Day on Torts

February 25, 2022

Claims Commission decision to credit defense witnesses affirmed.

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.

February 24, 2022

$1.5M Verdict Affirmed in Tennessee Car Wreck Case.

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

Where there was material evidence to support the jury’s verdict of more than $1.5 million in a car accident case, the verdict was affirmed.

In Malone v. ASF Intermodal LLC, No. W2020-00430-COA-R3-CV, 2022 WL 353697 (Tenn. Ct. App. Feb. 7, 2022), plaintiff was in a car accident caused by an employee of defendant, and defendant had admitted fault. The only issue in this personal injury case was damages. The evidence at trial showed that plaintiff drove himself home from the accident, but that he developed leg and back pain soon thereafter. Plaintiff and his experts also testified that plaintiff suffered a traumatic brain injury in the accident. Defendant’s experts disputed that plaintiff’s pain was caused by the accident, pointing out that plaintiff had begun treatment for a chronic leg condition in his other leg seven years before the accident. While plaintiffs’ experts opined that his pain was caused by the accident, defendants’ experts testified that the chronic condition was the likely cause.

February 22, 2022

Summary judgment affirmed where defendant did not place structure creating nuisance on defendant’s easement.

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

Where the State had an easement on plaintiff’s property for the construction and maintenance of a drainage facility, but plaintiff had no evidence that the faulty concrete structure causing flooding on his property was installed by the State, summary judgment on his nuisance claim was affirmed.

In Walker v. State, No. M2020-01626-COA-R3-CV, 2022 WL 244108 (Tenn. Ct. App. Jan. 27, 2022), plaintiff purchased a piece of property in a distress sale and did not perform an inspection before the purchase. The previous owners of the property had granted the State a permanent easement “for construction and maintenance of a drainage facility.” Shortly after the purchase, plaintiff began having flooding issues, which he attributed to a concrete structure located within the easement that was broken and/or defective. Plaintiff initially sued the Metropolitan Government of Nashville and Davidson County (Metro) for damage to his property, which ended in summary judgment for Metro based on sovereign immunity. After that decision was affirmed on appeal, plaintiff filed this nuisance claim against the State.

The State moved for summary judgment, asserting that plaintiff “failed to offer any evidence that the State installed the drainage structure and that the State is not responsible for maintaining materials it did not place on the easement.” In support of its motion, the State pointed to deposition testimony that the structure in question was “funky,” was not something the State would have used at any point, and was available to consumers. Based on the evidence presented, the trial court granted summary judgment to the State, and the Court of Appeals affirmed.

February 20, 2022

BirdDog Law Adds Free Access to Rules of Criminal Procedure and Criminal Appeals Rules

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

BirdDog Law, the leading resource center for Tennessee trial lawyers, now has 24/7 free access to the Tennessee Rules of Criminal Procedure and the Criminal Appeals Rules. Click on the links to access the new additions. To see a complete list of our free resources for Tennessee trial lawyers, click here.

Bookmark Bird Dog!

The Tennessee trial lawyer’s best friend!

February 17, 2022

Premises liability summary judgment affirmed based on lack of constructive notice.

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

Where premises liability plaintiffs could not show that defendant church, who was renting the property to another church, had constructive notice of a downed power line on the property that had most likely been down for approximately 26 hours, summary judgment was affirmed.

In Kelly v. Debre Keranio Medhanialem Ethiopian Orthodox Tewahedo Church, No. M2019-02238-COA-R3-CV, 2022 WL 202639 (Tenn. Ct. App. Jan. 24, 2022), plaintiffs were the parents of a minor child who was severely injured when he was playing on property owned by defendant church and he came into contact with a downed power line. Defendant church owned a tract of property that included four buildings. Defendant leased two of the buildings, the sanctuary and the fellowship hall, to St. Mary Church, who used the buildings and took on responsibilities for the buildings, including minor maintenance and paying the electric bill. Defendant was responsible for mowing the grass between the fellowship hall and sanctuary, and it paid a service to perform this work.

February 16, 2022

Summary judgment for defendants in premises liability case affirmed

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

Where a premises liability plaintiff did not provide sufficient proof that a sewer cleanout cap in a sidewalk was a dangerous or defective condition, summary judgment for defendants was affirmed.

In Garamella v. City of Lebanon, No. M2021-00262-COA-R3-CV, 2022 WL 202641 (Tenn. Ct. App. Jan. 24, 2022), plaintiff was walking on a sidewalk in a residential neighborhood when she tripped and fell over a sewer cleanout cap that protruded from the middle of the sidewalk. Plaintiff was walking her dog at the time and admitted in discovery that she was distracted by her dog and “probably would have seen the cleanout cap had she been looking forward as she walked.”

The sidewalk was located in a neighborhood constructed by defendant Goodall Homes. Goodall had contracted with a construction company to build the sidewalk, which was substantially completed in September 2006. The City of Lebanon, who was also named as a defendant, completed a final surface inspection of the area in November 2009 and thereafter “assumed responsibility for the maintenance of the sidewalk.” The evidence in this case showed that an unnamed homeowner had also potentially tripped over the cap at some point in the past, but that the cap placement was “compliant with the applicable code” and that if such a previous trip had occurred, it was not reported to the City. Defendants Goodall and the City both filed motions for summary judgment, which the trial court granted, and the Court of Appeals affirmed.

February 15, 2022

Covid-19 Shuts Down Tort and HCLA Trials in Tennessee in 2020-21

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

Tennessee’s tort and health care liability action trials came near to a screeching half for the fiscal year ending June 30, 2021.

There were only 31 jury and 113 nonjury tort trials in twelve months, and only 1 jury and 7 nonjury health care liability cases tried during the same period. Jury trials in tort cases were down over 70% from the year ending June 1, 2020 (108 to 31) and nonjury trials were down only slightly (121 to 113). HCLA jury trials were down over 80% (6 to 1) and nonjury HCLA cases were up slightly from 3 to 7).

In the HCLA cases, damages were awarded to the plaintiff in only one case (12.5% of cases).

In the tort cases, damages were awarded in 43 cases (29.9% of cases).

(We cannot say that the plaintiff “won” the cases in which damages were awarded. The plaintiff “prevailed” in those cases, but a “winning” is different than “prevailing.”)

February 14, 2022

Negligence case against insurance agent fails due to statutory presumption.

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

Because Tenn. Code Ann. § 56-7-135(a) creates a rebuttable presumption that a person who signs an insurance contract “has read, understands, and accepts the contents of such document,” and plaintiff did not rebut that presumption, the trial court properly granted summary judgment to defendants on plaintiff’s claims for negligence and negligent misrepresentation.

In Vanquish Worldwide, LLC v. Sentinel Insurance Company, LTD, No. E2020-01650-COA-R3-CV, 2022 WL 189791 (Tenn. Ct. App. Jan. 21, 2022), plaintiff provided certain services to the U.S. government, and it subcontracted some of these services to another company. Plaintiff purchased insurance through defendant insurance agent Steve Hardin, who met with plaintiff and was told that plaintiff “sought business liability coverage for the contract administration and claims bookkeeping that [plaintiff] performed under the trucking contract.” A policy was issued through defendant insurance company, which a representative of plaintiff executed.

February 10, 2022

Tennessee Legal Malpractice Claim Filed Too Late

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

The one-year statute of limitations for a legal malpractice claim began to run no later than when a representative for plaintiff reviewed the court file after the trial court had found in the other party’s favor, where the court file contained information sufficient to establish constructive notice of defendant attorney’s alleged wrongdoing in the underlying case.

In Coffee County v. Spining, No. M2020-01438-COA-R3-CV, 2022 WL 168145 (Tenn. Ct. App. Jan. 19, 2022), plaintiff county filed this legal malpractice suit against defendant attorney who had represented the county in an underlying action filed by a former county employee. In the underlying case, defendant and opposing counsel had attended a bench conference where they all agreed that the employee would seek emotional damages with the jury, and if the jury found that a PEPFA violation had occurred, the employee would then seek equitable damages through a bench trial. The attorneys agreed to a jury form that included only two questions, neither of which asked if the employee’s “termination actually resulted from the County’s PEPFA violation.” After the jury found for the employee, the county’s attorney moved for a new trial, arguing that the jury verdict did not support an award of damages from the termination. The trial court denied that motion and entered an award for the former employee on July 7, 2017.