Day on Torts

October 21, 2021

Interesting Article on How Radiologists Can Avoid Medical Malpractice Claims

Dr. Benjamin Strong, Chief Medical Officer at vRad, has written an article on health care liability claims against radiologists. Dr. Strong “analyzed all 220 claims made against vRad radiologists between June 2017 and October 2020—applying a detailed classification taxonomy including the alleged type of miss, study type, if the standard of care was met, if communication failures contributed, settlement, and so on.”

Dr. Strong explained that “during that timeframe, [the company’s] 500+ radiologists read nearly 20 million studies and logged an error rate of just 1.3 major misses per 1,000 reads.” Back-of-the-envelope math tells us that is one malpractice claim for every 90,900 reads.

Dr. Strong’s efforts gave rise to a list of prioritized recommendations for avoiding medical malpractice in radiology.

October 19, 2021

No nuisance or trespass when neighbor did not increase surface water flow onto plaintiff’s property.

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

Where there was material evidence in the record to support the jury’s finding that plaintiff’s neighbor had not diverted water onto plaintiff’s property, the verdict for defendant on claims of nuisance and trespass was affirmed.

In Whitford v. Village Groomer & Animal Inn, Inc., No. M2020-00946-COA-R3-CV (Tenn. Ct. App. Sept. 17, 2021), plaintiff and defendant were neighbors. The southern property, which was owned by defendant, was “naturally situated a higher elevation than the northern section,” which was owned by plaintiff. The two properties were previously owned by a single owner, who had installed two storm drains on the northern property to divert surface water away from the property. He had also built a large shed on the southern property, which had three gutters that directed rainwater towards the northern section’s storm drains.

Plaintiff purchased the northern section of the property in 2002, and he built two buildings there to use in his veterinary business. One of the buildings was leased by defendant from 2002 to 2009. In 2007, defendant purchased the higher, southern section of the property. After the purchase, defendant “modified the existing shed,” and “some of the gutters on the new building directed rainwater toward the storm drains” on plaintiff’s property. Defendant also built three dog runs.

September 22, 2021

Claim regarding retirement benefit calculation was not a tort claim.

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

Although plaintiff labeled his complaint as a tort claim, the gravamen of the complaint was a dispute over “the amount, time and manner of payment of plaintiff’s pension plan benefits.” Plaintiff was therefore required to first present his claims to the pension board pursuant to the City’s Code of Ordinance, and thereafter was required to follow the judicial review provision laid out in the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-322, which grants exclusive jurisdiction of such reviews to the Chancery Court. Dismissal from the circuit court based on a lack of subject matter jurisdiction was thus affirmed.

In Best v. City of Memphis, No. W2021-0020-COA-R3-CV (Tenn. Ct. App. Sept. 15, 2021), plaintiff was a former firefighter who had initially been denied Line of Duty (LOD) disability benefits by the defendant City’s Pension Board. After plaintiff appealed the decision, an Administrative Law Judge determined that plaintiff was in fact entitled to benefits from defendant. The ALJ’s order was entered in May 2019.

In October 2019, plaintiff filed suit in the Circuit Court “alleging that the City delayed the payment of his LOD benefits, miscalculated the date from which back pay should begin, and improperly moved his official retirement date.” Plaintiff asserted claims for breach of contract, negligence, and negligent infliction of emotional distress. The trial court dismissed the breach of contract and emotional distress claim sua sponte, based on the City ordinance stating that participation in the retirement system did not create a contract, and based on Tenn. Code Ann. § 29-20-205(2), which states that “the City’s immunity from suit is not removed in cases of infliction of mental anguish.” The only remaining claim was the claim for negligence.

September 20, 2021

Cancellation rule should have applied to defendant’s contradictory testimony.

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

Where an insured driver stated under oath that he was driving another person’s truck in his capacity as a mechanic to test the vehicle, but then after a declaratory judgment action was filed by his insurance company he testified that he was driving the truck on a personal errand, the trial court should have applied the cancellation rule to his testimony.

In Tennessee Farmers Mutual Insurance Co. v Simmons, No. E2020-00791-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2021), defendant Simmons was a mechanic, and he had been hired by Jeremy Shipley to repair Shipley’s truck. While Simmons was driving Shipley’s truck, Simmons was involved in a car accident. The other driver filed suit against Simmons and Shipley, alleging that Simmons was negligent and caused the accident.

September 1, 2021

Statute of limitations did not affect time period to file with Tennessee Claims Commission after denial by Division of Claims and Risk Management.

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

Where plaintiff failed to file her appeal to the Claims Commission within 90 days of her claim being denied by the Division of Claims and Risk Management, dismissal was affirmed, even though the filing with the Claims Commission was within the one-year period following the car accident at issue. In Howard v. State, No. M2020-00735-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2021), plaintiff was injured in a car accident where the other car was being driven by a State employee. The accident occurred on March 12, 2019. Plaintiff filed a claim for damages with the Department of Claims and Risk Management (DCRM), which was denied on June 24, 2019. In the denial letter, the DCRM explained that plaintiff “had the right to file her claim with the Claims Commission within 90 days of the date of this denial.” Plaintiff subsequently filed her appeal with the Claims Commission on December 18, 2019. Because the appeal was not filed within 90 days of the denial by the DCRM, the Commissioner found that the Claims Commission lacked jurisdiction of the claim, and an order of dismissal was entered. This ruling was affirmed by the Court of Appeals.

“Tenn. Code Ann. § 9-8-402 provides… the procedure for initiating a claim against the State.” Subsection (c) of this statute states that if the claim is denied by the DCRM, “the division shall so notify the claimant and inform the claimant of the reasons therefor and of the claimant’s right to file a claim with the claims commission within ninety (90) days of the date of the denial notice.” The Tennessee Claims Commission Rules also refer to the “time limit set out in T.C.A. § 9-8-402(c).” (internal citation omitted).

August 25, 2021

Verdict for defendant in ski resort case involving injuries to a snowboarder affirmed.

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

Where the jury found the defendant not liable but also added a statement to the verdict that the defendant and others in the industry should look into safer practices, the verdict for defendant was affirmed. In Chase v. Ober Gatlinburg, Inc., No. E2020-00649-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2021), plaintiff filed this negligence suit against defendant ski resort after being injured in a snowboarding accident. According to plaintiff, she attempted to avoid a collision with another skier and fell, sliding into “one of the posts in a fence marking the edge of the ski slope.” While the post furthest uphill was padded, the lower post that plaintiff fell into was a square 4×4 with no padding. Plaintiff asserted that the use of square, unpadded posts constituted negligence on defendant’s part.

At trial, defendant presented testimony from an expert on ski area operations, safety, and risk management. The expert stated that “Defendant’s fencing practices were consistent with, or exceeded, the general practices in the ski resort industry,” and he presented photos of at least three other resorts that used similar fencing.

While the jury was deliberating, it asked if could make a comment in addition to the reading of the verdict, which the trial court allowed after no objections from either sides’ counsel. The jury ultimately returned a verdict finding that defendant was not at fault, but added as a comment: “We, the jury, are in one accord that Ober and the ski industry should look into using materials for posts with rounded corners or more padding.” On appeal, the defense verdict was affirmed.

August 25, 2021

Legal malpractice claim dismissed as untimely.

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

Where plaintiff filed a legal malpractice action in federal court within the one-year statute of limitations, but then waited more than one year after dismissal of that federal case to file this claim for legal malpractice, dismissal based on the statute of limitations was affirmed. In Tolson v. Herbison, No. M2020-01362-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2021), plaintiff retained defendant to represent him in post-conviction matters related to plaintiff’s previous conviction for first-degree murder. The trial court denied post-conviction relief, which the Court of Appeals affirmed, and the Tennessee Supreme Court denied certiorari.

On May 23, 2013, plaintiff filed a complaint with the Tennessee Board of Professional Responsibility asserting that defendant failed to notify him of the denial of certiorari and failed to correspond with him, and that “as a result of [defendant’s] alleged errors, [plaintiff’s] writ of habeas corpus was denied as time-barred.” When plaintiff completed this complaint, he signed a disclaimer noting that legal malpractice claims are subject to a statute of limitations.

Plaintiff filed a legal malpractice claim in federal court on October 18, 2013, which the district court dismissed. The Sixth Circuit affirmed dismissal on October 6, 2016. Plaintiff then filed this case in Davidson County Circuit Court in July 2018, which the trial court dismissed as time-barred, and the Court of Appeals affirmed.

August 24, 2021

Summary judgment reversed where evidence showed city inspected culvert that collapsed the day before the accident and recommended imminent replacement

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

Where plaintiff was injured in a car accident when a culvert underneath the road collapsed, and an inspector for defendant city had inspected the culvert the day before the accident and recommended construction begin just three days later to replace the culvert, summary judgment for defendant was reversed. In Carrick v. City of Shelbyville, Tennessee, No. M2020-01218-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2021), plaintiff was driving down a road owned and controlled by defendant city when a culvert under the road “gave way and the asphalt crumbled,” and plaintiff’s “vehicle became lodged in the resultant hole.” Plaintiff brought this suit under the GTLA, asserting that the city’s immunity was removed pursuant to Tenn. Code Ann. § 29-20-203. The city filed a motion for summary judgment, arguing that plaintiff could not show that it had actual or constructive notice of the dangerous condition, and the trial court agreed, granting summary judgment. On appeal, that ruling was reversed.

It was undisputed that the city had the culvert inspected by Mr. Frazier on August 29, 2017, one day before the accident, and that as a result of that inspection, Mr. Frazier created a work order stating that work to replace the culvert would begin on September 1, 2017. The work order further provided that “the dig area will be through the road as we will replace the culvert.” In addition to the work order, the city submitted Mr. Frazier’s affidavit in support of summary judgment, in which he stated that “while the culvert needed replacing, he did not conclude from his inspection that the culvert posed ‘any threat to the stability or integrity of the road.’” The city also submitted affidavits stating that there had been “no previous complaints or reports regarding damage to the relevant portion” of the road.

August 23, 2021

Law firm had no duty after terminating its representation of plaintiff.

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

Where defendant law firm terminated its representation of plaintiff five months before the statute of limitations on any of plaintiff’s claims related to a car accident expired, summary judgment for defendant based on a lack of duty was affirmed. In Finley v. Wettermark Keith, LLC, No. E2020-01081-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2021), plaintiff hired defendant law firm to represent him after he was involved in a car accident. The attorney-client agreement stated that defendant “had agreed to handle all claims against ‘all responsible parties’ arising out of the accident.” Defendant negotiated an $1,800 settlement with the other driver’s insurance company, to which defendant alleged that plaintiff agreed, but plaintiff refused to sign the settlement release. Defendant thereafter terminated its representation of plaintiff, and defendant sent plaintiff a letter confirming the termination of representation and “encouraging him to seek the advice of another attorney concerning his case before expiration of the applicable time limitation.” When defendant stopped representing plaintiff, five months remained before the statute of limitations for the car accident claims would expire.

After the statute of limitations for the car accident claims had passed, plaintiff filed this legal malpractice action pro se. Plaintiff “asserted that [defendant] had failed to file suit against General Motors Company within the applicable statute of limitations” for injuries caused by airbags in his car. Defendant responded, stating that it never agreed to file suit against General Motors, that it did not handle air bag cases, that it negotiated a settlement that was then refused by plaintiff, and that it terminated its representation of plaintiff while he still had five months remaining to file suit in the underlying case. Both parties filed motions for summary judgment, and the trial court granted summary judgment for defendant, holding that any duty defendant had ceased when it terminated its representation of plaintiff. The Court of Appeals affirmed that ruling.

To make a claim for legal malpractice, a plaintiff must prove five elements, one of which is “a duty owed by the lawyer.” (internal citation omitted). Plaintiff did not dispute that defendant sent him a letter terminating its representation of him, and the Court found this dispositive of the case. The Court explained:

August 20, 2021

Dismissal of conversion case based on statute of limitations affirmed.

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

Where plaintiffs witnessed defendants loading their personal property onto a truck but did not file their complaint for conversion until more than three years later, dismissal based on the statute of limitations was affirmed. In Bender v. Attorney S. Madison Roberts, No. M2019-01699-COA-R3-CV (Tenn. Ct. App. Aug. 13, 2021), plaintiffs alleged in their pro se complaint that their home was sold at a property sale to satisfy a lien for unpaid property taxes. The successful bidder took possession of the house, and on August 13, 2015, plaintiffs drove by the house and saw people who worked for defendants loading plaintiffs’ personal property onto a truck and trailer. Plaintiffs asserted that that they were told the items were being taken to a recycling center, but in the days that followed plaintiffs were unable to get the personal property items back.

Plaintiffs filed this conversion suit on April 16, 2019, which was three years and eight months after the personal property was taken. The trial court granted defendants’ motion to dismiss, finding that the case was time-barred, and the Court of Appeals affirmed.

Claims for conversion of personal property are subject to a three-year statute of limitations, and a “claim for conversion accrues when the plaintiff knows or reasonably should know that the defendant has appropriated the plaintiff’s personal property to the defendant’s own use and benefit in defiance of the plaintiff’s right.” (Tenn. Code Ann. § 28-3-105(2); internal citation omitted). According to the allegations in the complaint, plaintiffs witnessed their personal property being taken by defendants and were not able to retrieve said property in the days that followed. Because plaintiffs did not file this conversion claim until well outside the three-year limitations period from when they knew their property had been taken, dismissal based on the statute of limitations was affirmed.