Day on Torts

May 19, 2009

Counting Blessings

Last night at about 10:45 EDT I had to occasion to start counting blessings. My advancing age means I do this more and more, and it also causes me to realize that I should have counted those blessings more frequently in years past . I will tell you what gave rise to the time for reflection in a moment, but permit to re-count a few of the blessings of yesterday:

I woke up at 5:30 EDT in the beautiful Mayflower Hotel in our Nation’s Capitol, where I am attending the 86th Annual Meeting of the American Law Institute.
My health remains good enough to permit me a good early morning workout.
I heard a wonderful speech by Judge Pierre N. Leval, Judge of he US Court of Appeals, Second Circuit, about ALI and its role in the development of the law.
I heard a moving speech by Nicholas deB. Katzenbach, Attorney General under President Johnson, who forcefully explained his view of the role of lawyers to their clients and how the lawyers who advised President Bush on torture did not fulfill that role. I thought about how much my friend Howard Vogel, an ALI member from Knoxville, would have enjoyed the presentation – one he missed only because he has not one but two grandchildren arriving any day now.
I watched the discussion of Tentative Draft No. 6 of the Restatement of the Law Third – Torts: Liability for Physical and Emotional Harm. Yesterday’s discussion involved duty of land possessors. This is the work of Bill Powers (President, University of Texas), Mike Green (Wake Forest School of Law) and the late Gary Schwartz (UCLA). Bill and Mike has worked on the Restatement Third for fifteen years and their work is almost complete. To understand the history-making nature of their work, the Reporter for the Restatement (Second) of Torts was a a guy named William Prosser.
I had lunch with Bob Peck, the lawyer who argued the Williams case before the SCOTUS this year – and won. Bill Wagner, lawyer extraordinaire from Tampa, was there too (and picked up the tab) as was Vincent Johnson (law professor – St. Mary’s).
I listened to the interesting discussion of Tentative Draft No. 2 of the Restatement of the Law Third on Employment Law.
I received a telephone call from Angela at the office of my friend Congressman Bruce Bailey (D-Iowa) informing me that (a) no, the Congressman could not join me for dinner Monday night as I had requested but (b) I could join him at the Bruce Springsteen concert instead.
I stood on the steps of the SCOTUS Building, looked at the Capitol, and thought about how fortunate I was to be a lawyer and live in such a wonderful country. Call me a sap, but there is something about DC that is still very moving to me, despite many visits over many years.
I saw Bruce with Bruce from Suite 368 at Verizon Center – a wonderful show from a man whose music causes one to reflect on his blessings.
I got the chance to talk about some public policy issues with Bruce Braley, and it was refreshing to see a man in the position to make change be so passionate about doing so.
My 17-year old daughter thought the Bruce-invite was neat enough to invite me to be her friend on Facebook, a privilege that I had been previously denied. That act got her a big smile, and a Bruce t-shirt.
My 13- year old son thought it was "cool" that his old man was seeing Bruce. That got him a t-shirt.
Both of those young adults are healthy, as are my wonderful wife Joy and my daughter Kate. Are there greater blessings?

Yes, the music of the Boss causes one to count blessings, and May 18, 2009 goes down as a very blessed day, indeed.

May 18, 2009

Federal Rule of Evidence 502

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

On September 28, 2008 FRE 502 become applicable in federal court. The rule provides that under certain circumstances the disclosure of attorney-client material and work product material does not constitute a waiver. Read the full rule here.

Federal Evidence Review is a great resource for infromation about this rule. Click here for all you need to know abou this rule.

May 15, 2009

Tort Cases From the Past – Palsgraf

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

Last Monday I referred to the Palsgraf opinion and took the opportunity to re-read it. I suggest you do the same. The dispute between Justice Cardozo and Justice Andrews lives on. Read this and tell me who could have written the exact same words almost 100 years later:

The proposition is this. Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining but this is not a duty to a particular individual because as to him harm might be expected.

The first couple sentences sound exactly like Chief Justice Holder’s position on the law of premises liability in Tennessee. To be sure, she would likely draw the causation circle a little tighter than Justice Anderson, but she views the concept of duty much differently than Justices Clark, Wade and Koch (who are relying on precedent). We don’t know where Justice Lee is on the issue yet.

May 14, 2009

Sanctions for Spoliation in Federal Court

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

The United States Court of Appeals for the Sixth Circuit recently ruled that federal law applies to determination what sanctions should be available for relief of spoiled evidence in federal question cases. The en banc decision reversed precedent and brought the circuit in line with other appellate courts.

An excerpt: "Because failures to produce relevant evidence fall ‘along a continuum of fault – ranging from innocence through the degrees of negligence to intentionality,’ the severity of a sanction may, depending on the circumstances of the case, correspond to the party’s fault. Thus, a district court could impose many different kinds of sanctions for spoliated evidence, including dismissing a case, granting summary judgment, or instructing a jury that it may infer a fact based on lost or destroyed evidence." [Citations omitted.]

Read Adkins v. Wolever, No. 07-1421 (6th Cir. Feb. 4, 2009) here.

May 13, 2009

SVMIC Supplies Us With Surgical Checklist

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

SVMIC, the medical malpractice insurer owned by doctors for doctors, has published information about a seminar it offered to its insureds addressing the issue of surgical checklists.

This is how SVMIC describes the seminar it called "“Applied Aviation Safety Practices for Surgeons and Anesthesiologists:”

The basic premise of these seminars was that human errors, often supported by poorly designed systems, are the primary cause of preventable patient deaths and injuries. These human errors share similarities with, and will respond to, many of the same error reduction methods used in high reliability industries such as aviation and nuclear power. One of the hallmarks of high reliability industries is the conscientious and consistent use of checklists.

May 12, 2009

Download a Free Copy of Trial Law Report – Tennessee Tort Law Edition

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

Every month I let you know that a new edition of our newsletter – Trial Law Report – Tennessee Tort Law Edition – is in the mail to our subscribers. This month, we are making a free copy available for downloading by each of you, the loyal readers of this blog. (The newsletter is ordinarily printed and mailed on the 1st of each month.)

Trial Law Report summaries every tort, civil procedure, evidence and trial law opinion released by the Tennessee appellate courts every month. We also provide you will a complete listing of all cases pending before the Tennessee Supreme Court and the United States Supreme Court on these subjects. Finally, I write a monthly column on some aspect of the law of trial each month.

The newsletter isn’t cheap – it is $349 plus tax for twelve monthly issues. However, our goal was to create one resource where tort lawyers could read what they need to read about the cases they need to be aware of in the area of torts, civil procedure, evidence and trial. We believe that by delivering a accurate, readable summary of those cases to your desk once a month will save you hundreds of dollars worth of time each month,even if you attempt to keep up with all of them on your own. And if you don’t attempt to keep up with them on your own, we will bring decisions to our attention you would have otherwise missed, making (and saving) you money every month.

May 11, 2009

That Crazy Causation Element

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

"Yeah, the facts demonstrate a Shoney’s buffet of negligence, but there is no proof that any of that negligence caused any harm. So what?"

This case out of Illinois is a classic example. Russell was found severely injured at the bottom of some steps. When found he said "I fell over the railing." He died several weeks later. There were no witnesses to the fall.

The stairs were dripping in negligence. Even negligence per se. But the case was dismissed, and the dismissal affirmed on appeal.

May 7, 2009

Tennessee Public Acts

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

Westlaw charges you for looking at the language of a public act after it has been codified.

The Tennessee Secretary of State has the language of the public act for free at this site. The site includes public acts back to 1997.

May 6, 2009

TBA Journal – Recreation Limits Litigation

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

I write a quarterly column on tort law for the Tennessee Bar Journal. The column for the May edition of the publication discusses Tennessee’s recreational use statute, Tenn. Code Ann. §70-7-101 et seq,

An excerpt:

The Tennessee Supreme Court has interpreted the recreational use statute as one that gives rise to a defense to liability that requires a three-pronged analysis to determine the applicability of the statute: “(1) is the defendant a ‘landowner’ under the statute; (2) is the activity alleged a recreational activity as defined by the statute; and if so, (3) are any of the statutory exceptions or limitations to the immunity defense applicable?” [ Footnote omitted.]

May 5, 2009

Slip and Fall Claims

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

CNA has issued a white paper titled "Slip and Fall Control Techniques for Commercial Real Estate Owners." The report indicates that more than one million people are injured each year in slip or trip and fall incidents and 16,000 people die from falls.

CNA adds this:

With the aging baby boomer generation, the size and scope of this issue is expected to grow significantly. The National Floor Safety Institute (NFSI) estimates that between 2005 and 2020, the number of seniors in the U.S. will increase from 35 million to 77 million. Statistically, seniors are far more likely to experience
a slip-and-fall accident. For those that are injured, the cost of treatment and recovery time is significantly greater than the average for non-seniors. According to the American Academy of Orthopedic Surgeons, these types of injuries are also the leading cause of hospital admission for older adults. [Footnotes omitted.]