Day on Torts

November 28, 2006

Non-Disclosure of Witness Results in Reversal of Jury Verdict

Plaintiffs in Indiana had a $39 Million verdict reversed because of the failure to disclose the name of a witness.

Plaintiffs were injured in a car wreck with a driver who was operating his vehicle under the influence of alcohol. They sued the restaurant where the driver had been drinking alleging inter alia that it served a visibly intoxicated patron (the driver)

Plaintiffs knew that a waitress from the restaurant thought the driver was visibly intoxicated but did not disclose her in answers to interrogatories. The specific interrogatory at issue was as follows:

November 23, 2006

Tort Law – A Break for Turkey Day

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

I will not be blogging for a few days. I am taking today off for Thanksgiving and tomorrow morning I am off to Mexico where I will be speaking at a seminar on tort law to some Tennessee lawyers who also have an interest in diving. I will be speaking on Saturday and Sunday (three hours per day) and spending the rest of the time relaxing in Cozumel.

I hope you and your family have a wonderful holiday.

November 22, 2006

Attorney Sues Adjuster for Defamation

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

A Nationwide insurance adjuster met with a personal injury claimant in an effort to settle a claim. The claimant indicated he intended to select a certain attorney as his counsel. The adjuster said that the attorney just took peoples’ money and that the attorney’s clients would receive more money if they dealt with the adjuster directly.

The lawyer (Tronfeld) sued and the trial court dismissed the case, stating that the statements of the adjuster were statements of opinion and thus not actionable.

The Virginia Supreme Court said that "[u]nless Schmitt’s statements are opinion, they are sufficient to sustain a cause of action for defamation per se because the statements prejudice Tronfeld in his profession as an attorney at law. To state that an attorney “just takes people’s money” and that an attorney’s clients receive less for their claims because of the attorney’s services implies a combination of dishonesty, incompetence or the crimes of larceny by trick or obtaining money by false pretenses. … Such statements damage an attorney’s standing to engage in his or her chosen profession and carry the connotation that he or she lacks the integrity and fitness to practice law."

November 21, 2006

Blue Chipper – Policemen and Firemen’s Rule

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

The Case: Carson v. Headrick, 900 S.W..2d 685 (Tenn. 1995). Author: Justice Riley Anderson.

Why it is a Blue Chipper: Carson is the leading, current case on policemen and firemen’s rule.

The bottom line:

November 20, 2006

2006 Tennessee Med Mal Claims Report Released

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

The Tennessee Department of Commerce and Insurance has released the "2006 Tennessee Medical Malpractice Claims Report"" which, in fact, is based on 2005 data. Read the entire report here.

Some highlights:

* There were 5 – that’s right – 5 – claims were resolved by judgment for the plaintiff in the entire state. There were 6 verdicts for the plaintiff in 2004.

November 17, 2006

Election to the ALI

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

I am pleased to announce that I have been elected to membership in the American Law Institute. The ALI is the organization that creates the Restatements of the various areas of the law and participated in the creation of the Uniform Commerical Code, the Model Penal Code, and numerous other codifications and studies.

In particular, I hope to be able to make a contribution to a current ALI project, "Restatement of the Law Third: Liability for Physical Harm," and other tort projects over the years.

Thank you to Knoxville lawyer and mediator-extraordinare Howard Vogel for nominating me for this position, and to United States Court of Appeals Judge Cissy Daughtrey, Tennessee Chief Justice William Barker, Tampa attorney Bill Wagner, and Memphis attorney Lucian Pera for writing letters to ALI on my behalf.

November 16, 2006

Trial Judge Slaps Plaintiff – With Sanctions

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

Judge Young from Blount County, who enjoys a good reputation and whom I have always found to be quite pleasant, has popped a plaintiff with over $1,000,000 in sactions for "scorched earth" litigation tactics.

According to Knoxnews.com, Judge Young wrote that "[t]he summary judgment record shows that [plaintiff]O’Boyle did not have evidence to support material allegations and factual contentions in his complaint and that O’Boyle asserted and aggressively pursued frivolous claims which were devoid of merit."

The article says that "Young’s ruling details numerous examples of O’Boyle misrepresenting facts, concluding, "’O’Boyle’s failure in this case was so widespread and fundamental as to evidence an improper purpose.’" Young noted in his ruling that the case generated 18 feet worth of files and 1,866 docket entries, and spawned related litigation in federal and state courts. He also noted that the plaintiffs – which included O’Boyle’s associates in New Midland Plaza Associates – had previously been sanctioned twice and held in contempt twice, paying out more than $127,000 in fines and penalties. "

November 15, 2006

Illinois Supreme Court Justice Wins Libel Verdict

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

Read the story here in the Chicago Tribune.

November 14, 2006

Spoliation – Attorney Liability

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

I have reported on a number of spoliation cases in this blog recently, but this is the first on against an attorney. Plaintiff argued that Plaintiff’s counsel had failed to inspect or secure evidence in the possession of the plaintiff’s decedent’s employer in the underlying products liability action. Plaintiff also filed a spoliation claim against the employer. Both claims were dismissed, and Plaintiff appealed.

The Arkansas Supreme Court noted that a first-party spoliation claim is not recognized in Arkansas. After reviewing law from across the nation on point, the Court said that "we believe it would be inconsistent for us to hold that a third party, who is not a party to the underlying action, could be liable for damages, including the possibility of punitive damages, for the same conduct that would not be actionable if committed by a party to the lawsuit. Furthermore, we cannot recognize a new tort as a means to deter third-party spoliation of evidence when the result of such a tort would create potentially endless litigation over speculative loss. A victim of third-party spoliation should seek a remedy in a means other than an individual tort claim." [Citation omitted.]

Read Downen v. Redd, NO. CV-2004-107 I (Ark. S. Ct. 11/02/06) here. Use the "Search" function to find other spoliation cases on this blog.

November 14, 2006

Minor Can Recover Medical Expenses

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

The Tennessee Court of Appeals has ruled that a minor can sue to recover medical expenses paid to treat injuries received by the minor as a result of the negligence of another. Although most of us (at least those of us who represent plaintiffs) have thought this was probably the law, it is nice to see an opinion from this century addressing the issue directly.

Here is the entire section of the opinion on the subject that addresses this important issue:

"As a final matter, Defendant contends that the trial court erred in admitting evidence of
Plaintiff’s pre-majority medical expenses since a minor does not having standing to assert a claim for expenses incurred on his behalf and Mrs. Craig was not a party to the suit. Tennessee Code Annotated section 20-1-105 provides that a claim for medical expenses incurred by a minor during his or her minority does not belong to the minor, but rather to the minor’s parents. See also Burke v. Ellis, 58 S.W. 855, 857 (Tenn.1900). However, in Smith v. King, No. Civ.A. 958, 1984 WL 586817, at *2 (Tenn.Ct.App. Sept. 21, 1984), the court addressed a substantially similar issue and determined that a minor plaintiff may maintain his or her own cause of action for medical expenses and include the amount of medical expenses incurred on behalf of the minor as an element of his or her damages.