Day on Torts

January 6, 2020

Trial court erred by excluding expert testimony in premises liability case

Where a trial court did not undergo the required analysis under Tennessee Rules of Evidence 702 and 703 before deciding to exclude plaintiff’s expert witness testimony in a premises liability case, summary judgment for defendant was vacated and the case was remanded.

In Linkous v. Tiki Club, Inc., No. E2019-00357-COA-R3-CV (Tenn. Ct. App. Nov. 22, 2019), plaintiff went to defendant restaurant/bar with his friends. While there, he went to the bathroom, which he had done numerous times on previous visits. On this particular occasion, it had been drizzling outside. The bathroom at defendant restaurant was “two portable restrooms that were located approximately three feet above the outdoor level of a floating dock and were accessible by metal stairs.” Defendant had purchased the bathrooms from another company and had self-installed the units. Plaintiff alleged that as he exited the bathroom on the night in question, “he slipped on the first step and fell several feet, sustaining multiple injuries.”

Plaintiff brought this premises liability suit, and defendant filed a motion for summary judgment asserting that it had no actual or constructive notice of the allegedly dangerous condition. Defendant asserted that any building codes would not have applied to the restroom structure, and that even if they did, they would only impose a duty on the company that manufactured the portable restroom. Defendant further alleged that it had never received any complaints about the bathroom structure before this incident.

January 2, 2020

Litigation Privilege Defeats Defamation Claim.

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

In a Tennessee defamation case, statements made in an email regarding a deposition in a federal lawsuit fell under the litigation privilege and dismissal was affirmed.

In Kilgore v. State of Tennessee, No. E2018-01790-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2019), plaintiff had been involved in a previous federal lawsuit. In the federal case, plaintiff, who owned a towing service, had brought an action against certain highway patrol officers. During that case, the officers were represented by two attorneys, Ms. Jordan and Ms. Lyford. Shortly before the scheduled deposition of a witness, the witness’s son’s business caught fire. The day before the deposition, Ms. Jordan sent an email to plaintiff’s counsel in the federal case stating that one of the co-plaintiff’s emissaries had told the witness to “watch out” and that “the timing [did] not seem to be coincidental.” The email stated that the incident would be fully investigated and that witness intimidation was a crime, and also stated that future depositions would be held at secure locations with metal detectors. Later that day, Ms. Lyford sent an email explaining that she was attempting to locate a secure location for the deposition the following day.

December 21, 2019

North Carolina Adopts New Case Citation Format

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

North Carolina has come into the late 20th century by adopting a legal citation system that makes sense for the lawyers of today – and the public.

The state Supreme Court adopted a new format for case citations, the reference that tells the public how to find a specific court opinion. The new format adds a universal pinpoint citation with paragraph numbering so that for parallel citations opinions can be uniformly cited across different research platforms.

According to the Court, “the new citation format will include both a reference to the hardbound case reports and the new universal reference. Beginning January 1, 2021, each paragraph in a published opinion will be numbered so that particular sections can be referenced without a traditional page number. References to paragraph numbers will allow readers to more quickly and accurately identify source material in both electronic and hard copy formats.”

December 20, 2019

Motion for Substitution Needed After Death of Plaintiff

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

Where a plaintiff filed a Tennessee health care liability (medical malpractice) action and died of unrelated causes while the suit was pending, the cause of action did not automatically pass to his wife. Instead, the suit was “eligible to be revived” and a motion for substitution of party should have been filed within 90 days of the filing of the suggestion of death pursuant to Rule 25.01.

In Joshlin v. Halford, No. W2018-02290-COA-R9-CV (Tenn. Ct. App. Nov. 6, 2019), plaintiff filed a medical malpractice suit against defendants, and his wife was a co-plaintiff asserting loss of consortium claims. While the suit was pending, plaintiff died from causes unrelated to the alleged malpractice. In March 2014, plaintiffs’ counsel filed a notice of death in the HCLA suit, and an estate was opened for decedent in May 2014. In October 2014 defense counsel sent plaintiff a letter stating that “a suggestion of death and a new plaintiff” were needed, but plaintiff responded by sending a copy of the notice of death previously filed.

In June and July 2015, defendants filed motions to dismiss based on plaintiffs’ “failure to timely substitute a proper party for [decedent].” The trial court denied the motion, ruling that the cause of action automatically passed to the wife, and that since she was already a plaintiff, there was no need to do a party substitution. The Court of Appeals reversed this decision.

December 18, 2019

Fair Report Privilege Did Not Apply to Private Conversation in Defamation Case

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

The Tennessee Supreme Court recently affirmed that the fair report privilege does not apply to “a nonpublic, one-on-one conversation between a newspaper reporter and a detective of the county sheriff’s department, who also served as the public information officer for the sheriff’s department.” In Burke v. Sparta Newspapers, Inc., No. M2016-01065-SC-R11-CV (Tenn. Dec. 5, 2019), plaintiff filed a defamation suit against a newspaper that ran an article stating that he had “misappropriated” money from a football league fundraiser. Plaintiff took issue with several statements from the story, which quoted as its source “the case’s lead investigator, Detective Chris Isom, of the White County Sheriff’s Office[.]”

Defendant newspaper filed a motion for summary judgment “asserting immunity from liability based on the fair report privilege.” Defendant argued that “the privilege applied because the article was a fair and accurate report of the statements Detective Isom made to [the reporter] in his official capacity both as lead detective and as public information officer for the White County Sheriff’s Department.” Defendant acknowledged that the statements occurred during a private, one-on-one conversation, but urged that the fair report privilege nevertheless applied.

December 16, 2019

Car Accident Suit Against Deceased Defendant Dismissed as Untimely

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

Where a tortfeasor died before suit was filed and “no personal representive was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff’s cause of action,” dismissal of the Tennessee personal injury suit was affirmed.

In Khah v. Capley, No. M2018-02189-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2019), plaintiff was injured in a car accident allegedly caused by defendant on May 12, 2016. Defendant died 18 days after the accident, but on May 11, 2017, plaintiff filed this suit in the general sessions court, being unaware of defendant’s death. The sheriff’s office returned the civil warrant with a note saying “per Father, Jonathan Capley is deceased as of last year.” In March 2018, plaintiff had an alias warrant issued, which was returned noting that defendant was “deceased as of last May 2016.”

December 11, 2019

Self-Driving Truck Goes Cross Country

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

An autonomous tractor-trailer recently completed a cross-country trip carrying a load of butter.

Although autonomous truck and car technology is not yet for prime time, the tests continue.

The impact on the trucking industry will be significant. Personal costs are one-third of the marginal cost of running a truck, even more than the cost of fuel. Eliminate the driver? Costs go down and the potential for profit increases.

December 9, 2019

Failure to Name Correct Defendant Fatal to Claim

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

Where plaintiff brought suit against a trucking company based on injuries he received while operating a forklift inside a trailer at the distribution center at which he was employed, summary judgment was appropriate where the defendant trucking company produced records showing that the truck plaintiff was injured in did not belong to it.

In Hashi v. Parkway Xpress, LLC, No. M2018-01469-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2019), plaintiff was a forklift operator employed by a distribution center. While plaintiff was operating a forklift inside the trailer of a tractor-trailer truck, the truck suddenly moved, causing plaintiff to fall to the ground. Plaintiff brought this suit for the injuries he sustained, naming as defendants the trucking company that he alleged owned the truck in question, the freight broker, and the unnamed truck driver.

The trial court granted summary judgment to both the trucking company and the freight broker, and the Court of Appeals affirmed.

Defendant trucking company “argued that summary judgment was appropriate because it was not the owner or operator of the tractor-trailer in which [plaintiff] was working when he was injured.” Defendant trucking company submitted an affidavit from its president stating that the driver in question was not their employee, and that the company’s truck was at the distribution center from 6:00 am to 7:08 am, while the injury occurred at 1:20 in the afternoon. The trucking company also submitted a bill of lading to support its alleged time-frame, as well as incident reports identifying the driver of the truck causing the injury. Based on this evidence the trial court granted summary judgment.

November 25, 2019

Injuried Party Need Not Be Included in Declaratory Judgment Action Between Defendant and Defendant’s Insurer

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

An injured person who had sued an insured but did not yet have a judgment against the insured was not an indispensable party in a declaratory action between the insurance company and the insured regarding coverage of the accident.

In Tennessee Farmers Mutual Insurance Company v. DeBruce, No. E2017-02078-SC-R11-CV (Tenn. Ct. App. Oct. 16, 209), Christina Wright (“claimant”) had been injured when her vehicle was rear-ended by a car driven by Brandon DeBruce (“insured”). The claimant sued the insured, but the insured failed to inform his insurance company of the suit, which was a requirement of his policy. According to the insurance company, the insured also failed to cooperate in the investigation of potential claims.

Based on his failure to cooperate, the insurance company filed a declaratory judgment action seeking a declaration that it “did not have to provide a defense to DeBruce in the personal injury suit or indemnify him for any damages awarded to Wright.” The claimant was not a party to this suit. The insured failed to respond to the complaint, and the trial court granted a default judgment declaring that the insurance company was not obligation to defend or indemnify the insured in connection with the accident.

November 20, 2019

Utilities Commission Had No Jurisdiction Over Negligence Suit

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

When a plaintiff brought a negligence action against two public utility companies for damages allegedly done to her real property when the gas was turned off and waters pipes subsequently froze and burst, the trial court erred by holding that the Tennessee Public Utility Commission (TPUC) had exclusive jurisdiction of the claim. In Jetter v. Piedmont Natural Gas Company, Inc., No. M2019-00206-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2019), plaintiff owned an unoccupied residence which was “damaged when frozen water pipes ruptured during the winter after gas service to the property was terminated.” Plaintiff filed this negligence suit, alleging that defendant public utility companies failed to provide her with proper notice of their actions and failed to “take proper steps to reconnect the service.” In her complaint, plaintiff cited certain TPUC rules that were allegedly violated by defendants.

Defendants filed a motion to dismiss, arguing that the TPUC “had exclusive and original jurisdiction over the claims at issue.” According to defendants, the TPUC rules cited by plaintiff in her complaint could only be enforced by the TPUC. Defendants also argued that the administrative remedy set up by the TPUC rules was not exhausted by plaintiff before she filed this suit.

The trial court agreed with defendant and dismissed the case, but the Court of Appeals reversed. Continue reading