Day on Torts

October 31, 2022

Exclusion of HCLA expert based on locality rule affirmed.

Where an HCLA plaintiff’s expert testified at his deposition that he was not very familiar with Kingsport and that he had only reviewed information about Kingsport the night before the deposition, rather than before forming his medical opinions, the trial court did not err by excluding the expert based on the locality rule.

In Jackson v. Thibault, No. E2021-00988-COA-R3-CV, 2022 WL 14162828 (Tenn. Ct. App. Oct. 25, 2022), the patient underwent a hysterectomy at a hospital in Kingsport, Tennessee. Complications arose during the surgery, and the patient later went into septic shock and died. Plaintiff, who was the administrator of the patient’s estate, brought this HCLA suit alleging negligence against a number of medical providers related to the patient’s care.

October 31, 2022

Appeal under Tennessee Public Protection Act ruled untimely.

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

When appealing a trial court’s order dismissing or refusing to dismiss a case under the Tennessee Public Protection Act (TPPA), the appeal “must be filed within thirty days of the entry of that order.”

In Laferney v. Livesay, No. E2021-00812-COA-R3-CV, 2022 WL 14199150 (Tenn. Ct. App. Oct. 25, 2022), plaintiff filed multiple tort claims against multiple defendants, including libel claims against certain defendants based on their social media statements related to the death of a dog who died while in the care of plaintiff’s dog training business. The libel defendants filed motions to dismiss pursuant to the TPPA, which the trial court granted on December 10, 2020. The trial court also found that “the TPPA requires an award of attorney’s fees when an action is dismissed under that chapter” and it asked the prevailing parties’ attorneys to submit fee affidavits within fifteen days of the entry of the dismissal order. The trial court then entered an order awarding some attorneys’ fees on March 5, 2021, then due to some late filing, entered another order regarding attorneys’ fees on June 24, 2021. Plaintiff appealed the TPPA dismissal from that June 24^th order.

October 26, 2022

Free, Helpful Information About the Robertson County, Tennessee Court System

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

BirdDog Law offers a large variety of free information to Tennessee lawyers and paralegals. Among the free resources are 95 databases, one for each Tennessee county, that share information about the operation of the court system in that county. Each database is set up in the same format for ease of use.

For example, click on the link for Robertson County. The opening page will give you population and demographic information for the county. The “Court Clerks and Related Information” has contact information for each court clerk, the clerks’ websites, the local rules of court, e-filing information, docket information, and filing fee information for all six courts.

The “Judges” tab has biographical and contact information for all eight judges in the county.

October 24, 2022

Physician employed by state university had absolute immunity under Tennessee Claims Commission Act.

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

Where defendant physician was employed by a state university and received no personal gain from the clinical services she rendered at a hospital, and plaintiff had brought an HCLA action based on these hospital clinical services, summary judgment pursuant to defendant’s absolute immunity under the Tennessee Claims Commission Act was affirmed.

In Parker ex rel. Parker v. Dassow, No. E2021-01402-COA-R3-CV, 2022 WL 11584155 (Tenn. Ct. App. Oct. 20, 2022), plaintiff filed this HCLA suit on behalf of her son. According to plaintiff, defendant physician failed to find a condition on the son’s ultrasound before he was born, which caused him permanent injuries. Plaintiff asserted that this negligent ultrasound reading occurred at Erlanger Hospital.

October 19, 2022

Free, Helpful Information About The Wilson County, Tennessee Court System

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

BirdDog Law offers a large variety of free information to Tennessee lawyers and paralegals. Among the free resources are 95 databases, one for each Tennessee county, that share information about the operation of the court system in that county. Each database is set up in the same format for ease of use.

For example, click on the link for Wilson County. The opening page will give you population and demographic information for the county. The “Court Clerks and Related Information” has contact information for each court clerk, the clerks’ websites, the local rules of court, e-filing information, docket information, and filing fee information for all six courts.

The “Judges” tab has biographical and contact information for all eight judges in the county.

October 18, 2022

No HCLA liability under GTLA where allegedly negligent doctors were not employees of governmental entity hospital.

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

Where plaintiff filed an HCLA case against a hospital that was a governmental entity, but only alleged negligence by doctors who were not employees of the hospital, summary judgment under the GTLA was affirmed.

In Howell v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2021-01197-COA-R3-CV, 2022 WL 5295794 (Tenn. Ct. App. Oct. 7, 2022), plaintiff went to defendant hospital for treatment for a laceration on his foot. Plaintiff was treated by a medical resident and a medical student, who were both under the supervision of the same physician. Neither the supervising physician, medical resident, or medical student were employees of defendant hospital.

Plaintiff filed this suit asserting negligence against the medical resident and supervising physician because the resident allegedly failed to remove fiberglass shreds from his cut before doing stitches, which led to serious medical issues. Defendant moved for summary judgment, and after several responses and replies, the trial court granted summary judgment on the basis that “[defendant] is a governmental entity and that neither [the supervising physician] nor [the medical resident] are employees of [defendant],” so defendant “could not be held vicariously liable for the actions of [the supervising physician or medical resident] under the GTLA.” This ruling was affirmed on appeal.

Pursuant to the GTLA, a governmental entity may be liable for the “negligent actions of governmental employees acting within the scope of their employment.” (Tenn. Code Ann. § 29-20-205). The issue here, however, was that the doctors that plaintiff claimed had acted negligently were not employees of defendant hospital. The only expert testimony presented by plaintiff asserted that the supervising physician and medical resident had failed to meet the standard of care; it did not “allege that [defendant hospital] or its nurses deviated from the standard of care.”

October 12, 2022

Free Information About the Sumner County, Tennessee Court System

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

BirdDog Law offers a large variety of free information to Tennessee lawyers and paralegals. Among the free resources are 95 databases, one for each Tennessee county, that share information about the operation of the court system in that county. Each database is set up in the same format for ease of use.

For example, click on the link for Sumner County. The opening page will give you population and demographic information for the county. The “Court Clerks and Related Information” has contact information for each court clerk, the clerks’ websites, the local rules of court, e-filing information, docket information, and filing fee information for all six courts.

The “Judges” tab has biographical and contact information for all eight judges in the county.

October 11, 2022

Plaintiff could not show constructive notice in GTLA premises liability case where she could not show how long dangerous condition had existed.

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

Where plaintiff tripped on an uneven sidewalk and brought a GTLA premises liability suit against defendant city, plaintiff could not show constructive notice because she could not show how long the condition had existed.

In Mitchell v. City of Franklin, Tennessee, No. M2021-00877-COA-R3-CV, 2022 WL 4841912 (Tenn. Ct. App. Oct. 4, 2022), plaintiff was leaving a church service and walking on sidewalks owned by defendant city when she tripped and fell. Plaintiff alleged that her fall was caused by an “abrupt change of elevation caused by a raised portion of the sidewalk.” Plaintiff filed a GTLA case against the city, and the trial court ultimately entered judgment in favor of the city, which was affirmed in part and reversed in part on appeal. Of note, the city remediated this sidewalk condition after plaintiff’s fall, and no measurement of the height variation was taken at any time prior to the remediation.

Two sections of the GTLA were potentially implicated in this action. Tenn. Code Ann. § 29-20-205 “removes immunity for injury caused by the negligence of a public officer or employee,” but the statute lists several exceptions, including that immunity is not removed for the performance or failure to perform a discretionary function (subsection (1)) or for the failure to make or negligent performance of an inspection (subsection (4)). The trial court granted summary judgment under this statute, finding that plaintiff could not prove liability due to these exceptions, and review of this issue was waived on appeal. The Court of Appeals pointed out, however, that “liability for injuries under section 29-20-203 caused by a defective, unsafe, or dangerous condition is not subject to the exceptions of section 29-20-205” and that “the City’s immunity may still be removed under section 29-20-203 even though it retained immunity under section 29-20-205.” (internal citation omitted).

October 3, 2022

Dismissal of Defamation and False Light Claim under Tennessee Public Participation Act partially reversed.

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

Where plaintiff real estate professional brought an action for defamation and false light based on an online review written by defendant, defendant moved to dismiss the action pursuant to the Tennessee Public Participation Act (TPPA).

In Charles v. McQueen, No. M2021-00878-COA-R3-CV, 2022 WL 4490980 (Tenn. Ct. App. Sept. 28, 2022), plaintiff was a real estate professional involved in some capacity with Durham Farms, which was a large residential community. Defendant was a resident in the community who wrote a negative online review of the developer of the community and plaintiff. Regarding plaintiff, the review stated: “Bill Charles, especially, uses misleading tactics to lure in home buyers only to deceive them.”

Based on this review, plaintiff filed this action for defamation and false light against plaintiff. Defendant filed a petition for dismissal pursuant to the TPPA, and after finding that the TPPA applied, that plaintiff was a limited-purpose public figure in the context of this action, and that plaintiff “had not established a prima facie case for actual malice,” the trial court dismissed the case. This ruling was affirmed in part and reversed in part on appeal.

The TPPA, Tenn. Code Ann. § 20-17-101 et seq., is Tennessee’s version of an anti-SLAPP statute and was designed to “encourage and safeguard the constitutional right of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury.” (quoting Tenn. Code Ann. § 20-17-102). “The TPPA provides relief for parties who partake in protected activity constituting either the exercise of the right of association, the exercise of the right of free speech, or the exercise of the right to petition.” (internal citations omitted). If a party petitions for dismissal under the TPPA and “makes a prima facie case that they have participated in a protected activity under the TPPA, the court may then dismiss the action against them, unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.” (internal citations, quotation and emphasis omitted).

September 22, 2022

Dismissal of legal malpractice claim reversed.

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

Where plaintiff alleged that defendant attorneys ignored settlement offers and rejected offers on illogical bases in a previous class action case, dismissal of plaintiff’s legal malpractice claim was reversed.

In Hawthorne v. Morgan & Morgan Nashville, PLLC, No. W2021-01011-COA-R3-CV, 2022 WL 4298184 (Tenn. Ct. App. Sept. 19, 2022), plaintiff represented a proposed class bringing claims for legal malpractice and breach of fiduciary duty against defendant attorneys based on defendant attorney’s representation of plaintiff class in a previous class action. The previous class action surrounded several funeral homes that had allegedly “wrongfully abandoned the remains of the class’s deceased loved ones at the cemetery.” (internal citations omitted). In this case, plaintiff alleged that defendants committed legal malpractice and breach of fiduciary duty in the previous case by ignoring reasonable settlement offers, rejecting settlement offers for illogical reasons, and failing to communicate settlement offers to the class representative.

Defendants filed a motion to dismiss, which the trial court granted with little explanation. The trial court apparently concluded that “even accepting [plaintiff’s] allegations as true, and giving the Plaintiff the benefit of all reasonable inferences from these facts, such facts and inferences did not give rise to a legal claim.” On appeal, this dismissal was reversed.