Day on Torts

February 8, 2022

Intentional misrepresentation and medical battery claims fell within HCLA

Where plaintiff alleged that defendant doctor made intentional misrepresentations when obtaining her consent for a surgery and therefore committed medical battery, the claims fell under the HCLA.

In Cooper v. Mandy, No. M2019-01748-SC-R11-CV, 2022 WL 175804 (Tenn. Jan. 20, 2022), plaintiff met with defendant doctor to discuss a breast reduction surgery, and defendant stated that “he was a board-certified plastic surgeon.” Based on these representations, plaintiff consented to the surgery, which allegedly went wrong in that it was “unnecessarily painful,” “performed in a barbaric fashion,” and left plaintiff “disfigured and with grotesque and painful bacterial infections.” Plaintiff later discovered that defendant was not board-certified as a plastic surgeon or in any other specialty.

February 7, 2022

Involuntary dismissal affirmed when video showed that defendant’s car was visible when plaintiff pulled onto roadway.

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

Where security camera footage showed that plaintiff pulled onto the road when defendant’s approaching vehicle was clearly visible, plaintiff was at least 50% at fault for the resulting car accident, despite the fact that defendant was going at least twenty miles per hour over the speed limit.

In Cryer v. City of Algood, Tennessee, No. M2020-01063-COA-R3-CV, 2022 WL 150854 (Tenn. Ct. App. Jan. 18, 2022), plaintiff was driving his vehicle with his wife in the passenger seat. When he pulled onto the road, attempting to cross two lanes of traffic and a turning lane, his vehicle was struck by a police cruiser driven by Officer Ferguson, who was employed by defendant city.

Plaintiff filed this negligence suit and defendant counterclaimed, also raising the defense of comparative fault. During a bench trial, the evidence showed that the police cruiser was in the left lane and had just passed a black car that was traveling in the right lane. Security camera video showed, however, that at the time plaintiff began pulling out, the cruiser was visible on the straight road. Evidence also showed that the cruiser was traveling at least 60 miles per hour while the speed limit was 40 miles per hour, and that the officer did not brake until a short time before impact. Plaintiff’s wife testified that she was talking to plaintiff when he pulled onto the road, and that shortly before this she had told him to put on his seatbelt.

February 3, 2022

Summary judgment vacated where trial court order failed to give reasons for decision

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

Where the trial court did not provide sufficient reasoning in support of its dismissal of plaintiffs’ various HCLA and informed consent claims, summary judgment for defendants was vacated.

In Boyd v. Gibson, No. W2020-01305-COA-R3-CV, 2022 WL 95167 (Tenn. Ct. App. Jan. 10, 2022), plaintiff had been treated by defendant doctor for cancer (defendant’s employer was also a defendant). This treatment began in 2014 and included surgery. According to plaintiff, defendant told her that she would not benefit from chemotherapy or radiation, and defendant “did not explain to [plaintiff] the survival rates with chemo/radiation and more extensive rectal surgery…” After the September 2014 surgery, defendant referred plaintiff to an oncologist “without discussing chemo/radiation therapy or consulting a radiation oncologist.” In August 2017, plaintiff learned that her cancer and reoccurred and spread.

February 1, 2022

Denial of motion to name correct defendant affirmed due to delay and lack of diligence

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

Where plaintiff named the wrong defendant in a Tennessee premises liability suit, was informed that the named defendant did not own the property three weeks after the complaint was filed, but failed to take any corrective action for more than four months when she filed a “Motion to Correct Misnomer” in response to defendant’s motion for summary judgment, denial of plaintiff’s motion and the granting of summary judgment for defendant was affirmed. In Bodine v. Long John Silver’s LLC, No. M2021-00168-COA-R3-CV (Tenn. Ct. App. Jan. 14, 2022), plaintiff fell on what she alleged was a dangerous concrete structure in a Long John Silver’s parking lot. The fall occurred on February 25, 2019, and plaintiff filed this suit on February 24, 2020, against “Long John Silver’s, LLC, individually and d/b/a Long John Silver’s.” Three weeks after suit was filed, counsel for defendant emailed plaintiff and stated that JAK Foods, Inc. was the franchisee for this restaurant location, and defendant did not own, operate, or control the restaurant or have any employees there.

Defendant filed an answer in April 2020, then filed a motion for summary judgment on June 11, 2020, asserting that it owed no duty to plaintiff. On July 28, 2020, plaintiff filed a “Motion to Correct Misnomer,” seeking to substitute JAK Foods as defendant. Plaintiff argued that the substitution should relate back to the date of the original filing under Tennessee Rule of Civil Procedure 15.03, as JAK Foods had “received timely notice of the action and that it should have known that but for the mistake regarding its identity, the action would have been brought against it.” In October 2020, defendant asked that the motions be put on the docket, and after a December hearing, the trial court denied plaintiff’s motion and granted summary judgment to defendant. When plaintiff filed a motion to alter or amend, the trial court specifically noted that it “considered…the extreme lack of due diligence exhibited by the Plaintiff” and that “no additional due diligence was performed by Plaintiff from July 2020 to January 2021.” The trial court accordingly denied the motion to alter or amend, and the Court of Appeals affirmed.

In its analysis, the Court of Appeals first pointed out that plaintiff had failed to designate “the grant of summary judgment as an issue for review,” so that issue was waived. The only issue on appeal, then, was whether the trial court correctly denied plaintiff’s “Motion to Correct Misnomer.”

January 31, 2022

Tennessee Supreme Court to Hear Two New Cases

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

Last week, the Tennessee Supreme Court agreed to hear two new cases.

One is a tort case. Kenneth J. Mynatt v. National Treasury Employees Union, Chapter 39 addresses the torts of malicious prosecution and civil conspiracy.

The other, City of Knoxville, Tennessee v. Netflix, Inc., addresses the the right to regulate Netflix and Hulu (and similar concerns) by local governments. The Court accepted certification of a question of state law from the United States District Court in Knoxville.

January 26, 2022

BirdDog Law Now Has Free Access to Tennessee Rules of Criminal Procedure

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

BirdDog Law, the new leading resource center for Tennessee trial lawyer s and judges, now has free access to a user-friendly version of the Tennessee Rules of Criminal Procedure. Access the rules from your desktop, notebook, tablet or cell phone 24/7 anywhere you have access to the internet.

BirdDog Law is designed to help trial lawyers have ready, 24/7 access to materials they use everyday. BirdDog is still growing, but is quickly becoming the site of choice for Tennessee trial lawyers to access information they need to serve their clients.

Bookmark BirdDog!

January 25, 2022

Filing complaint with Tennessee Claims Commission did not satisfy requirement to give written notice to Division of Claims and Risk Management.

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

Where plaintiff wife failed to give written notice of her loss of consortium claim against the State of Tennessee to the Division of Claims and Risk Management, dismissal of her claim was affirmed, despite the fact that her complaint was filed with the Claims Commission within the statute of limitations.

In Kampmeyer v. State, No. M2019-01196-SC-R11-CV (Tenn. Jan. 13, 2022), plaintiff husband was seriously injured when his car crashed into a state-owned vehicle that had been parked on a highway. Pursuant to Tenn. Code Ann. § 9-8-402, which applies to certain claims against the State, husband gave written notice of his claim for damages to the Division of Claims and Risk Management (Division of Claims). When the Division of Claims took no action within 90 days, husband filed a complaint with the Claims Commission. This complaint was filed just under one year after the car accident, and instead of only including husband’s claims, it also included a loss of consortium claim from plaintiff wife.

January 18, 2022

Previous rejection of uninsured motorist coverage remained in affect after policy renewal.

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

Where a company had properly rejected uninsured motorist coverage for its fleet of vehicles in 2002, and the company submitted standard information for its 2011 policy renewal, the 2002 rejection remained in effect and uninsured motorist coverage was not part of the company’s automobile insurance policy.

In Hughes v. The Liberty Mutual Fire Insurance Company, No. E2020-00225-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2021), plaintiff was the driver of a vehicle owned by a large healthcare company (HMA). Plaintiff was in an accident while driving an HMA vehicle, and he filed a personal injury suit and gave HMA’s insurer, defendant Liberty Mutual, notice of a potential uninsured motorist claim.

January 15, 2022

How To Determine What Cases Are Pending Before the Tennessee Supreme Court

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

The Tennessee Supreme Court reviews very few cases in a given year. In the year ending June 30, 2020 (the last period for which information is publicly available) the High Court was asked to accept review in 569 cases. (These are the cases where the Court has the discretion whether to hear the case or allow the lower court ruling to stand. There are other types of cases that the Court is required to hear.) Out of the 569 cases it was asked to review, it accepted only 20.

In the same fiscal year, the Court issued opinions in 63 cases.

Given the case selection criteria in discretionary review matters and the types of appeal-as-of-right cases, each opinion is highly likely to materially impact Tennessee law.

January 13, 2022

Collection of Case Law on the Issue of Whether a Civil Trial Should be Conducted Virtually

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

The parties in Djeneba Sidibe et al. v. Sutter Health, Case No. 3:12-cv-04854-LB, a civil antitrust case in federal court in San Francisco, are in a dispute over whether a case ready for trial should be tried virtually. Plaintiff seeks an immediate virtual trial. Defendant opposes it.

The joint submission by the parties on the issue includes arguments for and against virtual jury civil jury trials and a host of case law on the issue. This 16-page letter , which includes an exhibit for remote and safety protocols for the trial, cost tens of thousands of dollars in lawyer time to prepare.

And you get the benefit of the work at no cost.