Day on Torts

March 24, 2022

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

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.

March 4, 2022

Defendant had no duty to remove tire debris from interstate after blowout.

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

Where defendant was driving a truck that had a blowout on the interstate, defendant did not have a duty to remove the tire debris from the road.

In Walker v. McMillin, No. M2020-01507-COA-R3-CV, 2022 WL 420666 (Tenn. Ct. App. Feb. 11, 2022), plaintiff was injured in a one-car accident caused by tire debris on the interstate. The tire debris came from a blowout on defendant’s truck, which occurred around 5-7 minutes before the accident. After the blowout, defendant slowed and pulled onto the shoulder of the road about half a mile away from the debris. Defendant set out triangle warnings around his truck and called a tire service provider and his employer.

Plaintiff filed this negligence suit against defendant truck driver and his employer one month after the accident. Plaintiff sent defendants an evidence preservation notice, which included a request that defendants preserve the tires that were on the truck, but the old tires were not preserved.

February 25, 2022

Claims Commission decision to credit defense witnesses affirmed.

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

Where the claims commission credited defendants’ witnesses and found that plaintiffs had not proven their HCLA case, the Court of Appeals affirmed.

In Cavaliere v. State, No. M2021-00038-COA-R3-CV, 2022 WL 320241 (Tenn. Ct. App. Feb. 3, 2022), plaintiffs filed an HCLA suit against the state based on treatment received by decedent at the Tennessee State Veterans Home. Decedent was over 90-years-old and was a patient at the Veterans Home before being transferred to a hospital when the staff at the Veterans Home noticed concerning issues. Decedent died a few days after the transfer, and at the time suffered from numerous medical concerns. His medical charts indicated that in the months preceding his death, he had been noted as likely to have continuing/recurring problems with pneumonia and dehydration, both of which were at issue in this case.

Plaintiffs asserted that staff at the Veterans Home had failed to meet the standard of care, but defendant put forth an expert witness and staff who had worked with decedent to show that the standard of care was met. The Claims Commission credited the testimony of defendants’ witnesses and found for defendants, and the Court of Appeals affirmed.

February 24, 2022

Plaintiff who was returning domesticated pigs to owner was not a trespasser.

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

Where plaintiff entered defendant’s property to return two pot-bellied pigs that were owned by defendant’s stepson but lived on defendant’s property and were running loose, and plaintiff had been on the property before without defendant objecting, plaintiff was not a trespasser and had implied permission to come onto the property.

In Cook v. Fuqua, No. M2021-00107-COA-R3-CV, 2022 WL 244532 (Tenn. Ct. App. Jan. 27, 2022), plaintiff’s father and defendant were neighbors. Defendant’s adult stepson lived at defendant’s residence and kept pot-bellied pigs on the property. When plaintiff was visiting her father, she heard the pigs at her father’s door, rounded them up, then went onto defendant’s porch to inform someone at the residence that the pigs were loose. While she was knocking, one of the pigs knocked her off the porch and she sustained injuries. Notably, defendant had not been to the residence in the preceding month due to an order of protection, but he was still the owner.

Plaintiff filed this negligence suit, and defendant filed a motion for summary judgment asserting that plaintiff was a trespasser and he thus only “owed her a duty to not cause her injury intentionally, with gross negligence, or by willful and wanton conduct.” The trial court agreed and granted summary judgment, but that ruling was reversed on appeal.