Articles Posted in Miscellaneous

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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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.”

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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.

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.”

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.

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