Day on Torts

February 21, 2005

Complaint for a Car Wreck against an Individual Defendant

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

test

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

test