Practice Tip

March 7, 2017

One Year Statute of Limitations Bars Misrepresentation Claims

In Sakaan v. FedEx Corporation, Inc., No. W2016-00648-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2016), the Court of Appeals affirmed dismissal of a misrepresentation claim based on the statute of limitations.

Plaintiff had previously been employed by defendant FedEx, and had been presented with a severance package as part of a cost-cutting initiative by the company. Before signing the severance agreement, plaintiff asked about how it would affect his ability to work on FedEx projects that were staffed by third-party vendors, and he “allege[d] he was assured that his acceptance of the severance agreement would not prohibit him from working on FedEx projects sourced through a third-party vendor.” Plaintiff signed the agreement in March 2013, officially left his employment in November 2013, and was hired by a company that contracted with FedEx. In his role with this new company, he attended a meeting at FedEx on December 19, 2013. When members of the FedEx legal team recognized him, they had him removed from the premises, and “he has not worked on a FedEx project since that time.”

Plaintiff filed suit on April 21, 2015, making claims for intentional and negligent misrepresentation. After filing their answers, defendants moved for judgment on the pleadings based on the statute of limitations, which the trial court granted. The trial court determined that the one-year statute of limitations found in Tenn. Code Ann. § 28-3-104(a)(1) applied to this matter, and that the claims were thus time-barred. The Court of Appeals affirmed.

August 30, 2016

Settlement of Personal Injury Cases for Minors in Tennessee

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

Tennessee law requires that personal injury cases for minors be approved by the court.

Tenn. Code Ann. § 29-34-105 provides:

(a) Notwithstanding any other law or rule to the contrary, a judge or chancellor may sign an order approving any tort claim settlement involving a minor that is less than ten thousand dollars ($10,000) by relying on affidavits from the legal guardian. The court shall conduct a chambers hearing at which the minor and legal guardian are present to approve any tort claim settlement involving a minor that is ten thousand dollars ($10,000) or more.

April 24, 2016

Public Duty Doctrine Gives Immunity to City When Suspect Stole Police Car

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

In Holt v. City of Fayetteville, No. M2014-02573-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2016), the Court of Appeals affirmed dismissal of plaintiffs’ claims due to the city’s immunity under the public duty doctrine, a key limitation of the Tennessee Governmental Tort Liability Act.

According to plaintiffs, a police officer had arrested a suspect and placed her in a police car, yet failed to property restrain her. The suspect then stole the police car, drove “at a high rate of speed,” and collided with the car carrying plaintiffs, causing one person to die and three minors to be seriously injured. Plaintiffs brought suit against the city based on the negligence of the police officer in failing to properly restrain the suspect as she was taken into custody.

The city moved for dismissal, which the trial court granted, finding that “although the GTLA removed immunity for negligent acts of employees, Plaintiffs’ claims against the City were barred by the public duty doctrine.” The Court of Appeals affirmed this holding.

On appeal, the Court first looked to the GTLA. As a municipality, the city was entitled to immunity under the GTLA unless the situation fit into one of the enumerated exceptions in the statute. Plaintiffs argued that immunity was removed under Tenn. Code Ann. § 29-20-202, which “removes sovereign immunity ‘for injuries resulting from the negligent operation by any employee of a motor vehicle…while in the scope of employment.’” The Court rejected this argument, noting that plaintiffs in this case “only allege that Police Officer negligently restrained [suspect] after her arrest.” The Court concluded that they were “unable to create a claim of negligent operation of a motor vehicle solely from an allegation that Police Officer negligently restrained [suspect].”

April 14, 2016

Claims Against an Employer Can Proceed Even After Employer Admits Vicarious Liability

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

The Tennessee Court of Appeals recently considered an issue of first impression in Tennessee—whether a plaintiff who sues an employee and employer for negligence can proceed on direct negligence claims against the employer after the employer admits that they are vicariously liable for the employee’s negligence. After considering arguments both ways, the Court determined that in Tennessee, “an employer’s admission of vicarious liability does not bar a plaintiff from proceeding against the employer on independent claims of negligence.”

In Jones v. Windham, No. W2015-00973-COA-R10-CV (Tenn. Ct. App. Mar. 11, 2016), employee, acting within the scope of her employment with a local daycare, was transporting kids in a van when she struck a minor child. The child’s mother, plaintiff, brought an action for negligence against employee, and also asserted claims for negligence per se, negligent hiring, and negligent retention against employers, as well as a claim for punitive damages against all the defendants. In their answer, employers conceded that they were vicariously liable for any negligence attributed to employee. Accordingly, employers moved for summary judgment on the direct negligence claims against them, arguing that Tennessee should adopt a rule adopted by other states “under which a plaintiff would be prevented from proceeding on any direct negligence claim against an employer once vicarious liability has been admitted.” The trial court granted summary judgment as to all direct negligence claims against the employer, though it denied summary judgment on the punitive damages claim. This Rule 10 appeal followed.

August 27, 2015

Summary Judgment Vacated Because Depositions Were Improperly Limited

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

In Evans v. Piedmont Natural Gas Co., Inc., No. M2014-01099-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2015), plaintiff asserted claims for property damage caused when sewage flowed into his home in 2013 allegedly due to a damaged sewer line. The undisputed facts in this case established that a gas line was installed on the relevant property in 1984 by Nashville Gas, that said gas line had not been repaired or serviced since 1984, and that no other “dig permits” had been issued for the property between 1980 and the 2013 sewage flooding. Plaintiff’s theory was that the sewage line was damaged during the gas line installation and that the gas company covered up the damage. The company who did the work in 1984 was Nashville Gas, which later merged into Piedmont Natural Gas Company, the named defendant.

Plaintiff in this case obtained a judgment in general sessions court, but on appeal to circuit court summary judgment was granted to defendant. As grounds for summary judgment, the trial court found that there was no evidence that the gas company “damaged the sewer line in question, repaired the sewer line in question or intentionally concealed any damage or repair[,]” that there was no proof that the alleged damage occurred during the gas line installation in 1984, and that there was no proof that the gas company “was ever aware of any damage to the sewer line at any time before 2013[.]” Further, the trial court found that the claim was barred by the four year statute of repose found in Tenn. Code Ann. § 28-3-202, which applies to improvements to real property. Finally, the trial court overturned the award of punitive damages to plaintiff, stating there was “no factual or legal basis for punitive damages here.”

August 13, 2015

Right of Non-Primary Residential Parent to Bring Claim for Child

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

The Court of Appeals recently addressed the issue of which claims a parent who is not the primary residential parent may bring when his or her child has been injured. In Neale B/N/F Russell v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV (Tenn. Ct. App. July 28, 2015), a child was injured at an activity at defendant’s facility. The mother and father initially filed a joint action as next friends of the child, but they voluntarily dismissed that case and father subsequently filed alone. Father, as next friend of child, sought damages for permanent impairment, paint and suffering, medical expenses, and loss of earning capacity. Pursuant to the family’s parenting plan, father was not the primary residential parent.

Defendants filed a motion for summary judgment asserting that father lacked standing to bring the claims. The trial court agreed and granted summary judgment, which the Court of Appeals reversed in part and affirmed in part.

Tenn. Code Ann. § 20-1-105(b) states:

In case the father and mother of the minor child are living apart and one parent has exclusive legal custody of the child, the parent with legal custody has the sole right to maintain an action for the expenses and the actual loss of service resulting from an injury to the child, except that the noncustodial parent in such case shall have a right to maintain or join an action brought under this section, for the expenses resulting from an injury to the minor child to the extent the noncustodial parent has paid those expenses.

June 15, 2015

Plaintiff Lacks Proof of Notice of Dangerous Condition – Case Dismissed

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

In Palmer v. Kees, No. E2014-00239-COA-R3-CV (Tenn. Ct. App. June 1, 2015), a recent premises liability case, plaintiff leased an apartment from defendant and sued defendant for injuries sustained when a board on the stairs leading from the apartment to the ground collapsed. The deck and stairs at the apartment had been built two days before plaintiff began his lease on March 1, 2011. According to plaintiff, during the fall of 2011 he complained to defendant landlord about some wood boards on the deck and stairs that were warped. Defendant hired a repairman to fix the warped boards, and the repairman stated that he left the deck and stairs in good condition. Plaintiff’s fall occurred on April 30, 2012, and he did not present any evidence that he informed defendant about problems with the stairs between the repair and the fall or that defendant otherwise had knowledge of any alleged problems preceding the fall.

April 7, 2015

Personal Injury Plaintiff Wins Summary Judgment

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

Although summary judgment is often thought of as a tool for defendants, plaintiffs in personal injury cases should remember that motions for summary judgment can be beneficial and successful for them as well. In Bloomfield v. Metro. Govt. of Nashville and Davidson Co., No. M2014-00438-COA-R3-CV (Tenn. Ct. App. March 26, 2015), plaintiff was a firefighter employed by Metro. He responded to a call regarding an elderly patient who was in a wheelchair. When a paramedic arrived to assist in moving the patient, the plaintiff and the paramedic moved the patient in the wheelchair towards the door of the home, where they realized that the patient would have to be lifted to clear a door threshold and step down. Plaintiff was at the head of the chair while the paramedic was at the foot. Plaintiff told the paramedic to hold on a second and turned to get information from family members, but the paramedic lifted the foot of the wheelchair without communicating to plaintiff first. When plaintiff saw that the chair was about to tip backwards he grabbed it, injuring himself.

Because the paramedic was also employed by Metro, plaintiff sued Metro for the injuries he alleged to have sustained due to the paramedic’s negligence. Plaintiff used the deposition testimony of several Metro employees to show that there was a standard for lifting a patient in a wheelchair and that the person at the head of the wheelchair was responsible for initiating the lift. Further, plaintiff used the paramedic’s own deposition testimony, wherein he admitted that he violated procedure by lifting at the foot before everyone was ready. Relying on these facts, plaintiff successfully moved for summary judgment as to liability for the paramedic’s negligence, and a trial was conducted on damages only, wherein plaintiff was awarded the maximum amount allowed under the Governmental Tort Liability Act.

March 31, 2015

New Local Rules in Tennessee’s 23rd Judicial District

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

The judge’s in Tennessee’s 23rd Judicial District – Cheatham, Dickson, Houston, Humphreys and Stewart Counties – have adopted new rules of court for the circuit and chancery courts.

Among the new rules is a requirement that all civil cases except appeals from the general sessions court be mediated before they can be set for trial. Rule 3.04.

September 28, 2012

Best Practices for Defense of Corporate Depositions

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

The Spring 2012 edition of FDCC Quarterly has an article titled "Best Practice for Defense of Corporate Depositions." The article is written by a Senior General Attorney for BNSF Railway Company, Mr. Thomas R. Jayne.

Those of us who are usually take depositions of corporate representatives will find the thought process of corporate defense counsel interesting and helpful.