Day on Torts

April 23, 2012

Judgments Arising From Intentional Torts Are Not Dischargeable In Bankruptcy

You cannot try to murder your ex-wife and then avoid a judgment against you for compensatory or punitive damages by filing bankruptcy.

The Court of Appeals for the Seventh Circuit rejected the effort of David Larsen to use the bankruptcy system to avoid his financial obligation to his former wife. Larsen tried to kill Teri Jendusa-Nicolai and, although his effort was unsuccessful, she suffered a miscarriage and the amputation of all of her toes. The toes were amputated secondary to frostbite – the jerk beat her with a baseball bat and left her in a garbage can filed with snow, secreting the can in an unheated storage facility.

A civil suit was filed, resulting in a judgment of $3.4 million for her and $300,000 for her (then) husband and daughters for loss of consortium. Larsen then filed a Chapter 7 proceeding seeking to discharge the judgment debts.

April 23, 2012

Is There a Limit on Damages Recoverable in Tennessee Personal Injury and Wrongful Death Cases?

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

Tennesse law limits damages that may be recovered in personal injury and wrongful death cases. The limits apply only to cases that arise from events that occur on or after October 1, 2011.

Medical expense and lost wages claims are not limited. However, damages for pain, suffering, disfigurement, disability, loss of enjoyment of life and loss of consortium are limited to $750,000 unless one of the following apply to the case:

there injured person was rendered paraplegic or quadraplegic because of a spinal cord injury in the wreck;
the injured person had extensive three degree burns;
the injured person had two hands, two feet or one of each amputed in the wreck; or
in wrongful death cases, the decedent is survived by a minor child and had custody of or visitation rights with the child.

If one of the exceptions apply, the damage limit is increased to $1,000,000.

April 21, 2012

Jury Instruction Social Networking

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

Social networking by jurors can result in a new trial, creating increased expense for the parties.

The American College of Trial Lawyer has issued a brief report on this issue, and has proposed several instructions to prospective and empaneled jurors.

For example, ACTL recommends that this language be included on summonses to prospective jurors:

April 20, 2012

Punitive Damages in Automobile Accidents Involving Reckless Driving in Tennessee

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

Tennessee law permits the recovery of punitive damages when a defendant has engaged in reckless conduct. Because the standard for criminally negligent homicide mirrors the standard for recklessness necessary to recover punitive damages, the Tennessee Court of Criminal Appeals’ affirmation of the guilty verdict against a criminal defendant in a recent case could be pertinent to a punitive damages claim in a personal injury or wrongful death case.

In State of Tennessee v. Christopher Vigil, No. E2011-00259-CCAR3- CD (Tenn. Crim. App. February 9, 2012), the Court summarized the evidence supporting the verdict:

Leading up to the incident, the proof showed that Appellant and the victim had a rather torrid relationship. The victim was staying with a friend because she had been arguing with Appellant. The two were seen arguing on the day of the offense and at least one witness saw Appellant swipe his open hand toward the victim, causing

April 18, 2012

Tennessee Construction Statute of Repose Not Tolled For Minors

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

The Western Section of the Tennessee Court of Appeals has held that the construction statute of repose is not tolled for minors. By five years after a home or building is substantially completed, all bets are off. Even if the roof collapses on toddler in a crib, the contractors, architects, etc. are immune from suit.

Plaintiffs sued for injuries to a minor when a sink shattered. The trial court granted Defendants, the general contractor who constructed the building and the plumbing subcontractor who installed the sink, summary judgment based on the statute of repose for improvements to real

property. A statute of repose grants immunity to its beneficiaries because of the mere passage of time from some event. Practically speaking, it means that a person can lose his or her right to receive compensation for negligent acts or events before he or she is even injured,

April 16, 2012

Will A Special Needs Trust Trump An ERISA Subrogation Interest?

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

The Court of Appeals for the Fifth Circuit has ruled that the assets held in a special needs trust created out of the proceeds of a personal injury settlement are not available to satisfy an ERISA subrogation interest.

The Court held that the injured plaintiff never had possession or control over the money. The Court also determined that the trust and trustee could not be sued because the only asset in the trust was the right to future periodic payments in an annuity held by another.

The case is ACS Recovery Services, Inc. v. Griffin, No. 11-20266 (5th Cir. April 2, 2012). Footnote 4 of the opinion distinguishes a decision from the 8th Circuit involving a special needs trust.

April 13, 2012

Argument of Validity of Caps in Medical Malpractice Cases in Florida

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

Oral arguments were held a couple months ago on the validity of caps on damages under tort reform measures in medical malpractice cases in Florida. The arguments on now available on the Web.

April 12, 2012

Tennessee Senate Rejects Changes to Law That Would Have Essentially Eliminated Punitive Damage Recoveries

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

The Senate Judiciary Committee has just voted to reject a bill that would have allowed corporations and other employers to escape responsibility for punitive damages based on the reckless conduct of their employees.

SB2637 by Republican Senator Brian Kelsey (House version by Republican Rep. Vance Dennis), Tennessee would have held employers responsible for punitive damages only if (a) the reckless act was committed by someone employed in a management capacity; (b) the employer recklessly hired, retained, supervised or trained the reckless employee; or (c) the employer authorized, ratified or approved the reckless act or omission with knowledge or conscious disregard for the loss or injury.

The Bill defined "someone employed in a management capacity" as a management-level employee with the stature and authority to set policy and exercise control, discretion, and independent judgment over a significant scope of the employer’s business and where the alleged act or omission warranting punitive damages by such management-level employee was directly within the scope of such authority.

April 9, 2012

Evaluation of Expert Witnesses in Tennessee and the Sixth Circuit

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

The 6th Circuit Court of Appeals has sent a clear signal on what the federal courts in Tennessee and the other states that comprise the 6th Circuit should look at when reviewing a Daubert challenge to expert testimony.

In Newell Rubbermaid, Inc. v. The Raymond Corporation, No. 10-3912 (6th Cir. April 3, 2012), the plaintiff corporation filed a subrogation against defendant seeking recovery of monies plaintiff paid to plaintiff’s employee who was injured while using a forklift manufactured by defendant.

The Plaintiff’s expert was Benjamin T. Railsback. The Court explained that "Railsback, a forensic engineer with no experience in driving a Raymond forklift and only limited experience in driving forklifts from other manufacturers, opined that the Dockstocker was defectively designed because it did not have a rear guard door to prevent the operator’s feet from accidentally leaving the operator compartment. Raymond moved to exclude Railsback’s testimony."

March 29, 2012

Medical Malpractice Case Filings Still Below Pre-Tort Reform Levels

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

Medical malpractice case filings were up last year but are still below the filings for the year when the first tort reform hit medical malpractice cases.

October 1, 2008 was the date that pre-suit notice and certificates of good faith became required. In the year before the law change, 646 medical malpractice cases were filed in the entire state. Some 140 of those cases were filed in the month before the law changed – ordinarily only about 46 were filed per month.

Predictably, filings were down substantially in the year ending September 30, 2009 – only 264 cases were filed. The next year filings were up to 314, and the year ended September 30, 2011 there were 378 medical malpractice cases filed.