Day on Torts

May 13, 2014

You’ll Get Nothing and Like It!

It is a classic line in the movie Caddyshack, but it quickly sums up the end result in this case too. This is a two car, intersection case in which both drivers sought damages from the other. After a two day trial, the jury returned a verdict finding both the plaintiff and the defendant 50% at fault. Plaintiff filed a motion for new trial which was denied. An appeal followed.

The following relevant facts were established at trial:

1. Plaintiff was traveling south on U.S. 11-E with the intention of turning right on Allison Road.

May 12, 2014

How NOT to Handle an ERISA Subrogation Lien

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

Georgia lawyer David T. Lashgari thought it was a good idea to distribute $500,000 in personal injury settlement proceeds knowing that there was an ERISA-protected subrogation interest for $180,000.

Then he thought it was a good idea to fight an effort by the subrogee to get the money from him and his client.

Then he thought it was a good idea not to obey a court order that required him and his client to put $180,000 into his trust fund pending final judgment in the case. (He said he and his client didn’t have the money.)

May 6, 2014

After this Case, the Wedding is Going to be Pretty Awkward

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

This is a slip and fall case. The plaintiff was engaged to the defendants’ daughter. On multiple occasions, the defendants had hosted the plaintiff at their lake home for extended visits. In the summer of 2010, the plaintiff was again the invited guest of the defendants. Shortly before his visit, the power company had cut down numerous trees and bushes on the property but failed to remove them. In an effort to make himself useful, the plaintiff began helping his fiance’s mother remove the brush and trees. While performing the work, the plaintiff slipped on a large rock on the ground and fell and broke his arm in two places. The following facts were not in dispute:

· The plaintiff had worked in that area for two or three days before the fall.

· The accident occurred in the daylight.

April 29, 2014

Tennessee Adopts Statute of Repose for Malpractice Claims Against Attorneys and Accountants

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

Effective July 1, 2014 state law will grant Tennessee lawyers and accountants a five-year statute of repose for malpractice claims. The only exception is for fraudulent concealment by the defendant, in which event the claim must be filed within one year of the date of discovery.

A one year statute of limitations still applies in malpractice cases against lawyers and accountants and the discovery rule is still applicable to those claims. However, the new statute of repose cuts off the right of the claimant five years after the negligent act or omission occurred (absent fraudulent concealment).

Presumably, the test for fraudulent concealment for accountants and lawyers would be the same as it is for physicians and other health care providers. Here is the test for health care providers: a plaintiff must establish that (1) the health care provider took affirmative action to conceal the wrongdoing or remained silent and failed to disclose material facts despite a duty to do so, (2) the plaintiff could not have discovered the wrong despite exercising reasonable care and diligence, (3) the health care provider knew of the facts giving rise to the cause of action and, (4) a concealment, which may consist of the defendant withholding material information, making use of some device to mislead the plaintiff, or simply remaining silent and failing to disclose material facts when there was a duty to speak." Shadrick v. Coker, 963 S.W.2d 726, 736 (Tenn. 1998).

April 25, 2014

New Notice Not Required for Second Filing of Medical Malpractice Case in Tennessee

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

In Tennessee, before a plaintiff may file a lawsuit for medical malpractice, he or she must give pre-suit notice to the defendants in compliance with a Tennessee statute, Tenn. Code Ann. § 29-26-121(a).

In Potter v. Perrigan, the Court of Appeals recently addressed whether a plaintiff who properly gives notice and files a medical negligence lawsuit but later voluntarily dismisses the lawsuit must give notice again before re-filing the case. In Potter, the trial court dismissed the second lawsuit finding the plaintiff failed to comply with the requirement of pre-suit notice since the plaintiff did not give notice a second time before re-filing the lawsuit.

The Court of Appeals disagreed with the trial court finding that the applicable notice statute required notice sixty days in advance of the filing of a lawsuit and that plaintiff gave notice more than sixty days prior to filing the suit the second time when the plaintiff gave notice before the initial filing of the case. The Court of Appeals noted that the second lawsuit asserted the same cause of action against the same defendants.

April 24, 2014

Health Care POA Must Have Specific Authority to Agree

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

The Tennessee Court of Appeals recently decided Wilkins v. GGNSC Springfield, a case involving alleged nursing home abuse and neglect in which the decedent’s health care power of attorney signed an optional arbitration agreement on behalf of the decedent. The nursing home sought to compel arbitration, but the trial court denied the motion holding that the POA did not have authority to sign the arbitration agreement on behalf of the decedent. The Court of Appeals upheld this decision of the trial court.

n this case, the Court of Appeals reminds us of Tennessee law regarding powers of attorney:

The execution of a power of attorney creates a principal–agent relationship. Tenn. Farmers Life Reassurance Co. v. Rose, 239 S.W.3d 743, 749 (Tenn. 2007). “[A] person executing a power of attorney may empower his or her agent to do the same acts, to make the same contracts, and to achieve the same legal consequences as the principal would be personally empowered to do.” Id. “The language of a power of attorney determines the extent of the authority conveyed.” Id. (quoting Armstrong v. Roberts, 211 S.W.3d 867, 869 (Tex. Ct. App. 2006). “The more specific a power of attorney is concerning the performance of particular acts, the more the agent is restricted from performing acts beyond the specific authority granted.” Id. A power of attorney evidences to third parties the purpose of the agency and the extent of the agent’s powers. Id. A power of attorney “should be construed using the same rules of construction generally applicable to contracts and other written instruments, except to the extent that the fiduciary relationship between the principal and the agent requires otherwise.” Id. at 749–50 (footnote omitted). The legal effect of a written contract or other written instrument is a question of law. Id. at 750.

April 23, 2014

Tennessee Court of Appeals Reverses Finding of No Liability of Jailer for Failure to Provide Proper Medical Care to Inmate

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

The recent case of Payne v. Tipton County gave the Tennessee Court of Appeals the opportunity to review the finding of the trial court of no liability on the part of the defendant, Tipton County, for failure to provide appropriate and timely medical care to an inmate. The inmate suffered a severe hypertensive crisis while in custody of the county, leading to renal failure, a stroke, heart attack, hemorrhage on his brain, anemia, seizures, kidney failure, and other conditions and resulting in a 45-day hospital admission.

The inmate appealed, and the Court of Appeals reversed the finding of the trial court. In reaching this decision, the Court of Appeals addressed what duty was owed to the inmate by Tipton County. The court noted that under Tennessee law prison officials have a duty to exercise reasonable care for the protection of those in their custody, but that they are not insurers of a prisoner’s safety. Instead, prison officials must act reasonably in light of the inmate’s known condition. The court went on to discuss the duty of a prison to provide inmates with access to proper medical treatment.

The court reviewed the evidence and testimony presented at trial and found that the County failed to provide the inmate with appropriate medical care and failed to follow its own procedures with regard to providing the inmate with medical care. Specifically, the Court of Appeals found that Tipton County breached its duty to provide proper medical treatment during the inmate’s confinement by:

April 22, 2014

Tennessee Court Holds that Jury Need Not Be Instructed on Financial Effect of Fault Being Assessed Against a Non-Party That Had Previously Settled

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

Recently, the Tennessee Court of Appeals reviewed the case of Lake v. The Memphis Landsmen in its third trip to the court. A number of issues were raised in the appeal, but by far the most interesting one concerned the plaintiffs’ contention that the trial court erred in including a non-party who plaintiffs previously settled with on the jury verdict form. The plaintiffs also contended that to the extent the non-party was properly included on the form, the trial court should have instructed the jury on the effect of allocating negligence to the non-party. Why is this issue important to the plaintiffs? Because the jury handed down an $8,543,530 verdict but attributed 100% fault to the non-party.

This case concerned a wreck between a passenger bus and a concrete truck. The concrete truck took a left turn and struck the bus causing it to collide with a light pole and eject the plaintiff and resulting in a traumatic brain injury to the plaintiff. The plaintiffs settled with the concrete truck defendant before trial and then proceeded to trial against several other defendants on various theories of liability concerning the passenger bus.

In this appeal, the Court of Appeals first explained that Tennessee has a system of modified comparative fault, adopted by the Tennessee Supreme Court in 1992 in the landmark case of McIntyre v. Balentine, 833 S.W.2d 52,56 (Tenn. 1992). Under this system, fault is apportioned among all parties in proportion to their degree of culpability, and a defendant is only liable for the percentage of damages that his or her own negligence caused. In McIntyre, the court also adopted the non-party defense, allowing juries to apportion fault to non-parties with culpability. McIntyre, 833 S.W.2d at 58.

April 21, 2014

Poor Lighting Leads to Reversal of Summary Judgment for Defendant in Tennessee Fall Down Case

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

Knowledge of inadequate lighting was enough to create a jury issue of dangerous condition in Christian v. Ayers L.P. d/b/a Ms. Lassie’s Lodge, No. E2013-00401-COA-R3-CV (Tenn. Ct. App. March 28, 2014), according to the Eastern Section of the Tennessee Court of Appeals.

Plaintiff attended an event for “Relay for Life” sponsored by the American Cancer Society at defendant owned Ms. Lassie’s Lodge. When plaintiff left the event between 6:30 and 7:00 p.m., it was dark outside. Plaintiff testified that she had trouble seeing the ground and walked slowly with extra caution to her car in the parking area adjacent to the lodge. There was no lighting on the walkway or in the parking area. Plaintiff fell mid-stride after her left foot went down further than her right foot near the edge of the walkway. She suffered a four-part humerus fracture and incurred $52,000 in medical expenses after hospitalization and surgery.

Owner’s representative and partner testified that she had opened and closed the lodge that evening. Upon arriving, owner’s representative flipped “some switches” and became aware that the lights on the walkway and in the parking lot were not on, causing her to look unsuccessfully for the switch for the outside lights. She was then told that there was no switch and the lights should come on automatically. It was later determined by workers after plaintiff’s fall that multiple exterior bulbs, including the lights in question, were burned out.

April 14, 2014

Tennessee’s Three-Year Health Care Liability Statute of Repose Bars Claim

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

This case involves the Tennessee Medical Malpractice Act and the application of the three-year statute of repose. On December 19, 1999, Jessie Bentley suffered severe injuries during labor and delivery by the defendant medical providers. Suit was not filed until February 1, 2013 and the defendants all immediately moved for dismissal citing the three-year statute of repose and the Calaway decision. Relying on the Crespo decision, plaintiff defended by arguing application of the statute of repose violated his due process rights and violated the equal protection clause. The trial court granted the dismissal and the appeal followed.

The Court of Appeals began its analysis with the proposition that vested rights of action in tort are constitutionally protected property interests and thus they are protected by both the due process and equal protection clauses of the Constitution. Next, the Court turned to the Calaway decision, 193 S.W. 3d 509 (Tenn. 2005), in which the Tennessee Supreme Court held that a "plaintiff’s minority does not toll the medical malpractice statute of repose". In short, the Calaway Court reasoned that to allow disability or minority to toll the statute of repose would defeat the very purpose of the statute. However, the Court was mindful of those plaintiffs and lawyers who had relied upon prior decisions and ruled the statute of repose would only have prospective application to cases commenced after December 9, 2005.

The Court of Appeals also found the plaintiff’s reliance on the Crespo decision was misplaced. In Crespo, approximately one year after the birth of their minor child, the parents hired counsel to pursue a medical malpractice claim. Relying on prior precedent, the malpractice investigation proceeded at a "relatively leisurely pace, which was perfectly reasonable given the clearly stated law at the time." Four years after the birth, as the plaintiff’s were awaiting responses to requests for medical records and were preparing to file suit, the Calaway decision was rendered and Crespo’s case was instantly gone. Under those circumstances, the Court of Appeals found the Crespos had been denied due process and their right to equal protection were violated.