Miscellaneous

June 14, 2018

Duty of Care Exists Even in Dangerous Sporting Activities

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.

October 2, 2017

Rape Victim Not Limited to Workers’ Compensation Claim

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

When a restaurant manager who was working in a locked back office was raped after a robbery, the injuries did not arise out of her employment and she was not limited to a workers’ compensation claim.

In Doe v. P.F. Chang’s China Bistro Inc., No. W2016-01817-COA-R9-CV (Tenn. Ct. App. Aug. 29, 2017), plaintiff brought suit after being raped in the restaurant’s office. Plaintiff was a hospitality manager at defendant restaurant, and on the night of the incident “she was in the restaurant’s office performing closing procedures with the door to the office locked.” She answered a knock on the door, and a masked man entered the office, had her open the office safe, took the money from the safe, then moved her to a chair, restrained her and raped her. The man was later identified as a restaurant employee who had left work that evening, “jammed the emergency door to prevent it from closing,” and changed in his vehicle before committing the robbery and rape.

Plaintiff brought suit against defendant restaurant for various tort claims, including intentional and negligent infliction of emotional distress, negligence, negligent hiring, intentional misrepresentation, misrepresentation by concealment, vicarious liability, and constructive discharge. Defendant moved for summary judgment, arguing that “[b]ecause Plaintiffs’ claims arose out of and in the course of her employment, workers’ compensation [was] Plaintiffs’ exclusive remedy against P.F. Chang’s.” The Trial court denied the motion, and the Court of Appeals affirmed.

September 18, 2017

No Invasion of Privacy When Information Was Already Public

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

A plaintiff cannot claim invasion of privacy based on information that she herself has already disclosed in a public filing.

In Graham v. Archer, No. E2016-00743-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2017), the Court of Appeals affirmed dismissal of an invasion of privacy case. A pro se plaintiff had previously filed an HCLA case against defendants, which was ultimately dismissed. In that case, plaintiff alleged that defendants had failed to provide her with requested medical records, and the defendants responded with affidavits “demonstrating that they had complied with or attempted to comply with each of [plaintiff’s] requests for medical records.” These affidavits were the basis for plaintiff’s subsequent invasion of privacy suit. Plaintiff argued “that, by filing the affidavits, the defendants disclosed her name, address, telephone numbers, and the identity of, and contact information for, her physicians,” constituting an invasion of privacy.

The trial court dismissed the case, finding that plaintiff had no reasonable expectation of privacy for this information because it was contained in pleadings she herself had filed in the HCLA case. That holding was affirmed by the Court of Appeals.

August 22, 2017

No Negligent Misrepresentation Claim Based on Future Event

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

In Jones v. BAC Home Loans Servicing, LP, No. W2016-00717-COA-R3-CV (Tenn. Ct. App. July 12, 2017), the Court of Appeals affirmed dismissal of a negligent misrepresentation claim.

Plaintiffs were the borrowers on a valid and enforceable mortgage, which was held by defendant. Plaintiffs were in default and had received a notice of foreclosure stating that “they were in arrears in the amount of $9,000.00.” Plaintiffs allege that plaintiff husband spoke with a representative from defendant by phone and offered to pay $7,800 by the end of the week, and that the representative “informed him that if he sent a payment of $6,000.00 he would qualify for a six-month repayment plan that would stop the foreclosure sale.” Plaintiff husband stated that he attempted to wire two separate payments totaling $6,000 to defendant, but that the transfers were declined. The foreclosure proceeded, and plaintiffs filed this action.

Plaintiffs asserted various contract-based claims as well as a claim for negligent misrepresentation. The trial court dismissed all the claims pursuant to defendant’s motion for summary judgment, and the Court of Appeals affirmed.

August 9, 2017

Special Duty Doctrine Applied Against 911 Agency in Suicide Case

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

In Ramsey v. Cocke County, Tennessee, No. E2016-02145-COA-R3-CV (Tenn. Ct. App. June 23, 2017), plaintiff sued the county, the police department, and the county emergency communications district for wrongful death after her daughter committed suicide. The trial court granted summary judgment to defendants, but the Court of Appeals reversed, holding that “the decedent’s suicide was foreseeable and that the special duty exception to the public duty doctrine applie[d].”

According to plaintiff, she called 911 around 8:30 p.m. one night because her daughter was exhibiting “unexplained serious mental and behavioral” issues and was indicating that she was going to commit suicide. Plaintiff asserted that she told the 911 operator that her daughter was threatening suicide and asked for police assistance, but that the operator refused to send police because “it was not their policy to respond to domestic family issues.” Plaintiff called again around 9:15 and was denied police assistance a second time, and plaintiff was transferred to an officer who allegedly affirmed that it was “not their policy to send responders in situations like this.” Because the operator had refused to dispatch an officer, plaintiff stated that she drove to the police department, but that the doors were locked and she could not find an officer. When plaintiff returned home, her daughter had committed suicide.

Plaintiff filed suit for wrongful death, and the defendants disputed plaintiff’s version of the facts. Defendants denied that plaintiff requested an officer or that she told them that her daughter was contemplating suicide. Defendants filed a motion for summary judgment on the basis that they “did not owe plaintiff a duty of care pursuant to the public duty doctrine” and that the suicide was “an intervening and independent cause which supersedes any liability and is the proximate cause of the death of the decedent.” The trial court granted the summary judgment, finding that the suicide here was an intervening cause, but the Court of Appeals reversed.