Articles Posted in General Negligence Action

Where the jury apparently credited plaintiff’s expert and found that defendant engineering firm was liable for professional negligence related to a large park and marina project, the jury verdict for defendant was affirmed.

In TMS Contracting, LLC v. SmithGroup JJR, Inc., No. M2020-01028-COA-R3-CV, 2022 WL 4112415 (Tenn. Ct. App. Sept. 9, 2022), plaintiff was the general contractor on a park and marina project, and it filed this professional negligence claim against defendant engineering firm related to multiple issues with the project. The case was tried in front of a jury, and during the trial only plaintiff presented testimony from an expert. Rather than hiring an expert, defendant countered plaintiff’s evidence primarily with testimony from its project manager.

Continue reading

Where plaintiff had not been tested for specific STD before relationship with defendant, and defendant presented uncontradicted medical proof that he did not have said STD, summary judgment in case where plaintiff alleged defendant gave her STD was affirmed. In P.H. v. Cole, No. M2020-01353-COA-R3-CV (Tenn. Ct. App. June 7, 2021), plaintiff filed a complaint asserting claims for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, and fraud based on plaintiff’s allegation that she contracted HSV-2, a sexually transmitted disease, from defendant. Plaintiff and defendant “dated for a period of time between 2014 and 2018,” and plaintiff tested positive for HSV-2 in 2018.

Five days after filing his answer in this case, defendant filed a motion for summary judgment. In support of this motion, he attached blood test results showing that he was negative for HSV-2, as well as the declaration of Dr. Wawa, the doctor in charge of the medical center where defendant was tested. In response, plaintiff suggested that defendant’s test results might not be accurate if he was immunocompromised, which prompted defendant to get tested for HIV. Defendant then filed a second declaration from Dr. Wawa along with test results showing that he tested negative for HIV and “was not immunocompromised.”

During a hearing on the summary judgment motion, plaintiff’s attorney “conceded that, although [plaintiff] was tested for sexually transmitted diseases before she and [defendant] began their sexual relationship, she was not tested for HSV-2 until 2018, after the parties’ sexual relationship had ended.” Based on this concession and the evidence presented by defendant, the trial court granted defendant summary judgment, and the Court of Appeals affirmed.

A plaintiff alleging negligent retention “has the burden of showing that the employee or independent contractor was not qualified to perform the work for which he was hired,” and that “the employer had knowledge of the employee’s unfitness for the job.” (internal citations omitted).

In Parker v. ABC Technologies, Inc., No. M2020-00675-COA-R3-CV (Tenn. Ct. App. Feb. 23, 2021), plaintiff filed a pro se action against his former employer and two managers from the former employer for negligent retention, among other claims. In a brief analysis, the Court of Appeals affirmed dismissal of this case, finding that plaintiff had not pled sufficient facts to support his claim.

The Court explained that a plaintiff alleging negligent hiring, supervision, or retention of an employee must show, “in addition to the elements of a negligence claim[,] that the employer had knowledge of the employee’s unfitness for the job.” (internal citation omitted). In this case, plaintiff named two managers from his former place of employment as defendants. The Court ruled that these managers, as employees of the company, “could not also assume the role of employer and ‘retain’ their own employment,” so the negligent retention claim against them failed.

Continue reading

Where plaintiff knew that he would likely be paddled before joining a fraternity but did not understand the full scope of the hazing he would endure, summary judgment based on the plaintiff’s comparative fault was overturned. Further, where the college had received previous reports of hazing from the fraternity in question, summary judgment based on a lack of duty was overturned.

In Halmon v. Lane College, No. W2019-01224-COA-R3-CV (Tenn. Ct. App. May 29, 2020), plaintiff joined a fraternity at defendant college. He admittedly knew that he would be paddled as part of his initiation process, but he alleged that he was unaware of the extent of the hazing that would be involved. He claimed that he was subjected to extreme hazing, including being beaten, burned, sleep deprived, and compelled to drink concoctions. Plaintiff suffered serious injuries, forcing him to withdraw from college, and he filed this action for negligence and vicarious liability against defendant.

In his complaint, plaintiff alleged that defendant college was vicariously liable based on “the actions (and failures to act) of a Lane College employee, Calvin Walker.” Mr. Walker was the faculty adviser for the fraternity at issue, as well as a member of the fraternity, and plaintiff asserted that “Mr. Walker had failed to prevent injuries to him by failing to properly intervene in the hazing and by failing to report it.” Plaintiff also asserted that defendant was directly negligent in its hiring, supervising, and retention of Mr. Walker.

Continue reading

Where a medical transportation company had a patient sign an exculpatory agreement (commonly called “waiver forms”), the Supreme Court held that the agreement was not enforceable because of the “unequal bargaining power of the parties, the overly broad and unclear language of the agreement, and the important public interest implicated by the agreement.”

In Copeland v. HealthSouth/Methodist Rehabilitation Hospital, LP, No. W2016-02499-SC-R11-CV (Dec. 20, 2018), plaintiff was a patient at an in-patient rehabilitation hospital after a knee replacement, and the hospital arranged transportation for plaintiff to get to his follow up doctor’s appointment through defendant medical transportation company. When defendant’s driver arrived, he pushed plaintiff in a wheelchair from his room to the van, and plaintiff entered the van using a walker. Once in the van, plaintiff was presented with a two-sided form, with one side containing a “run report” and the other side containing a “Wheelchair Van Transportation Agreement.” The agreement “consisted of nine single-spaced paragraphs, including three paragraphs of exculpatory language” which purported to release defendant “from any and all claims arising from or in any way associated with any transportation services provided by [defendant].” Once plaintiff signed the form, the driver took him to his doctor’s appointment. While entering the van after the appointment, plaintiff “lost his footing on the running board, fell, and was injured.”

Continue reading

In Richardson v. Trenton Special School Dist., No. W2015-01608-COA-R3-CV (Tenn. Ct. App. June 27, 2016), the Court of Appeals reversed summary judgment in a negligence case due to fact issues surrounding the issue of foreseeability.

The underlying facts of this case were quite disturbing—a six-year old kindergarten student was allegedly sexually assaulted five times by another six-year-old student in an elementary school bathroom stall. It was undisputed that before this incident, another student had been sexually assaulted by a peer at this school, though that incident involved first or second graders in the after-school care program. During the after-school incident the two children were in the bathroom alone, but in the incident underlying this case other students were in the bathroom and the teacher was in the hallway between two bathrooms. It was further undisputed that after the after-care assault, “the elementary school changed its bathroom policy in the after-school care program in direct response to the prior assault such that teachers accompany students into the bathrooms. However, the school did not change its policy concerning the main school day.” At the time of the kindergarten assault, the school had a policy stating: “CHILDREN MUST NEVER BE OUT OF SIGHT!!! Monitor your students in the halls and bathrooms.”

The victim’s parents filed suit, alleging that the school “was negligent because its employee had violated the school’s policy and that this violation resulted in a failure to protect [the child].” The defendant school moved for summary judgment, with the trial court granted, finding that the assault was not reasonably foreseeable. The Court of Appeals, however, reversed.

Continue reading