Day on Torts

March 26, 2020

Who Decides the What Issue Is Subject to Arbitration: A Judge or Arbitrator?

It is, as the Second District Court of Appeals of Florida said, a “rather arcane”issue: who decides whether a dispute is subject to an arbitration provision – a judge or an arbitrator. Under the facts presented, the appellate court concluded that because the contract (a clickwrap agreement on AirBNB’s website) “did not provide clear and unmistakable evidence that only the arbitrator could decide the issue of arbitrability” the issue was one for the judge.

The case is Doe v. Natt and AirBNB, Inc., Case No. 2D19-1383 (Fla. Ct. App. March 25, 2019). The court reached a result different than several other intermediate appellate courts in Florida and thus is likely to go up on appeal.

March 25, 2020

Tennessee Considers Extent of Specific Personal Jurisdiction

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

Under what circumstances can a Tennessee court insist that an out-of-state defendant submit to the jurisdiction of a Tennessee state court? The Tennessee Supreme Court is facing this issue in Crouch Railway Consulting, LLC v. LS Energy Fabrication, LLC.

The case arose when the plaintiff, a Tennessee civil engineering company, filed an action for breach of contract and unjust enrichment against a Texas energy company (referred to in the opinions as “Lonestar” in Williamson County Chancery Court, alleging that the Texas company breached its contract with the Tennessee company by failing to pay for engineering and planning services. Lonestar filed a Tenn. R. Civ. P. 12.02(2) motion to dismiss for lack of personal jurisdiction. The trial court granted the motion, determining that the minimum contacts test had not been satisfied because the Lonestar did not target Tennessee. Additionally, the trial court determined that it would be unfair and unreasonable to require the Lonestar to litigate the dispute in Tennessee.

March 24, 2020

Day on Torts Nugget: Service of Process by Regular Mail During the Coronavirus

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

The coronavirus has impacted the service of summons and complaints as many sheriff’s departments make the effort to reduce human contact. Indeed, the coronavirus is having not only a short-term impact on the civil justice system but will have a long-term impact as well. Today we discuss an alternative to service of process by the local sheriff’s department.

March 23, 2020

Investigation into Self-Driving Car Crash in Florida

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

The federal government has finished its investigation into a 2019 car crash involving a Tesla on autopilot.

The report, by the National Transportation and Safety Board, reaches the following conclusions:

the design of the Autopilot system contributed to the crash because it allowed the Tesla driver to avoid paying attention

March 20, 2020

Attorney not liable for advising client to make true police report

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

Where an attorney advised her client in a family law case that her husband’s actions in distributing a video of the client having sex with another man might be criminal and advised the client to make a true report to the police department, the attorney was not liable for any tort.

In Pagliara v. Moses, No. M2018-02188-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2020), husband and wife were married, but at some time before the marriage yet while they were dating, wife “used Ecstasy and engaged in sexual relations” with another man “and videotaped their encounter.” After husband and wife were married, the wife of the other man on the video found the video and forwarded it to husband, along with a photograph of a sexual nature. Husband received this information while he was on a business trip in California, and he proceeded to forward a part of the video as well as the photo “to close friends of him and wife.”

March 19, 2020

Runner Hit By Car Found 80% At Fault

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

Where a plaintiff was running in the dark with no wearable light and was hit by a car while crossing the road, the Court of Appeals affirmed a jury verdict finding plaintiff 80% at fault.

In Golden v. Powers, No. E2019-00712-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2020), plaintiff and her family were visiting Hawkins County, Tennessee from Miami, Florida. Plaintiff went for a jog one morning while it was still dark, and she began by running in the same direction as traffic. When she decided to cross in order to run against traffic, she “glanced to see if any cars were coming.” While crossing, a car approached in the lane plaintiff was running towards, so she slowed down to let the car pass. She did not stop running, did not move back to the side, and did not turn around to check traffic. She was then hit by a car driven by defendant. At the scene of the accident, defendant estimated that she had been driving 50-55 mph, and the speed limit was 45 mph.

March 12, 2020

Denial of Motion to Alter or Amend Reinstated by Supreme Court

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

The Tennessee Supreme Court recently reversed a Court of Appeals opinion and reinstated a trial court’s refusal to grant a motion to alter or amend. The trial court had granted defendant’s summary judgment motion based on plaintiff’s HCLA expert being unqualified to testify as to causation and plaintiff not obtaining a second expert affidavit until after summary judgment was granted.

In Harmon v. Hickman Community Healthcare Services, Inc., No. M2016-02374-SC-R11-CV (Tenn. Jan. 28, 2020), plaintiff filed an HCLA suit after decedent died while in Hickman County jail. Decedent had been arrested on possession of illegal drugs, and while incarcerated, she began suffering drug withdrawal symptoms. She was treated by an R.N. in the jail’s medical unit then sent back to her cell. Later that night, she was found dead on the floor of her cell.

Plaintiff filed suit and identified a “physician who was board-certified in neurology and psychiatry” as her expert, and defendant filed a motion for summary judgment asserting that plaintiff could not prove causation because her expert was not qualified to testify as to causation under the HCLA. The trial court heard oral arguments on the motion on November 2, 2015, denied a motion for partial summary judgment by plaintiff in January 2016, and finally issued an order granting summary judgment to defendant in April 2016. The trial court “held that Plaintiffs’ sole expert witness on causation…was not competent to provide testimony under Tennessee Code Annotated § 29-26-115.”

March 11, 2020

Water authority liable for fall where it had notice that meter box was damaged

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

Where plaintiff was injured when he was standing on the water meter box in his yard and the concrete cover unexpectedly moved, and the governmental water authority had noted that the box needed to be replaced four months before the incident, the Court of Appeals affirmed a finding that the water authority was 100% at fault for plaintiff’s injuries.

In Cox v. Water and Wastewater Treatment Authority of Wilson County, Tennessee, No. M2018-00433-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2020), plaintiff was scraping ice off his truck and had to stand on the concrete cover on the water meter in his yard. While he was standing on it, the “concrete cover fell into the box beneath it,” causing plaintiff to break a bone in his foot.

Plaintiff filed this GTLA suit alleging that defendant water authority “had actual and/or constructive notice that the water meter box was in an unreasonably dangerous, defective and unsafe condition and that the company failed to alleviate or warn of the danger.” Defendant denied having notice and raised the affirmative defense of comparative fault.

February 28, 2020

Day on Torts Nugget: Service on Companies That Have Not Appointed A Registered Agent in Tennessee.

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

Sometimes companies that do business or cause harm in Tennessee have not registered to do business in Tennessee or have not appointed a registered agent in the state. If you want to sue them in a civil action (but not a worker’s compensation action), on whom to you serve the summons and complaint?

For “for profit” corporations, the answer is found in Tenn. Code Ann. Sec. 48-15-104 (b) :

Whenever a domestic or foreign corporation authorized to do business in this state fails to appoint or maintain a registered agent in this state, whenever its registered agent cannot be found with reasonable diligence, whenever a foreign corporation shall transact business or conduct affairs in this state without first procuring a certificate of authority to do so from the secretary of state, or whenever the certificate of authority of a foreign corporation shall have been withdrawn or revoked, then the secretary of state shall be an agent of such corporation upon whom any such process, notice or demand may be served. (Emphasis added.)

February 27, 2020

Tennessee Supreme Court Upholds Constitutionality of Damage Caps

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

The Tennessee Supreme Court yielded to the Legislature’s decision to impose a cap on the amount of money that can be awarded to people harmed by the carelessness of others. The law was passed in 2011. The law requires judges to reduce jury awards for human losses (called “noneconomic damages by the legislation) to $750,000 in most cases.

The 3-2 decision was authored by Chief Justice Bivins. There was one concurring opinion and two dissents. Click on the links below to read them.

Majority Opinion by C.J. Bivins