Day on Torts

April 7, 2005

Going to the Scene

You cannot (or at least I cannot) get a real feel for a motor vehicle accident scene without going there.

I need to stand and watch traffic move in the area. I want to look at the scene from the viewpoint of all of the participants. I have to get that feel of the area before I take depositions in the case. Intimate knowledge of the scene allows you readily respond to issues that arise in depositions about the scene itself, giving you the opportunity to get helpful admissions or allowing your adversary (or a witness) to make errors that you can later prove.

So, I encourage you to leave the office and visit the scene of the motor vehicle crash. Try to go at the same time of day as when the incident occurred. If you need to take measurements I would encourage you to go very early in the morning when the sun is just coming up but before the traffic gets heavy. Sunday mornings are the best.

April 6, 2005

IRAs Protected in Bankruptcy

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

Are you thinking you got the wrong blog? Bankruptcy law? What does John Day know about bankruptcy law?

The answer is “absolutely nothing.” Well, that is not quite true; I know enough about bankruptcy law to know when to call a bankruptcy lawyer.

But this opinion caught my eye. In Rousey v. Jacoway the United State Supreme Court ruled that creditors may not seize individual retirement accounts in bankruptcy proceedings. Several other courts had reached a contrary position, reasoning that since one can withdraw money from an IRA before retirement the assets in the IRA should not be protected from creditors. The 9-0 opinion was authored by Justice Thomas.

April 6, 2005

You Won’t Believe This!

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

Senator John Cornyn (R-TX) made a speech recently wherein he wondered about a possible connection between violence in courtrooms and activist judges.

You really have to wonder about the intellect (or, at least, the intellectual honesty) of a person who would make such remarks. The suggestion that a criminal court judge in Georgia was murdered because of his politics is patently ridiculous.

Do you see how hard he struggles to find the right words? He knows he is about to say something preposterous, but just can’t help himself.

April 5, 2005

Death by Fire Ants

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

The March 28, 2005 edition of Lawyers Weekly USA reports several cases on behalf of nursing home residents killed by fire ants.

In Florida, a 73 year old man recuperating from surgery was attacked by fire ants. The lawsuit against the nursing home settled for $1,870,000.

The family of a woman in North Port, Florida received an undisclosed settlement for a similar attack. A woman in Bradenton won $1,200,000 for a fire attack assault. She survived.

April 4, 2005

Legislative Update

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

The Tennessee General Assembly has a myraid of tort “deform” bills pending in the medical malpractice field this year. Generally speaking, the bills want to cap damages on meritorious cases, limit attorney’s fees for lawyers who represent patients, cut off subrogation interests, impose periodic payments, etc.

The newest example of outrageous conduct is an attempt by the doctors to let the state medical board establish criteria for expert witnesses. To read the bill, click here, click on “Legislation” and enter House Bill number 1011.

The legislation would require the expert to sign the guidelines – or face cross-examination on the failure to sign them. It would give the state medical board the right to publish additional rules – perhaps even subjecting the expert to displinary action if the expert has been found by the board to given testimony with which it did not agree. This is witness intimidation, nothing more, nothing less.

April 4, 2005

Study from Florida Negates Allegations of Rising Number of Claims

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

A recent editorial quotes the results of a Florida study that demonstrates that there has not been the dramatic increase in the numbers of malpractice cases represented by the insurance industry and doctors.

The editorial said that “the research showed that while the state’s population climbed by 31.5 percent in this time, med-mal claims paid per 100,000 residents actually fell from a high of 12.36 in 1996 to 9.74 in 2003.”

The editorial goes on to say that “the study found the ‘debate about the role of juries in so-called ‘mega awards’ is misplaced.’ In 14 years, the study identified 801 cases in which more than $1 million was paid. Further, the study said 93 percent of the million-dollar payouts were the result of settlements, not jury awards.”

April 3, 2005

More

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

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.