Day on Torts

June 17, 2022

New Data Being Added To BirdDog Law – Tort Trials and Damages, By County

Readers know that we have launched BirdDog Law, a website for Tennessee lawyers and paralegals that (a) hosts three of my books and makes them available by subscription on a monthly or annual basis; and (b) provides a large number of free resources to help lawyers more efficiently serve their clients.

BirdDog recently launched a new free product – 95 databases containing data about the court systems of each of Tennessee’s 95 counties. Each database includes information about court clerks, judges, filing fees, local rules, local forms, demographic information, the county’s history, and more. The databases also provide you access to information about the status of e-filing and on-line records in each county.

Click to see the Davidson County database.

June 15, 2022

State responsible for allegedly dangerous condition on state-owned highway despite contracting maintenance out to city.

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

Although the State had contracted with a municipality for the maintenance of a state-owned highway, the State still bore “the ultimate responsibility for inspecting and maintaining [the highway],” and “the contract did not absolve the State of potential liability for failing to do so.” Denial of the State’s motion for summary judgment in this GTLA case was thus affirmed.

In Polhamus v. State, No. E2021-012553-COA-R9-CV, 2022 WL 1788380 (Tenn. Ct. App. June 2, 2022), plaintiff was injured when he crashed his motorcycle after hitting a pothole on a state-owned highway. Although the State owned the highway, it had contracted with the City of Kingsport to maintain the highways.

June 14, 2022

The Tennessee Missing Witness Rule

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

What you need to know about Tennessee’s “Missing Witness Rule:”

Tennessee’s law of evidence recognizes the common law rule that a party “may comment upon the failure . . . to call an available and material witness whose testimony would ordinarily be expected to favor” the opposing party. State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984). The missing witness rule may apply when the evidence shows that a witness who was not called to testify knew about material facts, had a relationship with the party “that would naturally incline the witness to favor the party,” and the witness was available to the process of the court. Id. (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). In civil trials, this rule applies when the missing witness is also a party—with knowledge of material facts, naturally favorable testimony, and availability to judicial process. See Runnells v. Rogers, 596 S.W.2d 87, 90–91 (Tenn. 1980); W. Union Tel. Co. v. Lamb, 203 S.W. 752, 753 (Tenn. 1918).

The logic of this common law principle stems from the commonsense inference that “[a] party’s intentional efforts to keep evidence from the fact-finder” is reasonably “interpreted as an implied admission of weakness in that party’s case.” Robert H. Stier, Jr., Revisiting the Missing Witness Inference—Quieting the Loud Voice from the Empty Chair, 44 Md. L. Rev. 137, 140 (1985). This “inference, which Wigmore calls ‘one of the simplest in human experience,’” id. (quoting 2 John Wigmore, Evidence in Trials at Common Law § 278, at 133 (J. Chadbourne rev. ed. 1979)), is well-grounded in Tennessee law. Yet we have applied it with due caution for the “several dangers inherent” in its operation, such as adding false weight or significance to testimony that a court has not heard. See Francis, 669 S.W.2d at 89. Thus, we strictly construe the missing witness rule and its elements. Id.

June 13, 2022

Defamation case dismissed based on absolute litigation privilege.

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

Where defendant’s allegedly defamatory statements accusing plaintiffs of bigamy were made within the context of a declaratory judgment action, the absolute litigation privilege applied and dismissal of the defamation case was affirmed.

In Vanwinkle v. Thompson, No. M2020-01291-COA-R3-CV, 2022 WL 1788274 (Tenn. Ct. App. June 2, 2022), defendant had previously been married to one of the plaintiffs, and a final decree of divorce had been issued in their divorce case. Approximately ten months after the final decree, plaintiffs married each other. Defendant then filed a “Complaint for Declaratory Judgment and to Invalidate Bigamous Marriage,” asserting that his divorce from plaintiff was not final and that plaintiffs were therefore engaged in bigamy.

June 8, 2022

Discovery rule applied in HCLA case involving food service provider.

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

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.