Day on Torts

September 8, 2016

Death of Lawyer’s Infant Son is “Extraordinary Cause” under HCLA

The Court of Appeals recently examined whether the sickness and death of a lawyer’s child constituted extraordinary cause under the HCLA, finding that it did in fact excuse noncompliance with the statute.

In Kirby v. Sumner Regional Medical Center, No. M2015-01181-COA-R3-CV (Tenn. Ct. App. July 12, 2016), plaintiff was treated at the defendant hospital in June 2013, and plaintiff alleged that the treatment she received fell short of the required standard of care. Well before the one-year statute of limitations, on January 31, 2014, plaintiff’s counsel sent a fax to defendant regarding the claim. No other correspondence was sent, but on the day the one-year statute of limitations was to expire, plaintiff filed suit. Plaintiff attached a certificate of good faith to her complaint, but she admittedly had not served the statutorily required pre-suit notice with attached HIPAA release.

Defendant moved to dismiss the case based on the lack of pre-suit notice. In response, plaintiff’s counsel pointed out that his son was born on March 6, 2014, and subsequently died on June 20, 2014, just days before the statute of limitations was set to expire on this claim. Counsel stated that “[f]or the few months my son lived, there were frequent periodic indications that each day could be his last, including a few serious hospitalizations.” In his memorandum opposing dismissal, plaintiff’s counsel asserted:

September 6, 2016

Sudden Emergency Jury Instruction Allowed Without Comparative Fault Defense

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

In Boshears v. Brooks, No. E2015-01915-COA-R3-CV (Tenn. Ct. App. July 6, 2016), plaintiff asserted on appeal that the trial judge had given incorrect jury instructions in the underlying jury trial. The Court of Appeals, however, affirmed.

Plaintiff was riding in a car with his girlfriend when they were hit by a vehicle driven by defendant. Defendant was 78-years-old and blind in one eye, and he had been to his doctor that day to report blurry vision. His doctor had referred him to the ER, and the accident occurred after defendant had been released from the ER. Defendant’s theory at trial was that he had a stroke while driving, “which resulted in an unforeseeable loss of consciousness leading to the accident.” Defendant presented expert testimony supporting his theory of the case. Plaintiff, on the other hand, attempted to show that defendant “had suffered vision problems for years, and that, essentially, he had no business driving on the day of the accident.” Plaintiff “attempted to cast doubt on whether [defendant] had been unconscious during the accident,” and witness statements regarding defendant’s condition after the wreck varied.

While charging the jury, the trial court included instructions on both sudden emergency and loss of consciousness. The jury instructions included the following:

…A person faced with a sudden emergency is required to act as a reasonably careful person placed in a similar position. A sudden emergency will not excuse the actions of a person whose own negligence created the emergency.

If you find there was a sudden emergency that was not caused by any fault of the person whose actions you are judging, you must consider this factor in determining and comparing fault.

A sudden loss of consciousness or physical incapacity experienced while driving which is not reasonably foreseeable is a defense to a negligent action. …To constitute a defense, the defendant must establish that the sudden loss of consciousness or physical capacity was not reasonably foreseeable to a prudent person…

After deliberation, the jury found defendant not at fault for the accident.

August 30, 2016

Settlement of Personal Injury Cases for Minors in Tennessee

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

Tennessee law requires that personal injury cases for minors be approved by the court.

Tenn. Code Ann. § 29-34-105 provides:

(a) Notwithstanding any other law or rule to the contrary, a judge or chancellor may sign an order approving any tort claim settlement involving a minor that is less than ten thousand dollars ($10,000) by relying on affidavits from the legal guardian. The court shall conduct a chambers hearing at which the minor and legal guardian are present to approve any tort claim settlement involving a minor that is ten thousand dollars ($10,000) or more.

August 29, 2016

Sexual Assault in School: Duty Turns on Material Fact Dispute

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

In Richardson v. Trenton Special School Dist., No. W2015-01608-COA-R3-CV (Tenn. Ct. App. June 27, 2016), the Court of Appeals reversed summary judgment in a negligence case due to fact issues surrounding the issue of foreseeability.

The underlying facts of this case were quite disturbing—a six-year old kindergarten student was allegedly sexually assaulted five times by another six-year-old student in an elementary school bathroom stall. It was undisputed that before this incident, another student had been sexually assaulted by a peer at this school, though that incident involved first or second graders in the after-school care program. During the after-school incident the two children were in the bathroom alone, but in the incident underlying this case other students were in the bathroom and the teacher was in the hallway between two bathrooms. It was further undisputed that after the after-care assault, “the elementary school changed its bathroom policy in the after-school care program in direct response to the prior assault such that teachers accompany students into the bathrooms. However, the school did not change its policy concerning the main school day.” At the time of the kindergarten assault, the school had a policy stating: “CHILDREN MUST NEVER BE OUT OF SIGHT!!! Monitor your students in the halls and bathrooms.”

The victim’s parents filed suit, alleging that the school “was negligent because its employee had violated the school’s policy and that this violation resulted in a failure to protect [the child].” The defendant school moved for summary judgment, with the trial court granted, finding that the assault was not reasonably foreseeable. The Court of Appeals, however, reversed.

August 26, 2016

Snow and Ice Fall-Down Cases in Tennessee

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

In Williams v. City of Jamestown, No. M2015-00322-COA-R3-CV (Tenn. Ct. App. June 23, 2016), the trial court dismissed a GTLA premises liability claim after a bench trial, and the Court of Appeals affirmed.

Plaintiff was visiting the county courthouse and adjacent jail when he slipped and fell on ice in the parking area. Snow had begun falling the night before and accumulated approximately six inches by the time plaintiff went out the next day. The city had scraped and salted the roads and parking areas the night the snow began, and had been working since 5:30 a.m. on the day the fall occurred. When plaintiff drove into the courthouse parking lot, he noticed that the areas where the sun was hitting the ground were relatively free of snow, but he testified that he could only find a parking space in the shadowed area. Plaintiff entered and left the courthouse without incident, then walked over to the adjacent jail. On his way to the jail he walked “between a rock wall that bounded the courthouse grounds and the curb stops in the parking area,” which plaintiff stated was covered in snow and slush, but when leaving he “decided to walk out in the parking area” rather than following the same path. While in the parking area, plaintiff “turned his gaze from his feet to” a woman he met, and at that point slipped and fell on the ice.

During the bench trial, plaintiff admitted that there were six inches of snow on the ground that day and that “by venturing out, he was taking a serious risk.” He also testified that he did not have to go out that day. Further, evidence showed that the parking area had been scraped early that morning; the parking area had been further worked on at 10:00 am (approximately 3 hours before the fall); and that due to the 24 degree temperature, “it would have been difficult to keep salt treated areas from refreezing.”

The trial court dismissed plaintiff’s claim, finding that the city did not breach its duty of care to plaintiff, and that even if there were a breach, plaintiff was more than fifty percent at fault. In affirming dismissal, the Court of Appeals analyzed only the issue of whether the city breached its duty of care.

August 24, 2016

Changing Times for Personal Injury Lawyers

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

Earlier today I received this email from a law firm:

I was looking at your website and noticed that you handle product liability cases. We (XXXXXX) are a co-counsel/case acquisition firm. There may be some synergy between our two firms worth exploring. I have some time Thursday or Friday for a brief chat. Let me know your thoughts.

(Emphasis added.)

August 23, 2016

Plaintiff Permitted to Proceed on Multiple Theories of Liability

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

In Commercial Painting Co., Inc. v. The Weitz Co., LLC, No. W2013-01989-COA-R3-CV (Tenn. Ct. App. June 20, 2016), the Court of Appeals reversed a trial court’s grant of summary judgment on claims for negligent and intentional misrepresentation.

Plaintiff was a drywall subcontractor, and defendant was a general contractor with whom plaintiff had entered into an agreement to perform work on a construction project. According to the complaint, plaintiff alleged that:

Defendant had revised the project schedule with the project owner to show that a longer construction timeline was needed, yet the “out-of-date and erroneous schedule” was used when negotiating with plaintiff;

August 16, 2016

Liability of Public Hospital Where Allegations Related to Non-Employee Doctors

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

In Gilreath v. Chattanooga-Hamilton County Hosp. Authority, No. E2015-02058-COA-R3-CV (Tenn. Ct. App. June 15, 2016), the Court of Appeals affirmed summary judgment for defendant hospital in a Tennessee health care liability (formerly called “medical malpractice” case.

Plaintiff went to defendant hospital complaining of certain symptoms and allegedly told the medical providers there that her chiropractor had diagnosed her with cauda equina syndrome. Plaintiff was treated at the hospital by two doctors who “failed to recognize her symptoms as suggestive of cauda equina syndrome.” She was discharged with a diagnosis of possible impacted kidney stone, but was later correctly diagnosed at a different hospital after her condition worsened significantly. In this action, plaintiff sued defendant hospital based on the alleged inadequate treatment and diagnosis she received.

Defendant hospital moved for summary judgment on the basis that plaintiff’s expert could not support the claim against it, and that the hospital was not vicariously liable for the alleged negligence of the two physicians because the hospital was a government entity that fell under the GTLA and the physicians were not employees of the hospital pursuant to the terms of the Tennessee’s Government Tort Liability Act (“GTLA”). The trial court granted summary judgment, and the Court of Appeals affirmed.

In analyzing this case, the Court first pointed out that plaintiff had attempted to couch her claims as a contract claim and an ordinary negligence claim, but in reality the entire complaint sounded in health care liability. The Court found that “the complaint and responsive pleadings allege specific acts of negligence, namely the failure to order an MRI or other diagnostic test and a neurological or neurosurgical consult…These allegations sound in medical malpractice[.]”

August 11, 2016

No Tort Claim Where Plaintiff Was Found To Have Caused Her Own Loss

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

In Haynes v. Bass, No. W2015-01192-COA-R3-CV (Tenn. Ct. App. June 9, 2016), plaintiff brought suit against her ex-husband, a mortgage company, a title company and an attorney claiming she suffered damage when a home that was supposed to be titled to her alone was sold at auction. Plaintiff and defendant ex-husband had previously been married, and in December 2007 they executed a postnuptial agreement stating that, once another property sold which was already under contract, a residence in Collierville that was being purchased by plaintiff would be plaintiff’s “sole and separate property.” After the sale, however, the money was split between the husband and wife and the deeds were allegedly not recorded as planned in the agreement. Plaintiff alleged that her name was forged on the deeds of trust for the property.

In 2014, the couple got divorced in Arkansas. During the divorce proceeding, plaintiff was supposed to be paying the mortgage on the residence, as she was living in it alone, but it was discovered that she had failed to pay and owed $51,000. The Arkansas court entered an order holding plaintiff in contempt for failing to pay the mortgage and stating that plaintiff could pay defendant husband $55,000 or the property would be sold by a receiver at auction. After plaintiff failed to pay, the residence was sold, and plaintiff filed suit seeking damages for the loss of the property.

In this Tennessee action, plaintiff brought several claims, including fraud, negligent misrepresentation, negligence and civil conspiracy. The trial court dismissed plaintiff’s complaint in total for failure to state a claim, and the Court of Appeals affirmed.

Against her ex-husband, plaintiff advanced claims of fraud and negligent misrepresentation, among other contract-based claims. Both of these causes of actions, though, require the plaintiff to suffer damages due to the misrepresentations. Here, the Court found that the evidence “reveal[ed] that [plaintiff] lost the residence, and the value of all of the improvements she made to the property, because of her failure to pay the mortgage, which resulted in the Arkansas court ordering the property to be sold.” Even if plaintiff’s allegations were taken as true, the Court held that “the allegations are not sufficient to make out a claim against [defendant] because the damages sustained by [plaintiff] are not related to [defendant’s] alleged breach of the postnuptial agreement.”

August 9, 2016

Tennessee Legal Malpractice Statute of Limitations

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

In a recent legal malpractice case, the Tennessee Court of Appeals held that the one-year statute of limitations had run and that the case should accordingly be dismissed in total.

In Story v. Bunstein, No. E2015-02211-COA-R3-CV (Tenn. Ct. App. June 9, 2016), plaintiffs had previously been represented by defendant lawyers in a lender liability suit against three defendants. The timeline of the underlying litigation included the following:

On May 7, 2013, the trial court granted summary judgment to two defendants.
Lawyer “allegedly advised [plaintiffs] that he would fie a motion to correct what he perceived was the erroneous grant of the motion for summary judgment.”
Layer filed a motion to alter or amend, but no hearing was ever set for that motion.
“Shortly before trial on the remaining claims, [lawyer] allegedly informed [plaintiffs] that their damages evidence was not ready for trial” and recommended voluntary dismissal.
Underlying suit was voluntarily dismissed on November 13, 2013, and was not re-filed.

This legal malpractice claim was filed on September 3, 2014.

Defendants filed a motion to dismiss based on the statute of limitations. In response, plaintiffs argued that “the statute of limitations did not begin to run until the order of dismissal as to [plaintiff’s] remaining claims was entered on November 13, 2013.” The trial court held that the statute of limitations barred some of plaintiffs’ malpractice claims, but that plaintiffs’ “allegations with respect to the November 2013 voluntary dismissal of their remaining claim in the underlying case is a discrete allegation of alleged legal malpractice which is not barred by the statute of limitations.” The Court of Appeals disagreed, holding that the entire case was in fact time-barred.