Day on Torts

August 29, 2016

Sexual Assault in School: Duty Turns on Material Fact Dispute

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.

August 4, 2016

Reasonable Medical Expenses – Billed Amount or Negotiated Amount?

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

Understanding medical billing and medical expenses can be quite difficult in today’s healthcare system, and courts across the country have been grappling with how to determine the reasonable amount of medical expenses in court cases. In a recent Tennessee case, the Court of Appeals declined to extend a Tennessee Supreme Court decision which held that reasonable medical expenses were those that the medical provider actually accepted as payment from an insurance company, as the Supreme Court decision was a hospital lien case and the Court of Appeals was reviewing a personal injury matter.

The underlying facts in Dedmon v. Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. June 2, 2016) were that plaintiff was seeking recovery for injuries sustained in a car accident. Plaintiff claimed medical expenses of $52,482.87, and plaintiff provided medical bills and the deposition of a treating physician who testified that the expenses were “appropriate, reasonable, and necessary[.]”

After this suit was filed, the Tennessee Supreme Court issued a decision in a case about hospital liens, West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014). Tennessee law gives hospitals a lien “for all reasonable and necessary charges for hospital care, treatment and maintenance of ill or injured persons[.]” The West court tackled the issue of what exactly constituted reasonable charges, in light of the fact that the amount a patient is billed and the amount an insurance company actually pays is often vastly different. The Court in West eventually determined that, “with regard to an insurance company’s customers,” reasonable expenses were “the charges agreed to by the insurance company and the hospital,” not the billed amount. The Court stated:

The hospital’s non-discounted charges reflected in the amount of the liens it filed against the plaintiffs should not be considered reasonable charges for the purpose of [the Hospital Lien Act] for two reasons. First, the amount of these charges is unreasonable because it does not ‘reflect what is [actually] being paid in the market place.’ …[A] more realistic standard is what insurers actually pay and what the hospitals [are] willing to accept.’ …The second basis for concluding that the [hospital’s] non-discounted charges are not reasonable stems from its contracts with [the insurers]. The [hospital] furthered its own economic interest when it agreed in these contracts to discount its charges for patients insured by [the insurers]. …The [hospital’s] contract with [the insurers] defined what the reasonable charges for the medical services provided to [the plaintiffs] would be.

(Internal citations and quotations omitted).

August 3, 2016

Ex Parte Interviews Not Preempted by HIPAA

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

In Caldwell v. Baptist Memorial Hosp., No. W2015-01076-COA-R10-CV (Tenn. Ct. App. June 3, 2016), the Court of Appeals held that the Tennessee Health Care Liability Act’s allowance for ex parte interviews between defendant and plaintiff’s health care providers was not preempted by HIPAA and was permissible under the federal law.

In this case, plaintiff filed an HCLA claim against multiple defendants, and one defendant “filed a petition for a qualified protective order (QPO) pursuant to Tenn. Code Ann. § 29-26-121(f) to allow ‘the defendant and his attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the patient’s treating healthcare providers.’” While plaintiff acknowledged that defendant had complied with the statutory requirements under Tennessee law, she asserted that HIPAA preempted this Tennessee law and that the interviews should thus not be allowed. The trial court denied the defendant’s request for QPOs, and the defendant appealed.

On the state level, Tenn. Code Ann. § 29-26-121(f) “allows for the disclosure of protected health care information in ex parte interviews conducted during judicial proceedings,” provided certain conditions are met. The statute requires that the petition identify the healthcare provider to be interviewed; that the plaintiff can object based on the provider not possessing relevant information; that the QPO “shall expressly limit the dissemination of any protected health information to the litigation pending before the court and require the defendant or defendants who conducted the interviews to return…or destroy any protected health information obtained…at the end of the litigation;” and that the QPO must state that participation in the interview is voluntary.

July 27, 2016

Bench Trial Judgment for Plaintiff Reversed Due to Lack of Factual Findings

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

In Omni Ins. Co. v. Nickoloff, No. E2015-01450-COA-R3-CV (Tenn. Ct. App. June 2, 2016), the Court of Appeals overturned a trial court’s finding of negligence when a vehicle struck a pedestrian walking on a sidewalk. Specifically, it was asserted that plaintiff was walking west on a sidewalk at 10:40 p.m., and defendant was driving west on the road beside the sidewalk. Defendant’s vehicle hit plaintiff, and plaintiff asserted that defendant was liable on the theories of negligence and negligence per se, “due to his violation of Tennessee Code Annotated 55-8-136, which provides in pertinent part that ‘every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway.’”

After a bench trial, the trial court found defendant liable. In its order, the trial court stated: “There was an automobile collision… Plaintiff’’s insured…was walking on the sidewalk. Defendant…acknowledged that he hit [plaintiff] with his vehicle.” Defendant appealed and submitted a statement of the evidence, which was “approved by the trial court as a true and accurate record of the proceedings” and received no objection by plaintiff. The statement of evidence provided only that:

Plaintiff was walking on the sidewalk;