The Court of Appeals recently overturned a trial court’s decision that a somewhat recently reconstructed road constituted a dangerous road condition. In Church v. Charles Blalock & Sons, Inc., No. E2014-02077-COA-R3-CV (Tenn. Ct. App. Oct. 9, 2015), plaintiffs filed suit on behalf of two women who died in an automobile accident. The facts showed that a highway had been reconfigured to bypass a town. Before the construction, highway drivers had no stop signs and simply proceeded on a curvy road. The new configuration, which included a stop sign at a “T” style intersection and a subsequent turn, opened on July 13, 2009. When it opened, the new roadway had a stop sign, a white stop bar on the pavement, and a “stop ahead” sign.

After the road opened, the State learned that many drivers were failing to stop at the new sign. In an email from a TDOT engineer to superintendent of maintenance, the engineer said that rumble strips had been suggested as a possible solution at the intersection. Rumble strips were never added, but changes were made following an accident in October 2009. In December, a junction sign was added before the intersection; large “stop ahead” signs were placed 320 feet before the intersection on both sides of the road; a directional sign with an arrow was placed before the intersection; two larger stop signs were placed on both sides of the road; and a two-headed arrow sign was placed across from the intersection.

On January 23, 2010, the driver here failed to stop her car at the stop sign and instead immediately proceeded to the right. She entered the path of oncoming traffic, causing a collision which killed her and her passenger. The evidence suggested that this was most likely her first time to drive through the newly constructed intersection, as she had been recovering from a back surgery.

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Several cases have now held that the 2011 amendments to the Health Care Liability Act (HCLA), which added language referring to governmental entities, allow plaintiffs bringing an HCLA claim under the GTLA to take advantage of the 120-day extension of the statute of limitations after giving proper pre-suit notice. Recently, though, a plaintiff whose claim arose before the enactment of this amendment tried to creatively argue that she too should be allowed the extra 120 days.

In Miller ex rel. Miller v. Cookeville Regional Med. Ctr., No. M2014-01917-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015), plaintiff’s husband had died after being given an excessive dose of blood thinners. The husband died on May 18, 2010.   Plaintiff gave pre-suit notice on May 11, 2011, and then filed suit on September 8, 2011, one year and 113 days after the death. Upon motion by the defendant, the trial court dismissed the claim as untimely, relying on the Tennessee Supreme Court’s decision in Cunningham v. Williamson County Hospital District, 405 S.W.3d 41 (Tenn. 2013). In Cunningham, the Supreme Court held that the HCLA as it existed prior to the 2011 amendments did not allow GTLA plaintiffs to take advantage of the 120-day statute of limitations extension.

In the present case, the Court noted that “the relevant date in determining whether the 2011 amendment to the HCLA applies to a case is the date on which the cause of action accrues.” Since the injury here occurred in May 2010, well before the October 1, 2011 enactment date of the 2011 amendment, “the statute of limitations was not extended by giving pre-suit notice[.]”

This week, the Tennessee Supreme Court overruled Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), “return[ing] to a summary judgment standard consistent with Rule 56 of the Federal Rules of Civil Procedure.”

In Rye v. Women’s Care Center of Memphis, PLLC, No. W2013-00804-R11-CV (Oct. 26, 2015), plaintiff had Rh negative blood, and defendant failed to test and subsequently treat her with a specific injection during her third pregnancy. Because she was not treated, plaintiff became Rh-sensitized. The record contained extensive testimony regarding the risks to plaintiff and to any future pregnancies. Essentially, regarding future children, the evidence showed that if several contingencies occurred—“a future pregnancy, an Rh positive fetus, antibodies crossing the placenta—it [was] undisputed that the unborn fetus would face a number of risks, ranging from mild to severe.” Because plaintiff and her husband were Catholic, they asserted that they were limited in what steps they could take to avoid future pregnancies. Regarding the harm or risks to plaintiff herself, plaintiff’s own expert testified that the risk to her was that if she had an emergency situation and needed blood, the transfusion process could be longer because finding a match for sensitized blood could take more time.

Plaintiffs’ complaint asserted causes of action for health care liability, negligent infliction of emotional distress (NIED) for both plaintiff and her husband, and disruption of family planning. Defendants moved for summary judgment, arguing that the plaintiffs had “no existing actual injuries or damages resulting from the deviation,” that plaintiffs had “failed to allege future injuries to a reasonable medical certainty,” and that plaintiffs did not properly support their NIED claims. The trial court granted summary judgment as to all claims “for future damages to [plaintiff] arising from blood transfusions or future pregnancies,” finding that those damages had “yet to be sustained” and were speculative. The trial court also granted summary judgment on husband’s NIED claim, as he had not suffered physical injury and had not offered the required expert proof for an emotional distress action. Finally, the trial court granted summary judgment as to plaintiff’s “independent cause of action for disruption of family planning,” finding that Tennessee did not recognize such a claim. The court, however, denied summary judgment on plaintiff wife’s NIED claim, ruling that there was a genuine issue of material fact as to whether the change in her blood constituted a physical injury and also holding that she would be allowed to present evidence regarding how her family plans had changed as an element of her damages.

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In Jenkins v. Big City Remodeling, No. E2014-01612-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015), plaintiffs had hired defendant general contractor to construct a home for them.  General contractor, in turn, had hired defendant flooring subcontractor for the project. When the home was almost complete, it caught fire and resulted in a total loss. Plaintiffs sued the general contractor and subcontractor for negligence, including negligence based on the doctrine of res ipsa loquitur. The trial court granted summary judgment to all defendants. On appeal, the Court of Appeals affirmed summary judgment as to the general contractor but reversed as to the claim of negligence against the flooring subcontractor.

The facts established that the day before the fire, the owners had been in the home, and they had retained a key during construction. Further, the construction site was not fenced or otherwise blocked from public access. When the fire occurred, one of the only remaining projects was to stain the wood floors in the home. On the day of the fire, several subcontractors had been working on the house, including Julian Luu, who was working on the floor stain. Based on camera footage from a neighboring property, Mr. Luu was the last person to leave the property at around 6:10 p.m., and the fire started around 7:50 p.m.

Plaintiffs’ theory was that the flooring subcontractors, who had been known to smoke a lot on the site, “allowed flammable rags to remain on or near the exterior deck and also smoked cigarettes in the area.” Plaintiffs claimed that “the improper disposal of cigarette butts resulted in the stain-soaked rags igniting, causing the fire.” Although the fire destroyed any evidence of rags, buckets with staining rags and cigarette butts were found in a dumpster on the property. Plaintiffs’ expert testified that “he believed the fire began on the exterior deck,” but the expert admitted that he could not be certain and that he could not conclusively rule out arson or electrical problems.

The Tennessee Supreme Court has ruled that the constitutionality of the artifical cap on non-economic damages in tort cases should not be examined by the courts until after a plaintiff receives a verdict in excess of the cap.

The decision comes in the Clark case out of Chattanooga.   The trial judge in that case ruled that the caps were unconstitutional.  Tennesssee’s High Court said the ruling was premature.  The Order can be reviewed by clicking on the link below

From a practical standpoint, this means that a supreme court review of the caps is at least two years off.  Why?  Because that is how long it takes, on average, from a verdict to go through the entire appellate process.   It is possible that a case with a verdict over the caps is in the pipeline right now but I have not heard of such a pending case.   Please let me know via a comment if you are aware of one.

The Tennessee Supreme Court just issued an important decision regarding how to decide whether a claim falls under the Health Care Liability Act (HCLA) or ordinary negligence. In Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV (Tenn. Oct. 8, 2015), the Court held that the previous nuanced approach detailed in Estate of French v. Stratford House, 33 S.W.3d 546 (Tenn. 2011) had been abrogated by the HCLA amendments passed by the Tennessee legislature in 2011, and that the definition contained in the HCLA is now the authority under which a court should determine whether a claim falls under the HCLA.

In Ellithorpe, plaintiffs were the biological parents of a minor child but had lost custody of the child. The custodian arranged for and/or permitted defendant social worker to provide counseling to the child without the parents’ knowledge or consent. When the parents found out about the counseling, they brought this claim against defendant social worker. It was undisputed that the parents did not give pre-suit notice or file a certificate of good faith pursuant to the HCLA.

Defendant filed a motion to dismiss based on parents’ failure to comply with the HCLA, to which parents responded that their claims sounded in ordinary negligence. The trial court, however, granted defendant’s motion and dismissed the complaint, verbally ruling that “the THCLA was very broad and encompassed Parents’ claims because they related to the provision of health care services by a health care provider as those terms are defined by statute.”

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In Moreno v. City of Clarksville, No. M2013-01465-SC-R11-CV (Tenn. Sept. 18, 2015), the central issue surrounded the interplay of the 90-day window provided by Tenn. Code Ann. § 20-1-119 to add a non-party named by a defendant as a comparative tortfeasor and the process for filing a claim under the Tennessee Claims Commission Act.

Plaintiff was injured when a tree fell on his car as he was driving across a bridge on December 24, 2009. Within one year of the accident, plaintiff followed the procedure outlined by the Claims Commission and filed written notice of his claim against the State of Tennessee with the appropriate authority, the Division of Claims. The Division of Claims neither honored nor denied plaintiff’s claim within the 90-day period set out in the Claims Commission Act, and the claim was accordingly transferred to the administrative clerk of the Claims Commission. Plaintiff received an order from the Claims Commissioner on March 30, 2011, stating that he needed to file a complaint, which he did on April 14, 2011. The State filed an answer to the complaint on May 18, 2011, but did not mention comparative tortfeasors. On September 18, 2012, sixteen months after the initial answer, however, the State moved to amend its answer to name the City of Clarksville as being comparatively at fault. Pursuant to this new answer, plaintiff initially filed a motion to amend his complaint in the Claims Commission to add the City of Clarksville. He later, however, withdrew this amendment and instead filed suit against the City of Clarksville in Circuit Court.

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In Grant v. The Commercial Appeal, No. W2015-00208-COA-R3-CV (Sept. 18, 2015), plaintiff sued defendants for various causes of action related to an online and print newspaper article, although on appeal the only causes of action at issue were defamation and defamation by implication. The articles were about plaintiff’s involvement in a mall revitalization project in Memphis that had recently been approved by the Memphis City Council. The article, in part, contained information regarding the following:

  • plaintiff failed to tell the City Council that he owed a large sum of money to the federal government;
  • plaintiff “stated that he had no financial interest in the project, yet…various state records and other transactions [plaintiff] has been involved with suggested otherwise;”
  • upon investigation, it was discovered that plaintiff had an office on the mall’s property;
  • a city councilman was quoted as saying the project was the “worst project we ever approved” and that the city council was unaware that plaintiff was “one of the project’s principals;”
  • a quote from a “frat brother” of plaintiff saying plaintiff worked on the mall project as an adviser for free;
  • an online headline saying “Silent partner? [plaintiff’s] involvement clouds $1.5 million Southbrook Mall deal.”

Plaintiff asserted that “the substance of the articles [were] defamatory to him,” making it appear that he was dishonest and deceptive, and that defendants had acted with actual malice.

Defendants filed a motion to dismiss, which the trial court granted on two bases: (1) “that the complaint failed to state a claim upon which relief can be granted as the statements at issue ‘are not defamatory or capable of defamatory meaning,’” and (2) that the article fell within the fair report privilege.

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Add Bockelman v. GGNSC Gallatin Brandywood LLC, No. M2014-02371-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2015), to the long list of cases in which a Tennessee court affirmed an order upholding the validity of an arbitration agreement signed by the deceased’s designated health care agent.

The patient at issue here had signed a “Health Care Agent” form in December 2008, appointing her daughter as her agent. The form provided that the daughter was given “permission to make health care decisions for me if I cannot make decisions for myself, including any health care decision that I could have made for myself if able.” In January 2010, the patient’s doctor deemed her incompetent to make health care decisions, and he documented and signed such designation.

Following the incompetence designation, the patient had several other medical appointments. Some notes from these subsequent appointments indicated that she did not have any “neurological deficits,” while others referred only to a “physical incapacity.” She was treated at times based on her own preferences rather than her best interests, yet the official incompetence designation was never overturned or amended.

In May 2010, the patient was admitted to defendant nursing home. During the admission process, daughter presented the health care agent form and signed all the admission documents on patient’s behalf, although daughter later testified that patient was competent at this time. One document signed by daughter as patient’s agent was an Alternative Dispute Resolution Agreement. At the top, this form noted in bold, capital letters that it was “not a condition of admission to or continued residence in the facility.”

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In Parsons v. Wilson County, No. M2014-00521-COA-R3-CV (Tenn. Ct. App. Sept. 3, 2015), plaintiff fell from the top bunk bed he was assigned while he was an inmate at Wilson County jail, and he sued the county under the Governmental Tort Liability Act (GTLA) for negligence in failing to assign him to a bottom bunk. According to plaintiff, he informed employees at the jail of his need for a bottom bunk during the intake procedure, citing “existing shoulder and neck injuries.” When he was assigned to a cell, though, he was assigned a top bunk. While getting out of the bunk after sleeping in it, he fell and injured his shoulder.

At trial, the county employee who oversaw management of the jail testified that “a procedure was in place to determine which inmates received a bottom bunk.” The procedure included forms completed during intake, which were then sent to a medical unit where nurses could “review the forms, meet with inmates, determine whether an inmate is able to be placed in the general population in that jail, and make the decision about whether or not the inmate’s medical needs necessitate that the inmate be assigned a bottom bunk.” Based on the testimony of this employee, plaintiff, and a physician, the trial court ruled in the County’s favor. The trial court ruled that the county was performing a discretionary function under the GTLA and thus retained immunity; that the county “had no duty in this case to provide Plaintiff with a bottom bunk;” that there was no breach of duty to plaintiff; that it was not foreseeable that plaintiff would jump from his bed; and that “Plaintiff was guilty of more than fifty percent (50%) of the fault.” While the Court of Appeals affirmed the ruling in the County’s favor regarding duty, it also reversed two of the trial court’s specific rulings.

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