Day on Torts

April 14, 2016

Claims Against an Employer Can Proceed Even After Employer Admits Vicarious Liability

The Tennessee Court of Appeals recently considered an issue of first impression in Tennessee—whether a plaintiff who sues an employee and employer for negligence can proceed on direct negligence claims against the employer after the employer admits that they are vicariously liable for the employee’s negligence. After considering arguments both ways, the Court determined that in Tennessee, “an employer’s admission of vicarious liability does not bar a plaintiff from proceeding against the employer on independent claims of negligence.”

In Jones v. Windham, No. W2015-00973-COA-R10-CV (Tenn. Ct. App. Mar. 11, 2016), employee, acting within the scope of her employment with a local daycare, was transporting kids in a van when she struck a minor child. The child’s mother, plaintiff, brought an action for negligence against employee, and also asserted claims for negligence per se, negligent hiring, and negligent retention against employers, as well as a claim for punitive damages against all the defendants. In their answer, employers conceded that they were vicariously liable for any negligence attributed to employee. Accordingly, employers moved for summary judgment on the direct negligence claims against them, arguing that Tennessee should adopt a rule adopted by other states “under which a plaintiff would be prevented from proceeding on any direct negligence claim against an employer once vicarious liability has been admitted.” The trial court granted summary judgment as to all direct negligence claims against the employer, though it denied summary judgment on the punitive damages claim. This Rule 10 appeal followed.

April 10, 2016

Vehicle Photos Allowed into Evidence in Rear-End Collision Case.

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

In Garvin v. Malone, No. M2015-00856-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2016), plaintiffs sued defendant after defendant’s van ran into the rear of plaintiffs’ car. After a jury found for defendant, the issue on appeal was whether photographs showing damage to the vehicles should have been admitted since plaintiffs had not made a claim for property damage.

Defendant was traveling behind plaintiffs, a husband and wife, when a police car traveling in the opposite lane allegedly crossed into plaintiffs’ path. Plaintiff husband was driving and slammed on the brakes. Defendant hit her brakes as well, but “was unable to prevent her van from hitting the rear bumper of the [plaintiffs’] vehicle.” Plaintiffs brought a negligence claim seeking personal injury damages and loss of consortium–$825,000 for husband and $75,000 for wife.

During trial, plaintiff husband testified that he felt a “heavy impact,” and that the accident “impacted [him] heavily.” He admitted that he had no cuts or bruises, and that his body did not touch anything during the accident, but that he was “moved around in [his] vehicle.” Likewise, plaintiff wife testified: “I wasn’t thrown; I was just thrown forward…my body didn’t hit anything except to just react.” Defendant testified, however, that the accident was much less substantial, stating that she “tapped the passenger side rear bumper, about maybe an eight-inch mark, but didn’t see any paint off or anything.”

April 6, 2016

HCLA Statute of Limitations Issue A Jury Question

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

A recent appeal in a claim filed under the Health Care Liability Act (HCLA) turned on when the statute of limitations began to run and whether a doctor was an employee under the Governmental Tort Liability Act (GTLA).

In Rogers v. Blount Memorial Hospital, Inc., No. E2015-00136-COA-R3-CV (Tenn. Ct. App. Feb. 29, 2016), plaintiff arrived at the Blount Memorial Hospital’s (“Hospital”) emergency room on September 8, 2012. He was treated by Dr. Bhatti (“Doctor”), who diagnosed him with and began treating him for Guillain-Barre Syndrome (“GBS”). According to plaintiff, he later found out he never had GBS, but instead had a spinal abscess, and the delay in diagnosis and treatment of the abscess “resulted in permanent and irreplaceable spinal cord damage.”

Plaintiff sent pre-suit notice of this suit to the hospital on August 20, 2013, and to the doctor on October 7, 2013. The complaint was then filed on December 13, 2013. Both defendants filed motions for summary judgment, both of which were granted by the trial court for different reasons.

For the doctor, the trial court granted summary judgment based on the statute of limitations, finding that plaintiff “was aware of facts sufficient to place a reasonable person on inquiry notice that he had suffered an injury as a result of Dr. Bhatti’s alleged misdiagnosis” on September 13, 2012, or at least by October 5, 2012. According to the trial court, plaintiff’s pre-suit notice sent on October 7, 2013, was thus sent outside the statute of limitations. Plaintiff argued, though, that “he had no reason to suspect that the initial diagnosis of GBS was incorrect until he was informed by another medical practitioner in mid-October 2012 that he never had GBS.” Plaintiff asserted that although he had continuing symptoms and was told in the hospital that he would be treated for a spinal abscess, he thought the symptoms and abscess were consequences of the GBS and was never told otherwise.

April 5, 2016

2016 Day on Torts Book Supplement Available

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

Day on Torts: Leading Cases in Tennessee Tort Law is in its third edition, and now that edition is being supplemented with a 300+ page volume.

The 650+ page third edition of the book contains a ready reference to hundreds of leading Tennessee tort cases, organized by subject. The 2016 supplement adds eight new chapters, 91 new sections, and over 160 new cases. Some cases which I previously designated as “leading cases” have been supplanted by other, more recent decisions.

I compiled the cases for this book to give Tennessee tort lawyers and judges an easy way to find the leading case on any particular tort law subject, giving them a starting place for more in depth research.

March 31, 2016

Tennessee Recreational Use Statute Strikes Again

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

In a recent premises liability case, a Tennessee statute shielded the property owner from liability for a four-wheeler accident that occurred on his property. In McCaig v. Whitmore, No. W2015-00646-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2016), plaintiff and his family were attending a social gathering at defendant’s home, which consisted of around seven acres of land and a house. Defendant had ATVs, and took rides with plaintiff’s wife and son, giving them instructions about how to drive safely and what areas to avoid. Plaintiff “neither asked for nor received the same detailed instructions from [defendant].” While riding and following his wife, who was driving another ATV, plaintiff’s ATV flipped and landed on top of him, causing severe injuries.

Plaintiff filed a negligence suit, alleging that defendant was “liable to them for negligence as a result of failing to properly instruct [plaintiff] on how to operate the ATV and by failing to warn [plaintiff] of dangerous and concealed conditions on his property that were known to [defendant].” Defendant filed a motion for summary judgment, arguing that the Tennessee Recreational Use Statute (TRUS), Tenn. Code Ann. § 70-7-101 et. seq., barred recovery by plaintiff. The trial court granted summary judgment, finding that pursuant to the TRUS, defendant owed no duty to plaintiff, and the Court of Appeals affirmed.

Tenn. Code Ann. § 70-7-102 states:

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as…off-road vehicle riding…and nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

March 25, 2016

Expert’s Failure to Disclose Income As Expert – Round 3

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

The noncompliant Dr. Evans strikes again. For the third time, the Tennessee Court of Appeals heard a case revolving around the exclusion of Dr. Martin Evans as plaintiffs’ standard of care expert due to his failure to provide certain financial documents.

In Buman v. Gibson, No. W2015-00511-COA-R3-CV (Tenn. Ct. App. Feb. 18, 2016), plaintiffs filed an HCLA claim in July 2011. In September 2012, plaintiffs identified Dr. Evans as their expert witness regarding the applicable standard of care. Dr. Evans was deposed in November 2012, during which he “refused to answer questions regarding his income from medical-legal review.” The trial court granted defendants’ motion to compel discovery on this issue, and on May 30, 2013, the trial court “orally ruled that Dr. Evans was to provide his annual income from medical-legal review from 2005-2011 within thirty days of the entry of the written order.” At that hearing, plaintiffs made an oral motion for additional time to obtain a new expert, and the trial court directed them to file a written motion to that effect. At the hearing, the trial judge stated: “In all candor, I probably will look on your motion with favor.” Following the hearing, however, plaintiffs did not file a written motion to allow time for a new expert. Accordingly, the trial court granted the motion to compel, and when the information was not provided, defendants filed a motion to exclude Dr. Evans and an accompanying motion for summary judgment based on plaintiffs’ lack of a standard of care expert, a requirement for proving an HCLA claim.

In the face of the motion to exclude and motion for summary judgment, plaintiffs still did not mile a motion for time to find a different expert. Instead, plaintiffs responded with a motion to revise that argued about the propriety of allowing discovery of the financial information sought. The court denied the plaintiffs’ motion on November 18, 2013, but gave them additional time to provide the requested financial information.

March 24, 2016

Kitchen Sink Complaint Goes Down Drain.

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

In Goetz v. Autin, No. W2015-00063-COA-R3-CV (Tenn. Ct. App. Feb. 10, 2016), plaintiff filed a rather unclear complaint that appeared to assert four causes of action: (1) defamation, (2) malicious prosecution, (3) abuse of process and (4) intentional infliction of emotional distress. The trial court dismissed the entire complaint for failure to state a claim, and the Court of Appeals affirmed.

Plaintiffs factual allegations were essentially that defendants “made defamatory statements to [his] family members, neighbors and friends, subjecting [him] to contempt and ridicule and threatening his job[;]” that defendants filed suit against plaintiff on May 12, 2010 with “no reasonable basis” for the action and with an “ulterior motive;” that defendants “committed an act in the use of process other than such as would be proper in the regular prosecution of the charges alleged[;]” that defendants eventually voluntarily dismissed their claims; that the lawsuit contained false statements about plaintiff; and that plaintiff suffered “severe physical and emotional injury” due to the defendant’s lawsuit and statements. Based on these facts, the Court of Appeals affirmed the ruling that the complaint failed to state a claim for the causes of action pursued by plaintiff.

On the abuse of process claim, the Court noted that “a plaintiff must allege the existence of an ulterior motive and an act in the use of process other than such as would be proper in the regular prosecution of the charge.” Moreover, “[t]he mere initiation of a lawsuit, though accompanied by a malicious ulterior motive, does not constitute an abuse of process.” (internal citation omitted). Instead, a “plaintiff must allege some misuse of process after the initiation of the lawsuit.” Here, the complaint failed to allege that defendants did anything more than file the “original processes of the court.” Since the institution of a lawsuit alone is not enough to support an abuse of process claim, plaintiff’s complaint failed to state a claim for this cause of action.

March 18, 2016

Expert Not Needed in Wobbly Stool Case

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

In late 2015, the Tennessee Supreme Court overturned the nuanced approach previously used to distinguish ordinary negligence from medical malpractice. In Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV, 2015 WL 5853872 (Tenn. Oct. 8, 2015), the Supreme Court held that the statutory definition of “health care liability act” contained in the amendments to the HCLA passed in 2011 statutorily abrogated the nuanced approach, and that the definition contained in the statute was now the only guidance a court should consider when determining whether a claim fell under the HCLA. This ruling greatly broadened the scope of cases falling under the HCLA, and a recent Court of Appeals case is a good illustration of the effect of the Ellithorpe holding.

In Osunde v. Delta Medical Center, No. W2015-01005-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2016), plaintiff sued defendant medical center after falling and sustaining a fibular fracture while getting an x-ray taken. Plaintiff went to the medical center complaining of ankle pain and was taken to radiology. There, the “radiology technician instructed [plaintiff] to stand up on a stool.” According to plaintiff, the stool was wooden and did not have rubber tips or handrails. When plaintiff was stepping off the stool, she fell. Plaintiff alleged that the stool was uneven and faulty.

March 16, 2016

Premises Case Rejected on Summary Judgment

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

In Fuller v. Banks, No. W2015-01001-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2016), plaintiff filed a premises liability action based on a fall she sustained when the railing on the stairs at her rental home gave way. Plaintiff had been leasing the premises for almost a year, and the stairs were located outside her front door. Anytime plaintiff went outside the front of her home, she used these stairs and rail. She had used the stairs multiple times a day for the 11 months she had lived there, and even used the stairs at least two times on the day of the fall. Plaintiff had never noticed or reported a problem with the stairs to defendant landlord.

According to plaintiff, after she fell “she noticed loose bricks lying on the ground around her,” which she claimed were part of the railing’s foundation. After the fall, defendant sent a licensed contractor to repair the railing, and this contractor testified that he “did not find any loose bricks,” that “he made no repairs to the brick foundation,” and that there were no signs of rotting. Upon inspection, the contractor saw markings that made him believe the post supporting the railing had been hit by a vehicle.

The trial court granted summary judgment to defendant, finding that plaintiff’s “evidence is insufficient to establish an essential element of [her] claim, that being that [she] suffered an injury resulting from an unsafe or dangerous condition of the leased premises that was in existence at the date of the lease.” The trial court found that defendant had successfully negated proof that a defect was present when the lease was executed, and the Court of Appeals affirmed.

March 10, 2016

Is a Voluntary Dismissal With Prejudice a “Favorable Termination”

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

A recent Court of Appeals case affirmed a trial court’s ruling that a voluntary dismissal with prejudice does not constitute a “favorable termination” for the purpose of a malicious prosecution claim. In Fit2Race, Inc. v. Pope, No. M2015-00387-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2016), the underlying claim initially started during a contentious divorce proceeding. The court granting the divorce ruled in its final decree that the wife had been secretly working with other parties to steal business from and destroy the company started by the husband, and the court held that wife was “sanctioned and [] forbidden to oppose [husband’s] claim that she subverted and destroyed [husband’s] business.”

After the divorce, husband seized upon the findings of the judge in the divorce and filed a federal complaint against wife, another business, and the owners of the other business alleging interference with business relations and civil conspiracy. Husband eventually voluntarily dismissed this case with prejudice.

Not contend to leave well enough alone, the other business and its two owners (the defendants in the federal court action) filed this malicious prosecution action against husband and husband’s attorney. The trial court granted summary judgment to husband and his attorney, finding that because the trial court in the initial divorce had found that wife and the parties at issue here had worked together to steal/destroy husband’s business, there was “more than ample cause for filing the subsequent federal complaint in the underlying action.” Further, the trial court held that “a voluntary notice of dismissal with prejudice does not constitute a favorable termination without any discussion of the merits of the claim.” The Court of Appeals affirmed the summary judgment.