Day on Torts

January 14, 2021

Dismissal as discovery sanction affirmed.

Where plaintiff failed to comply with an order to supplement his discovery in a car accident case, the Tennesse Court of Appeals affirmed dismissal.

In Gordon v. Chapman, No. W2019-01655-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2020), plaintiff and defendant were involved in a car accident on the interstate. Plaintiff filed this negligence suit against the defendant, seeking damages for pain and suffering, and defendant counter-claimed alleging that plaintiff negligently caused the accident.

On April 26, 2019, the trial court held a status hearing wherein it “ordered [plaintiff] to supplement his incomplete discovery responses to [defendant].” The trial court specifically ordered the plaintiff to provide a written description of his claimed injuries and an itemization of his medical bills. On July 10^th, the defendant moved for discovery sanctions against the plaintiff, alleging that plaintiff had produced some medical bills but had not complied with the trial court’s order. At a hearing on July 26^th, the trial court entered an order stating that the plaintiff was to provide his supplemental responses by August 2^nd, and that if he failed to do so the case would be dismissed with prejudice. On August 2^nd, the trial court held a hearing where it heard from both parties, and it dismissed the plaintiff’s case. Plaintiff appealed, arguing that he supplemented his responses on August 8^th, but the Court of Appeals affirmed the dismissal.

January 13, 2021

Failure to file post-trial motion resulted in waiver of directed verdict argument on appeal.

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

Where the defendant failed to file a post-trial motion, she “waived her right to contest the trial court’s denial of her motion for a directed verdict.”

In Carman v. Kellon, No. M2019-00857-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2020), the plaintiff was seriously injured when she was jogging on the side of a road and was hit by a truck driven by the defendant son. Plaintiff and her husband brought this action against the defendant son/driver for negligence, negligence per se, and recklessness, and against his mother for vicarious liability and negligent entrustment. Though the trial court granted the mother summary judgment on the vicarious liability claim, the negligent entrustment claim proceeded to a jury trial. At the close of plaintiffs’ proof, defendants moved for a directed verdict, which the trial court denied. At the end of the trial, the jury returned a very large verdict against both defendants, finding the son 60% at fault and the mother 40% at fault. Neither the mother nor the son filed any post-trial motions.

January 12, 2021

Public Duty Doctrine did not apply in dangerous sidewalk case.

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

Where plaintiff filed a GTLA suit based on the city school system’s failure to remedy a dangerous condition on a sidewalk at its high school, the public duty doctrine did not apply and immunity was removed under the GTLA.

In Lawson v. Maryville City Schools, No. E2019-02194-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2020), the plaintiff was taking her grandson to school when she tripped and fell on a deteriorated section of sidewalk. The sidewalk was located on school property, which was owned and controlled by the defendant.

Plaintiff filed this suit under the GTLA, and defendant filed a motion to dismiss, asserting that it was “immune from suit pursuant to the public duty doctrine.” The trial court agreed, dismissing the case, but the Court of Appeals reversed the dismissal.

The Court of Appeals began its analysis by explaining that “both the GTLA and the public duty doctrine are affirmative defenses,” and that when a case potentially involves both, the Court is “to first look to the GTLA.” (internal citations omitted). If the Court determines that the GTLA “does not provide immunity, [it] may look to the general rule of immunity under the public duty doctrine.” (internal citation omitted). Continue reading

January 11, 2021

Public Duty Doctrine Applied To Eliminate Claim

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

Where a sheriff’s deputy owed a duty to the public at large, but not to plaintiff specifically, to protect cars from running into a downed tree on a state highway, the Public Duty Doctrine barred plaintiff’s GTLA suit and dismissal of plaintiff’s case was affirmed.

In Kimble v. Dyer County Tennessee, No. W2019-02042-COA-R3-CV (Tenn. Ct. App. Dec. 16, 2020), plaintiff filed suit under the Governmental Tort Liability Act (GTLA) after he was injured in a car accident. According to plaintiff, there was a bad storm the night of the accident and a tree had fallen across the state highway plaintiff was traveling on. Plaintiff’s vehicle ran into the downed tree, causing him injury. The crux of plaintiff’s complaint was that the sheriff’s office had been notified of the downed tree, and that a sheriff’s deputy negligently and/or recklessly left the scene of the downed tree to attend to another emergency “without leaving any sign or signal of a hazardous situation.” Plaintiff’s accident occurred after the deputy had been to and left the downed tree area.

Plaintiff named the county, the sheriff, and the deputy as defendants, and defendants moved to dismiss based on several theories under the GTLA. The trial court granted the motion to dismiss, relying in part on the Public Duty Doctrine, and the Court of Appeals affirmed.

Pursuant to the GTLA, “an act or omission is considered operational and immunity is removed either when: (1) the conduct occurs in the absence of a formulated policy guiding the conduct or omission; or (2) when the conduct deviates from an established plan or policy.” (internal citation omitted). Making all reasonable inferences in plaintiff’s favor here, the Court of Appeals found that the deputy’s actions could be considered operational and that immunity was thus removed under the GTLA, unless a defense applied. Continue reading

December 30, 2020

Tennessee “Discovery Rule” Applied to Vehicle Crash Case

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

Where plaintiff knew her husband was killed in a car accident with a firefighter but did not know all the details regarding how the accident occurred, the one-year statute of limitations began to run on the day of the crash and her GTLA suit that was filed more than one year after the accident was untimely.

In Durham v. Estate of Losleben, No. W2019-01623-COA-R3-CV (Tenn. Ct. App. Dec. 8, 2020), the plaintiff’s husband was killed when his vehicle collided with one being driven by a firefighter. One year and 21 days after the accident, the plaintiff filed this case under Tennessee’s Governmental Tort Liability Act against the county that employed the firefighter, the fire department, and the estate of the firefighter, who was also killed in the accident.

Defendants moved to dismiss based on the statute of limitations. The trial court granted the motion, finding that the GTLA claim against the governmental entities was time-barred and that the estate was immune under the GTLA. The Court of Appeals affirmed this ruling.

December 17, 2020

Unsworn declaration created issue of fact to oppose summary judgment.

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

Where plaintiff filed a declaration in response to defendants’ motion for summary judgment that sought to amend her prior deposition testimony based on her nervousness during the deposition and her refreshed recollection of the incident in question, the Court of Appeals ruled that the declaration should have been considered and that there were thus genuine issues of material fact. Summary judgment for defendants was reversed.

In Lundell v. Hubbs, No. E2019-02168-COA-R3-CV (Tenn. Ct. App. Nov. 23, 2020), plaintiff worked at an elementary school and regularly volunteered as a bus aide. On the day of her injury, plaintiff was “traversing the aisle of the bus” when she alleged that the bus driver “carelessly and recklessly drove over a speed bump at an unsafe rate of speed, causing her to fall and sustain injuries.”

Plaintiff filed this negligence suit against the driver and the owner/bus line, and defendants filed a motion for summary judgment. Plaintiff responded to the motion and attached to her memorandum a “Declaration of Barbara Lundell,” wherein she explained that she was nervous during her initial deposition and had incorrectly identified where the incident took place. The trial court granted summary judgment to defendants, ruling that plaintiff’s declaration should not be considered, that plaintiff had not shown a breach of duty, and that plaintiff was at least 50% at fault because she “was in the best position to protect herself from the common-sense danger of walking in the aisle of a moving school bus.” On appeal, summary judgment was reversed.

December 14, 2020

Justice Programs Offering On-Demand CLE

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

Tennessee Justice Programs has released it Fall 2020 on-demand video seminar CLE programs.

Former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley, and I started Justice Programs almost 20 years ago. The seminar program is designed for civil trial practitioners who are interested in enhancing their legal knowledge as they earn CLE credit.

Historically, our seminar was presented in three live programs in Knoxville, Nashville and Memphis. This year, COVID-19 has caused us to abandon the normal and film 15 hours of on-demand legal education. The Tennessee Supreme Court now permits unlimited on-demand programs to fulfill all CLE obligations. Continue reading

December 11, 2020

No reasonable reliance on warranty deed where lien was publicly recorded.

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

Where plaintiffs claimed intentional misrepresentation based on a warranty deed stating that property being conveyed was free from encumbrances, but a bank held a lien on the property and had recorded a deed of trust eight years before the transaction, plaintiffs’ reliance on the warranty deed was not reasonable.

In Erwin v. Great River Road Supercross, LLC, No. W2019-01005-COA-R3-CV (Tenn. Ct. App. Dec. 1, 2020), plaintiffs purchased real property from defendants in 2008. The warranty deed conveying the property “contained a covenant that the real estate was unencumbered.” The parties eventually got into a dispute regarding personal property that was supposed to be included in the sale, which resulted in plaintiffs paying less than the agreed price and defendants declaring a default and instituting foreclosure proceedings. During the foreclosure, plaintiffs learned that a bank had a pre-existing lien on the property, meaning that the representation in the warranty deed that the property was unencumbered was false.

December 4, 2020

HCLA pre-suit notice addressed to administrator as an individual did not provide notice to health care facility.

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

Where an HCLA plaintiff attempted to sue defendant medical center but sent pre-suit notice to the center’s administrator addressed only to the administrator and not referencing the center, dismissal based on a lack of pre-suit notice was affirmed.

In Webb v. Trevecca Center for Rehabilitation and Healing, LLC, No. M2019-01300-COA-R3-CV (Tenn. Ct. App. Nov. 10, 2020), plaintiff filed this health care liability suit against defendant medical center and four individual employees of the center. Prior to filing suit, she sent five pre-suit notices to the center’s business address. Four of the notices were addressed to the four individual defendants and the fifth was addressed to Pamela Bishop, who was the medical center’s administrator. In neither the address, the address block on the letter, nor the greeting was Ms. Bishop’s role as administrator addressed. Instead, the letter was simply written to Pamela Bishop.

Plaintiff voluntarily dismissed the four individual defendants, and then defendant medical center moved to dismiss based on plaintiff’s failure to give proper pre-suit notice. Defendant asserted that the notice addressed to Ms. Bishop did not fulfill the statutory requirements, and the trial court agreed. On appeal, dismissal was affirmed.

December 3, 2020

Tennessee’s Rule 11 Will Require Email Address on Pleadings

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

The Tennessee Rules of Civil Procedure will be changed July 1, 2021 to require the disclosure of the filer’s email address on papers filed in court. The rule change still must be approved by the General Assembly.

UPDATE: The proposed rule change was approved by the General Assembly on March 22, 2021.

Click to access hr0021.pdf