Day on Torts

August 12, 2015

Non-Suit Allowed to Cure Pre-Suit Notice Deficiencies

In Phillips v. Casey, No. E2014-01563-COA-R9-CV (Tenn. Ct. App. July 21, 2015) plaintiff’s late husband was a patient of defendant doctor. Sometime in 2011 or 2012, defendant diagnosed husband with angioedema. Defendant also diagnosed husband with hypertension and prescribed a medication to treat that condition. On April 2, 2012, husband had a bilateral tonsillectomy performed by another doctor, and husband died that evening. Plaintiff received a copy of the autopsy report on July 3, 2012, which listed the primary cause of death as angioedema. On April 2, 2013, plaintiff filed suit against defendant doctor and his employer alleging that doctor was negligent by prescribing medicine to husband known to aggravate angioedema and by failing to inform the doctor performing the tonsillectomy of husband’s condition.

Before filing her first health care liability claim, plaintiff did not send the statutorily required pre-suit notices to the two named defendants. Accordingly, defendants filed a motion to dismiss. While that motion was pending, plaintiff voluntarily dismissed her claims without prejudice. Plaintiff then sent proper pre-suit notice that met all the statutory requirements and subsequently re-filed her suit. Defendants moved to dismiss again, asserting that plaintiff’s initial complaint was untimely and that she could thus not rely on the saving statute and that plaintiff could not re-file her suit in order to comply with the pre-suit notice requirements. The trial court denied the motion to dismiss but granted an interlocutory appeal to consider the following issue:

Whether Tennessee Code Annotated section 29-26-121 permits a plaintiff to take a voluntary nonsuit pursuant to Tennessee Rules of Civil Procedure 41.01 with a motion to dismiss pending, resend notice of intent to the providers, and then refile a new action within the original statute of limitations or in accordance with the savings statute.

August 11, 2015

Evidence of Injury Not Enough to Prove Fall-Down Case

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

In Newcomb v. State, No. M2014-00804-COA-R3-CV (Tenn. Ct. App. June 26, 2015), the Court of Appeals affirmed the Tennessee Claims Commission’s dismissal of a plaintiff’s premises liability action. Plaintiff fell down a flight of stairs in front of a state owned building. It was raining on the day of the injury, and plaintiff asserted that she reached out for the handrail but that it was out of reach. She argued that the handrail started one stair down from the top and that the steps had no nonskid material, both of which made the stairway unsafe.

At the Claims Commission hearing, the State called two witnesses who worked in facility administration at the building to testify. Both witnesses stated that the steps were the main entrance to the building which was used frequently, that any problems with the steps would have been “quickly noticed and corrected,” and that there had been no prior incidents on the steps. Based on this evidence, the Claims Commissioner dismissed plaintiff’s case, concluding that she “failed to prove that the steps and handrail were a dangerous condition or that, assuming they were dangerous, the State knew or should have known that they constituted a dangerous condition.” The Court of Appeals affirmed.

July 23, 2015

Insufficient GTLA Complaint Results in Dismissal

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

A recent Court of Appeals case is a good reminder to pay close attention when drafting your complaint in a Governmental Tort Liability Act (GTLA) case. In Parrott v. Lawrence Co. Animal Welfare League, Inc., No. M2014-01241-COA-R3-CV (Tenn. Ct. App. June 25, 2015), plaintiff filed suit against two defendants regarding the allegedly negligent removal of her dogs from her property. After the dogs were removed, the County had some involvement and the dogs were housed at a Lawrence County jail, and one of the defendants therefore filed a third-party complaint against Lawrence County. Plaintiff subsequently amended her complaint to assert claims against the county as well.

The trial court granted the county’s motion to dismiss plaintiff’s claims, finding that the facts set out in her complaint were insufficient to state a claim under the GTLA, and the Court of Appeals affirmed. As to her negligence claim against the city, the complaint contained the following language:

As a direct and proximate result of the negligent, reckless and intentional acts or omissions of the Defendants, the Plaintiff has sustained damages and losses.

July 20, 2015

Judgment For Plaintiff in Negligence Case Reversed on Appeal

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

In a somewhat rare move, the Tennessee Court of Appeals recently overturned a trial court’s ruling for plaintiff in a negligence case. In Tenn. Farmers Mut. Ins. Co. a/s/o Couch v. Jackson Madison School System Bd. of Educ., No. W2014-02218-COA-R3-CV (Tenn. Ct. App. June 15, 2015), plaintiff was driving a crop sprayer on a narrow, rural, unlined road. Plaintiff saw a school bus turn onto the road traveling towards the crop sprayer, and both parties agreed that there was not room for both vehicles on the road. According to the trial testimony, the sprayer would have had time to stop but chose not to do so. Plaintiff testified that had he stopped, the accident probably would have been avoided. Instead, plaintiff moved the right tires of the sprayer off the road and, after clearing the bus, the shoulder gave way and the sprayer fell into a ditch, causing fairly significant property damage. Plaintiff sued the bus driver for negligence, alleging that there was more unpaved shoulder on the bus’s side of the road and that the bus driver did not take reasonable care to move his vehicle as far right as possible to avoid the accident.

The trial court ruled that defendant bus driver “was negligent in failing to take reasonable action to avoid an accident under the circumstances that existed at the time of the accident and that the [bus driver] could have foreseen an accident happening through the use of reasonable care.” The Court of Appeals, however, overturned this ruling.

July 15, 2015

Ordinary Negligence vs. Health Care Liability; Relying on the 120-Day Statute of Limitations Extension.

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

A recent Tennessee Court of Appeals case dealt with the distinction between health care liability cases and claims of ordinary negligence. In Coggins v. Holston Valley Medical Center, No. E2014-00594-COA-R3-CV (Tenn. Ct. App. June 15, 2015), plaintiff filed suit alleging that she tripped over a feeding tube that had been left near a friend’s bed that she was visiting at the defendant medical center. Plaintiff was not a patient at the time of the incident, but was merely visiting her acquaintance there. Before filing suit, plaintiff provided defendant with pre-suit notice under the HCLA. Accordingly, plaintiff relied on the 120-day extension of the statute of limitations provided by the HCLA. The trial court, however, determined that plaintiff’s suit sounded in ordinary negligence, specifically premises liability, and dismissed the case as untimely.

On appeal, the Court’s first task was to determine whether this case fell under the HCLA. Plaintiff’s fall occurred in August 2011. The Tennessee legislature adopted major amendments to the HCLA in 2011, including a definition of “health care liability action,” but that definition did not take effect until October 1, 2011, after plaintiff’s fall. The trial court, then, incorrectly used that definition to examine plaintiff’s case, as that portion of the HCLA was not applicable here. Instead, the Court of Appeals looked to the Supreme Court’s analysis in Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), to determine what type of claim plaintiff was asserting here.

July 10, 2015

Puddle on Floor for Three Minutes Creates Jury Issue on Notice

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

In Beverly v. Hardee’s Food Systems, LLC, No. E2014-02155-COA-R3-CV (Tenn. Ct. App. June 15, 2015), the Court of Appeals overturned summary judgment in a premises liability case based on the plaintiff’s potential ability to prove constructive knowledge of the dangerous condition. Here, plaintiff frequently dined at the restaurant in question. On one particular day, he came in through the side entrance to the restaurant and slipped in a puddle of vomit 19 seconds after entering. Apparently a child had vomited on the floor, and the child’s mother had not cleaned up the vomit or notified any employees. When plaintiff slipped, he was walking towards a table of his companions. These companions had seen or knew about the vomit but had also not notified any employees.

Security footage from the restaurant established that the vomit was on the floor for 3 minutes and 11 seconds before plaintiff fell. It also showed that plaintiff looked at the ground 2 seconds before he fell. The video showed that no employee was in the area of the vomit before the fall, but evidence established that “the service counter was less than 20 feet from where the child vomited and [plaintiff] fell.”

According to testimony from a witness, the vomit was in view of the employees at the service counter and “to anyone walking in the general area.” He said the puddle was approximately 12 to 15 inches in diameter. The manager of the restaurant testified that she did not know when the dining area was last inspected before the fall and that employees were “instructed to serve customers before completing any secondary tasks like cleaning.” The manager stated that employees were supposed to inspect the restaurant hourly or as permitted.

July 6, 2015

Not Required to Disclose Zero Prior Violations on Certificate of Good Faith

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

In Kerr v. Thompson, No. W2014-00628-COA-R9-CV (Tenn. Ct. App. June 9, 2015), the Court of Appeals recently followed the Tennessee Supreme Court’s lead and held that a certificate of good faith (one must be filed with the complaint in medical malpractice cases) that did not state that the executing party had zero prior violations was still “fully compliant” with the Healthcare Liability Act (HCLA). This was the first opinion from the Court of Appeals following the Supreme Court’s binding decision on this issue in Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015).

In Kerr, plaintiff filed a certificate of good faith but the certificate failed to state the number of prior violations as required by Tenn. Code Ann. § 29-26-122. The party executing the certificate, plaintiff’s attorney, had no prior violations. In its opinion, the Court quoted from the Davis case, stating that the HCLA “does not require disclosure of whether or not there have been any prior violations.…Logically, if there have not been any prior violations, there is no ‘number of violations’ to disclose.” Accordingly, the Court determined that plaintiff’s “failure to indicate the absence of any prior violations does not constitute a ‘failure…to file a certificate of good faith in compliance with Tennessee Code Annotated Section 29-26-122[.]” Plaintiff’s certificate of good faith was held to be fully compliant with the statute and the case was remanded to the trial court.

While this case adds nothing new beyond what the Supreme Court decided in Davis, it is good to see that this issue has been settled in this reasonable way. Plaintiffs who are dealing with this question should of course cite to Davis when making their case, but this new Court of Appeals opinion can lend additional support to the argument that stating that there have been zero prior violations is not required.

July 2, 2015

Pre-Suit Notice Sent Via FedEx Substantially Complied with HCLA

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

In Arden v. Kozawa, No. E2013-01598-SC-R11-CV (Tenn. June 30, 2015), the Supreme Court addressed the issue of whether a plaintiff in a medical malpractice ( now known as a “health care liability” ) lawsuit can send pre-suit notice via a commercial carrier like FedEx instead of through the U.S. mail. The Court’s sensible and clearly correct conclusion was that service by FedEx was allowed, finding that “[a]s long as a defendant is not prejudiced, it does not matter whether a commercial carrier or the U.S. Postal Service delivers the notice.”

In Arden, plaintiff gave proper notice in a timely fashion before filing a health care liability (HCLA) suit. The problem, as defendants pointed out in their motion for summary judgment, was that plaintiff sent the notice via FedEx Priority service. Tenn. Code Ann. § 29-26-121(a)(4) states that completion of the mailing requirements in the notice statute “shall be demonstrated by filing a certificate of mailing from the United States Postal Service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested.” Defendants did not assert that the notice was insufficient, untimely, or not received, but instead argued that plaintiff had failed to comply with the statutory pre-suit notice requirements by using FedEx instead of the post office. The trial court agreed, dismissing plaintiff’s case, and the Court of Appeals affirmed.

July 1, 2015

The Probable Cause Defense to Malicious Prosecution Claims

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

A recent Court of Appeals decision serves as a good refresher on the elements and defenses in a malicious prosecution case. In Preston v. Blalock, No. M2014-01739-COA-R3-CV (Tenn. Ct. App. May 29, 2015), tenant’s plastic surgery business had signed a lease to rent landlord’s office suite. Tenant stopped paying rent, and landlord filed a breach of contract claim for rent, build-out costs and attorneys’ fees. Landlord was awarded a default judgment, and tenant eventually paid to satisfy that judgment. Landlord subsequently filed another complaint seeking additional attorneys’ fees. Landlord then nonsuited that complaint but filed again seeking additional rent that he claimed had come due.

While this complaint was pending, tenant filed an abuse of process complaint against landlord. The factual basis for tenant’s complaint was that landlord had filed against tenant personally as a guarantor before filing against the business as the principal, that landlord had filed a document entitled partial satisfaction of judgment when tenant had paid the entire judgment, that landlord had given “false and misleading testimony at depositions,” and that landlord had filed “a multiplicity of claims in order to drive up the amount of attorney’s fees.” The trial court granted summary judgment to landlord in the abuse of process case.

After the abuse of process case was finalized, landlord filed a complaint alleging malicious prosecution against tenant and tenant’s lawyer. He asserted that “defendants filed the abuse of process suit…for an improper purpose and without probable cause in an attempt to gain an advantage in the pending breach of lease litigation[.]” The trial court granted summary judgment to tenant/defendant, and the Court of Appeals affirmed.

June 26, 2015

Defect in Construction Does Not Stop Statute of Repose From Starting to Run

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

In Tennessee, the construction statute of repose begins to run when a project reaches substantial completion, which is when it can be used for its intended purpose. A flaw in the project will not prevent it from being substantially complete for statute of repose purposes, as recently demonstrated in the case of Raby v. Covenant Health, No. E2014-01399-COA-R3-CV (Tenn. Ct. App. June 9, 2015).*

In Raby, plaintiff worked at Methodist Hospital. The emergency room at the hospital was “substantially completed and opened in February of 2006.” Apparently a portion of lead-lined wall was left out when the radiology facilities were built, and plaintiff’s suit alleged that she was accordingly exposed to excessive radiation. In December 2013 a lead-lined wall was constructed, but during the entire time between 2006 and 2013 the facility was in use as intended. Plaintiff filed her suit in January 2014.

The trial court granted summary judgment to defendants based on the construction statute of repose found in Tenn. Code Ann. § 28-3-202 which requires that actions based on the construction of an improvement to real properly be brought within four years “after substantial completion of such an improvement.” The trial court found that the hospital radiology department was substantially completed in March 2006 when it became “available for its intended use as an emergency room.” Accordingly, the trial court held that plaintiff’s claim was untimely under the statute of repose, and the Court of Appeals affirmed.