Day on Torts

May 17, 2018

Fall-From-Ladder Case Falls Short

Where a painter fell off a ladder but could not prove cause in fact or proximate cause, summary judgment on his negligence claim was affirmed.

In Epps v. Thompson, No. M2017-01818-COA-R3-CV (Tenn. Ct. App. March 15, 2018), plaintiff was hired by defendant to paint the exterior of her house. Defendant provided the painting material and two ladders, a folding ladder and an extension ladder, for plaintiff’s use. While using the folding ladder to paint the uppermost eave of the home, defendant fell and was injured. He subsequently filed this suit, claiming the “landowner was negligent for providing him with old ladders that were unsafe.”

May 16, 2018

Who Has the Right to Bring Suit in a Tennessee Wrongful Death Case?

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

A surviving spouse maintains priority to file a wrongful death action, even if the surviving spouse’s alleged negligence caused or contributed to the decedent’s death.

In Nelson v. Myres, No. M2015-01857-SC-R11-CV (Tenn. March 5, 2018), decedent died in a car accident. The daughter filed a wrongful death action, naming several defendants, including decedent’s surviving husband. According to daughter, husband “was under the influence of an intoxicant at the time of the accident” and his actions disqualified him from maintaining the suit (husband was “ultimately incarcerated for vehicular homicide”). Husband filed a wrongful death action, naming only the other driver as a defendant, and the other driver asserted comparative fault against husband in his answer.

Husband moved to dismiss daughter’s wrongful death action, claiming that he had the superior right to bring the case, and the trial court agreed. The Court of Appeals, however, reversed, holding that husband “had an inherent conflict of interest because, due to his conduct in bringing about the accident, he would be both a defendant and a plaintiff in [decedent’s] wrongful death action.” The Court of Appeals held that “only [daughter’s] lawsuit would fully prosecute [decedent’s] cause of action.” Husband appealed to the Tennessee Supreme Court, which reversed the Court of Appeals decision, reinstating husband as the proper person to maintain the wrongful death action.

May 11, 2018

Comparative Fault in Tennessee Wrongful Death Cases

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

For your reading pleasure – my newest article in the Tennessee Bar Journal. The article discusses the responsibility imposed on one who decides to bring a Tennessee wrongful death suit and how fault allocations against that person can complicate the case.

May 10, 2018

“Open and Obvious” Defect Not Necessarily a Bar to Recovery

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

Where a drainage cut in a concrete platform was visible but not open and obvious, a finding that the plaintiff was only twenty percent at fault for his fall was affirmed on appeal.

In Osborne v. The Metropolitan Government of Nashville and Davidson County, No. M2017-01090-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2018), plaintiff fell while visiting a city-owned facility for trash that was too large for regular trash trucks. The center had two levels, with the upper level being about five feet off the ground. On the edge of the upper platform there was a 26-inch-wide concrete barrier, and this barrier had 15-inch-long drainage cuts. There were signs stating “Please Use Care When You Unload Items” and telling children to stay in the vehicle, but there were no signs about the drainage cuts, no verbal warnings, and no markings or paint to draw attention to the cuts. Plaintiff had been to this center many times, but he had never been directed to this particular area. When he got out of his truck, he stepped onto the barrier and sidestepped toward the back of his truck without looking down at the barrier. As he was walking, not holding onto his truck, he stepped into the drainage cut and fell five feet, injuring his arm.

May 9, 2018

Dedmon Rule Applies In Tennessee Claims Commission

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

The collateral source rule still applies in Claims Commission cases to bar evidence that a plaintiff actually paid a discounted amount on his or her medical expenses.

In both Estate of Tolbert v. State of Tennessee, No. M2017-00862-COA-R3-CV (Tenn. Ct. App. Feb. 28, 2018) and Stevens v. State of Tennessee, No. M2017-01114-COA-R3-CV (Tenn. Ct. App. Feb. 28, 2018), plaintiffs were awarded damages by the Claims Commission due to car accidents caused by state employees. The Claims Commission awarded plaintiffs the full amount of their undiscounted medical bills, plus other damages, and the State appealed, arguing that the damages awarded should have reflected the discounted amounts actually paid by plaintiffs. The Court of Appeals affirmed the damage award of the full, undiscounted amount.

The Court noted that while these appeals were pending, the Tennessee Supreme Court decided Dedmon v. Steelman, 535 S.W.3d 431 (Tenn. 2017), in which it held that “defendants are precluded from submitting evidence of discounted rates accepted by medical providers from the insurer to rebut plaintiffs’ proof that the full, undiscounted charges are reasonable.” The issue in both of these cases, then, was whether Dedmon applied to cases under the Claims Commission Act. In answering this question, the Court in Stevens quoted extensively from and adopted the reasoning of the opinion released for Estate of Tolbert.

May 8, 2018

Expert Needed in Legal Malpractice Case

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

In most legal malpractice cases, a plaintiff will need expert proof regarding the applicable standard of care.

In Elaster v. Massey, No. E2017-00020-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2018), plaintiff filed a pro se legal malpractice case against two attorneys who had previously represented her in a workers’ compensation claim. Plaintiff claimed that defendants had settled her workers’ comp claim without informing her, and that they had generally “failed to adequately represent her in the workers’ compensation case.”

Defendants filed a motion for summary judgment, supported by their own affidavits stating that they had “complied with all relevant standards of care in their representation of [plaintiff].” In support of their motion, defendants filed a statement of undisputed material facts, which stated that plaintiff’s workers’ compensation claim was “disputed and doubtful,” and that even though they had negotiated a settlement in that case, plaintiff repudiated and the case was never actually settled. In response to the motion, plaintiff “admitted that no settlement agreement was ever finalized, that she never entered into any settlement agreement with her former employer, that no settlement funds were ever paid, and that both [defendants] were familiar with the standard of care required in the underlying workers’ compensation case.” Importantly, plaintiff “cited only to her complaint” in responding to the summary judgment motion, and presented no expert proof that defendants’ conduct fell below the standard of care.

May 7, 2018

No Notice of Dangerous Condition Bars Fall-Down Case

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

Where plaintiff sued an adjacent landowner for visible water that allegedly made him fall at a storage facility, the Court of Appeals affirmed the holding that the defendant was not liable for the accident.

In Morgan v. Memphis Light Gas & Water, No. W2016-01249-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2018), plaintiff was looking at a storage unit at Cook Sales’ property in April 2013 when he slipped and fell in a puddle of water. The area where plaintiff fell was visibly wet. Adjacent to the property where the storage facility was located, defendant owned a water tower. Plaintiff brought suit against defendant, a governmental entity, alleging that “the water tank located on [defendant’s] property leaked, causing water to intrude onto Cook Sales’ property and saturate the ground where he fell.”

After a bench trial, the trial court found for defendant, holding that plaintiff failed to show that the “water tower caused or created a dangerous or defective condition;” that plaintiff had failed to show that defendant had notice of any allegedly dangerous condition; and that under the doctrine of comparative fault, plaintiff was “at least 50% at fault and Cook Sales was at least 50% at fault[.]” The Court of Appeals affirmed all of these findings.

May 4, 2018

Plaintiff Fails to Prove City Owned or Operated Drainage Pipe

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

A city government cannot be held liable in tort for a drainage problem on a road it does not own or operate caused by a malfunctioning pipe it did not install.

In Walker v. Metropolitan Government of Nashville & Davidson County, No. M2016-00030-COA-R3-CV (Tenn. Ct. App. Feb. 13, 2018), plaintiff homeowner sued defendant city “for damages to his property caused by storm water runoff under the tort theory of a temporary continuous nuisance.” Plaintiff alleged that storm water runoff from the road he lived on flooded his property, basement and foundation each time it rained, and that he had asked defendant several times to fix a malfunctioning drainage pipe. Defendant moved for summary judgment on the basis that a previous homeowner had actually installed the malfunctioning pipe and that the city was accordingly immune from suit under the GTLA. The trial court granted summary judgment for defendant, and the Court of Appeals affirmed.

The evidence submitted in support of defendant’s motion for summary judgment showed that the road plaintiff’s property was on was a state highway, not a city street, and that before plaintiff owned the property the state had “acquired a permanent drainage easement” from the former owners. The state had installed a drainage pipe that funneled water to a ditch, which then funneled water to a creek. Before plaintiff bought the property, however, the previous homeowners enclosed the ditch and put a drainage pipe under the ground where the ditch was previously located, using a mix of both concrete and corrugated metal pipe. Defendant city did not install the pipe or fill in the ditch in question.

May 3, 2018

Release in Probate Court Barred Later Claims Against Uninsured Motorist Insurer

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

When an ATV accident plaintiff executed a release of her claim against the personal representative of the estate and filed that release in probate court, that release “served to release [her uninsured motorist insurance carrier] from any liability arising from [plaintiff’s] personal injury claim stemming from the ATV accident.”

In Johanssen v. Sharber, No. M2017-00639-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2018), plaintiff was injured in an ATV accident. The driver of the ATV died, and plaintiff filed a tort claim in circuit court against the personal representative of the driver’s estate. Plaintiff’s uninsured motorist carrier, GEICO, was also served and joined as a party. Plaintiff also filed a claim against the estate in probate court “for medical bills and personal injury.”

While the circuit court case was pending, plaintiff “executed a release of claim in the Probate Court without GEICO’s consent.” The release stated:

The undersigned, [plaintiff], acknowledges full and complete satisfaction of the claim filed against the Estate and releases the Personal Representative from any further liability on the claim of $150,000.00 that the undersigned filed against the Estate.

May 2, 2018

Typed Signature Qualifies as “Signature” for Rule 11 Purposes

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

In some circumstances, a typed name may qualify as a signature on a pleading.

In Jones v. Mortgage Menders, LLC, No. M2017-01452-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2018), plaintiff initially filed his complaint in 2006, then took a voluntary nonsuit on February 12, 2016. Plaintiff, acting pro se, filed a “purported complaint” on February 2, 2017, attempting to re-assert the original claims. This pleading “featured his typewritten name rather than his handwritten signature.”

The court clerk alerted plaintiff to the lack of signature , but instead of signing the complaint, plaintiff “signed a certificate of service.” Defendants moved for summary judgment, which the trial court granted, finding that the lack of signature meant that the complaint did “not satisfy the signature requirement under Rule 11,” and further finding that the purported complaint was so deficient as to not be a complaint at all. The Court of Appeals overturned these holdings.