Day on Torts

November 15, 2024

Malicious prosecution claim dismissed under TPPA.

Where plaintiff did not have evidence that an ethics complaint filed with the real estate commission by defendant was decided on the merits and due to plaintiff’s innocence, plaintiff’s malicious prosecution claim should have been dismissed pursuant to defendant’s TPPA petition.

In Gersper v. Turner, No. M2022-01136-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2024), plaintiff and defendant owned condos in the same building. When defendant resigned from the building’s board after opposition from several owners, plaintiff took his seat. While campaigning to retain the seat, plaintiff, who was a realtor, made a video showing current issues with the building. Plaintiff circulated the video to other board members, but defendant also eventually saw the video.

Based on this video, defendant filed a complaint with the Tennessee Real Estate Commission, asserting among other things that plaintiff was hurting the value of the property. The Commission sent defendant a letter two months later stating that the complaint had been reviewed by the legal staff and presented to the Commission, and “[t]he decision has been taken to close the complaint with no action.”

November 14, 2024

Polk County Tort Case Statistics and Outcomes – July 1, 2017- June 30, 2023

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

The following graphs demonstrate the resolution of personal injury, wrongful death, and other tort cases in Polk County, Tennessee during the last six fiscal years ending June 30, 2023.

BirdDog Law shares this information for every county in Tennessee. Click on BirdDog’s County Pages, go to the county of choice, and click on Court Statistics.

Click on the link for more information on the Polk County court system.

November 13, 2024

Common knowledge exception did not apply to HCLA transport case.

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

Plaintiff’s HCLA claim that defendant medical facility failed to advise a transportation service of his mobility issues required expert medical proof.

In Dickerson v. United Medical Transportation LLC, No. W2023-01084-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2024), plaintiff had been a patient at defendant medical facility. Upon plaintiff’s discharge, defendant arranged for transportation for plaintiff with a transport service. The service did not assist plaintiff when he was getting out of the car, and he fell, injuring himself.

Plaintiff filed this HCLA claim asserting that defendant “failed to inform [the transport service] of his medical conditions, including his fall risk status, while arranging for his transportation.” Defendant moved for summary judgment based on a lack of duty and the assertion that plaintiff had no ambulatory issues, and plaintiff responded by filing the affidavit of an expert with a background in transportation. Notably, this expert had no medical training or licensure. The trial court granted summary judgment to the defendant, ruling that plaintiff would need expert testimony to support his claim, and the Court of Appeals affirmed.

November 12, 2024

Chester County Tort Case Statistics and Outcomes – July 1, 2017- June 30, 2023

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

The following graphs demonstrate the resolution of personal injury, wrongful death, and other tort cases in Chester County, Tennessee during the last six fiscal years ending June 30, 2023.

BirdDog Law shares this information for every county in Tennessee. Click on BirdDog’s County Pages, go to the county of choice, and click on Court Statistics.

Click on the link for more information on the Chester County court system.

November 7, 2024

Haywood County Tort Case Statistics and Outcomes – July 1, 2017- June 30, 2023

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

The following graphs demonstrate the resolution of personal injury, wrongful death, and other tort cases in Haywood County, Tennessee during the last six fiscal years ending June 30, 2023.

BirdDog Law shares this information for every county in Tennessee. Click on BirdDog’s County Pages, go to the county of choice, and click on Court Statistics.

Click on the link for more information on the Haywood County court system.

November 6, 2024

Truck stop had no duty to driver turning from city road.

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

Where decedent was killed in a car accident that occurred when a driver on a city-controlled street was turning into defendant truck stop, the truck stop did not owe a duty of care to the decedent.

In Mershon v. HPT TA Properties Trust, No. M2023-01334-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2024), plaintiff filed a wrongful death negligence action after her husband was killed in an accident. The decedent was driving a motorcycle when the driver of an SUV turned across the decedent’s lane to attempt to enter defendant truck stop’s parking lot. The entry in question was marked as being for semi-trucks, not passenger vehicles, and there was limited visibility due to a hill on the road.

Plaintiff alleged that defendant truck stop “created a hazardous condition by failing to display clearly visible signage at the ‘trucks only’ entrance of the TA truck stop directing passenger vehicles to the proper entrance located a short distance down Long Lane.” After an earlier dismissal was reversed on appeal, defendant filed a motion for summary judgment arguing that plaintiff could not show that defendant owed a duty. The trial court agreed, granting summary judgment, and the Court of Appeals affirmed.

November 5, 2024

Johnson County Tort Case Statistics and Outcomes – July 1, 2017- June 30, 2023

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

The following graphs demonstrate the resolution of personal injury, wrongful death, and other tort cases in Johnson County, Tennessee during the last six fiscal years ending June 30, 2023.

BirdDog Law shares this information for every county in Tennessee. Click on BirdDog’s County Pages, go to the county of choice, and click on Court Statistics.

Click on the link for more information on the Johnson County court system.

November 4, 2024

Summary judgment affirmed in car wreck caused by road washout and sinkhole

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

Where plaintiff did not have sufficient evidence of notice of the washout and sinkhole on a road, summary judgment for the county was affirmed.

In Roberts v. Carter, No. W2023-01316-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2024) (memorandum opinion), plaintiff filed suit after having a car accident on a county road due to a sinkhole and washout. Although the Court of Appeals had overturned an earlier grant of summary judgment, in this memorandum opinion it affirmed the ruling that plaintiff had not presented sufficient evidence to create a genuine issue of material fact as to notice.

Plaintiff’s complaint cited three sections of the GTLA, but on this appeal, only the claim under Tenn. Code Ann. § 29-20-203 was addressed in plaintiff’s brief. Pursuant to that section of the GTLA, immunity for a governmental entity may be removed “for an injury caused by a defective, unsafe, or dangerous condition of any street…owned and controlled by such governmental entity,” but only if the governmental entity had actual or constructive notice of the dangerous condition. Here, plaintiff admitted that the county did not have actual notice of the washout, so the issue was whether plaintiff had enough evidence to show constructive notice.

November 2, 2024

Claims commission does not have jurisdiction over gross negligence claim.

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

Where plaintiff was injured by a dangerous condition on state property created by the gross negligence of a state employee, the Claims Commission Act did not provide a cause of action.

In Gordon v. State of Tennessee, No. W2023-01012-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2024), plaintiff child was injured when she cut her foot on a broken metal pipe under the surface of a state-owned lake. Plaintiff and her mom filed an action with the Claims Commission pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(C), which “relat[es] to negligently created or maintained dangerous conditions on state property.”

The Claims Commission initially ruled for plaintiff, finding that the pipe remnant was left in the lake when the pipe was replaced, and that “the child’s injury was foreseeable and proximately caused by the State’s negligence.” The State filed a motion to alter or amend, arguing that the Recreational Use Statute provided immunity here. The Claims Commission agreed that the Recreational Use Statute applied, but it ruled that the facts of this case constituted gross negligence, which is an exception to immunity under the Recreational Use Statute. The Claims Commission affirmed the damages award to plaintiff, and defendant State appealed.

November 1, 2024

Tennessee Supreme Court rules that TPPA petition does not affect right to nonsuit.

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

The Tennessee Supreme Court has affirmed that the filing of a TPPA petition to dismiss by a defendant does not bar a plaintiff from voluntarily dismissing a case.

In Flade v. City of Shelbyville, — S.W.3d —, No. M2022-00553-SC-R11-CV (Tenn. Oct. 9, 2024), plaintiff filed suit against several defendants asserting claims for libel, intentional interference with business, and intentional infliction of emotional distress. These claims were based on statements allegedly made by defendants about plaintiff on social medial and through text messages.

In addition to motions to dismiss, two defendants filed petitions to dismiss under the Tennessee Public Protection Act (“TPPA”). Before the scheduled hearing for these petitions, plaintiff filed a notice of voluntary dismissal. The trial court dismissed the matter without prejudice pursuant to Tennessee Rule of Civil Procedure 41.01, and it denied defendants’ “Notice of Intent to Proceed” with their TPPA petitions. The Court of Appeals affirmed the allowance of the nonsuit and the refusal to consider defendants’ TPPA petitions thereafter, and in this opinion, the Tennessee Supreme Court affirmed this ruling.