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April 20, 2023

Stats About Personal Injury and Wrongful Death Cases and Verdicts in Sumner County, Tennessee

Information is now available on the number of tort trials and jury verdicts in Sumner County, Tennessee (county seat: Gallatin) for the fiscal year ending June 30, 2022.

There were 236 personal injury and wrongful death cases closed in Sumner County (not including health care liability act cases) and 5 trials. Here is how that compares with prior years:

Of the five cases that were tried, two were jury trials and three were nonjury trials. . The plaintiff made a financial recovery in two of the five trials cases. Note: the fact that the plaintiff recovered in about 60% of the cases does not mean the plaintiff “won” about 40% of the cases. Why? Because we do not know whether the plaintiff’s recovery exceeded the pretrial offer. We can say that in Shelby County last year defendants received a defense judgment in about 60% of the cases that were tried. Here is the data in a graph:

April 18, 2023

Stats on Personal Injury and Wrongful Death Filings and Trials in Knoxville and Knox County, Tennessee

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

Information is now available on the number of tort trials and jury verdicts in Knox County, Tennessee for the fiscal year ending June 30, 2022.

There were 2164 tort cases closed in Knox County (not including health care liability act cases) and 40 tort trials. Here is how that compares with prior years:

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The number of trials – 40 – tells only part of the story, however. Some 29 of those trials were jury trials – the other 11 were tried to the court. The plaintiff made a financial recovery in 9 of those cases that were tried to a judge or jury. Note: the fact that the plaintiff recovered in about 25% of the cases does not mean the plaintiff “won” about 25% of the cases. Why? Because we do not know whether the plaintiff’s recovery exceeded the pretrial offer. We can say that in Knox County last year defendants received a defense judgment in about 75% of the cases that were tried. Here is the data in a graph:

April 14, 2023

Property owner defendants could not rely on statute of repose for defective improvements to real property.

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

The statute of repose for defective improvements to real property did not apply where defendants were the property owners of the pipe culvert at issue in the case.

In Clayton v. Dixon, No. M2021-00521-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023), plaintiff property owner sued defendants, who owned the adjacent property, “for damages allegedly caused by the installation of a pipe culvert.” Plaintiff asserted that the pipe culvert was improperly installed in 2011 and caused flooding on his property.

Plaintiff filed suit in 2019 for negligence, nuisance, and trespass. The parties entered into a settlement agreement whereby defendants installed a larger pipe, but plaintiff refused to dismiss the suit after this pipe installation. Defendants then filed a motion to dismiss as well as a counterclaim seeking specific enforcement of the settlement agreement. The parties then filed cross-motions for summary judgment, with plaintiff arguing that he was entitled to summary judgment because defendants had “violated the codes when they installed the pipe culvert,” and defendants asserting that plaintiff’s claim was barred by the statute of repose. The trial court found that “the statute of repose for defective improvements to real estate barred [plaintiff’s] action” and granted summary judgment to defendants. On appeal, summary judgment was reversed.

April 12, 2023

HCLA dismissal affirmed based on plaintiffs’ failure to name governmental employer as defendant.

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

In an HCLA case where plaintiff named a physician employed by a governmental entity as a defendant but did not name the governmental entity, dismissal was affirmed. Further, plaintiff’s motion to amend to name the governmental entity was properly denied as futile where plaintiff did not give pre-suit notice to the governmental entity and, therefore, the claim against the governmental entity would be time-barred even if it related back to the filing of the complaint.

In Fisher v. Smith, No. W2022-00779-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023), plaintiff’s HCLA claim arose from an abdominal surgery she had at a hospital in March 2020. Dr. Smith was the surgeon and was an employee of West Tennessee Medical Group (WTMG), which was a governmental entity. Until a year before the surgery at issue, Dr. Smith had been an employee of Jackson Surgical Associates, P.A. (JSA), but in March 2019 WTMG acquired JSA, thereafter operating the practice as Jackson Surgical Associates with no P.A. as part of the name.

In February 2021, plaintiffs sent pre-suit notice to Dr. Smith, JSA, the surgical center and the hospital, and amended pre-suit notices were sent to the same entities on March 1, 2021. No pre-suit notice was sent to WTMG. Dr. Smith, JSA, and the hospital responded to their notices “by informing the [plaintiffs] that Dr. Smith was employed by WTMG and not JSA and that WTMG was a governmental entity.” When plaintiffs filed their suit in June 2021, however, they named Dr. Smith and JSA as defendants.

April 5, 2023

No certificate of good faith required for HCLA case that falls under common knowledge exception.

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

Where plaintiff alleged that the nursing facility she lived in gave her a defective shower chair, and the broken wheel lock and torn netting on the chair caused her to fall and be injured, no certificate of good faith was required due to the common knowledge exception to Tennessee’s health care liability (historically referred to as “medical malpractice”) law.

In Mears v. Nashville Center for Rehabilitation and Healing, LLC, No. M2022-00490-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2023), plaintiff was a resident at defendant skilled nursing facility. Defendant’s policy required residents to use a shower chair when showering, and plaintiff was provided such a shower chair. According to plaintiff, the shower chair she was given was defective because the wheel lock did not work and the netting was torn. While showering, plaintiff fell out of the chair and was injured.

Plaintiff filed this suit against defendant asserting various acts of negligence. Plaintiff did not, however, provide pre-suit notice or a certificate of good faith under the HCLA, and defendant filed a motion to dismiss on that basis. The trial court agreed that the case fell within the HCLA and dismissed the suit without prejudice due to plaintiff’s failure to provide pre-suit notice. The court ruled, however, that the claims did “not require expert medical testimony and came within the common knowledge of laymen and, therefore, that a certificate of good faith [was] not required.” The trial court thus refused defendant’s request to dismiss the case with prejudice, which was affirmed on appeal.

March 18, 2023

Stats on Davidson County, Tennessee Tort Trials and Verdicts

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

Information is now available on the number of tort trials and jury verdicts in Davidson County, Tennessee for the fiscal year ending June 30, 2022.

There were 1883 tort cases filed in Davidson County (not including health care liability act cases) and 41 tort trials. Here is how that compares with prior years:

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Note that barely 2% of all filed cases are tried to judgment, a number which is generally consistent with past years. When your client asks you “what are the odds my case will go to trial” you can say that, on average 98% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

March 2, 2023

New Books Available – Appellate Standards of Review in Civil and Criminal Cases

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

I am happy to report that BirdDog Law is now offering two new books – Grading Papers – Civil and Grading Papers – Criminal. The books help lawyers quickly identify the applicable standard of review of multiple civil and criminal law issues.

Why does a trial lawyer care about appellate standards of review? Well, sometimes trial lawyers handle appeals. And, even if a trial lawyer never handles an appeal knowing the standard of review will help you advise your client on the appealability of an adverse decision and help you better pick your battles with our opponent and the trial judge.

And, using one of our Grading Papers books also gives you a leg up on legal research. How? If you find the standard of review in this book, the opinion (links included) will lead you to a discussion of the law on the subject. The latest law on the subject, because all opinions referenced are from January 1, 2022 or later (some TSC opinions that are cited are older).

February 10, 2023

TBA Journal Article – Defamation Cases: Yet Another Landmine

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

Those of you interested in the filing a defamation case may want to review my latest article: Defamation Cases: Yet Another Landmine.

January 26, 2023

Apartment that failed to maintain wooden bridge liable to tenant in premises liability suit.

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

A premises liability judgment for plaintiff was affirmed where plaintiff slipped and fell on a wooden bridge at defendant apartment complex, representatives of defendant had stated that the standard of care required that the bridge be power washed at least annually, and the evidence showed that the bridge had not been power washed in at least several years.

In Trentham v. Mid-America Apartments, LP, No. M2021-01511-COA-R3-CV, 2023 WL 163547 (Tenn. Ct. App. Jan. 12, 2023), plaintiff was a tenant in defendant’s apartment building. Plaintiff’s building was connected to the clubhouse fitness facility by a wooden bridge. On the day of plaintiff’s injury, it had rained the night before and was possibly still drizzling. Plaintiff used the bridge to access the fitness room, and when walking back across the bridge after his workout, plaintiff slipped on what he described as a clear, slippery substance that was “obviously not just water.” Plaintiff could not get his footing to stand up, and an employee of defendant could not get plaintiff back to his feet, so an ambulance was called.

Plaintiff’s fall caused severe injury to his left quadriceps tendon, requiring surgery. The first surgery was unsuccessful, and plaintiff underwent a second revision surgery. That surgery was also unsuccessful, and at the time of the trial plaintiff was left with permanent disability from the incident.