Day on Torts

August 15, 2018

Judicial Estoppel Doctrine Bars Legal Malpractice Claim

Where a plaintiff has signed a settlement agreement swearing that such agreement is “fair and equitable,” she may be judicially estopped from later bringing a legal malpractice claim based on that same settlement.

In Kershaw v. Levy, No. M2017-01129-COA-R3-CV (No. M2017-01129-COA-R3-CV), plaintiff filed a legal malpractice claim against defendant attorney who had previously represented her during part of her divorce proceedings. When defendant took her case, plaintiff had already been convicted of criminal contempt once in the divorce case for incurring marital debt for gambling money, and she had a pending criminal contempt petition for forging checks to get gambling money. Further, her discovery responses were overdue. After defendant took the case, he drafted a response to the contempt motion wherein plaintiff admitted that she took the money, and she was sentenced to 30 days in jail, though she was released when defendant filed an appeal three days later.

August 14, 2018

Loss of Evidence Destroys Plaintiff’s Case

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

Where a plaintiff in a tractor-trailer accident case unintentionally allowed the tractor at issue to be destroyed, dismissal of the case was ruled an appropriate remedy for spoliation of evidence.

In Gardner v. R&J Express, LLC, No. E2017-00823-COA-R3-CV (Tenn. Ct. App. May 7, 2018), plaintiff owned a tractor truck that was pulling a trailer owned by defendant. While driving, plaintiff was involved in a single vehicle accident when the tractor-trailer overturned, which plaintiff alleged was caused “because the tandem axle on the trailer ‘suddenly and unexpectedly’ came loose while they were traveling down the highway.”

The accident occurred on May 29, 2015, and plaintiff retained counsel just a few weeks later on June 17, 2015. On June 24, 2015, plaintiff’s attorney sent a letter to defendant regarding plaintiff’s intention to file suit and “Defendant’s responsibility to preserve the relevant evidence.” Shortly after this letter was sent, plaintiff signed title of the tractor over to his insurance company, and the tractor was destroyed.

August 10, 2018

Conflicting Information Lighting Means No Summary Judgment

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

Where a defendant has changed its story regarding relevant facts, leaving material facts in dispute, summary judgment is inappropriate.

In Schacklett v. Rose, No. M2017-01650-COA-R3-CV (Tenn. Ct. App. May 2, 2018), plaintiff filed a premises liability claim after falling at defendants’ home. Plaintiff was a catering employee who had entered the home in the daylight using outdoor stairs that led to the kitchen. At the end of the evening, she left by the same stairs, and she fell “through a break in the railing,” landing on concrete. According to plaintiff, “there were no house lights and the motion lights on the steps…were not operating,” and “the entire area was dark.”

When defendant homeowners answered the complaint, they denied that there were no lights and that motion sensor lights were in place. They also “denied that the entire area was dark and therefore dangerous.” Later, in response to requests for admissions, defendants “stated that the outside lighting was working on the night of the accident.” They further asserted that instead of having motion sensor lights that were not working, they had “overrode the timer by placing the lights ‘all on’ for the party.” When defendants filed a motion for summary judgment, however, they asserted that “the exterior lights were off when [plaintiff] fell, and [plaintiff] was negligent in failing to turn the lights on before proceeding down the stairs.”

August 2, 2018

Sanctions Ordered For Failure to Comply With Rule 35 Order

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

When a plaintiff refuses to comply with an order to submit to a medical examination under Rule 35 of the Tennessee Rules of Civil Procedure, the trial court may refuse to allow the plaintiff to introduce evidence of medical expenses at trial.

In Prewitt v. Brown, No. M2017-01420-COA-R3-CV (Tenn. Ct. App. April 30, 2018), plaintiff was injured in a car accident with defendant. Defendant admitted that he was at least partially at fault, but “disputed the nature and extent of Plaintiff’s injuries.” After initial discovery, defendant “filed a Tenn. R. Civ. P. 35 motion for an Independent Medical Examination (IME) (sic),” which the trial court granted.

(Note: a Rule 35 examination is not an “independent medical examination” but rather an examination, usually of a plaintiff, by a doctor of an adversary’s choosing. Calling such an examiner “independent” is untrue and unfair. In the typical case, a fairer label would be “defense medical examination (“DME”).)

August 1, 2018

No Claims Commission Jurisdiction Over Medical School Dismissal

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

A claim that a medical student was wrongly dismissed without the proper process does not fall under the jurisdiction of the Tennessee Claims Commission.

In Williams v. State, No. E2017-00626-COA-R3-CV (Tenn. Ct. App. April 23, 2018), plaintiff had been dismissed from ETSU medical school, and he filed a complaint with the Tennessee Claims Commission alleging that his “permanent dismissal was negligently done by Defendant without a hearing or other university procedures required by the catalog and student hand book.” The Claims Commission dismissed the complaint for lack of subject matter jurisdiction, and the Court of Appeals affirmed.

July 31, 2018

Police Dog Exception to the Tennessee Dog Bite Statute

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

When a Tenneseee state trooper was injured by a sheriff’s deputy’s police dog, his lawsuit against the owner of the dog was not statutorily precluded.

In Greenlee v. Sevier County, Tennessee, No. E2017-00942-COA-R3-CV (Tenn. Ct. App. April 26, 2018), plaintiff was a Tennessee State Trooper who had attempted to make a traffic stop and called for assistance when the suspect fled on foot. A Sevier County Sheriff’s Deputy was dispatched, along with his police dog. During the pursuit, the deputy and dog went under a house, and when the dog emerged first, he attacked and injured plaintiff.

July 30, 2018

Products Liability Statute of Repose Bars Claim

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

Tennessee products liability claims are subject to a ten-year statute of repose, and that limitation period is not subject to equitable estoppel.

In Ismoilov v. Sears Holdings Corporation, No. M2017-00897-COA-R3-CV (Tenn. Ct. App. April 25, 2018), plaintiff brought a products liability suit based on a water heater that broke, causing a leak and damaging his property. The water heater in question was purchased on June 2, 2005, and plaintiff asserted that it was sold with a 12-year warranty. Plaintiff filed his suit on June 16, 2015, seeking damages for property damage to his home, unpaid rent, reduced rental value and cleaning fees. It was undisputed that defendant had replaced the water heater before the suit was filed.

The trial court dismissed all claims other than the warranty claims on a motion for judgment on the pleadings, finding that the claims all sounded in product liability and were time barred by the ten-year statute of repose. The trial court subsequently granted defendant summary judgment on the express warranty claim after defendant put forth evidence that the express warranty included replacement of the damaged heater only. Plaintiff appealed these findings, and the Court of Appeals affirmed.

July 24, 2018

Elements of Tennessee Claim for Defamation by Implication

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

In order to succeed on a defamation by implication claim in Tennessee, a plaintiff must be able to show that the statements made implied facts that were not true and held the plaintiff “up to public hatred, contempt or ridicule, “ or lowered the plaintiff “in the eyes of the community.” Where these showings cannot be made, a claim for defamation by implication or innuendo must fail.

In Loftis v. Rayburn, No. M2017-01502-COA-R3-CV (Tenn. Ct. App. April 20, 2018), plaintiff was the previous director of the Nashville State Community College culinary program. He brought suit based on an article published in a newspaper, which was based on an interview between the reporter writing the story and defendant. Defendant was a local restaurant owner who was brought on to help make the college program more successful. The article stated that when defendant began his work, the program was “simply turning out unqualified students,” and that he enlisted other chefs to help turn the program around. The article said that “[t]hey started by cleaning house from the top by removing director Tom Loftis [i.e., plaintiff].” The article further noted that this was a “politically inexpedient move last year since Loftis was the brother-in-law of Bill Freeman who was running for mayor at the time.” This was the only mention of plaintiff in the article.

July 23, 2018

Statute of Limitations for Property Damage Claims

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

Under the discovery rule, a plaintiff’s cause of action for property damage may “not necessarily accrue at the moment they knew they had sustained injury.” Instead, the statute of limitations will not begin to run until they “knew, or in the exercise of reasonable care and diligence should have known, that an injury was sustained as a result of wrongful or tortious conduct by the defendant.” (internal citation omitted).

In Roles-Walter v. Kidd, No. M2017-01417-COA-R3-CV (Tenn. Ct. App. April 24, 2018), plaintiff had purchased a commercial building next to buildings owned by defendants. Plaintiff alleged that beginning in December 2012, she “began to have issues with rain water form the adjacent alleyway flooding their building.” Plaintiff alleged in her complaint that “upon examination by [plaintiff] and subsequently by professionals in this area,” it was determined that the water issues were being caused by water coming off defendants’ buildings roofs, and that defendants had refused to “take any responsibility for the damage…and/or take any actions intended to remedy the water issues.” Plaintiff accordingly filed this lawsuit on November 1, 2016.

Defendants moved to dismiss based on the statute of limitations, which the trial court granted, but the Court of Appeals reversed.

July 16, 2018

Failure to Warn Claim Against Drug Manufacturer Rejected

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

A claim that a drug manufacturer failed to properly warn under Tennessee law based on its failure to include a medication guide required by FDA regulations is impliedly preempted by federal law.

In McDaniel v. Upsher-Smith Laboratories, Inc., No. 2:16-cv-02604 (6^th Cir. June 29, 2018), plaintiff brought suit after her husband died after taking medication manufactured by defendant. Plaintiff claimed that defendant’s “failure to ensure that a Medication Guide accompanied the prescription led to her husband ingesting—and dying because of—a drug that wasn’t meant for him.” Plaintiff’s husband had been prescribed a generic form of a medication intended as a “last resort for patients suffering from ventricular fibrillation and ventricular tachycardia.” The husband, however, was suffering from non-life threatening atrial fibrillation. Plaintiff asserted that because defendant did not include the required medication guide, her husband “was unaware that only adults with life-threatening heartbeat problems who had unsuccessfully sought alternative treatments should take the drug.” He thus suffered from a serious lung side effect and died.