dies before a lawsuit is filed, the injured party can still bring a claim for damages based on the wrongdoer’s conduct as long as certain steps are closely followed in Tennessee’s survival statute, Tenn. Code Ann. § 20-5-103.

When the wrongdoer dies, Tennessee law tolls the statute of limitations for six months, resulting in the injured plaintiff having a total of eighteen months from the date of the injury to properly file suit (based on the standard one year for negligence claims (Tenn. Code Ann. § 28-3-104) plus the additional six months when the tortfeasor passes away (Tenn. Code Ann. § 28-1-110)). After the tortfeasor dies, he or she is no longer the proper party defendant, and instead the claim is filed against the personal representative of the deceased wrongdoer’s estate. If there is no personal representative, then the injured plaintiff must petition the court to appoint a person, called an administrator ad litem, to serve as the defendant in the lawsuit. Not following these steps can result in the plaintiff’s lawsuit being dismissed, as demonstrated in the case of Ferrell v. Milller and Ivey, No. M2013-00856-CO-R3-CV (Tenn. Ct. App. Nov. 27, 2013).

In Ferrell, the plaintiff sued the defendant spouses after the defendant husband fatally shot himself while driving an SUV that crashed into the plaintiff’s car injuring the plaintiff. The crash occurred on June 25, 2010, and the plaintiff filed his complaint on June 20, 2011, naming the deceased defendant husband and the defendant wife. The defendant wife filed an answer to the complaint on December 13, 2011, and highlighted the plaintiff’s failure to appoint and serve an administrator ad litem to preserve the claims against the deceased defendant husband. On December 20, 2011, the plaintiff finally moved the court to appoint an administrator ad litem to accept service of process on behalf of the deceased defendant husband. On March 19, 2012, the court appointed an administrator ad litem, but the plaintiff failed to amend the complaint to name the administrator as the party defendant.