Day on Torts

February 11, 2021

Summary judgment for HCLA defendants affirmed based on statute of limitations and lack of duty.

Where one defendant in an HCLA case was not the owner or operator of the facility at which plaintiff alleged he received negligent medical treatment, and that defendant did not employee, train or control the employees who allegedly provided negligent care, summary judgment for that defendant was affirmed. Further, where the other defendant was added as a party after the statute of limitations had run, summary judgment for that defendant was also affirmed. In Waller v. Varangon Corporation d/b/a Varangon Academy, No. W2019-02211-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2021), plaintiff was a resident at a juvenile treatment facility when he reported to the medical personnel at the facility that he was having stomach pain and nausea. Nurses at the facility gave plaintiff over-the-counter treatment, but his condition worsened, and plaintiff was taken to a local emergency room several days later and diagnosed with bowel obstruction, which required surgery. At the time of this incident in 2016, plaintiff was seventeen.

The facility where plaintiff had been residing was owned by Varangon Corporation (“Varangon”) and known as Varangon Academy from 2010-2013. In January 2014, Omni Visions, Inc. (“OVI”) purchased the facility and the business from Varangon, and OVI retained the trade name Varangon Academy. As part of the purchase, Varangon and OVI entered into a management services agreement whereby OVI “agreed to continue to provide residential treatment and other services to juveniles at the facility,” and Varangon agreed to license to OVI a treatment model it had developed. Varangon also agreed to make recommendations on personnel issues, but OVI “retained final decision-making authority over personnel issues.” Under the agreement, “OVI retained ultimate legal responsibility, authority, and responsibility over the rendition of all residential treatment services at the facility.”

February 9, 2021

Summary judgment for defendant overturned where plaintiff slipped in flooded restroom.

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

Where plaintiff proceeded into a public restroom after seeing water in the floor and then slipped and fell, the Court of Appeals reversed summary judgment based on a lack of duty and plaintiff’s alleged comparative fault because defendant did not meet its burden of showing it had no duty and “reasonable minds could differ as to whether [plaintiff] was presented with a reasonable alternative to using the flooded restroom in this case.”

In Vaughn v. DMC-Memphis, LLC, No. W2019-00886-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2021), plaintiff filed a premises liability case based on injuries she received when she slipped and fell on a wet restroom floor. Plaintiff had ridden the public bus to defendant medical center, and upon entering the building she urgently needed to use the restroom. Plaintiff saw that there was significant water on the restroom floor, but she proceeded to walk towards the stall. Plaintiff then slipped and fell, injuring herself, but she got up and used the restroom after her fall. It was undisputed that there was no wet floor sign in the restroom, and while plaintiff testified that she knew there was another restroom on the same floor of the building, she stated that it was “quite a ways down the hallway.”

February 8, 2021

Statute of limitations extended to two years where defendant was given traffic citation after car accident.

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

Where plaintiff’s personal injury claim was based on a Tennessee car accident for which defendant was given a traffic citation for failure to exercise due care under Tenn. Code Ann. § 55-8-136, which is a Class C misdemeanor, the statute of limitations for plaintiff’s action was extended to two years pursuant to Tenn. Code Ann. § 28-3-104(a)(2).

In Younger v. Okbahhanes, No. E2020-00429-COA-R10-CV (Tenn. Ct. App. Jan. 28, 2021), plaintiff was injured in a car accident with defendant in September 2017. A state trooper issued defendant a traffic citation listing three violations, including “failure to exercise due care, pursuant to Tennessee Code Annotated § 55-8-136.” Defendant eventually paid a fine for this citation. In April 2019, which was more than one year after the accident, plaintiff filed this personal injury action, arguing that instead of being subject to the standard one-year statute of limitations for personal injury claims, the statute of limitations for this case was extended to two years by virtue of Tenn. Code Ann. § 28-3-104(a)(2). Defendant filed a motion for summary judgment based on the statute of limitations issue, but the trial court ruled in favor of plaintiff, and the Court of Appeals affirmed.

January 29, 2021

Plaintiff’s judgment for student hit by shot put thrown by coach affirmed.

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

Where a minor student was accidentally hit in the head by a shot put thrown by his track and field coach, immunity for the school was removed under the GTLA and a judgment for plaintiff was affirmed. In Spearman v. Shelby County Board of Education, No. W2019-02050-COA-R3-CV (Tenn. Ct. App. Jan. 15, 2021), plaintiff filed suit on behalf of herself and her minor son after her son was injured at middle school track and field tryouts. The testimony showed that the student was a 12-year-old sixth-grader at the time of the incident. He had played several sports before but had never “participated in shot put and was not familiar with the event.” Marcus Mosby was the track and field coach at the school, and he was in charge of the tryout. Mr. Mosby had never competed in shot put and had not received “proper training on the safety protocols for the shot put event prior to the incident.”

During tryouts, students were taking turns throwing the shot put, which was a metal ball that weighed 8-10 pounds. At some point, Mr. Mosby decided to demonstrate the proper way to throw the shot put. He stood across from a group of students and “verbally instructed and motioned with his hands for the students to move back,” and he took a few steps away from the group. With his back turned toward the students, Mr. Mosby turned and threw the shot put towards the group. Plaintiff’s son, however, had not heard the directions to move back and was five feet closer to Mr. Mosby than the other students. According to testimony, the student was turned sideways and did not see Mr. Mosby throw the shot put. Mr. Mosby realized the student was going to be hit and yelled for him to move, but the student was struck in the side of the head with the shot put.

January 26, 2021

No relation back where car accident plaintiff named wrong driver as defendant.

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

Where a plaintiff originally named the wrong defendant in a car accident case and did not file an amended complaint naming the correct defendant until after the one-year statute of limitations had run, dismissal was affirmed. In Black v. Khel, No. W2020-00228-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2020), plaintiff and defendant were involved in a car accident on May 11, 2018. In March 2019, plaintiff was involved in a separate car accident with a driver named Taylor Antonsen. On May 8, 2019, plaintiff filed a complaint for personal injury damages from the first accident, but she failed to name defendant as a party or refer to defendant in any way. Instead, plaintiff named “Taylor Antonsen” as the opposing party and referred to Antonsen throughout the complaint. One week after filing the complaint, On May 15, 2019, plaintiff realized the mistake and filed an amended complaint naming defendant as the other driver in the accident.

Defendant received a summons for the amended complaint then filed a motion to dismiss, asserting that plaintiff’s case was barred by the one-year statute of limitations. Plaintiff argued that her amended complaint related back to the filing of her original complaint under Rule 15.03, but the trial court rejected that argument and granted defendant’s motion to dismiss. The Court of Appeals affirmed dismissal.

January 25, 2021

Manufacturer has no duty to warn regarding products it did not make, sell or distribute.

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

The Tennessee Supreme Court recently held that product liability defendants “cannot be held liable for injuries resulting from products they did not make, distribute, or sell.” In Coffman v. Armstrong International, Inc., No. E2017-01985-SC-R11-CV (Tenn. Jan. 4, 2021), plaintiff was the wife of a deceased employee of a chemical plant. The husband died after being diagnosed with mesothelioma due to asbestos exposure at work.

Plaintiff brought this products liability claim against numerous defendants, including several industrial equipment manufacturers who made and sold equipment used by the deceased husband at his job. Plaintiff claimed that while the equipment made by these defendants did not contain asbestos, the defendants knew that the equipment would have to be integrated with asbestos-containing parts in order to be repaired and maintained. Plaintiff argued that defendants were liable under the Tennessee Products Liability Act (TPLA) because “their products were unreasonably dangerous and because the Equipment Defendants failed to adequately warn users of potential asbestos exposure resulting from the post-sale integration of asbestos-containing materials manufactured and sold by others,” and that defendants “were liable under a duty-to-warn theory because it was foreseeable, and even intended, that their equipment be repaired and maintained with asbestos-containing materials.”

January 18, 2021

False imprisonment claim based on mental health hold at hospital actually fell under HCLA.

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

Although plaintiff styled his case as a false imprisonment claim based on a two-hour hold in a hospital related to a mental health evaluation, the Court of Appeals affirmed the ruling that the case actually fell within the HCLA and was thus subject to dismissal for failure to provide pre-suit notice and/or a certificate of good faith.

In Weakley v. Franklin Woods Community Hospital, No. E2020-00591-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2020), plaintiff went to the defendant hospital the day after a car accident seeking medical treatment. According to plaintiff, a “community navigator” at the hospital asked him if he had ever had suicidal thoughts, and he told her that he had experienced such thoughts twenty years earlier. Thereafter, a nurse entered plaintiff’s room and told him that “she was compelled by state law and hospital policy to administer a mental health assessment.” When she asked plaintiff if he had experienced suicidal thoughts, he said no, but she said she wanted to admit him to the hospital, which he declined. Plaintiff alleged that he was then given insulin and fluids, but when he tried to leave the hospital after treatment, “he was stopped by an unidentified nurse who stated that a hold had been placed on [plaintiff] until he spoke with a psychologist.” A physician’s assistant later came into plaintiff’s room, telling him he had been placed on a hold and was not permitted to leave until he saw a behavioral specialist. Plaintiff averred that he later told this physician’s assistant that he wished to call the police department to report a claim of false imprisonment, and that he was then allowed to leave the hospital.

January 14, 2021

Dismissal as discovery sanction affirmed.

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

Where plaintiff failed to comply with an order to supplement his discovery in a car accident case, the Tennesse Court of Appeals affirmed dismissal.

In Gordon v. Chapman, No. W2019-01655-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2020), plaintiff and defendant were involved in a car accident on the interstate. Plaintiff filed this negligence suit against the defendant, seeking damages for pain and suffering, and defendant counter-claimed alleging that plaintiff negligently caused the accident.

On April 26, 2019, the trial court held a status hearing wherein it “ordered [plaintiff] to supplement his incomplete discovery responses to [defendant].” The trial court specifically ordered the plaintiff to provide a written description of his claimed injuries and an itemization of his medical bills. On July 10^th, the defendant moved for discovery sanctions against the plaintiff, alleging that plaintiff had produced some medical bills but had not complied with the trial court’s order. At a hearing on July 26^th, the trial court entered an order stating that the plaintiff was to provide his supplemental responses by August 2^nd, and that if he failed to do so the case would be dismissed with prejudice. On August 2^nd, the trial court held a hearing where it heard from both parties, and it dismissed the plaintiff’s case. Plaintiff appealed, arguing that he supplemented his responses on August 8^th, but the Court of Appeals affirmed the dismissal.

January 13, 2021

Failure to file post-trial motion resulted in waiver of directed verdict argument on appeal.

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

Where the defendant failed to file a post-trial motion, she “waived her right to contest the trial court’s denial of her motion for a directed verdict.”

In Carman v. Kellon, No. M2019-00857-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2020), the plaintiff was seriously injured when she was jogging on the side of a road and was hit by a truck driven by the defendant son. Plaintiff and her husband brought this action against the defendant son/driver for negligence, negligence per se, and recklessness, and against his mother for vicarious liability and negligent entrustment. Though the trial court granted the mother summary judgment on the vicarious liability claim, the negligent entrustment claim proceeded to a jury trial. At the close of plaintiffs’ proof, defendants moved for a directed verdict, which the trial court denied. At the end of the trial, the jury returned a very large verdict against both defendants, finding the son 60% at fault and the mother 40% at fault. Neither the mother nor the son filed any post-trial motions.

January 12, 2021

Public Duty Doctrine did not apply in dangerous sidewalk case.

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

Where plaintiff filed a GTLA suit based on the city school system’s failure to remedy a dangerous condition on a sidewalk at its high school, the public duty doctrine did not apply and immunity was removed under the GTLA.

In Lawson v. Maryville City Schools, No. E2019-02194-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2020), the plaintiff was taking her grandson to school when she tripped and fell on a deteriorated section of sidewalk. The sidewalk was located on school property, which was owned and controlled by the defendant.

Plaintiff filed this suit under the GTLA, and defendant filed a motion to dismiss, asserting that it was “immune from suit pursuant to the public duty doctrine.” The trial court agreed, dismissing the case, but the Court of Appeals reversed the dismissal.

The Court of Appeals began its analysis by explaining that “both the GTLA and the public duty doctrine are affirmative defenses,” and that when a case potentially involves both, the Court is “to first look to the GTLA.” (internal citations omitted). If the Court determines that the GTLA “does not provide immunity, [it] may look to the general rule of immunity under the public duty doctrine.” (internal citation omitted). Continue reading