Day on Torts

January 15, 2019

Affirmative Defenses Not Waived By One-Day Delay of Answer

Where a defendant filed his answer to a legal malpractice claim thirty-one days after being served with process and amended his originally insufficient answer, the Court of Appeals ruled that he did not waive his affirmative defenses.

In Allen v. Ozment, No. W2017-00887-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2018), plaintiff filed a legal malpractice claim against defendant. The complaint was filed more than one year after the previous legal representation ended, and defendant was served a year and a half after the complaint was filed. Defendant filed an answer thirty-one days after being served, wherein he raised the affirmative defenses of insufficient service of process, insufficient process, and failure to state a claim. These affirmative defenses were not stated with the requisite specificity, but the trial court allowed defendant to file an amended answer with more specific affirmative defenses. Defendant filed a motion to dismiss, supported by a memorandum, and the trial court dismissed the claim as time-barred. Plaintiff appealed the dismissal, arguing that defendant had waived his affirmative defenses, but the Court of Appeals affirmed.

January 8, 2019

Agritourism Statute Provides Immunity from Liability but Allows Fault Allocation

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

While Tennessee’s agritourism statute provides immunity for agritourism professionals in certain circumstances, it does not “preclude the allocation of fault to a nonparty agritourism professional in a negligence action.”

In Green v. St. George’s Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018), Ms. Green went on a church outing to a local farm. She was riding in a church bus driven by a parishioner, and when the bus crossed over two drainage berms at the farm, the “resulting jolt severely injured [her].”

Plaintiff filed suit against the church, and the church asserted the comparative fault of the farm in its answer. Plaintiff moved for partial summary judgment on the comparative fault issue, “arguing that Tennessee’s agritourism statute precluded a finding that [the farm’s] conduct caused or contributed to her injuries.” The trial court denied this motion, and granted a motion in limine to exclude any evidence about the farm’s immunity. At the end of the trial, the jury returned a verdict for plaintiff, finding the church 15% at fault and the farm 85% at fault. Plaintiff appealed, arguing that fault should not have been apportioned to the farm, and the Court of Appeals affirmed.

January 7, 2019

Non-Compliant HIPAA Release Prejudiced Only One Defendant

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

Where plaintiff gave pre-suit notice of an HCLA suit to two defendants related by employment, but her HIPAA authorization failed to identify to whom medical records could be disclosed, the Court of Appeals analyzed whether each defendant was individually prejudiced by the lack of compliance. The Court ultimately concluded that the employer defendant who was in possession of all the records was not prejudiced and the suit could continue against it, but that the employee defendant who did not possess the records was prejudiced.

In Wenzler v. Yu, No. W2018-00369-COA-R3-CV (Tenn. Ct. App. Nov. 20, 2018), plaintiff filed a health care liability case against a dentist and the practice for which he worked. She sent pre-suit notice with a HIPAA authorization attached, but while the HIPAA authorization “mentioned that the information would be used for litigation,” it “failed to identify the person or entity that was authorized to receive the disclosure pursuant to the release.” The trial court found that the HIPAA authorizations did not substantially comply with the statutory requirements and that plaintiff was therefore not entitled to the 120-day extension of the statute of limitations, and thus dismissed the complaint as time-barred. The Court of Appeals affirmed as to the dentist but reversed as to the dental practice.

December 18, 2018

No Evidence From Plaintiff = Summary Judgment for Defendant

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

Where a plaintiff who fell in a grocery store presented no evidence in her premises liability case beyond the fact that there was a pallet in the aisle over which she tripped, the Court of Appeals affirmed summary judgment for defendant grocery store.

In Hunter v. Kroger Limited Partnership, No. W2017-01789-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2018), plaintiff was shopping in defendant grocery store when she tripped on a pallet and fell. Plaintiff had been bent over in a freezer searching for an item. As she straightened up, she stepped backwards 3-4 steps to allow another customer to pass, and in doing so she “tripped on a wooden pallet that was left on the floor in the center of the aisle.” Evidence showed that the pallet was wooden and had been used for stocking the shelves, and that nothing was blocking plaintiff’s view of the pallet.

Plaintiff filed this premises liability action asserting that defendant “owed her an affirmative duty of care to protect her from the dangerous condition created by the pallet.” The trial court granted summary judgment for defendant, and the Court of Appeals affirmed.

In its memorandum supporting the motion for summary judgment, defendant argued that the pallet was not a dangerous condition and that plaintiff’s “allegation that this pallet was a dangerous condition is not based on anything other than the fact that she tripped.” Defendant filed a statement of undisputed facts, which included the facts that plaintiff was walking backwards and had taken around 4 steps before she hit the pallet and fell, and that there was nothing blocking the pallet from view. Plaintiff admitted all of these facts and “proffered no additional material facts, and submitted no additional evidence.” On appeal, this lack of evidence proved fatal to plaintiff’s case.

December 11, 2018

“Rebuttal” Evidence Properly Excluded

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

Where a plaintiff made a tactical decision to withhold certain evidence during its case-in-chief and instead attempted to introduce the testimony as rebuttal evidence, the evidence was not be allowed and was deemed to “contradict [plaintiff’s] own proof.”

In Alumbaugh v. Wackenhut Corporation, No. M2016-01530-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2018), plaintiff’s father was shot and killed by an armed security guard at a Pilot travel center, and plaintiff filed this wrongful death action against the security guard company who employed the shooter. On the night of the incident, decedent and a female companion had been drinking heavily and were traveling home when decedent pulled his vehicle into the back lot of a Pilot, which was reserved for tractor-trailer trucks. During plaintiff’s case-in-chief, she presented the videotaped testimony of decedent’s female companion, who testified that decedent was standing in the passenger doorway of the car when the guard approached and that the altercation only lasted a few minutes. According to this testimony, decedent was the aggressor, the guard tried to calm decedent down, and the guard tried to handcuff decedent. While the guard was trying to call someone, decedent pushed the guard against a truck, overpowered him, and was on top of him when the guard pulled out his gun and shot decedent.

In defendant’s case-in-chief, it presented evidence that the guard had previously been in the army and that it had not received any complaints about the guard’s job performance, although a supervisor at Pilot “admitted that he had intervened between [the guard] and others on occasion.” The guard testified that on the night in question he tried to call for assistance, but that “the next thing he knew, [decedent] was on top of him, hitting his head and face,” and that “he felt a tug on his belt and believed the man was reaching for his gun” before the guard shot decedent.

November 19, 2018

Res Ipsa Loquitor and Medical Malpractice Claims

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

When an HCLA plaintiff proceeds under a res ipsa loquitur theory, her expert is not required to opine on the same elements as in a traditional HCLA claim.

In Anderson v. Wang, No. M2018-00184-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2018), plaintiff had laser cataract surgery performed on both eyes by defendant doctor. After the second surgery on her right eye, plaintiff experienced serious complications, including extreme loss of endothelial cells and corneal decomposition that required a corneal transplant.

Plaintiff brought this HCLA case under Tenn. Code Ann. § 29-26-115(c), which governs HCLA res ipsa loquitur claims. This section states that “there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant’s…exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.” The trial court granted defendant’s motion for summary judgment, finding that plaintiff’s expert “never defined the applicable standard of care or how any instrumentality could have been improperly used contrary to the applicable standard of care.” The Court of Appeals, however, reversed.

November 2, 2018

“Extraordinary Cause” Under HCLA Notice Statute

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

When a plaintiff’s lawyer terminates his representation just weeks before the statute of limitations is set to expire on a health care liability claim, this termination may constitute extraordinary cause to excuse the plaintiff’s noncompliance with certain pre-suit notice and certificate of good faith requirements.

In Reed v. West Tennessee Healthcare, Inc., No. W2018-00227-COA-R9-CV (Tenn. Ct App. Oct. 8, 2018), plaintiff was injured when he fell while in the hospital being treated for a different injury on October 18, 2015. He retained counsel over four months before the statute of limitations was set to run on his health care liability claim, but just a few weeks before it expired, the attorney terminated his representation of plaintiff. Plaintiff then sent a letter dated October 7, 2016 to a hospital executive stating that he had been injured and demanding compensation. He subsequently filed his HCLA complaint on October 14, 2016, which was within the one-year statute of limitations, but he did not attach a Certificate of Good Faith to his complaint. After he filed his complaint, he hired a new attorney.

Defendant filed two motions to dismiss, one based on plaintiff’s failure to attach a Certificate of Good Faith and one based on plaintiff’s failure to follow the pre-suit notice requirements by failing to give his notice 60 days before he filed the complaint, failing to provide a HIPAA authorization, failing to provide an affidavit from the party who mailed the notice, and failing to state that he had complied with the statute. The trial court denied both motions, finding that the termination of representation just weeks before the statute of limitations ran constituted extraordinary cause under the HCLA and thus excused compliance with these requirements. The Court of Appeals affirmed.

October 29, 2018

White Paper: Attorney – Client Privilege

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

The American College of Trial Lawyers has released its latest white paper on the law of attorney-client privilege.

Titled “Attorney-Client Privilege Update: Current and Recurring Issues,” the 50-page paper was compiled by the College’s Attorney-Client Relationships Committee, led by Joe Arellano of Portland, Oregon. The paper summarizes the law of attorney-client privilege, supporting its conclusions with citations to over 100 court decisions from around the nation.

Here is the Table of Contents:

October 26, 2018

Apartment Owner Has No Duty to Protect From Attacks Off Its Property

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

A premises owner’s duty generally does not include the duty to protect “from criminal acts occurring off [the] defendant premises owner’s property.” In Collier v. Legends Park LP, No. W2017-02313-COA-R3-CV (Tenn. Ct. App. Oct. 3, 2018), plaintiff was a resident at defendant’s apartment building. Plaintiff was sitting in his car, which was parked on a public street, with a female companion. Another car pulled next to plaintiff’s car, and the female companion got into that car. When plaintiff then exited the vehicle, he was approached from behind by a second female holding a gun and demanding money. Plaintiff had several thousand dollars on him, but told the robber that the money was in his car. Plaintiff was eventually shot in both legs, and the robber got into the car with the other two people and drove away.

October 11, 2018

Discovery Rule Applied in Murder-Suicide Case – Claim Barred

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

Where a plaintiff knew that her father had escaped from a hospital where his family had requested a mental evaluation and then killed his wife and himself, the plaintiff had constructive knowledge of her claim against the treating doctor and hospital as of the day she learned about the murder-suicide.

In Herpst v. Parkridge Medical Center, No. E2017-00419-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2018), plaintiff and her family members took her father to defendant hospital because he was experiencing “paranoia and delusional episodes” and had discussed committing suicide. They chose this specific hospital because it was “the only hospital in Chattanooga that has a dedicated and secured floor for mental evaluations.” Plaintiff and her family requested a mental evaluation of her father and told his treating physician that he was a danger to himself.

On the day after the father’s admission, plaintiff inquired about when the evaluation would be done and did not get an answer. The next day, he had become agitated and plaintiff again got no answers from the nurses, who allegedly stated: “we don’t know, we don’t care, we’re tired of fooling with him…he’s crazy.” Three days after his admission, the father pulled his I.V. out and left the hospital. Sometime in the following two days, he killed his wife and himself, and plaintiff was notified of her parents’ death on July 3, 2013.