Day on Torts

December 9, 2015

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.

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.

November 9, 2015

Alleged Road Defect Case Rejected by Tennessee Court of Appeals

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

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.

November 4, 2015

Medical Malpractice Plaintiff Burned by Pre-2011 Notice Law

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

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[.]”

October 30, 2015

Tennessee Supreme Court Overturns Hannan Summary Judgment Standard

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

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.