Day on Torts

February 13, 2024

No joint and several liability? No credit for other tortfeasor’s payments

Where a trial court’s judgment did not include a finding of joint-and-several liability, a defendant against whom a judgment was entered could not be credited with payments made by another defendant or by a non-party.

In Gerrish & McCreary, P.C. v. Lane, No. W2022-01441-COA-R3-CV (Tenn. Ct. App. Dec. 5, 2023), plaintiff originally filed suit against defendant, who was plaintiff’s bookkeeper, for fraud, misrepresentation, conversion, and negligence. Plaintiff also brought a claim against defendant’s husband for conversion. The trial court found for plaintiff, and it entered a judgment for over $600,000 against defendant. A judgment of approximately $44,000 was entered against defendant’s husband. The judgment was entered in 2003 and did not find defendant and her husband jointly and severally liable. Later, in 2005, an order of judgment satisfied was entered as to the husband, and the order specifically noted that it was “not intended, nor shall it be construed, as having any applicability to the separate judgment rendered against the other defendant in this cause[.]”

In addition to the case against defendant and her husband, plaintiff reached a confidential settlement with a bank related to the fraud. The settlement was for $140,000, but the bank was never made a party to this action.

January 31, 2024

Impact of noncompliant HIPAA authorization

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

Where an HCLA plaintiff sent pre-suit notice to a hospital and two doctors, the hospital had all the relevant documents, the doctors were independent contractors of the hospital who could only access the records for treatment purposes, and plaintiff’s HIPAA form was noncompliant and only allowed records to be released to plaintiff’s counsel, dismissal for the doctors was affirmed, but dismissal of the claim against the hospital was reversed.

In Christie v. Baptist Memorial Hospital d/b/a Baptist Memorial Hospital for Women, No. W2022-01296-COA-R3-CV (Tenn. Ct. App. Nov. 15, 2023), plaintiffs filed an HCLA claim based on the lack of treatment received by their newborn daughter, who was born and died on the same day at defendant hospital. Before filing suit, plaintiffs sent pre-suit notice to defendant hospital and two doctors who had been involved in the baby’s treatment. It was undisputed that the HIPAA authorization sent with the notice only allowed records to be released to plaintiff’s counsel rather than to other parties receiving notice.

Defendants filed motions to dismiss based on the faulty HIPAA authorizations, which the trial court “reluctantly” granted. On appeal, dismissal of the claims against the doctors was affirmed, but dismissal of the claim against the hospital was reversed.

January 26, 2024

Notice – Actual or Constructive – Required in Fall Down Cases

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

Where claimant tripped on a laptop cord while participating in a class activity, but she had no evidence showing how long the cord had been there or who put the cord there, the Claims Commission’s finding that the professor of the class was not negligent was affirmed.

In Bryant v. State, No. W2022-00968-COA-R3-CV (Tenn. Ct. App. Nov. 14, 2023), claimant was a student in an occupational therapy class at the University of Tennessee Health Science Center. During one class, the teacher set up an activity which required the students to walk to different areas of the room to fill out papers. The professor testified that she checked the area for hazards while setting up the activity and that she asked all the students to move their personal belongings so that they would not be in the way. The professor further stated that both before and during the activity, she did not see a cord in the floor. The evidence showed that the other students in the class had already walked in the area of the fall without issue. In addition, the professor had done this activity three other times and never had an issue.

Claimant testified that she did not see the cord before she fell, but instead saw it several minutes after she fell. Some of her deposition testimony conflicted slightly with her trial testimony, but she testified that no other classmates reported that they had seen the cord or had an issue with the cord.

January 23, 2024

Tennessee’s Discovery Rule Applied by the Court of Appeals

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

Where there was a question of fact regarding when plaintiff was put on notice of his potential HCLA claim, and plaintiff provided an expert affidavit in support of his claims, summary judgment based on the statute of limitations and a lack of proof on causation and damages was reversed.

In Vilas v. Love, No. W2022-01071-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023), plaintiff had his appendix removed by defendant surgeon. At a follow up appointment on March 27, 2017, plaintiff was given a pathology report that stated that “no intact vermiform appendix is identified.” There was a disagreement between plaintiff and defendant regarding what defendant told plaintiff at the follow up appointment. Two weeks after the follow up appointment, plaintiff began experiencing pain and went to another hospital, where they discovered that his appendix had not been removed in the first surgery.

Plaintiff sent pre-suit notice of his HCLA claim to defendant on March 1, 2018, and filed his complaint on August 6, 2018. Defendant moved for summary judgment, which the trial court granted on two grounds. The trial court ruled that the claim was barred by the statute of limitations and that plaintiff had not provided sufficient proof of causation or damages. On appeal, the trial court’s rulings were reversed in part, vacated in part, and the case was remanded.

January 22, 2024

3000th Post on this Blog

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

On February 17, 2005, this blog offered its first post. Almost 19 years later, this post represents the 3000th post that has appeared on this site.

That’s right – 3000 posts.

In that time period, both of my older children have finished grade school, high school, and college. They are living independent lives with excellent jobs. My oldest is living in Minneapolis and the youngest in Atlanta. My youngest daughter, not born when this blog was launched, is a junior in high school and actively exploring where she wants to attend college.

January 19, 2024

Black Boxes in the Operating Room?

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

Every time there is a airplane crash, we hear about the efforts to locate “the black box.”

The “black box” is a flight data recorder – a device that constantly gathers information from dozens of sources about the operation of the airplane. There is also a cockpit voice recorder, which captures sounds in the cockpit, including the conversations among the pilots. The collective data is essential to understand how plane crashes occur.

(By the way, a “black box” is not black – it is orange. Federal law requires that they be painted orange so they are easier to find after a crash.)

January 18, 2024

Pushing the Proximity Envelope in NIED Claims

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

Tennessee Bar Journal, a publication of the Tennessee Bar Association, has published my latest Day on Torts column. The article discusses a recent opinion of the Tennessee Court of Appeals discussing the proximity element of negligent infliction of emotional claims.

Enjoy!

January 16, 2024

Tort Cases Pending Before the Tennessee Supreme Court (01-16-2024)

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

There are seven tort cases pending before the Tennessee Supreme Court. Here is a list of the cases and the summary of the holding of the Tennessee Court of Appeals (if applicable) in each case:

Style: Williams v. Smyrna Residential, LLC et al.

TSC Docket Number: M2021-00927-SC-R11-CV

January 15, 2024

Premises liability summary judgment affirmed; dangerous condition created by plaintiff.

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

Where plaintiff set up his own ladders on cardboard at defendant’s home, and defendant had no control over the set-up, summary judgment for defendant was affirmed on plaintiff’s premises liability claim arising from injuries sustained when the ladders slipped.

In Fulghum v. Notestine, No. M2022-00420-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2023), plaintiff and defendant were close friends. Plaintiff was a carpenter, defendant was a truck driver who was knowledgeable about car repairs, and plaintiff and defendant would often help each other with projects using their own expertise.

Defendant was remodeling his home, and plaintiff was installing shiplap around defendant’s fireplace. On the day of the injury, plaintiff let himself into defendant’s house, set up two of his own ladders, and decided to put cardboard under the ladders to protect defendant’s new floors. Plaintiff set up the two ladders next to each other on the cardboard in an attempt to work more efficiently. Defendant did not assist with or direct the set up. At some point while plaintiff was working, defendant arrived home and briefly chatted with plaintiff. Sometime thereafter, the ladders slipped, causing plaintiff to fall, and plaintiff was seriously injured.

January 8, 2024

Parents’ negligent infliction of emotional distress claim based on sexual abuse of minor daughter dismissed.

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

Where plaintiffs’ minor daughter was sexually abused by a church staff member, but plaintiffs did not perceive any injury-producing event, dismissal of their negligent infliction of emotional distress claim was affirmed.

In Doe v. Bellevue Baptist Church, No. W2022-01350-COA-R3-CV (Tenn. Ct. App. Nov. 7, 2023), plaintiffs brought various claims against defendant church related to their minor daughter being sexually abused by a church staff member, including a claim on their own behalf for negligent infliction of emotional distress (“NIED”). Defendant moved to dismiss this claim, arguing that the complaint never alleged that plaintiffs witnessed or perceived an injury producing event. The trial court agreed and granted the motion to dismiss, and dismissal was affirmed on appeal.

Calling the law surrounding NIED claims “murky and difficult,” the Court of Appeals noted that when a plaintiff does not witness the actual injury-producing event, he or she must show: