Day on Torts

September 12, 2019

No Employer Liability When Employee Had Car Accident After Work

When a woman had left work early and was on a completely personal errand at the time she caused an automobile accident, her employer could not be held liable for her actions.

In Gunter v. Estate of Armstrong, No. E2018-01473-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2019), plaintiff sued the employer of Jamie Armstrong after Armstrong’s vehicle crossed the centerline of a road and caused a car accident, injuring plaintiff. Just before the accident, Armstrong had been working a shift for defendant employer as an in-home caretaker. Armstrong’s replacement showed up early, and Armstrong decided to leave her shift thirty minutes before it ended. This was apparently common practice, although she could technically be called back into work during the remaining thirty minutes. When Armstrong left work, she decided to go get her male friend coffee, and the accident occurred while she was en route to this personal errand.

When Armstrong had been hired, defendant employer had run a drug screen and a TBI background check, both of which came back clear. Defendant did not know that Armstrong had any issues with prescription drug use. On the morning of the accident, the employee who relieved Armstrong said that she seemed very tired and offered to drive her home, but did not believe that she was under the influence. Continue reading

September 11, 2019

Payments to Professionals Who Were Fact Witnesses For Case and Discovery Preparation

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

The Florida Supreme Court ruled that it is appropriate for a lawyer to pay professionals who were fact witnesses in a commercial litigation controversy for their assistance directly related to case and discovery preparation.

In Trial Practices, Inc. v. Hahn, Loeser & Parks, LLC, the court addressed the issue of whether the disciplinary rules in effect at the time of the events permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation that is not directly related to the witness preparing for, attending, or testifying at proceedings. The answer: no – a party may pay only for assistance directly related to the witness preparing for, attending, or testifying at proceedings.

Thus, it was appropriate to compensation the lawyers and accountants involved (who were fact witnesses) for time invested by them in responding to discovery, deposition preparation, etc. but not time in reviewing motions.

September 9, 2019

No Motion for New Trial? Issues Waived.

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

Where plaintiffs failed to file any post-trial motions, most of the issues they tried to raise on appeal were waived.

In Smith v. Benihana National Corp., No. W2018-00992-COA-R3-CV (Tenn. Ct. App. Aug. 9, 2019), plaintiffs filed suit on behalf of decedent’s family members after decedent died while dining at a Benihana restaurant. Plaintiffs essentially alleged that defendant knew that decedent was allergic to seafood, and that they were negligent in preparing his food and allowing seafood particles to be present and/or in allowing him to inhale seafood particles through steam at the restaurant.

This case had a long procedural history, but it was finally tried in front of a jury who returned a verdict for defendant, finding that the restaurant was not liable for decedent’s death. Plaintiffs did not file any post-trial motions, but did appeal the case.

September 5, 2019

Claims Commissioner’s Ruling Affirmed in Battle of the Experts Wrongful Death Case

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

Where a Claims Commissioner credited the testimony of defendant’s expert over plaintiffs’ expert in a wrongful death case, the Court of Appeals affirmed the ruling.

In Jones v. State of Tennessee, No. M2017-02198-COA-R3-CV (Tenn. Ct. App. July 24, 2019), plaintiffs’ son was a football player at Tennessee State University (TSU). While running a drill at practice one day, the son collapsed after suffering a sudden cardiac arrest. Two trainers rushed to respond, but they did not immediately recognize the situation as a cardiac arrest. The trainers called 911, and while on the phone, the son had a seizure and stopped breathing. At that time, the trainers began CPR and sent for an AED that was stored in the trainers’ van. The AED was never used, as the paramedics arrived before it was retrieved. The son was not able to be revived and was pronounced dead at the hospital. The autopsy listed his cause of death as “a fatal arrhythmia of his heart due to scar tissue,” and the report noted that “his heart’s right atrium and ventricle were enlarged” and that there were “extensive amounts of scar tissue throughout the left and right ventricles.”

September 4, 2019

Product Liability and the Duty to Warn (And More)

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

In an asbestos case, a balancing test should have been used to determine whether manufacturers “had a duty to warn about the post-sale integration of asbestos-containing products manufactured and sold by others.” Further, expert testimony regarding the effects of asbestos exposure on a plaintiff did not have to be based on “firsthand knowledge.”

Coffman v. Armstrong International, Inc., No. E2017-01985-COA-R3-CV, No. E2017-02389-COA-R3-CV, No. E2017-00062-COA-R3-CV through E2017-00067-COA-R3-CV, No. E2017-00069-COA-R3-CV, No. E2017-00071-COA-R3-CV, No. E2017-00075-COA-R3-CV, No. E2017-00078-COA-R3-CV, No. E2017-00995-COA-R3-CV (Tenn. Ct. App. July 22, 2019), was a very long, detailed opinion regarding asbestos-related products liability claims made by plaintiff against many defendants. The trial court had granted summary judgment to defendants on all claims based on a four-year statute of repose, a ten-year statute of repose, and plaintiff’s failure to show causation, but the Court of Appeals vacated the judgments, finding that there were genuine issues of material fact as to all plaintiff’s claims. Continue reading

August 30, 2019

Nuisance Can Occur on Property Owned by Neither Plaintiff Nor Defendant

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

A defendant can be liable for nuisance damages even when the nuisance occurred on property that neither plaintiff nor defendant owned.

In Ryan v. Soucie, No. E2018-01121-COA-R3-CV (Tenn. Ct. App. July 18, 2019), plaintiff filed a claim for nuisance and intentional interference with business relationships after defendant blocked a right-of-way plaintiff used to access his business. Plaintiff operated a business on property that had been rezoned from residential to commercial in 1995, and defendant owned a home on property nearby. Plaintiff informed defendant that he operated a heat and air business on his property, and that he used a right-of-way over state-owned property to provide access to his supplier and his waste management company. Believing that the property was all zoned as residential, defendant impeded plaintiff’s use of the right-of-way by planting trees on it and parking a trailer in front of the gate to plaintiff’s property.

The trial court found for plaintiff on both claims and awarded him over $14,000 in damages, and the Court of Appeals affirmed.

August 26, 2019

Defective Pre-Suit Notice In Case 1 Bars Use of Savings Statute in Case 2

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

In order to take advantage of the 120-day extension of the Tennessee HCLA provided by giving pre-suit notice, a plaintiff must have provided a HIPAA-compliant medical authorization with the notice.

The case of Webb v. AMISUB (SFH) Inc., No. W2017-02539-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), concerned whether a re-filed healthcare liability claim that was filed in reliance on the savings statute was timely, with the Court of Appeals ultimately affirming dismissal of the case. The alleged medical negligence took place on July 26, 2009, and plaintiffs initially gave pre-suit notice on July 21, 2010. That notice included purported HIPAA releases, but “the portion of the forms designating to whom records may be released was left blank.” On September 23, 2010, plaintiffs filed their initial lawsuit, naming as defendants the hospital, a doctor, and four nurses. The doctor and nurses filed a motion for summary judgment, arguing that plaintiffs’ HIPAA authorizations were insufficient, and that they could thus not take advantage of the 120-day extension under the HCLA and the suit was barred by the one-year statute of limitations. The trial court agreed, and after an interlocutory appeal, plaintiffs voluntarily dismissed their claim against the hospital.

August 15, 2019

Neurosurgery Consultant Not Qualified As Expert Against Urgent Care Center Nurses or Physician

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

Where plaintiff could only show that his expert in an HCLA case was a neurosurgeon consultant during the year prior to the incident, yet the alleged negligence was committed by a medical assistant and licensed practical nurse (LPN) in an urgent care clinic, plaintiff’s expert was not qualified to testify and summary judgment was affirmed.

In Estate of Shelton v. Greeneville Urgent Care and Occupational Medicine Clinic, No. E2018-00862-COA-R3-CV (Tenn. Ct. App. June 24, 2019), plaintiff had gone to defendant urgent care clinic seeking pain medication. A medical assistant there asked him to get on the examination table. According to plaintiff, he told the assistant that he could not get onto the table, but she insisted, and while he was using a stool to get up, the “stool slipped or moved causing Plaintiff to lose his balance and fall.” Though the severity of the fall was disputed and there was no fall documented in plaintiff’s file, plaintiff was seen by a nurse practitioner who arranged for him to be x-rayed at the adjacent hospital. He was sent home after the x-ray, despite his complaints of pain, but was called the next day and told to return to the hospital for treatment for a broken back. Plaintiff eventually had surgery and physical therapy.

Plaintiff filed an HCLA claim against the clinic and the hospital, alleging that the stool was dangerous and that the clinic staff negligently insisted that he use it, and that “the Hospital failed to promptly diagnose and treat his injuries.” Plaintiff identified Dr. Edward Kaplan as an expert, who was a neurosurgeon consultant, and defendant filed a motion for summary judgment, arguing that plaintiff’s expert should be disqualified. The trial court agreed, granting summary judgment, and the Court of Appeals affirmed.

August 13, 2019

Suicide and Foreseeability

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

Where a defendant (who happened to by a psychiatrist) knew of decedent’s past suicide attempt, knew he had just ended his relationship with her, and let the decedent stay in his home alone with an unsecured gun, the Tennessee Supreme Court reinstated the trial court’s grant of summary judgment on a negligence case against defendant related to decedent’s suicide, holding that the “suicide constitutes a superseding intervening event that breaks the chain of proximate causation.”

In Cotten v. Wilson, No. M2016-02402-SC-R11-CV (Tenn. June 19, 2019), the personal representative of decedent’s estate brought suit against defendant for negligence, seeking to “hold the defendant liable for negligently facilitating the decedent’s suicide.” Decedent was married and had a son when she met and began an affair with defendant. Decedent was a nurse at Skyline Hospital, and defendant was a psychiatrist there. Decedent divorced her husband in 2012, but she retained equal co-parenting time of her son. Two years after beginning the relationship, in October 2013, decedent moved in with defendant, at which time defendant “noticed that [she] was having frequent crying spells and seemed to be struggling with eviction, job loss, and her new job not working out.” Defendant stated that decedent was “not as energetic and motivated as she once was, and on certain days she did not take care of herself.”

August 12, 2019

Legal Malpractice Case Dismissed – No Causation As A Matter of Law

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

Where a legal malpractice plaintiff could not “prove that he would have obtained relief in the underlying lawsuit but for the attorney’s malpractice,” summary judgment was affirmed.

In Marble v. Underwood, No. M2017-02040-COA-R3-CV (Tenn. Ct. App. June 24, 2019), plaintiff filed a legal malpractice action against the attorney who had initially been appointed to represent him in a case with the Department of Children’s Services (“DCS”) regarding the custody of his minor child. While defendant attorney was representing him, the plaintiff/father agreed to two different parenting plans with many requirements, which were eventually ratified by the trial court. During the time father was represented by defendant, DCS filed a dependency and neglect petition as to the minor. Defendant attorney “advised Father to stipulate that the Child was dependent and neglected,” father did so, and the “child was adjudicated as dependent and neglected.”

After this, father retained different counsel. He appealed the dependent and neglected finding to circuit court, and after a somewhat convoluted procedural process, “the trial court ultimately ruled that the Child was dependent and neglected as a result of Father’s inability to care for her and based upon his severe abuse for his knowing failure to protect her.” The ruling was affirmed on appeal.