Day on Torts

February 12, 2017

Sanctions Awarded Against Lawyers After Abuse of Process Case Dismissed

In Parvin v. Newman, No. E2016-00549-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2016), the Court of Appeals affirmed summary judgment for defendant in an abuse of process claim.

Husband and wife had litigated a contentious divorce, and during the course of that proceeding, wife had filed a Motion to Impose Sanctions for Contempt. Nine months and many filings later, a Final Judgment of Divorce was entered in the case, with the parties stipulating to the terms of the divorce. Particularly of note, the divorce judgment stated that “the parties had reached an agreement to settle and compromise all of the matters in dispute between them and that they [had] freely, voluntarily and knowingly entered into an agreement that is reflected” in the final judgment.

Three months after the divorce was finalized, husband filed this abuse of process claim against wife, alleging that “Wife’s purpose in filing her July 2014 contempt motion had been to harass him, cause him to incur unnecessary expenses to defend the motion, weaken his resolve to continue litigation of the divorce, and settle for terms favorable to wife.” Wife argued, however, that “husband’s complaint should be dismissed on the basis of res judicata and because the undisputed facts negate the essential elements of husband’s claims for abuse of process.”

The trial court ultimately granted summary judgment to wife on the basis of both res judicata and husband’s inability to prove his case, and the Court of Appeals affirmed.

Plaintiff husband argued that his abuse of process claim was a separate tort claim that he had not had the opportunity to litigate in the divorce case. He stated in an affidavit to the trial court that “if [he] had amended [his] divorce complaint to allege abuse of process it would have hardened wife’s position toward settlement.” He also asserted that he “entered into the divorce settlement under duress,” as he “did not want to have to defend [himself] against charges that might [have] land[ed] [him] in jail.” The Court, though, rejected this argument.

February 12, 2017

Tennessee Slip And Fall Case Dismissed

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

In Miller v. Jackson-Madison County General Hospital District, No. W2016-01170-COA-R3-CV (Tenn. Ct. App. Dec. 8, 2016), the Tennessee Court of Appeals affirmed summary judgment in a slip and fall case based on a lack of proof of notice of the dangerous condition.

Plaintiff was visiting her brother at defendant hospital when she left his room to find a nurse. In the hallway, she allegedly slipped and fell in water and injured herself, which was the basis for this premises liability suit. According to plaintiff’s trial testimony, she did not see anything on the floor before she fell, but after her fall she noticed a “trail of water [that] led to a food cart against the wall in the hallway.” Plaintiff did not inspect the cart, and she “did not know whether the water was leaking from the food cart or had been spilled near it.” She also did not know how long the water had been there or whether any hospital employees knew about the water.

After a bench trial, the trial court “found the evidence insufficient to demonstrate that the Hospital or its employees caused or had actual or constructive notice of the water on the floor prior to [plaintiff’s] fall,” and thus entered judgment for defendant. The Court of Appeals affirmed this decision.

January 21, 2017

Court Orders New Trial – Jury Disregarded Expert Testimony

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

In Kempson v. Casey, No. E2015-02184-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), the Court of Appeals vacated a jury’s finding of no damages for a plaintiff who presented uncontroverted expert proof regarding injuries he alleged to have sustained in a car accident.

Plaintiff was rear-ended by defendant when he was sitting in traffic on the interstate. Although defendant did not deny that the collision occurred, the parties had vastly different accounts of what happened. Plaintiff alleged that defendant was going around 50 miles per hour when she hit him, that his car was knocked forward 5-6 car lengths (but that he did not hit the vehicles in front of him), and that after the accident defendant had blood going down her leg. Defendant, on the other hand, testified that she was driving between 10 and 15 miles per hour at the time of the collision, that the impact was “minor,” that her airbag did not deploy, and that she did not bleed. Both parties agreed that both vehicles were driven away from the scene.

Plaintiff sued for negligence, asserting that “as a result of the accident, [he] began experiencing intractable neck and low back pain that ultimately necessitated” surgery. In support of his claims, plaintiff presented testimony from his surgeon and his chiropractor. Both of these experts testified that plaintiff had “preexisting complaints related to his cervical, thoracic and lumbar spine,” and that his “post-accident complaints were similar to his pre-accident complaints.” The surgeon testified, though, that in his opinion “the accident at issue caused [plaintiff’s] medical condition to worsen to the point that surgery was necessary.”

January 20, 2017

Father Had Duty to Hold Ladder for Son During RV Exterior Cleaning

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

In Hoynacki v. Hoynacki, No. E2015-02084-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2016), the Court of Appeals overturned summary judgment in a case about whether a dad had a duty to hold or stabilize a ladder for his son.

Defendant father owned an RV, and while he was camping in North Carolina near where his son lived, he called his son and asked him to help wax the RV. The two spent Saturday and Sunday waxing the RV. “When the RV’s height required the use of a ladder, plaintiff got on it to wax the top parts, and defendant stayed on the ground to stabilize and secure the ladder.” On their second day of work, plaintiff was on the ladder waxing the front part of the RV above the windshield. The ground where the ladder was sitting sloped away from the RV such that one side of the ladder was lower than the other. Defendant placed the ladder in this position, and then walked to the other side of the RV while plaintiff was working. When plaintiff began to come down the ladder, the ladder fell and plaintiff was seriously injured.

January 19, 2017

Certificate of Good Faith Required When Expert Must Prove Causation

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

In Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2016), the Court addressed the need for a certificate of good faith in an HCLA (f/k/a Tennessee medical malpractice) claim when the breach of duty question falls within the common knowledge exception, but the causation portion of the claim would require expert testimony.

Here, plaintiff was admitted to the hospital with complaints of dizziness and falling. Certain fall precautions were put into place during her stay. Five days after she was admitted, a hospital employee was assisting her in using a portable toilet and allegedly did not follow the prescribed fall precautions—the toilet was not put within reach of the bed, and the employee did not adequately assist plaintiff in getting back to her bed. Plaintiff fell when trying to return to her bed and struck the bedside table, which prompted this suit.

Before filing suit, plaintiff did not give pre-suit notice under the HCLA, and she failed to file a certificate of good faith with her complaint. In response to defendant hospital’s motion to dismiss with prejudice due to the lack of a certificate of good faith, plaintiff asserted that “her claims [fell] within the common knowledge exception such that expert proof is not required, thus forgiving her failure to file a certificate of good faith.” After a hearing, the trial court held: “While this Court finds this case is appropriate for application of the common knowledge exception, expert testimony would still be required on the element of causation to show that ‘as a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.’” On appeal, the ruling was affirmed.

January 18, 2017

Proving Damages in a Conversion Case

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

In Hamilton v. Holderman, No. M2015-02302-COA-R3-CV (Tenn. Ct. App. Oct. 27, 2015), the Tennessee Court of Appeals affirmed a damages award in a conversion case.

In the underlying dispute, plaintiffs had rented a furnished house and barn to defendants, which the defendants argued they had orally agreed to buy. Plaintiffs filed a forcible entry and detainer warrant in general sessions court, and defendants eventually vacated the property. When defendants left, they took “certain furnishings and other personalty owned by [plaintiffs]” with them, and this suit for conversion followed.

Plaintiffs initially filed in general sessions court and were awarded $24,999 in damages, the full jurisdictional limit. Defendants appealed to circuit court, where a jury returned a verdict for plaintiffs in the amount of $40,000. Defendants appealed that verdict to the Court of Appeals, arguing that there was not “material evidence in the record to support the jury’s verdict of damages for $40,000.” The Court of Appeals affirmed the award.

January 16, 2017

Pro Se Plaintiff Allowed to Proceed with Part of Claim Against Chiropractor

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

In Lacy v. Mitchell, No. M2016-00677-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2016), the trial court dismissed plaintiff’s case, finding that her claim fell under the Health Care Liability Act and that she uncontestedly failed to follow the HCLA’s pre-suit notice and certificate of good faith requirements. Interestingly, however, the Court of Appeals overturned a portion of the dismissal, finding that there was at least a chance that one of plaintiff’s claims fell outside the ambit of the HCLA.

In February 2015, plaintiff visited a chiropractor for treatment on her back. As the basis for this action, plaintiff alleged that during the visit the defendant chiropractor “jumped two times on [plaintiff’s] back” while she was lying on the treatment table, and that “as he walked out the door [the chiropractor] beat Plaintiff…in the back with her medical folder.”

Plaintiff filed this case pro se against both the chiropractor and the clinic in which he practiced, and the defendants moved for summary judgment based on plaintiff’s failure to give pre-suit notice and file a certificate of good faith under the HCLA. Plaintiff argued that she need not follow these procedural requirements “because her claims were for ‘beating and assault,’ rather than health care liability.” The trial court, however, granted defendant’s motion and dismissed the case in total.

January 15, 2017

Employer Had No Duty to Prevent Employee From Leaving Store in His Own Car

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

In Thompson v. Best Buy Stores, L.P., No. E2015-02304-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2016), the Tennessee Court of Appeals affirmed a ruling that an employer had no duty to prevent an employee from leaving the premises in his own car.

Plaintiff was an employee at a Best Buy store (“defendant”). Before work one day, plaintiff received a package in the mail containing “a chemical cousin of valium,” which he had ordered off the internet. Plaintiff testified that he took three drops of the substance before reporting to work that day, and that “he remembers clocking in, but after that, he has no memory of anything else that happened that day.”

During work, one of plaintiff’s co-workers told the assistant sales manager on duty that “plaintiff was acting slow, tired and not very responsive.” The manager made the decision that plaintiff should not operate a piece of heavy machinery in the store warehouse, and he eventually told plaintiff to clock out and end his shift early. The manager noted at trial that no one at the store mentioned or suspected that plaintiff was on any drugs. He also stated that he did not tell plaintiff he had to go home or leave the premises, but simply to clock out. After plaintiff clocked out, he apparently got into his car to head home and was in a car accident, wherein his car hit a median wall then bounced into a pickup truck, totaling both vehicles.

January 14, 2017

Article Shows Misinformation About Malpractice Litigation

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

An article in Becker’s Hospital Review demonstrates the need for careful review of any article that purports to give information about medical malpractice (which Tennessee now calls “health care liability”) lawsuits.

The article purports to list the number of filings per state per 100,000 residents and ranks Tennesseans as the 5th highest filers of malpractice lawsuits – at the rate of 33 per 100,000 people. That would mean that Tennesseans file about 2145 such lawsuits per year (we have a little over 6,500,000 people living here).

But that number is wrong. Information compiled by Tennessee’s Administrative Office of the Courts demonstrates that there were 374 medical malpractice suits filed in 2013-2014 and 356 suits filed in 2014-2015. (Data is kept on a July 1 – June 30 fiscal year; 2015-2016 data is not yet publicly available). My guess is that the number of suits filed in all of 2015 was down from what it was in fiscal year 2014-2015, but even assuming that it was the same (356), the rate of filed suits was less than 5.5 per 100,000. That simply didn’t happen.

January 8, 2017

Blank HIPAA Form Deemed Non-Compliant by Tennessee Court

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

In J.A.C. v. Methodist Healthcare Memphis Hospitals, No. W2016-00024-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), a plaintiff lost her chance to pursue her Tennessee medical malpractice claim due to an insufficient HIPAA release form.

Plaintiff was forty weeks pregnant when she went to the defendant hospital with lower back and abdominal pain on January 23, 2012, and she was found to have elevated blood pressure. Plaintiff was nonetheless discharged. She had her baby the next day, January 24, 2012, and a placental abruption was noted. The baby, a girl, allegedly “sustained severe brain damage that would not have occurred but for the Providers’ actions in failing to properly treat [plaintiff].”

Plaintiff filed this action on May 1, 2015, purportedly on behalf of both herself and her daughter. Plaintiff alleged that she followed the pre-suit notice requirements of the HCLA, but defendants moved to dismiss the case based on an insufficient HIPAA form. Defendants argued that, because the HIPAA form was insufficient to fulfill the statutory requirements, plaintiff was not entitled to the 120-day extension provided by the HCLA, and that her suit was thus filed outside the three-year statute of repose.