Day on Torts

August 5, 2006

Ford Recall Extending Recall Concerning Cruise Control

Ford Motor Company has recalled 6,700,000 vehicles that have faulty cruise control systems that can cause the vehicle to catch fire.

Ford now agrees that "brake fluid might leak from the switch that deactivated the cruise control once the driver stepped on the brake. That fluid can drip onto the cruise control’s electrical component, cause corrosion and ignite a fire. " Read more here.

This site will allow you to determine if your vehicle has been recalled simply by plugging in your vehicle identification number (VIN). If your vehicle has already burned up your VIN number is on your vehicle registration. If that burned up too your dealer or the governmental entity that licensed the vehicle can give you the number.

August 4, 2006

Depositions and the “Usual Stipulations”

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

Here is a great post – collecting other great posts – about the meaning of the "usual stipulations" in a deposition.

Thanks Evan.

August 4, 2006

Failure to Appeal Cases

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

When a lawyer is sued for negligence in conjunction with the appellate process who decides whether or not the appeal would have been successful, judge or jury?

The judge makes the decision, according to the Illinois Supreme Court. The Court said that "the issue of proximate cause in an appellate legal malpractice action is inherently a question of law for the court and not a question of fact for the jury."

The case is Governmental Insurance Exchange v. Judge, Docket No. 100668 (Ill. S.Ct. May 18, 2006). Read it here.

August 3, 2006

What is Going On Here?

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

A decision released yesterday by the Court of Appeals confuses me greatly. Defendant 1 blamed Nonparty in an answer. Plaintiff sued Nonparty, who then became Defendant 2. Defendant 2 moved to dismiss, saying inter alia that the complaint against it was barred by the statute of repose. Then, according to the opinion, Defendant 2 said that "argued that Tennessee’s comparative fault joinder statute, which would operate to toll the three-year statute of repose, was inapplicable in the current litigation."

Well, I sure hope that Defendant 2’s lawyers did not say that because that is not the law. In fact, it is 180 degrees wrong.

T.C.A. Sec. 20-1-119 has a dangerous subsection and this is as good of time to talk about it as any. Subsection (b) of the statute says as follows: "A cause of action brought within ninety (90) days pursuant to subsection (a) shall not be barred by any statute of limitations. This section shall not extend any applicable statute of repose, nor shall this section permit the plaintiff to maintain an action against a person when such an action is barred by an applicable statute of repose." (Emphasis added).

August 3, 2006

California Jury Finds for Merck

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

The jury in the first Vioxx trial in California has ruled in favor of Merck. Read more here.

August 2, 2006

Hospitals Reduce Birth Injuries

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

Efforts to improve teamwork and communication have substantially reduced births resulting in traumatic injury .

Many of the Seaton hospitals have worked with the Institute for Healthcare Improvement to reduce preventable childbirth injuries by " improving communications, standardizing procedures and reducing risky methods that speed deliveries, including forceps use, vacuum deliveries and medication to induce labor," according to an article in the American-Statesman.

The paper reports that overall the actions have "reduced traumatic birth injuries from 3.2 per 1,000 in 2004 (less than half the national average) to 0.3 injuries per 1,000."

August 2, 2006

First California Vioxx Trial Near Conclusion

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

The first of several thousand Vioxx cases in California is nearly complete. I will let you know when the verdict comes in.

August 1, 2006

Liability for Failure to Disclose Sexual History

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

"What duty does an HIV-positive individual have to avoid transmitting the virus? What level of awareness should be required before a court imposes a duty of care on an HIVpositive individual to avoid transmission of the virus? What responsibility does the victim have to protect himself or herself against possible infection with the virus?" Those are questions raised in a recent case before the California Supreme Court.

Why did Bridget sue her husband? : "Bridget [the wife] allege[d] that John [her husband] became infected with HIV first, as a result of engaging in unprotected sex with multiple men before and during their marriage, and that he then knowingly or negligently transmitted the virus to her. John, who now has full-blown AIDS, allege[d] in his answer that Bridget infected him and offers as proof a negative HIV test conducted in connection with his application for life insurance on August 17, 2000, six weeks before Bridget discovered she was infected with HIV." Bridget sued John for intentional infliction of emotional distress, negligent infliction of emotional distress, fraud and negligence. John not only alleged that Bridget gave him HIV but also alleged that fault should be assessed against her because she did not insist that he wear a condom.

The case went up a discovery issues: what scope of discovery should be permitted the alleged negative HIV test results six weeks before Bridget’s diagnosis? And what about the right to privacy? Of course, the scope of discovery is in some ways depend on the viability of the various causes of action and that is where the Court got into substantive tort law.

July 30, 2006

Blue Chipper – Wrongful Death Damages

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

The case: Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999). Author: Justice Janice M. Holder.

Why it is a Blue Chipper" Jordan overruled past precedent that misread the wrongful death damages statute and permitted, for the first time, a factfinder to award damages for the loss of love, society and affection in a wrongful death case. It recogized that the value of human life exceeded the dollar value of the decedent to earn money. The case allowed the factfinder to consider such damages when the deceased was survived by a spouse or children, whether the children were minors or adults.

The bottom line:

July 29, 2006

Bacardi 151 Rum Lawsuit Filed

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

Insurance Journal reports that a lawsuit has been filed against Bacardi, the manufacturer of 151 rum.

The article says that "a bartender, who was not identified in the lawsuit, was pouring shots when a customer lit a menu on fire and placed it in the stream of alcohol. A bottle of Bacardi 151 that was being used to pour the shots turned into a flame thrower and sent flaming rum all over " the plaintiff.

I was involved in a similar case that went to trial in 1983. Our client, an off-duty waitress in a restaurant in Alabama, was burned when a bottle of 151 rum exploded after a stream of the alcohol was exposed to flame. The trial of that case resulted in the first million-dollar verdict in Nashville.