Day on Torts

February 3, 2014

Alabama Court Permits New Malpractice Trial After Defense Lawyer Violates Order

It takes a lot of time and money to get a medical malpractice (now called health care liability) case to trial in Tennessee. Thus, when such cases do get to trial, it is essential that the lawyers and parties follow the orders of the court concerning evidentiary matters such that the case is determined on what the court has ruled the jury should hear, not influenced by matters that the court has determined that the jury should not hear.

There are some lawyers, through ignorance, negligence or intentional misconduct, that violate court orders on motions in limine. To be sure, such an error can be innocent – in the heat of the battle, mistakes can be made. And sometimes there can be legitimate disputes on the meaning of a ruling, which reinforces the need for all involved – the judge and the lawyers – to have a firm grasp on the ruling before making any comment on the subject matter in the presence of the jury.

I do not know what gave rise to the violations of the court order in Mottershaw v. Ledbetter. 1110959 (Ala. S. Ct. 11/08/13, modified 1/17/14), The opinion tells us the following

January 29, 2014

Claim Against City of Memphis for Dangerous Pothole Rejected

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

There are many hurdles to successfully bringing a premises liability case in Tennessee, and often the most difficult of which is proving that the defendant had notice of the dangerous condition allegedly responsible for causing the plaintiff’s injuries.

In Merrell v. City of Memphis, Tennessee, No. W2013-00948-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2014), the court of appeals affirmed a bench verdict in favor of the defendant in a case where the plaintiff sued the City of Memphis for negligently failing to fix or warn about a pothole in the City’s road that caused the plaintiff’s motorcycle to crash.

Cases against local governmental entities are brought under Tennessee’s Governmental Tort Liability Act (“GTLA”), and they are decided by judges instead of juries. Further, the City, just like in all GTLA claims, was protected from suit under the doctrine of sovereign immunity unless the plaintiff was able to successfully argue that an exception to immunity applied. Here, the plaintiff was required to show, under Tenn. Code Ann. § 29-20-203, that the City’s had actual or constructive notice of the pothole.

January 27, 2014

Essential Elements of a Malicious Prosecution Claim in Tennessee

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

In Tennessee, the essential elements of a malicious prosecution claim are (1) the defendant filed suit or instituted a judicial proceeding without probable cause, (2) the defendant brought the action with malice, and (3) the prior action was finally terminated in the plaintiff’s favor.

If the judgment in the prior action is terminated in the plaintiff’s favor, then the probable cause element is also met so long as the judgment was not procured by fraud.

A malicious prosecution claim may be brought as a result of a civil or criminal matter.

January 8, 2014

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

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

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: