Day on Torts

October 9, 2018

Refusal to Give Requested Jury Instructions Was Not Error

Where the trial court refused to give special jury instructions requested by plaintiff in a premises liability case, but the relevant issues were sufficiently covered in instructions that basically mirrored the Tennessee Civil Pattern Jury Instructions, the trial court did not err and the jury verdict for defendant was affirmed.

In Creech v. RMRTN Chatt, LLC, No. W2017-01541-COA-R3-CV (Tenn. Ct. App. Sept. 11, 2018), plaintiff was contracted to do HVAC work on a building owned by defendant when a roof-access ladder he was using detached from the building and fell. Plaintiff brought this premises liability suit, alleging that defendant “failed to properly inspect and maintain its ladder in good condition,” but defendant argued during a jury trial that plaintiff “was familiar with the store and its roof-access ladder,” that it had performed proper inspections of the ladder, and that plaintiff’s actions “were the proximate and legal cause of his injury.” After a six-day trial, the jury returned a verdict for defendant.

October 8, 2018

Are Personal Injury and Wrongful Death Awards Subject to Federal Income Tax?

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

The taxability of Tennessee personal injury and Tennessee wrongful death settlements and judgments is governed by Section 104 of the Internal Revenue Code.

Generally, compensatory damages for personal injury and wrongful death are excludable from federal taxation if they arise from personal injury or sickness. Thus, in most personal injury and wrongful death cases arising from a personal injury or sickness, a settlement which includes only compensatory damages will not be subject to federal taxation.

One exception to that rule is if the taxpayer / plaintiff previously deducted medical expenses from her taxable income and then recovered those expenses in a personal injury or wrongful death case. In such cases, the taxpayer / plaintiff would have tax liability because she had previously gained a tax advantage from the deduction of the medical expenses and then was reimbursed for those expenses in a compensatory damages award.

October 2, 2018

No Response to Statement of Undisputed Material Facts Results in Loss

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

In a case based on an altercation that occurred while a worker was attempting to recover an unreturned cable modem, defendant cable company filed a motion for summary judgment with supporting proof that the worker was an independent contractor of a separate entity. Because plaintiff failed to respond to defendant’s statement of undisputed material facts, summary judgment was granted and affirmed.

In Mack v. Comcast Corporation, No. W2017-02326-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2018), plaintiff had an unreturned Comcast cable modem at his house, and a worker attempted to retrieve it. During this attempted retrieval, there was an altercation, and the worker was injured. Plaintiff was arrested, his mug shot was published and he lost his job, but the criminal charges were eventually dismissed. Plaintiff brought this case alleging various causes of action against several defendants, including Comcast.

October 1, 2018

Injury Plaintiff Indispensable Party in Insurer / Insured Dispute

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

A person who was injured in a car accident with an insured party and who had filed suit against the insured party was an indispensable party in a declaratory judgment action between the insured and his insurer regarding coverage of the accident.

In Tennessee Farmers Mutual Insurance Company v. DeBruce, No. E2017-02078-COA-R3-CV (Tenn. Ct. App. Aug. 9, 2018), plaintiff was injured in a car accident with defendant and filed a personal injury claim against defendant. Plaintiff’s counsel notified defendant’s insurance company of the pending lawsuit in January 2015, but defendant never notified the insurer that the lawsuit was filed. In March 2015, the insurer filed a declaratory judgment action against defendant, asserting that his failure to inform them of the claim and cooperate in an investigation amounted to a breach of his policy. Insurer sought a declaratory judgment that “it was no longer required to defend or indemnify defendant in [plaintiff’s] lawsuit against him because of his breach of the policy’s requirements.”

Defendant never responded to the declaratory judgment complaint, and a default judgment was entered in June 2015. In March 2017, plaintiff filed a motion to set aside the declaratory judgment on the basis that “she was an indispensable party to the declaratory judgment action because she had a direct interest in its outcome, as the judgment leaves [defendant] without the means to satisfy or defend himself in the [personal injury] proceedings.” Plaintiff asked that the judgment be set aside as void. The trial court denied plaintiff’s motion, finding that plaintiff was “at most, an incidental beneficiary,” and that while she “had an interest affected by the outcome of the case,” her “rights rise no higher than the rights of [defendant] which were negated by his failure to cooperate.” The Court of Appeals disagreed and vacated the declaratory judgment.

September 28, 2018

No Duty to Help Plaintiff With Service of Process

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

When a sheriff’s deputy delivered service of process to an office employee at a front desk, that employee and clinic had no duty to assist plaintiff in ensuring that process was served in the proper manner.

In Koczera v. Steele, No. E2017-02056-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2018), plaintiff had previously filed an HCLA claim against a Dr. O’Connor. When a sheriff’s deputy arrived at the office to serve Dr. O’Connor, defendant Steele was at the front desk, and the deputy handed her the papers and said they were for Dr. O’Connor. Steele gave the papers to Dr. Pearson, who then gave them to Dr. O’Connor, and upon motion by Dr. O’Connor, he was dismissed from the HCLA suit due to insufficient service of process.

This negligence suit followed, wherein plaintiff alleged that defendants Steele, Dr. Pearson, and the clinic in which they worked were liable for “prevent[ing] the doctor from being served with process in the healthcare liability action.” The trial court granted summary judgment to defendants, finding that no duty existed, and the Court of Appeals affirmed.

September 28, 2018

“Discovery Rule” Analyzed in Cancer Treatment Case

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

The statute of limitations on a Tennessee HCLA claim begins to run “once the plaintiff has information sufficient to alert a reasonable person of the need to investigate the injury[.]” (internal citation omitted).

In Dondero v. Accuray Incorporated, No. E2017-01741-COA-R3-CV (Tenn. Ct. App. July 26, 2018), plaintiff had been diagnosed with prostate cancer and, in an effort to avoid having surgery to remove his prostate, went to defendant doctor to discuss CyberKnife treatment. Plaintiff asserted that he was given a pamphlet describing the treatment as having “extreme accuracy” that would “spar[e] surrounding healthy tissue.” Plaintiff underwent five CyberKnife treatments in October 2012 with defendant Dr. Kimsey, and during two he experienced “pain in his penis and a burning sensation in his lower abdomen.”

In July 2013, plaintiff consulted with his general practitioner about blood from his rectum. He was referred to a gastroenterologist in August 2013, and in September had to have a procedure to cauterize damage that plaintiff “admittedly assumed…was caused by the CyberKnife treatment.” At a December 2013 appointment with Dr. Kimsey, plaintiff complained about several problems he was experiencing, including the damage that had to be cauterized, but “Dr. Kimsey told him that this was a common problem associated with cyber knife.”

September 28, 2018

Plaintiff’s Past Medical Records Should Have Be Allowed as Evidence

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

Where defendant had the proper affidavit to authenticate plaintiff’s medical records related to treatment she received prior to a car accident, the trial court erred by excluding the evidence.

In Goodwin v. Hanebis, No. M2017-01689-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2018), plaintiff was injured in a car accident with defendant. The jury awarded her $70,000 in damages, including an award for all the medical expenses for which she presented proof and damages for pain and suffering, permanent injury, and loss of enjoyment of life. The trial court reduced the award by $1,004 to reflect the correct amount of medical expenses presented at trial, and defendant appealed citing several issues, including whether the trial court erred by excluding evidence of medical treatment plaintiff had received before the accident. The Court of Appeals ruled that some of the previous medical records should have been admitted and accordingly vacated the judgment.

Before the trial, plaintiff had filed a motion in limine to exclude her prior records from two clinics, Greenview and Bowling Green. Plaintiff asserted that defendant “clearly wishe[d] to introduce these records to argue that [plaintiff] had preexisting conditions that caused the injuries complained of in this lawsuit.” The trial court granted the motion and disallowed the records.

September 27, 2018

No Attorney’s Fee Award Permitted in Trespass Case

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

Attorney’s fees are not recoverable in a claim for trespass in Tennessee. In Perlaky v. Chapin, No. E2017-01995-COA-R3-CV (Tenn. Ct. App. July 27, 2018), plaintiff owned land on a mountain with easement rights to access the land by a specific road. When defendants bought property on the same mountain, they blocked the road by “felling 400 or 500 trees across the road, setting up a steel gate, and placing security guards at the gate to monitor access.” Plaintiff filed this trespass action, and the trial court awarded him nominal damages. The trial court initially awarded plaintiff attorney’s fees, but after a motion to alter or amend the judgment by defendant, the trial court vacated the award of attorney’s fees. The Court of Appeals affirmed.

First, the Court affirmed the award of nominal fees. Because plaintiff had presented damages incurred by Raccoon Mountain Campground, LLC, but had filed suit individually, the trial court found that no actual damages to plaintiff were proven. Nonetheless, “even where no actual damages are proven, the plaintiff is still entitled to nominal damages,” and the award of $174.14 as nominal damages was affirmed.

September 27, 2018

What To Do When the Tortfeasor Dies Before Suit is Filed

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

Here is the beginning of my “Day on Torts” column for the Tennessee Bar Journal on what a plaintiff should do if the tortfeasor dies before suit is filed. Click on the link to read the full text of the article.

Your new client thought she could avoid hiring a lawyer and instead work out on her own a settlement with the insurance claims representative for the other driver. The dance lasted 10 months. “Wait until the end of medical treatment.” “Sign these forms.” “Send me your medical bills.” “I need your EOB forms.” “Your employer needs to confirm in writing your lost wages.” And so on.

She (finally) has concerns about whether she is going to be treated fairly and hires you as her lawyer. You have two months to investigate and evaluate the case, and to file a lawsuit. Your chance to settle the case pre-suit is long gone.

September 26, 2018

“Scope of Employment” and the Tennessee GTLA

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

Where an ROTC instructor pulled a stool from beneath a student, his actions were not within the scope of his employment and immunity was not removed under the GTLA.

In O’Brian v. Rutherford County Board of Education, No. M2017-00527-COA-R3-CV (Tenn. Ct. App. July 31, 2018), plaintiff was a sophomore in high school and participant in the ROTC program. While at an ROTC competition, the instructor asked his group of students to sit on a log. The instructor’s stool, which he had brought from home, was next to the log. Plaintiff sat on the stool to tie her shoes. The instructor asked her to move several times, to which she responded that she was almost finished. After saying plaintiff’s name for a third time and plaintiff not moving, the instructor pulled the stool out from underneath plaintiff, and she fell, injuring her back.