Day on Torts

March 3, 2021

Dismissal of negligent retention claim affirmed

A plaintiff alleging negligent retention “has the burden of showing that the employee or independent contractor was not qualified to perform the work for which he was hired,” and that “the employer had knowledge of the employee’s unfitness for the job.” (internal citations omitted).

In Parker v. ABC Technologies, Inc., No. M2020-00675-COA-R3-CV (Tenn. Ct. App. Feb. 23, 2021), plaintiff filed a pro se action against his former employer and two managers from the former employer for negligent retention, among other claims. In a brief analysis, the Court of Appeals affirmed dismissal of this case, finding that plaintiff had not pled sufficient facts to support his claim.

The Court explained that a plaintiff alleging negligent hiring, supervision, or retention of an employee must show, “in addition to the elements of a negligence claim[,] that the employer had knowledge of the employee’s unfitness for the job.” (internal citation omitted). In this case, plaintiff named two managers from his former place of employment as defendants. The Court ruled that these managers, as employees of the company, “could not also assume the role of employer and ‘retain’ their own employment,” so the negligent retention claim against them failed.

February 24, 2021

Statutory presumption of insurance acceptance applies in action against insurance agent.

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

The statutory presumption created by Tenn. Code Ann. § 56-7-135(b) that payment of an insurance premium “creates a rebuttable presumption that the coverage provided has been accepted by all insureds under the contract” applies in claims against insurance agents for negligent failure to procure an insurance policy.

In Parveen v. ACG South Insurance Agency, LLC, 613 S.W.3d 113 (Tenn. Dec. 4, 2020), plaintiffs lived in Georgia and had an umbrella insurance policy that included $2,000,000 in excess uninsured motorist coverage. When plaintiffs moved to Tennessee, they worked with defendant agent to obtain new insurance, and they alleged that they provided him with a copy of their old policy and asked for the exact same coverage. Defendant agent obtained an umbrella policy for plaintiffs, but the policy did not include any excess uninsured motorist coverage. There was no “separate line item” for uninsured motorist coverage on the quote given to plaintiffs, the policy premium did not “reflect the inclusion of such coverage,” and the declarations page did not include uninsured motorist coverage. Further, the policy itself specifically excluded uninsured or underinsured motorist coverage.

Plaintiffs initially paid for the policy obtained by defendant in 2013, and they renewed the policy in 2014 and 2015. In 2015, plaintiff wife was involved in an accident with an underinsured motorist. After this accident, plaintiffs added uninsured motorist coverage to their policy, but because such addition was not retroactive, the insurance company was found not liable for damages from the accident.

February 19, 2021

Tennessee’s “Common Knowledge” Exception to Use of an Expert in Health Care Liability Act Cases

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

Those seeking to learn the current state of the law on whether and when one can avoid the use of an expert witness on the negligence issue in Tennessee medical malpractice litigation may wish to read my recent article, “Flies, Buttermilk and Malpractice.” The article appeared in the Jan./Feb. issue of Tennessee Bar Journal.

February 18, 2021

HCLA statute of limitations for claim against doctor and hospital began to run on same date.

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

HCLA statute of limitations for claim against doctor and hospital began to run on same date.

Where plaintiff knew on October 31, 2017 that her surgeon had wrongly positioned screws during a previous spine surgery, the statute of limitations for her Tennessee HCLA claims against the hospital defendants who allegedly employed the surgeon began to run on that day.

In Karr v. Saint Thomas Midtown Hospital, No. M2020-00029-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2021), plaintiff had spine surgery in July 2016 performed by Dr. McCord at defendant hospital. Plaintiff continued seeing Dr. McCord until October 31, 2017, when she discovered that he had “malpositioned screws during the surgery.” Plaintiff did not return to Dr. McCord after this date, and instead began treating with Dr. Cheng. Dr. Cheng performed surgery on plaintiff on May 14, 2018, at which time he “discovered…that both the number and the extent of the malpositioned screws was greater than previously known,” and he told plaintiff that the surgery performed by Dr. McCord did not properly address the diagnosis she had been given.

February 17, 2021

Number of Tort Trials in Tennessee for the Year Ending June 30, 2020, Including Data By County

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

Today we follow up on our previous post about the number of civil trials in Tennessee and we concentrate on the number of trials in Tennessee personal injury, wrongful death and other tort cases. (Health care liability trials are excluded from these numbers.)

In the fiscal year ending June 30, 2020, there were 108 jury trials and 121 non-jury trials in Tennessee tort cases. Thus, there were a total of 229 such trials. Plaintiffs “won” 74 of those cases or, in other words, about 37% of the time the plaintiff received a judgment in his or her favor. (Whether this is truly a victory for the plaintiff depends on whether there was a pre-trial offer and the amount of that offer when compared with the judgment amount.) The available data does not tell us the percentage of “wins” in jury cases or in non-jury cases but only the total number of judgments entered for the plaintiff in both types of cases.

February 16, 2021

Number of Civil Trials in Tennessee for the Year Ending June 30, 2020.

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

The number of trials in Tennessee state court appears to have declined again in 2020.

What follows is the number of jury and non-jury trials in Tennessee state courts for the indicated fiscal years (July 1 – June 30):

Year Chancery Chancery Circuit Circuit Total

February 15, 2021

Personal jurisdiction should be considered before substantive grounds in motion to dismiss.

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

Where a defendant in a Tennessee defamation case moved to dismiss based on both substantive grounds and the assertion that the court lacked personal jurisdiction, the trial court should have considered the personal jurisdiction argument before granting dismissal based on the substantive grounds.

In Checkan v. Southern Towing Company LLC, No. W2020-00636-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2021), the plaintiff filed a defamation case against the defendant drawbridge owner, alleging that a letter sent by the defendant to the plaintiff’s employer containing false information caused him to be fired from his job and made him unable to obtain new employment as a riverboat captain. Defendant filed a motion to dismiss, raising substantive arguments and asserting that the trial court did not have personal jurisdiction over the defendant. The trial court granted dismissal, finding that the allegedly defamatory letter was a prelitigation letter and was accordingly entitled to privilege, but it specifically noted that it was not “ruling on the other procedural bases for dismissal.” On appeal, this ruling was vacated.

In a brief opinion, the Court of Appeals quoted from a federal opinion explaining why a personal jurisdiction argument should be addressed before a failure to state a claim argument:

February 11, 2021

Summary judgment for HCLA defendants affirmed based on statute of limitations and lack of duty.

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

Where one defendant in an HCLA case was not the owner or operator of the facility at which plaintiff alleged he received negligent medical treatment, and that defendant did not employee, train or control the employees who allegedly provided negligent care, summary judgment for that defendant was affirmed. Further, where the other defendant was added as a party after the statute of limitations had run, summary judgment for that defendant was also affirmed. In Waller v. Varangon Corporation d/b/a Varangon Academy, No. W2019-02211-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2021), plaintiff was a resident at a juvenile treatment facility when he reported to the medical personnel at the facility that he was having stomach pain and nausea. Nurses at the facility gave plaintiff over-the-counter treatment, but his condition worsened, and plaintiff was taken to a local emergency room several days later and diagnosed with bowel obstruction, which required surgery. At the time of this incident in 2016, plaintiff was seventeen.

The facility where plaintiff had been residing was owned by Varangon Corporation (“Varangon”) and known as Varangon Academy from 2010-2013. In January 2014, Omni Visions, Inc. (“OVI”) purchased the facility and the business from Varangon, and OVI retained the trade name Varangon Academy. As part of the purchase, Varangon and OVI entered into a management services agreement whereby OVI “agreed to continue to provide residential treatment and other services to juveniles at the facility,” and Varangon agreed to license to OVI a treatment model it had developed. Varangon also agreed to make recommendations on personnel issues, but OVI “retained final decision-making authority over personnel issues.” Under the agreement, “OVI retained ultimate legal responsibility, authority, and responsibility over the rendition of all residential treatment services at the facility.”

February 9, 2021

Summary judgment for defendant overturned where plaintiff slipped in flooded restroom.

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

Where plaintiff proceeded into a public restroom after seeing water in the floor and then slipped and fell, the Court of Appeals reversed summary judgment based on a lack of duty and plaintiff’s alleged comparative fault because defendant did not meet its burden of showing it had no duty and “reasonable minds could differ as to whether [plaintiff] was presented with a reasonable alternative to using the flooded restroom in this case.”

In Vaughn v. DMC-Memphis, LLC, No. W2019-00886-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2021), plaintiff filed a premises liability case based on injuries she received when she slipped and fell on a wet restroom floor. Plaintiff had ridden the public bus to defendant medical center, and upon entering the building she urgently needed to use the restroom. Plaintiff saw that there was significant water on the restroom floor, but she proceeded to walk towards the stall. Plaintiff then slipped and fell, injuring herself, but she got up and used the restroom after her fall. It was undisputed that there was no wet floor sign in the restroom, and while plaintiff testified that she knew there was another restroom on the same floor of the building, she stated that it was “quite a ways down the hallway.”

February 8, 2021

Statute of limitations extended to two years where defendant was given traffic citation after car accident.

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

Where plaintiff’s personal injury claim was based on a Tennessee car accident for which defendant was given a traffic citation for failure to exercise due care under Tenn. Code Ann. § 55-8-136, which is a Class C misdemeanor, the statute of limitations for plaintiff’s action was extended to two years pursuant to Tenn. Code Ann. § 28-3-104(a)(2).

In Younger v. Okbahhanes, No. E2020-00429-COA-R10-CV (Tenn. Ct. App. Jan. 28, 2021), plaintiff was injured in a car accident with defendant in September 2017. A state trooper issued defendant a traffic citation listing three violations, including “failure to exercise due care, pursuant to Tennessee Code Annotated § 55-8-136.” Defendant eventually paid a fine for this citation. In April 2019, which was more than one year after the accident, plaintiff filed this personal injury action, arguing that instead of being subject to the standard one-year statute of limitations for personal injury claims, the statute of limitations for this case was extended to two years by virtue of Tenn. Code Ann. § 28-3-104(a)(2). Defendant filed a motion for summary judgment based on the statute of limitations issue, but the trial court ruled in favor of plaintiff, and the Court of Appeals affirmed.