Day on Torts

September 13, 2018

Wet Floor Signs Not Enough to Avoid Liability for Slip-and-Fall

Where a school custodian had placed wet floor signs on a small area of one side of a hallway but mopped the entire hallway, the trial court’s finding that the school was liable to a teacher who slipped and fell outside her classroom was affirmed on appeal.

In Robertson v. Clarksville-Montgomery County School System, No. M2017-02492-COA-R3-CV (Tenn. Ct. App. June 28, 2018), plaintiff was a teacher at defendant school. Plaintiff filed suit after she injured herself when she left her classroom to attend a staff meeting and almost immediately slipped on the wet floor in the hall. According to plaintiff, there were two wet floor signs on the opposite side of the hallway in close proximity to one another, but she did not see them before falling. Plaintiff further asserted that even if she had seen them, she would have believed that they indicated that the area between the signs was wet, not the entire hallway.

September 12, 2018

Negligence Claim Preempted by Tennessee UCC

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

Where a claim for negligence against a bank fell within the parameters of the UCC, the common law negligence claim was preempted and summary judgment for defendants was affirmed.

In Mark IV Enterprises, Inc. v. Bank of America, N.A., No. M2017-00965-COA-R3-CV (Tenn. Ct. App. June 26, 2018), plaintiff sued defendant bank for aiding and abetting fraud and conversion, as well as for common law negligence. Plaintiff’s bookkeeper had embezzled money from plaintiff by taking checks written to plaintiff’s vendors and depositing them into her own personal account at defendant bank. Plaintiff alleged that defendant was negligent because the checks were not payable to the bookkeeper, many were not endorsed, and defendant bank had failed to safeguard against such issues when checks were deposited through its ATMs.

The trial court dismissed the conversion and fraud claims on a motion to dismiss, and granted summary judgment to the bank on the negligence claim based on its finding that the bank did not owe plaintiff a duty. The Court of Appeals affirmed, but on different grounds.

September 11, 2018

Acknowledgement Letter Does Not Establish HCLA Pre-Suit Notice

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

Where a plaintiff sent notice to and filed suit against an incorrect HCLA defendant, then moved to amend to name the correct defendant, the motion to amend may be futile if the complaint was originally filed outside the one-year statute of limitations, as the 120-day extension would not apply to the new defendant to whom notice was not given.

In Runions v. Jackson-Madison County General Hospital District, No. W2016-00901-SC-R11-CV (Tenn. June 6, 2018), the plaintiff and her infant daughter had been treated at the defendant hospital, and the infant daughter died, allegedly due to defendant’s negligence. Plaintiff sent pre-suit notice to several entities, all of whom had Ms. Higgs listed as their registered agent. Ms. Higgs was also the registered agent for the Jackson-Madison County General Hospital District (the District), who was not sent notice but ultimately was identified as the proper defendant.

September 10, 2018

One Million Dollar Additur Determined to Destroy Verdict

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

When an additur changed a jury verdict from $300,000 to over $1.3 million, the Court of Appeals ruled that it destroyed the jury’s verdict.

In Walton v. Tullahoma HMA, LLC, No. M2017-01366-COA-R3-CV (Tenn. Ct. App. June 7, 2018), plaintiff brought a health care liability and wrongful death claim after her husband died while in defendant’s hospital being treated for kidney stones. According to plaintiff, her husband was put on a pain pump to self-administer morphine, and she was told to press the button while he slept, which she did. The husband coded the following morning, suffered brain damage, and was eventually taken off life support.

Plaintiff filed this HCLA/ wrongful death suit, seeking medical expenses, the pecuniary value of husband’s life, and damages for a loss of consortium claim. Defendant hospital answered and asserted that plaintiff was comparatively at fault for administering the pain medication to her husband. After a trial, a jury found defendant 51% at fault and plaintiff 49% at fault, and determined that the total damages were $300,000, which included “$300,000 for loss of earning capacity and $0 for loss of consortium.”

September 7, 2018

Deficient HIPAA Authorization Not Grounds for Dismissal

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

Where an HCLA plaintiff sent defendants a HIPAA authorization that “failed to include the mother’s authority to sign the document, the expiration date of the document, and the names of all healthcare providers authorized to use or disclose the requested information,” plaintiff was still deemed to have substantially complied with the statutory requirements, and dismissal of the complaint was reversed.

In Martin v. Rolling Hills Hospital, LLC, No. M2016-02241-COA-R3-CV (Tenn. Ct. App. June 22, 2018), plaintiffs were the parents and children of a patient who was admitted to defendant hospital for suicidal ideation and detoxification, and was found unresponsive two days after her admission, dying later that day.

The death occurred on June 28, 2013, and the first complaint was filed on October 17, 2014, which was outside the one-year limitations period but within the 120-day extension period. That complaint was nonsuited, and a second complaint was filed naming the same defendants within a year of the nonsuit. Defendants filed a motion to dismiss, arguing that plaintiffs did not comply with the pre-suit notice requirements, which meant they were not entitled to the 120-day extension of the statute of limitations. Accordingly, defendants argued that the first suit was time-barred, making the second suit also time-barred. The trial court granted to motion to dismiss based on plaintiffs’ incomplete HIPAA authorization, but the Court of Appeals reversed.

August 27, 2018

No Liability When Customer Broke Chair

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

Evidence of an accident or injury alone is not enough to withstand a motion for summary judgment in a premises liability case.

In Jobe v. Goodwill Industries of Middle Tennessee, Inc., No. M2017-02299-COA-R3-CV (Tenn. Ct. App. June 4, 2018), plaintiff was a shopper at a Goodwill store. When she “attempted to sit in a plastic chair that was displayed for sale,” the chair collapsed, causing plaintiff to fall and injure herself. Plaintiff filed this premises liability action, and defendant filed a motion for summary judgment. The trial court granted summary judgment to defendant, and the Court of Appeals affirmed.

In a premises liability case, a plaintiff must be able to prove the elements of a negligence claim, and also that “the condition was caused or created by the owner, operator, or agent or that the owner or operator had actual or constructive notice that the condition existed prior to the accident.” (internal citation omitted). While business owners must keep their properties reasonably safe, they are “not responsible for removing or warning against conditions from which no unreasonable risk was to be anticipated.” (internal citation omitted).

In support of its motion for summary judgment, defendant submitted deposition testimony from two employees who stated that donated items are “visually inspected and examined by a donation attendant when received and inspected again by a processing employee before merchandise is priced and placed on the sales floor.” One employee stated that while they do not sit on furniture to inspect it, they move it around and check its sturdiness. Further, defendant cited part of plaintiff’s deposition testimony wherein she answered that there was nothing “apparent or obvious to [her] in looking at [the chair] while it was still intact that told you it might not be safe to sit on.”

August 23, 2018

“Excusable Neglect” As A Grounds For Extending Time for Service of Process

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

When a plaintiff files a complaint within the statute of limitations but fails to have process issued and served within the required time parameters, an extension of time for service of process may be granted if a trial court finds excusable neglect.

In Edwards v. Herman, No. E2017-01206-COA-R9-CV (Tenn. Ct. App. May 16, 2018), plaintiff filed a personal injury case based on an automobile-motorcycle accident. The complaint was filed within the one-year statute of limitations on April 21, 2015, and process was issued, but the “original summons was never returned to the trial court and…there is no record of it having been served upon [defendant].” On May 26, 2016, an alias summons was issued, which was served on defendant on June 11, 2016. On July 21, 2016, the sheriff’s department sent a letter to the court clerk stating that they could not find the original summons. The “issuance and service of process undisputedly occurred after the one-year deadline contained in Tennessee Rule of Civil Procedure 3.”

August 15, 2018

Judicial Estoppel Doctrine Bars Legal Malpractice Claim

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

Where a plaintiff has signed a settlement agreement swearing that such agreement is “fair and equitable,” she may be judicially estopped from later bringing a legal malpractice claim based on that same settlement.

In Kershaw v. Levy, No. M2017-01129-COA-R3-CV (No. M2017-01129-COA-R3-CV), plaintiff filed a legal malpractice claim against defendant attorney who had previously represented her during part of her divorce proceedings. When defendant took her case, plaintiff had already been convicted of criminal contempt once in the divorce case for incurring marital debt for gambling money, and she had a pending criminal contempt petition for forging checks to get gambling money. Further, her discovery responses were overdue. After defendant took the case, he drafted a response to the contempt motion wherein plaintiff admitted that she took the money, and she was sentenced to 30 days in jail, though she was released when defendant filed an appeal three days later.

August 14, 2018

Loss of Evidence Destroys Plaintiff’s Case

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

Where a plaintiff in a tractor-trailer accident case unintentionally allowed the tractor at issue to be destroyed, dismissal of the case was ruled an appropriate remedy for spoliation of evidence.

In Gardner v. R&J Express, LLC, No. E2017-00823-COA-R3-CV (Tenn. Ct. App. May 7, 2018), plaintiff owned a tractor truck that was pulling a trailer owned by defendant. While driving, plaintiff was involved in a single vehicle accident when the tractor-trailer overturned, which plaintiff alleged was caused “because the tandem axle on the trailer ‘suddenly and unexpectedly’ came loose while they were traveling down the highway.”

The accident occurred on May 29, 2015, and plaintiff retained counsel just a few weeks later on June 17, 2015. On June 24, 2015, plaintiff’s attorney sent a letter to defendant regarding plaintiff’s intention to file suit and “Defendant’s responsibility to preserve the relevant evidence.” Shortly after this letter was sent, plaintiff signed title of the tractor over to his insurance company, and the tractor was destroyed.

August 10, 2018

Conflicting Information Lighting Means No Summary Judgment

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

Where a defendant has changed its story regarding relevant facts, leaving material facts in dispute, summary judgment is inappropriate.

In Schacklett v. Rose, No. M2017-01650-COA-R3-CV (Tenn. Ct. App. May 2, 2018), plaintiff filed a premises liability claim after falling at defendants’ home. Plaintiff was a catering employee who had entered the home in the daylight using outdoor stairs that led to the kitchen. At the end of the evening, she left by the same stairs, and she fell “through a break in the railing,” landing on concrete. According to plaintiff, “there were no house lights and the motion lights on the steps…were not operating,” and “the entire area was dark.”

When defendant homeowners answered the complaint, they denied that there were no lights and that motion sensor lights were in place. They also “denied that the entire area was dark and therefore dangerous.” Later, in response to requests for admissions, defendants “stated that the outside lighting was working on the night of the accident.” They further asserted that instead of having motion sensor lights that were not working, they had “overrode the timer by placing the lights ‘all on’ for the party.” When defendants filed a motion for summary judgment, however, they asserted that “the exterior lights were off when [plaintiff] fell, and [plaintiff] was negligent in failing to turn the lights on before proceeding down the stairs.”