Day on Torts

April 1, 2022

Insufficient certificate of good faith leads to summary judgment for defendant.

Where plaintiff filed an exhibit with its HCLA complaint that did not comply with the certificate of good faith requirements, summary judgment for defendant should have been granted.

In Estate of Blankenship v. Bradley Healthcare and Rehabilitation Center, No. E2021-00714-COA-R10-CV, 2022 WL 951256 (Tenn. Ct. App. Mar. 30, 2022), plaintiff filed this HCLA suit alleging that decedent died while a resident of defendant nursing home due to defendant’s negligence. Plaintiff’s complaint stated that Exhibit 7 to the complaint satisfied the HCLA certificate of good faith requirement. Exhibit 7 was a “one-paragraph letter” from a nurse practitioner (NP) which stated that the NP was competent as an expert under the HCLA, that she had “reviewed the medical issues,” and that she had “determined that violations of the standards of care occurred during [decedent’s] residency” at defendant nursing home.

March 29, 2022

Summary judgment vacated due to insufficient reasoning in trial court order.

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

Where the trial court did not provide sufficient reasoning for its grant of summary judgment in a misrepresentation case, summary judgment was vacated and the case was remanded to the trial court.

In Smith v. Walker, No. W2021-00241-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2022), plaintiffs purchased a home from defendants. Shortly after the purchase, plaintiffs discovered the home was contaminated with mold, and they filed this action asserting claims for breach of contract, negligence, gross negligence, negligent misrepresentation, and intentional misrepresentation.

March 28, 2022

Injury case against homeowner’s association dismissed

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

Where plaintiff was injured while mowing a common area of his neighborhood, but plaintiff did not have permission to mow in the common area and permission was required by the neighborhood covenants, summary judgment in favor of defendant in this premises liability case was affirmed.

In Walker v. Rivertrail Crossing Homeowner’s Association Inc., No. W2020-01201-COA-R3-CV, 2022 WL 852904 (Tenn. Ct. App. Mar. 23, 2022), plaintiff and his wife lived in the Rivertrail neighborhood and were members of the defendant homeowner’s association (HOA). Plaintiff’s home was adjacent to a common area that included a retaining wall at the edge of the neighborhood property, and plaintiff complained to a member of the HOA board that the ivy covering a portion of this common area was an eyesore. The board member told plaintiff to submit his concerns in writing to the HOA, but plaintiff failed to do so. Instead, plaintiff attempted to cut the ivy using his riding lawnmower, and when he encountered a trough that was covered by ivy and not visible, he was thrown from the mower and injured.

March 24, 2022

No exception to products liability statute of repose for latent disease or fraudulent concealment.

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

Where plaintiff filed a products liability claim based on a hip replacement device she had received, but her hip replacement occurred more than ten years before her suit was filed, dismissal based on the statute of repose was affirmed.

In Jones v. Smith & Nephew Inc., No. W2021-00426-COA-R3-CV, 2022 WL 767709 (Tenn. Ct. App. Mar. 14, 2022), plaintiff had a hip replacement in January 2009 in which a metal-on-metal device was implanted. This device caused plaintiff significant issues, which resulted in her having to have a second surgery to replace the original replacement device in November 2019.

Plaintiff filed this products liability suit in November 2020, asserting that defendant, who manufactured, marketed, and sold the original replacement device, “actively and intentionally misled the public, medical community, health care providers, and patients into believing these products were safe and effective.” In an amended complaint, plaintiff asserted that the statute of repose found in the Tennessee Products Liability Act (TPLA) would not bar her action because “the injuries suffered by [plaintiff] often take considerably longer than ten years to manifest themselves, in a fashion similar to injuries from exposure to asbestos.” Defendant filed a motion to dismiss based on the statute of repose, which the trial court granted, and the Court of Appeals affirmed.

March 22, 2022

No reasonable reliance on alleged misrepresentation where plaintiff could have read the contract which contradicted defendant’s statement.

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

Where plaintiff gave her husband permission to sign her name to an indemnity agreement in conjunction with obtaining insurance bonds, and plaintiff’s husband had the opportunity to read the indemnity agreement and discover its contents, summary judgment on plaintiff’s negligent misrepresentation claim against the insurance agent who allegedly stated that the indemnity agreement did not include plaintiff’s personal property was affirmed.

In King v. Bradley, No. E2021-00261-COA-R3-CV, 2022 WL 678568 (Tenn. Ct. App. Mar. 8, 2022), plaintiff’s husband and step-son owned a commercial electrical contracting business. In conjunction with a work project, the business was required to obtain performance and payment bonds. Defendant was the insurance agent who assisted in obtaining these bonds, and in conjunction with getting the bonds, plaintiff, plaintiff’s husband, plaintiff’s step-son, and the business were required to sign an indemnity agreement. Plaintiff was not present when the indemnity agreement was to be signed, but she gave her husband verbal permission over the phone to sign her name. According to plaintiff, she told her husband that she did not care what he signed her name to “as long as we’re not putting up our personal stuff.” Plaintiff asserted that defendant was asked whether any personal property, as opposed to business property, was covered by the indemnity agreement, to which he responded that it was not. Plaintiff’s husband signed the indemnity agreement without reading it or having an attorney review it.

March 17, 2022

Rule Changes Approved By Tennessee General Assembly

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

The Tennessee General Assembly has approved changes to the rules of civil, appellate, and criminal procedure. The new rule changes are effective on July 1, 2022.

The rule changes are reflected in the following sections from BirdDog Law‘s rule books:

Rules of Civil Procedure

March 16, 2022

Injury Involving ATV Winch Case Will Be Tried Before Jury

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

Where there were genuine issues of material fact in a products liability case filed against the manufacturer and seller of an ATV, summary judgment for defendants was reversed.

In Vaulton v. Polaris Industries, Inc., No. E2021-00489-COA-R3-CV, 2022 WL 628502 (Tenn. Ct. App. Mar. 4, 2022), plaintiffs filed this product liability suit after their 14-year-old son was injured, losing his finger, when he and a friend were using a Polaris ATV. The accident occurred when the son noticed that the hook attached to the winch was in the wrong position. While the son was holding the hook, he had his friend push the out button on the winch, but the winch went inward instead of outward, causing the severe injury.

March 11, 2022

Ruling that nursing home arbitration agreement was invalid reversed.

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

Where plaintiff had signed an arbitration agreement in conjunction with his brother’s admission to defendant nursing home, and plaintiff had a durable power of attorney for health care executed by his brother naming plaintiff as the attorney-in-fact, the trial court “erred in looking beyond the durable power of attorney for health care to examine the patient’s competency at the time it was executed.”

In Welch v. Oaktree Health and Rehabilitation Center LLC d/b/a Christian Care Centers of Memphis, No. W2020-00917-COA-R3-CV, 2022 WL 589926 (Tenn. Ct. App. Feb. 28, 2022), plaintiff was the brother of a patient who had died after a brief stay at defendant nursing home. When the brother was admitted, plaintiff filled out admission paperwork, including an arbitration agreement, as plaintiff had a durable power of attorney for healthcare executed by the brother and naming plaintiff as the attorney-in-fact.

March 9, 2022

Attorney’s fees allowed as compensatory damages in inducement of breach of contract case.

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

Where the evidence clearly established the elements of intent and malice in an inducement of breach of contract case, summary judgment for plaintiff was affirmed. Moreover, the trial court’s ruling that plaintiff could recover attorney’s fees as compensatory damages under the independent tort theory was also affirmed.

In HCTEC Partners, LLC v. Crawford, No. M2020-01373-COA-R3-CV, 2022 WL 554288 (Tenn. Ct. App. Feb. 24, 2022), plaintiff was the former employer of defendant Crawford, who had worked for plaintiff in healthcare information technology recruitment. When Crawford was hired by plaintiff, he signed a “Confidentiality, Non-Competition, and Non-Solicitation Agreement,” which, among other things, provided that he would not work in the same field for 12 months after leaving plaintiff’s employment.

Defendant Rezult made Crawford a job offer while he was still working for plaintiff, which Crawford accepted. Plaintiff communicated to Rezult and Crawford about the Agreement, but Crawford was nonetheless placed in a position that involved healthcare information technology recruiting. Plaintiff thereafter brought this suit asserting breach of contract against Crawford and inducement of breach of contract against Rezult. After entering an injunction, the trial court granted plaintiff’s motion for summary judgment against both defendants, and the Court of Appeals affirmed.

March 7, 2022

No liability for inmate-on-inmate assault where assault was not foreseeable.

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

Where defendants had no prior notice of foreseeable harm to plaintiff, who was assaulted while he was an inmate at a Tennessee county jail, summary judgment was affirmed.

In Koffman v. Madison County Tennessee, No. W2021-00385-COA-R3-CV (Tenn. Ct. App. Feb. 17, 2022), plaintiff was arrested and booked into the county jail after violating his probation. Plaintiff was put into a unit that held “ten or more inmates depending upon the number of inmates incarcerated in the jail at any given time.” On the night he was booked, plaintiff was assaulted by a group of inmates and subsequently transported to the hospital for treatment.

Plaintiff filed this suit against the County and the County Sheriff based on the injuries he received in the assault. Defendants moved for summary judgment, which the trial court granted based on a lack of foreseeability, and the Court of Appeals affirmed.