Day on Torts

May 15, 2017

Patient Alleging Rape at Hospital – Pre-suit Notice Not Required

In Cordell v. Cleveland Tenn. Hosp., LLC, No. M2016-01466-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2017), the Court of Appeals reversed dismissal in a case filed against a hospital, determining that the complaint did not contain claims covered by the HCLA and that the plaintiff was thus not required to follow the HCLA statutory requirements.

Plaintiff was taken to defendant hospital by “police who were concerned that she had taken too high of a dosage of prescribed medication.” She was put in a hospital room, and her husband alleged that when he arrived to see her he was forced to leave. Plaintiff had her cell phone, and she called her husband to tell him that the security guard outside her room was making her uncomfortable. She stated that he “kept opening her door and coming into her room in order to stare at her.” Plaintiff’s husband called the hospital to complain, and plaintiff alleged that the security guard then took her phone away. Plaintiff was relocated to another room, but she allegedly had “no recollection of any events that took place in the twelve-plus hours following her relocation.” The next evening, she was told she was being transferred to another hospital, and while there she “noticed blood and soreness when she used the restroom.” After she was discharged, she felt pain while showering and her husband observed “several injuries on her vaginal and anal areas.” She went to her obstetrician the next day, where “evidence of rape, including semen, was discovered.”

May 9, 2017

No Defect Arises By Decorating Handrail

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

In Cruce v. Memmex Inc. D/B/A Salsa Cocina Mexicana Restaurant, No. W2016-01167-COA-R3-CV (Tenn. Ct. App. Feb. 7, 2017), the Court of Appeals affirmed summary judgment in a premises liability case because plaintiff failed to prove the existence of a dangerous condition.

In December 2012, plaintiff was going to a party on the second floor of defendant restaurant. On her way up the stairs, “she noticed that the railing on her right side was decorated with garland and Christmas lights,” and she said she had trouble finding anywhere to place her hand on the railing. When she was leaving the party and going back down the stairs, she reached for the decorated handrail but asserted that she “was unable to grasp the railing itself and instead only gripped a handful of garland.” She then fell, breaking her leg. Although plaintiff stated that she did not notice it at the time, it was undisputed that the railing on the other side of the stairwell was not decorated.

Plaintiff filed suit, alleging that the restaurant “created a dangerous condition by covering a safety device, i.e., handrail, with items that impeded its use.” Defendant filed a motion for summary judgment, relying primarily on the deposition of the restaurant owner wherein he stated that he had decorated one of the handrails for fifteen years and never had a problem, that no one had ever fallen down the stairs “either as a result of the Christmas decorations or for any other reason,” and that only one of the handrails was decorated. The trial court granted summary judgment, ruling that “the decorated handrail did not constitute a dangerous or defective condition for purposes of premises liability,” and the Court of Appeals affirmed.

May 3, 2017

It Takes Evidence to Defeat A Motion for Summary Judgment

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

In Rushing v. AMISUB Inc., No. W2016-01897-COA-R3-CV (Tenn. Ct. App. Feb. 8, 2017), a premises liability claim once again failed when the plaintiff had no evidence regarding how long the dangerous condition existed or who had created it.

Plaintiff was walking into defendant hospital’s emergency room, and as she approached the registration desk she allegedly “slipped and fell in a clear liquid on the floor.” Plaintiff filed this premises liability suit against the hospital and at some point was represented by counsel, though by the time of the trial court’s grant of summary judgment she was proceeding pro se. In its answer, the hospital alleged comparative fault against its housekeeping management service, which plaintiff then added as a defendant.

Defendants moved for summary judgment on the basis that plaintiff could not prove notice of the alleged spill. In her response, plaintiff stated that two hospital employees “admitted that the spill was sprite. They said that they had contacted the housekeeping company…to remove the spill. To their knowledge they thought the employees had gotten it up but apparently not.” At the summary judgment hearing, the trial court determined that these two employees had not been deposed and accordingly gave plaintiff sixty additional days for discovery. When the second hearing occurred, plaintiff had still not deposed the two employees who she claimed admitted that they knew the liquid was on the floor. Finding that “plaintiff’s evidence is insufficient to establish an essential element of her claim, which is notice of the allegedly dangerous condition,” the trial court granted defendants’ motions for summary judgment. The Court of Appeals affirmed.

May 2, 2017

The Latest Intentional Interference with Business Relationships Decision

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

In Clear Water Partners, LLC v. Benson, No. E2016-00442-COA-R3-CV (Tenn. Ct. App. Jan. 26, 2017), the Court of Appeals reversed dismissal of a claim for intentional interference with business relationships and civil conspiracy. The Tennessee court concluded that a current contractual relationship was not an automatic bar to an intentional interference with contractual relationships claim.

Plaintiff had an option contract to purchase and develop 111 acres of land, with the purchase being “contingent on the approval of a development plan, obtaining rezoning approval, and the performance of certain site development work.” Plaintiff also had a contract to sell Paul Murphy around 30 acres of the property once the option had been executed. According to plaintiff, the 23 named individual defendants used “improperly motivated conduct and/or improper means” to delay and oppose the rezoning and the approval of the development plan, causing Mr. Murphy to “void” his contract with plaintiff. Subsequently, plaintiff entered into another contract to sell the 30 acres to Belle Investments, but that contract required plaintiff to make some changes to its plan and incur damages.

As plaintiff continued to work towards rezoning and approval of its project, plaintiff alleged that the Defendants “individually and through their attorney/agent, ‘vigorously opposed’ its rezoning application and development plans.” Plaintiff alleged that defendants created false email accounts to make it look like residents near the development were emailing the County Commission, that one defendant sent a flyer containing false information home with the students at an elementary school, that one defendant gave a flyer with false information to nearby residents, and that an affidavit containing false information was given to the planning commission and zoning board, among other allegations. Plaintiff’s fight with defendants wound its way through the planning commission and zoning board, the circuit court, and even included an appeal to the Court of Appeals. At the time of plaintiff’s filing of the complaint in this case, the circuit court had upheld the zoning board’s decision to approve the development plan and deny part of the rezoning request.

May 1, 2017

Amount of Attorneys’ Fees Awarded as Sanction Must be Causally Related to Misconduct

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

The United States Supreme Court recently analyzed a federal court’s “inherent authority to sanction bad-faith conduct by ordering a litigant to pay the other side’s legal fees,” holding that such an award was “limited to the fees the innocent party incurred solely because of the misconduct.”

In Goodyear Tire & Rubber Co. v. Haegger, No. 15-1406, 581 U.S. ____ (April 18, 2017), the Haeger family had sued Goodyear after a Goodyear tire allegedly failed and caused their motorhome to flip over. During the original suit, Goodyear was slow and unresponsive to many of the Haegers’ discovery requests, especially when the Haegers requested internal company tests for the tire at issue. The case eventually settled just before trial. Months later, the Haegers’ attorney noticed a news story indicating that, in a similar suit, Goodyear had disclosed “test results indicating that the tire got unusually hot at highway speeds.” Goodyear subsequently admitted to the attorney that it had withheld information in the Haeger suit.

Because the case had already settled, the district court was limited in its options when addressing Goodyear’s misconduct, and “[a]ll it could do for the Haegers was to order Goodyear to reimburse them for attorney’s fees and costs paid during the suit.” The district court determined that this award could be “comprehensive, covering both expenses that could be causally tied to Goodyear’s misconduct and those that could not.” The district court calculated all the Haegers’ litigation expenses after the very early moment when Goodyear first dishonestly responded to discovery and awarded the Haegers $2.7 million. When explaining its award, the district court stated that while the usual case requires the fees awarded to be causally related to the misconduct, the misconduct in this case “rose to a truly egregious level.” The district court found that the level of misconduct here meant that all attorneys’ fees could be awarded with no need to find a causal link between the fees and the sanctioned party’s conduct.

April 27, 2017

No Negligence in Porch Collapse During Party

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

In Keane v. Campbell, No. M2016-00367-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2017), the Tennessee Court of Appeals affirmed summary judgment for defendants in a negligence case revolving around the collapse of a deck.

Plaintiff was teenager who attended a party at defendants’ home. The party was for high school students, and between 40 and 70 kids attended. During the party, the kids were “dancing and jumping on an elevated, wooden deck attached to Defendants’ house” when the deck collapsed suddenly, and plaintiff fell and was injured. Within one year of plaintiff turning 18, she and her parents filed a negligence suit against defendants, asserting that “Defendants: (1) failed to properly and adequately monitor or supervise the children attending the party; (2) failed to warn the children of the danger they were facing; (3) failed to take any action to prevent the collapse of the deck; (4) failed to prevent the injury to the children; and (5) failed to observe what they could have observed in the exercise of reasonable care regarding the flexing of the deck.”

Defendants moved for summary judgment, which the trial court granted, holding that there was no duty owed to plaintiff because the collapse of the deck was not foreseeable. The Court of Appeals affirmed this ruling.

April 21, 2017

No Misrepresentation where Plaintiffs Had Access to Information

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

In Haynes v. Lunsford, No. E2015-01686-COA-R3-CV (Tenn. Ct. App. Feb. 2, 2017), the Tennessee Court of Appeals affirmed summary judgment for a real estate agent and agency on a misrepresentation claim where plaintiffs had access to the same information as defendants.

Plaintiffs contacted defendant real estate agent, who worked for the defendant agency, about buying a log cabin. While looking at MLS with defendant, plaintiffs found the cabin they eventually purchased. Defendant was not the listing agent on this cabin. Defendant and plaintiff visited the cabin together and both felt it looked new and “smelled great.” Plaintiffs had a home inspection done prior to the purchase, which revealed some “common cracks” but did not mention mold. Plaintiffs did not “take any action to make sure the basement was moisture free” before the purchase.

Before the closing, defendant sent plaintiff all the documents in her possession, including the MLS listing, the CRS property report, seller’s disclosure, the home inspection report, and the seller’s warranty deed. The deed showed that a bank was the grantor, which defendant admitted could mean that the property had been involved in a foreclosure. Plaintiffs closed on the cabin and moved in, and five months later they “began smelling a mildew type odor.” Six months after the purchase, an inspector found moisture in a wall, and some months after that, mold spores were found.

Plaintiffs brought suit against defendant real estate agent and the agency she worked for, alleging that “the cabin was presented to them as ‘new’ and ‘just recently built.’” Plaintiffs’ complaint included claims of fraudulent misrepresentation, failure to disclose adverse facts, and violations of the Tennessee Consumer Protection Act. Plaintiffs asserted that “the cabin had a moisture and mold problem about which the defendants knew or should have known,” and that “defendants had a duty to disclose the moisture and mold problems to plaintiffs[.]”

The trial court granted defendants’ motion for summary judgment, finding that there was “no evidence whatsoever that Defendants…were aware of mold being present in this house,” and that “plaintiffs had the same information that [defendants] had about the home.” The Court of Appeals affirmed this ruling.

April 20, 2017

Summary Judgment Vacated When Order Failed to State Reason for Decision

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

In Battery Alliance, Inc. v. Allegiant Power, LLC, No. W2015-02389-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2017), the Tennessee Court of Appeals vacated a summary judgment order for defendants because the trial court failed to state the legal grounds for summary judgment before asking counsel for defendants to draft an order.

The facts underlying this case revolved around the president and other employees of a Tennessee battery company leaving and starting a competing battery company in Florida. Plaintiff, the Tennessee company, filed suit against the Florida company and several individual defendants, citing various causes of action including intentional interference with business relationships. Defendants filed a counterclaim against plaintiff and also filed a motion for summary judgment. In response to defendants’ filings, plaintiff filed a motion to dismiss the counterclaim.

The trial court held a hearing on the motions and denied plaintiff’s motion to dismiss, but it “took the motion for summary judgment under advisement.” The next day, the judge’s law clerk emailed counsel for the parties and said the judge was going to grant summary judgment to defendants, and further asked defense counsel to “draw up the order.” At a subsequent hearing on a motion to compel, “counsel for Plaintiffs requested that the court provide its legal reasoning supporting the decision to grant Defendants’ motion for summary judgment prior to entry of the judgment.” The trial court replied that the reasoning would be provided in its order. The trial court further stated that “counsel for Defendants was preparing only a ‘template’ for the court’s order and that the actual court order entered would be the court’s ‘work.’” Weeks later, defendants sent the template to the court, plaintiff lodged an objection to the template, and the court eventually entered an order granting summary judgment.

April 19, 2017

Statute Regarding Community Supervision of Sex Offenders Did Not Confer Private Right of Action

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

In Hale v. State, No. E2016-00249-COA-R3-CV (Tenn. Ct. App. Feb. 2, 2017), the Court of Appeals affirmed dismissal of a negligence case because it was based on the failure of the Tennessee Department of Corrections (TDOC) to ensure compliance with a certain statute, and that statute did not “confer a private right of action.”

Plaintiff’s daughter was murdered by Terry Releford while she was married to Mr. Releford and pregnant with his child. Before this marriage, Mr. Releford had spent time in a Tennessee prison for several crimes, including three counts of aggravated rape. Tenn. Code Ann. § 39-13-524 “requires that those convicted of certain offenses, including aggravated rape, remain subject to community supervision for life.” Mr. Releford’s judgment of conviction, however, did not include the community supervision requirement.

At some point during Mr. Releford’s incarceration, a TDOC employee sent a letter to the District Attorney’s office asking for a corrected judgment. No response was received, and the judgment was never corrected. Mr. Releford was released with no community supervision requirement, subsequently met plaintiff’s daughter, and murdered her less than a year later.

March 31, 2017

Fitness Facility Had No Duty to Use AED on Injured Patron

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

In Wallis v. Brainerd Baptist Church, No. E2015-01827-SC-R11-CV (Tenn. Dec. 22, 2016), the Tennessee Supreme Court analyzed claims against the seller of an AED, and though the claims were framed in the context of the decedent being a third-party beneficiary of the contract between the seller and owner of the AED, the Court engaged in quite a bit of analysis surrounding the duties implicated by the sale and/or ownership of an AED.

In 2008, defendant church had purchased four AEDs from defendant ExtendLife, one of which one placed in a fitness facility owned and operated by the church. When the church purchased the machines, they also purchased the Physician Oversight Program Management System, which outlined certain services that ExtendLife would provide to the church. In addition, as part of the purchase, ExtendLife provided four complimentary training sessions for CPR, AED and Emergency Oxygen Administration certifications. The church utilized three of these four sessions, but the final session was cancelled due to low attendance.

More than two years later, in January 2011, plaintiff and her husband joined the church’s fitness facility. In August of that year, the husband took a cycling class and then collapsed. The class instructor attended to the husband, thinking he was suffering from a seizure, and she was eventually assisted by two off-duty police personnel who were at the facility. These men asked the instructor to retrieve the nearest AED, which she did, but the machine was not used on husband. An ambulance arrived shortly thereafter and transported husband to the hospital, where he died.