Day on Torts

August 5, 2019

No Continuance for HCLA Plaintiff Who Did Not Have Expert Affidavit After Eight Months

Where plaintiff’s expert witness in an HCLA case unexpectedly decided to no longer provide testimony soon before plaintiff’s response to a motion for summary judgment was due, and plaintiff sought to continue the motion and hold a hearing on possible witness tampering, the trial court erred by granting summary judgment to some defendants. For defendants not affected by the allegedly tampered-with witness, however, summary judgment was affirmed due to the plaintiff’s failure to obtain an expert affidavit in the eight months the case was pending.

In Stubblefield v. Morristown-Hamblen Hospital Association, No. E2017-00994-COA-R3-CV (Tenn. Ct. App. June 11, 2019), plaintiff filed an HCLA claim related to allegedly negligent post-operative care after a cardiac catheterization. Plaintiff named as defendants the hospital, the nurse who treated her overnight after her surgery, a physician group, and the physician who was first paged when a complication was discovered and who ordered treatment for plaintiff without actually going to the hospital to see her.

July 31, 2019

Lay Witness Opinion on Source of Gravel on Road Admissible

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

Lay witness testimony should have been admitted regarding the likely source of gravel on a road after road construction, and summary judgment in this case was overturned.

In Flagg v. Hudson Construction Company, No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019), plaintiff crashed his motorcycle on a recently paved section of a state highway. Plaintiff alleged that an excessive amount of loose gravel left over from the construction caused the crash, and he brought negligence suits against the construction company and the state. The trial court granted summary judgment to defendants on all claims, holding that lay witness testimony regarding the likely source of the loose gravel on the road should be excluded, but the Court of Appeals reversed.

The evidence at trial showed that defendant construction company was contracted to resurface the road, and that the process involved laying rock chips and adhesive materials on the road, “followed by a thin layer of microsurfacing for a smoother driving surface.” The company “periodically cleaned excess gravel and debris from the road throughout the paving process,” but at the end it “only cleaned those portions of the road it deemed necessary for the permanent striping to adhere properly.” The stripes were put on the road on October 16th and 17th, and a TDOT supervisor inspected the project on October 19^th. He stated that he “looked for excess gravel, overall cleanliness, and the integrity of the permanent striping,” but that he did the majority of his inspection while driving his vehicle and only stopped and got out “when he deemed it necessary.” He found no problems and notified the construction company that the work was acceptable that day.

July 30, 2019

Tennessee Law of Civil Trial (Second Edition) – 2019

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

The printer just sent word that the proof for the second edition of Tennessee Law of Civil Trial has been shipped to my Brentwood office. I intend to review the proof over the weekend and place the order next week. The books should be in-hand by mid-September.

Those of you who purchased the first edition of the book should have received a letter from me giving you a discount on the second edition if you ordered it by August 10. Those who order by that date will save over 50% of the cost of the book. Those who order the book after August 10 will pay the full retail price, $119.00 plus shipping and handling and sales tax.

The second edition includes updated case law released since the book was first published in 2014. Several chapters have been substantially rewritten and updates have been made to virtually every chapter.

July 30, 2019

Video Evidence Supports Summary Judgment In Grocery Slip and Fall Case

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

Where the evidence suggested that a small amount of clear liquid had been on the floor of a grocery store for just a short time, summary judgment for defendant in a Tennessee premises liability case was affirmed.

In Jones v. Publix Supermarket, Inc., No. M2018-01672-COA-R3-CV (Tenn. Ct. App. June 7, 2019), plaintiff was shopping in defendant grocery store. As she rounded the corner towards the seafood department, she slipped on clear liquid. She got up quickly and did not seek assistance, and she refused to fill out an incident report on the day of the accident, but she returned the next day to complete one. She subsequently filed this premises liability action. The trial court granted summary judgment for defendant, finding that plaintiff failed to prove actual or constructive notice of the allegedly dangerous condition, and the Court of Appeals affirmed.

The incident was captured by store cameras, which showed that about two minutes before plaintiff fell, a toddler was in a shopping cart in the same area and was playing with and drinking from a sippy cup. The toddler dropped the sippy cup into the wire cart two times, and defendant argued that this was the likely source of the liquid. In the two minutes between the toddler leaving the area and the plaintiff falling, the video showed several customers walking through the area with no problems, and no store employees coming nearby. During discovery, the store employee who was working in the seafood department that day stated that he was helping a customer at the counter at the time of the incident, but that he heard something happen. He went to the location of plaintiff’s fall around two minutes later, saw “a little bit of water…not a puddle” on the floor, and waited there until another employee brought paper towels to clean the liquid. He testified that prior to the fall, he had seen no liquid in the area.

July 23, 2019

Circuit Court Complaint not Transferred to Claims Commission.

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

When a case that should have been filed with the Claims Commission was filed in circuit court and did not “pertain to the negligent operation or maintenance of any motor vehicle or any other…conveyance,” the trial court could not transfer the case to the Claims Commission and dismissal was affirmed.

In Powell v. Tennessee Department of Correction, No. M2018-01677-COA-R3-CV (Tenn. Ct. App. May 6, 2019), plaintiff filed a pro se complaint in circuit court alleging that TDOC employees injured him “’by gross negligent acts or omissions within the scope of their employment’ in the handling of Plaintiff’s prison disciplinary hearing.” The trial court dismissed the case, finding that it lacked subject matter jurisdiction, and it denied plaintiff’s request to transfer the case. The Court of Appeals affirmed.

“[A]s a general rule, claims for monetary damages against the State may be heard only by the Claims Commission.” (citing Tenn. Code Ann. § 9-8-307(a)(1)). Because plaintiff’s claims did not fall into any exception to this rule, the trial court correctly ruled that it did not have subject matter jurisdiction over this case.

July 15, 2019

Recovery of Future Medical Expenses Under Tennessee Law

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

An award for future medical expenses in a personal injury claim under Tennessee law may be appropriate even where the plaintiff does not establish with “absolute certainty” that the future treatment will be pursued, as the standard for such an award is “reasonable certainty.”

In Kirby v. Memphis Light Gas & Water, No. W2017-02390-COA-R3-CV (Tenn. Ct. App. April 29, 2019), plaintiff was in a car accident with one of defendant’s drivers. After a bench trial, the judge assigned plaintiff 30% of the fault and awarded him $105,000 in damages, which included an award for future medical expenses to cover a prospective surgery. On appeal, defendant argued that the award for future medical expenses was speculative, and that plaintiff had failed to mitigate his damages by stopping treatment when he did. The Court of Appeals affirmed the damages award.

July 8, 2019

Corporations as “People:” How The Legal Fiction Arose

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

An interesting article in The Atlantic about how the law came to treat corporations as people.

An excerpt:

Somewhat unintuitively, American corporations today enjoy many of the same rights as American citizens. Both, for instance, are entitled to the freedom of speech and the freedom of religion. How exactly did corporations come to be understood as “people” bestowed with the most fundamental constitutional rights? The answer can be found in a bizarre—even farcical—series of lawsuits over 130 years ago involving a lawyer who lied to the Supreme Court, an ethically challenged justice, and one of the most powerful corporations of the day.

July 5, 2019

Pre-Suit Notice by Personal Delivery Must Actually Be Delivered to Comply with HCLA.

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

When an HCLA plaintiff decides to serve pre-suit notice via personal service, such service must actually be completed in accordance with the statute in order for the plaintiff to take advantage of the 120-day extension of the statute of limitations.

In Webb v. Magee, No. 2018-01305-COA-R3-CV (Tenn. Ct. App. April 30, 2019), plaintiffs had filed a previous healthcare liability claim under the HCLA against multiple parties, including Dr. Charles Roberson. Plaintiffs attempted to personally serve Dr. Roberson with pre-suit notice within the one-year statute of limitations, but service of the pre-suit notice was not actually completed until almost two months later. One week after Dr. Roberson received pre-suit notice, plaintiffs filed their initial suit.

June 25, 2019

Slight Raise of Pavement Along Crack in Parking Lot – Case Dismissed

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

Where a plaintiff tripped on a crack in a parking lot that was 54 feet long and resulted in a height deviation of no more than 1.5 inches, the property owner owed no duty to plaintiff and summary judgment in a premises liability case was affirmed.

In Shaw v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. M2018-01157-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), plaintiff was a school bus driver who was required to attend a training session at a local school. Plaintiff parked in a large parking lot at the school, and as she was walking to board a shuttle bus, she tripped on a crack in the pavement. The crack was 54 inches long and “amounted to a deviation of up to one and a half inches.”

Plaintiff filed a premises liability claim, alleging that “the parking lot existed in a state of disrepair and had been in such a state for a sufficient length of time that Metro knew or should have known of its dangerous condition.” Defendant filed a motion for summary judgment, and plaintiff filed a motion to amend and add allegations of negligence per se. The trial court granted summary judgment, and on a first appeal, the Court of Appeals ruled that the trial court improperly “neither ruled upon the pending motion to amend nor undertook analysis…in order to determine whether the sought amendment should have been granted pursuant to Tennessee Rule of Civil Procedure 15.01.” The case was accordingly remanded. On remand, the trial court granted the motion to amend and add negligence per se claims, but then again granted summary judgment to defendant on all claims. The Court of Appeals affirmed.

June 24, 2019

Sanctions Affirmed in Tennessee Slander Case

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

Where a plaintiff continued to pursue a defamation case even after depositions revealed that the allegedly defamatory statements were only made to two of plaintiffs’ friends and the statements did not change their opinion of plaintiff, Rule 11 sanctions against plaintiff were affirmed.

In McMillin v. Realty Executives Associates, Inc., No. E2018-00769-COA-R3-CV (Tenn. Ct. App. April 12, 2019), plaintiff asked two of his friends to contact a realtor and set up a showing of a home that was part of plaintiff’s mother’s estate. During the showing, the realtor stated that utilities had been turned off due to plaintiff removing money from the estate, that the potential buyers might not want to become involved with plaintiff because he had sued several people, that the house had plumbing issues, and that plaintiff had replaced expensive appliances with cheaper ones. Based on these statements, plaintiff brought this pro se defamation suit.