Comparative Fault

April 20, 2020

Summary Judgment and Rule 56.03 Statements

Where plaintiff presented a statement of undisputed material facts that called into question the check cashing policies of defendant, but that statement of facts was ignored by the trial court in granting summary judgment for defendant, summary judgment was reversed.

In Great American Insurance Company v. Pilot Travel Centers, LLC, No. E2019-00649-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2020), plaintiff filed a negligence suit against defendant in relation to checks that were cashed by defendant’s stores. Plaintiff was a Comdata customer and used the Comdata system to pay certain independent contractors. Using this system, plaintiff would request a code for a Comdata check to be issued, and the check would be printed by defendant Pilot Travel Centers, which was a Comdata vendor. Independent contractors could then retrieve these checks from Pilot stores.

From June 2010 to March 2011, an employee of plaintiff, “without the knowledge or permission of [plaintiff,]” presented 689 codes at Pilot stores and both retrieved and cashed the checks, totaling over $368,000. Neither the employee nor plaintiff were the payee on the checks, and she cashed the checks wearing her work uniform, but defendant’s policy was to allow the “person presenting the code” to cash the check and “did not require that the payee of the check match the identification presented when the Comchek was cashed.” The employee used the controller’s password to request the codes, and there was a General Manager at plaintiff company in charge of “reviewing and signing off on the Comdata transactions.”

March 19, 2020

Runner Hit By Car Found 80% At Fault

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

Where a plaintiff was running in the dark with no wearable light and was hit by a car while crossing the road, the Court of Appeals affirmed a jury verdict finding plaintiff 80% at fault.

In Golden v. Powers, No. E2019-00712-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2020), plaintiff and her family were visiting Hawkins County, Tennessee from Miami, Florida. Plaintiff went for a jog one morning while it was still dark, and she began by running in the same direction as traffic. When she decided to cross in order to run against traffic, she “glanced to see if any cars were coming.” While crossing, a car approached in the lane plaintiff was running towards, so she slowed down to let the car pass. She did not stop running, did not move back to the side, and did not turn around to check traffic. She was then hit by a car driven by defendant. At the scene of the accident, defendant estimated that she had been driving 50-55 mph, and the speed limit was 45 mph.

February 17, 2020

Police Shooting Victim Loses Case

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

Where a man being arrested was shot and killed after he went out of his home and raised a gun towards a police officer, the Court of Appeals affirmed dismissal of a GTLA tort suit, finding that the police department was immune from suit and that the suit was barred by the decedent’s comparative fault.

In Acree v. Metropolitan Government of Nashville and Davidson County, No. M2019-00056-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2019), decedent failed to appear for an aggravated criminal trespass court hearing, which resulted in a felony warrant being issued. Officers retrieved the warrant the next day, and the warrant stated that “subject may exhibit paranoia and feel that officers are following him.” The officer serving the warrant also noted that “Decedent had been arrested three times in the past six months without incident.” Four officers proceeded to decedent’s home, and two went to the front door and two to the back door. One officer knocked and identified himself, and when there was no answer, he saw through a hole in the door that decedent was not moving. The officer knocked again and saw decedent move away from the front of the house, so he called over the radio that decedent was walking towards the back door. Decedent then “abruptly open[ed] the back door and raise[d] a firearm at” one officer. The officer shot once, striking and killing decedent.

February 13, 2020

Day on Torts Nugget: Reliance on the Savings Statute after a Voluntary Dismissal

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

Tennessee law will permit a plaintiff who properly voluntarily dismisses a suit in state to timely re-file it and avoid a statute of limitations defense, but the correct procedure must be followed.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S .W.3d 710, 716-717 (Tenn.2002) tells us that “absent service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a plaintiff who has failed to serve process prior to the taking of the nonsuit in accordance with Rule 3 may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar of the statute of limitations.”

Rule 41.01, governing the taking of voluntary dismissals, provides that,

February 10, 2020

Day on Torts Nugget: Be Careful When Suing the State of Tennessee.

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

Certain claims for personal injury, wrongful death and property damage may be asserted against the State of Tennessee, but different rules apply and there are plenty of pitfalls for those unfamiliar with the law or procedures of litigating in the Claims Commission. One such pitfall arise at the intersection of the law of claims against the State and the law of comparative fault.

In Moreno v. City of Clarksville[1] plaintiff filed a claim against the State of Tennessee after a tree on state law fell on his vehicle. When the claim was not settled, he timely filed a formal complaint with the Claims Commission. The State of Tennessee then blamed the City of Clarksville for causing the damage and, within the 90-day period provided by §20-1-119 plaintiff sued the City of Clarksville under the Governmental Tort Liability Act in state court. As permitted by statute,[2] the Claims Commission action was transferred to the Circuit Court for Montgomery County and consolidated with the action pending against the City of Clarksville. [3]

February 6, 2020

Property owner not liable when employee of independent contractor was injured.

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

Where a plaintiff was injured while working on a construction site owned by defendant, but the trial court ruled that plaintiff was actually an employee of an independent contractor retained by defendant, the Court of Appeals affirmed a jury verdict finding defendant only 10% at fault for plaintiff’s injuries.

In Helton v. Lawson, No. E2018-2119-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2019), Defendant was having a house built on a piece of property that he owned, and he had retained “local handyman Gene Housewright” to help. Housewright was then contacted by plaintiff, who was looking for a job, and Housewright told him he needed laborers for defendant’s house project. On November 6, 2012, Housewright and another worker had assembled bracing to be used when working on the house. Later than day, plaintiff was standing on the bracing and was injured when the bracing pulled loose from the house, causing him to fall.

January 27, 2020

Day on Torts Nugget – Amending A Complaint After A Defendant Alleges Fault of a Nonparty

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

A defendant sued within the statute of limitations states in its answer or amended answer that a person not a party to the lawsuit negligently contributed to cause plaintiff’s injuries. Plaintiff decides to sue the nonparty, and rely on Tenn. Code Ann. §20-1-119 to avoid a statute of limitations defense.

How does a plaintiff add the nonparty as a party defendant?

The answer depends on whether the case is in state court or federal court. In state court, plaintiff has an absolute right to amend under Tenn. R. Civ. Pro. 15.01. In relevant part, it provides ” [f]or amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required.”

January 31, 2019

No Fault for Plaintiff Affirmed

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

Where there was contradictory evidence regarding whether plaintiff followed certain braking procedures, but there was evidence that another employee did not follow lifting procedures at a railroad facility, a reasonable juror could have attributed no fault to plaintiff for an accident that occurred at the facility.

In Boyd v. BNSF Railway Company, No. W2017-02189-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2018), plaintiff worked at a railroad facility, and she “was crushed by a container box being lifted off of a holster truck.” Plaintiff had been driving the truck and had exited the truck when the other employee operating a crane began lifting the shipping container off the truck. When the entire truck started moving, plaintiff attempted to get back into the truck, but she was hit by the shipping container and seriously injured.

January 8, 2019

Agritourism Statute Provides Immunity from Liability but Allows Fault Allocation

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

While Tennessee’s agritourism statute provides immunity for agritourism professionals in certain circumstances, it does not “preclude the allocation of fault to a nonparty agritourism professional in a negligence action.”

In Green v. St. George’s Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018), Ms. Green went on a church outing to a local farm. She was riding in a church bus driven by a parishioner, and when the bus crossed over two drainage berms at the farm, the “resulting jolt severely injured [her].”

Plaintiff filed suit against the church, and the church asserted the comparative fault of the farm in its answer. Plaintiff moved for partial summary judgment on the comparative fault issue, “arguing that Tennessee’s agritourism statute precluded a finding that [the farm’s] conduct caused or contributed to her injuries.” The trial court denied this motion, and granted a motion in limine to exclude any evidence about the farm’s immunity. At the end of the trial, the jury returned a verdict for plaintiff, finding the church 15% at fault and the farm 85% at fault. Plaintiff appealed, arguing that fault should not have been apportioned to the farm, and the Court of Appeals affirmed.

June 14, 2018

Duty of Care Exists Even in Dangerous Sporting Activities

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

Even when a person chooses to participate in a risky sport, he or she does not “assume the risk of whatever dangerous conduct, however unreasonable, is engaged in by the [other] participants.” Instead, in a negligence case, the reasonableness of the defendant’s conduct will be determined based on the circumstances of the case.

In Crisp v. Nelms, No. E2017-01044-COA-R3-CV (Tenn. Ct. App. March 28, 2018), plaintiff was the surviving spouse of a bicycle rider who died following a cycling accident. At the time of the accident, decedent and four other cyclists were riding in a paceline, which is when the riders proceed in a straight line close together with the front rider setting the pace. Plaintiff alleged that the rider in front suddenly slowed, causing the second rider to bump wheels with the front rider. The second rider then went down, and decedent was unable to avoid the accident, hitting the second rider and being thrown off his bike. Decedent “was rendered quadriplegic by the wreck,” and died a few months thereafter.

Plaintiff filed a negligence suit against the first and second rider, who both filed motions for summary judgment, which the trial court granted. The trial court ruled that “paceline cycling is inherently dangerous and that Decedent was at least 50% at fault for his accident.” In its order, the trial court stated that “the ultimate conclusion is that these types of accidents are foreseeable in bicycle racing, especially this type of close racing,” and that “these parties chose to engage in this activity.” On appeal, summary judgment was reversed.