Day on Torts

October 4, 2017

Plaintiff’s Expert Testimony on Causation Deemed Too Speculative

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.”

October 2, 2017

Rape Victim Not Limited to Workers’ Compensation Claim

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

When a restaurant manager who was working in a locked back office was raped after a robbery, the injuries did not arise out of her employment and she was not limited to a workers’ compensation claim.

In Doe v. P.F. Chang’s China Bistro Inc., No. W2016-01817-COA-R9-CV (Tenn. Ct. App. Aug. 29, 2017), plaintiff brought suit after being raped in the restaurant’s office. Plaintiff was a hospitality manager at defendant restaurant, and on the night of the incident “she was in the restaurant’s office performing closing procedures with the door to the office locked.” She answered a knock on the door, and a masked man entered the office, had her open the office safe, took the money from the safe, then moved her to a chair, restrained her and raped her. The man was later identified as a restaurant employee who had left work that evening, “jammed the emergency door to prevent it from closing,” and changed in his vehicle before committing the robbery and rape.

Plaintiff brought suit against defendant restaurant for various tort claims, including intentional and negligent infliction of emotional distress, negligence, negligent hiring, intentional misrepresentation, misrepresentation by concealment, vicarious liability, and constructive discharge. Defendant moved for summary judgment, arguing that “[b]ecause Plaintiffs’ claims arose out of and in the course of her employment, workers’ compensation [was] Plaintiffs’ exclusive remedy against P.F. Chang’s.” The Trial court denied the motion, and the Court of Appeals affirmed.

September 29, 2017

Tennessee Landlord Liable When Light Fixture Fell

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

Where a tenant told her landlord about a leak in her kitchen ceiling, the landlord was liable when the light fixture in the ceiling later fell and injured the tenant.

In Holloway v. Group Properties LLC, No. W2016-02417-COA-R3-CV (Tenn. Ct. App. Aug. 24, 2017), plaintiff noticed a water leak in her kitchen ceiling about two months after moving into her rented apartment. She told her landlord, who “inspected the property but did not find the leak [and] therefore, he did not contact a plumber.” There was a dispute as to whether plaintiff contacted defendant landlord again regarding the leak, but eventually the light fixture in the kitchen fell, striking plaintiff and causing water to fall onto the floor. Plaintiff slipped and fell in the water and was injured.

Plaintiff filed suit in sessions court and won a judgment of $4,940. Defendant appealed to circuit court, where plaintiff was awarded $5,040. The circuit court specifically found that defendant “was on notice of a leak coming from the second floor of the duplex.” Defendant appealed, and the Court of Appeals affirmed.

Defendant asserted two arguments on appeal: 1) that plaintiff’s complaint “fail[ed] to state a claim for relief under the [Uniform Residential Landlord and Tenant Act (URLTA)],” and 2) that plaintiff’s “sole recourse [was] pursuant to URLTA.”

September 28, 2017

Confinement to Prison Isn’t “Extraordinary Cause”

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

Being incarcerated does not constitute extraordinary cause and does not waive the pre-suit notice and certificate of good faith requirements of the HCLA.

In Kinsey v. Schwarz, No. M2016-02028-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2017), a pro se prison inmate filed an HCLA suit regarding an allegedly “botched surgical procedure performed on his lower back.” Defendants included two doctors and a medical center. In plaintiff’s complaint, he stated that he “attempted to give [the two doctors] pre-suit notice on February 8, 2016 at their place of employment (or business address) by certified mail returned receipt as required…, but that both notices were returned to him as ‘refused’ by the defendants.” Plaintiff filed his complaint on March 28, 2016, without sending additional notice, and he did not attach a certificate of good faith.

Defendants filed motions to dismiss based on the lack of pre-suit notice and certificate of good faith, prompting plaintiff to file “a document entitled ‘Certificate of Good Faith’ in which he asked the trial court to waive the requirement that he file a certificate of good faith because of his alleged inability to comply due to reasons outside of his control.” Specifically, plaintiff stated that the prison doctor “refuse[d] to get involved in this case” and that his incarceration meant he was “unable to freely consult with other physicians.”

September 27, 2017

Med Mal Notice Statute and Governmental Entities

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

Substantial compliance is sufficient to meet the requirements regarding documents to be attached to a Tennessee HCLA complaint, even when the defendant is a governmental entity.

In Clary v. Miller, No. M2016-00794-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2017), plaintiff served timely pre-suit notice of her HCLA complaint, and attached a HIPAA-compliant authorization to the pre-suit notice. When she later filed her complaint, she attached copies of the pre-suit notice and proof of service, but she failed to attach copies of the HIPAA authorization.

Defendants, which included a medical center considered a governmental entity, moved to dismiss on the basis that the HIPAA authorizations were not attached to the complaint. The trial court granted the motion, finding that plaintiff substantially complied with the HCLA requirements but that “strict compliance was required because [defendant] was a governmental entity.” The Court of Appeals, however, reversed this holding.

September 26, 2017

Default Judgment in Injury Case Requires Hearing on Damages

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

After obtaining a default judgment on claims for conversion and malicious prosecution, a plaintiff must “prove the extent of her claimed damages,” and defendant should be given “an opportunity to rebut her evidence or present evidence of his own on the question of damages for those claims before entering a final judgment.”

In Husk v. Thompson, No. M2016-01481-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2017), plaintiff and defendant had lived together before a contentious separation. Plaintiff was charged with domestic assault and ordered not to return to the shared apartment. Plaintiff continued paying her half of the rent for three months even though she was not living there. When defendant failed to pay his portion of the rent due for the apartment two months in a row, plaintiff paid the full amount. Further, there were issues regarding personal property.

Plaintiff filed this suit for conversion, unjust enrichment, and malicious prosecution. Defendant received notice of the suit and was then served at the sheriff’s office, but he did not file an answer. Plaintiff moved for a default judgment, and when defendant did not show up to the hearing, the default judgment was entered. On the day of the default judgment hearing, the trial court entered an order granting plaintiff $15,577.16 in damages.

Defendant appealed both the entry of default judgment and the damages awarded. The Court of Appeals first affirmed the entry of default judgment, noting that defendant “asserted that he failed to file a timely response because he ‘believed no action would be taken in the civil case’ until the criminal cases involving [plaintiff] were resolved.” The Court found that this argument was “equivalent to a claim of ignorance of the law,” and that “ignorance of the law is not excusable neglect or a proper ground for relief” from a default judgment. (internal citation and quotation omitted). In addition, the Court rejected defendant’s assertion that the judgment should be set aside because he did not receive notice of the motion for default. The Court noted that this was really a credibility issues, and that the trial court had decided against defendant. The Court further noted that “the fact that [defendant] received both the complaint and a copy of the default judgment calls into question the veracity of his claim that he did not receive the motion for default judgment.”

September 25, 2017

Fall-Down Case Goes to Jury

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

Just because a plaintiff’s actions may have arguably contributed to creating a dangerous condition does not mean summary judgment for defendant is guaranteed in a premises liability case.

In Rader v. Ruby Tuesday, Inc., No. E2016-01677-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2017), plaintiff had called in a catering to-go order to defendant restaurant. The order was called in the day before and included at least one bag of ice. Per plaintiff’s normal practice when ordering catering, she gave the restaurant a pick-up time earlier than she anticipated arriving to ensure that the food would be ready. On the day of the accident, plaintiff called the restaurant when she “got off the exit,” then worked her way through “stop and go” traffic. Upon her arrival, she gave her credit card to the manager and was told the food was on the ledge. When she picked up the bags, including the bag containing the ice, water fell onto the floor and plaintiff slipped and fell. The parties agreed that there was no water on the floor when plaintiff entered and that the water came from ice that had melted and/or created condensation in the bag. Plaintiff testified that when she felt the bag of ice, it was “all water.”

September 21, 2017

Exculpatory Provision Enforced in Transportation Agreement

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

An exculpatory agreement contained in a contract for transportation services may be enforceable against a plaintiff claiming ordinary negligence.

In Copeland v. Healthsouth/Methodist Rehabilitation Hospital, L.P., No. W2016-02499-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2017), plaintiff was recovering from knee surgery in a hospital and had a follow-up appointment with his surgeon. The hospital helped arrange for defendant transportation service to take plaintiff to this appointment. “After the appointment, [plaintiff] was injured when he fell while getting back into the MedicOne transport van.” Before being transported by defendant, plaintiff signed several documents. One stated that the van provided was “not an ambulance and no care will be given by the…technician.” The second specified that it was for “transportation services” and that “there are inherent risks associated with such transportation which pose a risk of harm or injury.” This agreement also contained a release, which stated that plaintiff “SPECIFICALLY DISCHARGES MEDIC ONE RELATED PARTIES FROM ANY AND ALL CLAIMS ARISING DIRECTLY FROM OR AS A RESULT OF THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ) OF MEDIC ONE RELATED PARTIES.”

Plaintiff filed this negligence suit against the transportation company and the hospital that arranged the service. The trial court granted summary judgment to both defendants, finding that the release was enforceable and waived all claims of ordinary negligence. Plaintiff appealed, but only as to defendant transportation company, and summary judgment was affirmed.

September 18, 2017

No Invasion of Privacy When Information Was Already Public

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

A plaintiff cannot claim invasion of privacy based on information that she herself has already disclosed in a public filing.

In Graham v. Archer, No. E2016-00743-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2017), the Court of Appeals affirmed dismissal of an invasion of privacy case. A pro se plaintiff had previously filed an HCLA case against defendants, which was ultimately dismissed. In that case, plaintiff alleged that defendants had failed to provide her with requested medical records, and the defendants responded with affidavits “demonstrating that they had complied with or attempted to comply with each of [plaintiff’s] requests for medical records.” These affidavits were the basis for plaintiff’s subsequent invasion of privacy suit. Plaintiff argued “that, by filing the affidavits, the defendants disclosed her name, address, telephone numbers, and the identity of, and contact information for, her physicians,” constituting an invasion of privacy.

The trial court dismissed the case, finding that plaintiff had no reasonable expectation of privacy for this information because it was contained in pleadings she herself had filed in the HCLA case. That holding was affirmed by the Court of Appeals.