Day on Torts

February 4, 2020

Criminal Acts of Third Persons – Injured Party Loses Claim Against Store

Where an independent contractor working at a convenience store had been told that the store had been robbed before, neither the landlord nor the operator of the store were liable when he was injured in an armed robbery.

In Priestas v. Kia Properties, LLC, NO. W.2019-00728-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2019), plaintiff worked as an independent contractor for a convenience store run by one defendant, which was in a property owned by the other defendant. Plaintiff was hired when he stopped at the store one night upon seeing multiple police cars there, and was told there had just been a robbery. Plaintiff was hired to work “a few hours a day to perform tasks such as stocking the store’s coolers and cleaning up inside and outside the store.” The owner told plaintiff that the store “had been burglarized/robbed on several prior occasions,” and plaintiff informed the owner that he would carry a concealed firearm when working. Approximately two months after he began working, plaintiff was shot during a robbery. Plaintiff was attempting to wrestle a gun from an armed robber when the shooting occurred.

February 3, 2020

Day on Torts Nugget: Discovery Rule May be Used to Add Vicarious Liability Defendant

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

Occasionally, a plaintiff does not learn until after more than one-year after an event that the person who caused plaintiff’s injuries and losses was working in the course and scope of employment at the time of the incident. How can a plaintiff add the employer as a party defendant and avoid a statute of limitations defense?

First, persuade the lawyer for the individual defendant to allege the fault of the nonparty employer. The decision in Browder v. Morris, 975 S.W.2d 308 (Tenn. 1998) held that Tenn.Code Ann. Sec. 20-1-119 applied to such an allegation and thus a plaintiff could take advantage of the statute’s 90-day window to add the employer as a party defendant and avoid a statute of limitations defense.

Second, move to amend the complaint to add the employer to the case and argue that suit was timely filed because of application of the discovery rule. The rule does not just apply to health care liability actions – -the Tennessee Supreme Court extended the discovery rule to “all tort actions predicated on negligence, strict liability, or misrepresentation.” Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 904 (Tenn. Ct. App. 1992) (citation omitted).

January 28, 2020

Legal malpractice claim failed based on statute of limitations.

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

Where plaintiffs knew that a Tennessee judgment had to be renewed when it was ten years old, had not spoken with an attorney at the firm who previously represented them, and had not received any bills or communications about a renewal of the judgment, plaintiffs’ legal malpractice claim filed three years after the judgments needed to be renewed was time-barred.

In Rozen v. Wolff Ardis, P.C., No. W2019-00396-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2019), plaintiffs had been represented by defendant law firm in a 2003 case. In that case, plaintiffs were awarded judgments against two defendants who stole jewelry from plaintiffs’ business, but because those defendants were sent to prison, the judgments were not collected on at the time. When one of the two defendants filed for bankruptcy in 2006, defendant law firm represented plaintiffs to ensure that the judgment was not discharged. After that representation in 2006, plaintiffs “received a letter from Wolff Ardis stating that ‘this matter is completed’ and requesting that [plaintiffs] pay for the legal services performed for them.”

January 27, 2020

Day on Torts Nugget – Amending A Complaint After A Defendant Alleges Fault of a Nonparty

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

A defendant sued within the statute of limitations states in its answer or amended answer that a person not a party to the lawsuit negligently contributed to cause plaintiff’s injuries. Plaintiff decides to sue the nonparty, and rely on Tenn. Code Ann. §20-1-119 to avoid a statute of limitations defense.

How does a plaintiff add the nonparty as a party defendant?

The answer depends on whether the case is in state court or federal court. In state court, plaintiff has an absolute right to amend under Tenn. R. Civ. Pro. 15.01. In relevant part, it provides ” [f]or amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required.”

January 23, 2020

Nursing Home Agreement to Arbitrate – Who Can Bind Patient?

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

Where a nursing home patient’s daughter executed the admission paperwork and arbitration agreement, but the power of attorney the patient had previously executed in favor of her daughter specifically excluded the power to make health care decisions, the arbitration agreement was not enforceable.

In Jones v. Allenbrooke Nursing and Rehabilitation Center LLC, No. W2019-00448-COA-R3-CV (Tenn. Ct. App. Dec. 16, 2019), plaintiff’s mother executed a power of attorney (“POA”) in favor of her daughter in 2007. The POA granted plaintiff power to handle certain property and business transactions, but it specifically stated: “This document does not authorize anyone to make medical or other health care decisions for you.” In 2013, the mother was suffering from dementia and was incompetent, so plaintiff executed nursing home admission documents in connection with having the mother admitted to defendant nursing home. Included in these documents was an arbitration agreement.

January 22, 2020

Defense Claims Counsel Interfered With Ex Parte Interviews of Health Care Providers

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

An order awarding sanctions to defendants after plaintiffs sent a letter to healthcare providers allegedly interfering with ex parte interviews between defense counsel and the deceased’s patients former healthcare providers was not appealable as a final order.

In Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019), plaintiffs brought an HCLA suit against defendants based on the care provided to a now-deceased patient. Defendants “filed a motion for a qualified protective order allowing them to conduct ex parte interviews with a list of [the deceased’s] treating healthcare providers pursuant to Tenn. Code Ann. § 29-26-121(f).” The trial court granted the motion and informed plaintiffs’ counsel that he could “contact the doctors and explain[] to them that this order is voluntary,” but that he could not “contact them and tell them not to participate” or otherwise “interfere with the Defendants’ rights to conduct these interviews[.]”

Defendants later filed a motion for sanctions against plaintiffs “asserting that six letters sent by plaintiffs’ counsel to [the deceased’s] treating healthcare providers violated the Court’s order by attempting to keep the health care providers from taking part in the interviews.”* The trial court agreed that the letters violated the order, and it entered an order imposing sanctions against plaintiffs, including having to pay costs and expenses for defendants related to preparing for and deposing the providers. “The trial court also ordered plaintiffs’ counsel to send a retraction letter to all of the treating healthcare providers he had contacted…” Plaintiffs then sought to appeal this case under Tenn. R. App. P. 3, but the Court of Appeals determined that there was no basis for appeal under that rule.

January 21, 2020

Tennessee Tort Reform – Statutes and Case Law

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

I have been compiling the Tennessee tort reform statutes, and the court decisions interpreting them, for a decade. I recently released another edition of my book, Compendium on Tort Reform Statutes and Related Case Law, 2008-2019.

The book contain 549 pages of information helpful to tort lawyers. The best use for the book is this: when researching an unfamiliar area of Tennessee tort law, go through the Table of Contents and see if a topic listed there is potentially relevant to the issues you are researching. If so, turn to the relevant pages and to see (a) what new statutes may impact your issue; and (b) what Tennessee decisions have interpreted those statutes.

The book is only $79.00, plus sales taxes, shipping and handling. You can order it by clicking the link above.

January 21, 2020

False imprisonment statute of limitations begins to run when imprisonment ends.

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

The Tennessee Court of Appeals recently held that “the statute of limitations for false imprisonment claims does not begin to run until the imprisonment ends.”

In Lovell v. Warren County, Tennessee, No. M2019-00582-COA-R3-CV (Tenn. Ct. App. Dec. 16, 2019), plaintiff had been arrested and put in jail on August 16, 2012. Later, the charges against her were dismissed and she was released from jail on August 5, 2013. She filed this false imprisonment claim on June 6, 2014. Defendant filed a motion for summary judgment based on the one-year statute of limitations, which the trial court granted, but the Court of Appeals reversed.

There was no dispute that the statute of limitations for false imprisonment was one year, but the parties disagreed over when the one year time period began to run. Defendant argued that the cause of action accrued when plaintiff was first put in jail, but plaintiff asserted that the limitations period did not begin until her release.

January 20, 2020

Day on Torts Nugget – Amending Complaint While a Motion to Dismiss is Pending

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

Does a plaintiff have the right to amend a complaint while a motion to dismiss is pending and no answer has been filed?

Yes. Rule 15.01 of the Tennessee Rules of Civil Procedure provides a party may amend its pleading “once as a matter of course at any time before a responsive pleading is served[.]” A motion to dismiss is not a responsive pleading and under Rule 15.01 the plaintiff has an absolute right to file an amended complaint. Grose v. Kustoff, 2017-01984-COA-R3-CV, 2019 WL 244469 , at * 4 (Tenn. Ct. App. Jan. 17, 2019); Mosby v. Colson, No. W2006-00490-COA-R3-CV, 2006 WL 2354763, at *12 (Tenn. Ct. App. Aug. 14, 2006) (citing Adams v. Carter County Mem’l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (noting that a motion to dismiss is not a responsive pleading for purposes of Rule 15.01). No motion to amend is necessary because the right to amend is granted in Rule 15.01 itself.

Indeed, some courts have held that a plaintiff who files a motion to amend under such circumstances loses the right to argue that the complaint is automatically amended by the filing of a motion and then leave of court is necessary to amend. See City of Oak Ridge v. Levitt, 493 S.W.3d 492, 497 n.3 (Tenn. Ct. App. 2015) (noting that the plaintiff chose not to take advantage of Rule 15.01 allowance of an amended pleading without leave of court); Mosley v. State, No. W2014-01307-COA-R3-CV, 2015 WL 3971883, at *5 (Tenn. Ct. App. June 30, 2015) (indicating that where a plaintiff does not take advantage of its right to amend without leave of the court, this Court cannot correct that choice on appeal).

January 19, 2020

Thoughts About the Interaction Between Subrogation and Comparative Fault

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

Those of you who are interested in the interaction between the law of comparative fault and the law of subrogation (or at least my view on how the two should interact) may wish to read “Made-Whole Made Fair: A Proposal to Modify Subrogation in Tennessee Tort Actions” published in the Belmont Law Review.

Likewise, if you are having difficulty getting to sleep, you may wish to read the same article.