Civil Procedure

January 13, 2021

Failure to file post-trial motion resulted in waiver of directed verdict argument on appeal.

Where the defendant failed to file a post-trial motion, she “waived her right to contest the trial court’s denial of her motion for a directed verdict.”

In Carman v. Kellon, No. M2019-00857-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2020), the plaintiff was seriously injured when she was jogging on the side of a road and was hit by a truck driven by the defendant son. Plaintiff and her husband brought this action against the defendant son/driver for negligence, negligence per se, and recklessness, and against his mother for vicarious liability and negligent entrustment. Though the trial court granted the mother summary judgment on the vicarious liability claim, the negligent entrustment claim proceeded to a jury trial. At the close of plaintiffs’ proof, defendants moved for a directed verdict, which the trial court denied. At the end of the trial, the jury returned a very large verdict against both defendants, finding the son 60% at fault and the mother 40% at fault. Neither the mother nor the son filed any post-trial motions.

December 17, 2020

Unsworn declaration created issue of fact to oppose summary judgment.

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

Where plaintiff filed a declaration in response to defendants’ motion for summary judgment that sought to amend her prior deposition testimony based on her nervousness during the deposition and her refreshed recollection of the incident in question, the Court of Appeals ruled that the declaration should have been considered and that there were thus genuine issues of material fact. Summary judgment for defendants was reversed.

In Lundell v. Hubbs, No. E2019-02168-COA-R3-CV (Tenn. Ct. App. Nov. 23, 2020), plaintiff worked at an elementary school and regularly volunteered as a bus aide. On the day of her injury, plaintiff was “traversing the aisle of the bus” when she alleged that the bus driver “carelessly and recklessly drove over a speed bump at an unsafe rate of speed, causing her to fall and sustain injuries.”

Plaintiff filed this negligence suit against the driver and the owner/bus line, and defendants filed a motion for summary judgment. Plaintiff responded to the motion and attached to her memorandum a “Declaration of Barbara Lundell,” wherein she explained that she was nervous during her initial deposition and had incorrectly identified where the incident took place. The trial court granted summary judgment to defendants, ruling that plaintiff’s declaration should not be considered, that plaintiff had not shown a breach of duty, and that plaintiff was at least 50% at fault because she “was in the best position to protect herself from the common-sense danger of walking in the aisle of a moving school bus.” On appeal, summary judgment was reversed.

December 3, 2020

Tennessee’s Rule 11 Will Require Email Address on Pleadings

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

The Tennessee Rules of Civil Procedure will be changed July 1, 2021 to require the disclosure of the filer’s email address on papers filed in court. The rule change still must be approved by the General Assembly.

UPDATE: The proposed rule change was approved by the General Assembly on March 22, 2021.

Click to access hr0021.pdf

October 29, 2020

Jury finding that plaintiff was 60% at fault for car accident affirmed.

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

Where plaintiff and defendant gave differing versions of a car accident, the photographs of the vehicles could be interpreted to support defendant’s version of events, and the jury appeared to credit defendant by finding plaintiff 60% at fault, the Court of Appeals affirmed the jury’s verdict and the trial court’s refusal to grant a new trial.

In Justice v. Gaiter, No. M2019-01299-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020), plaintiff and defendant were involved in a car accident on December 23^rd in heavy traffic near a mall. Defendant was attempting to pull onto a road separating two parking areas when the cars collided. At a jury trial, plaintiff asserted that he was sitting in traffic when he was essentially t-boned by defendant in the driver’s door, and that defendant’s car then slid down the remainder of the driver’s side of plaintiff’s car. Defendant, on the other hand, testified that a car had stopped to let him cross into traffic, that he stuck his fender slightly into the lane he was attempting to merge into, and that he was sitting still when plaintiff’s vehicle failed to stop and hit the corner of defendant’s car. The photographs offered into evidence showed “the scraping on Plaintiff’s car from the driver’s side door to the rear fender” and damage to the front of defendant’s car.

October 26, 2020

Sanctions based on HCLA Certificate of Good Faith Denied

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

Where defendant pharmacists alleged comparative fault against a doctor and filed a certificate of good faith that complied with all the necessary requirements of the statute, the trial court’s decision to deny sanctions based on the allegation that the “certificate of good faith was supported by the written statement of an incompetent expert witness” was affirmed, even though the doctor’s motion for summary judgment had been successful. The Court of Appeals explained that “nothing in the express language of section 29-26-122 requires that a party asserting fault against another guarantee that his or her expert is competent or that the claim will ultimately prevail.”

In Smith v. Outen, No. W2019-01226-COA-R3-CV (Tenn. Ct. App. Oct. 9, 2020), plaintiff filed an HCLA suit against defendant pharmacists for dispensing the wrong medicine to plaintiff. In her complaint, plaintiff stated that when her doctor realized she had been given the wrong medicine by the pharmacists, he ordered her to stop the medicine immediately. Defendant pharmacists filed an answer alleging comparative fault against the doctor, asserting that he should have had plaintiff taper off the medication rather than stop it immediately. The pharmacists’ attorney filed a certificate of good faith supporting their comparative fault allegation, as required by the HCLA, and plaintiff amended her complaint to add the doctor as a defendant.

September 21, 2020

Unconscionable fee-splitting provision in arbitration agreement could be severed from agreement as a whole.

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

Although a fee-splitting provision in an arbitration agreement was unconscionable based on the plaintiff’s financial situation, the Court of Appeals ruled that the fee-splitting provision was severable and that defendant’s motion to compel arbitration should have been granted.

In Stokes v. Allenbrooke Nursing and Rehabilitation Center LLC, No. W2019-01983-COA-R3-CV (Tenn. Ct. App. Sept. 15, 2020), plaintiff filed an HCLA complaint against defendant nursing home alleging that he had contracted sepsis due to the negligence of one of defendant’s nurses, and that he had suffered severe permanent injuries. Defendant filed a motion to compel arbitration, attaching a three-page arbitration agreement that plaintiff had signed on two occasions. The agreement contained a provision stating that the parties would split the arbitration expenses equally. Plaintiff opposed the motion on a “cost-based unconscionability defense,” arguing that plaintiff would never be able to afford paying half of the arbitration costs. Defendant responded that this argument was moot, as it had offered to cover the entire cost of the arbitration. After a hearing, the trial court refused to compel arbitration, finding that the agreement was unconscionable. This appeal followed.

September 18, 2020

Website comment deemed to not constitute notice for relation back purposes.

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

Where a plaintiff named the wrong defendant in a premises liability suit, but claimed that the proper defendant had notice of the lawsuit due to a correspondence she had sent on its website stating that she had been in contact with her legal team, the proper defendant did not have notice of the lawsuit and the amended complaint naming the proper defendant did not relate back to the filing of the original suit.

In Hensley v. Stokely Hospitality Properties, Inc., No. E2019-02146-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2020), plaintiff slipped and fell in the Edgewater Hotel parking lot. She filed suit on June 18, 2019, naming Noble House Hotels as the defendant. When she later learned that Nobel House Hotels did not own the hotel at which she fell, she filed an amended complaint on August 5, 2019 naming defendant, who was the owner of the hotel at issue.

September 9, 2020

Savings statute available to vicarious liability plaintiff.

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

When a plaintiff takes a voluntary nonsuit in a case asserting vicarious liability against an employer for its employee’s negligence, that plaintiff can re-file pursuant to the savings statute, even if the employee was voluntarily dismissed from the first case.

In Helyukh v. Buddy Head Livestock & Trucking, Inc., No. M2019-02301-COA-R9-CV (Tenn. Ct. App. Aug. 28, 2020), plaintiff was a long-distance truck driver who was injured when he collided with a tractor-trailer that was overturned on the interstate and had been driven by Michael Heller, an employee of defendant. Plaintiff initially sued both Heller and defendant within the one-year statute of limitations, making direct negligence claims against Heller and claims of vicarious liability against defendant. Plaintiff eventually voluntarily dismissed Heller from the case, and the trial court then granted summary judgment to defendant. On appeal, however, summary judgment was reversed, and shortly after remand, plaintiff nonsuited his claim against defendant.

September 4, 2020

Appeal Fails Without Transcript or Statement of Evidence

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

Where plaintiff failed to file a transcript or a Rule 24 statement of the evidence with the appellate court, the “facts found by the trial court [were] conclusive on appeal” and the ruling for defendant school system was affirming in this GTLA case.

In Johnson v. Millington Municipal Schools, No. W2019-01547-COA-R3-CV (Tenn. Ct. App. Aug. 27, 2020), plaintiffs filed a GTLA case against defendant school district alleging that defendant “breached its duty to protect [plaintiff student], who was injured in a fight on school grounds.” The fight at issue took place after school in the car pick-up line. At trial, there was conflicting evidence regarding whether plaintiff student got into her sister’s car before the fight began, whether a male student was involved in the fight, whether plaintiff’s mother had previously warned a school counselor that her daughter had been bullied by the other girls involved in the fight, and who instigated the fight. Additionally, there was testimony from several school employees regarding how close they were to where the fight began, as well as what occurred once the fight was broken up.

In its final order, the trial court found that plaintiff student had already gotten into her sister’s car but then exited it and “physically confronted” two girls who had said expletives to her. The court also found that there were teachers present in the area watching the students, that there was a sheriff’s deputy in the area, and that plaintiff’s mother had not given the school prior warning about issues between the girls. Based on these findings, the trial court ruled that plaintiffs “failed to meet their burden to show that [defendant] was negligent.”

September 1, 2020

Class certification denied in food poisoning and contagious restaurant employees case.

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

Where plaintiffs tried to certify a class in a food poisoning case that included all persons who ate at defendant restaurant during a certain time period that became sick due to either ingesting contaminated well water and/or coming into contact with sick employees, as well as these customers “spouses parents children or guardians” who also became infected, the Court of Appeals affirmed the denial of class certification based on the failure to prove commonality, typicality, and adequacy of representation.

In Rogers v. Adventure House LLC, No. E2019-01422-COA-R3-CV (Tenn. Ct. App. Aug. 24, 2020), plaintiffs became sick after eating at defendant restaurant. Plaintiffs then brought this suit, which “arose form approximately 102 events of food poisoning or illness purportedly related to numerous patrons who dined at or visited [defendant restaurant].” The restaurant, the restaurant owners, and the owner of the property on which the restaurant and well were located were named as defendants. Plaintiffs alleged that patrons became sick after consuming contaminated well water and/or interacting with infected restaurant employees. Plaintiffs also alleged that family members of people who visited the restaurant were infected.