Day on Torts

November 16, 2017

Expert Causation Testimony Required in Legal Malpractice Case

In a legal malpractice case, a plaintiff must usually present expert testimony regarding the standard of care and causation.

In Franklin-Murray Development Company, L.P. v. Shumacker Thompson, PC, No. M2015-01968-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2017), plaintiff sued defendant attorneys who had represented plaintiff in litigation related to a commercial real estate deal. In the underlying matter, plaintiff had contracted with First American Trust Company (FATC) to purchase property in Williamson County, giving FATC $100,000 in earnest money. Another $100,000 in earnest money was due “on the first business day after the last day on which [plaintiff had] a right to terminate the contract.” Just before the scheduled closing date, plaintiff found out there was a federal estate tax lien on the property, and so the sale did not close. Plaintiff “did not terminate the agreement in accordance with the termination provision, nor did it seek a refund of the earnest money previously paid or pay FATC the additional $100,000 in earnest money. Rather, [plaintiff] contacted FATC regarding the possibility of setting a new closing date.” Negotiations eventually broke down between the parties, and FATC filed suit seeking a declaratory judgment that the lien did not prevent conveyance of good title and for $200,000 in liquidated damages.

November 13, 2017

Dismissal of Fraud Case Overturned

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

Showing reliance in a fraud case does not require magic words during a plaintiff’s testimony. In Erwin v. Great River Road Supercross LLC, No. W2017-00150-COA-R3-CV (Tenn. Ct. App. Oct. 19, 2017), plaintiffs sued defendants based on a real estate purchase. Defendants had provided a warranty deed to plaintiffs that “specifically warranted against encumbrances,” but the property was actually subject to a $20,000 mortgage, which was not paid off at the time of closing. As part of this suit, plaintiffs alleged that this misrepresentation constituted fraud.

The trial court found that “[t]here was indeed an intentional misrepresentation made that the real property was unencumbered,” but it held that plaintiffs had not established the required element of reliance. The trial court found that “[o]ne Plaintiff testified that he did not rely on the unencumbered language in the deed when making the decision to purchase the property” and held that the claim failed.

On appeal, the Court of Appeals reversed this decision and remanded the intentional misrepresentation claim for further proceedings. The Court reviewed the plaintiff in question’s testimony, and noted that he stated that the warranty deed specifically said the property was unencumbered, that the property was in fact encumbered by a mortgage, and that he did not know about the mortgage until after the purchase had taken place and he received a foreclosure notice. The Court held:

October 17, 2017

UM Carrier Obtains Dismissal Because of Failure to Obtain Service on Driver

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

Where plaintiff failed to have service issued for over a year against the defendant driver in a car accident case, her claim against her uninsured motorist insurance carrier was barred.

In Davis v. Grange Mutual Casualty Group, No. M2016-02239-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2017), plaintiff filed suit on March 20, 2015 after a car accident, naming both the defendant driver and her uninsured motorist carrier. The suit was filed within the one-year statute of limitations for personal injury actions, but plaintiff “did not cause a summons to issue to either defendant” until April 19, 2016, which was thirteen months after the complaint was filed. The summons was issued to the driver at his last known address and was returned unserved on April 21^st by the sheriff with a notation that the driver was “not to be found in my county.”

On April 25^th, “the trial court sua sponte dismissed the action for failure to prosecute.” Plaintiff filed a motion to set the dismissal aside on May 24^th, and on the same day process for the insurance company was returned unserved. Second summonses were issued for both defendants on June 6^th and 7^th, and the driver’s was returned unserved indicating that he had died.

October 13, 2017

Negligent Weapon Storage and Failure to Prevent Suicide

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

Where a defendant knew of decedent’s past suicide attempt, knew she was suffering from depression, and knew he had just ended his relationship with her, the trial court was wrong to grant summary judgment on a negligence case related to him showing her an unsecured gun in his home to which she had access.

In In re Estate of Cotten, No. M2016-02402-COA-R3-CV (Tenn. Ct. App. Sept. 15, 2017), the personal representative of decedent’s estate brought suit against defendant for negligence based on “the defendant’s alleged acts of displaying and failing to properly store and prevent accessibility to the firearm with which decedent ultimately committed suicide.” Decedent was married and had a son when she met and began an affair with defendant. Decedent was a nurse at Skyline Hospital, and defendant was a psychiatrist there. Decedent divorced her husband in 2012, but she retained equal co-parenting time of her son. Two years after beginning the relationship, decedent moved in with defendant, at which time defendant admitted “observ[ing] that Decedent suffered crying spells and appeared to struggle with the loss of her job and eviction from her previous residence.” Decedent began seeing another psychiatrist at the hospital and was given medication for depression. Defendant was aware of decedent’s treatment.

October 11, 2017

Pro Se Suit Against Local Government Time-Barred

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

The statute of limitations for a claim falling under the GTLA is one year. In Thigpen v. Trousdale County Highway Department, No. M2016-02556-COA-R3-CV (Tenn. Ct. App. Sept. 19, 2017), a pro se plaintiff filed suit against the highway department and two individuals claiming that they damaged his home while using equipment to resurface a nearby road. The trial court granted defendant’s motion to dismiss based on the statute of limitations, and the Court of Appeals affirmed.

Because the highway department was a governmental entity, this suit fell under the GTLA. Immunity was waived because the GTLA provides that governmental entities may be sued “for injuries resulting from the negligent operation by any employee of a motor vehicle or other equipment while in the scope of employment.” (Tenn. Code Ann. 29-20-202(a)). The GTLA also provides, however, that any action must be brought within one-year of the cause of action accruing. Here, the alleged damage occurred three years before the complaint was filed. Dismissal was accordingly affirmed.

The Court of Appeals also affirmed dismissal of the two individuals named in the complaint, noting that “the GTLA prohibits claims for damages against governmental employees when governmental immunity has been waived,” and that “the complaint does not allege that the individuals acted in an intentional matter or outside the scope of their employment.”

October 10, 2017

Cup of Hot Coffee to Burns Patient

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

A claim that a patient who burned himself should not have been left alone with a hot cup of coffee was determined to fall under the Tennessee HCLA.

In Youngblood ex rel. Estate of Vaughn v. River Park Hospital, LLC, No. M2016-02311-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2017), an 86-year-old patient had hip surgery at defendant hospital. Either the same day or the day after surgery, a nurse brought the patient a cup of coffee and sat it on his bedside table in his ICU room. The patient then spilled the coffee on himself and was burned.

The patient later died of apparently unrelated causes, and his estate filed this action. Plaintiff’s claim was essentially that the patient “was an 86 year old man; who was in ICU following a major surgery; was on pain medication; had visible tremors in his hand; and had an O2 monitor on his index finder. [Patient] should not have been left alone to manage an extremely hot beverage.” Plaintiff did not give pre-suit notice or file a certificate of good faith with her complaint, as she asserted that this claim was not subject to the HCLA. The trial court dismissed the action, finding that it did fall under the HCLA, and the Court of Appeals affirmed.

October 6, 2017

Sudden Emergency Instruction Error in Medical Malpractice Case

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

Where a doctor had time to confer with her colleagues twice, even shortly, before determining a course of action for her patient, the Tennessee trial court erred by giving the jury an instruction on the sudden emergency doctrine. The jury verdict for defendants was accordingly vacated, and the case was remanded for a new trial.

In Vandyke v. Foulk, No. E2016-00584-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2017), plaintiff filed an HCLA suit related to the death of her newborn son shortly after his birth. Plaintiff was 24 weeks pregnant with twins when she was transferred to defendant hospital for pre-term labor. Once it became apparent that delivery was imminent, plaintiff was moved to the operating room, where her delivery team consisted of Dr. Foulk, the attending physician, and two fourth year residents, Goodwin and Hobbs. Baby A was born vaginally, after which time Baby B “settled into a transverse or sideways position.” Dr. Foulk rotated Baby B to a head-down position, and Baby B suffered a drop in heart rate necessitating a quick delivery. Dr. Foulk had a more senior attending physician, Dr. Herrell, paged, and Dr. Foulk and the two residents discussed what should be done. When Dr. Herrell arrived, he and Dr. Foulk assessed the situation and determined that they would attempt a delivery by forceps. Dr. Herrell tried to place a second forcep two times and “met resistance.” Baby B was then delivered by c-section, and he had a “skull fracture a scalp avulsion, meaning that his scalp was no longer attached…” Baby B was transferred to the NICU and died a few hours later.

October 5, 2017

Another Slip and Fall Case Hits the Floor

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

Where a plaintiff who slipped and fell in water at a concert could not show how long that particular spill had been on the floor, and could only show that two other spills had occurred in the same area as her fall, summary judgment was affirmed based on lack of constructive notice.

In Katz v. The Sports Authority of the Metropolitan Government of Nashville and Davidson County, TN, No. M2016-01874-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2017), plaintiff was attending a concert at Bridgestone Arena when she slipped on fell in a puddle on the floor. Her fall occurred between sections 115 and 116 of the 100 level concourse. “[J]ust before she fell, she noticed three people standing nearby, one of whom was carrying a small broom and dustpan.”

Plaintiff filed a premises liability suit, and defendant moved for summary judgment. In response to defendant’s motion, plaintiff “pointed to evidence that: (1) three of Defendant’s employees were standing nearby at the time that she fell; (2) employees were instructed not to clean up until after the concert was over; and (3) at least one other slip-and-fall incident occurred in the same general area about an hour and twenty minutes before [plaintiff’s] fall.” The trial court granted the motion for summary judgment, and the Court of Appeals affirmed.

October 4, 2017

Plaintiff’s Expert Testimony on Causation Deemed Too Speculative

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

Where the expert causation testimony in aT ennessee HCLA (medical malpractice) case was deemed too speculative, summary judgment was affirmed.

In Franklin-Mansuo v. AMISUB (SFH), Inc. D/B/A Saint Francis Hopsital, No. W2016-01623-COA-R3-CV (Tenn. Ct. App. Sept. 6, 2017), plaintiff filed an HCLA action based on the death of his mother. Mother had arrived at defendant hospital’s ER with difficulty breathing and swallowing, and was treated by a physician’s assistant (PA). The PA ordered a CT scan, and then consulted by phone with an ear, nose and throat physician (ENT). The ENT stated that the mother needed to be admitted to the ICU. The PA, however, thought that the ENT was coming to the hospital to oversee the admission. Almost three hours passed, at which point another doctor at the hospital admitted the mother to the ICU. At some point during her transfer or shortly after her ICU admission, the mother lost her airway and suffered brain damage. She eventually died ten days later, though her death certificate listed the cause of death as a stroke.

Plaintiff brought suit against several defendants, but by the time relevant to this appeal the only remaining defendant was the doctor who was the PA’s supervising physician on the day of the incident. The doctor filed for summary judgment, asserting that plaintiff’s experts were not qualified to testify as to the applicable standard of care and that the causation testimony they offered was too speculative. The trial court agreed, granting the motion for summary judgment, and the Court of Appeals affirmed.

October 3, 2017

Pro Se Wrongful Death Complaint Survives Challenge

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

In at least some situations, a surviving spouse can properly file a pro se wrongful death complaint, because the decedent’s right of action actually “passes to” the surviving spouse under Tennessee’s wrongful death statutes.

In Beard v. Branson, No. M2014-01770-SC-R11-CV (Tenn. Aug. 30. 2017), plaintiff’s wife died of sepsis after being treated by defendants. Plaintiff filed a pro se wrongful death action, and defendants moved to dismiss on the grounds that the complaint “was filed in a representative capacity on behalf of the decedent and, as a non-attorney, [plaintiff] could not file a lawsuit for another in a representative capacity.” After the motions to dismiss were filed and after the one-year statute of limitations had run, plaintiff retained an attorney, who filed a notice of appearance and an amended complaint. The trial court denied the motions to dismiss, holding that plaintiff “was permitted to file the wrongful death action pro se because, under section 20-5-106, the decedent’s cause of action passed to [plaintiff] as the surviving spouse, and the decedent had no other statutory beneficiaries.”