General Negligence Action

February 1, 2016

Summary Judgment Affirmed Where Dog Had Never Bitten Anyone Before

In 2007, the Tennessee legislature enacted Tenn. Code Ann. § 44-8-413, which addresses injuries caused by dogs. This statute draws a distinction between (1) injuries caused by a dog “running at large” and (2) injuries caused by a dog on its owner’s property. For the latter group, the statute provides that “the claimant shall be required to establish that the dog’s owner knew or should have known of the dog’s dangerous propensity,” and a recent case gave the Tennessee Court of Appeals its first opportunity to interpret this language.

In Moore v. Gaut, No. E2015-00340-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2015), plaintiff went to defendant’s house to service a satellite dish. Defendant had a great dane fenced in his backyard. According to plaintiff, he was greeted by defendant’s father, who told him that the dog was “gentle” and “jovial” and encouraged him to greet the dog. Plaintiff alleged that when he went to get tools out of his vehicle, which was parked next to the fence, the dog “jumped up, leaned over the fence and bit [his] face.” Plaintiff filed suit against defendant dog owner.

Defendant moved for summary judgment, which he supported with an affidavit stating that his dog “was in a fenced-in area of his backyard” and that the “dog [had] never bitten anyone or attacked anyone.” In response, plaintiff filed his own affidavit detailing the incident and reiterating that he was never warned that the dog might act aggressively. The trial court held that “the undisputed facts established that there had been no previous history of the dog biting, attacking, or acting aggressively.” Instead, the trial court ruled that the evidence showed the opposite—that the dog had never bitten or attacked anyone, and that there was no evidence it had engaged in playful behavior that could be dangerous. Finding that there was no evidence to “put the defendant on notice that the dog was dangerous,” summary judgment was granted to defendant, which the Court of Appeals affirmed.

September 21, 2015

Act Quickly To Solve Problems with Service of Process

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

A recent Court of Appeals case reminds plaintiffs’ attorneys of the importance of diligently reading any answer filed and working quickly to remedy problems related to the proper party being named and/or service of process. In Urban v. Nichols, No. E2014-00907-COA-R3-CV (Tenn. Ct. App. Sept. 4, 2015), plaintiff filed a negligence claim after injuring her foot and heel while using a waterslide at Willow Brook Lodge. In her complaint, filed on July 11, 2012 (which was exactly one year to the date from her injury), plaintiff named Robin Nichols and Willow Brook Lodge as defendants. It was undisputed that the complaint was only served, however, by personal service to Robin Nichols’s son.

The named defendants filed an answer on August 27, 2012. Therein, they asserted that the Lodge was actually owned by Accommodations by Willow Brook Lodge, LLC and that Ms. Nichols was not an owner. Further, they plead “insufficiency of process and insufficiency of service of process.”

Plaintiff’s counsel sent a letter to counsel for defendants on November 7, 2012, requesting permission to amend the complaint. Defendants responded by letter one week later denying the request. Plaintiff’s counsel took no further action in the case until February 7, 2013, again sending a letter requesting to amend the complaint to defendants. Defendants’ attorney sent another denial on July 22, 2013. Finally, on August 21, 2013, plaintiffs filed a motion to amend with the trial court. In response, defendants filed a motion for summary judgment on the grounds that the “failure to correctly serve process on either Ms. Nichols or the Lodge required the dismissal of the action.” The trial court granted summary judgment to defendants, and the Court of Appeals affirmed.

July 20, 2015

Judgment For Plaintiff in Negligence Case Reversed on Appeal

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

In a somewhat rare move, the Tennessee Court of Appeals recently overturned a trial court’s ruling for plaintiff in a negligence case. In Tenn. Farmers Mut. Ins. Co. a/s/o Couch v. Jackson Madison School System Bd. of Educ., No. W2014-02218-COA-R3-CV (Tenn. Ct. App. June 15, 2015), plaintiff was driving a crop sprayer on a narrow, rural, unlined road. Plaintiff saw a school bus turn onto the road traveling towards the crop sprayer, and both parties agreed that there was not room for both vehicles on the road. According to the trial testimony, the sprayer would have had time to stop but chose not to do so. Plaintiff testified that had he stopped, the accident probably would have been avoided. Instead, plaintiff moved the right tires of the sprayer off the road and, after clearing the bus, the shoulder gave way and the sprayer fell into a ditch, causing fairly significant property damage. Plaintiff sued the bus driver for negligence, alleging that there was more unpaved shoulder on the bus’s side of the road and that the bus driver did not take reasonable care to move his vehicle as far right as possible to avoid the accident.

The trial court ruled that defendant bus driver “was negligent in failing to take reasonable action to avoid an accident under the circumstances that existed at the time of the accident and that the [bus driver] could have foreseen an accident happening through the use of reasonable care.” The Court of Appeals, however, overturned this ruling.

May 2, 2015

Real Estate Statute of Repose Wipes Out Fire Loss Case

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

In Hayes v. Coopertown’s Mastersweep, Inc., No. W2014-00783-COA-R3-CV (Tenn. Ct. App. April 17, 2015), plaintiffs brought a negligence claim based on the alleged negligent inspection of their fireplace. Two issues were addressed on appeal—whether defendant owed a duty of care to plaintiffs and whether this case fell under the four-year statute of repose applicable to injuries to real property related to deficient design and construction.

In 2000, plaintiffs purchased a house built in 1964 that had a fireplace, which plaintiffs had remodeled by a third party. Part of this remodel included lowering the firebox to be flush with the floor. The remodeled fireplace did not work well, allowing smoke to escape into the den, the upper floors and the attic. Plaintiffs thus hired defendant to inspect the fireplace and determine what was causing the smoke issues. Plaintiffs did not tell defendant about the previous fireplace renovations or that the firebox had been lowered. Defendant performed the inspection requested, and part of the defendant’s work “went beyond the inspection that [plaintiffs] contracted for,” including inspecting beneath the fireplace from the crawlspace and drilling into the fireplace to determine whether any combustible material was coming into contact with the fireplace. Because of the design and construction of the fireplace, however, “there were areas underneath the fireplace that could not be seen or inspected” by defendant. Defendant made certain redesign recommendations based on his inspection, and plaintiffs hired defendant to perform the recommended work. Defendant completed this work on October 8, 2003. Subsequently, on January 17, 2005, plaintiffs’ home was damaged by fire when “wooden floor joists that had been in contact with the firebox ignited from exposure to heat generated by the fireplace,” a problem related to the first remodel done by the unnamed third party.

September 4, 2014

Injury and Wrongful Death Liability of Franchisors

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

Under what circumstances can a franchisor be held vicariously liable for torts that occur on the premises of a franchisee?

A relatively recent court opinion has an excellent discussion of the law in this area, addressing not only the law of the state where the cause of action arose (New Mexico) but also the law from around the nation. In Estate of Anderson v. Denny’s, 2013 WL 6506319 (D.N.M. Nov. 13, 2013) the court held that a genuine issue of material fact existed on the issue of whether the franchisor was vicariously liable for the franchisee’s alleged negligence, turning on the issue of right of control.

June 3, 2014

Can The Owner of LLC Also Be A Defendant in a Tort Action Against the LLC?

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

The plaintiff in Akers v. McLemore Auction Co., LLC, No. M2012-02398-COA-R3-CV (Tenn. Ct. App. May 27, 2014) chose to hire an auction company to sell his real and personal property that the plaintiff valued at more than $350,000, but chose to go pro se in suing the auction company. That might explain why the appellate opinion needed ten pages to summarize – and affirm – the trial court’s Tenn. R. Civ. P. 12.02(6) dismissals on the plaintiff’s four claims against more than twenty defendants.

One potentially helpful nugget for other cases is the appellate court’s discussion of the dismissal of claims against an individual defendant affiliated with the auction company. The plaintiff alleged, in pertinent part, that the individual defendant was a “person” who called himself the auction company’s President, but who was really the sole member of the auction company’s LLC. The trial court dismissed the claims against the individual defendant under Rule 12.02(6), finding there were no facts to support the plaintiff’s allegation that the defendant “was acting outside his capacity as agent for [the auction company] at any time.”

The Court of Appeals concluded that the trial court erred on this point. A trial court is bound to review only the complaint for purposes of Rule 12.02(6), and nothing in the complaint alleged that the individual defendant was ever acting on behalf of the auction company. For this reason, he should not have been dismissed.

September 18, 2011

General Contractor Liability for Subs

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

Interested in the circumstances under which a general contractor can be held liable for the acts of a sub-contractor? Here is my article on one aspect of the subject in the TBA Journal.

August 16, 2011

Use of Internal Policies Can Be Used to Prove Violations of Reasonable Care

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

A recent opinion of the Tennessee Court of Appeals in case reminds us that a company’s internal policies, while not dispositive, are relevant to the standard of care for its employees.

After a bench trial, the trial court found Defendant was not negligent, and the Court of Appeals reversed based on the testimony of Defendant’s employees. Defendant provides door-to-door transportation services, with many of the passengers elderly or disabled. Defendant’s driver testified that he was aware of Defendant’s policies and procedures, particularly those requiring the driver to be aware of any walking surfaces that the passenger must travel upon, and those requiring the driver to keep a passenger within the driver’s line of vision in case the driver needs assistance. The driver also admitted that Defendant had a written policy requiring the driver to stay close to the passenger while walking in case the passenger needed assistance.

In this case, the driver testified that he noticed before picking up the passenger that there was frost on the ramp the passenger would use to exit her home. While the passenger was on the ramp, the driver turned back into the passenger’s home to get a bag for her. When he turned back, he saw that she was falling but she was six to eight feet away from him, which the driver admitted was not close enough to provide assistance. The Court of Appeals found this evidence preponderated against the trial court’s finding that the driver was not negligent.

January 16, 2011

State of Tennessee Litigation Statistics From the AOC Annual Report

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

The Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Tennessee Judiciary. Over the next few days I will share some data from the Report.

We begin with medical malpractice cases. In the fiscal year ending June 30, 2010, 429 medical malpractice cases were resolved by judgment, settlement or dismissal. Only 324 new cases were filed.

There were only 30 medical malpractice cases actually tried in state court in Tennessee during the fiscal year. The total awards for the patient in those cases were $7,128,800. Unfortunately, the Report does not indicate the number of cases won by the patient or by the health care provider. Historically, that number is about 20% of all trials.

November 1, 2010

Lawsuits Arising From Participation in Athletic Activities

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

What does tort law tell us about liability for injuries arising during sporting events and, in particular, contact sports? The recent case of Feld v. Borkowski gives us the answer, at least from the standpoint of the Iowa Supreme Court.

Plaintiff and defendant were playing intramural softball . Defendant hit the ball and let go of the bat at the same time. The bat flew through the area, striking and injuring plaintiff (who was playing first base). Plaintiff filed a negligence suit, and defendant sought dismissal of the suit arguing that softball was a contact sport and thus he could only be sued if his conduct was reckless.

The Iowa Supreme Court agreed, saying that