Day on Torts

December 26, 2013

Put Away Your Checkbook: Rule 45 Does Not Authorize A Court To Hold Attorneys Personally Responsible For Costs Incurred In Producing Documents Pursuant To a Subpoena

Who should pick up the tab for costs incurred in responding to a subpoena to a non-party under Rule 45 of the Tennessee Rules of Civil Procedure?

This case arises from a probate matter. Five years after the decedent’s estate had been closed for the second time, it was reopened again by a grandson, who believed a quarter of a million dollars in assets continued to be held in the decedent’s Merrill Lynch accounts. The grandson was represented by Suzette Peyton and George Copple, Jr. Shortly after re-opening the estate, the attorneys issued a subpoena duces tecum to Merrill Lynch. The subpoena sought several years worth of documents for the decedent’s accounts and it also sought information related to accounts held by both the decedent’s wife and son, both of whom were also deceased.

For several months, the parties negotiated over the scope of the subpoena and the appropriate releases. Ultimately, the administrator filed a motion to enforce the subpoena. Merrill Lynch opposed the motion on several grounds but never sought an advancement of the reasonable costs associated with compliance as was permitted under the 2012 version of Tennessee Rule of Civil Procedure 45.07. Instead, in email communications, Merrill Lynch repeatedly sought assurances from the attorneys that its expenses associated with complying with the subpoena would be paid. After all was said and done, Merrill Lynch produced documents and sought expenses in the amount of $776.00.

December 23, 2013

Tennessee Court of Appeals Rejects Claim For Intentional Interference with Business Relations

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

Tennessee courts recognize a claim for intentional interference with business relations, but this multi-year dispute did not end well for the claimant.

In Stratienko v. Chattanooga-Hamilton County Hospital Authority, No. 2011-01699-COA-R3-CV (Tenn. Ct. App. Nov. 21, 2013),the Tennessee Court of Appeals affirmed dismissal of a plaintiff doctor’s claim for intentional interference with business relations. The case has a substantial procedural history, having been previously appealed through the Tennessee Court of Appeals to the Tennessee Supreme Court, as well as to the Sixth Circuit Court of Appeals in an almost identical federal suit. In sum, the case stems from an alleged physical altercation in 2004 between Dr. Stratienko and another doctor in the break room of hospital owned and operated by the defendant Chattanooga-Hamilton County Hospital Authority.

Before addressing the claim for intentional interference of business relations, the Stratienko court rejected the plaintiff’s contention that the trial court had incorrectly dismissed on summary judgment his other claims for breach of contract, inducement of breach of contract, conspiracy, and immunity. The plaintiff argued that there were disputed facts regarding the physical altercation, the investigation of the incident, and the plaintiff’s subsequent suspension. The Court of Appeals, however, observed that the federal district court and the Sixth Circuit had previously made findings of fact relative to the incident, investigation, and suspension, and those findings constituted the law of the case. Under Tennessee’s law of the case doctrine, an appellate court’s decision (state or federal) on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal. See Life & Casualty Ins. Co. v. Jett, 133 W.W.2d 997, 998-99 (Tenn. 1939). Therefore, the Court of Appeals refused to reconsider the facts at issue.

December 21, 2013

Tennessee Court of Appeals Rules That Remittiturs Of 70% Or More Are Not Permitted

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

Remittiturs are court-ordered reductions in a jury verdict because the trial judge thought that the jury awarded too much money in compensatory or punitive damages. They are a common sense, common law "tort reform" measure, designed to permit a judge who actually heard the evidence (or, in rare cases, the judges on an appellate court) to alter the amount of the jury’s verdict.

This case arises from a collision between a motorcycle and a car. Following a jury trial, fault was allocated 40% to the motorcyclist and 60% to the defendant motorist. The total damages awarded were $317,000.00 which based on fault allocations was reduced to $190,000.00. Upon motion of the defendant, the trial court granted a remittitur finding the jury’s awards for future pain and suffering and future loss of enjoyment of life were excessive. Accordingly, the court reduced those awards and approved a judgment for the motorcyclist in the amount of $54,192.10. The remittitur was accepted under protest and an appeal was taken.

Pursuant to T.C.A. 20-10-102, trial courts are statutorily authorized to grant a remittitur as necessary to cure an excessive jury verdict and avoid the expense of a new trial. When reviewing a trial court’s grant of remittitur, Tennessee appellate courts will conduct a three-step review consisting of (1) the trial court’s reasons for granting a remittitur; (2) the amount of the reduction to ensure it does not destroy the jury’s verdict; (3) the evidence related to damages to assess whether the proof is consistent with the remittitur.

December 18, 2013

Arbitration Agreements: What Constitutes Waiver And What Constitutes A Contract Of Adhesion?

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

Lawyers in Tennessee see more and more arbitration clauses in contracts and thus more and more people trying to avoid these provisions by arguing that the provision was waived or invalid because the contract requiring arbitration was a contract of adhesion.

In Skelton v. Freese Construction Company, Inc. the Tennessee Court of Appeals gives us some insight into both these issues. In this case, the defendant did not file its motion to compel arbitration until three years after the commencement of the suit. During that time, the defendant had filed an answer, answered discovery and filed a motion to dismiss based on standing.

However, in reviewing the record, the Court of Appeals determined that much of the delay had been occasioned by the plaintiff. Specifically, the plaintiff had failed to timely comply with court orders, had changed counsel and filed amended complaints to correct standing issues and other errors. In addition, some of the delay was related to the parties’ attempts to resolve the arbitration issue on their own. Moreover, the Court of Appeals noted the defendant had expressly reserved its right to arbitrate the dispute in its answer to the plaintiff’s second amended complaint and had filed its motion to compel within two months of the filing of the second amended complaint (which finally resolved the standing issues). Further, the Court of Appeals noted the defendant’s motion to dismiss was related to standing as opposed to the merits of the underlying case. All in all, there was not a "clear, unequivocal and decisive" act by the defendant which signaled its intention to forgo its right to arbitrate.

December 16, 2013

Failure of Court to Strike Juror For Cause Results in Reversal Of Health Care Liability Verdict

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

The Kentucky Supreme Court has reversed a verdict for the defendants in a medical malpractice (health care liability) case because the trial judge failed to grant a request of the patient’s lawyer to strike two jurors for cause.

The reversal was granted notwithstanding the fact that the lawyer for the plaintiff was able to challenge one of the jurors that should have been dismissed for cause with a peremptory challenge. Why? Because the plaintiff ran out of peremptory challenges and there were two other jurors that they would have removed had they had any other peremptory strikes remaining.

A majority of the court did not believe it was necessary to show any actual prejudice to the party. Rather, the court determined that when a party is forced to use a peremptory challenge on a juror that should have been dismissed for cause by the trial court that harm has been done.

December 11, 2013

Tennessee Supreme Court Reconciles Federal Rules on Voluntary Dismissal with Tennessee’s Three-Dismissal Rule

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

The Tennessee Supreme Court recently ruled that two voluntary dismissals – one in a California state court and one in a Tennessee federal court – do not preclude a plaintiff from re-filing an action based on the same claims in a Tennessee state court.

In Cooper v. Glasser, the court analyzed Rule 41 (a)(1)(B) of the Federal Rules of Civil Procedure and Rule 41.01(2) of the Tennessee Rules of Civil Procedure.

The federal Rule 41 provides that a plaintiff’s notice of dismissal is “without prejudice” unless the plaintiff previously dismissed any action (federal or state) based on the same claims.

December 11, 2013

Tennessee Standard for Reversal of a Verdict Based on a Bad Jury Instruction

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

An important component of any jury trial is the instructions that will be given to the jury about the law that applies to the particular case, how to analyze the evidence, and how to assess the credibility of witnesses. To avoid appeals on the basis of erroneous jury instructions, the best practice is for the parties to agree on the instructions given if at all possible.

When a party takes issue with a particular instruction and wishes to appeal on that basis, he or she faces an uphill battle in overturning the jury verdict in Tennessee. Under our Rules of Appellate Procedure, a jury verdict will only be reversed based on a trial court’s error in giving a jury instruction, failing to give a jury instruction, or giving an erroneous instruction if the error more probably than not affected the verdict or would result in prejudice to the judicial process. Tenn. R. A. P. 36(b).

Recently, in Land v. Dixon, the Court of Appeals reiterated this standard. On appeal, the plaintiffs complained that the trial court erred in giving a comparative fault instruction to the jury because of allegations that the plaintiffs were at fault in a professional negligence case. The plaintiffs argued that under Tennessee law plaintiffs cannot be at fault in professional negligence actions. (That is, shall we say, an imaginative argument.)

December 9, 2013

Suing the Wrong Defendant and Tennessee’s Relation Back Doctrine

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

The Court of Appeals clarified the requirements for an amended complaint to relate back to the filing date when the plaintiff mistakenly sues the wrong defendant.

In Ward v. Wilkinson Real Estate Advisors, Inc., No. E2013-01256-COA-R3-CV, (Tenn. Ct. App. Nov. 30, 2013) Plaintiff sued Glazers for a slip and fall about a week before the one year statute of limitations for personal injury cases expired. Plaintiff quickly found out that Glazers had nothing to do with the property where Plaintiff fell. The day after the statute of limitations expired, Plaintiff filed an amended complaint suing several others who we will collectively call the "Wilkinsons," who did own the property at issue, and served the amended complaint on Wilkinsons within two months. The trial court granted summary judgment to Wilkinsons based on the statute of limitations.

The Court of Appeals affirmed, with a concurring opinion by Judge Susano. The majority rejected Plaintiff’s contention that the amended complaint related back to the original filing based on Tenn. R. Civ. P. 15.03, which provides:

December 6, 2013

Tennessee Man Who Suffered Severe Injuries From Fall While Assisting Neighbor Granted Jury Trial

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

Plaintiff Martin was an apprentice lineman for Upper Cumberland Electrical Membership Cooperative. He agreed to help a neighbor move an electrical line to a barn. As the plaintiff climbed the electrical pole which had been installed by the neighbor, the pole fell over and the Plaintiff sustained serious injuries from the fall. The plaintiff filed suit against his neighbor alleging negligence in the installation of the pole. Specifically, the plaintiff alleged the pole had not been set at a sufficient depth to ensure stability. The neighbor defended claiming the accident was a result of the plaintiff’s failure to follow proper safety protocols and ensure the stability of the pole before climbing it.

During discovery, the plaintiff testified about the steps he took to ensure the safety of the pole before climbing it. Thereafter, the defense filed a motion for summary judgment supported by affidavits of experienced linemen who opined the plaintiff had not followed basic safety requirements. In response, the plaintiff submitted three affidavits to establish the subject pole had not been set at the proper depth per established standards and that the plaintiff had followed proper safety procedures in checking the stability of the pole before climbing it. The trial court granted the defendant neighbor’s motion for summary judgment finding (1) there was no material issue of fact and (2) despite the affidavits indicating the plaintiff had followed proper safety protocols before climbing the pole, the court was of the opinion he did not, (3) and that electrical work was an "ultrahazardous activity".

The Court of Appeals reversed noting that while they had several times noted that electricity was inherently dangerous they had never held it to be an "ultrahazardous activity". Moreover, the defendant’s injuries had not been caused by electricity but instead were caused solely by the fall. Second, the Court of Appeals concluded the plaintiff had established the neighbor had a duty to either ensure the safety of the premises or to warn the plaintiff of any dangers. Since the neighbor had been the one to actually set the pole, he was on notice of its depth. In addition, proof was adduced to show the neighbor had removed some dirt from around the pole thereby making it less stable. On the issue of whether the plaintiff had followed safety protocols, the competing affidavits created an issue of fact and had to be viewed in the light most favorable to the non-moving party. As for the defendant’s argument regarding the application of the contractor exception (a contract of repair is sufficient by itself to impart notice of a danger), the Court of Appeals noted that the plaintiff was not repairing anything but instead simply moving the line; therefore, the exception did not apply.

December 2, 2013

Tennessee Supreme Court Holds Inmate Assault is not Foreseeable Per Se

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

Should a county bear any financial responsibility when it fails to release a jail inmate on time and the inmate gets injured in an altercation when he should no longer have been in jail and therefore not in the position to be harmed.

The Tennessee Supreme Court recently decided such a case. King, an inmate of the Anderson County Detention Center, sued following an attack by another inmate in which he sustained injuries including an eye injury that required surgery and a broken nose. He maintained he should not have been in jail at the time of the attack.

The trial court determined that both the Plaintiff Inmate and the Defendant County were responsible for Plaintiff’s injuries and assigned 45% fault to the Plaintiff for instigating the fight and 55% fault to the Defendant for failing to timely release the Plaintiff. The Court of Appeals upheld the judgment of the trial court. The Defendant County appealed to the Tennessee Supreme Court.