Day on Torts

February 28, 2020

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

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to do so from the secretary of state, or whenever the certificate of authority of a foreign corporation shall have been withdrawn or revoked, then the secretary of state shall be an agent of such corporation upon whom any such process, notice or demand may be served.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

February 26, 2020

Day on Torts Nugget: Tennessee Medical Malpractice Filings and Trials

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

Data has been released that shows the number of Tennessee medical malpractice (now called health care liability actions) filed and disposed of for the year ending June 30, 2019.

A total of 422 claims were filed in our state courts in FY 2019, about the same as the previous year (416). The courts disposed of 385 cases in FY 2019, compared with 382 the previous year.

Only 27 of the cases went to trial in FY 2019, 17 of which were tried to a jury and 10 of which were non-jury trials. In FY 2018 there were 18 total trials, 13 of which were jury trials and 5 of which were non-jury trials.

February 24, 2020

Day on Torts Nugget – 2019 Tennessee Trial Data Part 2

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, 2019, there were 140 jury trials and 150 non-jury trials in Tennessee tort cases. Thus, there were a total of 290 such trials. Plaintiffs “won” 112 of those cases or, in other words, 38.6% 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.

Compare that for the prior year (ending June 30, 2018), when there were 130 jury trials and 207 non-jury trials. Therefore, the total number of tort trials that year was 337. Therefore, for the first time in recent memory, the number of jury trials actually increased slightly (130 to 140) while the number of non-jury trials decreased substantially (207 to 150). In FY 2018 a judgment was entered for the plaintiff in only 98 cases, or 29.1% of all cases tried.

February 20, 2020

Omission in Appellate Filings Result In Loss

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

Where the trial court granted summary judgment on two grounds in a Tennessee medical malpractice case, but plaintiff only raised one of the grounds in her appeal, summary judgment was affirmed.

In Lovelace v. Baptist Memorial Hospital-Memphis, No. W2019-00453-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2020), plaintiff filed an HCLA suit after her husband died following treatment at defendant hospital. During his time at the hospital being treated for pneumonia, he developed seven pressure ulcers on his body, and though he was transferred to a different facility, he passed away.

Plaintiff filed this health care liability suit and attached the affidavit of her expert witness, Brenda Moore, who was a “registered nurse with a doctorate of nursing practice.” Nurse Moore was eventually deposed, after which defendant filed a motion for summary judgment. The trial court granted summary judgment to defendant on two grounds: 1) that plaintiff’s identified expert did not provide sufficient causation testimony, and 2) that Nurse Moore was not competent to testify under Tennessee’s HCLA statutes.

February 19, 2020

Landlord not liable for tenant’s fall down stairs.

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

Where a tenant brought a premises liability claim against a landlord based on a loose piece of wood at the top of stairs inside an apartment, but the evidence showed that the tenant and landlord walked through the apartment before the lease began and neither noticed the allegedly dangerous condition and that plaintiff himself lived in the apartment for a month and a half without becoming aware of the loose wood, summary judgment for the landlord was affirmed.

In Fisher v. Villages at Henley Station, LLC, No. M2018-01990-COA-R3-CV (Tenn. Ct. App. Jan. 24, 2020), plaintiff rented a townhome from defendants. The townhome had been built about eight months before the lease began, and plaintiff was the first resident. Before the lease was signed, plaintiff did a walkthrough of the townhouse with the property manager, and neither of them noticed a problem with the stairs. Plaintiff lived in the home for approximately one and a half months, using the stairs daily with no problem, but then suffered a fall that he alleged was caused by a plank of wood not properly connected at the top of the stairs. The evidence showed that plaintiff had not noticed the issue before his fall and that no other tenants had experienced such an issue.

February 18, 2020

Day on Torts Nugget: Standards for Motions to Amend Pleadings in Tennessee

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

Motions to amend a complaint or answer are a routine part of trial practice in Tennessee state court.

Here is a recent statement on the law of motions to amend:

Trial courts have broad authority to decide motions to amend pleadings and will not be reversed absent an abuse of discretion. Hawkins v. Hart, 86 S.W.3d 522, 532 (Tenn.Ct.App.2001). Under the abuse of discretion standard, an appellate court cannot substitute its judgment for that of the trial court. Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551 (Tenn.2006). Numerous factors guide a trial court’s discretionary decision whether to allow a late-filed amendment. Some of these include undue delay, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments and futility of the amendments. Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn.Ct.App.1979).

February 17, 2020

Police Shooting Victim Loses Case

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

Where a man being arrested was shot and killed after he went out of his home and raised a gun towards a police officer, the Court of Appeals affirmed dismissal of a GTLA tort suit, finding that the police department was immune from suit and that the suit was barred by the decedent’s comparative fault.

In Acree v. Metropolitan Government of Nashville and Davidson County, No. M2019-00056-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2019), decedent failed to appear for an aggravated criminal trespass court hearing, which resulted in a felony warrant being issued. Officers retrieved the warrant the next day, and the warrant stated that “subject may exhibit paranoia and feel that officers are following him.” The officer serving the warrant also noted that “Decedent had been arrested three times in the past six months without incident.” Four officers proceeded to decedent’s home, and two went to the front door and two to the back door. One officer knocked and identified himself, and when there was no answer, he saw through a hole in the door that decedent was not moving. The officer knocked again and saw decedent move away from the front of the house, so he called over the radio that decedent was walking towards the back door. Decedent then “abruptly open[ed] the back door and raise[d] a firearm at” one officer. The officer shot once, striking and killing decedent.

February 14, 2020

Footnote Points Out Issue With Amending Pleadings

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

Rule 15 of the Tennessee Rules of Civil Procedure allows complaints and answers to be amended under the conditions set forth in the rule, but amendments do not make the statements in the original pleading disappear.

In Lanier v. Bane, No. M2000-03199-COA-R3CV, 2004 WL 1268956, at *2 (Tenn. Ct. App. June 8, 2004), Lanier pleaded that his host driver was drunk and caused a one-car accident, resulting in the death of Bane and injuries to Lanier. In his amended complaint, Lanier materially changed those allegations and said his host driver was not drunk. Bane’s estate defended by asserting that Lanier was partially at fault by voluntarily becoming a passenger in a vehicle driven by one he knew to be intoxicated.

In Footnote 1 of the Court of Appeals opinion affirming a 50% finding of fault on Lanier for contributing to his own injuries, the court noted as follows: “How Mr. Lanier came to “un-know” in his amended complaint that which he knew well in the original complaint about his host driver’s intoxication makes for interesting reading.”

February 13, 2020

Day on Torts Nugget: Reliance on the Savings Statute after a Voluntary Dismissal

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

Tennessee law will permit a plaintiff who properly voluntarily dismisses a suit in state to timely re-file it and avoid a statute of limitations defense, but the correct procedure must be followed.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S .W.3d 710, 716-717 (Tenn.2002) tells us that “absent service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a plaintiff who has failed to serve process prior to the taking of the nonsuit in accordance with Rule 3 may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar of the statute of limitations.”

Rule 41.01, governing the taking of voluntary dismissals, provides that,