Miscellaneous

October 2, 2009

New Attorney General Opinion on Railroad Crossings

The Tennessee Attorney General’s Office has issued an Opinion that provides that "Tenn. Code Ann. § 65-12-108 does not require a train engine operator to blow a train’s whistle or horn before crossing a private drive. Tenn. Code Ann. § 65-12-108 only requires that a train engine operator blow a whistle or horn at public railway crossings."

The Opinion references a recent decision from the federal court in East Tennessee:

In Artrip v. Norfolk Southern Railway Company, No. 2:08-CV-200, 2009 WL 152482
(E.D. Tenn. Jan. 22, 2009), the United States District Court for the Eastern District of Tennessee relied on Tennessee state law in holding that there is no requirement for a train engineer to sound a whistle when approaching a private railroad crossing. In Artrip, the plaintiff brought a claim against Norfolk Southern Railway Company after the decedent was struck and killed at a private railroad crossing in Sullivan County, Tennessee. Id. at *1. The plaintiff alleged that the train operator’s failure to sound a whistle warning before crossing the private drive was an act of negligence. Id. at *3. However, the District Court found no merit in plaintiff’s allegations of negligence, concluding that “although the locomotive did not blow its whistle, there was no requirement that it do so at a private crossing.” Id. at *13 (citing 49 C.F.R. § 222.25 and Tenn. Code Ann. § 65-12-108(1)). Summary judgment was granted in favor of the train operator, and the plaintiff’s claims were dismissed. Id. at *15.

September 27, 2009

Letter to the Tennessee Supreme Court

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

The Tennessee Supreme Court has published a proposed re-draft of Rule 27, the rule which addresses the process of judical evaluation. Set forth below is my letter to the Court that addresses one phrase in the proposed rule. NOTE: this letter was written in my individual capacity and not as Chair of the Tennessee Judical Performance Evaluation Commission.

I have read the draft of revised Supreme Court Rule 27 and offer one comment for consideration by the Court. I respectfully request that the Court remove the phrase “In the face of society’s increasing litigiousness…” from the beginning of Section 1.03. This statement is in essence of finding of fact that is unwarranted given what we know about our civil justice system in Tennessee.

Court filings in civil court of almost every type have decreased in Tennessee over the last three years. According to the 2007-08 Annual Statistics Report, total Circuit Court filings in 2005-2006 were 65,039; in 2007-08 they were 62,204. Total Chancery Court filings in 2005-06 were 64,808; in 2007-08 they were 63,256. The number of civil appeals and applications to the Court of Appeals in 2005-06 were 880; in 2007-08 they were 867. Rule 9, 10, and 11 applications to the Supreme Court were 936 in number in 2005-06. In 2007-08 there were a total of 843 of those applications. The data for 2008-09 is not yet publically available.

September 22, 2009

Bologna Sandwich Case – More Than Meats the Eye

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

For decades people have spread false or half-true stories about lawsuits. Here is the latest one I heard the other day on a talk radio show:

A prisoner filed a $3M lawsuit alleging that a prison guard forced him to rub his bologna sandwich on his (the prisoner’s) penis and then forced the prisoner to eat it. This is offered as yet another example of a litigation system run amok.

True? In part. Yes, a prisoner has filed a $3M civil rights lawsuit, seeking $1M in compensatory damages and the balance in punitive damages. It is true that it is alleged that two deputies made a prisoner rub a bologna sandwich against his penis.

September 13, 2009

Justice Programs Seminar 2009

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

Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars. This two-day, 15-hour is designed for Tennessee lawyers who do civil litigation and who are looking for substantive continuing legal education that will help them better serve their clients.

We will be in Nashville November 19 and 20, Chattanooga on December 3 and 4, Memphis on December 10 and 11, and Knoxville on December 17 and 18.

Here are the topics we are offering this year:

September 9, 2009

Death of a Giant of the Tennessee Trial Bar

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

Nashville trial lawyer John T. Conners, Jr. died yesterday in his home in West Meade. He would have turned 90 in March 2010. He was a name-partner at Boult Cummings Conners & Berry in Nashville and practiced law over 50 years..

To say that John Conners was an excellent lawyer is an understatement. He was a living legend in the Bar at the time I was admitted in 1981 and joined his firm. He remains a legend to this day.

I believe the key to Mr. Conners’ success in the courtroom was his preparation. He left no stone unturned. He did not sit in his office and practice law – he investigated his own cases and was unafraid to get his shoes dirty. He prepared hours and hours for every deposition. He would write out his opening statements and closing arguments three, four, or five times, revising and improving it each time. And then he would deliver it – from memory – flawlessly. His directs and crosses were done the same way – revision after revision after revision – and then conducted from memory. He dominated the courtroom.

September 1, 2009

Judicial Performance Evaluation Commission Members Announced

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

Last week I filed a post on the new members of the Judicial Selection Commission. Today, the appointees to the Judicial Performance Evaluation Commission were announced.

The Judicial Performance Evaluation Commission, which replaces the Judicial Evaluation Commission, evaluates the performance of the appellate level judges who are up for re-election. Prior to the election, the commission will complete a thorough review of each judge’s performance and make a recommendation to either retain or replace each judge. These recommendations are placed in newspapers throughout the state to inform voters prior to the election.

The appointees:

August 31, 2009

September 2009 Tennessee Trial Law Report is in the Mail

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

The September 2009 edition of the Tennessee Trial Law Report is in the mail.

The lazy days of summer are upon us – this edition includes a summary of just 10 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between July 15 and August 15, 2009. (This is about 1/2 of the normal volume of decisions released in a given month.) The newsletter totals 34 pages, including 16 pages containing the full-text (in addition to our summary) of the most important opinions issued last month.

The newsletter also includes (a) my continuing series on The Law of Trial (this month’s article is “Opening Statements and Closing Arguments;” and (b) a summary of the status of 12 cases of interest to tort lawyers that are pending before the Supreme Court of Tennessee.

August 27, 2009

New Judicial Selection Commission Members

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

The new members of the Tennessee Judicial Selection Commission have been announced.

Lt. Governor Ron Ramsey appointed the following people:

Miles Burdine, President and CEO of the Kingsport Area Chamber of Commerce
Christopher Campbell, a Memphis attorney
Christopher Clem, a Chattanooga attorney
William Jenkins, Jr., a Dyersburg attorney
Teresa Lee, Senior VP and CLO for Eastman Chemical in Kingsport
Thomas Lawless, a Nashville lawyer
Jack Lowery, a Lebanon lawyer
William Young, GC of BCBS in Chattanooga

Speaker Williams appointed the following people:

David Bautista, an attorney and ETSU professor
Mary Helen Beard, a lawyer with Fed Ex in Memphis
Ana Escobar, a Nashville attorney
Russell Johnson, DA in Loudon County
Ed Martindale, a Jackson attorney
Scott Sims, a Nashville attorney
Denise Stapleton, a Morristown attorney
Barry Ward, a Memphis attorney

The speakers jointly appointed Verna Anne Wyatt of Nashville, the ED of the group You Have the Power, a crime victims advocacy group.

August 12, 2009

Thank You

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

OrderForm (2)(1) Last week I received a letter informing me that I had been selected for inclusion in the 2010 edition of Best Lawyers in America. I have been fortunate to have been included among this distinguished group of lawyers since 1993.

This year I have been listed in the specialties of Bet-the-Company Litigation, Commercial Litigation, Medical Malpractice Law, Personal Injury Litigation, and Product Liability Litigation.

Best Lawyers surveys lawyers to determine who should be included in the publication. Thus, I fully realize that I would not be included in this book if it were not for the votes I received from my fellow lawyers, many of whom deserve equal or even greater recognition for their service to their clients and to the profession. I also realize that I would not be a part of this publication without the wonderful support I receive from every member of our firm, each of whom works diligently every day to serve our clients.

August 11, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 7

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

Here is Post 7 of recent changes to statutory law in Tennessee that I think will be of interest to tort lawyers. As I have said in the last six posts, you can read about additional changes in the law under the Legislation 2009 category.

Public Chapter 206 changed the Governmental Tort Liability Act to include Tennessee Code Annotated, Section 29-20-101 et seq, to specifically include "community action agenc[ies] [and] nonprofit corporation[s] which administer[] the Head Start or Community Service Block Grant programs" as entities covered under the Act.

I believe that this legislation is a result of a case our firm handled against such an organization in East Tennessee earlier this year. We argued that the entity was not covered by the Act (and therefore the damage caps did not apply) because the type of entity was not specifically mentioned in the Act. I predicated at the time we identified the issue that a legislative change would be forthcoming, and this is it.