Day on Torts

July 12, 2017

Slander Subject to Six-Month Statute of Limitations

In Vaughn v. Methodist Hospital Staff & Administration, No. W2016-00422-COA-R3-CV (Tenn. Ct. App. May 8, 2017), the Tennessee Court of Appeals affirmed dismissal of a slander claim due to the six-month statute of limitations.

Plaintiff, who was proceeding pro se, originally filed her action in general sessions court for “libel/slander/defamation of character…” on July 15, 2014. In court, she testified that her claims were all based on statements made on July 17, 2013. The general sessions court dismissed the case pursuant to the six-month statute of limitations, and the circuit court subsequently granted a motion for summary judgment on the same grounds, which the Court of Appeals affirmed.

July 12, 2017

Jury Verdict For Defendant Affirmed in Brentwood Car Wreck Case

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

In Higgs v. Green, No. M2016-01369-COA-R3-CV (Tenn. Ct. App. May 11, 2017), the Court of Appeals affirmed a jury verdict for defendant in a car accident case.

Plaintiff and defendant were involved in a two-car accident in Brentwood. “The accident occurred as Defendant was making a left-hand turn across Plaintiff’s lane of traffic to enter a gas station when the front of Plaintiff’s vehicle collided with the rear quadrant of the passenger’s side of Defendant’s vehicle.” Plaintiff alleged in her complaint that the accident was due to defendant’s failure to yield, failure to keep a proper lookout, failure to keep his car under control, and turning without making sure it was safe to do so. Further, plaintiff cited four statutes that she alleged defendant violated, asserting that defendant had thus committed negligence per se.

The jury returned a verdict finding plaintiff 75% at fault and defendant 25% at fault, and judgment was thus entered for defendant. Plaintiff moved for a new trial, which the trial court denied, and this appeal followed. On appeal, plaintiff presented two issues, one dealing with the exclusion of certain testimony from a police officer and one dealing with potential juror misconduct.

During the trial, but while the jury was not present, the investigating officer who plaintiff planned to call as a witness was questioned. The officer testified that “he had no independent recollection of the accident other than what was written in his police report and the police report did not indicate that Defendant had crossed a double-yellow line when he made his left turn to cross Plaintiff’s lane of traffic.” The officer further testified that defendant was not issued a citation after the accident. Despite these admissions, the officer stated that he was familiar with the area and that “there was a double-yellow line” where the accident occurred, that the double-yellow line would indicate “a continuation of a median,” and that it was illegal to turn across a median.

July 11, 2017

Forum Non Conveniens in Tennessee Personal Injury Cases

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

In J. Alexander’s Holdings, LLC v. Republic Services, Inc., No. M2016-01526-COA-R3-CV (Tenn. Ct. App. May 12, 2017), the Court of Appeals affirmed dismissal based on the ground of forum non conveniens.

Plaintiff restaurant had contracted with defendant for waste removal at some of its locations. The incident from which this case arose happened at a restaurant in Livonia, Michigan, where “in the process of retrieving the dumpster” at plaintiff’s restaurant location a driver for defendant allegedly hit the restaurant and caused damage. Total damages? $13,800 (plus attorneys’ fees and costs).

Plaintiff filed its complaint in the Davidson County General Sessions Court in Tennessee for breach of contract and negligence. Defendant moved for dismissal based on improper venue, which the sessions court granted. Plaintiff appealed to the circuit court, where the case was eventually dismissed based on improper venue and forum non conveniens. This appeal followed.

June 27, 2017

No Expert Needed Where EMT Allegedly Punched Patient

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

In Zink v. Rural/Metro of Tennessee, L.P., No. E2016-01581-COA-R3-CV (Tenn. Ct. App. May 2, 2017), the Court of Appeals held that plaintiff’s allegations fell within the HCLA, but that no certificate of good faith was required because the claimed negligence was “subject to the common knowledge exception.”

In his complaint, plaintiff alleged that defendant EMT “’negligently and carelessly’ struck [plaintiff] in the face with his fist.” Plaintiff asserted that he was strapped to a gurney at the time, and that defendant “assaulted and battered him, using excessive force.” Further, plaintiff claimed that defendant’s actions caused him permanent injury and medical expenses. Plaintiff brought this action for negligence against defendant EMT and his employer.

Defendants filed a motion to dismiss, asserting that plaintiff’s claims were subject to the HCLA and that plaintiff did not follow the procedural requirements of the statute. The trial court granted the motion, dismissing plaintiff’s complaint with prejudice due to his failure to file a certificate of good faith pursuant to Tenn. Code Ann. § 29-26-122. The trial court rejected plaintiff’s argument that no certificate of good faith was needed because his allegations fell within the common knowledge exception to the expert testimony requirement. On appeal, however, this decision was reversed.

June 26, 2017

Claims of “Beatings” By Medical Personnel Not Subject to Tennessee HCLA

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

In Lacy v. Saint Thomas Hospital West, No. M2016-01272-COA-R3-CV (Tenn. Ct. App. May 4, 2017), a pro se plaintiff brought a claim against several medical providers, alleging that she was “beaten during medical procedures.” Plaintiff did not give pre-suit notice or file a certificate of good faith, and the defendants accordingly moved to dismiss, asserting that plaintiff’s claims were covered by the HCLA. The trial court dismissed all of plaintiff’s claims, but the Court of Appeals reversed a portion of this ruling, holding that some of plaintiff’s claims did not fall under the HCLA and were thus not subject to its procedural requirement. Plaintiff’s claims related to two separate incidents. In the first, she alleged that a doctor at St. Thomas Hospital “committed the offense of assault and battery by beating, electrocuting, and burning her while she was undergoing medical testing.” Plaintiff asserted that her hands were burned and she suffered an overdose of electrical current, and that after the shock the doctor “physically beat her…[by] hitting her four times on the front part of her right shoulder.” The second incident concerned an MRI, which plaintiff alleged was too hot and burned her. She also claimed that the individual administering the MRI beat her on the left shoulder while positioning her, and that after the test he “took her medical file and beat her from head to ankle up and down never saying a word.” She further alleged that an MRI technician “beat her left leg four times causing bruising.”

Plaintiff’s claims related to two separate incidents. In the first, she alleged that a doctor at St. Thomas Hospital “committed the offense of assault and battery by beating, electrocuting, and burning her while she was undergoing medical testing.” Plaintiff asserted that her hands were burned and she suffered an overdose of electrical current, and that after the shock the doctor “physically beat her…[by] hitting her four times on the front part of her right shoulder.” The second incident concerned an MRI, which plaintiff alleged was too hot and burned her. She also claimed that the individual administering the MRI beat her on the left shoulder while positioning her, and that after the test he “took her medical file and beat her from head to ankle up and down never saying a word.” She further alleged that an MRI technician “beat her left leg four times causing bruising.”

June 22, 2017

Case Remanded For Entry of Order that States Reasons for Ruling

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

In a recent negligence case, the Court of Appeals vacated summary judgment due to the trial court’s failure to explain the basis upon which summary judgment was granted, and it remanded the case with directions for an order that met the standards of Tennessee Rule of Civil Procedure 56.04 to be entered.

In Koczera v. Steele, No. E2015-02508-COA-R3-CV (Tenn. Ct. App. April 28, 2017), plaintiffs had previously filed an HCLA suit against several defendants, including Dr. O’Connor and Oak Ridge Urology Associates (ORUA). Christi Steele was the office manager at ORUA, and she “was served with Dr. O’Connor’s process and gave the complaint and summons to another doctor, who gave them to Dr. O’Connor.” Dr. O’Connor was eventually dismissed from the HCLA suit on the basis that “Ms. Steele was not authorized to accept service of process on his behalf.”

Plaintiffs subsequently filed this case against Ms. Steele, the doctor to whom Ms. Steele gave Dr. O’Connor’s process, ORUA, Tennessee Urology Associates PLLC, and Tennessee Urology Associates PLLC d/b/a Oak Ridge Urology Associates. In their complaint, plaintiffs alleged that “the negligence and negligent misrepresentation of those parties prevented Dr. O’Connor from being properly served and resulted in his dismissal from the [original] suit.”

June 19, 2017

61% Remittitur Affirmed in Tennessee Injury Case

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

In West v. Epiphany Salon & Day Spa, LLC, No. E2016-01860-COA-R3-CV (Tenn. Ct. App. April 25, 2017), the Court of Appeals affirmed a large remittitur in a negligence case, reducing the jury’s award by over 61%.

Plaintiff had gone to defendant salon for a facial treatment in 2012. According to her testimony, her “face began burning upon application of the treatment” and she “rushed home in pain.” She filed this negligence action, alleging that her face never recovered from the treatment.

June 16, 2017

No Proof of Causation where Cause of Fire Not Identified

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

The Tennessee Supreme Court recently held that a contractor and subcontractor were not liable in a case where a partially constructed home burned, but the cause of the fire could not be pinpointed.

In Jenkins v. Big City Remodeling, No. E2014-01612-SC-R11-CV (Tenn. April 5, 2017), plaintiffs brought a negligence action against both the general contractor and flooring subcontractors who were building plaintiffs’ new home after the home was destroyed in a fire. Expert testimony established that the fire started on the back deck of the home, yet the specific cause could not be identified—“possible causes of the fire were arson, improperly discarded cigarettes, electrical issues, and spontaneous combustion of rags.” The deposition testimony in this case showed that the property was not fenced; that the back deck could have been accessed by any member of the public; that plaintiffs had had several construction workers on the property; and that the fire happened on Halloween, a time when “a lot of fires occur, including fires that are intentionally set.” Plaintiffs asserted that the subcontractors’ negligence caused the fire, as they had been seen smoking on the back deck before and they had been using rags to apply flammable flooring materials on the day of the fire, which could have caused the fire if disposed of in an improper manner. To prove the claim against the general contractor, plaintiffs planned to rely on the doctrine of res ipsa loquitur to infer negligence.

June 15, 2017

County Not Responsible for Suicide of Recently Released Inmate

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

In Haynes v. Wayne County, No. M2016-01252-COA-R3-CV (Tenn. Ct. App. April 19, 2017), the Court of Appeals affirmed summary judgment, holding that the county was not liable in a wrongful death action where an inmate committed suicide shortly after his release.

The decedent was 20-years-old and had been arrested for underage consumption, public intoxication, and resisting arrest. On the night of his arrest, he was intoxicated to the point of barely being able to walk and throwing up on himself. He asked two arresting officers if their guns were real and asked the officers to shoot him. This behavior was reported to the booking officer, who asked decedent several standard medical questions. Decedent told the booking officer that “he was suffering from depression and had attempted to commit suicide several times in the past.” Decedent was put in a suicide prevention suit and in an isolated cell on suicide watch, where he slept without incident. There was a non-profit organization called Centerstone that would come evaluate suicidal inmates, but they would not come while an inmate was intoxicated. At 6:00 a.m. there was a shift change and a new officer came on duty. The officer was informed of the statements decedent had made the night before. That morning, decedent was told he was eligible for release, and the officer asked decedent if he remembered making the suicidal threats the night before, to which decedent “replied in a joking manner that he remembered making the statement but was just drunk and did not mean it.” The release process took about an hour, and decedent “seemed fine during that time.”

June 9, 2017

Testimony on Whether Doctor “Did Her Best” Excluded in Medical Malpractice Case

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

In Bradley v. Bishop, No. W2016-01668-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2017), the Court of Appeals affirmed a jury verdict for defendants in a health care liability case.

For eight years, plaintiff had been treated for a fibroid in her uterus that caused extensive bleeding. In 2012, another fibroid was discovered, and after an unsuccessful surgery to remove the fibroid, plaintiff decided to undergo a hysterectomy. Defendant doctor recommended a laparoscopic hysterectomy, but warned plaintiff that she might have to convert to an open procedure. During the surgery, defendant did convert to an open procedure. Defendant called for surgical back-up, but no one was available, and defendant determined that she could complete the procedure herself. During the procedure, defendant noticed a “superficial cut” on plaintiff’s colon, but she did not see or notice any signs of a bowel injury. In the days following the hysterectomy, plaintiff’s “condition deteriorated,” and she was eventually diagnosed with a bowel injury which required surgical repair, three weeks of hospitalization, and additional procedures in the following years.

Plaintiff filed this suit, alleging that defendant “negligently caused injury to [plaintiff’s] small bowel.” Throughout the litigation, causation was not contested, as defendant admitted that the bowel was injured during the surgery. Whether defendant’s actions met the applicable standard of care, however, was hotly contested, with several experts testifying for both sides. Plaintiffs’ experts testified that defendant had fallen below the standard of care, that a different type of hysterectomy would have been more appropriate, that defendant had made mistakes during the surgery, and that defendant should have noticed the bowel injury. Defendants’ experts, however, testified that the chosen procedure was appropriate, that defendant acted in accordance with the standard of care at all times, and that bowel injuries were a common complication of hysterectomies and could occur even when the surgery was done appropriately. Ultimately, the jury returned a verdict for defendant, finding that defendant “did not deviate from the recognized standard of care,” which the trial court affirmed as thirteenth juror. On appeal, the Court of Appeals also affirmed.