Day on Torts

June 28, 2022

Tennessee Supreme Court Releases Opinion on Attorney Fee Awards After Motion to Dismiss

Yesterday the Tennessee Supreme Court remanded a Davidson County Chancery Court case to the trial court to determine the amount of fees that should be awarded after a successful motion to dismiss for failure to state a claim upon which relief may be granted. The statute at issue is Tenn. Code Ann. § 20-12-119(c)

In Donovan v. Hastings, Plaintiff persuaded the trial court to dismiss the defendant’s counterclaim on a Rule 12.02(6) motion, but the trial judge awarded fees incurred only for time spent after the defendant filed an amended counterclaim, and not considering time invested in researching the issues after the original counterclaim was filed. The Court of Appeals affirmed the trial judge in a 2-1 decision. The Supreme Court reversed, interpreting the statute in such a way that fees incurred in gaining the dismissal (up to the statutory cap) were recoverable. The amount of the fees to be awarded on remand will be based on the factors set forth in Tenn. Sup. Ct. R. 8, RPC 1.5(a).

There are fourteen civil and and eleven cases currently pending before the Tennessee Supreme Court. You can find the current status of each of those cases by consulting this free resource, Cases Pending Before the Tennessee Supreme Court, on BirdDog Law.

June 21, 2022

Lease interest was not sufficient to establish ownership rights for conversion claim.

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

Where plaintiff’s complaint asserting a claim for conversion alleged that she was the lessee of a vehicle, she failed to “establish the required element that [defendant’s] retaking of the automobile was in ‘defiance of the true owner’s rights to the chattel,’” and dismissal was affirmed. (internal citation omitted).

In Meade v. Paducah Nissan, LLC, No. M2021-00563-COA-R3-CV, 2022 WL 2069160 (Tenn. Ct. App. June 9, 2022), plaintiff and defendant husband were in the process of getting divorced. Defendant husband was the managing agent for defendant car lot, and the complaint alleged that plaintiff and defendant had entered into an oral agreement at the beginning of their relationship that plaintiff would lease one of defendant’s demonstrator vehicles, and said lease would be renewed each year. During the divorce proceedings, defendant allegedly asked plaintiff to sign a written agreement to continue the lease, which plaintiff refused to sign because it was “onerous, high risk, and legally ineffective.” Defendant subsequently “repossessed” the vehicle, leaving plaintiff to drive a much smaller vehicle.

June 20, 2022

Dismissal reversed on claims against church defendants based on alleged cover-up of sexual abuse of minors.

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

Where plaintiffs alleged that “church entities were negligent regarding the sexual abuse of minors” by a clergyman, and the allegations included claims of fraudulent concealment through an investigation that was actually a “whitewash,” dismissal based on the statute of limitations was reversed. Further, dismissal of plaintiffs’ claim for negligent infliction of emotional distress based on the entities disclosing plaintiffs’ names to the media was also reversed, as the Court concluded that defendants did have a duty to plaintiffs and the act of releasing plaintiffs’ names was sufficiently outrageous to sustain the tort claim.

In Doe v. Woodland Presbyterian, No. W2021-00353-COA-R3-CV, 2022 WL 1837455 (Tenn. Ct. App. June 3, 2022), the three plaintiffs were former members or attendees of Woodland Presbyterian Church, and all three alleged that former paster Stanford had sexually assaulted them in the 1990s when they were minors. Plaintiffs filed this suit in May 2020 against Stanford and several church entities, asserting claims for negligence and negligent infliction of emotional distress. (The claims against Stanford were not at issue on appeal). Plaintiffs asserted, among other things, that church leaders knew Stanford was having young boys spend the night at his home, that defendants “failed to have policies in place that would prevent Pastor Stanford from being alone with minors on church-owned property,” and that defendants failed to have proper policies and training. Further, plaintiffs alleged that when the current pastor was contacted about the abuse allegations in June 2019, he stated that he believed the allegations because he had heard similar stories, and that the situation had been “fully investigated.” Plaintiffs asserted that they later learned that this alleged investigation was a ”whitewash” and attempt to cover up the abuse.

Defendants filed motions to dismiss, which the trial court granted, finding that the claims were barred by the statute of limitations. The trial court noted that plaintiffs were minors when the abuse occurred, and that they “would have had at least a year from the time that they turned 18 to…pursue their claims,” but that such time period had long since passed. The trial court ruled that because plaintiffs knew what happened when they were minors, reported it then, and “knew what investigation was or was not done then,” the statute of limitations began to run when they turned 18. In addition, as to two defendants, the trial court found that it lacked personal jurisdiction over them. On appeal, the ruling regarding personal jurisdiction was affirmed, but dismissal based on the statute of limitations was reversed.

June 17, 2022

New Data Being Added To BirdDog Law – Tort Trials and Damages, By County

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

Readers know that we have launched BirdDog Law, a website for Tennessee lawyers and paralegals that (a) hosts three of my books and makes them available by subscription on a monthly or annual basis; and (b) provides a large number of free resources to help lawyers more efficiently serve their clients.

BirdDog recently launched a new free product – 95 databases containing data about the court systems of each of Tennessee’s 95 counties. Each database includes information about court clerks, judges, filing fees, local rules, local forms, demographic information, the county’s history, and more. The databases also provide you access to information about the status of e-filing and on-line records in each county.

Click to see the Davidson County database.

June 15, 2022

State responsible for allegedly dangerous condition on state-owned highway despite contracting maintenance out to city.

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

Although the State had contracted with a municipality for the maintenance of a state-owned highway, the State still bore “the ultimate responsibility for inspecting and maintaining [the highway],” and “the contract did not absolve the State of potential liability for failing to do so.” Denial of the State’s motion for summary judgment in this GTLA case was thus affirmed.

In Polhamus v. State, No. E2021-012553-COA-R9-CV, 2022 WL 1788380 (Tenn. Ct. App. June 2, 2022), plaintiff was injured when he crashed his motorcycle after hitting a pothole on a state-owned highway. Although the State owned the highway, it had contracted with the City of Kingsport to maintain the highways.

June 14, 2022

The Tennessee Missing Witness Rule

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

What you need to know about Tennessee’s “Missing Witness Rule:”

Tennessee’s law of evidence recognizes the common law rule that a party “may comment upon the failure . . . to call an available and material witness whose testimony would ordinarily be expected to favor” the opposing party. State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984). The missing witness rule may apply when the evidence shows that a witness who was not called to testify knew about material facts, had a relationship with the party “that would naturally incline the witness to favor the party,” and the witness was available to the process of the court. Id. (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). In civil trials, this rule applies when the missing witness is also a party—with knowledge of material facts, naturally favorable testimony, and availability to judicial process. See Runnells v. Rogers, 596 S.W.2d 87, 90–91 (Tenn. 1980); W. Union Tel. Co. v. Lamb, 203 S.W. 752, 753 (Tenn. 1918).

The logic of this common law principle stems from the commonsense inference that “[a] party’s intentional efforts to keep evidence from the fact-finder” is reasonably “interpreted as an implied admission of weakness in that party’s case.” Robert H. Stier, Jr., Revisiting the Missing Witness Inference—Quieting the Loud Voice from the Empty Chair, 44 Md. L. Rev. 137, 140 (1985). This “inference, which Wigmore calls ‘one of the simplest in human experience,’” id. (quoting 2 John Wigmore, Evidence in Trials at Common Law § 278, at 133 (J. Chadbourne rev. ed. 1979)), is well-grounded in Tennessee law. Yet we have applied it with due caution for the “several dangers inherent” in its operation, such as adding false weight or significance to testimony that a court has not heard. See Francis, 669 S.W.2d at 89. Thus, we strictly construe the missing witness rule and its elements. Id.

June 13, 2022

Defamation case dismissed based on absolute litigation privilege.

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

Where defendant’s allegedly defamatory statements accusing plaintiffs of bigamy were made within the context of a declaratory judgment action, the absolute litigation privilege applied and dismissal of the defamation case was affirmed.

In Vanwinkle v. Thompson, No. M2020-01291-COA-R3-CV, 2022 WL 1788274 (Tenn. Ct. App. June 2, 2022), defendant had previously been married to one of the plaintiffs, and a final decree of divorce had been issued in their divorce case. Approximately ten months after the final decree, plaintiffs married each other. Defendant then filed a “Complaint for Declaratory Judgment and to Invalidate Bigamous Marriage,” asserting that his divorce from plaintiff was not final and that plaintiffs were therefore engaged in bigamy.

June 8, 2022

Discovery rule applied in HCLA case involving food service provider.

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

Where defendant was contracted to provide food services to a hospital, and decedent’s injury was allegedly a result of actions or omissions from the food service provider, the Court of Appeals affirmed the finding that the discovery rule applied and plaintiff’s pre-suit notice was timely even though it was sent more than one year after the injury, as nothing in the record indicated that plaintiff could have or should have discovered defendant’s identity earlier.

In Archer v. Sodexo Operations, LLC, No. W2020-01176-COA-R9-CV, 2022 WL 1657222 (Tenn. Ct. App. May 25, 2022), decedent was transported to a hospital emergency room and admitted due to complications with his PEG tube, through which he received nutrition. Decedent had an order that nothing be given to him by mouth, but on August 26, 2018, the morning after his admission, he was given a full breakfast tray. Decedent aspirated on the food, was found unresponsive, had multiple rounds of CPR performed, was transferred to a long-term care facility, and eventually died in February 2019.

On June 26, 2019, plaintiff, who was decedent’s son, sent pre-suit notice of his HCLA claim to the hospital where decedent was treated. On June 27, counsel for the hospital emailed plaintiff’s counsel and stated, “I don’t know much about this one but from what little I know this may be an issue with the dietary people. Dietary is contracted out to Sodexo (I think).” After further communication, counsel for the hospital stated that it was informing plaintiff pursuant to Tenn. Code Ann. § 29-26-121(5) that there might be another defendant because dietary services were contracted out.

June 7, 2022

Plaintiff’s deposition created issue of fact in GTLA premises liability case.

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

Where plaintiff’s deposition created a “dispute of material fact” as to whether defendant had actual notice of the alleged dangerous condition in this GTLA premises liability case, summary judgment for defendant was reversed.

In Vaughn v. Coffee County, Tennessee, No. M2021-00653-COA-R3-CV, 2022 WL 1652552 (Tenn. Ct. App. May 25, 2022) (memorandum opinion), plaintiff was an inmate at defendant county’s jail. Plaintiff alleged that the toilet in his cell leaked, causing water to accumulate in the floor, which caused him to slip and badly injure his hip one day when he was hurriedly getting his plate of food from an officer at the front of his cell. Plaintiff admitted that he was aware of the water and even stated that he had slipped in the water a few days prior to this incident.

Defendant filed a motion for summary judgment, which the trial court granted based on its ruling that plaintiff had not presented proof from which the court could find that defendant had notice of the allegedly dangerous condition. On appeal, this ruling was reversed.

June 6, 2022

Georgia Opinion Discusses Standards for Deposing High-Ranking Corporate Executives (So Does Indiana!)

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

Georgia’s Supreme Court has weighed in the so-called “apex doctrine,” which provides courts with a framework for determining whether good cause exists to forbid or limit the

deposition of a high-ranking corporate executive or high-level government official who lacks personal, unique knowledge of facts relevant to the litigation. The court’s 39-page opinion discusses the factors Georgia courts should consider in such cases.

General Motors, LLC v. Buchanan is a wrongful death, products case involving a claim of a defect in a GM vehicle’s steering wheel angle sensor. The plaintiffs sought to depose the current CEO of the company. The company objected, and urged Georgia’s courts to adopt the apex doctrine. which the court generally described as include the following factors: