Day on Torts

November 4, 2010

Iqual and Twombly Impact Pleading Standards Under FRCP Rule 8

FDCC Quarterly, a publication of the Federation of Defense and Corporate Counsel, has published an article on the impact of the relatively recent decisions of United States Supreme Court in Iqual and Twombly.

This is how the authors summarize the holdings of the two decisions:

Together, Iqbal and Twombly held that, to comply with the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must allege well-pleaded factual allegations (and not legal conclusions or bare recitations of the elements of a cause of action) that if presumed true ‘plausibly give rise to an entitlement to relief.’ Iqbal made clear this test should apply to all civil complaints. [Footnotes omitted.]

November 4, 2010

Justice Programs Seminar 2011

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

Our Justice Programs seminar series will be held on Nov. 11 and 12 in Johnson City. Former Tennessee Supreme Court Justice Penny White, Court of Criminal Appeals Judge Joe Riley, and I also will present the two-day programs in Memphis (Dec. 9 and 10), Nashville (Nov. 18 ans 19), and Knoxville (Dec. 2 and 3) . Each program provides the fifteen (15) hours required CLE and includes four (4) hours of ethics/professionalism/dual credit on Friday afternoon. You may register for both days (all 15 hours), one and a half days (11 hours), or the Friday afternoon ethics program (4 hours).

Here is what is on the agenda

Tort Law / Comparative Fault – John Day

November 4, 2010

Tennessee Medical Malpractice Case Filings 2010 – Part 1

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

The preliminary numbers are in for 2010 and demonstrate that the statute providing for the giving of notice and filing a certificate of good faith has dramatically decreased the number of medical malpractice filings in Tennessee. The new law came in to effect on October 1, 2008 and was modified effective July 1, 2009.

You may remember that for the 12-month period ending September 30, 2008, 644 medical malpractice lawsuits were filed in Tennessee. A whooping 140 of those were filed in September 2008, some of which were filed as lawyers took action to avoid the burden and risks of filing cases under the new law.

For the year ending September 30, 2009, the first year that the new law was in effect, available data indicates that only 263 medical malpractice lawsuits had been filed. Because there were a larger-than-usual number of filings before the new law came into effect, it is fair to say that filings were lower than one would expect in an ordinary year.

November 2, 2010

Duty of Rental Car Companies to Check Driving Record of Renters

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

Does a rental car company have the duty to check the driving record of potential customers before renting them a car? Does the fact that the records are available electronically have any impact on whether a duty exists?

The California Court of Appeals recently considered these issues and re-affirmed an earlier ruling that (a) a car rental agency is "not negligent for entrusting a car to a person lawfully qualified and apparently fit to rent and drive it” and (b) "an agency has no duty to ask questions to investigate the driving record of the customer, and that the agency may rely on presentation of a valid driver‟s license as sufficient evidence of fitness to drive, absent a legislative declaration to the contrary."

The court went on to conclude that despite changes in technology car rental agencies "have no duty to conduct an electronic search of the driving records of their customers before entrusting a vehicle to them." The court said that it was the responsibility of the legislature and not the courts to impose such a duty.

November 1, 2010

Lawsuits Arising From Participation in Athletic Activities

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

What does tort law tell us about liability for injuries arising during sporting events and, in particular, contact sports? The recent case of Feld v. Borkowski gives us the answer, at least from the standpoint of the Iowa Supreme Court.

Plaintiff and defendant were playing intramural softball . Defendant hit the ball and let go of the bat at the same time. The bat flew through the area, striking and injuring plaintiff (who was playing first base). Plaintiff filed a negligence suit, and defendant sought dismissal of the suit arguing that softball was a contact sport and thus he could only be sued if his conduct was reckless.

The Iowa Supreme Court agreed, saying that

October 31, 2010

Tennessee Medical Malpractice Filings 2010 – Part 1

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

The preliminary numbers are in for 2010 and demonstrate that the statute providing for the giving of notice and filing a certificate of good faith has dramatically decreased the number of medical malpractice filings in Tennessee. The new law came in to effect on October 1, 2008 and was modified effective July 1, 2009.

You may remember that for the 12-month period ending September 30, 2008, 644 medical malpractice lawsuits were filed in Tennessee. A whooping 140 of those were filed in September 2008, some of which were filed as lawyers took action to avoid the burden and risks of filing cases under the new law.

For the year ending September 30, 2009, the first year that the new law was in effect, available data indicates that only 263 medical malpractice lawsuits had been filed. Because there were a larger-than-usual number of filings before the new law came into effect, it is fair to say that filings were lower than one would expect in an ordinary year.

October 31, 2010

Tennessee Medical Malpractice Filings 2010 -Part 3

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

This is Part 3 of my report on medical malpractice case filings in Tennessee. (Click to read Part 1 and Part 2.) Here are the case filings for some of the larger counties in the state for the year ended September 30, 2010:

County

Shelby 88

October 31, 2010

Tennessee Medical Malpractice Case Filings 2010 – Part 4

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

This is Part 4 of my report on medical malpractice filings in Tennessee for 2010. (Here is Part 1, Part 2, and Part 3.) Today, I examine the county where I live, Williamson County.

Williamson County, Tennessee is on the southern border of Davidson County, which is the home of our state capital, Nashville. In 2010 Williamson County had 180,891 residents. Almost 90 percent of those residents were white and about 5% of them were African-American. The average household income was almost $122,000 per year and the per capita annual income was about $42,000. Over 56% of the people in the county have attained at least one college degree.

Williamson Medical Center is a 185-bed hospital in Franklin. It provides comprehensive inpatient and outpatient care. It has an active emergency room and has physicians on-staff in some 36 specialties.

October 28, 2010

Do Auto Safety Standards Save Lives?

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

On Tuesday the 26th I posted about a NHTSA report on traffic safety. I saved for today a reference to what the organization believes is a major cause of the decrease in deaths and injuries in motor vehicle cases: safety regulations and programs imposed by state and federal governments.

Here is a summary of the findings on this point:

The long-term declining trend observed in fatalities since reaching a high in the early 1970s has occurred while significant vehicle and occupant safety regulations and programs were being enacted by NHTSA and the States. NHTSA-administered behavioral and vehicle safety programs, both in the crashworthiness and crash avoidance areas, and through the issuing of Federal Motor Vehicle Safety Standards has contributed tremendously to the long-term downward trend seen in motor vehicle traffic crash fatalities. In 2008, an estimated 244 lives were saved by the use of child restraints, 13,250 lives of people 5 and older were saved by seat belts, 2,546 lives of people 13 and older were saved by air bags, 1,829 lives were saved by the use of motorcycle helmets, and 714 lives were saved by minimum-drinking-age laws (NHTSA, 2009). Significant life-saving vehicle technologies like electronic stability control (ESC) have begun to penetrate the vehicle fleet. NHTSA estimates ESC would save 5,300 to 9,600 lives and prevent 156,000 to 238,000 injuries in all types of crashes annually once all light vehicles on the road are equipped with ESC (NHTSA, 2007).

October 26, 2010

Vehicle Crashes, Death and Injuries Continue to Decline

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

The National Highway Traffic and Safety Administration has issued a report analyzing motor vehicle crash data for 2008. The good news: the number of vehicle crashes, deaths and injuries continue to decline.

From the report:

The number of vehicle miles traveled (VMT) is the primary exposure measure used when analyzing the occurrence of fatal motor vehicle crashes. VMT is collected by the Federal Highway Administration and in 2008 FHWA reported a decrease in VMT of almost 2 percent from that reported in 2007. This is the first reported decline in VMT since 1980. The number of motor vehicle crash fatalities per 100 million VMT was 1.25 in 2008, which is a decline of approximately 8 percent from the 2007 rate and is the lowest fatality rate per 100 million VMT ever recorded. The estimated number of people injured in crashes continued a long-term decline, dropping by 5.8 percent in 2008.