Day on Torts

December 6, 2016

Security Guards and the Independent Contractor Rule

In Estate of Cunningham v. Epstein Enterprises LLC, No. W2015-00498-COA-R3-CV (Tenn. Ct. App. June 30, 2016), the Court of Appeals affirmed summary judgment in a premises liability case where an armed security guard was shot and killed while on duty at an apartment complex.

The guard worked for a security company, and the company contracted with the apartment. The contract between the two entities provided that the security company was making “no representations that the security requested is reasonably adequate for the Client’s purpose,” and that the apartment was “relying upon its own knowledge and investigation as to the number and type of security personnel required.” On the night in question, the armed guard was on duty when “criminals, apparently fleeing from a nearby apartment complex, shot and killed [him].”

The guard’s wife filed a premises liability suit against the apartment, and the defendant apartment filed a motion for summary judgment. Defendant argued that “they did not owe a duty of care to [the guard] because the risk by which he was fatally injured was inherent in the performance of his duties as a security guard.” Defendant filed a statement of undisputed, material facts, to which plaintiff did not respond. Instead, plaintiff filed a memorandum stating that she did not dispute the facts and arguing that the apartment “owed [the guard] a duty as an employee of an independent contractor working within the bounds of an invitation to perform work,” and that because the criminal acts here were foreseeable, the apartment “owed a duty to protect [the guard] from such acts.” The trial court granted summary judgment to defendant, holding that the apartment had “no duty to [the guard] to protect him from a risk inherent in the task which he was hired to perform,” and the Court of Appeals affirmed.

December 3, 2016

Statute of Limitations Bars Legal Malpractice Claim

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

In Athena of S.C., LLC v. Macri, No. E2016-00224-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2016), the Court of Appeals affirmed the dismissal of a Tennessee legal malpractice claim on the basis that the claim was barred by the one-year statute of limitations.

In the underlying matter, plaintiffs had purchased promissory notes from an individual and a business, and defendant attorney represented the sellers of the notes during the transaction. Thereafter, plaintiffs hired the same attorney to help them collect on the notes they purchased. Defendant attorney drafted two complaints and two agreed judgments against the debtors on the notes, which were entered in circuit court in November 2011. During the same time period, the debtor on the notes was involved in litigation in federal court, where his former business partner had sued him.

In May 2012, plaintiffs published a notice of foreclosure for condominiums that secured the notes, but the former business partner filed a motion in federal court to enjoin the sale. Finding that the transfer of the notes was likely fraudulent, the district court entered an order in May 2012 enjoining the sale. In July 2012, plaintiffs published a notice of foreclosure for lots that secured the note, and the same scenario played out, with the federal court enjoining the sale in August 2012.

December 2, 2016

Notice and HIPAA Form Also Required for Re-Filed HCLA Claim

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

Tennessee Courts continue to make it clear that each time you re-file a previously dismissed Tennessee medical malpractice (now health care liability) claim, you must abide by the statutory requirements. In Cright v. Overly, No. E2015-01215-COA-R3-CV (Tenn. Ct. App. Oct. 17, 2016), the Court of Appeals addressed the need for a plaintiff who was re-filing a previously nonsuited complaint to attach a new HIPAA-compliant release to the second pre-suit notice letter, determining that her failure to do so meant the complaint should be dismissed.

Plaintiff sued multiple defendants related to the treatment and death of her husband. In August 2009, before filing the first suit, plaintiff sent pre-suit notices with a HIPAA-compliant medical authorization to each of the defendants. This action proceeded through discovery and eventually made it to trial, but three days into trial plaintiff moved for a voluntary dismissal.

After the dismissal, plaintiff sent pre-suit notices to the defendants again, but this time she did not include a HIPAA release. Instead, the letter stated: “Medical records of the entire UT Hospital admission at issue have been previously provided to you, as well as any other records you wished to obtain pursuant to an Agreed RAS Order entered in the [original suit].” When plaintiff filed her second complaint, defendants all filed motions to dismiss based on plaintiff’s failure to include a HIPAA-compliant release with her pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121. Plaintiff’s attorney asserted that a HIPAA release “was not attached, because the parties had previously entered an agreed order that the RAS service and record ordering procedure was to be the exclusive means for obtaining the deceased’s medical records, to the exclusion of any medical authorizations previously provided.” The trial court, however, granted the motions to dismiss, and the Court of Appeals affirmed.

November 23, 2016

Suit Against Local Government Over Sewer Issues

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

In Nickels v. Metropolitan Govt. of Nashville and Davidson County, No. M2015-01938-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2016), the Court of Appeals went through a thorough analysis of Tennessee’s Governmental Tort Liability Act (GTLA) as it related to a claim regarding the malfunction of a sewer and stormwater system.

Though the facts here were quite detailed, the gist of the matter was that plaintiff owned a dentist office in midtown Nashville, and the land surrounding the office “generally [rose] in every direction.” This area of Nashville has a combined sewage and stormwater system, and there was a catch basin behind the office parking lot where stormwater was intended to be integrated into the sewer line. From this catch basin, the mixed water was fed downstream “into a twelve-inch line,” which then connected to a much larger 108-inch pipe.

In 2005, plaintiff built an addition onto his dental office. Later that year, plaintiff’s office manager called Metro Water Services for the first time to report that plaintiff believed the storm drain was clogged, as there was flooding in the alley behind the office. Plaintiff called Metro again in May 2006 to report that water was coming out of the catch basin, after which Metro did a video inspection of the water line that showed concrete in the 12-inch line. This concrete was not removed. In September 2006, plaintiff’s office flooded from the back door and the shower drains, and the floodwater contained sewage. On June 3, 2007, the office flooded again. Metro inspected the pipe again, and found “four to five inches of concrete and debris in the line.” Metro removed two sections of the pipe but did not compensate plaintiff for repairs to his office. Metro did, however, install a back-trap device on plaintiff’s service line.

November 22, 2016

Ex Parte Communications With Treating Physicians – TN Statute Ruled Unconstitutional

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

Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional. Memorandum Order – Judge Brothers

The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered ex parte communications with the plaintiff’s non-party health care providers. The code section was adopted by the Tennessee General Assembly in an attempt to override two Tennessee Supreme Court decisions.

The first of those cases was Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 20o2), which held that a covenant of confidentiality between patients and their treating physicians arises because of an implied understanding between patient and doctor and from a public policy concern that private medical information should be protected.

November 13, 2016

Upcoming Seminar – Knoxville, Nashville and Memphis

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

Justice Programs will present its annual seminar program in Knoxville, Nashville and Memphis in a few weeks. Former Justice Penny White and former Judge Joe Riley and I started this seminar over a decade ago. Famed mediator Howard Vogel joins us as a participant this year.

I will be speaking about torts, comparative fault, and preparation for taking meaningful depositions. Other topics are listed on the Justice Programs website. Fifteen continuing legal education credits (which includes four ethics / professionalism / dual credits) will be awarded for those that attend the entire program

Hundreds of people attend this program every year, many coming year after year. Please join us in

November 6, 2016

Lawyer Wisely Drops Chicken-Choking Case

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

Lawyer Paul Newton of Gulfport, Mississippi filed a lawsuit against Popeye’s for not supplying him with a knife in his take-out chicken bag. He says the lack of a knife (he did receive a spork) caused him to use his teeth to tear the chicken from the bone when he was consuming it back at his office. According to the complaint, he choked on a piece of chicken.

Newton later dismissed the case, reportedly because of “extreme comments directed to me and my family.”

Newton’s unclaimed Avvo profile indicates that he has been practicing law for 35 years.

October 26, 2016

Tennessee Jury Verdict More Than 40 Times Medical Expenses Affirmed

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

In Glasgow v. K-VA-T Food Stores, Inc., No. E2015-01653-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2016), the Court of Appeals affirmed a jury award in the full amount of compensatory damages sought by a Tennessee premises liability plaintiff.

While using the restroom in a grocery store, plaintiff lost his balance while standing up. He grabbed the handrail, which pulled out of the wall, causing him to fall and hit his head. Plaintiff presented testimony from himself and a doctor who had treated him both before and after the incident, as well as a deposition from the neurologist he saw after the fall. Plaintiff presented evidence that since the fall, he had experienced migraines and light sensitivity. He testified that this affected his life in several ways. He had to abandon his 14-year career in television production and instead go into radio because of his light sensitivity. Plaintiff asserted that the migraines were “debilitating, requiring him to ‘get out of the light’ and stay in a dark, cool space until the pain subsides.” Plaintiff admitted at trial that he was “not actively seeking treatment from a physician for his migraines and that he currently use[d] over-the-counter medication to treat his condition.”

At trial, the parties stipulated that plaintiff’s medical expenses were $5,310 and that he had a life expectancy of 38.36 years.

October 24, 2016

Nonsuit OK When Motion to Dismiss is Pending in Medical Malpractice Case

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

In Hurley v. Pickens, No. E2015-02089-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2016), the Court of Appeals once again held that a plaintiff in a medical malpractice case can take a voluntary nonsuit without prejudice while a motion to dismiss based on an insufficient certificate of good faith is pending.

This opinion was very similar to Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016) and discussed in this Day on Torts post, which came out just two days prior to the instant matter. In Clark, though, plaintiff was pro se and had failed to attach a certificate of good faith to his complaint. Here, plaintiff was represented by counsel and had attached a certificate of good faith, but defendants alleged the certificate was deficient and filed motions to dismiss accordingly.

While the motions to dismiss were pending, plaintiff filed a corrected certificate of good faith, a motion for extension of time to file a corrected certificate of good faith, and a motion for and notice of voluntary dismissal without prejudice. At a hearing on all of the pending motions, and before any argument on the motions to dismiss, plaintiff “announced that he wanted to take a voluntary dismissal pursuant to Tenn. R. Civ. P. 41,” which the trial court allowed. Defendants appealed the dismissal without prejudice, and the Court of Appeals affirmed.

October 23, 2016

Upcoming Seminar – Justice Programs

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

Justice Programs will present its annual seminar program in Knoxville, Nashville and Memphis in a few weeks. Former Justice Penny White and former Judge Joe Riley and I started this seminar over a decade ago. Famed mediator Howard Vogel joins us as a participant this year.

I will be speaking about torts, comparative fault, and preparation for taking meaningful depositions. Other topics are listed on the Justice Programs website. Fifteen continuing legal education credits (which includes four ethics / professionalism / dual credits) will be awarded for those that attend the entire program

Hundreds of people attend this program every year, many coming year after year. Please join us in