Day on Torts

August 25, 2021

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

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.

August 19, 2021

Plaintiff not entitled to conduct discovery on issue of whether defendant was prejudiced by incomplete HIPAA authorization in HCLA case

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

Where plaintiff sent a HIPAA authorization with her HCLA pre-suit notice that failed to include one of the six core elements required on a HIPAA-compliant authorization, dismissal was affirmed, and plaintiff was not entitled to conduct discovery to attempt to show that defendant was not prejudiced by the incomplete HIPAA authorization.

In Reese v. The Waters of Clinton, LLC, No. E2020-01466-COA-R3-CV (Tenn. Ct. App. Aug. 4, 2021), plaintiff, who was the patient’s power of attorney, filed an HCLA case based on treatment the patient received at a skilled nursing facility. Plaintiff sent pre-suit notice to multiple providers, and the complaint alleged that plaintiff had complied with the requirements of Tenn. Code Ann. § 29-26-121(a). The HPAA medical authorizations sent to the providers, however, “left blank the identity of the person or entity to whom the provider may make the disclosure,” which is one of the six core elements required by federal regulations for a HIPAA-compliant authorization. Defendant filed a motion to dismiss, which the trial court granted and the Court of Appeals affirmed.

Plaintiff’s argument on appeal was essentially that she should have been allowed to conduct discovery before the motion was decided for two reasons. First, she argued that “our Supreme Court’s opinion in Martin entitles Plaintiff to conduct discovery because the burden of proof lies with her to prove substantial compliance with pre-suit notice.” (See Martin v. Rolling Hills Hosp., LLC, 600 S.W.3d 322 (Tenn. 2020)). While Martin did outline a burden shifting framework for both establishing and challenging compliance with HCLA pre-suit notice requirements, the Court rejected plaintiff’s argument that this equated to a right for plaintiff to conduct discovery before a dismissal is granted. The Court pointed out that the motion in Martin was a motion for summary judgment, which is why the Court therein cited Rule 56, but that the Martin opinion held that “a Rule 12.02(6) motion is the correct vehicle to challenge compliance with the requirement of pre-suit notice in a healthcare liability action.” (internal citation omitted).

August 18, 2021

Premises liability summary judgment affirmed based on insufficient evidence of causation.

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

Where plaintiff filed a premises liability claim against the State asserting that decedent’s death was caused by injuries he sustained when he fell off a sidewalk that constituted a dangerous condition, but plaintiff could not “show that the condition of the sidewalk more likely than not caused” the fall, summary judgment for defendant was affirmed.

In O’Guin v. State, No. M2020-00732-COA-R3-CV (Tenn. Ct. App. July 28, 2021), decedent was admitted to the Tennessee State Veterans’ Home after suffering a stroke. He was in a wheelchair, but was “alert, oriented, and able to communicate with staff.” While spending time outside just two days after his admission, decedent “fell outside the facility entrance” and “suffered serious injuries and tragically died five days later.”

Plaintiff filed this case with the Claims Commission as administrator of decedent’s estate, “alleging that the State negligently created or maintained a dangerous condition on the property.” Plaintiff asserted that decedent was “fatally injured after his wheelchair fell off the sidewalk in front of the facility entrance,” and that the height of the sidewalk combined with the “lack of sufficient markings or barriers at the edge of the sidewalk created a dangerous condition.”

August 13, 2021

Discretionary costs award to defendants affirmed.

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

Where the jury returned a verdict for defendants and the trial court awarded defendants certain discretionary costs, the judgment was affirmed because plaintiff had not properly raised several of his arguments in the trial court and “the trial court did not abuse its discretion on the remaining issues.”

In Murphy v. Sarta, No. E2020-00445-COA-R3-CV (Tenn. Ct. App. July 26, 2021), plaintiff filed a personal injury action against defendants, and the jury returned a verdict for defendants. Defendants filed a motion for discretionary costs under Rules 54.04 and 68 of the Tennessee Rules of Civil Procedure, seeking $8,346.06. Plaintiff responded in opposition to the motion, but the trial court ultimately awarded defendants $3,449.81 in discretionary costs, and the Court of Appeals affirmed.

Plaintiff raised four issues on appeal. First, he argued that “court reporter costs for pre-trial hearings are not authorized under Rule 54.04(2).” After citing a Tennessee Supreme Court case which stated that Rule 54.04(2) “does not necessarily provide for expenses incurred for pretrial hearings,” the Court wrote that it “might be inclined to agree with [plaintiff] on the law.” Whether plaintiff had correctly interpreted the Rule did not matter in this case, however, because plaintiff had waived this argument by not raising it prior to the appeal. “It is well-settled that issues may not be raised for the first time on appeal.” (internal citation omitted). Because plaintiff “raised no argument that court reporter fees incurred at pre-trial hearings were not allowable costs under Rule 54.04(2) until this appeal,” the argument was waived.

August 13, 2021

Tennessee Supreme Court Agrees to Review Comparative Fault Issue in Negligent Misrepresentation Case

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

The Tennessee Supreme Court has agreed to accept review of a comparative fault issue concerning the tort of negligent misrepresentation. The issue:

Whether the affirmative defense of comparative fault is applicable to a negligent misrepresentation cause of action in which the conduct of the plaintiff constituting the basis for that defense also pertains to the justifiable reliance element of the negligent misrepresentation cause of action?

The case is Pryority Partnership v. AMT Properties, LLC, No. 2020-00511-SC-R11-CV. Here is a copy of the court of appeals opinion in the case, decided on March 10, 2021.

August 12, 2021

Dismissal affirmed under GTLA for failure to name doctor’s governmental entity employer as defendant.

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

Where defendant doctor was an employee of a governmental entity and plaintiffs failed to name the employer in their HCLA suit, dismissal under the Tennessee GTLA was affirmed. In Braylon W. v. Walker, No. W2020-00692-COA-R3-CV (Tenn. Ct. App. July 15, 2021), plaintiffs filed an HCLA suit against defendant doctor based on treatment surrounding the birth of minor plaintiff. The birth occurred at Jackson-Madison County General Hospital, and pursuant to a Physician Employment Agreement, defendant was employed by West Tennessee Medical Group (WTMG) at the time of the birth. WTMG is a governmental entity under the definitions in the Governmental Tort Liability Act.

When plaintiffs filed their complaint, they named only the doctor as a defendant. Defendant filed a motion for summary judgment, arguing that “because she was an employee of WTMG, the GTLA require[d] that WTMG also be named a party to the lawsuit.” The trial court granted summary judgment to defendant based on the GTLA, and the Court of Appeals affirmed.