Day on Torts

September 21, 2020

Unconscionable fee-splitting provision in arbitration agreement could be severed from agreement as a whole.

Although a fee-splitting provision in an arbitration agreement was unconscionable based on the plaintiff’s financial situation, the Court of Appeals ruled that the fee-splitting provision was severable and that defendant’s motion to compel arbitration should have been granted.

In Stokes v. Allenbrooke Nursing and Rehabilitation Center LLC, No. W2019-01983-COA-R3-CV (Tenn. Ct. App. Sept. 15, 2020), plaintiff filed an HCLA complaint against defendant nursing home alleging that he had contracted sepsis due to the negligence of one of defendant’s nurses, and that he had suffered severe permanent injuries. Defendant filed a motion to compel arbitration, attaching a three-page arbitration agreement that plaintiff had signed on two occasions. The agreement contained a provision stating that the parties would split the arbitration expenses equally. Plaintiff opposed the motion on a “cost-based unconscionability defense,” arguing that plaintiff would never be able to afford paying half of the arbitration costs. Defendant responded that this argument was moot, as it had offered to cover the entire cost of the arbitration. After a hearing, the trial court refused to compel arbitration, finding that the agreement was unconscionable. This appeal followed.

September 18, 2020

Website comment deemed to not constitute notice for relation back purposes.

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

Where a plaintiff named the wrong defendant in a premises liability suit, but claimed that the proper defendant had notice of the lawsuit due to a correspondence she had sent on its website stating that she had been in contact with her legal team, the proper defendant did not have notice of the lawsuit and the amended complaint naming the proper defendant did not relate back to the filing of the original suit.

In Hensley v. Stokely Hospitality Properties, Inc., No. E2019-02146-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2020), plaintiff slipped and fell in the Edgewater Hotel parking lot. She filed suit on June 18, 2019, naming Noble House Hotels as the defendant. When she later learned that Nobel House Hotels did not own the hotel at which she fell, she filed an amended complaint on August 5, 2019 naming defendant, who was the owner of the hotel at issue.

September 17, 2020

Justice Programs On-Demand Seminars Now Live

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.

September 15, 2020

ABA Best Practices for Third-Party Litigation Funding Paper

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

The American Bar Association has adopted a paper describing best practices for third-party litigation funding.

The paper does “not take a position on a number of litigation funding issues – for example, whether litigation funding should be permitted, as a matter of law or legal ethics, in any particular jurisdiction or in any particular context; or whether, when and in

how much detail a funding arrangement need be disclosed” or on underwriting practices of the funder. Instead, the paper focus on the lawyer / client relationship and ” is written to assist lawyers considering litigation funding – whether to provide legal fees for sophisticated, cross-border arbitration and litigation, to assist an individual plaintiff or claimant in a personal injury lawsuit or worker’s compensation claim, or any other litigation or arbitration context.”

September 14, 2020

Loss of Consortium Plaintiff Required to File Notice Before Complaint with Claims Commission.

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

Where plaintiffs included wife’s claim for loss of consortium in their complaint with the Tennessee Claims Commission, but the wife had not given notice of her loss of consortium claim to the Division of Claims Administration within the applicable statute of limitations, dismissal of the wife’s claim was affirmed.

In Kampmeyer v. State of Tennessee, No. M2019-01196-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2020), plaintiffs were a husband and wife. The husband had been injured in a car accident allegedly caused by a TDOT vehicle and trailer parked in a roadway, and within the one-year statute of limitations, the husband filed a “Claim for Damages in the Division of Claims Administration” (the DCA). Because the DCA made no decision on his claim within 90 days, the claim was transferred to the Claims Commission.

Plaintiffs subsequently filed a complaint with the Claims Commission, including husband’s claims as well as a claim by wife for loss of consortium. The State “moved to dismiss [wife’s] loss of consortium claim on the ground that she did not file a notice of claim with the DCA within the one-year statute of limitations.” Because the complaint was filed within one year from the date of the accident, plaintiffs argued that wife’s “loss of consortium claim should not have been dismissed but should have been transferred to the Board of Claims for processing[.]” The Claims Commission agreed with the State and dismissed wife’s claim, and the Court of Appeals affirmed.

September 9, 2020

Savings statute available to vicarious liability plaintiff.

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

When a plaintiff takes a voluntary nonsuit in a case asserting vicarious liability against an employer for its employee’s negligence, that plaintiff can re-file pursuant to the savings statute, even if the employee was voluntarily dismissed from the first case.

In Helyukh v. Buddy Head Livestock & Trucking, Inc., No. M2019-02301-COA-R9-CV (Tenn. Ct. App. Aug. 28, 2020), plaintiff was a long-distance truck driver who was injured when he collided with a tractor-trailer that was overturned on the interstate and had been driven by Michael Heller, an employee of defendant. Plaintiff initially sued both Heller and defendant within the one-year statute of limitations, making direct negligence claims against Heller and claims of vicarious liability against defendant. Plaintiff eventually voluntarily dismissed Heller from the case, and the trial court then granted summary judgment to defendant. On appeal, however, summary judgment was reversed, and shortly after remand, plaintiff nonsuited his claim against defendant.

September 4, 2020

Appeal Fails Without Transcript or Statement of Evidence

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

Where plaintiff failed to file a transcript or a Rule 24 statement of the evidence with the appellate court, the “facts found by the trial court [were] conclusive on appeal” and the ruling for defendant school system was affirming in this GTLA case.

In Johnson v. Millington Municipal Schools, No. W2019-01547-COA-R3-CV (Tenn. Ct. App. Aug. 27, 2020), plaintiffs filed a GTLA case against defendant school district alleging that defendant “breached its duty to protect [plaintiff student], who was injured in a fight on school grounds.” The fight at issue took place after school in the car pick-up line. At trial, there was conflicting evidence regarding whether plaintiff student got into her sister’s car before the fight began, whether a male student was involved in the fight, whether plaintiff’s mother had previously warned a school counselor that her daughter had been bullied by the other girls involved in the fight, and who instigated the fight. Additionally, there was testimony from several school employees regarding how close they were to where the fight began, as well as what occurred once the fight was broken up.

In its final order, the trial court found that plaintiff student had already gotten into her sister’s car but then exited it and “physically confronted” two girls who had said expletives to her. The court also found that there were teachers present in the area watching the students, that there was a sheriff’s deputy in the area, and that plaintiff’s mother had not given the school prior warning about issues between the girls. Based on these findings, the trial court ruled that plaintiffs “failed to meet their burden to show that [defendant] was negligent.”

September 1, 2020

Class certification denied in food poisoning and contagious restaurant employees case.

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

Where plaintiffs tried to certify a class in a food poisoning case that included all persons who ate at defendant restaurant during a certain time period that became sick due to either ingesting contaminated well water and/or coming into contact with sick employees, as well as these customers “spouses parents children or guardians” who also became infected, the Court of Appeals affirmed the denial of class certification based on the failure to prove commonality, typicality, and adequacy of representation.

In Rogers v. Adventure House LLC, No. E2019-01422-COA-R3-CV (Tenn. Ct. App. Aug. 24, 2020), plaintiffs became sick after eating at defendant restaurant. Plaintiffs then brought this suit, which “arose form approximately 102 events of food poisoning or illness purportedly related to numerous patrons who dined at or visited [defendant restaurant].” The restaurant, the restaurant owners, and the owner of the property on which the restaurant and well were located were named as defendants. Plaintiffs alleged that patrons became sick after consuming contaminated well water and/or interacting with infected restaurant employees. Plaintiffs also alleged that family members of people who visited the restaurant were infected.

August 31, 2020

Remote Notarization and Witnessing Extended in Tennessee

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

Tennessee’s Governor has extended authority for remote notarization and remote witnessing of documents, subject to compliance with certain procedures, through Sept. 30. The order also encourages users of these tools to make preparations to implement best practices for a safe return to in-person transactions beginning Oct. 1.

Recall too that under the Tennessee Rules of Civil Procedure declarations may be used in lieu of affidavits.

August 26, 2020

Service of Process by Email? By Facebook?

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

The Texas Supreme Court has announced a rule change to permit courts to authorize electronic service of a summons and complaint when traditional efforts to serve have been unsuccessful. Before approving electronic service, a court must consider if evidence shows the defendant uses a social media profile frequently enough that it would be “reasonably effective” to give them notice of the suit.

The comment to the new rule says as follows:

Amended Rule 106(b)(2) clarifies that a court may, in proper circumstances, permit service of citation electronically by social media, email, or other technology. In determining whether to permit electronic service of process, a court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology. Other clarifying and stylistic changes have been made.