Day on Torts

December 20, 2021

Decedent’s personal injury settlement did not become wrongful death proceeds after his death.

Where decedent had filed a personal injury and loss of consortium case in West Virginia, settled that case, and then received a portion of the settlement proceeds before his death, the Court of Appeals affirmed dismissal of this Tennessee case filed by decedent’s heirs “seeking to have the settlement proceeds received pursuant to the West Virginia litigation characterized as wrongful death proceeds.”

In Welch v. Welch, No. M2021-00081-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2021), plaintiffs were the heirs of decedent, who had previously died of mesothelioma. Before his death, decedent filed suit for personal injury and loss of consortium in West Virginia. That suit was settled, and decedent received several distributions from the settlement proceeds before he died.

After decedent’s death, plaintiffs filed this suit in Tennessee, attempting to have the remaining settlement proceeds distributed as wrongful death proceeds rather than having them distributed under decedent’s will. The trial court dismissed the action, finding that the settlement of the personal injury case “very clearly intended to foreclose upon any future wrongful death funds related to the mesothelioma litigation,” and the Court of Appeals affirmed the dismissal.

December 17, 2021

Practice Before the Tennessee Claims Commission

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

The Tennessee Claims Commission hears and adjudicates claims alleging that personal injury or wrongful death was caused by the acts or omissions of employees of the State of Tennessee. The Commission also hears worker’s compensation claims asserted by State employees and breach of contract claims when the State is a party to the contract.

The Commission follows the Tennessee Rules of Civil Procedure, but has modified the rules in several important respects.

BirdDog Law has created a resource that merges the rules of civil procedure with the modifications set forth by regulation. Thus, those practicing before the Claims Commission can look to one resource to determine the rules of procedure in the Commission.

December 15, 2021

Snap Removals to Federal Court

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

The Fifth Circuit Court of Appeals has ruled that a defendant in a state court lawsuit served with process can immediately remove to federal court before the in-state defendants are served and the federal court will assume control of the for the out-of-state party (ies). The decision is Texas Brine Company, L.L.C. v. American Arbitration Association.

Thus, a plaintiff filing an action in state court with both in-state and out-of-state defendants and who is attempting to avoid federal court will want to promptly serve at least one in-state defendant.

The word on the street is that some out-of-state defendants are monitoring state court filings and will immediately remove a case before they are served and any in-state defendant is served. (This practice was criticized in Bowman v. PHH Mortgage Co.; the Bowman court required that one least one defendant needed to be properly served and joined before removal could properly take place.)

December 14, 2021

Colorado Supreme Court Allows Minors to Recover Pre-Majority Medical Expenses

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

Colorado’s highest court has ruled that in cases involving an unemancipated minor child, either the child or the child’s parents may recover the child’s pre-majority medical expenses Double recovery is not permitted. The case is Rudnicki v. Bianco.

The Tennessee will be holding oral argument soon on a related issue in Borngne ex rel Hyter v. Chattanooga-Hamilton County Hospital Authority.

NOTE: The link to the Borngne case is a link to the status of case provided by my new site, www.birddoglaw.com. BirdDog Law provides multiple free resources to Tennessee lawyers, one of which is “Status of Cases Pending Before the Tennessee Supreme Court.”

December 11, 2021

New Resource Center for Tennessee Lawyers

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

I am pleased to announce the launch of BirdDog Law, a massive online resource center for Tennessee lawyers, particularly those who do trial work.

The website includes free access to the Tennessee Rules of Civil Procedure, the Tennessee Rules of Appellate Procedure, and the Tennessee Rules of Evidence, as well as the Tennessee Rules of Professional Conduct. I believe readers will find the these resources on this site to much more user-friendly than those found on any other website.

Another free section of the website is the Tennessee Rules of Civil Procedure (As Modified for Use in the Claims Commission). Those of us who practice before the Tennessee Claims Commission know that the Tennessee Rules of Civil Procedure generally apply to cases before the Commission but have been modified by regulation in several respects. I know of no other place where the two bodies of rules have combined into one user-friendly recourse for the benefit of Tennessee lawyers.

December 7, 2021

No liability for State when fire causing damage was started by lightning.

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

Where plaintiff’s property was destroyed by a fire caused by a lightning strike, emergency responders could not cross a bridge to access the property and extinguish the fire due to flooding, and plaintiff had recently asked the State to modify the bridge due to concerns about flooding, dismissal of this negligence case was affirmed, as the lightning strike was the sole proximate cause of plaintiff’s damages.

In A.B. Normal, LLC v. State of Tennessee, No. M2020-01390-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2021), plaintiff owned a piece of property containing a home and hay fields. The property was located off a state highway and was only accessible via an easement bridge. In September 2018, plaintiff contacted the State about concerns regarding the easement bridge flooding during heavy rain, thereby making the property inaccessible. Several state employees were involved in inspecting the bridge in question, and they held a phone conference with plaintiff in late 2018, informing plaintiff that “there were no exigent circumstances or concerns for TDOT to address at that time.” During this call, plaintiff stated that it was concerned that emergency responders would not be able to access the property in an emergency.

Just two months later, in February 2019, lightning struck the property, causing a fire in the home. The bridge was flooded due to heavy rainfall. One firetruck was able to cross the bridge but then became immobilized, and later responders were not able to cross. When the fire department first arrived, only the bathroom was destroyed, but after making minimal progress in fighting the fire, the firefighters were instructed to retreat. The fire then destroyed the home and eight acres of farmland.

December 2, 2021

New Website for Tennessee Lawyers

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

I am pleased to announce, after over a year of work, that I have completed the creation of a new website for Tennessee lawyers.

The website is called BirdDog Law. The website is designed to help Tennessee lawyers better serve their clients while saving themselves time and money. A major component of the site is free access to the rules of evidence, civil procedure, and appellate procedure. These resources are available at no charge on other sites, but in my judgment the sites are not user-friendly. I worked to design the BirdDog Law website to provide information the way that lawyers seek information. I am sure it is not perfect (and I intend to keep working to make it better), but I am convinced that it is a material improvement over any other free site and, if I may say, just as user-friendly as sites you must pay to access.

There are two things BirdDog gives you for free what you can’t readily get anywhere else. First, BirdDog has combined the rules of civil procedure with the Claims Commission regulations modifying the rules of procedure for use in Claims Commission so that you can look at one document to see the rules of civil procedure applicable in the Claims Commission. Second, BirdDog creates a list of cases pending before the Tennessee Supreme Court and gives you the current status of this case. This permits you to determine in less than one minute what cases (and issues) are before the Court and determine the case’s likely decision date. This information is publicly available, elsewhere but it is cumbersome to find.

November 29, 2021

Operations on the Wrong Body Part – from The Washington Post.

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

This is an article David L. Perlow, a board certified urologist practicing in the Atlanta area since 1983. The article appeared in the November 27, 2021 edition of The Washington Post. The full text of the article appears below.

In 2012, Paul Kibbett checked into a California hospital to have his cancerous right kidney removed. Surgeons erroneously took out his left kidney instead. After his doctors went back to remove the diseased kidney, Kibbett had to rely on dialysis for the rest of his life. The next year, a Pennsylvania man with chronic pain in his right testicle awoke from surgery to learn that the doctor had mistakenly removed his left testicle.

Such devastating errors, known as wrong-site surgeries, happen because the protocols meant to prevent them are counterintuitive and too often ignored. And doctors and hospitals are not required to report such accidents, which makes the problem harder to study. Some estimates suggest that wrong-site surgery happens about once in every 100,000 surgeries, which would mean hundreds of times per year in the United States. Some experts believe that as few as 10 percent of these mistakes are ever reported, so the accidents we know about may be the tip of the iceberg. But regardless of how common they are, these botched procedures are profoundly damaging. They are also more preventable than experts recognize.

November 23, 2021

Justice Programs 2021 Seminar

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

Penny White, Joe Riley and I will be hosting our annual three-city, 15-hour seminar program again the Fall. The program will be held in-person in Knoxville (Dec. 2-3), Nashville (Dec. 9-10), and Memphis (Dec. 16-17.

We will also be offering the same 15 hours of CLE via video. Those interested in remote learning can purchase all fifteen hours, individual hours, or bundles of hours.

Check out the Justice Programs website to learn more.

November 4, 2021

Summary Judgment Based on Tennessee Recreational Use Statute Affirmed.

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

Where a minor child was injured while playing on a playground at a state park, and after the incident a park ranger admitted that the mulch under the playground was not thick enough but no prior notice of the mulch condition had been shown, plaintiff had not proven gross negligence to overcome the immunity afforded to the State under the Tennessee Recreational Use Statute. In Victory v. State, No. M2020-01610-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2021), plaintiffs’ minor child had gone camping with her grandparents at a state park. While there, the child went with her grandmother to play on a playground, and the child fell off the playground, fracturing her arm. The grandparents took pictures of the area the day after the fall, and plaintiffs filed suit, alleging that the “injury was due to inadequate mulch or padding on the playground.”

Plaintiffs’ complaint asserted claims for negligence, gross negligence, and gross negligence per se. After discovery, the State filed a motion for summary judgment, which the Claims Commissioner granted on two grounds. First, the Claims Commissioner ruled that the claim was “barred by § 70-7-102(a) of Tennessee’s Recreational Use Statute, which protects landowners, including the State of Tennessee, from responsibility for injury to recreational visitors.” The Commissioner further found that the gross negligence exception to the Recreational Use Statute did not apply here. Second, the Commissioner ruled that “Plaintiffs failed to establish an essential element of their claim under § 9-8-307(a)(1)(C) of the Claims Commission Act, that the proper state official had been given prior notice of the playground’s condition.” On appeal, summary judgment for the State was affirmed.