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Where a child was injured at school but her parents had no evidence that the school had breached a duty of care or that an action by a school employee caused the injury, summary judgment was affirmed.

In Webster v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. M2018-00106-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2019), plaintiffs were the parents of a six-year-old girl with autism. While at kindergarten, the girl injured her arm, and plaintiffs brought a negligence suit under the GTLA. Plaintiffs amended their complaint more than once, and each version alleged that the injury was caused by a lack of appropriate care in the classroom. More than two years after filing suit and “after all discovery had been completed,” plaintiffs filed a motion to amend their complaint again, this time seeking to add “allegations that [the child’s] injuries occurred on the playground and that Metro was negligent in allowing her on the playground and in failing to provide appropriate supervision.” The trial court denied the motion to amend and then granted defendant’s motion for summary judgment, finding that plaintiffs could not “demonstrate that an employee of the Metropolitan Government breached a duty of care owed to plaintiffs,” and that “plaintiffs failed to prove cause in fact or proximate cause.” The Court of Appeals affirmed.

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Two previous posts discussed Tennessee tort and health care case filings and the damages awarded in Tennessee personal injury and medical malpractice cases for the fiscal year ending June 30, 2018.   This post will explore trial and damages data from the largest counties in Tennessee.

  1. Shelby County saw 66 tort trials (33 jury, 33 nonjury) and 5 (3 jury, 2 nonjury) health care liability trials.   Damages were awarded in 36 tort trials and none of the HCLA trials.  The total damages awarded in tort trials was $7,228,488.   There were 8 verdicts in tort trials over $100,000, one of which was over $1,000,000.
  2. Davidson County conducted 52 tort trials (21 jury, 31 nonjury) and 4 (4 jury, 0 nonjury) health care liability trials.   Damages were awarded in 36 tort trials and in 2 of the HCLA trials.  The total damages awarded in tort trials was $2,509,836.   There were 5 verdicts in tort trials over $100,000, one of which was over $1,000,000.  The total damages awarded in HCLA trials was $968,578.
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Yesterday we discussed the number of tort filings and dispositions in tort and health care liability cases in Tennessee and documented the number of trials in those cases.  Today we look at damage awards.

In the fiscal year ending June 20, 2018, damages were awarded to the plaintiff in 98 of the 337 tort cases that went to trial.  (Unfortunately, the data does not tell us whether the damages were awarded in the jury or non-jury trials.)

In fiscal 2016-17, damages were awarded to the plaintiff in 120 of 367 trials.  In fiscal 2008-09, damages were awarded to the plaintiff in 281 of the 608 trials.

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Despite what one would expect given Tennessee’s increasing population, Tennessee saw no real increase in filings of tort and health care liability cases in the fiscal year ending June 30, 2018.

There were a total of 11,081 tort cases filed in Tennessee in that year, essentially the same (an increase of 9 cases) from the  11,072 cases filed a year earlier.  Health care liability filings were actually down, from  432 to 416.

A total of 10,781 tort cases were disposed of last year, very close to the 10,831 cases that were disposed of during the 2016-17 fiscal year.   HCLA dispositions were up slightly, from 366 in fiscal 2016-17  to 382 last year.

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The Court of Appeals recently held that “expert testimony is required to establish a water distributor’s applicable duty of care and breach of the same[.]”

In Tolliver v. Tellico Village Property Owners Assoc., Inc., No. E2018-00090-COA-R3-CV (Tenn. Ct. App. Jan. 7, 2019), plaintiffs were property owners whose house was damaged when a water pipeline broke. At the time of the damage a renter was living in the home, and the renter initiated this action, with plaintiff property owners joining later and asserting claims for negligence and breach of contract. Plaintiffs alleged that defendant homeowners association was negligent for “failing to properly maintain the water pipeline.” The renter consented to a judgment for defendants on his claims, leaving only the property owners as plaintiffs.

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Where a plaintiff in an Tennessee HCLA (medical malpractice) case “failed to obtain a competent expert witness to testify on the applicable standard of care,” summary judgment as to all of her claims was affirmed.

In Akers v. Heritage Medical Associates, P.C., No. M2017-02470-COA-R3-CV (Tenn. Ct. App. Jan. 4, 2019), plaintiff was treated by a physician assistant at defendant medical center and was given a punch biopsy on her wrist. Two days later, plaintiff went to the emergency room with complications in the same area, which were diagnosed as cellulitis and staph infection.

Plaintiff subsequently filed this complaint pro se against the treating physician assistant and the medical practice, alleging that the practitioner “was not qualified to perform the punch biopsy and did not wash her hands, wear gloves, or use sterile medical equipment when performing the procedure,” and that the complications she experienced resulted from this negligence. In response to interrogatories asking plaintiff to disclose her expert witness, she identified the emergency room doctor she had seen, but failed to give additional information including his publications, other cases in which he had testified, and the compensation to be paid. Defense counsel made several attempts to get plaintiff to supplement her responses, which eventually led to plaintiff disclosing a second doctor, but providing the same very basic information about him. For both of these doctors, plaintiff stated that they would testify that her injuries “could not likely have been the result of any factors other than negligence on the part of…Defendants,” but she did not mention standard of care testimony in the description of either named expert.

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When a plaintiff files a motion to set aside a final order granting summary judgment, he must “demonstrate that [he] had a meritorious defense” in such motion.

In Berge v. Warlick, No. M2018-00767-COA-R3-CV (Tenn. Ct. App. Jan. 3, 2019), plaintiffs filed a legal malpractice claim against defendant. Defendant filed a motion for summary judgment, and he sent a copy of the motion to plaintiffs’ attorney on September 7, along with a notice that it was scheduled for hearing on October 20, 2017. Plaintiffs never responded to the motion, and on the day a response was due, defendant sent a second copy of the motion to plaintiffs’ attorney via U.S. mail and email. Neither plaintiffs nor their attorney showed up for the hearing, and they did not respond to a proposed order granting summary judgment sent by defendant.

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When an alleged tortfeasor in a car accident case died before suit was brought, and plaintiffs failed to have an administrator properly named before the statute of limitations on their claim expired, dismissal of the case as a whole was affirmed, including dismissal in favor of plaintiffs’ uninsured motorist insurance carrier.

In Owens v. Muenzel, No. E2018-00199-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2018), plaintiffs were involved in a car accident with another driver on May 11, 2015, and the other driver died on November 14, 2015. Plaintiffs were not aware of his death and filed a personal injury suit against him on March 30, 2016 in circuit court. The summons to the driver was returned with a notation stating that he was deceased. On April 12, 2016, plaintiffs served their uninsured motorist (UM) carrier in the action, who answered by asserting that plaintiffs had not complied with the conditions of their insurance policy.

The deceased driver did not have a personal representative (and no estate was ever opened for him), so plaintiffs petitioned the trial court to appoint an administrator ad litem pursuant to Tenn. Code Ann. § 30-1-109, which the court did. Later, in July 2017, the UM carrier moved for summary judgment on the basis that “(1) it could not be held liable as [plaintiffs’] [UM] carrier because [plaintiffs] failed to properly and timely bring an action against and serve with process either Deceased’s personal representative or properly appointed administrator ad litem prior to the running of the applicable statute of limitations and that (2) the order entered by the trial court appointing [an] administrator ad litem was void due to the circuit court lacking subject matter jurisdiction.” The circuit court ultimately agreed with both of these arguments, granting summary judgment to defendants, and the Court of Appeals affirmed.

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When a plaintiff files a motion to set aside a final order granting summary judgment, he must “demonstrate that [he] had a meritorious defense” in such motion.

In Berge v. Warlick, No. M2018-00767-COA-R3-CV (Tenn. Ct. App. Jan. 3, 2019), plaintiffs filed a legal malpractice claim against defendant. Defendant filed a motion for summary judgment, and he sent a copy of the motion to plaintiffs’ attorney on September 7, along with a notice that it was scheduled for hearing on October 20, 2017. Plaintiffs never responded to the motion, and on the day a response was due, defendant sent a second copy of the motion to plaintiffs’ attorney via U.S. mail and email. Neither plaintiffs nor their attorney showed up for the hearing, and they did not respond to a proposed order granting summary judgment sent by defendant.

Twenty-eight days after the order was entered, plaintiffs filed a “Motion to Set Aside” pursuant to Tennessee Rule of Civil Procedure 59.04. Plaintiffs asserted that they were entitled to relief due to the excusable neglect of plaintiffs’ counsel, who stated that “he misplaced the motion and forgot to mark the hearing on his calendar.” The trial court denied the motion to set aside, and the Court of Appeals affirmed.

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Where a medical transportation company had a patient sign an exculpatory agreement (commonly called “waiver forms”), the Supreme Court held that the agreement was not enforceable because of the “unequal bargaining power of the parties, the overly broad and unclear language of the agreement, and the important public interest implicated by the agreement.”

In Copeland v. HealthSouth/Methodist Rehabilitation Hospital, LP, No. W2016-02499-SC-R11-CV (Dec. 20, 2018), plaintiff was a patient at an in-patient rehabilitation hospital after a knee replacement, and the hospital arranged transportation for plaintiff to get to his follow up doctor’s appointment through defendant medical transportation company. When defendant’s driver arrived, he pushed plaintiff in a wheelchair from his room to the van, and plaintiff entered the van using a walker. Once in the van, plaintiff was presented with a two-sided form, with one side containing a “run report” and the other side containing a “Wheelchair Van Transportation Agreement.” The agreement “consisted of nine single-spaced paragraphs, including three paragraphs of exculpatory language” which purported to release defendant “from any and all claims arising from or in any way associated with any transportation services provided by [defendant].” Once plaintiff signed the form, the driver took him to his doctor’s appointment. While entering the van after the appointment, plaintiff “lost his footing on the running board, fell, and was injured.”

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