Claims Against Local Governments

April 12, 2015

Ill-Maintained Bridge Leads to Premises Liability for City

Tennessee cities, counties and other types of governmental entities are generally immune from suit for damages arising from personal injury and wrongful death claims. However, a special law, the Governmental Tort Liability Act (GTLA), allows Tennessee cites and counties to be sued for pseronal injury or wrongful death under certain circumstances by removing that immunity.

One special circumstance where a city or county can be held responsible for a personal injury is where injury is caused by “the dangerous or defective condition of any public building, structure,…or other public improvement owned and controlled by such governmental entity.” Tenn. Code Ann. § 29-20-204(a). In order for liability to be removed pursuant to this statute, the governmental entity in question must have had actual or constructive notice of the dangerous condition. “[A] governmental entity will be charged with constructive notice of a fact or information, if the fact or information could have been discovered by reasonable diligence and the governmental entity had a duty to exercise reasonable diligence to inquire into the matter.” (Quoting Hawks v. City of Westmoreland, 960 S.W.2d 10 (Tenn. 1997)).

In Kee v. City of Jackson, No. W2013-02754-COA-R3-CV (Tenn. Ct. App. March 30, 2015), plaintiff was injured while walking across a wooden bridge from a parking area to the city fairgrounds during a flea market. The bridge was owned and maintained by the city. Plaintiff brought a premises liability claim against the city, and the trial court found for plaintiff, deeming the city liable but finding that plaintiff was 40% comparatively negligent and reducing her award accordingly. The city appealed, and the Court of Appeals affirmed the trial court’s judgment.

Plaintiff alleged that the bridge had a “broken rotten runner,” “nails sticking up in more than one place,” and that “the planks were not even and that gaps exist between the boards in various places on the bridge,” as shown by pictures taken two days after the incident. Although there was no allegation or evidence that the city had actual notice of the dangerous condition of the bridge, the Court determined that plaintiff was proceeding under the “common occurrence” theory, meaning that “a plaintiff can show constructive notice by proving that a pattern of conduct, recurring incident, or general continuing condition caused the dangerous condition.” (Quoting Benn v. Public Bldg. Authority of Knox County, 2010 WL 2593932 (Tenn. Ct. App. June 28, 2010)). Continue reading

April 7, 2015

Personal Injury Plaintiff Wins Summary Judgment

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

Although summary judgment is often thought of as a tool for defendants, plaintiffs in personal injury cases should remember that motions for summary judgment can be beneficial and successful for them as well. In Bloomfield v. Metro. Govt. of Nashville and Davidson Co., No. M2014-00438-COA-R3-CV (Tenn. Ct. App. March 26, 2015), plaintiff was a firefighter employed by Metro. He responded to a call regarding an elderly patient who was in a wheelchair. When a paramedic arrived to assist in moving the patient, the plaintiff and the paramedic moved the patient in the wheelchair towards the door of the home, where they realized that the patient would have to be lifted to clear a door threshold and step down. Plaintiff was at the head of the chair while the paramedic was at the foot. Plaintiff told the paramedic to hold on a second and turned to get information from family members, but the paramedic lifted the foot of the wheelchair without communicating to plaintiff first. When plaintiff saw that the chair was about to tip backwards he grabbed it, injuring himself.

Because the paramedic was also employed by Metro, plaintiff sued Metro for the injuries he alleged to have sustained due to the paramedic’s negligence. Plaintiff used the deposition testimony of several Metro employees to show that there was a standard for lifting a patient in a wheelchair and that the person at the head of the wheelchair was responsible for initiating the lift. Further, plaintiff used the paramedic’s own deposition testimony, wherein he admitted that he violated procedure by lifting at the foot before everyone was ready. Relying on these facts, plaintiff successfully moved for summary judgment as to liability for the paramedic’s negligence, and a trial was conducted on damages only, wherein plaintiff was awarded the maximum amount allowed under the Governmental Tort Liability Act.

February 3, 2015

Med-Mal Claims Under the GTLA – Limitation of Actions

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

In 2011, the Tennessee legislature amended the Health Care Liability Act (“HCLA”) to add language regarding governmental entities to the chapter. Per the amendments, health care liability action now specifically includes “claims against the state or a political subdivision thereof,” and health care provider includes “those physicians and nurses employed by a governmental health facility.” Tenn. Code Ann. § 29-26-101. The Court of Appeals first found that this language meant that the 120-day extension of the statute of limitations applies to HCLA cases that fall under the Governmental Tort Liability Act in Harper v. Bradley County, No. E2014-00107-COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014). Now the Court has come to that same conclusion in two additional opinions.

Before the 2011 amendments took effect, the HCLA contained no reference to governmental entities. In Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), the Tennessee Supreme Court determined that the HCLA, as it existed prior to the 2011 amendments, did not “evince an express legislative intent to extend the statute of limitations in GTLA cases.” Accordingly, a plaintiff bringing an HCLA claim against a governmental entity was still constricted by the one-year statute of limitations and unable to take advantage of the 120-day extension granted to plaintiffs who give proper pre-suit notice.

Although the Supreme Court has not addressed the interplay of the GTLA and HCLA since the 2011 amendments took effect, the Court of Appeals has now found in three cases that, pursuant to the new language, plaintiffs suing governmental entities under the HCLA are entitled to the 120-day extension so long as they provide proper pre-suit notice. After Harper, the Court reaffirmed its reasoning in Banks v. Bordeaux Long Term Care, 2014 WL 6872979 (Tenn. Ct. App. Dec. 4, 2014). Here, plaintiff sent pre-suit notice prior to the expiration of the one-year statute of limitations then filed suit within the subsequent 120-day window. The trial court dismissed plaintiff’s claim as untimely, but the Court of Appeals reversed. After citing the changes to the HCLA and the reasoning from Harper, the Court held that “Plaintiff’s pre-suit ‘notice’ to the governmental entities was sufficient in all respects; therefore, the GTLA statute of limitations was tolled for an additional 120 days.”

January 6, 2015

City Immune from Suit where it does not Own or Control Property Where Injury Occurred

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

Under the Governmental Tort Liability Act (GTLA), governmental immunity is removed in specific circumstances. Where the government does not own or control the property on which the alleged injury took place, however, the GTLA does not apply and immunity remains intact.

In Turner v. City of Bean Station, No. E2013-02630-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014), plaintiff sued the city, among others, for injuries allegedly sustained while playing softball in a charity tournament. The city moved for summary judgment on the basis that it neither controlled nor owned the field, and that the GTLA therefore did not apply and the city was immune from suit. The trial court denied the motion, but the Court of Appeals reversed that decision and dismissed the case against the city.

The city had presented evidence that the field in question was owned by the Tennessee Valley Authority, which had given the city a license to occupy and use the field as a recreational ball park. The city, in turn, leased the license to the local little league, and the little league oversaw the maintenance of the park and field. On the date of the alleged injury, the little league had “subleased” its license to the person running the charity tournament (another of the defendants in this case).

November 19, 2014

Court Torpedos 911-Related Negligence Claim

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

Under the Governmental Tort Liability Act (“GTLA”), governmental entities are immune from lawsuits that arise from the “exercise and discharge” of their functions. There are a very few, specific exceptions to the GTLA listed in the statute. Due to this statutory immunity, making a case for negligence against a government agency can be quite difficult.

In Estate of Quinn v. Henderson, No. E2013-02398-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2014), plaintiff brought a wrongful death suit against both the Blount County fire department and the Blount County 911 center. The action arose out of an incident wherein the deceased’s boyfriend had set fire to her attached garage while the deceased was in the home. The deceased called 911, who then dispatched the fire department. Upon arriving at the scene, however, the fire department could not immediately act. Instead, they followed fire department protocol and waited for the domestic violence situation to be secured by the police before fighting the fire and entering the home. The deceased was removed from the home after it was secured, but died two days later from smoke inhalation.

The trial court granted summary judgment for 911 and the fire department based on the GTLA, finding that the entities “were engaged in planning functions, such that their actions were immune pursuant to the [GTLA].” The trial court further based its decision on the public duty doctrine and comparative fault. The appellate court affirmed, though it based its decision on different reasons. Instead of finding that the entities were engaged in planning functions, the Court of Appeals determined that both 911 and the fire department retained immunity because both negated essential elements of plaintiff’s claims.

March 11, 2014

Slip and Fall Cases and Ice

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

A plaintiff’s verdict in a slip-and-fall case against the county school board was recently overturned by the Tennessee Court of Appeals in Traylor v. Shelby County Board of Education, No. W2013-00836-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2014). Plaintiff was a sophomore at Bolton High School in Shelby County when he slipped on a patch of black ice on the school’s sidewalk and broke his ankle. The incident occurred on a Thursday morning while plaintiff was walking to his next class on a normal route that received heavy foot traffic. The school had been closed the previous Monday and Tuesday due to freezing temperatures and an inch and half of frozen precipitation. There were no reports of ice on the sidewalk and no incidents during the preceding Wednesday or on Thursday morning before plaintiff’s fall.

Plaintiff’s case was tried before a judge and not a jury, just like all cases against local governmental entities under Tennessee’s Governmental Tort Liability Act (“GTLA”). The trial judge ruled that the school did not fulfill its duty to maintain a safe premises after having constructive knowledge of the unsafe condition and therefore awarded the plaintiff and his father a total of $76,000 in compensatory damages.

There were three ways that the plaintiff could prove that the school had constructive knowledge of the dangerous condition that was the ice on the sidewalk leading to plaintiff’s fall. First, the plaintiff could have established that the school caused or created the condition. Second, the plaintiff could have proven that the condition existed for a sufficient amount of time that the school should have become aware of it (“the passage of time theory”). Third, and finally, the plaintiff could have shown that the ice was a common occurrence, recurring condition, or a generally continuing dangerous condition of which the school should have been aware (“common occurrence theory”).

February 12, 2014

Nashville Government Blames One Of Its Own Employees For Crash

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

Tennessee law of tort liability of local governments gives rise to some strange scenarios, but this one is odder than most.

In Harp v. Metropolitan Government of Nashville and Davidson County, No. M2012-02047-COA-R3-CV (Tenn. Ct. App. Jan. 22, 2014), the defendant, Metro, appealed a judgment entered in favor of one of its employees, the plaintiff, who was seriously injured when he was hit by a Metro school bus driven by another Metro employee who tested positive for marijuana and cocaine after the incident.

As a local governmental entity, Metro is generally immune from suit. Tennessee’s Government Tort Liability Act (“GTLA”) sets forth specific exceptions when immunity can be removed. One situation is for claims brought by those who are injured by the negligent acts of governmental employees. Another instance is when a person is injured by a governmental employee’s negligent operation of a vehicle. The plaintiff in Harp argued that both exceptions applied to remove Metro’s immunity.

January 29, 2014

Claim Against City of Memphis for Dangerous Pothole Rejected

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

There are many hurdles to successfully bringing a premises liability case in Tennessee, and often the most difficult of which is proving that the defendant had notice of the dangerous condition allegedly responsible for causing the plaintiff’s injuries.

In Merrell v. City of Memphis, Tennessee, No. W2013-00948-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2014), the court of appeals affirmed a bench verdict in favor of the defendant in a case where the plaintiff sued the City of Memphis for negligently failing to fix or warn about a pothole in the City’s road that caused the plaintiff’s motorcycle to crash.

Cases against local governmental entities are brought under Tennessee’s Governmental Tort Liability Act (“GTLA”), and they are decided by judges instead of juries. Further, the City, just like in all GTLA claims, was protected from suit under the doctrine of sovereign immunity unless the plaintiff was able to successfully argue that an exception to immunity applied. Here, the plaintiff was required to show, under Tenn. Code Ann. § 29-20-203, that the City’s had actual or constructive notice of the pothole.