Day on Torts

September 2, 2008

“The Sun Made Me Do It!”

A defendant is permitted to argue that the light from the setting sun hindered his vision and that he was not negligent in failing to see (and then striking) plaintiff’s car.

The Kansas Supreme Court rejected the argument of the plaintiff that the defendant was negligent as a matter of law. The Court said

under Kansas law, when a constant condition exists that knowingly blocks or impairs a driver’s vision, the decision to continue driving without exercising reasonable diligence is negligence as a matter of law. The so-called blinding light rule from Diaz [206 Kan. 650], however, provides an exception in cases where a driver’s vision is suddenly blocked by some action beyond his or her control. Under such circumstances, the driver is not necessarily negligent for something that occurs while the driver is temporarily blinded. In other words, a sudden occurrence may create a factual question regarding the reasonableness of the driver’s behavior in reacting to the temporary condition.

August 29, 2008

The Merck Manual

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

It doesn’t necessarily represent the standard of care. It is the place to begin, not end, your medical research. But it is a great place to start. Merck Manual

August 27, 2008

File. Serve. Now.

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

Tennessee Rule of Civil Procedure 4.01(3) provides as follows:

If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective.

I don’t know what "prompt" means. Is turning process over to a process server in one day "prompt’? I would think so. What about five days? What if it is "promptly" given to a process server who then holds it for twenty days?

August 22, 2008

Court Says Plaintiff is Entitled to Have Her Deposition Videotaped

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

A trial judge in New Jersey has ruled that a plaintiff may insist that her discovery deposition be videotaped over the objection of the defense.

The judge ruled that "defense counsel’s objection is devoid of any specificity to constitute good cause. The Court does not wish to make light of any “burden” the video recording will place on defense counsel, but such burden does not rise to good cause, annoyance, embarrassment, oppression, or undue burden.13 It certainly does not justify denying Plaintiff the use of modern technology." [Footnote omitted.]

Read the 21-page opinion here.

August 20, 2008

Arbitration Agreements UPDATED

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

Nursing homes continue to attempt to avoid trial by jury by requiring residents to sign arbitration ageements. And the Tennessee courts continue to insist that if nursing homes are going to do so they must follow the law.

Here are two decisions that refuse to enforce arbitration provisions in nursing home contracts because they contracts were signed by a person other than the nursing home resident or appropriate representative: McKey and Ricketts. Both cases were decided on August 15 by the Tennessee Court of Appeals and were authored by Judge Andy Bennett.

UPDATE: And here is another decision, this one from Special Judge Walter Kurtz: Jones. Jones was released on August 20, 2008.

August 19, 2008

2009 Edition of Handbook Available Shortly

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

Day on Torts: A Handbook for Tennessee Tort Lawyers 2009 is almost ready to go to press. The 2009 edition will include reference to all of the Tennessee appellate cases on tort law released in the last year, add over 20 new statutes of interest to tort lawyers, and update rules of civil procedure, evidence, and appellate procedure.

Importantly, the 2009 edition will includes at least 20 new chapters. Each chapter addresses the leading case on an important tort law subject. The additional chapters mean that the book will now include over 250 subjects.

The 2009 edition also includes a much more detailed table of contents in the "Selected Statutes" section. We believe this change will make that section of the book even easier to use.

August 18, 2008

TSC Releases NIED Case

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

The Tennessee Supreme Court has released the opinion in Eskin v. Bartee and expanded the scope of recovery for negligent infliction of emotional distress.

The bottom line: "we have determined that it is appropriate and fair to permit recovery of damages for the negligent infliction of emotional distress by plaintiffs who have a close personal relationship with an injured party and who arrive at the scene of the accident while the scene is in essentially the same condition it was in immediately after the accident."

The key change is found in the words "arrive at the scene of the accident." Before this decision, the plaintiff was required to have seen or heard the injury causing event.

August 17, 2008

2009 Justice Programs Schedule

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

Many of you know that former Tennessee Supreme Court Justice Penny White, former Tennessee Court of Criminal Appeals Judge Joe Riley and I have a seminar company called "Justice Programs." We offer a 15 hour CLE program each Fall that permits attendees to meet all mandatory CLE obligations for the entire year and, more importantly, gives civil trial practioners the opportunity to gain valuable information for their practice.

Here is the outline for our course in 2008:

Tort Law / Comparative Fault – John Day

August 13, 2008

A Res Ipsa Case to Remember

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

Tennessee permits a plaintiff to rely on the res ipsa loquitor doctrine in medical negligence cases when appropriate under the facts. For the most recent Tennessee case on the issue see Flowers v. H.C.A. Health Care Services of Tennessee, Inc., 2006 WL 627183 ((Tenn. Ct. App. Mar. 14, 2006).

But take a look at this case out of Missouri. It holds that a plaintiff can rely on res ipsa in a case where the plaintiff got an E. coli infection after back surgery.

The Missouri Court noted that "Plaintiffs have alleged that all defendants were in control or had a right of control of the instrumentalities from which her infection was obtained, that the infection in the surgical site itself is one that does not occur in the absence of negligence, that the defendants all were negligent, that she was unconscious and has no knowledge of how the infection occurred, and that the defendants have superior knowledge of how it occurred." The plaintiff had an expert to support this position but who could not say how the infection actually occurred.

August 11, 2008

Try the Case? Or Settle the Case?

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

The age old question: should I try it or accept the offer the defense has made?

This article in the New York Times reports on an article that will appear in the September edition of the Journal of Empiral Legal Studies on the subject on settling cases. The article will address a study of 2,054 cases that went to trial from 2002 to 2005. The bottom line: "“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,’ said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions. "

The NYT article goes on to say as follows: "Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered."