The Tennessee Bar Association has published my article about the recent Moreno decision and the unintended consequences of that decision.
The article is titled “Donald Margolis, “Moreno,’ and Unintended Consequences.”
An excerpt:
2016 Rule Package Released
The Tennessee Supreme Court has sent a package of rule changes to the Tennessee General Assembly for review. The proposed changes will be sent to the judiciary committee in each house. Click on the link to see the proposals.
Plaintiff Who Turned Left on Red 50% at Fault as Matter of Law
In Hall v. Owens, No. W2014-02214-COA-R3-CV (Tenn. Ct. App. Nov. 20, 2015), the Tennessee Court of Appeals affirmed summary judgment for defendant where plaintiff ran a red light and turned in front of defendant’s truck. As plaintiff approached an intersection, he had a red arrow for turning left. Defendant was approaching the same intersection driving a tractor-trailer truck, and defendant had a green light. Despite the red arrow, plaintiff proceeded into the intersection and turned left, at which time he was hit by defendant’s truck and severely injured.
Plaintiff sued defendant and his employer for negligence, asserting that defendant’s negligence was the “direct and proximate cause of the collision.” Defendant moved for summary judgment, relying heavily on the footage of the accident from two traffic cameras. Based on the footage, two experts for defendant testified that defendant was driving approximately 52 miles per hour in the 55 mile per hour zone. Further, it was undisputed that defendant had a green light and plaintiff had a red arrow. It was also undisputed that defendant’s truck was well-illuminated and visible.
In response to the motion for summary judgment, plaintiff submitted expert testimony from an accident reconstructionist asserting that defendant was traveling 60-65 miles per hour, and that defendant had “six to nine seconds of clear visibility of [plaintiff’s] car.” In light of the evidence, the trial court granted defendant’s motion for summary judgment, finding that “no reasonable minds could find anything other than the fact that [plaintiff’s] actions in driving that morning of the accident constituted negligence, and negligence per se, and that his actions were the proximate cause of the accident, at least to the extent of 50% of fault.” The trial court further found that plaintiff’s expert’s testimony regarding defendant’s speed was “fundamentally flawed” in that it failed to consider several relevant factors.
Hotel’s Holiday Ice Slides Not a “Public Playground”
As the holiday season draws to a close, thousands of people have visited Nashville, Tennessee to enjoy the festivities and decorations at Opryland hotel. The Court of Appeals recently affirmed summary judgment against a plaintiff in a negligence case involving the hotel’s holiday ice activity area.
In Hall v. Gaylord Entertainment Co., No. M2014-02221-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2015), plaintiff had gone to the holiday-themed ice exhibit and activity area at Gaylord Opryland hotel with his girlfriend in 2010. This exhibit included four ice slides. While there, plaintiff watched his girlfriend go down slide 3, then climbed the stairs to go down the slide himself. When he stepped from the carpeted landing area to the slide, he slipped and tore his rotator cuff. According to plaintiff, he did not see the rules and warnings posted instructing users to hold the handrails when sitting on the slide because his view was obstructed by guests in front of him. He also testified that he did not see the handrails at the top of the slide, and that he did not see a Gaylord employee on the slide landing or receive any instructions from one.
Plaintiff sued both Gaylord Entertainment (the owner of the hotel) and International Special Attractions (ISA), a company who had worked with Gaylord to design and construct the exhibit, under several theories. Pursuant to the agreement between these two entities, Gaylord provided the initial designs to ISA; ISA evaluated the plans for feasibility and structural integrity; ISA constructed the exhibit; and Gaylord was responsible for staffing the exhibit and placing warnings and rules around the exhibit. After both defendants filed motions for summary judgment, plaintiff eventually conceded that ISA was entitled to summary judgment on his claims for negligent operation, negligent failure to warn, and negligent post-construction inspection. The only remaining claim against ISA was for negligent design.*
In his argument against summary judgment on this claim, plaintiff relied on his expert’s testimony that the slide at issue did not meet “applicable standards and state laws on amusement devices.” Plaintiff’s expert asserted that slide 3 was defective “because it did not comply with the design specification standards of the American Society of Testing Materials (ASTM),” citing two specific sections of this standard that were not followed. These two sections were part of a portion of the standards titled “Standard Consumer Safety Performance Specification for Playground Equipment for Public Use.” At the trial level, the parties spent a great deal of time arguing over whether slide 3 should be considered an “amusement device” under Tennessee law. ISA argued that the slide did not meet the height requirements to be an amusement device, and that therefore the standards relied on by plaintiff were inapplicable under Tennessee law. Plaintiff, on the other hand, asserted that the attraction as a whole was an amusement device and should be evaluated according to the ASTM standards cited.
Low Damage Award Set Aside by Appellate Court
The Tennessee Court of Appeals recently vacated a judgment in a car accident case after finding that the “jury’s damages award [was] not supported by material evidence.” In Naraghian v. Wilson, No. W2014-02002-COA-R3-CV (Tenn. Ct. App. Nov. 12, 2015), plaintiff’s car was struck from behind by defendant’s vehicle. According to plaintiff, she had come to a complete stop at a red light and was then hit. Defendant asserted, though, that he slowed down for the red light, but the light then changed to green and plaintiff began driving off, only to suddenly stop and cause the accident.
At trial, plaintiff presented evidence regarding her medical damages. Her treating chiropractor testified that “the treatments he provided were reasonable and necessary and stated that [plaintiff’s] injuries were the result of the traffic accident involving [defendant].” The total bill for plaintiff’s treatment was $13,440, and there was no real dispute at trial regarding the reasonableness or necessity of the charges. “Defense counsel did not submit any witness controverting the reasonableness of the charges that were billed, nor did defense counsel submit any proof rebutting the medical opinions testified to by [the chiropractor] as to the reasonableness or necessity of the treatment or as to the medical causation as a result of this accident.”
The jury found in favor of plaintiff and found her damages to be $7,831.67. Although the jury found defendant to be responsible, they also apportioned 44.58% of the fault to plaintiff, so her damages were accordingly decreased. After having her motion for a new trial denied, plaintiff appealed, asserting that “the damages awarded by the jury were disproportionate to the amount of damages proven at trial.”
Merely Providing Affidavit To Employer Cannot Give Rise to Malicious Prosecution Claim
In Thompson v. Hamm, No. W2015-00004-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2015), the Tennessee Court of Appeals addressed the issue of whether an affidavit provided to the City of Memphis as an employer of both plaintiff and defendant was enough to establish that defendant “instituted a wrongful prosecution” of plaintiff, ultimately deciding that it was not in the circumstances at play.
Plaintiff was the maintenance manager at a water treatment plant for the city, and during his time as manager the city allegedly received several complaints that plaintiff discriminated on the basis of race. Defendant gave the city an affidavit detailing instances of racial discrimination by plaintiff. After receiving the affidavit, the City hired an independent firm to investigate the claims, and as a result of the investigation decided to charge plaintiff with violations of city policy. The city held a hearing and ultimately terminated plaintiff. Plaintiff appealed his termination to the Civil Service Commission, who found that there was “tension” between plaintiff and defendant and issued a decision setting aside the termination. The Chancery Court affirmed the Commission, and plaintiff was reinstated to his position.
Based on defendant’s affidavit, plaintiff filed suit for malicious prosecution against defendant. Defendant moved for summary judgment on several grounds, which the trial court granted, rulding that defendant’s “only involvement in the City’s internal investigation was providing the City information regarding Plaintiff’s conduct. Such action on the part of Defendant Hamm does not constitute the initiation of a lawsuit or judicial proceeding against Plaintiff as is required to succeed on a claim for malicious prosecution.” On appeal, plaintiff raised several issues, but the Court only analyzed one in affirming summary judgment, finding it dispositive of the case—defendant’s argument that “his provision of information to the City [was] insufficient to establish that [defendant] instituted a wrongful prosecution[.]”
Judge Must Give Basis for Summary Judgment Decision
A recent Tennessee premises liability case reiterated that a trial court cannot grant summary judgment “without making findings of fact or stating the legal basis for its decision.” In McEarl v. City of Brownsville, No. W2015-00077-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2015), plaintiff alleged that while walking from a private home to a public parking area maintained by the city, he was injured when he “stepped into a leaf-filled gutter running between the yard and the parking area.” The city moved for summary judgment, which the trial court granted. After asking both parties questions at the hearing, the trial judge stated: “I don’t think—I don’t think the City is responsible here. I’m granting [the defendant’s] motion.” The trial judge instructed defendant to prepare an order, and the order eventually entered contained several findings of fact regarding lack of duty and foreseeability.
On appeal, the Court vacated the order granting summary judgment due to the trial court’s failure to make findings of fact and state a legal basis for its decision before asking the defendant to submit a proposed order. The Court relied on Smith v. UHS v. Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014), where the Tennessee Supreme Court “made clear that Tennessee Rule of Civil Procedure 56.04’s directive that ‘the trial court shall state the legal grounds upon which the court denies or grants the motion which shall be included in the order reflecting the court’s ruling’ is mandatory.” In Smith, “the court concluded that Tenn. R. Civ. P. 56.04 requires the trial court, upon granting or denying a motion for summary judgment, to state the grounds for its decision before it invites or requests the prevailing party to draft a proposed order.”
Here, the trial court “provided no factual findings or legal grounds for its decision[.]” The Court of Appeals noted that it was “essentially asked to conduct an archaeological dig into the transcript…in order to determine what the court’s comments and questions indicate about its state of mind during the proceeding.” Finding that it had “no ability to know what the court’s actual grounds were when it made its oral ruling,” the Court of Appeals vacated the order and remanded the case.
Parents Win Dismissal of Case For Allowing Minor Daughter to Drive ATV
In Ward v. Ward, No. M2014-02237-COA-R3-CV (Tenn. Ct. App. Oct. 30, 2015), plaintiff sued for injuries her daughter sustained in an ATV accident. Daughter, who was 15 years old, was staying with her step-grandmother, the defendant in this action. Defendant gave daughter permission to drive defendant’s ATV to accompany defendant’s nephew as he drove a friend home. The destination was approximately one mile from defendant’s home. Daughter’s friend rode on the ATV with her. Daughter drove to the destination, but before returning to defendant’s home daughter switched with her friend and her friend drove on the return trip. The friend failed to make a turn and drove the ATV off a cliff.
Plaintiff asserted several theories of liability, but the only claims at issue on appeal were for negligent entrustment and negligent supervision. The trial court granted summary judgment to defendant on both of these claims, and the Court of Appeals affirmed.
To prove negligent entrustment, “a plaintiff must demonstrate that (1) a chattel was entrusted, (2) to a person incompetent to use it, (3) with knowledge that the person is incompetent, and (4) that its use is the proximate cause of injury or damage to another.” (internal citation omitted). Defendant first asserted that she was entitled to summary judgment because she only entrusted the ATV to daughter, not to the friend. Defendant pointed to testimony given by daughter in her first deposition where she testified that Defendant told her to drive. Plaintiff refuted this fact, though, with evidence that during daughter’s second deposition she testified that defendant did not specify who was supposed to drive, and that defendant told daughter and friend that “they” could use the ATV. The Court found that this evidence created a genuine issue of material fact, so summary judgment was not appropriate based on the argument that defendant did not entrust the ATV to the friend.
“Health Care Liability Claim” Includes Dropping Patient While Putting Her in Car
In early October, the Tennessee Supreme Court decided in Ellithorpe v. Weismark, 2015 WL 5853873 (Tenn. Oct. 8, 2015) that the statutory definition of “health care liability act” contained in the 2011 amendments to the HCLA abrogated the previously used nuanced approach for distinguishing between health care actions and common law negligence. In light of the broad language used in the statutory definition, the Ellithorpe decision made it highly unlikely that any negligence claim related to a health care professional would be deemed ordinary negligence, and litigants are now beginning to feel the effects of this opinion.
In Estate of Thibodeau v. St. Thomas Hospital, No. M2014-02030-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2015), plaintiff sued defendant hospital after she was injured when hospital employees failed to “properly support [her] as they attempted to transfer her from a bariatric stretcher to her automobile.” Plaintiff was on a road trip with her husband, and while in Nashville she began having arthritic knee pain. She was transported by ambulance to the hospital, and after being seen and discharged, she was assisted to her car by two registered nurses and a patient care technician. Plaintiff weighed almost 500 pounds, and the hospital employees worked with plaintiff and her husband to develop a plan to move her back to her vehicle while requiring her to stand as few times as possible because of her knee pain. The employees transferred plaintiff by bariatric stretcher to her waiting car, but when plaintiff was “near her vehicle and ready to come to a standing position, she fell and experienced the onset of ‘terrible pain’ in her left ankle.” She was then readmitted to the hospital and treated.
On Eulogies and Obituaries
Keith Lee at Associate’s Mind has a great post titled “Do You Feed Your Resume or Your Eulogy?” He was inspired to write the post by this column written by David Brooks.
Keith starts his post with these words from Brocks’ column: “It occurred to me that there were two sets of virtues, the résumé virtues and the eulogy virtues. The résumé virtues are the skills you bring to the marketplace.”The eulogy virtues are the ones that are talked about at your funeral ….”
Both the column and the post are worth the read. About ten years ago I started moving down the “eulogy” path, deciding I would not undertake any new professional association, etc. work unless it was something I wanted to do and wanted in my obituary. There are just too many demands and too little time. As a result, I have turned down many opportunities that were presented to me but have managed to spend more time with my family and on my practice.