Day on Torts

November 19, 2009

The Boss in Nashville

There are two reasons there is not a substantive post today. First, I am speaking for three hours at our Justice Programs seminar today and am quite busy.

Second, my wife Joy and I went to see Bruce Springsteen in concert last night in Nashville and I did not get to bed until 12:30 this morning. The Boss gave a great 3-hour show, and included one of my favorite songs, Badlands;

Lights out tonight, trouble in the heartland.
Got a head-on collision, smashin in my guts man.
Im caught in a crossfire that I don’t understand.
But there’s one thing I know for sure girl:
I don’t give a damn for the same old played out scenes
I don’t give a damn for just the in-betweens.
Honey I want the heart, I want the soul, I want control right now.
You better listen to me baby:
Talk about a dream; try to make it real.
You wake up in the night with a fear so real.
You spend your life waiting for a moment that just don’t come.
Well don’t waste your time waiting

November 18, 2009

HealthGrades Sixth Annual Patient Safety in American Hospitals Study

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

HeathGrades studies Medicare patient care in our nation’s hospitals based on 15 indicators of patient safety.

Here are some highlights from the 2009 report representing data from 2005 -2007:

· There were 913,215 total patient safety events among 864,765 Medicare beneficiarieswhich represents 2.3 percent of the nearly 38 million Medicare hospitalizations.

November 17, 2009

Rule of the Week – T.R.E. Rule 104(a)

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

Rule 104 of the Tennessee Rules of Evidence permits the trial judge significant leeway in what may be considered in determining what evidence can be admitted at trial. It provides as follows:

Rule 104. Preliminary questions. —(a) Questions of Admissibility Generally. —Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

Here is subdivision (b):

November 17, 2009

Motorcoach Safety Action Plan

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

The United States Department of Transportation has adopted the Motorcoach Safety Action Plan following an analysis of safety data. DOT has identified seven priority action items that will have the greatest impact on reducing motorcoach crashes, fatalities and injuries. The items include the following:

Rulemaking concerning electronic on-board recording devices to monitor drivers’ duty hours and manage fatigue.
Rulemaking to prohibit cell phones for drivers.
Rulemaking to require seatbelts.
Development of roof crush performance requirements.
Study stability control systems for motorcoaches.
Enhance oversight of carriers.
Establish minimum knowledge requirements for companies who seek to transport passengers.

Read the entire report here.

November 16, 2009

Party Planning For Tort Lawyers

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

Here are the first few paragraphs of an article that I wrote for the November 2009 edition of the Tennessee Bar Journal titled "Party Planning for Tort Lawyers." Rest the rest of the article (and the footnotes) here.

Litigation in a world of comparative fault and several liability involves party planning. Planning a party is hard work. One essential component of the party planning process is determining who to invite, and party planning by committee presents a whole new set of challenges. Everyone agrees that some people must be at the party. Everyone agrees that certain people should not be there. And, while everyone agrees that the party should occur on the selected date, there is often a disagreement about whether certain people should be extended a party invitation.

In tort litigation, the original host of the party is the plaintiff, and the plaintiff frequently has a good idea of who should be invited to the party. Competent plaintiff’s lawyers also want the party to occur as soon as reasonably possible.

November 15, 2009

Justice Programs Seminar in Nashville on November 19 and 20

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

Former Justice Penny White, former Judge Joe Riley and I are presenting our annual seminar program for civil trial lawyers in Nashville this week. Learn more and register here.

November 13, 2009

Inflatable Seat Belts?

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

Ford Motor Company has announced that is bringing to market the world’s first automotive inflatable seat belts, combining attributes of traditional seat belts and air bags to provide an added level of crash safety protection for rear seat occupants.

“Ford’s rear inflatable seat belt technology will enhance safety for rear-seat passengers of all ages, especially for young children who are more vulnerable in crashes,” said Sue Cischke, Ford group vice president of Sustainability, Environmental and Safety Engineering. “This is another unique family technology that builds on our safety leadership, including the most top safety ratings of any automaker.”

Ford will introduce inflatable rear seat belts on the next-generation Ford Explorer, which goes into production next year for the North American market. Over time, Ford plans to offer the technology in vehicles globally.

November 11, 2009

Motorcycle Deaths and Injuries

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

811208 The National Highway Traffic Safety Administration (NHTSA) recently released a report titled "Motorcycle Helmet Use and Head and Facial Injuries." The Report has a lot of data on motorcycle crashes and the injuries the result, comparing the injuries received by those wearing helmets and those that do not.

Here are a few highlights from the report:

The combined data set contains information on 104,472 motorcyclists involved in crashes in these 18 States during the years 2003, 2004, and 2005.
In the data set, 57 percent of motorcyclists were helmeted at the time of the crashes and 43 percent were non-helmeted. For both groups, about 40 percent of motorcyclists were treated at hospitals or died following the crashes. However, 6.6 percent of unhelmeted motorcyclists suffered a moderate to severe head or facial injury compared to 5.1 percent of helmeted motorcyclists.
Fifteen percent of hospital-treated helmeted motorcyclists suffered traumatic brain injury (TBI) compared to 21 percent of hospital-treated unhelmeted motorcyclists. TBI severity varied by helmet use. Almost 9 percent of unhelmeted and 7 percent of helmeted hospital-treated motorcyclists received minor to moderate TBI. More than 7 percent of unhelmeted and 4.7 percent of hospital-treated helmeted motorcyclists sustained severe TBI.
As of 2007, fatalities had increased for the 10th year in a row, an increase of 144 percent compared to 1997. While there has also been an increase in motorcycle registrations during this period, the rate of increase in fatalities has been greater than that of registrations.
This increase in deaths has been especially marked among riders 40 and older, who now constitute approximately half of all deaths. In 1997, this older group accounted for 33 percent of rider deaths, but had grown to 49 percent by 2007. Although fatalities increased in all age groups, the largest increase has been in the group of riders over the

November 11, 2009

Tort Cases Pending Before the Tennessee Supreme Court

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

F. Chris Cawood v. Linda Booth, et al., E2007-02537-SC-R11-CV, (Tenn. Ct. App. Nov. 25, 2008) has a set of facts you don’t run into every day or, at least, I hope you don’t run into everyday. Here is the description of the case from the opinion of the Tennessee Court of Appeals.

The plaintiff, F. Chris Cawood, is an attorney. He represented Tammy Clark (“the Client”) in a divorce case. During the post-judgment phase of that representation, the plaintiff and the Client engaged in a sexual relationship. On occasion, while in the plaintiff’s office, the plaintiff would masturbate in the presence of the Client, following which he would give her a credit on her bill. After she complained to local authorities, the Roane County Sheriff’s Department equipped the Client with concealed audio and video equipment. Thereafter, unbeknownst to the plaintiff, she videotaped him while he was masturbating. During this event, the Client hit him on the buttocks and pinched his nipples. Following this event, the videotape was placed under the control of Linda Booth of the Sheriff’s Department. Booth gave the video to another investigator, Dennis Worley, who happens to be the Client’s uncle. Worley was not involved in the investigation but wanted to see the videotape to ascertain if his niece had done anything illegal. Worley viewed the videotape in an office shared by officers Randy Scarbrough and Jon French. During the viewing, the door to the office was open. The video was viewed not only by Worley, but also by Scarbrough and French, a bail bondsman who was passing by the office, and others. The plaintiff filed suit against Booth, Worley, Scarbrough and French alleging (1) a violation of the Wiretapping and Electronic Surveillance Act of 1994, (2) invasion of privacy by public disclosure of private facts, and (3) outrageous conduct. The trial court granted all defendants summary judgment as to all claims.Plaintiff appeals. We vacate the grant of summary judgment to Booth and Worley on the plaintiff’s outrageous conduct claim. In all other respects, the trial court’s judgment is affirmed.

Hmmm. The appellee’s brief will be filed in December, 2009. Expect an opinion in the Summer of 2010.

November 10, 2009

Seat Belt Use Continues to Increase

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

The use of seat belts continues to increase in the United States.

Seat belt use in 2009 stood at 84 percent, a gain from 83 percent use in 2008. This result is from the National Occupant Protection Use Survey (NOPUS) which is the only survey that provides nationwide probability-based observed data on seat belt use in the United States.

Vehicle occupants in Tennessee and other southern states continue to use seat belts at a level less than the national average (82%). Those in pickup trucks have the lowest rate of use (74%).