Day on Torts

May 9, 2007

Police Chase Opinion Issued by SCOTUS

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."

April 23, 2007

Bystander Recovery – Indiana

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

The Indiana Supreme Court has ruled that the fiancee of a man who came upon a crash site involving a collision between her fiancee and defendant could not sue for emotional distress.

Indiana law says that "[w]hen . . . a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, . . . such a plaintiff is entitled to maintain an action to recover for that emotional trauma without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff."

It also provides that "a bystander may . . . establish “direct involvement” by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant’s negligent or other-wise tortuous [sic] conduct.."