Tort Law Tidbits

February 13, 2020

Day on Torts Nugget: Reliance on the Savings Statute after a Voluntary Dismissal

Tennessee law will permit a plaintiff who properly voluntarily dismisses a suit in state to timely re-file it and avoid a statute of limitations defense, but the correct procedure must be followed.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S .W.3d 710, 716-717 (Tenn.2002) tells us that “absent service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a plaintiff who has failed to serve process prior to the taking of the nonsuit in accordance with Rule 3 may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar of the statute of limitations.”

Rule 41.01, governing the taking of voluntary dismissals, provides that,

February 5, 2020

Day on Torts Nugget – 2019 Tennessee Trial Data Part 1

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

The number of trials in Tennessee state court continued to decline in 2019, although jury trials in Circuit Court ticked up slightly.

What follows is the number of jury and non-jury trials in Tennessee state courts for the indicated fiscal years (July 1 – June 30):

Year Chancery Non-Jury Chancery Jury Circuit Non-Jury Circuit Jury Total

January 25, 2016

Tolling Due to “Adjudicated Incompetent” Requires That There Was Judicial Intervention

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

In 2011, the Tennessee legislature amended Tenn. Code. Ann. § 28-1-106 regarding tolling of statutes of limitations, replacing the language “of unsound mind” and “after the removal of such disability” with “adjudicated incompetent” and “after legal rights are restored.” The current version of the statute reads:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person’s representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

Recently, the Tennessee Court of Appeals analyzed the meaning of this language change, marking the first time a state court has interpreted the new terms.

In Johnson v. UHS of Lakeside, LLC, No. W2015-01022-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff filed an HCLA claim related to her late husband’s fall at defendant’s facility. It was uncontested that she gave pre-suit notice more than one year after the cause of action accrued, and that she filed the complaint more than one year and 120 days after the same. Defendant moved to dismiss the claim based on the statute of limitations. Plaintiff opposed the motion on the basis that her husband met the criteria of § 28-1-106 and that the statute of limitations was thus tolled. The trial court dismissed the action, and the Court of Appeals affirmed.

September 8, 2009

Jury Selection – Exercising Preemptory Challenges

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

A couple years ago I wrote this post about how to exercise preemptory challenges. Last week, I got a call from a lawyer on this issue once again, and thought I should re-run it.

It is always a good idea to ask the trial judge at the pretrial conference or on the morning of trial how he or she handles peremptory challenges. But recall that Rule 47 of Tennessee Rules of Civil Procedure was amended in 2003 to address these issues.

Here is the entire text of Rule 47:

June 25, 2008

Tort Law Tibit – Negligence Per Se

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

What is the name of the case that tells us that violation of a statute is negligence per se? Cook By and Through Uithoven v. Spinnaker’s of Rivergate, 878 S.W.2d 934, 937 (Tenn. 1994). What about the violation of a regulation? Long by Cotton v. Brookside Manor, 885 S.W.2d 70, 73-74 (Tenn. App. 1994). An ordinance? Kim v. Boucher, 55 S.W.2d 551 (Tenn. App. 2001).

(Originally appeared May 39, 2005).

March 24, 2008

Use of Demonstrative Aids At Trial-Revisted

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

Did you know that there was a statute that permits you to use demonstrative aids during closing argument (and probably during opening statement as well)? Here is a statute for your trial notebook.

T.C.A. Sec. 20-9-303 permits a lawyer "to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury…." The statute prohibits a lawyer from making an argument "in writing" that could not properly be made orally.

I believe that Powerpoint constitutes a "similar device" in the 21st century. Therefore, if you get an objection like "she can’t use that Powerpoint presentation – its not in evidence" your argument is "I am permitted to illustrate my contentions under Sec. 20-9-303."

January 7, 2008

Evidence of Settlement

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

T.C.A. Sec. 29-11-105 (b) says as follows: "No evidence of a release or covenant not to sue received by another tort-feasor or payment therefor may be introduced by a defendant at the trial of an action by a claimant for injury or wrongful death, but may be introduced upon motion after judgment to reduce a judgment by the amount stipulated by the release or the covenant or by the amount of the consideration paid for it, whichever is greater."

Does this prohibit a defendant from introducing evidence of a settlement with another defendant but permit a plaintiff to do so (at plaintiff’s option)? If so, can the plaintiff introduce the fact of settlement, the amount of the settlement, or both?

January 3, 2008

Savings Statute for Dismissed Federal Court Actions

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

T.C.A. Sec. 28-1-115 gives a plaintiff who is bounced out of federal courts for lack of jurisdiction one year from the dismissal to re-file the action in state court.

Here is the exact text of the statute: "Notwithstanding any applicable statute of limitation to the contrary, any party filing an action in a federal court that is subsequently dismissed for lack of jurisdiction shall have one (1) year from the date of such dismissal to timely file such action in an appropriate state court."