Day on Torts

June 6, 2016

Proof of Actual Malice in False Light Case

A recent Court of Appeals case serves as a reminder of the difficulty of proving actual malice in a false light claim made by a public official.

In Eisenstein v. WTVF-TV, No. M2015-00422-COA-R3-CV (Tenn. Ct. App. May 3, 2016), plaintiff was a Davidson County General Sessions Judge suing a TV station and various reporters regarding a story aired in 2011. The story focused on whether plaintiff “hired an unlicensed individual to act as a psychologist for the drug court program.” The Court of Appeals opinion contained a transcript of the broadcast, which revolved around a Dr. Casey who was paid by the drug court and allegedly held out to some drug court defendants to be a psychologist, but who was not in fact licensed as a psychologist in Tennessee. The report included a statement that plaintiff judge “wanted to put Casey on staff using federal money, writing in this memo that Casey had proven himself an excellent psychologist.” The broadcast showed the reporter approaching plaintiff judge, and plaintiff not answering questions posed by the reporter.

Plaintiff argued that the “broadcast placed him in a false light by implying that he lied on a federal grant application and by indicating that he was uncooperative.” Because plaintiff was a public figure, he had to show actual malice to prove his false light claim, and defendants moved for summary judgment on the basis of plaintiff’s inability to make such a showing.

June 3, 2016

No Reasonable Reliance in Money Washing Scheme

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

In a 40-plus page opinion that reads like a prince-handing-out-gold email scam, the Tennessee Supreme Court affirmed a trial court’s judgment that a plaintiff had not proven intentional misrepresentation because his reliance on the statements made could not possibly have been reasonable.

In Estate of Lambert v. Fitzgerald, No. E2015-00905-COA-R3-CV (Tenn. Ct. App. April 28, 2016), plaintiff had known defendant attorney for over forty years. Defendant somehow became involved with an “investment” scheme wherein he was promised astronomical returns on his money. Defendant was giving large sums of cash to a “diplomat” in London, who had obtained possession of six crates containing a total of $150,000,000 in U.S. currency from a man in South Africa. The money, though, allegedly had to be washed and go through various other procedures to be released. Upon its release, defendant said he had been promised $25,000,000. At some point, defendant got plaintiff involved with the promise that plaintiff too would receive $25,000,000, and plaintiff began writing large checks to defendant when asked to do so for the investment. The head of this investment scheme, Brindley, kept giving reasons it failed to close when promised—an additional license was needed, the money had to be moved to a mint in Scotland, he had to get an anti-terrorism certificate from the government—and asking for more money to help accomplish the eventual release of the cash. All information plaintiff received about the investment came from defendant, and plaintiff only spoke to Brindley two times on the phone. Even after multiple promised payout dates fell through, plaintiff continued to give more money to the scheme. Plaintiff ultimately “invested” more than $500,000 in the scheme through defendant, and defendant alleged that he invested $517,000 of his own money as well.

June 2, 2016

The Court of Appeals addressed an issue of first impression regarding the interpretation of a wrongful death statute related to a surviving spouse who has outstanding child support obligations.

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

In Spires v. Simpson, No. E2015-00697-COA-R3-CV (Tenn. Ct. App. April 26, 2016), the Court of Appeals addressed an issue of first impression regarding the interpretation of a wrongful death statute related to a surviving spouse who has outstanding child support obligations.

In this case, decedent mother was killed in a car accident, leaving behind a surviving spouse and one child, whose biological father was the surviving spouse. At the time of the accident, the decedent and surviving spouse had been living apart and the child had been living only with the decedent. The spouse instituted a wrongful death action on behalf of himself, the child, and the decedent. When he instituted the suit, the spouse owed child support to children of four other women (though he did not owe any regarding the child at issue in this case because there was no court order regarding that child). While the wrongful death litigation was ongoing, a maternal uncle adopted the child, and the uncle petitioned to intervene on behalf of the child. Ultimately, the trial court held that Tenn. Code Ann. § 20-5-107(b) disqualified the surviving spouse from commencing the action or collecting proceeds due to his outstanding child support arrearages. The trial court substituted the child’s uncle as plaintiff and awarded the agreed damages in trust solely to the child. The Court of Appeals, however, reversed.

May 31, 2016

Glass Display Case in Retail Store Not a Dangerous Condition

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

In Singletary v. Gatlinburlier, Inc., No. E2015-01621-COA-R3-CV (Tenn. Ct. App. April 25, 2016), the Court of Appeal affirmed summary judgment for defendants in a premises liability case. While visiting a retail store in Gatlinburg, a woman unexpectedly fainted and fell into a glass display case. The case shattered and a piece of glass pierced the woman in the chest, and she later died from the injuries she sustained. The woman’s husband sued the retailer and mall where the store was located, alleging that the “narrow or cluttered aisles and the case’s fragile glass, which shattered and impaled” his wife were the proximate cause of her death. The husband alleged that the defendants breached their duty to his wife because the display cabinet was a “dangerous condition.”

Defendants filed a motion for summary judgment, attaching an affidavit and depositions in support. The evidence offered by defendants showed that the glass case in question here was common in other stores in Gatlinburg; that it had been in use for around 30 years; that during the 30 years it had been used by the store, it had withstood “collisions from baby carriages, children leaning against and pushing on it and an impact from a ‘purse the size of a refrigerator;’” that the glass was “cleaned regularly and ‘never appeared to be fragile or insubstantial;’” and that the store had “no expectation that the glass would break.” Based on these facts, the trial court granted summary judgment. The trial court ruled that “nothing Defendants did or failed to do caused [the wife] to fall,” and that “prior experiences with the antique display case did not alert the Defendants that the harm done to this particular plaintiff was foreseeable.” The trial court ultimately held that the “injury could not have been reasonably foreseen. Therefore, the duty of care does not arise.” The Court of Appeals affirmed this ruling.

May 20, 2016

No Causation Found For Plaintiff Injured by Dorm Fire Alarm

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

In Crutchfield v. State, No. M2015-01199-COA-R3-CV (Tenn. Ct. App. April 18, 2016), plaintiff sued the State for alleged negligence regarding a fire alarm in her college dorm room at Tennessee Technological University (TTU), a state university. While the claims commission found for plaintiff and awarded her damages, the Court of Appeals reversed, holding that the plaintiff failed to prove proximate cause.

Plaintiff was hearing-impaired, with hearing loss of around 50% in her right hear and 75% in her left ear. When she started school at TTU her freshman year, she requested permission to live off campus but was denied. Instead, TTU worked with plaintiff to install a supplemental alarm system in her dorm room. To accommodate plaintiff, TTU gave her a single room in a dormitory and installed a SilentCall supplemental alarm system therein, which consisted of a strobe light and bed shaker that could be triggered either by a smoke detector or when a doorbell outside her room was pushed. If smoke were detected, a high pitch alarm that was mounted on the wall above her bed would sound as well. In addition to this supplemental alarm system, plaintiff’s room was also equipped with the standard alarm that all rooms had, which consisted of a speaker above her door. This alarm was the same in every room and would sound for fires or fire drills.

One morning while plaintiff was sleeping, she woke up to a high-pitch alarm and went outside. While she initially believed it was the supplemental alarm above her bed, it was later determined to be the standard alarm above her door that was sounding. Based on the time the alarm began and when plaintiff testified to have woken up, plaintiff slept through the alarm for around fifteen minutes before being awoken. After this incident, plaintiff experienced increased difficulty with her hearing, and a doctor diagnosed her with a noise-induced type injury that significantly reduced her hearing, leaving her essentially deaf without hearing aids.

May 18, 2016

Refusal to Strike HCLA Expert Affirmed

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

In Bogle v. Nighthawk Radiology Services, LLC, No. M2014-01933-COA-R3-CV (Tenn. Ct. App. April 6, 2016), the dispositive issue was whether the trial court should have stricken defendant’s expert testimony in a health care liability case based on a somewhat confusing exchange between plaintiff’s counsel and the expert on cross-examination, wherein plaintiff argued that the expert admitted that he did not know the applicable standard of care. The Court of Appeals ultimately upheld the trial court’s decision to deny plaintiff’s motion to strike and affirmed the jury’s defense verdict.

The facts underlying this case dealt with the reading of a CT scan by defendant radiologist. Plaintiff’s wife, the decedent, had undergone the implantation of a dual-lead pacemaker, and after being discharged, returned to the hospital complaining of severe chest pains. A CT scan of her chest was taken by the hospital, and the images were transmitted electronically to NIghtHawk Radiology Services, one of the defendants in this case. Dr. Jones, a radiologist who was under contract at NightHawk, read the images and sent a report back to the hospital.

Though suit was brought against several parties, at the time of trial the only remaining defendants were Dr. Jones and NightHawk Radiology. Plaintiff’s theory of the case was that “the right ventricle lead of the pacemaker had perforated the wall of the right ventricle, and that this perforation was visible on the CT scan but was not noted or mentioned in the report of Dr. Jones and NightHawk Radiology.” Plaintiff asserted that the failure to report this perforation was a breach of the applicable standard of care. The defendants’ theory, on the other hand, was that while the pacemaker lead did appear to be in one layer of the heart, it did not appear to have perforated the pericardium. Dr. Jones testified that certain criteria had to be met in order for him to report a perforation, one of which was that the pericardium had to be perforated. Dr. Jones testified that he did not report a perforation here because that criterion was not met.

May 11, 2016

Summary Judgment Reversed in Legal Malpractice Case

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

In Roberts v. Ray, No. E2015-01522-COA-R3-CV (Tenn. Ct. App. April 13, 2016), the Court of Appeals reversed summary judgment on a legal malpractice claim, finding that there were genuine issues of material fact in the case.

Plaintiff’s attorney (now the defendant in a legal malpractice claim) drafted a prenuptial agreement for defendant husband and his estranged wife in 2006. Attorney used a standard form from 1993, and this was the first prenuptial agreement he had drafted. Husband, wife and plaintiff attorney were all in agreement that there had been no “full and fair disclosure” of husband’s assets before the agreement was signed. The agreement, however, did state that “[e]ach party acknowledges that he or she knows and understands the value of the property…”

During the divorce proceeding, wife sought to invalidate the prenuptial agreement. Evidence in the divorce case suggested that husband and wife had never really talked about the value of husband’s assets, that husband kept financial information in a cabinet to which wife had access, though she testified that she had not looked at it, and that both husband and wife thought that defendant attorney were representing them both during the drafting and signing of the prenuptial agreement. After a hearing, the trial court set aside the prenuptial agreement, and plaintiff husband eventually entered into a marital dissolution agreement with wife which included a financial settlement.

April 28, 2016

Filing Notice of Claim Triggers Waiver Provision

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

The Tennessee Court of Appeals has ruled that giving the State formal notice of a medical negligence (now “health care liability”) claim against an employee waives the right, if any, to assert that claim against that employee in state court based on the same acts or omissions.

In Sumner v. Campbell Clinic PC, No. W2015-00580-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2016), the dispositive issue was whether plaintiff had waived his medical battery claim against defendant doctor by virtue of his filing with the Tennessee Division of Claims Administration, with the Court of Appeals finding that the claim was waived and affirming dismissal of the case.

Plaintiff was admitted to Campbell Clinic on July 19, 2011 to receive treatment to his injured right leg. Part of this treatment included a bone graft surgery, with the bone graft to come from his hip. Before surgery, plaintiff and his family informed the doctors, including defendant, that plaintiff did not want the graft to come from his right hip as he had recently had a procedure there. During surgery, however, an incision was made in the right hip which caused plaintiff’s peritoneum and small bowel to lacerate, resulting in extensive health problems.

April 24, 2016

Public Duty Doctrine Gives Immunity to City When Suspect Stole Police Car

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

In Holt v. City of Fayetteville, No. M2014-02573-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2016), the Court of Appeals affirmed dismissal of plaintiffs’ claims due to the city’s immunity under the public duty doctrine, a key limitation of the Tennessee Governmental Tort Liability Act.

According to plaintiffs, a police officer had arrested a suspect and placed her in a police car, yet failed to property restrain her. The suspect then stole the police car, drove “at a high rate of speed,” and collided with the car carrying plaintiffs, causing one person to die and three minors to be seriously injured. Plaintiffs brought suit against the city based on the negligence of the police officer in failing to properly restrain the suspect as she was taken into custody.

The city moved for dismissal, which the trial court granted, finding that “although the GTLA removed immunity for negligent acts of employees, Plaintiffs’ claims against the City were barred by the public duty doctrine.” The Court of Appeals affirmed this holding.

On appeal, the Court first looked to the GTLA. As a municipality, the city was entitled to immunity under the GTLA unless the situation fit into one of the enumerated exceptions in the statute. Plaintiffs argued that immunity was removed under Tenn. Code Ann. § 29-20-202, which “removes sovereign immunity ‘for injuries resulting from the negligent operation by any employee of a motor vehicle…while in the scope of employment.’” The Court rejected this argument, noting that plaintiffs in this case “only allege that Police Officer negligently restrained [suspect] after her arrest.” The Court concluded that they were “unable to create a claim of negligent operation of a motor vehicle solely from an allegation that Police Officer negligently restrained [suspect].”

April 21, 2016

Tennessee Savings Statute Fails to Preserve Claims Not Asserted in Original Filing

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

In State Farm Mutual Auto. Ins. Co. v. Blondin, No. M2014-01756-COA-R3-CV (Tenn. Ct. App. Mar. 14, 2016), the central issue was whether plaintiff had asserted its claim for personal injury damages in a timely fashion. State Farm was subrogated to its insured’s right to recovery following an accident between the insured and defendant’s daughter. The accident occurred on July 7, 2009, and State Farm filed a civil warrant in general sessions court on May 17, 2010. The warrant stated that State Farm brought the action “to recover damages to the property of plaintiff’s insured, Jenny R. Rone, caused by the negligence of the defendant. The date of loss was July 7, 2009. The amount of damages totaled $7,371.22…”

On July 15, 2010, more than one year after the accident, State Farm filed a motion to amend the warrant to say: “Suit to recover damages to the property and person of plaintiff’s insured…. The amount of damages totaled $24, 999.99…” The general sessions judge denied the motion to amend, writing on the motion that it was “denied as to personal injuries. Statute of limitations has expired.”

Following the denial of the motion to amend, State Farm filed a motion to remove the case to circuit court, which was also denied. State Farm then voluntarily dismissed the case without prejudice. State Farm refiled in general sessions court within the one-year allowed by the savings statute, but this time the warrant stated that it was “to recover damages to the person and/or property of plaintiff’s insured.” This warrant listed damages at $7,371.22. Defendant moved to dismiss this action based on timeliness, and the general sessions court dismissed the case. State Farm appealed to the circuit court and also filed an Amended Complaint seeking $44,124.57 in damages. Defendant again moved to dismiss, which was denied, and ultimately State Farm got a judgment for $20,575, which was reduced by 20% because the court found the insured to be 20% at fault. Defendant then appealed to the Court of Appeals, which ultimately dismissed the personal injury portion of State Farm’s claim.