Day on Torts

December 2, 2021

New Website for Tennessee Lawyers

I am pleased to announce, after over a year of work, that I have completed the creation of a new website for Tennessee lawyers.

The website is called BirdDog Law. The website is designed to help Tennessee lawyers better serve their clients while saving themselves time and money. A major component of the site is free access to the rules of evidence, civil procedure, and appellate procedure. These resources are available at no charge on other sites, but in my judgment the sites are not user-friendly. I worked to design the BirdDog Law website to provide information the way that lawyers seek information. I am sure it is not perfect (and I intend to keep working to make it better), but I am convinced that it is a material improvement over any other free site and, if I may say, just as user-friendly as sites you must pay to access.

There are two things BirdDog gives you for free what you can’t readily get anywhere else. First, BirdDog has combined the rules of civil procedure with the Claims Commission regulations modifying the rules of procedure for use in Claims Commission so that you can look at one document to see the rules of civil procedure applicable in the Claims Commission. Second, BirdDog creates a list of cases pending before the Tennessee Supreme Court and gives you the current status of this case. This permits you to determine in less than one minute what cases (and issues) are before the Court and determine the case’s likely decision date. This information is publicly available, elsewhere but it is cumbersome to find.

November 29, 2021

Operations on the Wrong Body Part – from The Washington Post.

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

This is an article David L. Perlow, a board certified urologist practicing in the Atlanta area since 1983. The article appeared in the November 27, 2021 edition of The Washington Post. The full text of the article appears below.

In 2012, Paul Kibbett checked into a California hospital to have his cancerous right kidney removed. Surgeons erroneously took out his left kidney instead. After his doctors went back to remove the diseased kidney, Kibbett had to rely on dialysis for the rest of his life. The next year, a Pennsylvania man with chronic pain in his right testicle awoke from surgery to learn that the doctor had mistakenly removed his left testicle.

Such devastating errors, known as wrong-site surgeries, happen because the protocols meant to prevent them are counterintuitive and too often ignored. And doctors and hospitals are not required to report such accidents, which makes the problem harder to study. Some estimates suggest that wrong-site surgery happens about once in every 100,000 surgeries, which would mean hundreds of times per year in the United States. Some experts believe that as few as 10 percent of these mistakes are ever reported, so the accidents we know about may be the tip of the iceberg. But regardless of how common they are, these botched procedures are profoundly damaging. They are also more preventable than experts recognize.

November 23, 2021

Justice Programs 2021 Seminar

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

Penny White, Joe Riley and I will be hosting our annual three-city, 15-hour seminar program again the Fall. The program will be held in-person in Knoxville (Dec. 2-3), Nashville (Dec. 9-10), and Memphis (Dec. 16-17.

We will also be offering the same 15 hours of CLE via video. Those interested in remote learning can purchase all fifteen hours, individual hours, or bundles of hours.

Check out the Justice Programs website to learn more.

November 4, 2021

Summary Judgment Based on Tennessee Recreational Use Statute Affirmed.

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

Where a minor child was injured while playing on a playground at a state park, and after the incident a park ranger admitted that the mulch under the playground was not thick enough but no prior notice of the mulch condition had been shown, plaintiff had not proven gross negligence to overcome the immunity afforded to the State under the Tennessee Recreational Use Statute. In Victory v. State, No. M2020-01610-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2021), plaintiffs’ minor child had gone camping with her grandparents at a state park. While there, the child went with her grandmother to play on a playground, and the child fell off the playground, fracturing her arm. The grandparents took pictures of the area the day after the fall, and plaintiffs filed suit, alleging that the “injury was due to inadequate mulch or padding on the playground.”

Plaintiffs’ complaint asserted claims for negligence, gross negligence, and gross negligence per se. After discovery, the State filed a motion for summary judgment, which the Claims Commissioner granted on two grounds. First, the Claims Commissioner ruled that the claim was “barred by § 70-7-102(a) of Tennessee’s Recreational Use Statute, which protects landowners, including the State of Tennessee, from responsibility for injury to recreational visitors.” The Commissioner further found that the gross negligence exception to the Recreational Use Statute did not apply here. Second, the Commissioner ruled that “Plaintiffs failed to establish an essential element of their claim under § 9-8-307(a)(1)(C) of the Claims Commission Act, that the proper state official had been given prior notice of the playground’s condition.” On appeal, summary judgment for the State was affirmed.

October 21, 2021

Interesting Article on How Radiologists Can Avoid Medical Malpractice Claims

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

Dr. Benjamin Strong, Chief Medical Officer at vRad, has written an article on health care liability claims against radiologists. Dr. Strong “analyzed all 220 claims made against vRad radiologists between June 2017 and October 2020—applying a detailed classification taxonomy including the alleged type of miss, study type, if the standard of care was met, if communication failures contributed, settlement, and so on.”

Dr. Strong explained that “during that timeframe, [the company’s] 500+ radiologists read nearly 20 million studies and logged an error rate of just 1.3 major misses per 1,000 reads.” Back-of-the-envelope math tells us that is one malpractice claim for every 90,900 reads.

Dr. Strong’s efforts gave rise to a list of prioritized recommendations for avoiding medical malpractice in radiology.

October 19, 2021

No nuisance or trespass when neighbor did not increase surface water flow onto plaintiff’s property.

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

Where there was material evidence in the record to support the jury’s finding that plaintiff’s neighbor had not diverted water onto plaintiff’s property, the verdict for defendant on claims of nuisance and trespass was affirmed.

In Whitford v. Village Groomer & Animal Inn, Inc., No. M2020-00946-COA-R3-CV (Tenn. Ct. App. Sept. 17, 2021), plaintiff and defendant were neighbors. The southern property, which was owned by defendant, was “naturally situated a higher elevation than the northern section,” which was owned by plaintiff. The two properties were previously owned by a single owner, who had installed two storm drains on the northern property to divert surface water away from the property. He had also built a large shed on the southern property, which had three gutters that directed rainwater towards the northern section’s storm drains.

Plaintiff purchased the northern section of the property in 2002, and he built two buildings there to use in his veterinary business. One of the buildings was leased by defendant from 2002 to 2009. In 2007, defendant purchased the higher, southern section of the property. After the purchase, defendant “modified the existing shed,” and “some of the gutters on the new building directed rainwater toward the storm drains” on plaintiff’s property. Defendant also built three dog runs.

September 22, 2021

Claim regarding retirement benefit calculation was not a tort claim.

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

Although plaintiff labeled his complaint as a tort claim, the gravamen of the complaint was a dispute over “the amount, time and manner of payment of plaintiff’s pension plan benefits.” Plaintiff was therefore required to first present his claims to the pension board pursuant to the City’s Code of Ordinance, and thereafter was required to follow the judicial review provision laid out in the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-322, which grants exclusive jurisdiction of such reviews to the Chancery Court. Dismissal from the circuit court based on a lack of subject matter jurisdiction was thus affirmed.

In Best v. City of Memphis, No. W2021-0020-COA-R3-CV (Tenn. Ct. App. Sept. 15, 2021), plaintiff was a former firefighter who had initially been denied Line of Duty (LOD) disability benefits by the defendant City’s Pension Board. After plaintiff appealed the decision, an Administrative Law Judge determined that plaintiff was in fact entitled to benefits from defendant. The ALJ’s order was entered in May 2019.

In October 2019, plaintiff filed suit in the Circuit Court “alleging that the City delayed the payment of his LOD benefits, miscalculated the date from which back pay should begin, and improperly moved his official retirement date.” Plaintiff asserted claims for breach of contract, negligence, and negligent infliction of emotional distress. The trial court dismissed the breach of contract and emotional distress claim sua sponte, based on the City ordinance stating that participation in the retirement system did not create a contract, and based on Tenn. Code Ann. § 29-20-205(2), which states that “the City’s immunity from suit is not removed in cases of infliction of mental anguish.” The only remaining claim was the claim for negligence.

September 20, 2021

Cancellation rule should have applied to defendant’s contradictory testimony.

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

Where an insured driver stated under oath that he was driving another person’s truck in his capacity as a mechanic to test the vehicle, but then after a declaratory judgment action was filed by his insurance company he testified that he was driving the truck on a personal errand, the trial court should have applied the cancellation rule to his testimony.

In Tennessee Farmers Mutual Insurance Co. v Simmons, No. E2020-00791-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2021), defendant Simmons was a mechanic, and he had been hired by Jeremy Shipley to repair Shipley’s truck. While Simmons was driving Shipley’s truck, Simmons was involved in a car accident. The other driver filed suit against Simmons and Shipley, alleging that Simmons was negligent and caused the accident.

September 1, 2021

Statute of limitations did not affect time period to file with Tennessee Claims Commission after denial by Division of Claims and Risk Management.

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

Where plaintiff failed to file her appeal to the Claims Commission within 90 days of her claim being denied by the Division of Claims and Risk Management, dismissal was affirmed, even though the filing with the Claims Commission was within the one-year period following the car accident at issue. In Howard v. State, No. M2020-00735-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2021), plaintiff was injured in a car accident where the other car was being driven by a State employee. The accident occurred on March 12, 2019. Plaintiff filed a claim for damages with the Department of Claims and Risk Management (DCRM), which was denied on June 24, 2019. In the denial letter, the DCRM explained that plaintiff “had the right to file her claim with the Claims Commission within 90 days of the date of this denial.” Plaintiff subsequently filed her appeal with the Claims Commission on December 18, 2019. Because the appeal was not filed within 90 days of the denial by the DCRM, the Commissioner found that the Claims Commission lacked jurisdiction of the claim, and an order of dismissal was entered. This ruling was affirmed by the Court of Appeals.

“Tenn. Code Ann. § 9-8-402 provides… the procedure for initiating a claim against the State.” Subsection (c) of this statute states that if the claim is denied by the DCRM, “the division shall so notify the claimant and inform the claimant of the reasons therefor and of the claimant’s right to file a claim with the claims commission within ninety (90) days of the date of the denial notice.” The Tennessee Claims Commission Rules also refer to the “time limit set out in T.C.A. § 9-8-402(c).” (internal citation omitted).

August 25, 2021

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

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

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.