Day on Torts

March 9, 2018

Waiver of Attorney-Client Privilege

When a plaintiff asserts the discovery rule as a response to a statute of limitations defense, some documents covered by the attorney-client privilege may become discoverable.

In Outpost Solar, LLC v. Henry, Henry & Underwood, P.C., No. M2016-00297-COA-R9-CV (Tenn. Ct. App. Dec. 29, 2017), “two companies brought suit against their former attorney for legal malpractice.” Defendant attorney moved for summary judgment based on the statute of limitations, and plaintiff “responded that it learned of its cause of action within one year of the assertion of the claim.” Defendant tried to use discovery requests to obtain communications between plaintiff and the new attorney, but plaintiff refused, asserting the attorney-client privilege. Defendant moved to compel production, which the trial court granted, “holding that the client impliedly waived attorney-client privilege in asserting that the client discovered the cause of action within the year preceding the assertion of the claim.”

The trial court appointed a special master “to determine whether any of the 151 documents which [plaintiff] had withheld from production as privileged were relevant to [defendant’s] statute of limitations defense.” The special master found that eight were relevant, and the trial court ordered that those eight documents be produced, noting that “plaintiffs put their privileged information at issue by pleading the discovery rule.” On appeal, the decision and process was affirmed.

March 8, 2018

ACTL White Paper on Attorney-Client Privilege

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

The American College of Trial Lawyers recently released on white paper on attorney-client privilege. The paper updates an earlier publication on the subject.

The paper is an excellent summary of the law in this area, and is especially helpful to those of us in smaller states that have a less established body of law in this field.

March 2, 2018

Punitive Damages Award Vacated – Trial Court Found Not to Have Weighed Factors

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

When a trial court awards punitive damages, it must engage in sufficient analysis on the relevant factors, and its “order must clearly demonstrate how each factor impacted the court’s decision.”

In Cox v. Cox, No. E2016-01097-COA-R3-CV (Tenn. Ct. App. Dec. 29, 2017), plaintiff husband filed suit against defendant wife for both a divorce and an assault tort claim. Prior to the lawsuit, wife had “entered the marital residence and stabbed husband twice in the neck.” Wife stipulated to the divorce and assault, so the only issue was damages.

In the trial court, husband testified that “as a result of his injuries, he missed one month of work and lost approximately $20,000 in income,” but later admitted that “he had never reported $20,000 in business income in previous years.” He also testified that since the stabbing, he had been forced to reduce his work hours as a mechanic. Husband did not submit any medical bills or expert testimony during the proof portion of the case, but the court allowed him to submit invoices from his doctor after the hearing. The trial court ultimately awarded husband $15,000 in compensatory damages and $10,000 in punitive damages on his tort claim.

March 1, 2018

Rule 60.02 Motion Denied As Untimely

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

A Rule 60.02 motion to set aside the final judgment in a Tennessee wrongful death action was deemed untimely when filed almost twenty months after the order of dismissal.

In Hussey v. Woods, No. W2014-01235-SC-R11-CV (Tenn. Dec. 18, 2017), decedent and Ms. Harris had a long-term relationship but were never married, but Ms. Harris had a child during this time period in 2005. When sued for support by the Mississippi Department of Human Services, decedent “signed an agreement admitting that he was the natural father of the child[.]” In 2008, decedent “died after being detained and handcuffed by the manager of a Family Dollar store in Memphis.” Decedent’s mother, with whom he lived, contacted an attorney about filing a wrongful death suit. This first attorney met with both mother and Ms. Harris in December 2008, and Ms. Harris “signed an agreement retaining [the attorney] to represent Ms. Harris and [decedent’s] minor child in a wrongful death suit against the Family Dollar store.”

In July 2009, the first attorney sent a family representative a letter declining representation. In November 2009, decedent’s mother hired another firm and filed a wrongful death suit as next of kin. This suit settled in March 2010, and a consent order of dismissal with prejudice was entered. Ms. Harris was not told about this suit, but in December 2011 she filed a motion to set aside the judgment under Tennessee Rule of Civil Procedure 60.02 on behalf of the child, after having consulted with a legal aid attorney. In response to the motion, decedent’s mother argued that there were questions regarding the child’s paternity and that attempts to contact Ms. Harris had been unsuccessful.

February 28, 2018

Handshake “Assault” May Not Fall Under Health Care Liability Act

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

Allegations related to a patient being injured by a doctor’s handshake may not fall under the HCLA.

In Lacy v. Meharry General Hospital, No. M2016-01477-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2017), plaintiff went to defendant doctor for a check up regarding why she was getting short of breath. Upon entering the room, plaintiff alleged that she offered her hand for a handshake and defendant “squeezed [her] fingers too hard,” which she described as “a beating” or “assault.” Plaintiff alleged, in her pro se complaint, that because of this handshake, “her hand is in constant pain and the fingers no longer have any strength.” Plaintiff also asserted that defendant doctor did not properly add her sonogram results to her medical records.

Defendant filed a motion to dismiss based on plaintiff’s noncompliance with the pre-suit notice and certificate of good faith requirements of the Tennessee Health Care Liability Act (HCLA). The trial court granted the motion, but the Court of Appeals reversed in part.

February 26, 2018

Summary Judgment Vacated Due to Undecided Motion to Amend

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

Where a trial court granted defendant’s motion for summary judgment in a Tennessee premises liability case without considering plaintiff’s motion to amend her complaint, summary judgment was vacated.

In Shaw v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. M2016-02455-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2017), plaintiff was a school bus driver employed by defendant. While attending a mandatory training program in 2013, plaintiff had to park her bus then walk across a parking lot owned and maintained by defendant to get to a shuttle. While walking, plaintiff “tripped on a buckled and cracked portion of the pavement,” which was “purportedly the result of flooding that had occurred in Nashville in 2010.”

Plaintiff filed a premises liability complaint, alleging that defendant “breached its duty of care owed to her by failing to repair or warn her of this dangerous condition,” and asserting that “the parking lot existed in a state of disrepair and had been in such a state for a sufficient length of time that [defendant] knew or should have known of its dangerous condition.” Defendant filed a motion for summary judgment, and plaintiff thereafter filed a motion to amend her complaint and add allegations that defendant “had violated various applicable building codes by failing to properly maintain the lot at issue” and thus committed negligence per se. Plaintiff also filed an affidavit from an engineering expert regarding the alleged building code violations.

February 20, 2018

Tenant Salon Had No Duty to Clear Ice from Parking Lot

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

Where a business leased its store space in a shopping center, the lease provided that the landlord was responsible for the parking lot, and a customer entering the store had the option of parking on a clear parking lot and using clear sidewalks to enter the business, the business owed no duty to a customer who slipped and fell on ice near the curb.

In Newell v. First State Bank, Inc., No. W2017-01209-COA-R3-CV (Tenn. Ct. App. Dec. 7, 2017), plaintiff was a customer at defendant tanning salon, and as she walked to her car after going to the salon she stepped “off the curb onto a snow and ice-covered portion of the parking lot where she had parked her car” and fell. Plaintiff brought a premises liability suit against the salon, as well as other defendants, though the salon was the only defendant relevant to this appeal.

February 9, 2018

Sixteen-Year-Old Misrepresentation Claim Time-Barred

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

Where plaintiff could have discovered fire damage to her home by simply moving the refrigerator or looking in the HVAC return, the statute of limitations on her misrepresentation claims was not tolled under the discovery rule of the doctrine of fraudulent concealment.

In Eldridge v. Savage, No. M2016-01373-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2017), plaintiff purchased a home from defendant in 1994. At the time, defendant told plaintiff that the home had been damaged by a fire started by the previous occupants, and plaintiff noticed “that the home’s kitchen cabinets were caramel color due to being heat scorched, and observed that the home had at least one burnt floor joist in the basement.” Plaintiff also had the home inspected by a professional home inspector at the time of the purchase.

After living in the home for 16 years, one of plaintiff’s children developed respiratory issues, which eventually led doctors to recommend that plaintiff clean the home with bleach in case environmental conditions were causing the child’s issues. During this cleaning, plaintiff discovered that the home had “extensive fire damage behind the refrigerator, behind the cabinets, in the walls, and charred flooring was also discovered beneath the linoleum that [defendant] installed.” Plaintiff further found that “the HVAC return was filled with soot.”

February 8, 2018

Home Inspector Owes No Duty to Guest of Homebuyer

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

The Tennessee Supreme Court recently refused to recognize liability for potential negligence from a home inspector to the third party guest of the purchaser of a home.

In Grogan v. Uggla, No. M2014-01961-SC-R11-CV (Tenn. Nov. 21, 2017), plaintiff was injured when he was a social guest at a home and leaned against a second floor deck railing, which gave way and caused plaintiff to fall. During a home inspection prior to the purchase of the home, the “home inspector noted problems with the deck flooring of the second story deck but not with the railing.” The purchasers had the sellers replace the deck flooring, but not the railing. After plaintiff’s fall, a “forensic inspection of the railing showed that it had been improperly constructed using interior finishing nails rather than galvanized nails.” Plaintiff filed suit against several defendants, including the home inspector and the home inspection franchise.

Regarding defendant home inspector, the complaint alleged that he “should have known that the second floor rear exterior deck railing was constructed with interior finishing nails in violation of local, state, and national building codes, and constituted an unreasonable risk of harm…” The complaint further alleged that the home inspector did not perform the proper tests on the deck railing and that he “failed to report that [it] was negligently constructed in violation of local, state, and national building codes.”

January 23, 2018

Radiologist Found to be Apparent Agent of Hospital

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

Where the only notification a hospital provided to a patient that a radiologist was not an agent of the hospital was buried in fine print in admission forms and not highlighted in any way, the trial court’s finding that the hospital was vicariously liable for any fault assigned to the radiologist was affirmed.

In Beard v. Branson, No. M2014-01770-COA-R3-CV (Tenn. Ct. App. Nov. 8, 2017), the patient in question had colon surgery at defendant hospital and developed complications. The surgeon ordered a CT scan, which was performed at the hospital and read by Dr. Anderson, “a private radiologist whose practice group was under contract with [the hospital.]” The radiologist reported that the scan showed the “possibility of a mechanical bowel obstruction,” a finding with which the surgeon disagreed. The patient’s condition worsened, and she was eventually flown to another hospital where she died in emergency surgery. Plaintiff filed this HCLA/ wrongful death case against the hospital and surgeon, alleging that the patient “died because of delay in treatment of a bowel perforation she developed as a complication of colon surgery.”

In July 2005, plaintiff’s attorney requested a copy of the CT scan, and the hospital responded that it could not be located. Plaintiff attempted to get the CT scan from the surgeon, the radiology group under contract with the hospital, and the hospital at which the patient ultimately died, but was not provided a copy until three years later. The CT scan revealed that Dr. Anderson “failed to note and report evidence of free air in [patient’s] abdomen, indicative of a bowel perforation.” By the time the CT scan was provided, it was too late to add Dr. Anderson, the radiologist, as a defendant.