Day on Torts

January 2, 2014

Tennessee Law and the Pre-Existing Injury Instrution

For more than a century, Tennessee courts have recognized that a tortfeasor “must accept the person as he finds him” and have allowed injured parties to recover all damages proximately caused by tortfeasors. This means that injured victims of negligence are allowed to recover damages for aggravation of pre-existing injuries as long as there is expert medical proof linking the additional harm suffered by the injured person to the acts of the wrongdoer.

In the case of Pyle v. Mullins, No. E2012-02502-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2013), the plaintiff was injured in a car crash and at trial received a jury verdict for $15,000 (an amount less than his claimed medical expenses). Plaintiff believed the verdict was too low and appealed the judgment. One reason for the low damage award, according to the plaintiff’s appeal, was that the judge refused to instruct the jury regarding the defendant’s liability for aggravation of the plaintiff’s pre-existing neck condition. (Note: while it is the jury who determines the amount of compensation to award an injured plaintiff, it is the judge who makes the legal determination on the types of damages that can be awarded. Exactly why the plaintiff thought the award would have been larger if the jury had been charged on aggravation of a pre-existing condition is not clear.) The plaintiff argued that the jury should have been allowed to award additional damages because, he claimed, proof at trial showed the crash caused his pre-existing degenerative disc disease to become a chronic condition requiring extended treatment.

After reviewing the evidence at trial with a focus on the testimony of plaintiff’s medical expert, the court of appeals disagreed with the plaintiff and affirmed the trial court’s decision to not instruct the jury on plaintiff’s pre-existing neck condition. While the plaintiff’s medical expert testified that a person with degenerative changes like the plaintiff’s is more susceptible to injury and that car crashes commonly cause neck pain to manifest itself in a person with degenerative changes, the medical expert did not testify, as required by law, that the plaintiff’s car crash aggravated his degenerative disc disease or had any specific effect on it at all. In other words, the medical expert’s testimony about general observations and correlations between neck pain and car crashes was insufficient and not material because it did not specifically relate to the plaintiff’s injury.

January 1, 2014

Statutes of Repose and Comparative Fault in Tennessee

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

The Tennessee Bar Association has published the most recent edition of the Tennessee Bar Journal, which includes my latest article "Protecting Yourself From Statutes of Repose."

The article discusses the impact of statutes of repose on tort recoveries in cases involving comparative fault and gives tips to lawyers on how to avoid adverse consequences of statutes of repose.

Ironically, and in the very same edition of the Tennessee Bar Journal in which I criticize statute of repose, the Tennessee Bar Association announces that it has decided to ask the Tennessee General Assembly to grant one to lawyers. From the TBA President:

December 31, 2013

Tennessee Court of Appeals Gives Guidance on Motions to Amend and Motions to Intervene

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

Do you need to file (or oppose) a motion to amend or a motion to intervene in Tennessee state court? If so, start your research with this new case from the Eastern Section of the Tennessee Court of Appeals.

The appeal arises from the sale of residential real estate. Plaintiff alleged fraud and negligent misrepresentation by the defendants for failing to disclose water drainage issues, water damage and basement flooding in the Tennessee Residential Disclosure form. During discovery, the defendants moved for summary judgment claiming the plaintiff lacked standing to pursue the case. Plaintiff opposed the motion and moved to amend her complaint. In addition, the plaintiff’s sons moved to intervene. The trial court denied the motion to amend and the motion to intervene and granted the defendants’ motion for summary judgment. The court based the ruling on the plaintiff’s lack of standing. The court also concluded the intervention would not correct the standing issue since the sons were not parties to the contract for the sale of the property.

Below are the key facts:

December 31, 2013

Rhode Island Supreme Court Rejects Burn Injury Case – “Attractive Nuisance” Doctrine Not Applicable

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

The Rhode Island Supreme Court has held that a 17-year old young man could not rely on the attractive nuisance doctrine to impose liability on the State of Rhode Island.

The plaintiff and some friends entered a closed mental health facility that was locked and marked "No Trespass." Along the way, he was burned when a bottle of sulfuric acid in the building burst. The trial court rejected his case, and Rhode Island’s highest court affirmed the dismissal.

Regrettably, plaintiff was old enough to appreciate the risk of breaking into an abandoned building and of transporting a substance he “had reason to believe” was hazardous; his injury was the result of a failure to protect himself, rather than an inability to protect himself. Accordingly, it was not clearly erroneous for the trial justice to hold that plaintiff failed to establish that he was too young to appreciate the risk, and thus that the doctrine of attractive nuisance is inapplicable to this case.

December 30, 2013

Tennessee Court of Appeals Explains How to Sue Someone Who Died After Causing Car Wreck

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

When someone is harmed by another person who dies before a lawsuit is filed, the injured party can still bring a claim for damages based on the wrongdoer’s conduct as long as certain steps are closely followed in Tennessee’s survival statute, Tenn. Code Ann. § 20-5-103.

When the wrongdoer dies, Tennessee law tolls the statute of limitations for six months, resulting in the injured plaintiff having a total of eighteen months from the date of the injury to properly file suit (based on the standard one year for negligence claims (Tenn. Code Ann. § 28-3-104) plus the additional six months when the tortfeasor passes away (Tenn. Code Ann. § 28-1-110)). After the tortfeasor dies, he or she is no longer the proper party defendant, and instead the claim is filed against the personal representative of the deceased wrongdoer’s estate. If there is no personal representative, then the injured plaintiff must petition the court to appoint a person, called an administrator ad litem, to serve as the defendant in the lawsuit. Not following these steps can result in the plaintiff’s lawsuit being dismissed, as demonstrated in the case of Ferrell v. Milller and Ivey, No. M2013-00856-CO-R3-CV (Tenn. Ct. App. Nov. 27, 2013).

In Ferrell, the plaintiff sued the defendant spouses after the defendant husband fatally shot himself while driving an SUV that crashed into the plaintiff’s car injuring the plaintiff. The crash occurred on June 25, 2010, and the plaintiff filed his complaint on June 20, 2011, naming the deceased defendant husband and the defendant wife. The defendant wife filed an answer to the complaint on December 13, 2011, and highlighted the plaintiff’s failure to appoint and serve an administrator ad litem to preserve the claims against the deceased defendant husband. On December 20, 2011, the plaintiff finally moved the court to appoint an administrator ad litem to accept service of process on behalf of the deceased defendant husband. On March 19, 2012, the court appointed an administrator ad litem, but the plaintiff failed to amend the complaint to name the administrator as the party defendant.

December 28, 2013

Tennessee Court of Appeals Applies the Special Duty Exception to the Public Duty Doctrine and Affirms Dismissal of Case

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

Successfully bringing suit in Tennessee for an injury or death allegedly caused by the acts or omissions of a governmental employee is more difficult than a claim against a private citizen or business. Consider, for example, the case of Lynch v. Loudon Cnty., No. E2013-00454-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2013).

On a cold, wet, icy winter morning, a deputy sheriff arrives at the scene of a minor, single car accident. The car’s front tires had slid off the roadway preventing the driver from backing the car up. The driver is a woman, alone, wearing a bathrobe and naked underneath. She is not injured, nor is her car damaged.

Before reaching the woman’s vehicle, the deputy encounters the passerby who first stopped to assist the woman and called 911. The passerby tells the deputy that “something is not right” with woman and that she cannot provide a phone number or answer any questions about where she was coming from or going. The passerby will later testify that the woman appeared “sleepy,” “zoned out,” and “not real steady.”

December 26, 2013

Put Away Your Checkbook: Rule 45 Does Not Authorize A Court To Hold Attorneys Personally Responsible For Costs Incurred In Producing Documents Pursuant To a Subpoena

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

Who should pick up the tab for costs incurred in responding to a subpoena to a non-party under Rule 45 of the Tennessee Rules of Civil Procedure?

This case arises from a probate matter. Five years after the decedent’s estate had been closed for the second time, it was reopened again by a grandson, who believed a quarter of a million dollars in assets continued to be held in the decedent’s Merrill Lynch accounts. The grandson was represented by Suzette Peyton and George Copple, Jr. Shortly after re-opening the estate, the attorneys issued a subpoena duces tecum to Merrill Lynch. The subpoena sought several years worth of documents for the decedent’s accounts and it also sought information related to accounts held by both the decedent’s wife and son, both of whom were also deceased.

For several months, the parties negotiated over the scope of the subpoena and the appropriate releases. Ultimately, the administrator filed a motion to enforce the subpoena. Merrill Lynch opposed the motion on several grounds but never sought an advancement of the reasonable costs associated with compliance as was permitted under the 2012 version of Tennessee Rule of Civil Procedure 45.07. Instead, in email communications, Merrill Lynch repeatedly sought assurances from the attorneys that its expenses associated with complying with the subpoena would be paid. After all was said and done, Merrill Lynch produced documents and sought expenses in the amount of $776.00.

December 23, 2013

Tennessee Court of Appeals Rejects Claim For Intentional Interference with Business Relations

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

Tennessee courts recognize a claim for intentional interference with business relations, but this multi-year dispute did not end well for the claimant.

In Stratienko v. Chattanooga-Hamilton County Hospital Authority, No. 2011-01699-COA-R3-CV (Tenn. Ct. App. Nov. 21, 2013),the Tennessee Court of Appeals affirmed dismissal of a plaintiff doctor’s claim for intentional interference with business relations. The case has a substantial procedural history, having been previously appealed through the Tennessee Court of Appeals to the Tennessee Supreme Court, as well as to the Sixth Circuit Court of Appeals in an almost identical federal suit. In sum, the case stems from an alleged physical altercation in 2004 between Dr. Stratienko and another doctor in the break room of hospital owned and operated by the defendant Chattanooga-Hamilton County Hospital Authority.

Before addressing the claim for intentional interference of business relations, the Stratienko court rejected the plaintiff’s contention that the trial court had incorrectly dismissed on summary judgment his other claims for breach of contract, inducement of breach of contract, conspiracy, and immunity. The plaintiff argued that there were disputed facts regarding the physical altercation, the investigation of the incident, and the plaintiff’s subsequent suspension. The Court of Appeals, however, observed that the federal district court and the Sixth Circuit had previously made findings of fact relative to the incident, investigation, and suspension, and those findings constituted the law of the case. Under Tennessee’s law of the case doctrine, an appellate court’s decision (state or federal) on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal. See Life & Casualty Ins. Co. v. Jett, 133 W.W.2d 997, 998-99 (Tenn. 1939). Therefore, the Court of Appeals refused to reconsider the facts at issue.

December 21, 2013

Tennessee Court of Appeals Rules That Remittiturs Of 70% Or More Are Not Permitted

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

Remittiturs are court-ordered reductions in a jury verdict because the trial judge thought that the jury awarded too much money in compensatory or punitive damages. They are a common sense, common law "tort reform" measure, designed to permit a judge who actually heard the evidence (or, in rare cases, the judges on an appellate court) to alter the amount of the jury’s verdict.

This case arises from a collision between a motorcycle and a car. Following a jury trial, fault was allocated 40% to the motorcyclist and 60% to the defendant motorist. The total damages awarded were $317,000.00 which based on fault allocations was reduced to $190,000.00. Upon motion of the defendant, the trial court granted a remittitur finding the jury’s awards for future pain and suffering and future loss of enjoyment of life were excessive. Accordingly, the court reduced those awards and approved a judgment for the motorcyclist in the amount of $54,192.10. The remittitur was accepted under protest and an appeal was taken.

Pursuant to T.C.A. 20-10-102, trial courts are statutorily authorized to grant a remittitur as necessary to cure an excessive jury verdict and avoid the expense of a new trial. When reviewing a trial court’s grant of remittitur, Tennessee appellate courts will conduct a three-step review consisting of (1) the trial court’s reasons for granting a remittitur; (2) the amount of the reduction to ensure it does not destroy the jury’s verdict; (3) the evidence related to damages to assess whether the proof is consistent with the remittitur.

December 18, 2013

Arbitration Agreements: What Constitutes Waiver And What Constitutes A Contract Of Adhesion?

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

Lawyers in Tennessee see more and more arbitration clauses in contracts and thus more and more people trying to avoid these provisions by arguing that the provision was waived or invalid because the contract requiring arbitration was a contract of adhesion.

In Skelton v. Freese Construction Company, Inc. the Tennessee Court of Appeals gives us some insight into both these issues. In this case, the defendant did not file its motion to compel arbitration until three years after the commencement of the suit. During that time, the defendant had filed an answer, answered discovery and filed a motion to dismiss based on standing.

However, in reviewing the record, the Court of Appeals determined that much of the delay had been occasioned by the plaintiff. Specifically, the plaintiff had failed to timely comply with court orders, had changed counsel and filed amended complaints to correct standing issues and other errors. In addition, some of the delay was related to the parties’ attempts to resolve the arbitration issue on their own. Moreover, the Court of Appeals noted the defendant had expressly reserved its right to arbitrate the dispute in its answer to the plaintiff’s second amended complaint and had filed its motion to compel within two months of the filing of the second amended complaint (which finally resolved the standing issues). Further, the Court of Appeals noted the defendant’s motion to dismiss was related to standing as opposed to the merits of the underlying case. All in all, there was not a "clear, unequivocal and decisive" act by the defendant which signaled its intention to forgo its right to arbitrate.