Day on Torts

January 11, 2022

Legal Malpractice Claim Filed More than One Year after BPR Complaint was Untimely.

Where plaintiff had filed complaints with the Board of Professional Responsibility (BPR) complaining of the same allegations that allegedly supported her legal malpractice claim, and those BPR complaints were filed more than one year before the legal malpractice suit was filed, summary judgment based on the statute of limitations was affirmed.

In Jones v. Marshall, No. M2020-01627-COA-R3-CV (Tenn. Ct. App. Dec. 28, 2021), plaintiff filed this pro se legal malpractice claim against defendant on December 20, 2019. Plaintiff had previously reported defendant to the BPR based on the same allegations in November 2018. Defendant filed a motion to dismiss, asserting that the BPR decisions on the matter “were res judicata and Plaintiff had failed to establish a prima facie case of legal malpractice.” Defendant filed a separate motion for summary judgment, asserting that the complaint was barred by the statute of limitations.

January 4, 2022

Wrongful Death of a Zygote? Last Year the Law Changed

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

Tennessee wrongful death lawyers may wish to read my newest article in the Tennessee Bar Journal, “”Wrongful Death of a Zygote?”

The article discusses a recent important change to Tennessee wrongful death law.

January 3, 2022

Negligence summary judgment affirmed where plaintiff had no evidence of breach of duty.

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

Where plaintiff had no evidence that defendant took any action that contributed to him being knocked off a ladder while nailing a board to a window, summary judgment for defendant was affirmed.

In Malone v. Viele, No. E2021-00637-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2021), plaintiff and defendant were friends who both had construction work experience. Defendant needed help nailing boards across a window on his cabin that was under construction, and plaintiff agreed to assist him. Plaintiff and defendant were both on ladders, and one would hold the lower end of the board while the other nailed the upper end of the board to the cabin. Plaintiff had placed his own ladder and was using his own hammer during the project. Plaintiff was nailing one board while the other end was being held at a lower diagonal by defendant, when after placing a few nails in the board, plaintiff hit the board again with his hammer and the board bounced back and knocked him off his ladder, causing serious injuries.

Plaintiff filed this personal injury suit, asserting that defendant’s negligence caused his injuries. During his deposition, plaintiff was asked what defendant was doing when the injury occurred, and plaintiff stated that defendant was “holding the lower end” of the board. When asked what defendant did “that caused the two-by-four to come out,” plaintiff responded that he did not know. During his own deposition, defendant stated that he was “just holding the board” at the time of the accident.

December 31, 2021

Child in care, custody, or control of State between removal from parent’s home and entry of custody order by juvenile court.

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

Where a child was removed from his parents’ custody by the Department of Children’s Services (DCS) and placed in a home that DCS’s own investigation had found to be unsafe, and the child later died while in that home, the Claims Commission had subject matter jurisdiction of the parents’ negligence claim because the child was in the care, custody, or control of the State when the negligent inspection and recommendation for placement was made.

In Green v. State of Tennessee, No. M2020-01244-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2021), plaintiffs were the parents of three minor children. After receiving a report of abuse and/or neglect concerning the children, DCS removed the children and the mother signed an Immediate Protection Agreement (IPA) stating that temporary custody would be given to the children’s grandparents. Ms. McSwain was the DCS case manager assigned to the case, but a DCS staff member in the grandparents’ county visited the home and found it to be unsafe, specifically noting that there was not “sufficient furniture for safe sleep.” Despite that finding, Ms. McSwain placed the children in the grandparents’ home, and she never visited the home or followed up to see if any changes had been made. A court order granting temporary custody to the grandparents was eventually entered. Four months after being placed with the grandparents, one of the children died “from co-sleeping in a recliner with [the grandmother].” Ms. McSwain and her supervisor “were subsequently terminated by DCS for negligence.”

Parents brought this negligence suit against the State pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(E), and the State filed a motion to dismiss asserting that the Claims Commission did not have subject matter jurisdiction of the case. The State argued that because there was a court order granting temporary custody to the grandparents in place when the child died, the child was not in the State’s “care, custody, and control,” which is required by the statute. The Claims Commission agreed with the state, finding that the case did not fall within the subsection cited by plaintiffs, that governmental immunity was therefore not waived, and that it accordingly did not have subject matter jurisdiction. This holding was reversed on appeal.

December 20, 2021

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

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

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.