Day on Torts

October 10, 2014

Trial Court’s Evidentiary Rulings Given Great Deference on Appeal

In Bilbrey v. Parks, No. E2013-02808-COA-CV (Tenn. Ct. App. Sept. 29, 2014), a negligence case arising from a car accident, the Court of Appeals recently addressed two evidentiary issues. Plaintiff, her aunt, and her boyfriend were in plaintiff’s car when it ran out of gas. The car was pushed onto the side of the road, though not completely off of it. While the boyfriend and aunt had gone to get gas, defendant came along and collided with plaintiff’s car. The incident occurred at night. Plaintiff brought a negligence action against defendant, and defendant counterclaimed asserting plaintiff’s negligence. At trial, the jury found both plaintiff and defendant to be 50% at fault. Subsequently, plaintiff appealed two evidentiary rulings made by the trial court.

First, plaintiff asserted that the trial court should not have allowed the boyfriend’s deposition to be read into evidence by defendant. Plaintiff pointed out that defendant had not subpoenaed boyfriend within the timing specified by local rules, and more importantly, that the evidence presented to show that boyfriend was unavailable by being more than 100 miles from the courthouse was insufficient. The unavailability evidence was fraught with layers of hearsay, and boyfriends’“unknown, unproven, and in dispute.”’s deposition should not have been admitted, it was a harmless error, as the deposition testimony was “almost entirely consistent with, and cumulative to, that of”’s deposition and the in-court testimony of other witnesses did not result in the admission of the deposition being prejudicial to plaintiff.

Second, plaintiff objected to the testimony of a state trooper who listened to a voice mail from plaintiff to her boyfriend on plaintiff’s phone when he arrived at the scene. According to his testimony, plaintiff told her boyfriend on that message that the emergency lights had either gone out or were going low. In affirming the trial court’s decision to allow the trooper to testify regarding the voicemail, the Court addressed three major points. One, plaintiff and her boyfriend had both testified that the phones containing this message were either lost or destroyed. Defendant, therefore, could rely on Tenn. R. Evid. 1004 and did not have to produce the original recording. Two, although the trooper had never heard plaintiff’s voice prior to listening to the voicemail, he spoke with her soon thereafter and testified that he recognized the voices as the same. The Court found that this was enough to satisfy the voice identification requirements of Tenn. R. Evid. 901. Three, plaintiff asserted that this statement did not fall under the party-opponent admission exception to the hearsay rule as it was not a statement against plaintiff’s interest. The Court rejected this argument, noting that any statements by a party, whether against that party’s interest or not, may be used by the opposing party. Accordingly, the Court of Appeals affirmed the trial court’s judgment.

September 22, 2014

Tennessee Made-Whole Doctrine

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

The Belmont Law Review published an article I wrote about the made-whole doctrine in its inaugural issue. Here is a description of the article.

This Article proposes the adoption of the “Modified Made-Whole Doctrine Proposal." Part I begins by explaining the roots of the law of subrogation rights and its current jurisprudential inconsistencies. It also explores the relationship between such subrogation rights and the made-whole doctrine in the context of Tennessee tort law as well as how this doctrine would be applied in Tennessee today. Part II briefly outlines some of the general questions regarding Tennessee’s current application of the made-whole doctrine, particularly the unresolved issues surrounding the impact of comparative fault on subrogation rights. These are questions which the author’s suggested Proposal is designed to directly address. The detailed framework of this Proposal, including its five fundamental Principles and their underpinning rules, are set forth at length in Part III. Finally, Part IV concludes by analyzing the practical application of this Proposal throughout the various stages of the litigation process and offers guidance to judges, attorneys, and litigants alike as to how such subrogation disputes can be equitably resolved. In sum, the Modified Made-Whole Doctrine Proposal is meant to provide for the efficient, just application of the made-whole doctrine to subrogation interests with respect to Tennessee’s law of comparative fault.

It is available for download here:

September 19, 2014

Defamation and Public Figures in Tennessee

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

The recent opinion in Byrge v. Campfield, et al., No. E2013-01223-COA-R3-CV (Tenn. Ct. App. Sept. 8, 2014) serves as a good reminder of Tennessee defamation law involving a public figure.

In October 2008, Stacey Campfield, then a Republican State Representative for Tennessee’s 18^th District, posted on his political blog an entry about the 36^th State House District race featuring Democrat Roger Byrge. Campfield’s blog entry alleged that Byrge had a drug-related arrest record. The blog post stated, in part:

Word is a similar mail piece has gone out exposing Byrges multiple separate drug arrests. Including arrests for possession and drug dealing. (I hear the mug shots are gold).

September 17, 2014

Tolling Agreements, The Savings Statute and Tennessee Law

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

The Tennessee Court of Appeals recently issued an important decision regarding the interplay between the savings statute and tolling agreements. The facts of Circle C Const., LLC v. Hilson, M2013-02330-COA-R3-CV (Tenn. App. Jul. 29, 2014), are a bit convoluted but critical to understanding the case.

Plaintiff had a judgment entered against it by a trial court. While appealing the judgment, Plaintiff entered a tolling agreement on a potential legal malpractice claim against Defendant, who was Plaintiff’s attorney in the underlying case. The tolling agreement specified the date that the statute of limitations would run – one year from the trial court’s judgment – but gave Plaintiff until 120 days after an appellate ruling in order to file any legal malpractice claim. In pertinent part, the tolling agreement stated, “[i]f Plaintiff desires to assert claims for professional negligence, it must do so on or before” 120 days after the appellate court issued its opinion.

After the tolling agreement was entered, things get strange:

September 15, 2014

Claim Washed Down the Drain By Tennessee Statute of Repose and Lack of Constructive Notice

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

Tthis is a premise liability case arising from the collapse of a bench in a handicap shower at the defendant’s hotel. Upon checking into their handicap room at the Holiday Inn Express, the Parkers noticed the bench in the handicap shower appeared to be loose. The brackets were pulled away from the wall a bit and the bench itself was shaky when pressed on. The Parkers reported the problem, and the hotel’s maintenance man tightened the bolts. Both the maintenance man and the Parkers testified the tightening of the bolts on the bracket appeared to fix the problem as the bench was no longer wobbly and the brackets were flush with the wall.

The next morning, Mr. Parker transferred himself from his wheelchair on to the shower bench. Approximately 10 minutes into his shower, the bench collapsed and Mr. Parker struck the floor. Ultimately, Mr. Parker was diagnosed with compression fractures at T-7, T-8 and T-9. Mr. Parker also alleged that as a result of the fall and his spinal injuries that he suffered more frequent and more severe pressure sores, urinary tract infections and bladder pain.

The Parkers filed suit against Holiday Inn Express. The hotel answered and alleged the comparative fault of D & S Builders. D & S Builders had constructed the hotel and had installed the shower benches in the handicap rooms of the hotel. D & S Builders was dismissed due to the four year statute of repose for negligent construction claims. In this case, the certificate of occupancy had been issued on July 31, 2006 and suit was not filed until May of 2011.

September 11, 2014

When is a Summons and Complaint “Unclaimed” Under Tennessee Law?

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

The Tennessee Court of Appeals recently issued an opinion dealing with a circumstance when service of process was designed “unclaimed” by the U.S. Postal Service. In Goodman v. Ocunmola, No. E2014-00045-COA-R3-CV (Tenn. Ct. App. Sept. 4, 2014), wife sued husband for divorce and served husband with a summons and complaint through the Tennessee Secretary of State because husband lived in Kentucky. The Postal Service attempted to deliver the summons and complaint, sent via certified mail, on three separate occasions before returning the certified mail as “unclaimed.” Wife moved for and was granted a default judgment when husband failed to appear and respond to the complaint.

About a month later, husband moved to set aside the default judgment entered against him, arguing that wife intentionally failed to include husband’s apartment number on the address label for the process server (i.e., the Postal Service), with the goal of obtaining a default judgment due to husband’s failure to respond to the complaint. Husband claimed he found out about the default judgment when he discovered a letter from wife’s attorney in the trash bin by his mailbox, which he assumed was thrown away because its address label also did not include husband’s apartment number. The trial court denied husband’s request to set aside the default judgment, and husband appealed.

The appellate record didn’t include a transcript or statement of the evidence, which the court initially noted had “frustrated” its review of husband’s appeal. As for the merits of the appeal, the court observed that Tenn. R. Civ. P. 4.05 states “the United States Postal Service notation that a properly addressed registered or certified letter is “unclaimed,” or other similar notation, is sufficient evidence of the defendant’s refusal to accept delivery.” Unfortunately for husband’s appeal, the limited record was basically reduced to the fact that after making three attempts to serve the summons and complaint, the Postal Service declared the certified mail as “unclaimed.” Contrary to husband’s suggestion that the lack of an apartment number inhibited service of process, the certified mail containing the summons and complaint was not found in a trash can near the mailbox (like the letter from wife’s attorney) or returned as undeliverable because the address was insufficient. Instead the notice contained the husband’s correct name and correct apartment complex address, and the “unclaimed” designation by the Postal Service was sufficient to effectuate proper service. Accordingly, the court of appeals held that the trial court did not abuse its discretion in denying husband’s motion to set aside the default judgment.

September 10, 2014

Tennessee Tort Buffet

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

The recent Tennessee Court of Appeals opinion n Davis v. Covenant Presbyterian Church discussed a host of issues.

What is Required to Properly Allege Vicarious Liability?

The Court of Appeals affirmed dismissal of vicarious liability claims against two religious organizations (one unincorporated and one a nonprofit corporation). The plaintiffs’ allegations against both organizations were essentially that each defendant existed under the laws of a state and had a principal place of business there, and had “actual and/or apparent authority” over another corporation, Covenant. The plaintiffs’ complaint did not explain how either defendant had authority over Covenant or anything else factual to create a principal/agent relationship with Covenant. Nonetheless, the plaintiffs alleged that both of the religious organization defendants were vicariously liable for Covenant and all of Covenant’s employees and agents. Because the plaintiffs’ complaint lacked any factual basis for asserting vicarious liability, the Court of Appeals affirmed dismissal of both religious organizations.

September 8, 2014

What Happens After A Default Judgment is Entered in Tennessee?

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

When a party pleads a prima facie cause of action and obtains a default judgment on liability, a damages inquiry should necessarily follow, and during the damages determination the trial court should not reconsider liability issues.

In Tennison Brothers, Inc. v. Thomas, No. W2013-01835-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2014), the Tennessee Court of Appeals held that a trial court erred when it refused to award damages to two parties who had already been granted default judgments on liability against a third party. The case involved a decade-old business dispute over rights to a state permit to construct a billboard on two adjacent properties fronting Interstates 40 and 240 in Shelby County, Tennessee.

In July 2008, Tennison Brothers, Inc. sued Clear Channel Outdoor (CCO) and William Thomas for breach of contract, intentional interference with business relationships, and inducement to breach a contract and intentional interference with a contract. In September 2008, CCO asserted a cross-complaint against Thomas alleging similar causes of action as Tennison. Highlights from the ensuing four years of litigation according to the appellate opinion include:

September 4, 2014

Injury and Wrongful Death Liability of Franchisors

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

Under what circumstances can a franchisor be held vicariously liable for torts that occur on the premises of a franchisee?

A relatively recent court opinion has an excellent discussion of the law in this area, addressing not only the law of the state where the cause of action arose (New Mexico) but also the law from around the nation. In Estate of Anderson v. Denny’s, 2013 WL 6506319 (D.N.M. Nov. 13, 2013) the court held that a genuine issue of material fact existed on the issue of whether the franchisor was vicariously liable for the franchisee’s alleged negligence, turning on the issue of right of control.

September 3, 2014

Tennessee Court Rules on Discovery of Income from Testifying Expert

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

This appeal arises from a medical malpractice case that went off the rails when the defense sought to discover financial information from plaintiff’s liability expert. On further consideration, since the procedural history involves four motions for sanctions, two trial continuances, a denied interlocutory appeal, a dismissal and this appeal, perhaps I should say the case went off the rails, down an embankment into a sewage-filled ditch replete with rats the size of small dogs.

It all started simply enough. Defense counel served a notice of deposition for plaintiff’s liability expert, Dr. Evans, and requested financial information. Specifically, the notice requested documents reflecting the income the good doctor had earned serving as an expert witness including his schedule of charges, all income received from reviewing cases, consulting or testifying for a 10 year period and 1099s and related documents showing his income for the same 10 year period. No objection was filed to the notice but Dr. Evans failed to bring them to his deposition. The deposition proceeded nonetheless and Dr. Evans was asked questions related to his income. Dr. Evans testified he did not know how much he earned annually from his work as an expert witness and could not even give an estimate. While he estimated 15 to 20% of his income was derived from his work as an expert witness, he could not provide any information as to the actual dollar amount.

Thereafter, a trial date was scheduled and the defense moved to compel production of the documents previously requested as part of Dr. Evans deposition. Plaintiff urged the trial court to deny the motion as the documents were not in her possession. Defense counsel insisted plaintiff could obtain the documents from her expert but asked the trial court to grant a motion for out-of-state subpoena if the trial court was inclined to deny the motion to compel. While plaintiff conceded the financial information was relevant on the issue of bias, plaintiff asked the court to balance the privacy interests of the expert. Ultimately, the trial court denied the motion to compel since the requested documents were not in the possession of the plaintiff but instructed defense counsel to file a petition for an out-of-state subpoena. The trial court suggested the scope of the subpoena should be reduced to a five year period instead of ten and also suggested the parties agree to the production of an affidavit from Dr. Evans’ accountant giving the information as opposed to the production of the underlying documents which contained other personal, financial information.