Day on Torts

October 24, 2022

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

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.

September 16, 2022

Professional negligence jury verdict affirmed.

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

Where the jury apparently credited plaintiff’s expert and found that defendant engineering firm was liable for professional negligence related to a large park and marina project, the jury verdict for defendant was affirmed.

In TMS Contracting, LLC v. SmithGroup JJR, Inc., No. M2020-01028-COA-R3-CV, 2022 WL 4112415 (Tenn. Ct. App. Sept. 9, 2022), plaintiff was the general contractor on a park and marina project, and it filed this professional negligence claim against defendant engineering firm related to multiple issues with the project. The case was tried in front of a jury, and during the trial only plaintiff presented testimony from an expert. Rather than hiring an expert, defendant countered plaintiff’s evidence primarily with testimony from its project manager.

September 14, 2022

Scaffolding rental company owed no duty to roofer where homeowner opted to install scaffolding himself.

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

Where a roofer was injured when he fell from a homeowner’s roof and bounced over the nearby scaffolding, but the homeowner had rented the scaffolding himself and chosen to erect it himself rather than paying the scaffolding company to install it, summary judgment for the scaffolding company on both the premises liability and general negligence claims was affirmed because the scaffolding company owed no duty to either the roofer or the homeowner.

In Lynch v. Poe, No. M2021-00867-COA-R3-CV, 2022 WL 4112706 (Tenn. Ct. App. Sept. 9, 2022), plaintiff was a roofer who was injured while working on a homeowner’s roof. While replacing shingles on the roof, plaintiff slipped and fell, bounced over the scaffolding, and fell to the ground. According to plaintiff, he was unable to stop himself on the scaffolding because guardrails had not been installed thereon.

The homeowner who had hired the roofing company had entered into a separate contract with DSS, an equipment company, and rented scaffolding from them. Although DSS offered scaffolding installation for a fee, the homeowner chose to install the scaffolding himself. While the homeowner had some experience with smaller projects, he admitted that this “scaffolding project was more involved than any project he had undertaken.” Although DSS employees visited the home a few times to bring scaffolding pieces and one DSS employee warned against using cinder blocks to level the scaffolding based on what he observed at the home, “at no point did [the homeowner] request or indicate to DSS that he would like an inspection of the scaffolding he had installed or that he would like to purchase the scaffolding installation service.”

September 12, 2022

Finding of extraordinary cause to excuse HCLA noncompliance reversed.

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

Where the HIPAA authorizations sent with plaintiff’s HCLA pre-suit notice were noncompliant, and plaintiff’s attorney claimed that the noncompliance was due to a set of extremely stressful work and family circumstances but his affidavit did not explain how the noncompliant error was made or how the circumstances caused the error, the Court of Appeals overturned the trial court’s finding of extraordinary cause excusing the noncompliance.

In Moxley v. AMISUB Inc. D/B/A Saint Frances Hospital, No. W2021-1422-COA-R9-CV, 2022 WL 3715056 (Tenn. Ct. App. Aug. 29, 2022), plaintiff alleged that he was injured by defendants’ medical negligence on July 5, 2019. Plaintiff’s counsel sent pre-suit notice to all potential defendants on July 3, 2020, and those notices included medical release forms that were allegedly HIPAA complaint pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). The forms, however, all listed the recipient medical provider as the “releasing provider” rather than the receiving provider, essentially giving the recipient the ability to release documents but not obtain them.