Day on Torts

April 25, 2007

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

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.."

April 20, 2007

The Risks of E-Lawyering

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

Does use of the Internet increase our risk of liability? This booklet from Chubb Insurance Company discusses our some of the risks presented – and how to address them:

Risk of Unintended Client Engagements

Risk of Disclosing Confidential Communications

April 18, 2007

Florida Supreme Court Adopts Anti-Secrecy Rules

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

Florida’s Supreme Court has put its foot down on judges and clerks that seal records. It has adopted interim amendments to Florida Rules of Judicial Administration 2.240 to articulate the circumstances under which court fiings can be kept secret from the public.

The Court describes the amendments as requiring the following:

1. A request to make court records in noncriminal cases confidential must be made by written motion. [Note: an Agreed Order will not work.]
2. A public hearing must be held on any contested sealing motion and may be held on certain uncontested sealing motions.
3. A sealing order issued by a court must state with specificity the grounds for sealing and the findings of the court that justify sealing.
4. All sealing orders must be published to the public.
5. A nonparty may file a motion to vacate a sealing order.
6. A public hearing must be held on any contested motion to vacate a sealing order and may be held on certain uncontested motions to vacate.
7. A court may impose sanctions on any party who files a sealing motion without a good-faith basis and without a sound factual and legal basis.
8. Most significant for our purposes here, by mandating that the case number, docket number, or other identifying number of a case cannot be made confidential, the removal from public view of all information acknowledging the existence of a case is expressly not allowed.

April 16, 2007

Podcasts for Lawyers

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

Have you listened to a podcast yet? Well, if not, here is a good place to start.

The ABA Section of Litigation has a dozen or so podcasts for your listening pleasure. For example, you can listen to Ten Rules for Managing Electronically Stored Information, How to Tell a Judge He Screwed Up, Eight Tips for Better Voir Dire, Quick and Dirty Research, or Ten Rules for Managing Electronically Stored Information.

Enjoy.

April 13, 2007

Kentucky Opens Door to Loss of Earning Capacity Claims

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

The Kentucky Supreme Court has ruled that a "plaintiff need only prove with reasonable probability that the injury is permanent in order to obtain an instruction on permanent impairment of earning power."

In Reece v. Nationwide Mutual Insurance Company, 2005-SC-000079-DG (Ken. S. C. March 22, 2007) Reece was hurt in an automobile accident. Two doctors testified that she suffered a permanent injury in the incident. The issue before the court was

"whether the evidence submitted by Reece in this case was sufficient to warrant an instruction on permanent impairment of earning power, or whether Reece was required to present specific evidence, presumably in the form of an expert, of how her earning power was permanently impaired by the injury. Reece argues that no specific evidence of permanent impairment of earning power is required, only proof that the injury is permanent which she presented through the testimony of Dr. Thurman and Dr. Raque. Nationwide contends that the Court of Appeals correctly set out the standard which would require specific evidence of permanent impairment of earning power in the present case . We hold that evidence of permanent injury alone is sufficient for an instruction on permanent impairment of earning power, and that the jury can through their common knowledge and experience make the determination if there has been a permanent impairment of earning power, the extent of such impairment, and the amount of damages for such impairment."

April 12, 2007

Preparing to Depose an Expert

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

This article by Betsey Herd and Janabeth Evans (Taylor) provides some helpful information on research that can be done to prepare for the deposition of an opponent’s expert.

April 11, 2007

On the Road

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

I have been in Destin the last few days. KATA and TTLA had a joint seminar at the Hilton. I spoke Tuesday morning, had dinner with friends last night, and came back today.

Back to work!

April 9, 2007

Breach of Settlement Agreement

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

Plaintiff settled his sexual harassment and retaliation lawsuit against defendants and this provision was included in the settlement agreement: "The parties agree that the terms of this settlement shall be held confidential and that no disclosure of the terms of the settlement, other than the fact of the settlement itself, shall be disclosed or disseminated to anyone who is not a party to this Release, except to the extent required by law. Further, the parties agree that neither shall disparage or discredit the other."

Plaintiff then alleged that certain of the Defendants made statements to the press in violation of this provision. Some samples: one defendant said "’he thought they “had a really good case,’and ‘had beaten this guy all the way through’”; and that he "’was very frustrated that he did not get a chance to fight the lawsuit in court. He . . . felt the county had a strong case, but the risk pool did not want to spend the money to go through the court process’” . Another defendant allegedly said "that she did not know the exact amount of the settlement, but “’it wasn’t very much.’”

Plaintiff sued for violation of the terms of the non-disclosure and anti-disparagement clause.

April 7, 2007

Off Topic – The Education of Ms. Goodling

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

Slate has published this article about Monica Goodling and the Regent University School of Law.

Did you know that "[u]nder Ashcroft, career lawyers were systematically fired or forced out and replaced by members of conservative or Christian groups or folks with no civil rights experience. In the five years after 2001, the civil rights division brought no voting cases on behalf of African-Americans. It brought one employment case on behalf of an African-American. Instead, the division took up the "civil rights" abuses of reverse discrimination—claims of voter fraud or discrimination against Christians."