Day on Torts

October 12, 2022

Free Information About the Sumner County, Tennessee Court System

BirdDog Law offers a large variety of free information to Tennessee lawyers and paralegals. Among the free resources are 95 databases, one for each Tennessee county, that share information about the operation of the court system in that county. Each database is set up in the same format for ease of use.

For example, click on the link for Sumner County. The opening page will give you population and demographic information for the county. The “Court Clerks and Related Information” has contact information for each court clerk, the clerks’ websites, the local rules of court, e-filing information, docket information, and filing fee information for all six courts.

The “Judges” tab has biographical and contact information for all eight judges in the county.

October 11, 2022

Plaintiff could not show constructive notice in GTLA premises liability case where she could not show how long dangerous condition had existed.

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

Where plaintiff tripped on an uneven sidewalk and brought a GTLA premises liability suit against defendant city, plaintiff could not show constructive notice because she could not show how long the condition had existed.

In Mitchell v. City of Franklin, Tennessee, No. M2021-00877-COA-R3-CV, 2022 WL 4841912 (Tenn. Ct. App. Oct. 4, 2022), plaintiff was leaving a church service and walking on sidewalks owned by defendant city when she tripped and fell. Plaintiff alleged that her fall was caused by an “abrupt change of elevation caused by a raised portion of the sidewalk.” Plaintiff filed a GTLA case against the city, and the trial court ultimately entered judgment in favor of the city, which was affirmed in part and reversed in part on appeal. Of note, the city remediated this sidewalk condition after plaintiff’s fall, and no measurement of the height variation was taken at any time prior to the remediation.

Two sections of the GTLA were potentially implicated in this action. Tenn. Code Ann. § 29-20-205 “removes immunity for injury caused by the negligence of a public officer or employee,” but the statute lists several exceptions, including that immunity is not removed for the performance or failure to perform a discretionary function (subsection (1)) or for the failure to make or negligent performance of an inspection (subsection (4)). The trial court granted summary judgment under this statute, finding that plaintiff could not prove liability due to these exceptions, and review of this issue was waived on appeal. The Court of Appeals pointed out, however, that “liability for injuries under section 29-20-203 caused by a defective, unsafe, or dangerous condition is not subject to the exceptions of section 29-20-205” and that “the City’s immunity may still be removed under section 29-20-203 even though it retained immunity under section 29-20-205.” (internal citation omitted).

October 3, 2022

Dismissal of Defamation and False Light Claim under Tennessee Public Participation Act partially reversed.

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

Where plaintiff real estate professional brought an action for defamation and false light based on an online review written by defendant, defendant moved to dismiss the action pursuant to the Tennessee Public Participation Act (TPPA).

In Charles v. McQueen, No. M2021-00878-COA-R3-CV, 2022 WL 4490980 (Tenn. Ct. App. Sept. 28, 2022), plaintiff was a real estate professional involved in some capacity with Durham Farms, which was a large residential community. Defendant was a resident in the community who wrote a negative online review of the developer of the community and plaintiff. Regarding plaintiff, the review stated: “Bill Charles, especially, uses misleading tactics to lure in home buyers only to deceive them.”

Based on this review, plaintiff filed this action for defamation and false light against plaintiff. Defendant filed a petition for dismissal pursuant to the TPPA, and after finding that the TPPA applied, that plaintiff was a limited-purpose public figure in the context of this action, and that plaintiff “had not established a prima facie case for actual malice,” the trial court dismissed the case. This ruling was affirmed in part and reversed in part on appeal.

The TPPA, Tenn. Code Ann. § 20-17-101 et seq., is Tennessee’s version of an anti-SLAPP statute and was designed to “encourage and safeguard the constitutional right of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury.” (quoting Tenn. Code Ann. § 20-17-102). “The TPPA provides relief for parties who partake in protected activity constituting either the exercise of the right of association, the exercise of the right of free speech, or the exercise of the right to petition.” (internal citations omitted). If a party petitions for dismissal under the TPPA and “makes a prima facie case that they have participated in a protected activity under the TPPA, the court may then dismiss the action against them, unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.” (internal citations, quotation and emphasis omitted).

September 22, 2022

Dismissal of legal malpractice claim reversed.

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

Where plaintiff alleged that defendant attorneys ignored settlement offers and rejected offers on illogical bases in a previous class action case, dismissal of plaintiff’s legal malpractice claim was reversed.

In Hawthorne v. Morgan & Morgan Nashville, PLLC, No. W2021-01011-COA-R3-CV, 2022 WL 4298184 (Tenn. Ct. App. Sept. 19, 2022), plaintiff represented a proposed class bringing claims for legal malpractice and breach of fiduciary duty against defendant attorneys based on defendant attorney’s representation of plaintiff class in a previous class action. The previous class action surrounded several funeral homes that had allegedly “wrongfully abandoned the remains of the class’s deceased loved ones at the cemetery.” (internal citations omitted). In this case, plaintiff alleged that defendants committed legal malpractice and breach of fiduciary duty in the previous case by ignoring reasonable settlement offers, rejecting settlement offers for illogical reasons, and failing to communicate settlement offers to the class representative.

Defendants filed a motion to dismiss, which the trial court granted with little explanation. The trial court apparently concluded that “even accepting [plaintiff’s] allegations as true, and giving the Plaintiff the benefit of all reasonable inferences from these facts, such facts and inferences did not give rise to a legal claim.” On appeal, this dismissal was reversed.

September 16, 2022

Professional negligence jury verdict affirmed.

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

Where the jury apparently credited plaintiff’s expert and found that defendant engineering firm was liable for professional negligence related to a large park and marina project, the jury verdict for defendant was affirmed.

In TMS Contracting, LLC v. SmithGroup JJR, Inc., No. M2020-01028-COA-R3-CV, 2022 WL 4112415 (Tenn. Ct. App. Sept. 9, 2022), plaintiff was the general contractor on a park and marina project, and it filed this professional negligence claim against defendant engineering firm related to multiple issues with the project. The case was tried in front of a jury, and during the trial only plaintiff presented testimony from an expert. Rather than hiring an expert, defendant countered plaintiff’s evidence primarily with testimony from its project manager.

September 14, 2022

Scaffolding rental company owed no duty to roofer where homeowner opted to install scaffolding himself.

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

Where a roofer was injured when he fell from a homeowner’s roof and bounced over the nearby scaffolding, but the homeowner had rented the scaffolding himself and chosen to erect it himself rather than paying the scaffolding company to install it, summary judgment for the scaffolding company on both the premises liability and general negligence claims was affirmed because the scaffolding company owed no duty to either the roofer or the homeowner.

In Lynch v. Poe, No. M2021-00867-COA-R3-CV, 2022 WL 4112706 (Tenn. Ct. App. Sept. 9, 2022), plaintiff was a roofer who was injured while working on a homeowner’s roof. While replacing shingles on the roof, plaintiff slipped and fell, bounced over the scaffolding, and fell to the ground. According to plaintiff, he was unable to stop himself on the scaffolding because guardrails had not been installed thereon.

The homeowner who had hired the roofing company had entered into a separate contract with DSS, an equipment company, and rented scaffolding from them. Although DSS offered scaffolding installation for a fee, the homeowner chose to install the scaffolding himself. While the homeowner had some experience with smaller projects, he admitted that this “scaffolding project was more involved than any project he had undertaken.” Although DSS employees visited the home a few times to bring scaffolding pieces and one DSS employee warned against using cinder blocks to level the scaffolding based on what he observed at the home, “at no point did [the homeowner] request or indicate to DSS that he would like an inspection of the scaffolding he had installed or that he would like to purchase the scaffolding installation service.”

September 12, 2022

Finding of extraordinary cause to excuse HCLA noncompliance reversed.

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

Where the HIPAA authorizations sent with plaintiff’s HCLA pre-suit notice were noncompliant, and plaintiff’s attorney claimed that the noncompliance was due to a set of extremely stressful work and family circumstances but his affidavit did not explain how the noncompliant error was made or how the circumstances caused the error, the Court of Appeals overturned the trial court’s finding of extraordinary cause excusing the noncompliance.

In Moxley v. AMISUB Inc. D/B/A Saint Frances Hospital, No. W2021-1422-COA-R9-CV, 2022 WL 3715056 (Tenn. Ct. App. Aug. 29, 2022), plaintiff alleged that he was injured by defendants’ medical negligence on July 5, 2019. Plaintiff’s counsel sent pre-suit notice to all potential defendants on July 3, 2020, and those notices included medical release forms that were allegedly HIPAA complaint pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). The forms, however, all listed the recipient medical provider as the “releasing provider” rather than the receiving provider, essentially giving the recipient the ability to release documents but not obtain them.

September 9, 2022

Vegetation management contractor had no duty to remove tree located beyond scope of contract with electrical service.

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

The Tennessee Court of Appeals has ruled that where a vegetation management company contracted by the county electric service was only contractually responsible for a maintaining a certain area, and the diseased tree that allegedly fell and caused a fire was outside that area, the vegetation management company “owed no duty to prune” the tree and was not liable for the fire or the damages caused thereby.

In Allstate Property & Casualty Insurance Company v. Sevier County Electric System, No. E2021-01085-COA-R3-CV, 2022 WL 3589838 (Tenn. Ct. App. Aug. 23, 2022), several insurance companies filed suit against the City of Sevierville, Sevier County Electric System (SCES), and Wolf Tree, who was SCES’s vegetation management contractor (the cases filed by the insurance companies were consolidated). Plaintiffs asserted claims for negligence, nuisance and trespass based on damage to property they insured caused by a fire which was allegedly started when a diseased tree fell on an electrical service conductor. Continue reading

September 7, 2022

Evidence of car accident occurring not enough to support negligence claim.

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

Where defendant driver stated that the accident that injured plaintiff passenger was due to her swerving to avoid a wild animal that unexpectedly entered the roadway, and plaintiff “presented no evidence of negligence on the part of the defendant,” summary judgment for defendant was affirmed by the Tennessee Court of Appeals.

In Owings v. Owings, No. E2021-01330-COA-R3-CV, 2022 WL 3570880 (Tenn. Ct. App. Aug. 19, 2022), plaintiff was a passenger while defendant was driving. According to defendant, she swerved to avoid hitting a deer that jumped out in front of her, causing her to hit two or three parked vehicles. Defendant was allegedly injured during the accident and filed this negligence suit.

During plaintiff’s deposition, he stated that defendant had “done what she had to do” and “acknowledged that he did not think she had done anything wrong.” Plaintiff also stated that defendant had told him that “something jumped out in front of her,” but that he did not see the animal.

August 22, 2022

Tennessee Court of Appeals: HCLA plaintiff should have been allowed to substitute expert.

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

Where an HCLA plaintiff’s expert refused to testify due to no fault of plaintiff or plaintiff’s counsel, the Tennessee Court of Appeals ruled that the trial court should have allowed plaintiff to secure a substitute expert.

In Blackburn v. McLean, No. M2021-00417-COA-R3-CV, 2022 WL 3225397 (Tenn. Ct. App. Aug. 10, 2022), plaintiff filed an HCLA complaint in connection with the death of 35-year-old decedent who died after presenting at defendant emergency room and being treated by defendant doctor. Plaintiff identified Dr. Sobel as his standard of care expert and Dr. Allen as his causation expert. During Dr. Allen’s deposition, he testified that the decedent would “probably be alive” if he had sought treatment earlier, and defendant doctor thereafter filed a motion to amend his answer to plead the comparative fault of decedent. Defendant also filed a motion to compel the production of certain tax records from Dr. Sobel showing “the amount of money he was paid for medico-legal matters during certain prior years.”

After a hearing, both the motion to amend and the motion to compel were granted. After financial documents related to Dr. Sobel were produced, defendant doctor moved to lift the protective order regarding these documents, which the trial court granted. After the protective order was granted, Dr. Sobel refused to testify as an expert witness for plaintiff in this case.

Plaintiff filed a Motion to Substitute Expert Witness seeking to substitute a new expert whose opinions were “for the most part identical” to those of Dr. Sobel, but the trial court denied the motion. Plaintiff also sought to retain an expert to respond to the newly added comparative fault allegations. While the trial court ruled that plaintiff could obtain a cardiologist to respond to the newly asserted comparative fault defense, it placed extensive limitations on what that expert could address, specifically stating that plaintiff could not identify new experts “to address the standard of care for Defendants or alleged violations of the standard of care[,]…to testify about the alleged fault of Defendant [doctors] and/or what he allegedly did wrong[,] …to compare the fault of the decedent to the fault of the Defendants.”