Day on Torts

July 23, 2018

Statute of Limitations for Property Damage Claims

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.

July 13, 2018

Intentional Infliction of Emotional Distress Claim Barred by Worker’s Compensation Claim

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

A plaintiff cannot bring a separate intentional infliction of emotional distress claim based on a work-related incident for which he has already pursued a workers’ compensation claim.

In Byrd v. Appalachian Electric Cooperative, No. E2017-01345-COA-R3-CV (Tenn. Ct. App. April 25, 2018), plaintiff alleged that an “interrogation” by his supervisors at work caused him chest pain, anxiety, and other symptoms. He averred that when he reported to work one morning, he was called to a meeting with two supervisors, who questioned him about his recent marriage to another employee’s relative. He stated that he was told he would have to either resign or be terminated per company policy, and that the meeting lasted three hours. At the end of the meeting, plaintiff alleged that one of the supervisor’s spoke with an attorney, who reviewed company policy and determined that there had been no policy violation, at which time plaintiff was allowed to return to work.

July 5, 2018

Invasion of Privacy, Emotional Distress and Misrepresentation Claims Dismissed

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

In Fitzgerald v. Hickman County Government, No. M2017-00565-COA-R3-CV (Tenn. Ct. App. April 4, 2018), plaintiff brought several claims against the county and the county mayor related to his employment termination. The trial court dismissed all claims after defendants filed a motion to dismiss, and the Court of Appeals affirmed the dismissal of all claims except plaintiff’s claim for false light invasion of privacy.

The basic facts of this case were that plaintiff had worked for the county for over fifteen years, and that the mayor fired him citing “bogus complaints.” When plaintiff attempted to use the grievance procedure, he was sent a letter from the mayor stating that his “grievance claim had been denied.” In addition, plaintiff claimed that at the time of his firing, the mayor promised to create a new job for him, but such a job never came to fruition because the county commission “determined that it could not afford to fund the new position.” Plaintiff also claimed that the mayor had made public statements regarding an alleged extramarital affair and regarding plaintiff receiving “certain compensation in his final payment” as an employee.

June 30, 2018

Wisconsin Supreme Court Upholds Damage Caps in Medical Malpractice Cases

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

The Wisconsin Supreme Court has reversed a 2005 opinion and held that a cap of $750,000 on non-economic damages in medical malpractice cases is constitutional.

The female plaintiff in the case lost her arms and legs as a result of a medical error. A jury determined that her pain, suffering, and disfigurement had a value of $16.5 million. However, Wisconsin’s highest court deferred to legislation limiting such awards to a maximum of $750,000 in all cases, regardless of the severity of the injuries.

A dissent was filed by Justice Bradley, joined by Justice Abrahamson. “Only those with the most catastrophic injuries will be denied a full and fair damages award,” Bradley wrote. “It makes no sense that those who are injured most get the least.”

June 14, 2018

Duty of Care Exists Even in Dangerous Sporting Activities

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

Even when a person chooses to participate in a risky sport, he or she does not “assume the risk of whatever dangerous conduct, however unreasonable, is engaged in by the [other] participants.” Instead, in a negligence case, the reasonableness of the defendant’s conduct will be determined based on the circumstances of the case.

In Crisp v. Nelms, No. E2017-01044-COA-R3-CV (Tenn. Ct. App. March 28, 2018), plaintiff was the surviving spouse of a bicycle rider who died following a cycling accident. At the time of the accident, decedent and four other cyclists were riding in a paceline, which is when the riders proceed in a straight line close together with the front rider setting the pace. Plaintiff alleged that the rider in front suddenly slowed, causing the second rider to bump wheels with the front rider. The second rider then went down, and decedent was unable to avoid the accident, hitting the second rider and being thrown off his bike. Decedent “was rendered quadriplegic by the wreck,” and died a few months thereafter.

Plaintiff filed a negligence suit against the first and second rider, who both filed motions for summary judgment, which the trial court granted. The trial court ruled that “paceline cycling is inherently dangerous and that Decedent was at least 50% at fault for his accident.” In its order, the trial court stated that “the ultimate conclusion is that these types of accidents are foreseeable in bicycle racing, especially this type of close racing,” and that “these parties chose to engage in this activity.” On appeal, summary judgment was reversed.

May 24, 2018

Real Property Damages Are Generally Repair Costs

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

In cases involving damages to real property, the general “measure of damages will be the cost of repair[.]” If a defendant wants to argue that diminution in value is a more appropriate measure of damages, he or she has to burden of proving the difference in value from before and after the damage occurred.

In Durkin v. MTown Construction, LLC, No. W2017-01269-COA-R3-CV (Tenn. Ct. App. March 13, 2018), plaintiff had hired defendant to put a new roof on his home. While the roof was exposed, a thunderstorm occurred, and the tarp used by defendant to cover the roof had holes and allowed a significant amount of water to leak into plaintiff’s home. After the damage occurred, defendant initially assured plaintiff that the damage would be promptly fixed, but the repairs were not made. Plaintiff filed this action, and the trial court found defendant liable for both negligence and breach of contract.

May 21, 2018

Noncompliant HIPAA Form Derails Plaintiffs’ Claims

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

An HCLA plaintiff who does not comply with the pre-suit notice requirements in the statute is not entitled to the 120-day extension of the statute of limitations.

In Brookins v. Tabor, No. W2017-00576-COA-R3-CV (Tenn. Ct. App. March 8, 2015), plaintiff husband originally filed an HCLA suit against several defendants, including doctors Tabor, Lamothe, and Fleenor. This first suit was filed on January 29, 2015, and was nonsuited on April 16, 2015, in order to comply with the pre-suit notice requirements found in the HCLA.

On July 6, 2015, plaintiff husband re-filed the suit based on the same negligence against the same defendants. In this second suit, plaintiff wife also asserted a loss of consortium claim. Defendant doctors moved to dismiss the claims, alleging that they were time-barred because plaintiffs had failed to meet the pre-suit notice requirements and were thus unable to rely on the 120-day extension of the one-year statute of limitations. The trial court agreed, dismissing all claims against defendant doctors, and the Court of Appeals affirmed dismissal for various reasons.

May 17, 2018

Fall-From-Ladder Case Falls Short

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

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.