Day on Torts

February 22, 2005

Another Blue Chipper

Any list of the most important tort cases in the history of Tennessee tort law must include McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992).
This opinion radically changed Tennessee law by adopting modified comparative fault and abolishing joint and several liability in the vast majority of cases. The opinion also represented a major step by a newly-constituted court to bring Tennessee jurisprudence in step with the rest of the country.
By the way, the plaintiff lost the case on remand.

February 21, 2005

Voluntary Dismissals – A Sad Tale

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

Most of us have been there. You are at trial. The jury is in the box. Things have gone poorly. Your client, the plaintiff, was late, and showed up dressed in a pink oxford shirt and saddle shoes. (Your mistake, by the way. You told him to dress like he was going to church.) His wife, who has the disposition of a rattlesnake with a fresh boot print on its back, does not bother to hide her distaste for the proceedings, you or her husband.

The jury consists of twelve stone-faced people who all live or who aspire to live in 37027 (Brentwood), each of whom has the compassion of an investment banker (and, indeed, two of them are). These folks watch Fox News, listen to Rush Limbaugh, and believe that, had the editorial writers of the Wall Street Journal been born a few centuries earlier, they would have been amongst the contributors to the Good Book. They each think that “damn Democrat” is one word and that the only human being lower than your client is you, his pond-scum sucking trial lawyer.

The defendant, the minister for the largest church in the community, happened to run a stop sign on the way to visit a parishioner in a local hospital. His co-defendant is his church, the largest church in the community, the supplier of his 1995 Chevy Corsica and the immediate employer whose interest he was advancing on the day in question (there being substantial difficulty getting service of process on the ultimate Master). The good reverend is a gentle, kind-faced man of God who may well have ousted Charlton Heston for the lead in “The Ten Commandments,” had he not been hospitalized for diphtheria contracted while doing missionary work in Africa at the time of the casting call. His wife, who stands dutifully by his side at every break, looks like Aunt Bea in her church clothes.

February 21, 2005

Complaint for a Car Wreck against an Individual Defendant

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

This is a basic complaint for personal injuries arising out of a motor vehicle accident with an individual defendant. Download file. It contains allegations of common law negligence and negligence per se, but does not provide for vicarious liability of any parent or employer.
Note that the prayer for relief does not include a specific monetary amount in the ad damnum. Tenn. R. Civ. P. 8.01 does not require a specific dollar amount when initiating suit, and using an open-ended ad damnum like the one in this complaint can help you avoid prematurely valuing a case. However, a long history of Tennessee case law says that a plaintiff cannot recover a penny more than the amount specified in her complaint. See generally, Gaylor v. Miller, 166 Tenn. 45, 59 S.W.2d 502, 504 (Tenn.1933). You must amend the complaint to state a specific ad damnum amount before trial or moving for default judgment. Also, be wary of waiting until the last minute to declare an ad damnum – a trial court does not abuse its discretion by denying a motion to amend to substantially increase the ad damnum amount on the eve of trial. See Benson v. Tennessee Valley Electric Co-op., 868 S.W.2d 630 (Tenn. App. 1993).

One final note on the ad damnum amount: the Tennessee Product Liability Act contains a statutory exception requiring the complaint “state an amount … sought to be recovered from any defendant.” Tenn. Code Ann. ㋔ 29-28-107. If you are filing a product liability case, you should state an ad damnum at the outset.

February 18, 2005

What is a “Blue Chipper?”

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

More than two decades ago I enrolled in an Antitrust Law course at the University of North Carolina School of Law, under the mistaken impression that it was the sequel to the Domestic Relations Law course I had taken a semester earlier. I quickly realized my error, but elected to stay the course and learn a little business law.

The Professor was Bill Aycock, former Professor of the School of Law and former Chancellor of the University. He is a wonderful man and a fine teacher, the kind of gentleman who undoubtedly makes a perfect grandfather.

Professor Aycock identified certain cases that he called the “Blue Chippers” of antitrust law, a concept taken from the notion of “blue chip” stocks. (You remember “blue chip” stocks – a phrase developed back when accountants were more like Robert Caro and less like John Grisham.)

February 17, 2005

Statute of Repose Does Not Violate Due Process

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

The Tennessee Supreme Court has held that the three-year statute of repose for medical negligence cases does not violate due process when applied to those who are mentally incompetent. The plaintiff argued that due process required that the statute of repose should be tolled during the period of incompetency. Read Mills v. Wong at http://www.tsc.state.tn.us/OPINIONS/TSC/Sc1qtr2005.htm.

As a result of this opinion, brain-injured adults and others who are incompetent lose their legal right to sue for medical negligence unless they file suit within one year of the date of discovery but no more than three years after the date of the negligent act or omission causing the injury (unless another exception to the statute of repose applies).

The only remaining exceptions to the statute of repose are for fraudulent concealment, the presence of foreign objects and the claims of minors.

February 17, 2005

Congress Passes Class Action Bill

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

The House of Representatives has just passed the “Class Action Fairness Act of 2005.” The Senate passed an identical bill last week. President Bush is expected to sign the bill into law tomorrow morning at 11:00 EST.

The new law gives federal courts jursidiction over most class actions when the amount in controversy equals or exceeds $5,000,000 and there are 100 or more plaintiffs.

Read the legislation by clicking here.

February 16, 2005

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

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