Day on Torts

December 28, 2015

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.

December 21, 2015

Low Damage Award Set Aside by Appellate Court

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

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.”

December 19, 2015

Merely Providing Affidavit To Employer Cannot Give Rise to Malicious Prosecution Claim

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

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[.]”

December 9, 2015

Judge Must Give Basis for Summary Judgment Decision

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

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.

December 8, 2015

Parents Win Dismissal of Case For Allowing Minor Daughter to Drive ATV

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

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.

December 7, 2015

“Health Care Liability Claim” Includes Dropping Patient While Putting Her in Car

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

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.

November 29, 2015

On Eulogies and Obituaries

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

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.

November 23, 2015

Impact of Lost Product Under Tennessee Products Liabilty Law

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

In Tatham v. Bridgestone Americas Holding, Inc., No. W2013-02604-SC-R11-CV (Tenn. Oct. 30, 2015), plaintiff brought a product liability action against defendants after her tire blew out and caused her to have a car accident, breaking her back. Plaintiff purchased rear tires for her vehicle from Firestone Complete Auto Care. She chose the tires because they were “the best value,” but could not remember whether the sales associate discussed any warranties with her. After having the tires installed, plaintiff never tested the air pressure and did not recall running over anything or having any problems with the tires. Less than three months after purchasing the tires, plaintiff was driving on the interstate when one of the tires suddenly failed, causing her to hit the guardrail and flip her car. According to a witness driving behind plaintiff, plaintiff was driving normally and a piece of black was flapping from the tire before the accident. When plaintiff’s car began to veer off the road, the witness saw something black that looked like pieces of a blow-out come out from under plaintiff’s car.

After the accident, a wrecker service towed plaintiff’s car, and her insurance company informed her the car was totaled. At the recommendation of her insurance company, plaintiff signed the title of her car over to the wrecker service, who subsequently destroyed the vehicle and tire. At this time, plaintiff had not yet hired an attorney. Eventually plaintiff did retain counsel and brought this product liability action on the grounds of strict liability, negligence, and breaches of the implied warranty of fitness, implied warranty of merchantability, and duty to warn.

Defendants moved for summary judgment two times, which the trial court denied. Defendants appealed, citing three issues: 1) whether the case should have been dismissed as a sanction for spoliation of evidence with regards to the destruction of the tire; 2) whether the trial court should have granted summary judgment as to causation and the issue of whether the tire was defective or unreasonably dangerous; and 3) whether the trial court should have granted summary judgment because Tennessee allegedly does not recognize the apparent manufacture doctrine.

November 19, 2015

Summary Judgment Reversed in Conversion Case

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

In Garner v. Coffee County Bank, No. M2014-01956-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2015), the Court of Appeals partially overturned a trial court’s grant of summary judgment to defendants on several claims, including the torts of conversion and trespass to chattels.

Plaintiff and his former wife had purchased a home together, but wife moved out in 2009, taking her belongings with her. The home and its contents were damaged by fire in 2010. Wife was named on the insurance policy, so the checks from the insurer were made to both plaintiff and wife. The checks were for home damage, property loss and living expenses. Plaintiff believed that wife was not entitled to any of the proceeds for personal property loss and living expenses, since wife was not living at the home at the time and did not have any of her belongings there. According to plaintiff, however, the president of the bank where the home mortgage was held told plaintiff that he could not cash the checks and get any money unless he gave wife half of the proceeds. Plaintiff averred that, feeling coerced, he gave wife half the proceeds, and that money was used to pay down wife’s separate loan from the bank. The bank ultimately foreclosed on plaintiff’s home, and plaintiff filed suit for conversion, trespass to chattels, and conspiracy, among other causes of action.

Defendants moved for summary judgment on all of plaintiff’s claims. Plaintiff, however, failed to file any response to the summary judgment motion until after the time required by Tennessee Rule of Civil Procedure 56.03, and the trial court refused to use its discretion to excuse this delay. While the court acknowledged that plaintiff had been sick in the days leading up to the hearing and that could have affected his ability to sign his affidavit, it also pointed out that no other papers not requiring plaintiff’s signature and no motion for an extension of time were filed. Accordingly, plaintiff’s late-filed responsive documents were not considered in the summary judgment decision.

November 11, 2015

False Light Claim Knocked Out – No Proof of Malice

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

In Winslow v. Saltsman, No. M2014-00574-COA-R3-CV (Tenn. Ct. App. Oct. 21, 2015), plaintiff brought claims against two defendants, a political candidate and his campaign advertising consultant, alleging false light and defamation. Finding that the defendants negated the element of actual malice, the Court of appeals affirmed summary judgment for defendants.

Plaintiff was Chief of Staff for the Tennessee Republican Party (TRP) and was given an employment agreement by his boss before she resigned to run for Congress. The new TRP chair offered plaintiff a different position, but instead plaintiff chose to negotiate a severance based on his employment agreement and leave his employment with the party. Shortly thereafter, he began working for his old boss’s campaign. The defendant democratic candidate for the Congress seat hired the defendant consultant for advertising, and at some point the consultant obtained copies of a financial review of the TRP, plaintiff’s employment agreement, and a document drafted by plaintiff while negotiating his severance. These documents showed that the TRP had extensive debt and overdrafts.

Before the primary elections, the democratic campaign ran advertisements on TV and in print stating that the opposing candidate and former TRP chair “left the state Republican party over $100,000 in debt” and “gave her future Congressional campaign staff lavish bonuses.” In a radio interview, defendant consultant stated that plaintiff “was paid out of Republican Party funds for three months while he was working for [his former boss’s] campaign,” and that such an arrangement was “at worse, illegal and, at best, just plain wrong.” The democratic campaign also launched a website where they published the TRP financial records, records showing payments to plaintiff, plaintiff’s employment agreement and the document he drafted when negotiating his severance. Based on these statements, plaintiff filed suit against the democratic candidate and his consultant for false light.

To prove his claim, plaintiff had to show that the false light he was placed in “would be highly offensive to a reasonable person” and that defendants “acted in reckless disregard as to the falsity of the publicized matter and the false light in which [plaintiff] would be placed.” Importantly, here plaintiff conceded that he was at least a limited public figure, so the standard for his false light claims was actual malice. “Actual malice exists where the defendant publishes or makes a statement with knowledge that it was false or with reckless disregard of whether it was false or not.” (internal quotations and citation omitted). Failure to investigate information alone, however, is not enough to establish actual malice.