Day on Torts

June 8, 2022

Discovery rule applied in HCLA case involving food service provider.

Where defendant was contracted to provide food services to a hospital, and decedent’s injury was allegedly a result of actions or omissions from the food service provider, the Court of Appeals affirmed the finding that the discovery rule applied and plaintiff’s pre-suit notice was timely even though it was sent more than one year after the injury, as nothing in the record indicated that plaintiff could have or should have discovered defendant’s identity earlier.

In Archer v. Sodexo Operations, LLC, No. W2020-01176-COA-R9-CV, 2022 WL 1657222 (Tenn. Ct. App. May 25, 2022), decedent was transported to a hospital emergency room and admitted due to complications with his PEG tube, through which he received nutrition. Decedent had an order that nothing be given to him by mouth, but on August 26, 2018, the morning after his admission, he was given a full breakfast tray. Decedent aspirated on the food, was found unresponsive, had multiple rounds of CPR performed, was transferred to a long-term care facility, and eventually died in February 2019.

On June 26, 2019, plaintiff, who was decedent’s son, sent pre-suit notice of his HCLA claim to the hospital where decedent was treated. On June 27, counsel for the hospital emailed plaintiff’s counsel and stated, “I don’t know much about this one but from what little I know this may be an issue with the dietary people. Dietary is contracted out to Sodexo (I think).” After further communication, counsel for the hospital stated that it was informing plaintiff pursuant to Tenn. Code Ann. § 29-26-121(5) that there might be another defendant because dietary services were contracted out.

June 7, 2022

Plaintiff’s deposition created issue of fact in GTLA premises liability case.

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

Where plaintiff’s deposition created a “dispute of material fact” as to whether defendant had actual notice of the alleged dangerous condition in this GTLA premises liability case, summary judgment for defendant was reversed.

In Vaughn v. Coffee County, Tennessee, No. M2021-00653-COA-R3-CV, 2022 WL 1652552 (Tenn. Ct. App. May 25, 2022) (memorandum opinion), plaintiff was an inmate at defendant county’s jail. Plaintiff alleged that the toilet in his cell leaked, causing water to accumulate in the floor, which caused him to slip and badly injure his hip one day when he was hurriedly getting his plate of food from an officer at the front of his cell. Plaintiff admitted that he was aware of the water and even stated that he had slipped in the water a few days prior to this incident.

Defendant filed a motion for summary judgment, which the trial court granted based on its ruling that plaintiff had not presented proof from which the court could find that defendant had notice of the allegedly dangerous condition. On appeal, this ruling was reversed.

June 6, 2022

Georgia Opinion Discusses Standards for Deposing High-Ranking Corporate Executives (So Does Indiana!)

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

Georgia’s Supreme Court has weighed in the so-called “apex doctrine,” which provides courts with a framework for determining whether good cause exists to forbid or limit the

deposition of a high-ranking corporate executive or high-level government official who lacks personal, unique knowledge of facts relevant to the litigation. The court’s 39-page opinion discusses the factors Georgia courts should consider in such cases.

General Motors, LLC v. Buchanan is a wrongful death, products case involving a claim of a defect in a GM vehicle’s steering wheel angle sensor. The plaintiffs sought to depose the current CEO of the company. The company objected, and urged Georgia’s courts to adopt the apex doctrine. which the court generally described as include the following factors:

June 3, 2022

Exciting New Addition to BirdDog Law – Comprehensive Local Court Information

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

Problem: Locating reliable information about court-related issues in counties other than your “home” county (and sometimes even in your “home” county). There is information available on the Internet, but it is spread over multiple different websites, some of it is contradictory, and there can a question about reliability of the information.

Solution: BirdDog Law’s new free resource. BirdDog has compiled important information for trial lawyers and their teams about court operations in all 95 counties. The information includes:

contact information for all court clerks.

June 2, 2022

Tennessee Supreme Court Releases Opinion in Linville Case

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

On June 1 the Tennessee Supreme Court issued an opinion in State v. Linville, a case that required interpretation of the “drug-free zone” statutory provisions.

So, why bring that up in a tort law blog? First, some of our readers also do criminal defense work, so a brief note about the decision is helpful to them.

Second, the new opinion gives me another opportunity to remind you of the free resource offered by my company “BirdDog Law.” Our “Status of Cases Pending Before the Tennessee Supreme Court ” book gives you not only a list of the cases pending before the court but also lets you know the status of them. And it’s free!

June 1, 2022

Dismissal affirmed where plaintiff died days before complaint was filed in her name.

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

Where plaintiff died a few days before the complaint in her HCLA suit was filed, and the complaint was filed with her named as plaintiff, the complaint was a nullity that could not be corrected by amendment and dismissal of the case was affirmed.

In Owen v. Grinspun, No. M2021-00681-COA-R3-CV (Tenn. Ct. App. May 25, 2022), plaintiff wife had surgery in August 2019, and she later gave pre-suit notice to defendants of an HCLA claim based on injuries related to that surgery. After notice had been given, but a few days before the complaint was filed, plaintiff wife died. The complaint was nevertheless filed listing plaintiff wife as the sole plaintiff.

Defendants filed an answer and engaged in discovery. Plaintiff’s counsel thereafter filed a suggestion of plaintiff wife’s death on the record, and also filed a motion to substitute plaintiff’s husband as the plaintiff, which the trial court allowed. Later, however, defendants filed a motion to dismiss, asserting that “the original complaint was a nullity that did not serve to toll the statute of limitations and that the statute of limitations had now expired.” The trial court “reluctantly granted the motion” to dismiss, and this ruling was affirmed on appeal.

May 31, 2022

Dismissal affirmed where HCLA pre-suit notice was sent to wrong entity.

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

Where an HCLA plaintiff sent pre-suit notice addressed to the wrong entity, summary judgment for defendant was affirmed, even though defendant was informed of the pending suit by the incorrect entity and was not prejudiced.

In Breithaupt v. Vanderbilt University Medical Center, No. M2021-00314-COA-R3-CV, 2022 WL 1633552 (Tenn. Ct. App. May 24, 2022), plaintiff suffered antibiotic tendonitis, a traumatic rupture to a tendon in her ankle, and chronic tendonitis after being prescribed medication for a cough that had an adverse reaction with the steroids she had been taking for years. The prescribing doctor worked at defendant VUMC, and plaintiff was not warned about the possible side effects of the medication by the doctor before taking it, despite having previously treated at defendant VUMC for ankle problems. Plaintiff thereafter filed this HCLA suit.

May 24, 2022

Chancery court lacked subject matter jurisdiction over defamation tort claims.

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

Where the gravamen of plaintiff’s complaint was his tort claim for defamation seeking unliquidated damages, the chancery court did not have subject matter jurisdiction and the case should have been transferred to circuit court.

In Lowery v. Redmond, No. W2021-00611-COA-R3-CV (Tenn. Ct. App. May 23, 2022), plaintiff filed a petition in chancery court related to various allegedly defamatory statements made by defendants. Plaintiff alleged that defendants “defamed his character in an attempt to ensure that he would not succeed in his bid for election to public office, by distributing defamatory information about him to prospective voters.” Plaintiff’s complaint sought compensatory damages for defamation, false light invasion of privacy, and intentional infliction of emotional distress. It also sought punitive damages, injunctive relief, and a declaratory judgment that defendants had violated certain statutes.

May 19, 2022

Cases Pending Before the Tennessee Supreme Court – Updated

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

The Tennessee Supreme Court decided the “Home Rule” case yesterday, with three of five justices finding that the Tennessee Education Savings Account Pilot Program was not unconstitutional. Click here to find links to the majority and concurring/dissenting opinions.

The Court has accepted review of 27 other cases, 15 of them civil cases and 12 of them criminal cases. Seven of the civil cases involve tort issues, and civil procedure issues are present in two other cases.

The current status of all of the cases may be found on BirdDog Law, which has a free book, Status of Cases Pending Before the Tennessee Supreme Court, that allows you to stay up-to-date on pending cases that can affect your clients and your practice. BirdDog also provides free access to the rules of civil procedure, evidence, and much, much more.

May 18, 2022

Dismissal partially reversed based on fraudulent concealment.

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

Where plaintiffs averred that defendant home builders affirmatively told plaintiffs that the utility penetrations in the crawl space of the newly built home purchased by plaintiffs in August 2017 had been sealed with foam, and plaintiffs did not learn until January 2018 after an inspection by a mold remediation company that this statement was untrue, plaintiffs’ claims related to the damage allegedly caused by this failure to seal should not have been dismissed based on the statute of limitations, as plaintiff had put forth enough evidence from which a trier of fact could have found that the statute of limitations on these claims was tolled by fraudulent concealment.

In Simpkins v. John Maher Builders, Inc., No. M2021-00487-COA-R3-CV, 2022 WL 1404357 (Tenn. Ct. App. May 4, 2022), plaintiffs filed this pro se action that revolved around a newly built home they bought in August 2017 that had allegedly developed severe mold issues. Plaintiff asserted various claims against defendants, including breach of contract, fraud, intentional misrepresentation, and negligence, all of which the trial court dismissed as untimely pursuant to the three-year statute of limitations applicable to claims of injuries to real property. (Tenn. Code Ann. § 28-3-105.) On appeal, dismissal was partially reversed.