Miscellaneous

September 12, 2018

Negligence Claim Preempted by Tennessee UCC

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.

July 31, 2018

Police Dog Exception to the Tennessee Dog Bite Statute

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

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.

July 16, 2018

Failure to Warn Claim Against Drug Manufacturer Rejected

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

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.

July 13, 2018

Intentional Infliction of Emotional Distress Claim Barred by Worker’s Compensation Claim

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

A plaintiff cannot bring a separate intentional infliction of emotional distress claim based on a work-related incident for which he has already pursued a workers’ compensation claim.

In Byrd v. Appalachian Electric Cooperative, No. E2017-01345-COA-R3-CV (Tenn. Ct. App. April 25, 2018), plaintiff alleged that an “interrogation” by his supervisors at work caused him chest pain, anxiety, and other symptoms. He averred that when he reported to work one morning, he was called to a meeting with two supervisors, who questioned him about his recent marriage to another employee’s relative. He stated that he was told he would have to either resign or be terminated per company policy, and that the meeting lasted three hours. At the end of the meeting, plaintiff alleged that one of the supervisor’s spoke with an attorney, who reviewed company policy and determined that there had been no policy violation, at which time plaintiff was allowed to return to work.

June 14, 2018

Duty of Care Exists Even in Dangerous Sporting Activities

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

Even when a person chooses to participate in a risky sport, he or she does not “assume the risk of whatever dangerous conduct, however unreasonable, is engaged in by the [other] participants.” Instead, in a negligence case, the reasonableness of the defendant’s conduct will be determined based on the circumstances of the case.

In Crisp v. Nelms, No. E2017-01044-COA-R3-CV (Tenn. Ct. App. March 28, 2018), plaintiff was the surviving spouse of a bicycle rider who died following a cycling accident. At the time of the accident, decedent and four other cyclists were riding in a paceline, which is when the riders proceed in a straight line close together with the front rider setting the pace. Plaintiff alleged that the rider in front suddenly slowed, causing the second rider to bump wheels with the front rider. The second rider then went down, and decedent was unable to avoid the accident, hitting the second rider and being thrown off his bike. Decedent “was rendered quadriplegic by the wreck,” and died a few months thereafter.

Plaintiff filed a negligence suit against the first and second rider, who both filed motions for summary judgment, which the trial court granted. The trial court ruled that “paceline cycling is inherently dangerous and that Decedent was at least 50% at fault for his accident.” In its order, the trial court stated that “the ultimate conclusion is that these types of accidents are foreseeable in bicycle racing, especially this type of close racing,” and that “these parties chose to engage in this activity.” On appeal, summary judgment was reversed.

May 17, 2018

Fall-From-Ladder Case Falls Short

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

Where a painter fell off a ladder but could not prove cause in fact or proximate cause, summary judgment on his negligence claim was affirmed.

In Epps v. Thompson, No. M2017-01818-COA-R3-CV (Tenn. Ct. App. March 15, 2018), plaintiff was hired by defendant to paint the exterior of her house. Defendant provided the painting material and two ladders, a folding ladder and an extension ladder, for plaintiff’s use. While using the folding ladder to paint the uppermost eave of the home, defendant fell and was injured. He subsequently filed this suit, claiming the “landowner was negligent for providing him with old ladders that were unsafe.”

March 28, 2018

What Happens When Defendant Dies Before Suit is Filed?

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

When a potential personal injury defendant dies after an alleged tort, the survival statute will extend the running of the statute of limitations “for a maximum of six months from the date of the death of the tortfeasor or until a personal representative has been appointed.” The fact that a plaintiff may not have actually discovered the death of the potential defendant is not relevant to the tolling of the statute of limitations.

In Putnam v. Leach, No. W2017-00728-COA-R3-CV (Tenn. Ct. App. Jan. 23, 2018), plaintiff was injured in a car accident when defendant crossed the center line and struck her vehicle. The accident occurred on February 2, 2015. Defendant died on January 4, 2016, though plaintiff was unaware of this death. Plaintiff filed suit against defendant on February 2, 2016, and service was returned on February 26, 2016 with a note “indicating that [defendant] was deceased.” Plaintiff’s attorney, however, did not read the note at that time. On July 18, 2016, plaintiff called her attorney to check on the case, at which time the attorney saw the note indicating that defendant was deceased. On October 21, 2016, plaintiff petitioned the probate court to appoint an administrator ad litem, and plaintiff filed an amended complaint naming the administrator ad litem on October 31, 2016.

Defendant administrator filed a motion to dismiss, asserting that plaintiff’s complaint was not timely filed. The trial court granted the motion, and the Court of Appeals affirmed.

March 19, 2018

Contractual Indemnity Claim Not Subject to HCLA

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

When an medical malpractice defendant files a third-party complaint based on a contractual indemnity provision, that third-party complaint may not fall within Tennessee’s Health Care Liability Act.

In Johnson v. Rutherford County, Tennessee, No. M2017-00618-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2018), plaintiffs sued various government entities for extreme injuries their son received when attacked by another inmate in the Rutherford County Adult Detention Center. In an amended complaint, plaintiffs alleged that the director of health services at the jail had been warned about the other inmate’s violent tendencies. When filing its answer, the County also filed a third-party complaint against the director of health services’ employer, Rudd Medical Services, which was the “entity that provided medical services to prisoners housed” at the jail. “The County alleged that it had entered into a contract with Rudd for the provision of health care services to inmates, which contract contained a clause requiring Rudd to indemnify and hold the County harmless from any claims based upon…the actions of Rudd employees.”

Rudd filed a motion to dismiss, asserting that the third-party complaint fell within the parameters of the HCLA and that the County had failed to file a certificate of good faith. The trial court granted the motion, but the Court of Appeals overturned the dismissal.

February 9, 2018

Sixteen-Year-Old Misrepresentation Claim Time-Barred

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

Where plaintiff could have discovered fire damage to her home by simply moving the refrigerator or looking in the HVAC return, the statute of limitations on her misrepresentation claims was not tolled under the discovery rule of the doctrine of fraudulent concealment.

In Eldridge v. Savage, No. M2016-01373-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2017), plaintiff purchased a home from defendant in 1994. At the time, defendant told plaintiff that the home had been damaged by a fire started by the previous occupants, and plaintiff noticed “that the home’s kitchen cabinets were caramel color due to being heat scorched, and observed that the home had at least one burnt floor joist in the basement.” Plaintiff also had the home inspected by a professional home inspector at the time of the purchase.

After living in the home for 16 years, one of plaintiff’s children developed respiratory issues, which eventually led doctors to recommend that plaintiff clean the home with bleach in case environmental conditions were causing the child’s issues. During this cleaning, plaintiff discovered that the home had “extensive fire damage behind the refrigerator, behind the cabinets, in the walls, and charred flooring was also discovered beneath the linoleum that [defendant] installed.” Plaintiff further found that “the HVAC return was filled with soot.”

October 13, 2017

Negligent Weapon Storage and Failure to Prevent Suicide

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

Where a defendant knew of decedent’s past suicide attempt, knew she was suffering from depression, and knew he had just ended his relationship with her, the trial court was wrong to grant summary judgment on a negligence case related to him showing her an unsecured gun in his home to which she had access.

In In re Estate of Cotten, No. M2016-02402-COA-R3-CV (Tenn. Ct. App. Sept. 15, 2017), the personal representative of decedent’s estate brought suit against defendant for negligence based on “the defendant’s alleged acts of displaying and failing to properly store and prevent accessibility to the firearm with which decedent ultimately committed suicide.” Decedent was married and had a son when she met and began an affair with defendant. Decedent was a nurse at Skyline Hospital, and defendant was a psychiatrist there. Decedent divorced her husband in 2012, but she retained equal co-parenting time of her son. Two years after beginning the relationship, decedent moved in with defendant, at which time defendant admitted “observ[ing] that Decedent suffered crying spells and appeared to struggle with the loss of her job and eviction from her previous residence.” Decedent began seeing another psychiatrist at the hospital and was given medication for depression. Defendant was aware of decedent’s treatment.