Day on Torts

January 29, 2021

Plaintiff’s judgment for student hit by shot put thrown by coach affirmed.

Where a minor student was accidentally hit in the head by a shot put thrown by his track and field coach, immunity for the school was removed under the GTLA and a judgment for plaintiff was affirmed. In Spearman v. Shelby County Board of Education, No. W2019-02050-COA-R3-CV (Tenn. Ct. App. Jan. 15, 2021), plaintiff filed suit on behalf of herself and her minor son after her son was injured at middle school track and field tryouts. The testimony showed that the student was a 12-year-old sixth-grader at the time of the incident. He had played several sports before but had never “participated in shot put and was not familiar with the event.” Marcus Mosby was the track and field coach at the school, and he was in charge of the tryout. Mr. Mosby had never competed in shot put and had not received “proper training on the safety protocols for the shot put event prior to the incident.”

During tryouts, students were taking turns throwing the shot put, which was a metal ball that weighed 8-10 pounds. At some point, Mr. Mosby decided to demonstrate the proper way to throw the shot put. He stood across from a group of students and “verbally instructed and motioned with his hands for the students to move back,” and he took a few steps away from the group. With his back turned toward the students, Mr. Mosby turned and threw the shot put towards the group. Plaintiff’s son, however, had not heard the directions to move back and was five feet closer to Mr. Mosby than the other students. According to testimony, the student was turned sideways and did not see Mr. Mosby throw the shot put. Mr. Mosby realized the student was going to be hit and yelled for him to move, but the student was struck in the side of the head with the shot put.

January 26, 2021

No relation back where car accident plaintiff named wrong driver as defendant.

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

Where a plaintiff originally named the wrong defendant in a car accident case and did not file an amended complaint naming the correct defendant until after the one-year statute of limitations had run, dismissal was affirmed. In Black v. Khel, No. W2020-00228-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2020), plaintiff and defendant were involved in a car accident on May 11, 2018. In March 2019, plaintiff was involved in a separate car accident with a driver named Taylor Antonsen. On May 8, 2019, plaintiff filed a complaint for personal injury damages from the first accident, but she failed to name defendant as a party or refer to defendant in any way. Instead, plaintiff named “Taylor Antonsen” as the opposing party and referred to Antonsen throughout the complaint. One week after filing the complaint, On May 15, 2019, plaintiff realized the mistake and filed an amended complaint naming defendant as the other driver in the accident.

Defendant received a summons for the amended complaint then filed a motion to dismiss, asserting that plaintiff’s case was barred by the one-year statute of limitations. Plaintiff argued that her amended complaint related back to the filing of her original complaint under Rule 15.03, but the trial court rejected that argument and granted defendant’s motion to dismiss. The Court of Appeals affirmed dismissal.

January 25, 2021

Manufacturer has no duty to warn regarding products it did not make, sell or distribute.

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

The Tennessee Supreme Court recently held that product liability defendants “cannot be held liable for injuries resulting from products they did not make, distribute, or sell.” In Coffman v. Armstrong International, Inc., No. E2017-01985-SC-R11-CV (Tenn. Jan. 4, 2021), plaintiff was the wife of a deceased employee of a chemical plant. The husband died after being diagnosed with mesothelioma due to asbestos exposure at work.

Plaintiff brought this products liability claim against numerous defendants, including several industrial equipment manufacturers who made and sold equipment used by the deceased husband at his job. Plaintiff claimed that while the equipment made by these defendants did not contain asbestos, the defendants knew that the equipment would have to be integrated with asbestos-containing parts in order to be repaired and maintained. Plaintiff argued that defendants were liable under the Tennessee Products Liability Act (TPLA) because “their products were unreasonably dangerous and because the Equipment Defendants failed to adequately warn users of potential asbestos exposure resulting from the post-sale integration of asbestos-containing materials manufactured and sold by others,” and that defendants “were liable under a duty-to-warn theory because it was foreseeable, and even intended, that their equipment be repaired and maintained with asbestos-containing materials.”

January 18, 2021

False imprisonment claim based on mental health hold at hospital actually fell under HCLA.

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

Although plaintiff styled his case as a false imprisonment claim based on a two-hour hold in a hospital related to a mental health evaluation, the Court of Appeals affirmed the ruling that the case actually fell within the HCLA and was thus subject to dismissal for failure to provide pre-suit notice and/or a certificate of good faith.

In Weakley v. Franklin Woods Community Hospital, No. E2020-00591-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2020), plaintiff went to the defendant hospital the day after a car accident seeking medical treatment. According to plaintiff, a “community navigator” at the hospital asked him if he had ever had suicidal thoughts, and he told her that he had experienced such thoughts twenty years earlier. Thereafter, a nurse entered plaintiff’s room and told him that “she was compelled by state law and hospital policy to administer a mental health assessment.” When she asked plaintiff if he had experienced suicidal thoughts, he said no, but she said she wanted to admit him to the hospital, which he declined. Plaintiff alleged that he was then given insulin and fluids, but when he tried to leave the hospital after treatment, “he was stopped by an unidentified nurse who stated that a hold had been placed on [plaintiff] until he spoke with a psychologist.” A physician’s assistant later came into plaintiff’s room, telling him he had been placed on a hold and was not permitted to leave until he saw a behavioral specialist. Plaintiff averred that he later told this physician’s assistant that he wished to call the police department to report a claim of false imprisonment, and that he was then allowed to leave the hospital.

January 14, 2021

Dismissal as discovery sanction affirmed.

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

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.