Day on Torts

July 30, 2019

Video Evidence Supports Summary Judgment In Grocery Slip and Fall Case

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.

June 10, 2019

Gym Not Liable for Sexual Assault in Locker Room

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

Where a plaintiff claiming that he was sexually assaulted in a locker room failed to present any evidence that the “health club knew or should have known of prior assaults by the assailant or anyone else,” summary judgment for defendant health club was affirmed.

In Boswell v. Young Men’s Christian Association of Middle Tennessee, No. M2018-00180-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), plaintiff claimed that he was sexually assaulted by Jack Dabney in the locker room at his local YMCA three times. Accordingly to plaintiff, Dabney first groped him in July 2015, at which time he left the facility and told no one. The second incident occurred one week later, at which time plaintiff reported the incident to the membership greeter. Plaintiff refused, however, to review video footage to identify the assailant, and instead wrote on a comment card that the YMCA should “put somebody inside the shower area to protect people from being sexually assaulted.” The third incident occurred seven months later. At that time, plaintiff told the YMCA executive director, and a male staff member went into the locker room with plaintiff and Dabney was identified. An investigation began, but plaintiff failed to return a phone message or email sent from the director regarding the matter. Although plaintiff did not supply additional information, Dabney’s membership was eventually revoked.

April 26, 2019

City’s Duty to Protect Against Dangerous Dog Fell Under Public Duty Doctrine

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

A plaintiff’s claim that the city had a duty to protect her against a dog owned by another citizen fell under the public duty doctrine, and summary judgment for defendant city was thus affirmed.

In Fleming v. City of Memphis, No. W2018-00984-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2019), plaintiff filed suit against defendant city after she was attacked and mauled by a dog owned by a private citizen. Plaintiff alleged that the city “had actual prior notice of this dog’s vicious propensities” based on two prior attacks by the same dog. Defendant filed a motion for summary judgment based on the public duty doctrine, which the trial court granted and the Court of Appeals affirmed.

It was undisputed that the GTLA did not provide the City immunity in this case. After the dog bite preceding the attack on plaintiff, an animal control worker “did not believe there were grounds upon which [to seek] a petition to declare the dog dangerous and vicious under City ordinance,” and this decision by the government worker was determined to be operational. The issues raised by plaintiff, then, were “1) whether the GTLA supersedes the public duty doctrine; and 2) if the public duty doctrine survives, whether the trial court erred in finding that it applie[d]” here.

April 25, 2019

Plaintiff Must Name “John Doe” if Other Driver in Car Accident Case is Unknown.

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

In order to bring a direct claim against a plaintiff’s uninsured motorist insurance carrier, the plaintiff must have filed his initial complaint against the uninsured motorist (or “John Doe” if unknown) within the one-year statute of limitations.

In Fults v. MetLife Auto & Home Insurance Agency, Inc., No. M2018-00647-COA-R3-CV (Tenn. Ct. App. March 7, 2019), plaintiff was injured in a hit-and-run car accident on November 16, 2015, and the other driver was never identified. Plaintiff filed suit, naming his uninsured motorist carrier as defendant, on July 14, 2017. Defendant moved for dismissal, arguing that plaintiff’s claim was barred “on the ground that the complaint did not name or contain allegations against a “John Doe” driver, that no summons had been issued against “John Doe”…, and that the statute of limitations…would prevent John Doe from being named as a defendant.” Plaintiff moved to amend the complaint and add John Doe, but the trial court denied the motion to amend and granted the motion to dismiss. The Court of Appeals affirmed.