Day on Torts

December 1, 2020

Need CLE? Justice Programs Offers On-Demand Video For Lawyers Who Want to Learn

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.

November 30, 2020

Dismissal Based on Lack of Foreseeability Reversed.

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

Where plaintiffs, who were suing on behalf of an employee of an independent contractor on a construction project, alleged facts sufficient to meet the “minimum threshold of foreseeability” against the defendant general contractor, and where discovery had not yet occurred to allow for the inspection of the contracts between the relevant parties, dismissal of plaintiffs’ wrongful death claim against the general contractor was reversed.

In Thompson v. Southland Constructors, No. M2019-02060-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2020), plaintiffs were the decedent’s children, who had died while working as a plumber on a construction project. The project involved building a new gym for Welch College, and before the decedent’s involvement in the project, a different plumping company had laid a sewer line. The day before the gym was scheduled to be used for the first time, general contractor Southland Constructors discovered that the sewer line had not actually been connected to the building before it was buried. Southland then called Mitchell Plumbing, the decedent’s employer, and the decedent was sent to connect the pipe. According to the complaint, Southland advised Mitchell Plumbing that the trench dug to correct the problem would be about 15 feet long and 3 feet deep, but it ended up being both longer and deeper. The complaint alleged that no materials were used to shore up the trench based on the representations made by Southland, that the general contractors failed to have traffic stopped at a nearby parking lot, and that the “soil in the area was in an especially dangerous condition because it was wet and loose due to the previous excavation.” Soon after the decedent got into the trench to repair the sewer line, the walls collapsed, and he was killed.

November 24, 2020

Expert affidavit created issues of fact to withstand summary judgment in HCLA case

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

Where an HCLA plaintiff presented expert testimony that defendant doctor deviated from the standard of care for a patient in respiratory distress by “failing to provide necessary treatment before ending his shift,” summary judgment for defendant was reversed because genuine issues of material fact existed.

In Davis v. Ellis, No. W2019-01367-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020), plaintiff’s wife was admitted to the emergency room and diagnosed with pneumonia. The following day at 4:00 pm, she was examined by defendant doctor, who was the on-call intensivist. Defendant noted that the patient was awake and alert but that her oxygen saturation level was 93% and that her “respiratory condition had progressively worsened over the past 24 hours.” Defendant “did not order intubation at that time but referred [the patient] to the ICU for observation.” Defendant’s shift ended two hours later.

By 7:30 pm, the patient’s oxygen saturation level had dropped to 82%, and the intensivist who was on call ordered that she be put on non-invasive, positive-pressure face mask ventilation. Around 10:00 pm, her oxygen levels began falling again and were down to 74% by 11:00 pm. The emergency room doctor then tried to intubate her but eventually called anesthesiology for assistance. The patient was finally intubated, but she died approximately six hours later.

November 23, 2020

Prejudgment interest included in “all damages” language in uninsured motorist insurance policy.

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

Where plaintiff’s uninsured motorist insurance policy stated that it covered “all damages” and prejudgment interest was not listed as a specific exception to coverage, the Court of Appeals ruled that the policy language was “sufficiently broad to include prejudgment interest.”

In Lewis v. State Farm, No. W2019-01493-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020), plaintiff was in an accident caused by an unknown driver who left the scene. Plaintiff was driving his brother’s car, and the company insuring the car settled with plaintiff. Plaintiff was also personally insured by defendant State Farm, with uninsured motorist coverage of up to $500,000 per accident.

Plaintiff filed this suit pursuant to Tenn. Code Ann. § 56-7-1206. After both settlement negotiations and mediation failed to produce a resolution, the case was tried in front of a jury, and the jury found the unknown motorist 100% at fault, awarding $275,000 in damages to plaintiff. Plaintiff filed a post-trial motion seeking prejudgment interest, which the trial court denied, finding that the insurance policy did not include prejudgment interest. This appeal followed, and the trial court was reversed.

November 19, 2020

Non-compliant HIPAA Authorization Leads to Dismissal of Tennessee Malpractice Case

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

Where a Tennessee HCLA plaintiff sent a HIPAA authorization that failed to allow the defendants to obtain records from each other, the trial court’s finding that plaintiff did not comply with the statutory requirements and that the suit was thus time-barred was affirmed.

In Dial v. Klemis, No. W2019-02115-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2020), plaintiff was the daughter of a patient who died after a cardiac stent procedure. The procedure was performed by defendant Dr. Klemis, who was an employee of defendant Stern Cardiovascular Foundation, and the procedure occurred at defendant Methodist Hospital, with defendant Methodist employees assisting.

Before filing this healthcare liability suit, plaintiff sent pre-suit notice as required by the HCLA, including a HIPAA authorization pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). Plaintiff admitted, though, that the HIPAA forms she sent did “not allow each of the Defendants to obtain complete medical records from each other provider being sent notice,” which is a requirement of the HCLA. Defendants filed motions to dismiss asserting that because plaintiff’s HIPAA authorizations were non-compliant, she was not entitled to the 120-day extension of the statute of limitations granted by the HCLA, and that her suit which was filed more than one year after the allegedly negligent procedure was therefore time-barred. The trial court agreed, dismissing the case, and the Court of Appeals affirmed.

November 12, 2020

Summary judgment affirmed where plaintiff knew about leak before she slipped.

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

Where a residential tenant and property owner both knew about a leak which formed a puddle of water that caused plaintiff to slip, defendants property owner and property manager were not liable for plaintiff’s injuries and summary judgment was affirmed.

In Richardson v. H & J Properties, LLC, No. W2019-02082-COA-R3-CV (Tenn. Ct. App. Oct. 21, 2020), plaintiff moved into a triplex apartment owned and operated by defendants in March 2014. In the following months, she reported leaks in her laundry room and adjoining room several times. On September 10, 2014, she again reported a leak in this area of her apartment. The next day, a maintenance worker was sent to the apartment to repair the leak, and while plaintiff was showing him the issue, she slipped and fell in a “small pool of water” that had been caused by the leak, breaking her ankle.

November 9, 2020

Defamation claimed barred by ecclesiastical abstention doctrine

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

Where plaintiff’s tort claims against the church and church elders where he was previously pastor were all connected to the church’s termination of plaintiff as pastor and his resistance to that termination, the claims were barred by the ecclesiastical abstention doctrine.

In Maize v. Friendship Community Church, Inc., No. E2019-00183-COA-R3-CV (Tenn. Ct. App. Oct. 19, 2020), plaintiff was the former pastor at defendant church. After plaintiff had inappropriate communications with a female church member on Facebook, the church elders (also named as defendants) met and subsequently requested plaintiff’s resignation. Plaintiff refused and was then given a termination letter, which he “refused to abide by.” After a second termination letter was delivered to plaintiff, the church elders held another meeting, wherein “it was suggested that [the termination] had to be done through a church vote in order to be effective.” Because plaintiff was refusing to acknowledge his termination, the church sent an email to its members explaining the termination and stating that plaintiff was likely to attempt to hold church services.

November 6, 2020

Dismissal of Legal Malpractice Claim Reversed.

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

Where plaintiff alleged that the law firm representing both him and his employer had him sign an engagement letter that waived conflicts of interest, but that the law firm had engaged in behavior before the representation that created a conflict of interest and which the firm did not inform him of when presenting him with the engagement letter, plaintiff had plead sufficient facts to support a legal malpractice claim and judgment on the pleadings for defendant was reversed.

In Culpepper v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No. E2019-01932-COA-R3-CV (Tenn. Ct. App. Oct. 16, 2020), plaintiff filed a legal malpractice claim against defendants, who had represented both plaintiff and the company for which plaintiff worked as interim CEO. In his complaint, plaintiff alleged that defendants “represented him concerning matters before the United States Securities and Exchange Commission (SEC) on August 4, 2016 and August 11, 2016.” He asserted that defendants then “met with an independent forensic accountant and discussed [plaintiff] with respect to the SEC and other attorney-client privileged and confidential matters WITHOUT his knowledge” on August 15, 2016. Plaintiff also alleged that defendants had discussions with the company’s board of directors without his knowledge while representing both plaintiff and the company, that defendants “presented fabricated documentation to support his ultimate termination for cause,” that defendants had represented both him and the company simultaneously “despite an obvious conflict of interest,” and that defendants had continued representing the company after terminating representation of plaintiff in December 2016.

October 29, 2020

Jury finding that plaintiff was 60% at fault for car accident affirmed.

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

Where plaintiff and defendant gave differing versions of a car accident, the photographs of the vehicles could be interpreted to support defendant’s version of events, and the jury appeared to credit defendant by finding plaintiff 60% at fault, the Court of Appeals affirmed the jury’s verdict and the trial court’s refusal to grant a new trial.

In Justice v. Gaiter, No. M2019-01299-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020), plaintiff and defendant were involved in a car accident on December 23^rd in heavy traffic near a mall. Defendant was attempting to pull onto a road separating two parking areas when the cars collided. At a jury trial, plaintiff asserted that he was sitting in traffic when he was essentially t-boned by defendant in the driver’s door, and that defendant’s car then slid down the remainder of the driver’s side of plaintiff’s car. Defendant, on the other hand, testified that a car had stopped to let him cross into traffic, that he stuck his fender slightly into the lane he was attempting to merge into, and that he was sitting still when plaintiff’s vehicle failed to stop and hit the corner of defendant’s car. The photographs offered into evidence showed “the scraping on Plaintiff’s car from the driver’s side door to the rear fender” and damage to the front of defendant’s car.

October 28, 2020

No misrepresentation based on acreage where accurate plat was public record.

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

Where the correct acreage of a piece of real property was contained on a publicly recorded plat, plaintiffs could not maintain a cause of action for misrepresentation or concealment based on the seller or realtor stating that the property was larger than it actually was.

In Archer v. The Home Team, Inc., No. M2019-01898-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020), plaintiffs alleged that the seller and realtor of a piece of property they purchased represented that the property was 1.9 acres, when it was actually 1.16 acres. They filed suit against both the seller and realtor for multiple causes of action, including misrepresentation, concealment, and breach of contract. The trial court granted summary judgment to the defendants based on the fact that the correct acreage was listed on a publicly recorded plat, and the Court of Appeals affirmed.

For claims of either intentional or negligent misrepresentation, a plaintiff must show that he reasonably relied on the alleged misrepresentations. (internal citations omitted). In relation to the seller, plaintiffs alleged that the seller made one oral misrepresentation that the property was around 2 acres, but testimony showed that this statement was made “between middle of March to sometime before closing.” Plaintiffs, however, had signed the purchase and sale agreement on February 23^rd, which was well before this oral statement was made. The Court thus ruled that “no reasonable trier of fact could find that Plaintiffs relied on [the seller’s] alleged misrepresentation of the acreage when deciding to purchase the property” and affirmed summary judgment.