Day on Torts

May 10, 2007

Settlement Doesn’t Bar Malpractice Claim

Rudolf fired his lawyers after a jury trial that resulted in a 50% finding of comparative fault and a total verdict of $250,000. He then hired a new lawyer, got a new trial, and then settled his case for $750,000.

Next, he sued his original lawyers for malpractice, saying that he failed to submit an appropriate jury instruction in the first trial and failed to object to the charge as given. "In his damages claim, plaintiff sought payment of the legal fees associated with the motion to set aside the verdict and the appeal, as well as the expert witness fees and expenses incurred for the second trial. Plaintiff also requested approximately $190,000 in interest that would have accrued at nine percent per annum on the $750,000 had that sum been awarded at the conclusion of the first trial in January 2002."

The Defendants admitted negligence, but denied that Plaintiffs were damaged by it. The New York court disagreed, saying that "plaintiff incurred litigation expenses to correct defendants’ error and paid a second time for expert fees for the retrial. These expenditures were readily ascertainable and calculated at $28,703.27 by Supreme Court. Although plaintiff achieved a $750,000 settlement as a result of the second trial, that sum represented compensatory damages in the underlying personal injury action and was not designed to reimburse plaintiff for the fees and expenses caused by
defendants’ negligence. We therefore agree with Supreme Court that plaintiff is entitled to consequential damages of $28,703.27."

May 9, 2007

Police Chase Opinion Issued by SCOTUS

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

Some people have found a way to turn a police chase case into a Sec. 1983 action. It was always tough – and it just got tougher.

Here is the issue as stated by Justice Scalia: "We consider whether a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind. Put another way: Can an officer take actions that place afleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?"

The bottom line: "The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise. [Officer] Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment."

May 8, 2007

Off Topic – A Tacky Ad

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

Is this the worst lawyer ad of the year?

I hope so.

Here is the owner of the offending law firm.

May 7, 2007

Guidelines and Levels of Care for Pediatric Intensive Care Units

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

The American Association of Pediatricians has issued "Guidelines and Levels of Care for Pediatric Intensive Care Units."

The abstract: "The practice of pediatric critical care medicine has matured dramatically during the past decade. These guidelines are presented to update the existing guidelines published in 1993. Pediatric critical care services are provided in level I and level II units. Within these guidelines, the scope of pediatric critical care services is discussed, including organizational and administrative structure, hospital facilities and services, personnel, drugs and equipment, quality monitoring, and training and continuing education. "

The citation: PEDIATRICS Vol. 114 No. 4 October 2004, pp. 1114-1125.

May 4, 2007

Tort Cases To Be Argued in June 2007

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

The Tennessee Supreme Court hears oral arguments in Nashville on June 5, 6 and 7. Here is a list of the tort cases which will be heard and the issues to be determined in each case:

* Simpson Strong-Tie Company v. Stewart, Estes, & Donnell – Rule 23 Middle District Court of TN – Certified Question

1. Does the absolute litigation privilege apply to communications made preliminary to a proposed judicial procedure, where such communications are directed at recipients unconnected with the proceeding in hopes of soliciting them to become parties to it?

May 3, 2007

Loss of Services of a Homemaker

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

This report published by Rueters says that if "the typical stay-at-home mother in the United States were paid for her work as a housekeeper, cook and psychologist among other roles, she would earn $138,095 a year."

Is this data that can be reasonably relied upon by an economist in a death or personal injury case?

May 2, 2007

New TCA Sec. 20-1-119 Decision

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

Justice Holder has released on new comparative fault opinion on behalf of the Tennessee Supreme Court.

Austin had a one-car accident and sued Fayette County for negligently maintaining the roadway. Fayette County said this in its answer:

"the traffic sign in question was not placed there by the Defendant, Fayette County, Tennessee; that it is in the right of way of the State of Tennessee; that it is under the control of the State of Tennessee; that Fayette County, Tennessee has no control over said stop sign, its placement, maintenance, etc[.] and that it cannot be held liable for the stop sign regardless of its condition."

May 1, 2007

Surprise! Juries Favor Doctors

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

This is no news to anyone who actually follows medical malpractice litigation, but it is nice to see that a person who has actually researched the issue confirms conventional wisdom accepted by everyone except lobbyists for the health care industry and the legislators they persuade.

An article in Law.com reports on this new study from law professor Phillip Peters.

A couple excerpts:

April 30, 2007

Chamber of Commerce – The Tennessee Ranking

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

Each year the Chamber of Commerce surveys corporate general counsel and "senior litigators" to "to explore how reasonable and balanced the tort liability system is perceived to be by U.S. business. "

The bottom line from the executive summary: "There has been an improvement in how the senior attorneys surveyed view the state court liability system, with a net increase of 25 percentage points between 2003 and 2007 in those indicating the system is excellent or pretty good. Further, a majority (57%) report that the litigation environment in a state is likely to impact important business decisions at their company, such as where to locate or do business."

And how did Tennessee rank? Number 7, enough to earn it a "Best" ranking.

April 25, 2007

Tolling Statute Applies to Plaintiffs Who Have Given Durable Power of Attorney

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

The Tennessee Supreme Court has ruled that the fact that an injured plaintiff had given his son a durable power of attorney did not prevent the plaintiff from relying on the "mental disability" tolling statute and bringing suit more than one year after an incident.

The nursing home where plaintiff lives asserted a statute of limitations defense to his claim. Plaintiff asserted that his claim was not time barred because he suffered from a disability within the meaning of T.C.A.Sec. 28-1-106. That statute provides that

"If the person entitled to commence an action is, at the time the action accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability."