Day on Torts

September 3, 2005

The Definition of Product

Can a product that is not completely installed be a product? The 3-judge panel of the Pennsylvania Superior Court said “yes.”

Sprinkler systems were being contructed in a three huge warehouses for documents storage. Although the sprinkler system was “admittedly incomplete,” the sprinkler system was issuing “material and test certificates” for those portions of the buildings were the documents were actually being stored. Hence, the Court said, the sprinkler system was a “product” and strict liability law was applicable.

Read an article about the case here.

September 2, 2005

Katrina Relief Contributions

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

I know that you are going to contribute to a Katrina relief fund – that is the type of person who reads this blog – but I urge those of you who are lawyers to do so through Trial Lawyers Care, an ATLA affilliated organization. Go here to help.

Trial lawyers do care, and one way to demonstrate that to people who don’t think so is to show our generosity collectively. Trial Lawyers Care gave tens of millions of dollars of free legal services to 9-11 victims; the people along the Gulf Coast are now in need.

September 1, 2005

Tragedy to the South

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

Our hearts go out to those we know and those we don’t in our sister states to the south. I cannot imagine what those folks – and their families across the nation – are going through right now.

No substantive post today.

August 31, 2005

Getting a Jump Start

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

A friend of mine who is a defense lawyer told me that in 50 % of the cases he defends he is not served written discovery.

I can imagine that there might be a tactical reason not to serve written discovery in a particular case. I can also say that that situation has not arise in my 24 years of practice.

I have found it best to almost always serve written discovery with the complaint. In many cases, we also serve a notice to depose the individual defendant or a corporate representative at a date we estimate to be 60 days after service of the complaint, when we will have an answer and the discovery in hand. We will almost always modify the date to accomodate the defendant and the defendant’s lawyer, but we like to get the case moving right off the bat.

August 30, 2005

Selling Gas to a Drunk

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

There has been a lot of talk about the decision of the Tennessee Supreme Court in the case of West v. East Tennessee Pioneer Oil Co.; even the Tennessesan has weighed in with an editorial.

The Court held that convenience store employees owe a duty of reasonable care to persons on the roadways when the employees sell gasoline to an obviously intoxicated person and / or assist the driver in pummping gas into his vehicle.

An employee of a c-store refused to sell Tarver beer because he was too intoxicated. Then, some level of physical assistance was given to Tarver to purchase $3.00 worth of gasoline for his vehicle. Tarver left the seen, drove 2.8 miles, and hit the plaintiffs’ vehicle head on, causing both plaintiffs’ serious injuries.

August 30, 2005

Mark Lanier

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

Here is a great article about Mark Lanier and his recent victory in the Vioxx trial in Texas.

August 29, 2005

New Slip and Fall Opinion

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

This opinion by Judge Koch does a great job summarizing the “slip and fall” law as it exists in Tennessee. This decision does not include a discussion of the so-called “method of operation” theory; that particular topic is addressed in a recent decision of the Tennessee Supreme Court.

If you read these two opinions you know what you need to know about this area of the law.

August 26, 2005

Verdict for Toyota Reversed

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

The 11th Circuit has reversed a jury verdict in favor of Toyota in a seat belt case, holding that the judge should have instructed the jury on the consumer expectation test. The judge only instructed on the risk-utility test. The judge was applying Florida law and the 11th Circuit ruled that, under Florida law, a seatbelt is a product about which a ordinary consumer could form expectations.

Read the opinion here. As you do remember that Tennessee also has a consumer expectation test in products cases.

August 26, 2005

Vioxx Trial Schedule

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

State Court New Jersey September 12
State Court Houston October (exact date unknown)
Federal Court New Orleans Nov. 28,
Federal Court New Orleans, Feb. 13, 2006
Federal Court New Orleans, March 13, 2006
Federal Court New Orleans, April 10, 2006

By the way, according to this article in the New York Times, Merck has shifted its strategy and now said that it may settle some of the claims against it.

August 25, 2005

Use of Photos of PD to Disprove PI Claims

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

The Maryland Court of Appeals has ruled that a defendant may use photos showing relatively little property damage to a vehicle to argue that the plaintiff did not have a significant personal injury.

The decision is Mason v. Lynch. There is also a great dissent on the issue; it makes the point that there is a substantial body of scientific literature that actually disproves the argument that “minor” impacts do not cause serious neck injuries. Accordingly, the dissent argues, a lawyer should not be able to make the argument that an injury is not real or significant simply based on the lack of property damage seen in photographs.