Day on Torts

August 22, 2017

No Negligent Misrepresentation Claim Based on Future Event

In Jones v. BAC Home Loans Servicing, LP, No. W2016-00717-COA-R3-CV (Tenn. Ct. App. July 12, 2017), the Court of Appeals affirmed dismissal of a negligent misrepresentation claim.

Plaintiffs were the borrowers on a valid and enforceable mortgage, which was held by defendant. Plaintiffs were in default and had received a notice of foreclosure stating that “they were in arrears in the amount of $9,000.00.” Plaintiffs allege that plaintiff husband spoke with a representative from defendant by phone and offered to pay $7,800 by the end of the week, and that the representative “informed him that if he sent a payment of $6,000.00 he would qualify for a six-month repayment plan that would stop the foreclosure sale.” Plaintiff husband stated that he attempted to wire two separate payments totaling $6,000 to defendant, but that the transfers were declined. The foreclosure proceeded, and plaintiffs filed this action.

Plaintiffs asserted various contract-based claims as well as a claim for negligent misrepresentation. The trial court dismissed all the claims pursuant to defendant’s motion for summary judgment, and the Court of Appeals affirmed.

August 17, 2017

Application of Tennessee Savings Statute When Initial Filing Deadline Missed

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

In Jones v. Behrman, No. W2016-00643-COA-R3-CV (Tenn. Ct. App. June 27, 2017), the Court of Appeals affirmed dismissal of an HCLA claim for failure to file within the applicable statute of limitations

Decedent suffered from several health problems, and in February 2011 she had a capsule endoscopy. Two days later, an x-ray showed that the “capsule was still present.” The following day, tests “showed no bowel obstruction but that the capsule remained in the right lower quadrant.” On February 20, 2011, decedent was admitted to the hospital and tests revealed a bowel obstruction. A procedure was performed, and at some point “the surgeons lacerated or penetrated the small bowel, which required them to resect a portion of the bowel.” The injured site or some other part of the small bowel leaked after the surgery, and decedent developed peritonitis and sepsis. Decedent died on April 21, 2011.

On January 24, 2012, decedent’s family members sent pre-suit notice to the doctors who did the capsule endoscopy and the subsequent bowel surgery. On August 13, 2012, plaintiffs filed their HCLA suit, but that case was voluntarily dismissed on September 27, 2012. Plaintiffs then gave pre-suit notice again before re-filing suit on September 26, 2013 pursuant to the savings statute.

August 14, 2017

Nuisance, Invasion of Privacy, IIED, and Chickens

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

In Stinson v. Mensel, No. M2016-00624-COA-R3-CV (Tenn. Ct. App. July 12, 2017), a neighborly dispute about chickens turned into a suit and counter-suit for nuisance, intentional infliction of emotional distress, invasion of privacy and injunctive relief.

Plaintiffs owned land on which several neighbors had an easement for access to their properties. Defendants, two couples who used the easement to get to their homes, alleged that they had never met plaintiffs until the facts surrounding this case began. In 2008, plaintiff husband “came to believe that [one of defendant couples] had stolen some of his chickens that wandered over” to defendants’ property. Plaintiffs left a note in defendants’ mailbox accusing them of stealing the chickens, and plaintiffs subsequently began harassing defendants. Plaintiffs would put brush and fence posts on the easement, blocking passage on the easement. Plaintiffs dug a ditch on the easement which subsequently caused excessive erosion. Plaintiffs screamed at defendants, followed one defendant with a rock, erected a sign telling one couple to stay off plaintiffs’ side of the easement, and prevented defendants from performing maintenance on the easement. Ultimately, plaintiffs filed this suit, claiming that defendants “had caused the easement to be graded and bulldozed, encroached onto [plaintiffs’] property, and made verbal threats and used intimidation” against plaintiffs.

Defendants filed a counter-complaint, and the trial court ultimately dismissed all of plaintiffs’ claims and found that plaintiffs were liable to defendants for nuisance, invasion of privacy, and intentional infliction of emotional distress. Further, the trial court “enjoined [plaintiffs] from forever using, driving on, damaging, or interfering with [the easement], or the maintenance of the same.” The Court of Appeals affirmed the nuisance finding, but reversed on the invasion of privacy and emotional distress claims, and it modified the injunction against plaintiffs.

August 10, 2017

Mothers, Minors and Medical Bills

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

Who has the right to recover medical expenses incurred for personal injuries to children in Tennessee? The parents? The minor? Either but not both? Does it make any difference if there is a holder of a subrogation interest which has a right to assert a claim against either the parents or the minor?

My recent article on the subject appears on PDF Page 38 of a recent edition of the Tennessee Bar Journal.

An excerpt:

August 9, 2017

Special Duty Doctrine Applied Against 911 Agency in Suicide Case

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

In Ramsey v. Cocke County, Tennessee, No. E2016-02145-COA-R3-CV (Tenn. Ct. App. June 23, 2017), plaintiff sued the county, the police department, and the county emergency communications district for wrongful death after her daughter committed suicide. The trial court granted summary judgment to defendants, but the Court of Appeals reversed, holding that “the decedent’s suicide was foreseeable and that the special duty exception to the public duty doctrine applie[d].”

According to plaintiff, she called 911 around 8:30 p.m. one night because her daughter was exhibiting “unexplained serious mental and behavioral” issues and was indicating that she was going to commit suicide. Plaintiff asserted that she told the 911 operator that her daughter was threatening suicide and asked for police assistance, but that the operator refused to send police because “it was not their policy to respond to domestic family issues.” Plaintiff called again around 9:15 and was denied police assistance a second time, and plaintiff was transferred to an officer who allegedly affirmed that it was “not their policy to send responders in situations like this.” Because the operator had refused to dispatch an officer, plaintiff stated that she drove to the police department, but that the doors were locked and she could not find an officer. When plaintiff returned home, her daughter had committed suicide.

Plaintiff filed suit for wrongful death, and the defendants disputed plaintiff’s version of the facts. Defendants denied that plaintiff requested an officer or that she told them that her daughter was contemplating suicide. Defendants filed a motion for summary judgment on the basis that they “did not owe plaintiff a duty of care pursuant to the public duty doctrine” and that the suicide was “an intervening and independent cause which supersedes any liability and is the proximate cause of the death of the decedent.” The trial court granted the summary judgment, finding that the suicide here was an intervening cause, but the Court of Appeals reversed.

August 4, 2017

Failure to Include Causation Evidence Ends Malpractice Case

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

In Graham v. The Family Cancer Center PLLC, No. W2016-00859-COA-R3-CV (Tenn. Ct. App. June 5, 2017), the Court of Appeals affirmed summary judgment in a health care liability suit, agreeing that “plaintiffs lacked sufficient expert testimony to establish their claims.”

Plaintiff patient had been treated for non-Hodgkin’s lymphoma in the 1990s, and he was subsequently monitored by defendant doctor. Part of the monitoring included checking plaintiff’s prostate specific antigen, or PSA. Plaintiff’s “PSA rose from 2.0 ng/mL in 2000 to 4.8 ng/mL in December 2002 and to 8.5 ng/mL in April 2005.” Plaintiff also complained of blood in his urine in both April 2002 and July 2004. In April 2005, based on the testing and plaintiff’s complaints of pain, defendant ordered an ultrasound, which “revealed findings consistent with benign prostate hypotrophy,” and defendant referred plaintiff to a urologist. Plaintiff saw defendant six times after this referral until August 2007, when his PSA measured 12.0ng/mL, and defendant “never inquired whether [plaintiff] had met with an urologist and did not make an additional referral.”

Six months later, plaintiff went to another doctor and was diagnosed with prostate cancer. He had a “radical prostatectomy,” and pathology reported the disease was “locally advanced with several high risk features.” Plaintiff “was considered at high risk for a local recurrence and distant metastatic disease.”

August 2, 2017

Negligent Infliction of Emotional Distress Claim Against Hospital Goes to Jury

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

In Henderson v. The Vanderbilt University, No. M2016-01876-COA-R9-CV (Tenn. Ct. App. May 31, 2017), the Court of Appeals overturned summary judgment on a negligent infliction of emotional distress claim, holding that “the alleged failure of the defendant hospital to provide care to the plaintiffs’ daughter, despite repeated assurances from the hospital that it would occur, constitutes an injury-producing event that was witnessed by plaintiffs.”

Plaintiffs brought their 10-year-old daughter to defendant hospital for septic shock related to the flu. She was admitted to the pediatric ICU on March 23, 2013, and given fluids and other medicines, but “no central line was placed; no echocardiogram was performed; no one called for a cardiology consult.” On the morning of March 24^th, plaintiffs “witnessed their daughter go into cardiac arrest.” Plaintiffs were escorted out of the room while defendant spent two hours performing CPR. After the cardiac arrest, plaintiffs allege that the child’s condition deteriorated, and during a procedure on April 4^th, she suffered a stroke and was ultimately pronounced brain dead. Care was withdrawn the child passed away on April 5^th.

July 31, 2017

Serving Rule 11 Motion on Opposing Counsel Not Considered “Process” for Abuse of Process Claim

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

In Montpelier v. Moncier, No. E2016-00246-COA-R3-CV (Tenn. Ct. App. June 1, 2017), the Tennessee Court of Appeals affirmed dismissal of an abuse of process claim.

The background of this case was fairly unique, as it involved attorneys suing another attorney due to defendant attorney’s actions in an underlying case. Plaintiff attorneys had removed the underlying case to federal court and filed a notice of removal with the state court. Within 24 hours after the notice of removal was filed, defendant attorney served a Rule 11 motion on plaintiffs in the state court case. The Rule 11 motion, however, was never filed with the court, but only served on plaintiffs.*

Plaintiffs filed this abuse of process claim based on the Rule 11 motion served by defendant. Plaintiffs asserted that defendant was using Rule 11 improperly to attempt to fee-shift and that he committed an “intentional abuse of process” by refusing “to file the Rule 11 motions until he first determines how the underlying ‘offending’ pleading is decided.” Plaintiffs argued that defendant used his Rule 11 motion as an “open-ended threat of obtaining money from his adversaries and their attorneys unless they withdrew facts and claims,” and that he “primarily sought to increase the burden and expense of litigation[.]” Further, plaintiffs argued that the proper place for defendant to have filed this particular Rule 11 motion was federal court, but that defendant could not comply with the proper filing because he was disbarred from the federal court.

July 24, 2017

Fraudulent Misrepresentation Case Falls Short

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

In Jackson v. CitiMortgage, Inc., No. W2016-00701-COA-R3-CV (Tenn. Ct. App. May 31, 2017), the Tennessee Court of Appeals affirmed summary judgment on an intentional misrepresentation (or fraud) claim where the plaintiffs could not establish that an “explicit promise or representation was made[.]”

During the 2008 recession, plaintiffs defaulted on their mortgage, which was held by defendant. Defendant notified plaintiffs in December 2010 that if the default was not cured, foreclosure proceedings would begin. In 2011, plaintiffs applied for loan modification assistance, but were denied. In March 2014, plaintiffs received a letter from a trustee stating that foreclosure would occur. Plaintiffs hired representation (“Mrs. Mitchell”), and Mrs. Mitchell and one of defendant’s representatives began emailing.

The foreclosure was postponed two times, and then was set for July 29, 2014. Before that date, Mrs. Mitchell and defendant’s representative were again in contact via email. Defendant’s representative told Mrs. Mitchell in an email that the “underwriter has requested some additional information from your client to complete their review file,” and that he would “follow up to confirm receipt or check progress by” the set foreclosure date. Plaintiffs asserted in their complaint that they provided the documents to Mrs. Mitchell and were told by her that defendant had agreed not to foreclose on July 29^th. Defendants alleged they never received the documents, and Mrs. Mitchell died before the lawsuit was filed, so plaintiffs’ only evidence of the alleged promise to not foreclose was plaintiff wife’s uncorroborated testimony regarding what Mrs. Mitchell told her. The property was sold at foreclosure as scheduled on July 29, 2014.

July 21, 2017

Statute of Limitations Bars Mother’s Claim Against Health Care Provider

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

Woodruff v. Walker, No. W2016-01895-COA-R3-CV (Tenn. Ct. App. May 26, 2017) is anHCLA case that addressed the timeliness of plaintiffs’ claims.

Plaintiffs, a mother and child, filed suit alleging that “both plaintiffs suffered permanent injuries resulting from the defendant health care providers’ negligent care during the child’s birth in June 2012.” Mother suffered from a neuromuscular condition both before and during her pregnancy, which necessitated various treatments during her pregnancy, including treatment with a maternal fetal medicine specialist. The specialist met with mother five times during her pregnancy. Approximately three weeks before she delivered, mother was admitted to the hospital “with exacerbated symptoms” of her neuromuscular condition, where she stayed for approximately six days.

When mother eventually went into labor, she was admitted to the hospital around 3:42 a.m. She was monitored, given Pitocin, and eventually given small doses of an epidural. The medical team eventually determined that mother’s “exacerbated” symptoms of her condition “made it unsafe to continue the labor and deliver the child vaginally.” Mother’s oxygen was low, and she reported trouble breathing, but one defendant doctor “insisted on doing a vaginal exam” before the caesarian section. During this exam, “Mother stopped breathing and went into respiratory and cardiac arrest.” An emergency c-section was performed, and mother and child both suffered “serious permanent injuries and brain damage resulting from the lack of oxygen during the delivery.”