Day on Torts

April 5, 2016

2016 Day on Torts Book Supplement Available

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.

March 9, 2016

TRCP 16 Provides for Scheduling Orders Not Scheduling Suggestions

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

A recent Court of Appeals case serves as a great reminder of the importance of disclosing the correct experts in a timely fashion in a Health Care Liability Action. In Mikheil v. Nashville General Hospital, No. M2014-02301-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2016), plaintiffs filed an HCLA case against several parties related to the alleged failure to timely diagnose and treat cervical stenosis. Included as defendants were an orthopedic surgeon from Nashville General Hospital, a nurse practitioner, the hospital itself based upon a claim of vicarious liability through the orthopedic surgeon, and a neurologist.

To prove an HCLA claim, a plaintiff must present expert testimony regarding the “standard of care, a failure to act in accordance with the standard of care, and proximate cause.” Throughout the pretrial litigation, plaintiffs had multiple problems with their expert disclosures. First, plaintiffs failed to file their Rule 26 expert witness disclosure by the date set out in the agreed scheduling order, and instead filed a motion requesting an additional 120 days the day after the initial deadline. When the disclosure was eventually filed, plaintiff listed four potential expert witnesses, including Jane Colvin-Roberson who was to be called as a “life care planner expert.” The disclosure stated that “the plaintiffs would furnish a copy of the Life Care Plan when it is completed.”

Defendants moved to strike the experts because plaintiffs did not provide sufficient disclosures regarding the “facts and opinions to which the experts were expected to testify or a summary of the grounds for each opinion.” The Court gave the plaintiffs three days to serve full and complete disclosures. When the supplemental disclosure was given to defendants, rather than including the life care plan by Colvin-Roberson, the plaintiffs named a new life care planning expert, Nurse Lampton. Upon motion of the defendants, Nurse Lampton was stricken, as the plaintiffs did not disclose her in a timely fashion and did not seek leave of the court to substitute her for the life care expert originally named. As plaintiffs had at that point failed to provide full disclosures for a life care planner, the trial court ruled that plaintiffs were “prohibited from offering into evidence…any life care plan and any life care planning testimony.”

March 8, 2016

The Verdict for Erin Andrews – What Happens Next?

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

Erin Andrews won a jury verdict yesterday in Nashville for $55,000,000 in her case against the company that owned and managed a local hotel. What happens next?

Andrews’ lawyers will prepare a judgment reflecting the jury’s verdict. Look for a fight over whether joint and several liability or several liability applies that will be brought to head during this part of the proceedings. The hotel lawyers will ask the Court to enter judgment declaring that several liability controls the case and thus the hotel is “only” responsible for the hotel’s fault percentage multiplied by the total damages (about $27,000,000). Andrews’ lawyers will ask for joint and several liability, arguing that the logic of Turner v. Jordan and its progeny should apply and result in the imposition of joint and several liability, making the hotel liable for the entire $55,000,000. With $28,000,000 at play, look for a real fight over this issue.
The hotel will attempt to do jury interviews in an effort to find some way to impeach the verdict.

March 7, 2016

Property Owner Not Liable Where Another Entity Operated Clinic

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

In Choate ex rel. Clayton v. Vanderbilt Univ., No. M2014-00630-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2016), the Court of Appeals affirmed summary judgment for a property owner when a patient was injured while attempting to get on a scale at a dialysis clinic.

Plaintiff was the decedent patient’s former spouse and brought the action on behalf of the patient’s minor child. Patient was suffering from end-stage renal disease and receiving dialysis treatments three times each week. His treatments were at the Vanderbilt Dialysis Clinic, but although Vanderbilt University owned the building and property, the clinic was operated by Bio-Medical Applications of Tennessee, Inc. Patient had been going to this clinic for several years.

When patient arrived on the day at issue, he arrived in a wheelchair and a Bio-Medical employee assisted him with his admission. Patients are weighed before dialysis can begin, but patient asked to go to the restroom first. A Bio-Medical employee wheeled patient to the restroom and told him to use the call string inside to let her know when he was finished. After not hearing from the patient for ten minutes, the employee checked on the patient and again reiterated that he should use the call string when finished. When the patient finished using the restroom, he left the area and asked the facility secretary to show him into the treatment area. She took him to an isolation room and instructed him to wait there for his patient care technician to come get him. Patient disregarded these instructions and left the room alone.