Day on Torts

May 1, 2018

Tenant Locked Out of Office Entitled to Conversion Damages

Where a landlord evicted a tenant by locking him out and bypassed the legal process outlined in the lease, the landlord was liable for conversion, and the Court of Appeals affirmed an award based on “the present day value of the personal property which Plaintiff claimed was not returned.”

In Philp v. Southeast Enterprises, LLC, No. M2016-02046-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2018), plaintiff tenant had rented an office space from defendant landlord. After plaintiff failed to pay rent for two months, defendant “changed the locks on the doors and posted a notice on the building entrance stating that Plaintiff had been evicted.” Plaintiff filed suit for various causes of action related to the lease and eviction, including a claim for conversion and punitive damages. After a trial, the trial court found that defendant was liable for conversion, which the Court of Appeals affirmed. The trial court also awarded plaintiff $5,000 in punitive damages, and although the Court of Appeals affirmed the decision to award punitive damages, it vacated the amount and instructed the trial court “to make specific findings of fact and conclusions of law relative to the appropriate factors and enter judgment accordingly.”

Regarding the conversion claim, the Court of Appeals first affirmed that defendant was liable for conversion damages. The Court pointed out that “[b]y locking Plaintiff out, Defendants maintained possession of all of Plaintiff’s property inside the building.” The Court noted that “Defendants bypassed legal process and changed the locks on the door,” and that their “actions of wrongfully evicting Plaintiff from the property allowed them to exercise dominion and maintain control over Plaintiff’s personal property.” The finding that defendants were liable for conversion was thus affirmed.

April 30, 2018

Discovery Rule Applied in Tennessee Health Care Liability Act Case

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

In a misdiagnosis Tennessee health care liability (medical malpractice) case, defendants seeking dismissal based on the statute of limitations were required to “establish that decedent was aware of the alleged misdiagnosis,” not just show that the misdiagnosis was made, in order to establish when the one-year limitation period began to run.

In Shaw v. Gross, No. W2017-00441-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2018), plaintiff was the administrator of decedent’s estate, and the case involved allegations that decedent died as the result of a misdiagnosis. Decedent went to the emergency room on May 17, 2014, complaining of “rib-trunk pain and headache that resulted from a fall.” Defendant doctor ordered lab work and diagnosed decedent with dehydration, sending him home. Decedent returned the next day via ambulance and was diagnosed with sepsis and an inflamed gallbladder. Decedent died less than a month later, on June 14, 2014, and an autopsy report on June 18^th confirmed his cause of death as “septic shock and gangrenous cholecystitis.”

April 30, 2018

New-Added Defendant Loses Effort at Early Dismissal of Action

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

Where a defendant adds an affirmative defense asserting comparative fault against a non-party more than two years after the complaint was originally filed, such assertion may be appropriate and timely if the defendant was diligent in obtaining information about the potential tortfeasor.

In Santore v. Stevenson, No. W2017-01098-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2018), plaintiff was injured when he was hit by a vehicle at a truck stop. Plaintiff filed suit against Cordova Concrete, Inc. and its employee (Cordova) on July 8, 2014. At some later point, Cordova learned that a 911 call had been made from the accident scene, and it sent a subpoena to the City of Memphis to obtain a recording of the call. When the city did not respond, Cordova sent a public records request, and thereafter received an audio file of the call and a Background Event Chronology.

Cordova found a number listed in the chronology and called it multiple times, finally identifying the 911-caller as a truck driver. Cordova arranged to depose the truck driver on August 29, 2016, and during that deposition the caller stated that an Averitt truck hit plaintiff. Based on this information, on September 20, 2016, Cordova filed a motion to amend its answer and assert an affirmative defense of comparative fault against Averitt and its unknown driver. This filing came “more than two years after the complaint was filed but less than three months after obtaining the public records from the City of Memphis.” Cordova and plaintiff agreed to allow the amendment, and plaintiff then amended the complaint to add Averitt and the unknown driver as defendants.

April 10, 2018

Improper Notice Under TCA § 29-26-121 – The Savings Statute Does Not Save Case

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

If an HCLA plaintiff fails to provide proper pre-suit notice and files her first complaint after the statute of limitations has passed (but within the 120-day grace period), her case will not be saved by voluntarily dismissing and trying to use the savings statute to refile.

In Dortch v. Methodist Healthcare Memphis Hospitals, No. W2017-01121-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2018), plaintiff filed a health care liability suit against defendants based on the death of her son following a surgery on April 3, 2014. On April 6, 2015, plaintiff’s counsel served a purported pre-suit notice of her HCLA claim on defendants, pursuant to Tenn. Code Ann. § 29-26-121. This notice contained HIPAA authorization forms that “only permitted the recipient entity to send the medical records of [the deceased] to plaintiff’s counsel.” The statute, however, requires that the HIPAA forms included with the notice permit “the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” (Tenn. Code Ann. § 29-26-121(a)(2)(E)).

Plaintiff filed her initial complaint on July 1, 2015, after which defendants filed a motion to dismiss based on the deficiencies in the pre-suit notice. Plaintiff then filed a notice of voluntary dismissal, and an order of dismissal was entered on September 17, 2015.

On July 6, 2016, plaintiff sent a second pre-suit notice to defendants, then she re-filed her complaint on September 16, 2016. Defendants moved to dismiss this complaint, alleging that plaintiff’s first complaint was untimely and that she was thus not entitled to take advantage of the one-year savings statute. The trial court agreed, granting the motion to dismiss, and the Court of Appeals affirmed.

April 9, 2018

TCA Sec. 20-1-119 Applied to Save Case Against Previously Dismissed Defendant

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

If a plaintiff originally names a defendant then later voluntarily dismisses that defendant, the plaintiff may be able to re-name the defendant in an amended complaint pursuant to Tenn. Code Ann. § 20-1-119 after another defendant asserts comparative fault against the previously nonsuited defendant. This result may not be affected by the fact that the same defendant was named as a potential comparative tortfeasor in the answer to the original complaint.

In Scales v. H.G. Hill Realty Co., LLC, No. M2017-00906-R3-CV (Tenn. Ct. App. Jan. 30, 2018), plaintiff fell in a grocery store on February 19, 2014. She filed suit against four entities that owned or operated the store on December 4, 2014 for various negligence and premises liability claims. The defendants included two entities related to Publix (the Publix defendants) and two related to the owners of the property (the Hill defendants). The Publix defendants filed an answer on January 8, 2015, in which they asserted as an affirmative defense the comparative fault of the Hill defendants.

After serving discovery requests on plaintiff, the Hill defendants filed a motion to compel. Plaintiff subsequently voluntarily dismissed the Hill defendants, with an order of dismissal without prejudice being entered on May 29, 2015.

April 2, 2018

Door That Opened Into Lobby – Not Defective Condition

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

A door that opened into a lobby area and had no warning signs has been held to not be a dangerous condition under certain circumstances.

In Wimmer v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2017-00352-COA-R3-CV (Tenn. Ct. App. Jan. 26, 2018), plaintiff had just finished a doctor’s appointment and was waiting for a van from her assisted living facility to pick her up. So that she could see the van approaching, she was standing just inside the building near the glass sliding entry doors, but she was not in the vestibule area between two sets of sliding doors. While she was waiting, a man in scrubs opened a door from a fire stairwell that opened into the lobby, and the door hit plaintiff, knocking her over and injuring her. The door was a “wooden door with a black metal frame surrounded by red brick.” Plaintiff testified that she “did not see the door until after she was hit,” and that she “didn’t even realize there was a door at that time because I wasn’t paying any attention to the fact that there might be a door there.” The door did not have any warning that it opened into the lobby, and it did not have a window panel, so people coming through the door could not see whether there was anyone on the other side.

At trial, both sides presented expert testimony. When asked whether the door was a dangerous condition, plaintiff’s expert testified that “as you learn more about what occurred, you can see why things could become hazardous, if certain sets of circumstances were to prevail…” He also testified that it would have been appropriate for the door to have a warning, and that if there had been a panel of glass in the door, it “may not stop it from happening, but they’ll at least have some idea that it’s getting ready to happen.” Plaintiff also called as a witness one of defendant’s former security employees, who testified that the door in question was “an odd door,” and that there were a few doors at defendant’s facility “that you can be standing there and someone may push that door out and you may not be—they may not know someone is standing on the other side.” He stated that he had taken reports of people being injured by doors during his employment with defendant.

March 28, 2018

What Happens When Defendant Dies Before Suit is Filed?

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

When a potential personal injury defendant dies after an alleged tort, the survival statute will extend the running of the statute of limitations “for a maximum of six months from the date of the death of the tortfeasor or until a personal representative has been appointed.” The fact that a plaintiff may not have actually discovered the death of the potential defendant is not relevant to the tolling of the statute of limitations.

In Putnam v. Leach, No. W2017-00728-COA-R3-CV (Tenn. Ct. App. Jan. 23, 2018), plaintiff was injured in a car accident when defendant crossed the center line and struck her vehicle. The accident occurred on February 2, 2015. Defendant died on January 4, 2016, though plaintiff was unaware of this death. Plaintiff filed suit against defendant on February 2, 2016, and service was returned on February 26, 2016 with a note “indicating that [defendant] was deceased.” Plaintiff’s attorney, however, did not read the note at that time. On July 18, 2016, plaintiff called her attorney to check on the case, at which time the attorney saw the note indicating that defendant was deceased. On October 21, 2016, plaintiff petitioned the probate court to appoint an administrator ad litem, and plaintiff filed an amended complaint naming the administrator ad litem on October 31, 2016.

Defendant administrator filed a motion to dismiss, asserting that plaintiff’s complaint was not timely filed. The trial court granted the motion, and the Court of Appeals affirmed.

March 23, 2018

Assault Claim in Health Care Facility

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

A plaintiff’s claim for assault and battery within a medical facility may not fall under the HCLA, and thus not be subject to its pre-suit notice and certificate of good faith requirements.

In C.D. v. Keystone Continuum, LLC d/b/a Mountain Youth Academy, No. E2016-02528-COA-R3-CV (Tenn. Ct. App. Jan. 22, 2018), plaintiff, a minor, was a resident of defendant youth residential treatment facility, which the Court described as part mental healthcare facility and part detention center. According to plaintiff, an employee who was a “third shift night guard” was responsible for taking plaintiff to the bathroom so he “could get ready for the day,” and on one particular occasion, the employee and the plaintiff had a disagreement during which the employee eventually “grabbed [plaintiff’s] right shoulder and pushed the back of [his] left shoulder, causing [him] to turn and fall to the ground.” Plaintiff alleged that while he was lying on the ground, the employee “stomped on [his] right foot.” Defendant disputed plaintiff’s description of the employee as a night guard, instead calling him a “mental health associate.”

Defendant filed a motion to dismiss, arguing that all of plaintiff’s claims were subject to the HCLA and that his failure to provide pre-suit notice and a certificate of good faith were thus fatal to his claim. The trial court agreed, dismissing the mother’s action with prejudice and the minor’s without prejudice (apparently making this distinction solely because he was a minor).

March 19, 2018

Contractual Indemnity Claim Not Subject to HCLA

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

When an medical malpractice defendant files a third-party complaint based on a contractual indemnity provision, that third-party complaint may not fall within Tennessee’s Health Care Liability Act.

In Johnson v. Rutherford County, Tennessee, No. M2017-00618-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2018), plaintiffs sued various government entities for extreme injuries their son received when attacked by another inmate in the Rutherford County Adult Detention Center. In an amended complaint, plaintiffs alleged that the director of health services at the jail had been warned about the other inmate’s violent tendencies. When filing its answer, the County also filed a third-party complaint against the director of health services’ employer, Rudd Medical Services, which was the “entity that provided medical services to prisoners housed” at the jail. “The County alleged that it had entered into a contract with Rudd for the provision of health care services to inmates, which contract contained a clause requiring Rudd to indemnify and hold the County harmless from any claims based upon…the actions of Rudd employees.”

Rudd filed a motion to dismiss, asserting that the third-party complaint fell within the parameters of the HCLA and that the County had failed to file a certificate of good faith. The trial court granted the motion, but the Court of Appeals overturned the dismissal.

March 14, 2018

Primary Cause of Medical Malpractice? Failure to Properly Diagnose

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

A new study reveals that “diagnosis-related events are the single largest root cause of medical professional liability claims.”

The study “provides insight into the root causes of diagnosis-related claims based on an analysis of 10,618 closed medical professional liability claims at Coverys across a five-year period (2013-2017).

The study found that 33% of all claims and 47% of all indemnity payments in the five years of claims that were studied. A whopping 54% of diagnosis-related claims results in serious injury and 36% result in death.