Articles Posted in Miscellaneous

Where a reasonable juror could have found that defendant allowed sewage to flow into a malfunctioning septic tank under plaintiff’s property for at least a short period of time after the issue was discovered, defendant was not entitled to summary judgment on plaintiff’s negligence claim.

In Heatley v. Gaither, No. M2018-00461-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2018), plaintiff and defendant owned neighboring property that had been owned as one large parcel many years ago. Part of plaintiff’s property was “always damp and muddy,” and during an attempt to re-grade the area, plaintiff discovered that a malfunctioning septic tank with pipes leading to defendant’s building was located on his property. Before this discovery, neither plaintiff nor defendant had been aware of this septic tank.

Defendant’s employee “arranged to have the newly discovered tank emptied on November 4,” and he later stated in an affidavit that shortly after that date, the facilities that were connected to the tank were identified and not used anymore. The septic line between the two properties was permanently severed the following February.

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The taxability of Tennessee personal injury and Tennessee wrongful death settlements and judgments is governed by  Section 104 of the Internal Revenue Code.

Generally, compensatory damages for personal injury and wrongful death are excludable from federal taxation if they arise from personal injury or sickness.  Thus, in most personal injury and wrongful death cases arising from a personal injury or sickness, a settlement which includes only compensatory damages will not be subject to federal taxation.

One exception to that rule is if the taxpayer / plaintiff previously deducted medical expenses from her taxable income and then recovered those expenses in a personal injury or wrongful death case.  In such cases, the taxpayer / plaintiff would have tax liability because she had previously gained a tax advantage from the deduction of the medical expenses and then was reimbursed for those expenses in a compensatory damages award.

Attorney’s fees are not recoverable in a claim for trespass in Tennessee. In Perlaky v. Chapin, No. E2017-01995-COA-R3-CV (Tenn. Ct. App. July 27, 2018), plaintiff owned land on a mountain with easement rights to access the land by a specific road. When defendants bought property on the same mountain, they blocked the road by “felling 400 or 500 trees across the road, setting up a steel gate, and placing security guards at the gate to monitor access.” Plaintiff filed this trespass action, and the trial court awarded him nominal damages. The trial court initially awarded plaintiff attorney’s fees, but after a motion to alter or amend the judgment by defendant, the trial court vacated the award of attorney’s fees. The Court of Appeals affirmed.

First, the Court affirmed the award of nominal fees. Because plaintiff had presented damages incurred by Raccoon Mountain Campground, LLC, but had filed suit individually, the trial court found that no actual damages to plaintiff were proven. Nonetheless, “even where no actual damages are proven, the plaintiff is still entitled to nominal damages,” and the award of $174.14 as nominal damages was affirmed.

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Tennessee law “grants counties that allow inmates to work on road details and other projects immunity from liability for injuries,” and that immunity overrides provisions of the GTLA.

In Trojan v. Wayne County, Tennessee, No. M2017-00415-COA-R3-CV (Tenn. Ct. App. July 23, 2018), plaintiff was an inmate in Wayne County jail and was working on a bridge as part of an inmate work program. While working, he spilled concrete onto his boots and feet and suffered chemical burns, which resulted in scarring. He brought suit against the county for negligence, arguing that immunity was removed under the GTLA. The trial court granted defendant county’s motion to dismiss, and the Court of Appeals affirmed.

Tenn. Code Ann. § 41-2-123(d)(2) states that, except in very specific circumstances, government entities shall not “be liable to any prisoner or prisoner’s family for death or injuries received while on a work detail, other than for medical treatment for the injury during the period of the prisoner’s confinement.” Plaintiff argued that this section was limited to prisoners described in another part of the statute, a group into which he did not fall, but the Court of Appeals disagreed.

Where a claim for negligence against a bank fell within the parameters of the UCC, the common law negligence claim was preempted and summary judgment for defendants was affirmed.

In Mark IV Enterprises, Inc. v. Bank of America, N.A., No. M2017-00965-COA-R3-CV (Tenn. Ct. App. June 26, 2018), plaintiff sued defendant bank for aiding and abetting fraud and conversion, as well as for common law negligence. Plaintiff’s bookkeeper had embezzled money from plaintiff by taking checks written to plaintiff’s vendors and depositing them into her own personal account at defendant bank. Plaintiff alleged that defendant was negligent because the checks were not payable to the bookkeeper, many were not endorsed, and defendant bank had failed to safeguard against such issues when checks were deposited through its ATMs.

The trial court dismissed the conversion and fraud claims on a motion to dismiss, and granted summary judgment to the bank on the negligence claim based on its finding that the bank did not owe plaintiff a duty. The Court of Appeals affirmed, but on different grounds.

When a Tenneseee state trooper was injured by a sheriff’s deputy’s police dog, his lawsuit against the owner of the dog was not statutorily precluded.

In Greenlee v. Sevier County, Tennessee, No. E2017-00942-COA-R3-CV (Tenn. Ct. App. April 26, 2018), plaintiff was a Tennessee State Trooper who had attempted to make a traffic stop and called for assistance when the suspect fled on foot. A Sevier County Sheriff’s Deputy was dispatched, along with his police dog. During the pursuit, the deputy and dog went under a house, and when the dog emerged first, he attacked and injured plaintiff.

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A claim that a drug manufacturer failed to properly warn under Tennessee law based on its failure to include a medication guide required by FDA regulations is impliedly preempted by federal law.

In McDaniel v. Upsher-Smith Laboratories, Inc., No. 2:16-cv-02604 (6^th Cir. June 29, 2018), plaintiff brought suit after her husband died after taking medication manufactured by defendant. Plaintiff claimed that defendant’s “failure to ensure that a Medication Guide accompanied the prescription led to her husband ingesting—and dying because of—a drug that wasn’t meant for him.” Plaintiff’s husband had been prescribed a generic form of a medication intended as a “last resort for patients suffering from ventricular fibrillation and ventricular tachycardia.” The husband, however, was suffering from non-life threatening atrial fibrillation. Plaintiff asserted that because defendant did not include the required medication guide, her husband “was unaware that only adults with life-threatening heartbeat problems who had unsuccessfully sought alternative treatments should take the drug.” He thus suffered from a serious lung side effect and died.

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