Articles Posted in Miscellaneous

Investigations following the collapse of the bridge in Minneapolis will tell us how it occurred and whether anyone bears responsibility for the failure. 

In Tennessee, it would be very difficult for a case to be brought the most obvious potential defendants.  Our state and local governments have a damage cap that make it impossible to economically pursue claims after such a disaster.  Our "architects, engineers and contractors immunity act" make it impossible for them to be held responsible more than four years (ok, four plus one years) after construction (absent a showing of fraud).  Our products liability act gives manufacturers of any component parts a get-out-of-jail-free after ten years. 

Of course, perhaps contractor(s) working on the bridge at the time may be found to have some fault and perhaps a private firm did an inspection and did not perform it carefully – the facts will trickle out over the next few days.   But in Tennessee the ability of these potential defendants to assert fault against the potential defendants mentioned above and have that fault reduce the recovery of the plaintiff (the magic of several liability and allowing fault to be placed on immune non-parties) make these cases a challenge, too. 

This post has nothing to do with torts, except perhaps the tort of outrage.  But I read about this op-ed piece in Trial Ad Notes, and thought that at least some of you would enjoy it.

John Koppel, who has served at the Department of Justice for over 25 years, doesn’t like what is going on there.  Not one bit.  And he is naming names.

He ends his remarks with these words:  " I realize that this constitutionally protected statement subjects me to a substantial risk of unlawful reprisal from extremely ruthless people who have repeatedly taken such action in the past. But I am confident that I am speaking on behalf of countless thousands of honorable public servants, at Justice and elsewhere, who take their responsibilities seriously and share these views. And some things must be said, whatever the risk."

It is not uncommon for plaintiffs in personal injury cases to get into financial problems.  Medical bills need to be paid and the injured person’s income is often disrupted and may be nonexistent.

But, this opinion makes it clear that the failure to disclose the existence of the pending personal injury suit can result in its dismissal.  In Gardner v. Union Pacific Railway Co., No. 05-8106 (10th Cir. July 6, 2007) the plaintiff failed to disclose his pending personal injury suit filed under the Rail Road Workers’ Compensation Act in his post-accident bankruptcy and failed to tell the truth about the lawsuit in a meeting of creditors.  He received a discharge of his debts under Chapter 7 of the Code.

Almost a year later plaintiff’s personal injury attorney became aware of the filing and notified the bankruptcy trustee, who in turn moved to re-open the bankruptcy and list the pending case as an asset.  The defendants in the personal injury case got involved before the federal district court and asked the court to dismiss the case the grounds of judicial estoppel.  The federal district judge agreed, saying "[w]hat the Court finds most telling . . . is the fact that when given the opportunity at the meeting of creditors to reveal the pending litigation, Mr. Gardner did not disclose his personal injury action. First, he explicitly denied having a personal injury action pending. Second, his attorney represented that the claim was not workers’ compensation “per se,” but indicated that any claim was related to an on-the-job injury, leading the Trustee to believe that the claim was similar in nature to a workers’ compensation claim. Third, Mr. Gardner’s attorney referred to UPRR’s failure to provide hearing aids to Mr. Gardner, misrepresenting the extent of the claims involved. Mr. Gardner had an affirmative duty to speak up and let the trustee know the nature of his lawsuit against UPRR as well as eight other defendants. . . ."

The Tennessee Supreme Court will hear arguments in the following cases that are of interest to tort lawyers in Knoxville on September  6:

Konvalinka v. Chattanooga-Hamilton County Hospital Authority – (Swiney, author) (Susano & Lee) –
1. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt without any evidentiary hearing;
2. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt when case law supports a separate request for documents pursuant to a statute not being in violation of a stay of litigation.
3. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt for pursuing a Tennessee public records act request when only lower court proceedings in the Stratienko action were stayed, and not a separate action to enforce the right of access to public documents.
4. Whether the Court of Appeals erred finding contempt when counsel acted in good faith and reasonably interpreted the stay order at issue pursuant to existing law.
5. Whether the Court of Appeals erred in not remanding this matter for production of the requested documents, and in not awarding attorney’s fees pursuant to the valid public records act request.

Tenn. Farmers Life Reassurance Co. v. Rose – (Susano) (Franks, concurring;
Swiney, dissenting)
1. Whether the C/A erred in affirming the Trial Court’s grant of summary judgment by concluding that the attorney in fact under the durable general power of attorney did not have the specific authority to execute an effective life insurance change of beneficiary form, notwithstanding the
fact that the power of attorney specifically authorized the attorney in fact to "transact all insurance business", to "take any other action necessary or proper in this regard . . .", and to "execute and perform all and every act and thing whatsoever without limitation whatever and without being confined to the specific acts hereinabove set out . . . ."

Ken Shigley has an interesting post listing some poll results that have been circulated in AAJ materials in recent days.  

Former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I are sponsoring our annual "Justice Programs" seminars again this Fall.  Here is the schedule  for this two-day, fifteen-hour program.

First Day

8:00 – 8:30 Registration
8:30 – 10:15 Tort Law / Comparative Fault
10:15 – 10:30 Break
10:30 – 11:30 Dealing with Difficult Judges
11:30 – 12:15 U.S. Supreme Court Review
12:15 – 1:15 Lunch on your own
1:15 – 2:30 Tort Law / Comparative Fault (cont’d)
2:30 – 2:45 Break
2:45 – 4:15 Evidence in the Trenches
4:15 – 4:30 Break
4:30 – 5:45 Business Torts – The State of Tennessee’s Law

I have been in Chicago for the last four days, attending the Board meeting of the National Board of Trial Advocacy and spending time with my son , MIchael.  We saw the Cubs beat the Astros Saturday afternoon and took in a street fair in Chinatown yesterday.  It was a great trip.

I apologize for the problem with the links to the last few posts.  I have brought the issue to the attention of my service provider and assume that it has been fixed.

You know the general rule: absent a special relationship, one person does not have a duty to come to the aid of another.  You can see someone drowning, calling out for help, and simply walk by listening to your Ipod and taking a another lick of your Maggie Moo’s ice cream cone.  These is true even if you are a world-champion swimmer trained in life-saving. 

The Superior Court, Appellate Division, of New Jersey recently faced an issue of whether two passengers in a car had a duty to aid a motorcycle rider who had been hit by the intoxicated driver of their car who was either unwilling or unable to come to the motorcyclist’s aid.  The three men stopped after the incident, saw the injured man, and left the scene without offering or calling for assistance.   (The three had cell phones with them.) The driver’s car broke down shortly thereafter, and the passengers fled the scene leaving the driver behind waiting for his girlfriend to pick him up.  The passengers told the driver not to tell anyone that they had been present.  The motorcyclist was left on the road, was hit by a car and died.

The trial judge dismissed a case brought against the auto passenger’s by the administrator of the motorcyclist’s estate.  The Appellate Division reversed, in a fascinating opinion that takes the reader back to Torts 101.    A brief excerpt:

Here is a follow-up story on my earlier post about a lawyer who indicated that a judge was a few fries short of a Happy Meal.

The General Assembly has approved changes to the Rules of Evidence, the Rules of Civil Procedure, and the Rules of Appellate Procedure.

Perhaps the most significant change for practicing lawyers is the amendment to Rule 15 of the Rules of Civil Procedure, which provides that "For 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." 

All changes are effective July 1, 1007.