Day on Torts

April 3, 2005

More

The Hunter v. Ura decision that I wrote about several days ago also seems to open the door to prejudgment interest in personal injury and wrongful death cases.

Several years ago a case called Myint seemed to suggest that prejudgment interest could be awarded in such cases. Then, several court of appeals decisions held that prejudgment interest could not be awarded, and the Tennessee Supreme Court refused to hear those cases on appeal.

In Hunter the Supreme Court affirmed the trial judge’s refusual to award prejudgment interest, but affirmatively held that a trial judge has the discretion to award it.

April 2, 2005

Tort Law Tidbit – Privity

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

Is proof of privity required to file a products liability or other personal injury suit?

No – proof of privity was abolished by statute in T.C.A. Sec. 29-34- 104. It is no longer required in any negligence, strict liability, breach of warranty or UCC action.

April 1, 2005

Social Host Liability

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

The Tennessee Supreme Court has released another important tort opinion, Biscan v. Brown.

This opinion examined several important questions, including “whether an adult who hosts a party for minors and knows in advance that alcohol will be consumed has or may voluntarily assume a duty of care towards the minor guests.” The Court held that the defendant adult host had such a duty of care even though he did not furnish any alcohol.

The Court also held that the “trial court did not err in excluding evidence regarding the minor plaintiff’s prior alcohol-related offenses and her prior experience with alcohol and that the trial court did not err in determining that the plaintiff’s sister was not at fault as a matter of law pursuant to Tennessee’s statutory shield for furnishers of alcoholic beverages.”

March 31, 2005

Tort Law Tidbit – Sex Abuse Claims Against Therapist

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

Did you know that Tennessee has a specific statute addressing sex abuse claims against therapists?

The “Therapist Sexual Misconduct Victims Compensation Act” is set forth in T.C.A. Sec. 29-26-201 et seq. A “therapist” is defined as “any person who performs therapy regardless of whether the person is licensed by the state.” “Therapy” is also a defined term, and includes marital counseling, substance abuse treatment, family counseling, and other treatment.

The statute of limitations is two years and there is a discovery rule that is very patient-friendly. There are special rules applicable to minors. The Act prescribes situations under which the employer of the therapist can be held liable.

March 30, 2005

Taking Photographs

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

Thanks to Evan Shaeffer – a man who has time for two blogs and a law practice – for directing me to this helpful article on how to take photographs of vehicles.

You would think it was simple. Not. This article gives some great tips on taking photos that give you the information you need. The main thing I get from this article is that if you have a case where the injuries warrant it (from a financial stanpoint) it makes sense to have a professional take the photographs. It smaller cases these tips may help you improve upon the photos you take yourself.

March 30, 2005

Hot Off the Press

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

Hunter v. Ura has been decided by the Tennessee Supreme Court. The Court reversed the Tennessee Court of Appeals and reinstated a jury verdict for the plaintiff.

The majority opinion is authored by Justice Riley Anderson. Justice Barker, joined by Chief Justice Drowota, dissented on one issue of many raised in the appeal.

I have to catch an early morning flight to Ohio so I do not have time to summarize this opinion for you this morning. Suffice it to say that this opinion is the most important opinion in the medical negligence field that comes to memory. It is definitely a “Blue Chipper.”

March 28, 2005

Damages in Legal Mal Case Include Punitives in Underlying Case

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

The defendant law firm was found to have negligently prepared a commercial litigation matter for trial. The plaintiff argued that it would have been able to recover punitive damages in the underlying case had it not been dismissed because of the law firm’s negligence and therefore should be able to recover them in the second case.

The Illinois Court of Appeals agreed, stating that “we believe the proper focus of our analysis to be what would make the plaintiff whole with respect to the defendant attorney’s negligence. When, as in this case, a jury has determined that the plaintiff would have been entitled to punitive damages but for the negligence of the attorney, then such damages must be recoverable in order for the plaintiff to be made whole. We note that this result is consistent with the general principle in this state that ‘[a] legal malpractice plaintiff is entitled to recover those sums which would have been recovered if the underlying suit had been successfully prosecuted.'” [citation omitted].

The court then affirmed a jury verdict including over $1,100,000 in punitive damges. Read the opinion by clicking here.

March 27, 2005

Vigilantes on Trial

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

I need to tell you about a fascinating tort opinion I came across recently, one that presents an interesting yet troubling view of the state of the law at the time.

The decedent was awaiting trial for rape and murder when he was dragged from his jail cell and hanged. Suit was filed against the vigilantes. A White County jury returned a verdict against the vigilantes, but it was appealed as inadequate.

The Tennessee Supreme Court began its analysis with a beautifully written statement about the rule of law. The Court said: “There is neither valor or patriotism in deeds like these. Not valor, because there is no contest – the victim is already in bonds and harmless; nor patriotism, because the country has provided for the proper and legal punishment of offenders and needs not the aid of mass and lawless combinations to wield the sword of justice or quicken its stroke.”

March 26, 2005

Just When You Thought It Couldn’t Get Worse …

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

I wrote yesterday about the bad day the lawyers at Kirkland & Ellis and the folks at Morgan Stanley were having. Well, it got worse.

Matthew McCarrick, the blogger who has the excellent blog I cited yesterday, was kind enough to let me know of a recent development in the case.

Judge Maass has now granted a partial default judgment against Morgan Stanley and has disciplined several K&E lawyers. Perelman need now only prove that he relied on information from Morgan Stanley in connection with the Coleman – Sunbeam sale and that he suffered damages.

March 25, 2005

Tort Law Tidbit – Use of Demonstrative Aids in Closing

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

T.C.A. Sec. 20-9-303 permits a lawyer “to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury….” The statute prohibits a lawyer from making an argument “in writing” that could not properly be made orally.

In this era, I think this statute gives counsel the right to use Powerpoint or a similar program during closing argument.