Day on Torts

August 25, 2020

Dismissal based on statute of limitations not a favorable termination for later malicious prosecution claim.

When summary judgment in a previous suit was based on the statute of limitations, a malicious prosecution action cannot be based on that previous suit.

In Horizon Trades, Inc. v. Givens, No. M2019-01876-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2020), defendant was the attorney for Shermane Stuart in a previous action wherein Ms. Stuart filed a claim for breach of contract against Horizon Trades. Horizon Trades filed a motion for summary judgment in that action, and it asserted multiple grounds in its motion. The trial court ruled that although plaintiff had purported to file a breach of contract claim, the claim was actually for “conversion and/or damages to her personal property,” and that the three-year statute of limitations actually applied. The trial court accordingly granted Horizon Trades summary judgment based on the previous suit being untimely. In its ruling, the trial court specifically found that there was “no viable breach of contract claim,” but it did state in its order that even if there were a contract claim, the Statute of Frauds would have barred such a claim based on the value of the property at issue.

August 13, 2020

Dismissal Rejected When Defendant Cannot Prove Intentional Delay in Service of Process

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

Where plaintiff did not serve defendants until 89 days after summonses were issued, but defendants failed to present evidence that the delay was intentional, the Court of Appeals reversed dismissal of the case.

In Eskridge v. NHC Healthcare Farragut, LLC, No. E2019-01671-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2020), plaintiff filed an HCLA claim against defendants on January 31, 2018. Summonses were issued the following day, and plaintiff’s attorney opted to serve the summonses by private process rather than through the sheriff’s department. On May 1, 2018, eighty-nine days after the summonses were issued, plaintiff’s attorney personally served them on defendants through their registered agent. Defendants filed an answer in June 2018, which included the affirmative defense that they had not been properly served. Plaintiff did not file the returns of summonses with the trial court until January 4, 2019.

Plaintiff filed a “Motion to Dismiss or Strike Insufficiency of Service of Process or Insufficiency of Process Defense,” arguing that service was proper because it was completed within 90 days, or that in the alternative, defendants had waived the service of process argument. Defendants filed a motion to dismiss based on the assertion that service was “not ‘contemporaneously with’ or ‘soon after’ the summonses were issued,” and that “nothing but the intentional decision not to serve the summonses and Complaint explains the delay in service of the Complaint.”

August 5, 2020

Amendments to the Tennessee Rules of Civil Procedure

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

The Legislature has approved the following changes to the Tennessee Rules of Civil Procedure:

Click to access order_adopting_rules_amendments_to_adm2019-01444_eff_07-01-2020.pdf

July 26, 2020

Decision Upholding the Right to Take Depositions by the Use of Remote Video

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

Here is an excellent decision supporting the right of a party to take depositions by remote video despite an objection raised by the opposing party.

The court’s order references many of the issues that arise during remote video depositions and thus is a great resource for lawyers who are unfamiliar with such issues.

July 24, 2020

Sample Remote Deposition Protocol

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

Here is a sample of a protocol for remote depositions from the SDNY.

Click to access RWL%20Lehrburger%20Sample%20Remote%20Deposition%20Protocol.pdf

July 22, 2020

Large jury award affirmed in negligence case against Kroger

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

Where plaintiff fell and broke her hip in a grocery store due to her shopping cart missing a wheel, yet she mostly recovered from the injury, a jury verdict of approximately $90,000 in medical expenses and the maximum allowable amount of $750,000 in noneconomic damages was affirmed.

In Wortham v. Kroger Limited Partnership I, No. W2019-00496-COA-R3-CV (Tenn. Ct. App. July 16, 2020), plaintiff, an 88-year-old woman, went to defendant grocery store with her adult daughter. The daughter retrieved a shopping cart from the vestibule for plaintiff’s use, and plaintiff proceeded to shop for around thirty minutes. Near the end of her shopping trip, plaintiff turned her cart to the right and it tipped over, causing her to fall. After plaintiff fell, it was discovered that the shopping cart was missing one wheel, and despite searching the property, the missing wheel and/or parts that would have held the wheel in place were not found. Plaintiff broke a bone and injured her hip in the fall, and she required surgery. She spent time four days in the hospital and fourteen days in a rehabilitation center, and despite doing well, she testified that the she still had some pain and had lost much of her independence due to the fall.

July 21, 2020

Chairs stacked on top of table not a dangerous condition

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

Where a middle school student was injured when he tripped on his backpack strap, beginning a chain of events that knocked down a chair that was stacked on top of a table and injured his hand, summary judgment was affirmed based the lack of a dangerous condition and the injury not being foreseeable.

In Landry v. Sumner County Board of Education, No. M2019-01696-COA-R3-CV (Tenn. Ct. App. June 30, 2020), plaintiff was an 11-year-old student sitting with friends in his school cafeteria as he waited for the bell to ring to begin the school day. At this school, the chairs were always placed upside down on the top of the tables the day before so the custodians could clean. In the mornings, the kids would take down a chair to sit. On this particular morning, plaintiff’s backpack strap had unknowingly become wrapped around the leg of his chair. When plaintiff stood to leave, he tripped on the strap. As he fell, he pushed his chair away, and that chair hit a chair that was still upside down on a table. The upside down chair fell and hit plaintiff’s hand, severing the tip of one of his fingers.

July 20, 2020

No duty to remove snow from parking lot while snow is still falling.

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

Where plaintiff slipped on ice in a hotel parking lot during a snowstorm, summary judgment for defendant hotel was affirmed.

In Chittenden v. BRE/LQ Properties, LLC, No. M2019-01990-COA-R3-CV (Tenn. Ct. App. July 15, 2020), plaintiff checked into defendant hotel during a snowfall that had already produced two inches of snow on the ground. It was still snowing when plaintiff went to his hotel room. When plaintiff left his room fifteen minutes later, it was still snowing, and he slipped in the parking lot. Plaintiff brought this premises liability action, and the trial court granted summary judgment, which was affirmed on appeal.

July 17, 2020

No damages to plaintiff despite fault of defendant in car accident affirmed.

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

Where defendant admitted liability for a car accident but denied that the accident caused plaintiff’s alleged injuries, a jury verdict for defendant was affirmed where there was material evidence showing that the accident was minor, evidence showed plaintiff had a history of back and/or neck pain, and plaintiff’s expert witness admitted that “she based her opinion on purely subjective findings[.]”

In Bell v. Roberts, No. M2018-02126-COA-R3-CV (Tenn. Ct. App. July 8, 2020), plaintiff, a 70-year-old woman, filed suit after her vehicle was rear ended by a car driven by defendant. Defendant admitted fault, but he denied that the accident caused any injury to plaintiff.

During a jury trial, plaintiff, defendant, plaintiff’s doctor, and the police officer who responded to the accident testified. Plaintiff stated that she drove herself to the ER after the accident, and “scans of her spine showed changes consistent with degenerative disc disease.” After the medicine prescribed at the ER failed to alleviate her neck pain, she went to her doctor 15 days later and was given “additional pain relief measures and physical therapy.” Plaintiff admitted that she had a history of degenerative disc disease and back surgery, but she stated that she had never had neck pain before the accident. On cross examination, however, defense counsel pointed out that her testimony about previous pain was different in her deposition. Plaintiff also admitted that she did not complain about neck pain to her doctor past April 2016, although she maintained that she did not fully recover.

July 16, 2020

Dismissal of libel and false light invasion of privacy claims affirmed.

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

Dismissal of claims of defamation and false light invasion of privacy by the former CEO of a credit union was affirmed where the email she cited “was not capable of conveying a defamatory meaning” and could not “be considered highly offensive to a reasonable person;” the statement she cited was “not capable of conveying a defamatory meaning” and was not sufficiently publicized; and the audit report she cited was not given the requisite publicity.

In Tidwell v. Holston Methodist Federal Credit Union, No. E2019-01111-COA-R3-CV (Tenn. Ct. App. June 25, 2020), plaintiff had been the CEO of defendant credit union and was fired after an audit by a regulatory agency. Several issues were identified by the audit, and plaintiff claimed “she became the scapegoat for these problems.” Plaintiff brought suit against the credit union, the chairman of the Board of Directors, the chairman of the Supervisory Committee, and an independent auditor for libel, false light invasion of privacy, and retaliatory discharge.

The trial court granted defendants’ motion to dismiss all claims. Plaintiff appealed, the Court of Appeals affirmed dismissal.