Miscellaneous

November 6, 2016

Lawyer Wisely Drops Chicken-Choking Case

Lawyer Paul Newton of Gulfport, Mississippi filed a lawsuit against Popeye’s for not supplying him with a knife in his take-out chicken bag. He says the lack of a knife (he did receive a spork) caused him to use his teeth to tear the chicken from the bone when he was consuming it back at his office. According to the complaint, he choked on a piece of chicken.

Newton later dismissed the case, reportedly because of “extreme comments directed to me and my family.”

Newton’s unclaimed Avvo profile indicates that he has been practicing law for 35 years.

October 23, 2016

Upcoming Seminar – Justice Programs

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

Justice Programs will present its annual seminar program in Knoxville, Nashville and Memphis in a few weeks. Former Justice Penny White and former Judge Joe Riley and I started this seminar over a decade ago. Famed mediator Howard Vogel joins us as a participant this year.

I will be speaking about torts, comparative fault, and preparation for taking meaningful depositions. Other topics are listed on the Justice Programs website. Fifteen continuing legal education credits (which includes four ethics / professionalism / dual credits) will be awarded for those that attend the entire program

Hundreds of people attend this program every year, many coming year after year. Please join us in

August 24, 2016

Changing Times for Personal Injury Lawyers

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

Earlier today I received this email from a law firm:

I was looking at your website and noticed that you handle product liability cases. We (XXXXXX) are a co-counsel/case acquisition firm. There may be some synergy between our two firms worth exploring. I have some time Thursday or Friday for a brief chat. Let me know your thoughts.

(Emphasis added.)

August 23, 2016

Plaintiff Permitted to Proceed on Multiple Theories of Liability

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

In Commercial Painting Co., Inc. v. The Weitz Co., LLC, No. W2013-01989-COA-R3-CV (Tenn. Ct. App. June 20, 2016), the Court of Appeals reversed a trial court’s grant of summary judgment on claims for negligent and intentional misrepresentation.

Plaintiff was a drywall subcontractor, and defendant was a general contractor with whom plaintiff had entered into an agreement to perform work on a construction project. According to the complaint, plaintiff alleged that:

Defendant had revised the project schedule with the project owner to show that a longer construction timeline was needed, yet the “out-of-date and erroneous schedule” was used when negotiating with plaintiff;

June 6, 2016

Proof of Actual Malice in False Light Case

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

A recent Court of Appeals case serves as a reminder of the difficulty of proving actual malice in a false light claim made by a public official.

In Eisenstein v. WTVF-TV, No. M2015-00422-COA-R3-CV (Tenn. Ct. App. May 3, 2016), plaintiff was a Davidson County General Sessions Judge suing a TV station and various reporters regarding a story aired in 2011. The story focused on whether plaintiff “hired an unlicensed individual to act as a psychologist for the drug court program.” The Court of Appeals opinion contained a transcript of the broadcast, which revolved around a Dr. Casey who was paid by the drug court and allegedly held out to some drug court defendants to be a psychologist, but who was not in fact licensed as a psychologist in Tennessee. The report included a statement that plaintiff judge “wanted to put Casey on staff using federal money, writing in this memo that Casey had proven himself an excellent psychologist.” The broadcast showed the reporter approaching plaintiff judge, and plaintiff not answering questions posed by the reporter.

Plaintiff argued that the “broadcast placed him in a false light by implying that he lied on a federal grant application and by indicating that he was uncooperative.” Because plaintiff was a public figure, he had to show actual malice to prove his false light claim, and defendants moved for summary judgment on the basis of plaintiff’s inability to make such a showing.

June 3, 2016

No Reasonable Reliance in Money Washing Scheme

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

In a 40-plus page opinion that reads like a prince-handing-out-gold email scam, the Tennessee Supreme Court affirmed a trial court’s judgment that a plaintiff had not proven intentional misrepresentation because his reliance on the statements made could not possibly have been reasonable.

In Estate of Lambert v. Fitzgerald, No. E2015-00905-COA-R3-CV (Tenn. Ct. App. April 28, 2016), plaintiff had known defendant attorney for over forty years. Defendant somehow became involved with an “investment” scheme wherein he was promised astronomical returns on his money. Defendant was giving large sums of cash to a “diplomat” in London, who had obtained possession of six crates containing a total of $150,000,000 in U.S. currency from a man in South Africa. The money, though, allegedly had to be washed and go through various other procedures to be released. Upon its release, defendant said he had been promised $25,000,000. At some point, defendant got plaintiff involved with the promise that plaintiff too would receive $25,000,000, and plaintiff began writing large checks to defendant when asked to do so for the investment. The head of this investment scheme, Brindley, kept giving reasons it failed to close when promised—an additional license was needed, the money had to be moved to a mint in Scotland, he had to get an anti-terrorism certificate from the government—and asking for more money to help accomplish the eventual release of the cash. All information plaintiff received about the investment came from defendant, and plaintiff only spoke to Brindley two times on the phone. Even after multiple promised payout dates fell through, plaintiff continued to give more money to the scheme. Plaintiff ultimately “invested” more than $500,000 in the scheme through defendant, and defendant alleged that he invested $517,000 of his own money as well.

April 5, 2016

2016 Day on Torts Book Supplement Available

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

Day on Torts: Leading Cases in Tennessee Tort Law is in its third edition, and now that edition is being supplemented with a 300+ page volume.

The 650+ page third edition of the book contains a ready reference to hundreds of leading Tennessee tort cases, organized by subject. The 2016 supplement adds eight new chapters, 91 new sections, and over 160 new cases. Some cases which I previously designated as “leading cases” have been supplanted by other, more recent decisions.

I compiled the cases for this book to give Tennessee tort lawyers and judges an easy way to find the leading case on any particular tort law subject, giving them a starting place for more in depth research.

January 7, 2016

Gross Negligence Affirmed where Advertisement Misrepresented Mini Storage

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

In Kuhn v. Panter, No. M2015-00260-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2015), the Court of Appeals affirmed a finding of gross negligence against the owners of a mini storage facility.

Here, defendants had advertised the mini storage facility as “clean and dry.” Plaintiffs rented one of the units in 2011 and stored many personal belongings there, including photographs, a family Bible, clothes and furniture. In May 2013, plaintiffs found that their unit had flooded and ruined all of their personal property.

Plaintiffs filed suit in sessions court and were awarded a judgment there, which defendants appealed to circuit court. During a bench trial, the evidence showed that the building had “drainage issues” during construction and the city issued a stop work order on it. Moreover, when the building was eventually completed, there was never a final inspection by the city and a certificate of occupancy was never issued. A witness for plaintiffs testified that the building housing their storage unit was “eleven inches lower than the surrounding storage buildings.” Further, it was shown that an “agent [of defendants] testified in a prior hearing that the unit rented to [plaintiffs] had flooded on a prior occasion.” Based on these facts, the trial court found defendants had committed gross negligence, and the Court of Appeals affirmed.

December 8, 2015

Parents Win Dismissal of Case For Allowing Minor Daughter to Drive ATV

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

In Ward v. Ward, No. M2014-02237-COA-R3-CV (Tenn. Ct. App. Oct. 30, 2015), plaintiff sued for injuries her daughter sustained in an ATV accident. Daughter, who was 15 years old, was staying with her step-grandmother, the defendant in this action. Defendant gave daughter permission to drive defendant’s ATV to accompany defendant’s nephew as he drove a friend home. The destination was approximately one mile from defendant’s home. Daughter’s friend rode on the ATV with her. Daughter drove to the destination, but before returning to defendant’s home daughter switched with her friend and her friend drove on the return trip. The friend failed to make a turn and drove the ATV off a cliff.

Plaintiff asserted several theories of liability, but the only claims at issue on appeal were for negligent entrustment and negligent supervision. The trial court granted summary judgment to defendant on both of these claims, and the Court of Appeals affirmed.

To prove negligent entrustment, “a plaintiff must demonstrate that (1) a chattel was entrusted, (2) to a person incompetent to use it, (3) with knowledge that the person is incompetent, and (4) that its use is the proximate cause of injury or damage to another.” (internal citation omitted). Defendant first asserted that she was entitled to summary judgment because she only entrusted the ATV to daughter, not to the friend. Defendant pointed to testimony given by daughter in her first deposition where she testified that Defendant told her to drive. Plaintiff refuted this fact, though, with evidence that during daughter’s second deposition she testified that defendant did not specify who was supposed to drive, and that defendant told daughter and friend that “they” could use the ATV. The Court found that this evidence created a genuine issue of material fact, so summary judgment was not appropriate based on the argument that defendant did not entrust the ATV to the friend.

November 29, 2015

On Eulogies and Obituaries

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

Keith Lee at Associate’s Mind has a great post titled “Do You Feed Your Resume or Your Eulogy?” He was inspired to write the post by this column written by David Brooks.

Keith starts his post with these words from Brocks’ column: “It occurred to me that there were two sets of virtues, the résumé virtues and the eulogy virtues. The résumé virtues are the skills you bring to the marketplace.”The eulogy virtues are the ones that are talked about at your funeral ….”

Both the column and the post are worth the read. About ten years ago I started moving down the “eulogy” path, deciding I would not undertake any new professional association, etc. work unless it was something I wanted to do and wanted in my obituary. There are just too many demands and too little time. As a result, I have turned down many opportunities that were presented to me but have managed to spend more time with my family and on my practice.