Day on Torts

October 18, 2007

New Made-Whole Decision

The Tennessee Supreme Court has released its opinion in Health Cost Controls, Inc. v. Gifford, No. W2005-01381-SC-R11-CV (Tenn. S. Ct. Oct. 17, 2007). If the style of this case sounds you familiar you are not losing your mind – this case was before the Supreme Court on the made-whole four years ago earlier.

This time the case was before the court on the issue of whether the plaintiff was made-whole. The Supreme Court said this about the responsibilities of lawyers and judges in resolving this important issue in any particular case:

Trial courts should support their made-whole determinations with specific findings of fact regarding the monetary value of the injured party’s recovery from all sources and the monetary value of the injured party’s total damages. Furthermore, trial courts should make specific findings as to the value of each separate element of an injured party’s damages. Finally, if the trial court finds that the injured party has been made whole, reimbursement should be awarded to the insurer only to the extent that the injured party’s total recovery exceeds the injured party’s total damages. These requirements are necessary to ensure that the made-whole doctrine is consistently applied and to facilitate appellate review of made-whole determinations.

October 15, 2007

Action by Servicemen Against Contractor

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

I know you remember the Feres doctrine. The Feres doctrine comes from the decision in Feres v. United States, 71 S.Ct. 153 (1950) and provides that soldiers cannot sue the government for injuries that they incur as part of their military service. Not surprisingly, the doctrine has been asserted by government contractors who do work for the military and who seek immunity for their actions.

In McMahon v. Presidential Airways, Inc., No. 06-15303 (llth Cir. Oct 5, 2007) the widows of three soldiers who died in airplane crash in Afghanistan sued the entities that owned an operated the plane. Feres was rasied as a defense, but it was not the sole defense. Here is the table of contents for the 72-page opinion:

I. Derivative Feres immunity

October 12, 2007

Causation in Legal Malpractice Cases

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

Negligence without causation is like a biscuit without country ham (or blackberry jam).

Now, I’m not so sure that juries pay as much attention to the concept as lawyers and judges, but causation is an element of every cause of action in the tort world.

This decision out of Michigan reminds us that causation must be proved in a legal malpractice case. The lawyer blew the deadline for filing a notice of appeal – clearly negligence – but was not found liable as a matter of law because the appeal was denied on the merits. Read the decision in McCabe vs. Miller & Associates, LLP, No. 275498 (MI. Ct. App. October 9, 2007) here.

October 10, 2007

Tort Law Tidbit

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

Did you know that there is a cause of action for malicious harrassment in Tennessee?

The malicious harassment statute, Tennessee Code Annotated, section 4-21-701, provides: "(a) There is hereby created a civil cause of action for malicious harassment. (b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney’s fees and costs, and punitive damages." Tenn. Code Ann. § 4-21-701 (1998).

The elements of the tort created by this statute were outlined by the Tennessee Supreme Court in Washington v. Robertson County:

October 9, 2007

Have You Registered?

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

Penny White, Joe Riley and I are on the road again with our 4th annual 15-hour seminar program.

Here is our schedule for each seminar:

First Day

October 8, 2007

Are We Are Brother’s Keeper?

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

To what extent are we our brother’s keeper? That is a constant question posed in cutting edge tort cases, and this case in Illinois is no exception.

Iseberg sued his two partners because they failed to warn him that a fourth partner, Slavin, had made threats against Iseberg’s life. Iseberg was a man of his word: he shot Iseberg and rendered him a paraplegic.

From the opinion of the Illinois Supreme Court:

October 5, 2007

ALI Meeting

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

I am at a meeting of the Members Consultative Group of the Restatement of the Law Third Torts: Liability for Physical and Emotional Harm sponsored by the American Law Institute. The meeting is being held in Austin, Texas at the University of Texas Law School. We are discussing "Duty of Land Possessors."

Last night we had dinner at the Mansion at Judge’s Hill and I had the pleasure of sitting with Victor Schwartz, an editor of the torts case book that most of us used in law school and an active tort reformer. (Indeed, he is General Counsel to the American Tort Reform Association.) We had a wonderful conversation, agreeing on more things than both of us expected and politely disagreeing on other points. Victor has a great sense of humor and a real gift of imitating the voices of many political figures.

This morning we are debating the duty, if any, of landowner’s and possessors to trespassers and the exceptions to the historic general rule of no liability. I am enjoying the debate immensely – a lot of thought has been given to the issue by the drafters and the members who are present are raising some excellent points.

October 4, 2007

Update on Status of Book

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

Day on Torts: A Handbook for Tennessee Tort Lawyers 2008 is at the printer. The printing date is October 18 and the books should be delivered to Brentwood on October 23, 2007.

You may recall that the book will be updated during the year via a website called "dayontortsbook.com." I have seen the mock-up of that site – the folks at Justia did a great job on it. (Justia also developed our firm’s website – www.dayblair.com. These folks are extremely competent and I really enjoy working with them.) It will be available for public viewing by the end of the month.

Part I of the book is called "Leading Tennessee Tort Cases by Subject." It contains detailed summaries of 233 cases on 233 tort law subjects. It also contains citations to well over 1000 additional cases. Here is the table of contents to this section of the book.

October 3, 2007

Death of a Lawyer: Hon. William Cain

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

Yesterday afternoon I attended the funeral of Judge Bill Cain of Columbia.

Judge Cain served on the Court of Appeals and had served as a trial judge. He was a lawyer who loved the law and loved to discuss the subject. He prided himself on his ability to dive into the books and find the answer to a problem, and was justified in his pride. We debated many tort law subjects over the years and I found him to be a worthy adversary, someone who not only knew the law but understood why the law was the way it was.

Judge Cain despised the phrase "reasonable degree of medical certainty" and did his best to relegate it to the ash-heap of history. He thought the "locality" rule in medical malpractice cases was assine, but applied it because he was duty-bound to do so. He applied to plaintiffs and defendants, and in fact reversed a jury verdict for the defendant in a Clarksville case because the defendant’s experts did not know the local standard of care.

October 1, 2007

Federal Preemption Case to be Heard by SCOTUS

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

The United States Supreme Court has agreed to decide "whether federal law pre-empts the product liability claims that diabetes patients filed in Michigan state court against pharmaceutical company Warner-Lambert & Co." Read more here.