This would be funny – if it wasn’t true.
John Jenkins sat down in a portable toilet to start and finish some personal business and have a cigarette – and the toilet exploded!
Apparently, there was a methane gas leaking from a broken pipe under the toilet. When Jenkins struck the lighter there was an explosion and he was burned.
While investigating a potential case, you may find that a possible defendant has a piece of evidence you want. This is a letter requesting the potential defendant preserve the evidence and make it available for inspection. If the defendant refuses to let you view the evidence – or outright destroys it – you have a paper trail to ask for a spoiliation instruction.
Even if the evidence is in the hands of a third-party with no direct relationship to the case, such a letter may help you avoid any implication that your client passively (or actively) participated in destroying crucial evidence. Download file
The Ray by Holman v. BIC Corp., 925 S.W.2d 527 (Tenn. 1996)
case is a leading decision in Tennessee products liability law. Start your products liability research with this case (right after you read the Tennessee Products Liability Act).
The opinion states that that Tennessee Products Liability Act provides for both the consumer expectation test and the prudent manufacturer test, latter of which requires risk-utility balancing in its application. Use of the prudent manufacturer test requires the determination of whether, after balancing all the relevant factors, a prudent manufacturer would market the product despite its dangerous condition. Naturally, a prudent manufacturer would consider usefulness, costs, seriousness and likelihood of potential harm, and the myriad of other factors (i.e. the risk-utility test).
The most famous plaintiff in the history of Tennessee tort law is Harry Douglas McIntyre, of McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), fame. For those of you who are not from Tennessee, Mr. McIntyre was the gentleman whose case brought the law of comparative fault to Tennessee. The Tennessee Supreme Court decided his case on May 4, 1992.
The question for the day is this:
How many beers did Mr. McIntyre consume in the hours before his vehicle came into contact with a Peterbilt tractor driven by Mr. Ballentine?
I would say that this is a familiar story, but that would only be partially correct.
Ok, it starts out familar. Man has affair. He says he loves his girlfriend. He says he is going to leave his wife. He leaves his wife. He and his lover live together. They travel together. They talk about marriage. He says he will support her. But he doesn’t divorce his wife. He stays married. OK. But now we break from the story line we have heard in the past.
This goes on 23 years. That’s right, 23 years. He breaks off the relationship. He gives her some back end cash. She’s upset, and sues him for breach of the promise to marry, fraud, palimony, intentional infliction of emotional distress, and more.
The distinction between a lack of informed consent case and a pure medical battery case is set out in Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998). An informed consent case requires expert proof as to the standard of care (or recognized standard of acceptable professional practice) of similar medical professionals. The plaintiff must establish what information is provided to patients prior to the procedure, and how the information is disclosed to the patient, in order to prove that the professional deviated from the standard of care. In a medical battery case, on the other hand, the plaintiff must establish either that the patient was unaware that the doctor was going to perform the procedure, or that the patient did not authorize the procedure. Medical battery cases include those in which the doctor performs a surgery that has been discussed with the patient, but performs the surgery on the wrong part of the body (i.e., amputation of the wrong limb). A true medical battery case does not require expert witness testimony on the standard of care, because there is no prior consent to be judged.
This is complaint from a medical malpractice and medical battery case in which a surgeon mixed up two of his patients’ charts, leading him to perform a surgery on the plaintiff to which she had never consented. Download file
Do you remember when the drug companies told us that they were going to release more data about clinical drug trials?
That was a year ago. The New York Times has taken a look at the record developed over the last year and discovered that some drug companies are not doing what they said they would do.
Read the story here.
This is off topic, but very interesting. The United States Supreme Court has just overturned Arthur Anderson’s criminal conviction. The Court held that a key jury instruction was in error.
Read the opinion here.
What is the name of the case that tells us that violation of a statute is negligence per se? Cook By and Through Uithoven v. Spinnaker’s of Rivergate, 878 S.W.2d 934, 937 (Tenn. 1994). What about the violation of a regulation? Long by Cotton v. Brookside Manor, 885 S.W.2d 70, 73-74 (Tenn. App. 1994). An ordinance? Kim v. Boucher, 55 S.W.2d 551 (Tenn. App. 2001).
What is a tort law tidbit?
That’s right. I just finished a ten-day vacation and now I have decided to take Saturday off. I can’t help it. I have a hearing that will consume June 2, 3, 6 and 7, an argument in the Tennessee Supreme Court on June 8, and a mediation in a major case on June 9. That schedule – coupled with a status conference in another case on June 1 – has made the last 5 days a whirlwind. So, no substantive blog today.
Have a wonderful weekend.
