Day on Torts

August 13, 2021

Discretionary costs award to defendants affirmed.

Where the jury returned a verdict for defendants and the trial court awarded defendants certain discretionary costs, the judgment was affirmed because plaintiff had not properly raised several of his arguments in the trial court and “the trial court did not abuse its discretion on the remaining issues.”

In Murphy v. Sarta, No. E2020-00445-COA-R3-CV (Tenn. Ct. App. July 26, 2021), plaintiff filed a personal injury action against defendants, and the jury returned a verdict for defendants. Defendants filed a motion for discretionary costs under Rules 54.04 and 68 of the Tennessee Rules of Civil Procedure, seeking $8,346.06. Plaintiff responded in opposition to the motion, but the trial court ultimately awarded defendants $3,449.81 in discretionary costs, and the Court of Appeals affirmed.

Plaintiff raised four issues on appeal. First, he argued that “court reporter costs for pre-trial hearings are not authorized under Rule 54.04(2).” After citing a Tennessee Supreme Court case which stated that Rule 54.04(2) “does not necessarily provide for expenses incurred for pretrial hearings,” the Court wrote that it “might be inclined to agree with [plaintiff] on the law.” Whether plaintiff had correctly interpreted the Rule did not matter in this case, however, because plaintiff had waived this argument by not raising it prior to the appeal. “It is well-settled that issues may not be raised for the first time on appeal.” (internal citation omitted). Because plaintiff “raised no argument that court reporter fees incurred at pre-trial hearings were not allowable costs under Rule 54.04(2) until this appeal,” the argument was waived.

August 13, 2021

Tennessee Supreme Court Agrees to Review Comparative Fault Issue in Negligent Misrepresentation Case

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

The Tennessee Supreme Court has agreed to accept review of a comparative fault issue concerning the tort of negligent misrepresentation. The issue:

Whether the affirmative defense of comparative fault is applicable to a negligent misrepresentation cause of action in which the conduct of the plaintiff constituting the basis for that defense also pertains to the justifiable reliance element of the negligent misrepresentation cause of action?

The case is Pryority Partnership v. AMT Properties, LLC, No. 2020-00511-SC-R11-CV. Here is a copy of the court of appeals opinion in the case, decided on March 10, 2021.

August 12, 2021

Dismissal affirmed under GTLA for failure to name doctor’s governmental entity employer as defendant.

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

Where defendant doctor was an employee of a governmental entity and plaintiffs failed to name the employer in their HCLA suit, dismissal under the Tennessee GTLA was affirmed. In Braylon W. v. Walker, No. W2020-00692-COA-R3-CV (Tenn. Ct. App. July 15, 2021), plaintiffs filed an HCLA suit against defendant doctor based on treatment surrounding the birth of minor plaintiff. The birth occurred at Jackson-Madison County General Hospital, and pursuant to a Physician Employment Agreement, defendant was employed by West Tennessee Medical Group (WTMG) at the time of the birth. WTMG is a governmental entity under the definitions in the Governmental Tort Liability Act.

When plaintiffs filed their complaint, they named only the doctor as a defendant. Defendant filed a motion for summary judgment, arguing that “because she was an employee of WTMG, the GTLA require[d] that WTMG also be named a party to the lawsuit.” The trial court granted summary judgment to defendant based on the GTLA, and the Court of Appeals affirmed.

August 11, 2021

Collateral source rule barred testimony regarding reasonableness of medical bills.

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

Defendants could not introduce evidence to rebut the presumption that plaintiff’s medical bills were reasonable when that evidence violated the collateral source rule. In Doty v. City of Johnson City, No. E2020-00054-R3-CV (Tenn. Ct. App. July 7, 2021), plaintiff was riding in a car when she was hit by a tractor being driving by an employee of defendant. Defendant admitted liability, so the only issue was the amount of damages.

The accident caused plaintiff to need shoulder surgery (she had previously had two other shoulder surgeries), and she was under a doctor’s care for nine months following the accident.

August 10, 2021

Plaintiff should have been allowed to revise voluntary dismissal where dismissal was not a final order.

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

Where plaintiff voluntarily dismissed the governmental entity that employed defendant doctor, then defendant doctor asserted in his answer that the employer was a necessary party under the GTLA, the trial court should have granted plaintiff’s motion to revise the order granting voluntary dismissal pursuant to Tennessee Rule of Civil Procedure 54.02. In Ingram v. Gallagher, No. E2020-01222-COA-R3-CV (Tenn. Ct. App. July 19, 2021), plaintiff filed an HCLA suit and originally named Dr. Gallagher, Chattanooga Neurosurgery and Spine Group, Dr. Worthington, and Chattanooga-Hamilton County Hospital Authority (Erlanger) as defendants. All named defendants had received proper pre-suit notice. Shortly after filling suit, plaintiff filed a notice of voluntary dismissal without prejudice as to all defendants other than Dr. Gallagher. The trial court entered an order granting the voluntary dismissal, leaving only Dr. Gallagher as a defendant.

When Dr. Gallagher filed his answer to the complaint, he included as a defense “that he was an employee of a governmental entity, Erlanger, and that entity had not been included as a party to the action.” Plaintiff then filed a motion to alter or amend the order of voluntary dismissal, “seeking to set aside the dismissal of Erlanger as a defendant to this action.” Plaintiff cited Rules 54 and 60 in his motion, and he stated that the Erlanger was dismissed inadvertently, as “he was unsure whether Dr. Gallagher was employed by Erlanger because Dr. Gallagher was also listed as being employed by the neurology group.”

The trial court denied plaintiff’s motion to alter or amend the order of voluntary dismissal, and also denied his motion to amend his complaint. Although a later amendment to the complaint was allowed, which added Erlanger as a defendant again, Erlanger was ultimately successfully granted dismissal, and Dr. Gallagher was granted summary judgment on the basis that Erlanger was a required party under the GTLA. This appeal followed, wherein the Court of Appeals ruled that plaintiff’s motion to revise the voluntary dismissal should have been granted.

August 9, 2021

Finding of conversion and fraudulent concealment affirmed where brother signed sister’s name on check

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

Where plaintiff’s brother surrendered an annuity fund, signed plaintiff’s name on the check from the fund, and deposited the funds in his own account, all without plaintiff’s consent or knowledge, the trial court’s verdict that defendant brother was liable for conversion was affirmed, as was the finding that the statute of limitations was tolled by defendant’s fraudulent concealment. In Pomeroy v. McGinnis, No. E2020-00960-COA-R3-CV (Tenn. Ct. App. July 16, 2021), plaintiff and defendant were brother and sister. When their mother sold her house and moved in with defendant, the proceeds from the sale were used to purchase an annuity. Plaintiff and defendant were named as co-owners and beneficiaries of the annuity, with the mother named as the annuitant (although the annuity never produced an income stream). The trial court found, based on the testimony of the parties, that the purpose of the annuity was to ensure that the mother would eventually qualify for Medicaid benefits.

In 2012, defendant submitted a form surrendering the annuity, and a check was made payable to plaintiff and defendant. Defendant signed both his own name and plaintiff’s name on the check, then deposited the proceeds into a joint account he shared with his then wife. When defendant and his wife were later divorcing in 2019, the annuity came to light, and the wife informed plaintiff that she had seen a check that appeared to have been endorsed by someone else on her behalf. Plaintiff alleged that she had no knowledge of the annuity, the surrender, or the check until these divorce proceedings in 2019, and accordingly filed this suit for conversion against defendant.

August 2, 2021

Claims of Recklessness and Gross Negligence May Proceed Under Tennessee Governmental Tort Liability Act

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

The Tennessee Court of Appeals has ruled plaintiffs can pursue claims based on recklessness and gross negligence under the GTLA.

In Lawson v. Hawkins County, TN, No. E2020-01529-COA-R3-CV (Tenn. Ct. App. July 14, 2021), plaintiffs filed suit based on the death of decedent in a fatal one-car accident. According to the complaint, decedent was killed when he was “rounding a switchback curve on the mountain when, at 1:45 a.m., he drove into a chasm where Highway 70 had been.” Plaintiffs asserted that another motorist had called 911 at 12:58 a.m. to report that trees were down in a mudslide and that “if someone’s going up the mountain…they’re going to go off the road.” The 911 dispatcher sent the call to Officer Godsey, who arrived at the scene at 1:13 a.m., 30 minutes before the accident. He found a significant mudslide, including a power pole sliding down the mountain. At that time, Officer Godsey and a 911 operator “casually discussed the situation…[and] no action was taken then to shut down the highway or undertake any other preventative measures.” Multiple other calls were made between 911, various government agencies, and the electric company, although the director of the Emergency Management Agency did not arrive on the scene until 3:07 a.m. At 1:46 a.m., Officer Godsey called 911 to report that a vehicle had “hit a rock embankment and flipped over multiple times down the mountain,” and only after this “did any official consider closing the highway.” Notably, a motorist traveling behind decedent was injured when he also drove into the chasm.

In their complaint, plaintiffs asserted that decedent’s death was caused by “Defendants’ gross negligence, recklessness, and failure to take immediate and direct action in response to the substantial risk of catastrophic injury and/or death due to the collapse of Highway 70 on Clinch Mountain.” Defendants all filed motions for judgment on the pleadings, which the trial court granted, ruling that “reckless conduct just cannot move forward under the GTLA,” and that the claims for ordinary negligence were barred by the public duty doctrine. On appeal, dismissal was reversed.

July 27, 2021

Defendant doctor can be compelled to testify regarding standard of care of co-defendant nurse he supervises; Minor on Tenncare Has Right to Sue for Medical Expenses

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

Where defendant doctor was the supervising physician for defendant nurse midwife, the Court of Appeals ruled that he could be compelled to testify regarding his “expert opinion about the care and treatment provided by” the nurse. And, perhaps more importantly, the court also ruled that a minor on TennCare has a right to recover medical expenses. Also discussed: what changes to testimony can be made on an errata sheet.

In Borngne v. Chattanooga-Hamilton County Hospital Authority, No. E2020-00158-COA-R3-CV (Tenn. Ct. App. July 1, 2021), plaintiff mother brought this HCLA suit based on injuries to her minor daughter during birth. Plaintiff, who was full term in her pregnancy, was admitted to the hospital and labor was induced. Plaintiff was at risk for preeclampsia, and her labor was managed by defendant nurse-midwife Mercer. Plaintiff pushed for one hour and forty-eight minutes, but the baby made no progress and the fetal heart monitoring strip showed concerning signs. Nurse Mercer called her supervisor defendant Dr. Seeber, who arrived 45 minutes later and ordered a c-section be performed as soon as possible. When plaintiff child was born, she was not breathing and was diagnosed with permanent brain damage due to lack of oxygen, as well as “severely debilitating injuries.”

Plaintiff filed this suit, naming several parties as defendants. Before trial, Dr. Seeber moved for summary judgment on the claims of direct negligence against him, which the trial court granted, meaning the only claims remaining against him were those of vicarious lability for the alleged negligence of Nurse Mercer. The case was eventually tried before a jury, and the jury returned a verdict for defendants. The trial court denied plaintiff’s motion for a new trial, and plaintiff then filed this appeal.

July 23, 2021

Denial of Tennessee uninsured motorist coverage affirmed.

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

Where plaintiff sought to recover against her car insurance company pursuant to uninsured motorist coverage after being in a car accident with an uninsured driver, the trial court’s ruling that plaintiff’s “non-owner” policy did not cover the accident because the car she was driving was “furnished or available for her regular use” was affirmed.

In Medders v. Newby, No. M2020-01094-COA-R3-CV (Tenn. Ct. App. July 6, 2021), plaintiff was driving a Jetta when she was struck by another car. Neither the owner nor the driver of the other car had insurance, so plaintiff served her insurance company in an attempt to recover under uninsured motorist coverage.

Plaintiff did not own the Jetta she was driving at the time of the accident. Plaintiff was engaged to Samuel Todd Tinnin, who worked for a used car company. Mr. Tinnin had his employer purchase the Jetta at an auction in June 2016, and he then bought the car from the employer on July 5, 2016. The accident occurred on July 11, and Plaintiff and Mr. Tinnin were married on July 12, 2016. On that same day, a title to the Jetta was issued in Mr. Tinnin’s name. In his deposition, Mr. Tinnin stated that he bought the car for plaintiff, he intended it to be a wedding present for plaintiff, and that he purchased it for her personal use. Mr. Tinnin changed his testimony at trial and stated that he bought the car with the intention of flipping it, but the trial court did not credit this testimony. Plaintiff began driving the car on July 5.

July 20, 2021

Jury verdict affirmed where jury believed defendant’s account of car accident.

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

Where plaintiff and defendant offered conflicting testimony regarding what caused a car accident, and the jury credited defendant’s testimony and found defendant not at fault, the verdict was affirmed. In Justice v. Hyatt, No. M2019-02105-COA-R3-CV (Tenn. Ct. App. June 30, 2021), plaintiff was driving his truck with his friend in the passenger seat while looking at investment properties. While passing through a four-way stop in Pulaski, plaintiff’s truck and defendant’s SUV collided.

Plaintiff and defendant offered contradictory testimony regarding what caused the accident. Plaintiff stated that he stopped at the stop sign, looked both ways, and did not see defendant approaching. He said that when he was halfway through the intersection, defendant’s vehicle approached to his right, slowed down, then sped up and hit his truck. Plaintiff stated that after the accident, he went to check on defendant and she “freely admitted liability for the accident,” stating that she was distracted by looking at a nearby house. Plaintiff’s passenger corroborated this testimony.