Day on Torts

October 28, 2011

Plaintiff’s Attorney in Wrongful Death Case Owed Duty to Minor Beneficiaries

The defendant and his law firm was hired to bring a wrongful death action for decendent’s (Anderson’s) estate and to assert loss of consortium action by Anderson’s wife. The case was dismissed, arguably after the experts in the case were thrown out after a Daubert challenge.. Lawyer did not timely appeal the dismissal of the case. Several years later, Anderson’s two children – one still a minor – sued Atty for malpractice. They asserted the statute of limitations for malpractice was tolled by their infancy. Atty resisted discovery and quickly moved for summary judgment, asserting he had no attorney-client relationship with the children.

Notably, Pete had not asserted a claim for damages for the children

The trial judge dismissed the case, saying that did not have privity with Pete, and thus did not enjoy an attorney-client relationship with Pete and lacked standing to sue for professional negligence.

October 28, 2011

Comment on Post on Becoming a Good Lawyer from Associate’s Mind

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

Associate’s Mind is a fine blog that is well worth adding to your RSS feed list. Today’s post, Becoming a Good Lawyer Requires Failure, is an exceptional piece. Do not be mislead by the headline, which I suspect was selected to grab attention (and it does. Readers will be happy to see that the piece makes it very clear that failure should not come at the expense of clients.

Keith Lee, the blog’s author, reminds us that blogging, social media campaigns, etc. do not make one a good lawyer. What does? Here is an excerpt of his post:

Becoming a good lawyer requires failure. It requires screwing up a motion and having to re-draft the entire thing. 3 hours of research down the hole only discover a new case that destroys your argument – then writing off that time from your billing and not charging the client because it’s your fault. It’s mis-communication between lawyer/client/opposing counsel/third-party counsel/doctor/court reporter throwing everyone’s schedule out of whack.

October 26, 2011

Suit Against Horse Owner Must Include Proof of Negligence

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

The Court of Appeals of Mississippi has ruled that a plaintiff injured when her vehicle collided with a horse on a dark roadway must prove that the horse owner was negligent is allowing the horse to be on the road. In other words, the mere fact that the fence did not hold the animal on the owner’s property was not, in an of itself, proof of negligence of the owner.

Defendant landowner proved that he had appropriately fenced in the horses and they had been secure in the fence for over two years. He had no explanation for how or why the horses had knocked down the fence and escaped. The Court of Appeals said his proof entitled him to summary judgment, since plaintiff

did not produce any evidence, such as testimony, exhibits, expert opinions, product warnings, or recognized industry standards, to rebut Hester’s evidence that the field fence was adequate for containing horses under the circumstances. The "[nonmoving] party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict."

October 24, 2011

Discovery of Confidential Settlement Agreements

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

The Fourth District Court of Appeals for Florida has ruled that a non-settling defendant cannot obtain a court order forcing disclosure of confidential settlements between the plaintiff and settling defendants.

Plaintiffs were involved in an auto accident that was allegedly caused by tire failure. They sued the car manufacturer, the tire manufacturer, the car dealer, and Wal-Mart (the tire dealer and installer). Three of the defendants entered separate confidential settlement agreements after a mediation. Wal-Mart did not settle and sought discovery of the confidential settlement agreements. The trial court denied the request, saying that given the fact that joint and several liability had been abolished in Florida the settlement amounts were not relevant.

The Court of Appeals affirmed, saying

October 19, 2011

Do You Need An Appellate Lawyer At Trial?

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

I read a tweet the other day suggesting that a lawyer should have had an appellate lawyer present at trial. I cant remember who wrote the tweet but, if I had to guess, it was an appellate lawyer.

I guess an appellate lawyer will do you some good at trial – if you don’t know the law of preserving issues for appeal. Then again, if you don’t know that law of preserving issues for appeal, you lack knowledge of an important part of trying a case.

The law of preserving issues for appeal is not that complicated. It varies from jurisdiction to jurisdiction, I suppose, but in Tennessee it is pretty easy. For example, on evidence issues, you must make a timely, specific objection on the evidence point and are best served by stating the grounds for your objection. You must insist upon a ruling to the objection. If a judge prohibits you from introducing evidence, you must make an offer of proof out of the presence of the jury. All of this must be on the record.

October 19, 2011

New York Court of Appeals Rules That Bus Seat Belt Claims Were Not Preempted

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

New York’s highest court has ruled that the claim of bus passengers injured in a single-vehicle bus wreck which sought to hold the bus manufacturer liable for the failure to install passenger seatbelts on the bus were not preempted by federal regulations promulgated by the National Highway Traffic Safety Administration (NHTSA).

In Doomes v. Best Transit Corp., No. 170 (N.Y.Ct. App. Oct. 18, 2011), several bus passengers were injured after a dozing bus driver caused a single-vehicle bus crash. The Doomes plaintiffs and several other passengers sued several defendants and reached settlements with some of them. The claim against the bus manufacturer Warrick was not settled.

The jury found the bus manufacturer partially liable for the injuries suffered by the plaintiffs due to lack of seat belts. On appeal, Warrick asserted several points, including an argument that the jury was improperly allowed to consider that the bus was defective or that it was negligent due to a lack of seatbelts because FMVSS 208 (49 CFR 571.208), which did not require the installation of passenger seatbelts, preempted any claims of liability for failure to install such seatbelts.

October 17, 2011

Own Cows, Oxen or Buffalo? Tennessee Says You Get Special Legal Protection

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

Fortunately, things are so good in Tennessee that the General Assembly has seen fit to take time to limit the responsibility of bovine owners. For you city folk, cows, buffaloes and oxen are known as bovines.

The new law, codified at T.C.A.Sec. 44-21-101 et seq, provides that "no person shall make any claim against, maintain an action against, or recover from a bovine owner for injury, loss, damage, or death of the person resulting from the inherent risks of bovine activities" unless the bovine owner:

(1) Fails to post and maintain warning signs pursuant to § 44-21- 104(a);

October 14, 2011

Lawyers’ Fight Over Fen-Phen Fees Near End

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

Two lawyers who have been involved in an arbitration and federal court battle over fees from Fen-Phen cases appear to be at the end of the litigation road.

The Tenth Circuit Court of Appeals recently upheld an arbitration award of over $8 million dollars, finding that one lawyer breached a written agreement to refer Fen-Phen cases to the other. The referring lawyer kept some cases for himself and referred some cases to another lawyer.

The decision in Abbott v. Law Office of Patrick J. Mulligan, No. 10-4113 (10th Cir. Sept. 21, 2011), has little to offer us from a legal standpoint except to remind us how difficult it is to overturn an arbitration award on appeal.

October 13, 2011

Twelve Steps To Avoid Summary Judgment on a Fact Issue

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

Tennessee summary judgment law changed on July 1, 2011 to allow the use of "put up or shut up" motions. (The law only applies to cases filed on or after July 1.) This change will increase the use of summary judgment motions in Tennessee and will probably result in an effort by defendants to file those motions earlier in the case.

Although there will be a constitutional challenge to this legislation, the constitutional issue will not reach the Tennessee Supreme Court for several years. In the meantime, lawyers opposing motions for summary judgment must work hard to marshal the facts necessary to create a genuine issue of material fact (if one can be legitimately created)..

TRCP 56.07 gives a lawyer opposing a motion for summary judgment the opportunity to ask for more time to complete discovery before a summary judgment hearing. Here are the twelve steps you should follow to (a) maximize your chances of putting your case in the posture of not needing to file a Rule 56.07 motion or (b) if a Rule 56.07 motion must be filed, increasing the likelihood that the motion will be granted.

October 12, 2011

Brief Seeking Recovery of Medical Expenses Charges Under Tennessee’s Medical Malpractice Law

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

In medical negligence cases in Tennessee there is often a dispute about whether the plaintiff can recover the amount of the medical charges or the amount actually paid by the private insurer or governmental entity like Medicare. This is a recent brief on the subject prepared by Brandon Bass, a fine lawyer who works with our firm.

It is hard to believe that this issue has not yet been addressed by our supreme court.

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