Day on Torts

August 9, 2023

Summary judgment overturned where minor was killed while drinking and driving.

Where plaintiff created issues of genuine material fact regarding the potential liability of various defendants in the death of his minor son, who was killed while drinking and driving, summary judgment for most defendants was reversed. Further, the Court of Appeals found that the question of whether the decedent was “at least 50% at fault for comparative fault purposes [was] a question not properly resolvable at this summary judgment stage under the facts of this case.”

In Benbow v. L&S Family Entertainment, LLC, No. M2022-00491-COA-R3-CV (Tenn. Ct. App. July 12, 2023), plaintiff brought suit after his minor son, who was 20-years-old, died while drinking and driving. Plaintiff asserted that various defendants were negligent in the course of the evening that decedent died.

Decedent was out with a friend on the night he died, and that friend was 21-years-old. Plaintiff presented evidence that at defendant restaurant the server carded the friend but not decedent, and then brought a pitcher of beer and two cups to the table; that decedent and his friend appeared intoxicated when they arrived at defendant bowling alley; that a worker at defendant bowling alley carded the friend but not decedent, yet provided a pitcher of beer and two cups; that decedent and his friend went to a bar after the bowling alley, and that at that bar decedent’s debit card was used to buy drinks; that the friend’s mother came to the bar and that video evidence showed her possibly buying drinks that were then given to decedent; that the mother helped decedent into a car to be driven home; that decedent and the friend ended up going to the friend’s house; and that the friend and his father got into an argument, whereupon decedent drove himself away from the house and got into the fatal accident.

July 31, 2023

HCLA Plaintiff Cannot Get Benefit of 120-Day Extension When Filing Action Under Savings Statute

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

Where an HCLA plaintiff has previously given pre-suit notice, utilized the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121, filed suit, voluntarily dismissed the action, then chosen to refile pursuant to the savings statute, that plaintiff is not entitled to rely on the 120-day extension when refiling. Instead, the action must be re-filed before the expiration of the one-year period for filing granted under the savings statute.

In Richards v. Vanderbilt University Medical Center, No. M2022-00597-COA-R3-CV (Tenn. Ct. App. July 11, 2023), plaintiff filed an HCLA case in 2014. When filing that case, plaintiff gave defendant proper pre-suit notice and relied on the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c). Plaintiff voluntarily dismissed that action on October 4, 2019, then gave pre-suit notice again and refiled his complaint on January 28, 2021. When refiling under the savings statute, plaintiff again relied on the 120-day statute of limitations extension provided by the HCLA.

Defendant filed a motion to dismiss, arguing that pursuant to the language of the statute, plaintiff was only entitled to utilize the 120-day extension in the original action. The trial court agreed, granting dismissal, and the Court of Appeals affirmed.

July 14, 2023

Judgment for defendant in GTLA negligence case affirmed.

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

Where a defense verdict in a GTLA bench trial was based largely on credibility, the verdict was affirmed on appeal.

In Ware v. Metro Water Services, a Division/Agency of Metropolitan Government of Nashville, Davidson County, Tennessee, No. M2022-01114-COA-R3-CV (Tenn. Ct. App. May 30, 2023), plaintiff filed a GTLA case after she fell “due to an unsecure water meter valve cover” in her sister’s yard. During a bench trial, the evidence focused largely on the practice and habit of Metro employees in closing a water meter valve cover when they finished working on it. The evidence showed that the water meter plaintiff fell into had been serviced in July before plaintiff’s fall in September, and plaintiff asserted that said employee had been negligent by not properly recovering the meter.

The employee who performed that work in July testified that he had worked for Metro for over 19 years and typically worked on about 4,000 work orders per year. He testified that he always secured the cover before leaving a job, and that he always put his foot on the lid, stomped on it, and walked away by stepping on it. He testified that there was no doubt in his mind that he had secured the cover in question.

July 12, 2023

Actual damages not required for intrusion upon seclusion claim.

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

A Tennessee plaintiff asserting a claim for invasion of privacy based on intrusion upon seclusion was not required to show actual damages, as actual damages are not an essential element of an intrusion upon seclusion claim.

In Jones v. Life Care Centers of America d/b/a Life Care Center of Tullahoma, No. M2022-00471-COA-R3-CV (Tenn. Ct. App. May 16, 2023), plaintiff was a resident at defendant nursing home, and she brought this case through her conservator based on her naked body being exposed during a video call made by a nursing home employee. Plaintiff, who was cognitively limited, was being assisted in showering by defendant’s employees. One of the employees received a video call from her boyfriend, who was incarcerated, and the employee propped the phone on a shelf and continued helping plaintiff. During the call, plaintiff’s naked body was seen on the video feed. A sheriff’s department employee was monitoring the phone call and noticed that plaintiff could be seen, and defendant was accordingly alerted. Although plaintiff was admittedly unaware that she had been exposed, and never became aware, her daughter/ conservator was informed, and this suit was filed.

Plaintiff’s initial complaint asserted a claim of “Negligence Pursuant to the Tennessee Medical Malpractice Act” and a general claim for invasion of privacy. After defendant filed a motion for summary judgment, plaintiff filed a motion seeking to amend her complaint to assert claims for invasion of privacy based on intrusion upon seclusion and negligent supervision. The trial court granted summary judgment to defendant, finding that plaintiff could not “prove the existence of any cognizable injury or damages from the incident,” and it denied plaintiff’s motion to amend, ruling that a claim for invasion of privacy requires actual damages and thus the amendment would be futile. On appeal, those rulings were reversed.

July 10, 2023

Legal malpractice claim barred by statute of limitations.

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

Where a pro se plaintiff knew about defendants’ alleged legal malpractice more than one year before he filed suit, summary judgment based on the statute of limitations was affirmed.

In Garrett v. Weiss, No. E2022-01373-COA-R3-CV (Tenn. Ct. App. May 25, 2023), plaintiff filed a legal malpractice claim against defendant attorneys based on their representation of him in an underlying divorce case, which included an order of protection against plaintiff. The order of protection was entered on May 30, 2017, and stated that plaintiff could no longer reside at a Tellico Plains residence, but the order was supposed to specify a different residence located in Sweetwater.

Beginning in June 2017, “Plaintiff informed Defendants on more than one occasion that the Circuit Court had erred in its May 30, 2017 amended of or protection by listing the incorrect address[.]” In August 2017, plaintiff was arrested due to his refusal to leave the Tellico Plains address, and he was incarcerated for six months. On March 5, 2018, plaintiff filed a pro se motion to alter or amend the order of protection by correcting the address, which was granted in April 2018.

July 5, 2023

Legislature Changes TCA Section 20-1-119 To Expressly Include Uninsured Motorist Insurers

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

The Tennessee General Assembly has modified Tenn. Code Ann. Section 20-1-119 to make it clear that the plaintiff gets the benefits of the statute even if the fault allegations against a nonparty are made by a uninsured/underinsured motorist insurer. The new legislation, Public Chapter No. 294, states as follows:

Section 1. Tennessee Code Annotated, Section 20-1-119(a), is amended by

redesignating the current language as subdivision (a)(1) and adding the following new

June 28, 2023

Legal malpractice claim required expert proof from plaintiff.

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

Where a legal malpractice plaintiff provided no expert testimony to support his claims against defendant lawyer, summary judgment for the defendant was affirmed.

In Parks v. Holland, No. E2021-01506-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff filed a pro se legal malpractice claim against defendant attorney based on the attorney’s representation of plaintiff in an employment discrimination/wrongful termination case. In the underlying case, plaintiff had settled his claim for $75,000 during a second mediation, but in this action, plaintiff asserted that he had instructed defendant attorney not to settle the underlying case for less than mid-to-high six figures. Plaintiff further asserted that defendant was negligent in failing to take into account plaintiff’s loss of health benefits, and in failing to file suit against another potential defendant.

Defendant attorney filed a motion for summary judgment, arguing that “Plaintiff provided no expert testimony to establish the standard of care for attorneys and no such evidence of any breach of that standard of care.” With his motion, defendant filed the expert affidavit of another attorney as well as his own affidavit. Both affidavits pointed out problems with plaintiff’s underlying case, opined that the plaintiff received a favorable settlement in the employment case, pointed out that plaintiff signed and agreed to the settlement, and stated that defendant did not breach the required standard of care. In addition, defendant presented evidence that plaintiff was informed that defendant would not file suit against the additional defendant and that plaintiff had stated he was happy with his representation after the mediated settlement.

June 26, 2023

HCLA Standard of Care Expert Competent to Testify.

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

Where plaintiff’s medical malpractice expert was a registered nurse with extensive experience in wound care, the fact that the expert had not practiced in a hospital went “to the weight of her testimony, not to whether she [was] competent.” (internal citation omitted). The trial court’s ruling excluding her as an expert was thus overturned.

In Owens v. Vanderbilt University Medical Center, No. M2021-01273-COA-R3-CV (Tenn. Ct. App. May 18, 2023), plaintiff had surgery on her fractured ankle at defendant hospital and was inpatient for eight days. When she was discharged, she had stage three pressure wounds, and she ended up being readmitted to defendant hospital four days later for treatment of the pressure wounds.

Plaintiff filed this HCLA suit based on defendant’s failure to prevent, detect, and treat her pressure wounds. She disclosed a registered nurse from Virginia as her standard of care expert. Defendant moved for summary judgment, arguing that plaintiff’s expert was “not qualified to testify under Tennessee Code Annotated § 29-26-115(b)” because she was “not familiar with the standard of care for hospital employees in caring for post surgical orthopedic repair patients during the statutorily relevant period.” The trial court agreed with defendant and granted the motion for summary judgment, but that ruling was vacated on appeal.

June 23, 2023

Practical Procedure and Evidence

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

Have you checked out my newest blog?

Practical Procedure is a blog about, well, practical procedure and evidence issues for trial lawyers. I have several sources for the issues I discuss on the blog.

First, if I see something in a new Tennessee Court of Appeals or Supreme Court opinion that I think will be helpful to Tennessee lawyers I write up a summary and post it to the blog.

June 21, 2023

Defendant physician cannot be compelled to give expert opinion of other healthcare provider’s care.

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

In a recent HCLA case, the Tennessee Supreme Court held that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard.”

In Borngne ex rel. Hyter v. Chattanooga-Hamilton County Hospital Authority, — S.W.3d —, No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023), plaintiff filed a healthcare liability action against multiple defendants, including the midwife who was overseeing her birth and the midwife’s supervising physician, Dr. Seeber. Plaintiff suffered permanent brain damage and was severely debilitated by injuries received during the birth. During the supervising physician’s deposition, plaintiff’s counsel questioned him about what his expectations of the midwife would be in hypothetical situations, when the mother’s condition became concerning, and other questions related to the standard of care for the midwife, all of which the physician’s attorney instructed him not to answer.

Plaintiff filed a “motion to compel Dr. Seeber to testify concerning [the midwife’s] performance prior to his arrival,” which the trial court denied. The Court of Appeals, however, reversed the trial court and ruled that “the trial court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition.” In this appeal to the Supreme Court, the judgment of the trial court denying the motion to compel was affirmed.