Day on Torts

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.

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.