Day on Torts

September 25, 2019

Summary Judgment Affirmed on Negligent Misrepresentation Claim

Where an attorney working for a bank gave the bank president advice about his resignation but also recommended that he seek independent counsel, the Court of Appeals affirmed summary judgment on a negligent misrepresentation claim.

In Batten v. Community Trust and Banking Company, No. E2017-00279-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2019), plaintiff was the president and CEO of defendant bank. Plaintiff had an employment contract with the bank that included a provision allowing him to resign and receive 36 months of additional compensation. When the Tennessee Department of Financial Institutions (TDFI) examined the bank, it found serious problems, eventually declaring that the bank was in a troubled condition.

September 24, 2019

No Trespass Claim Where Unmanned Truck Rolled Into House

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

Where defendants’ truck rolled into a duplex owned by plaintiff causing real property damage, a directed verdict for defendants on all but plaintiff’s negligence claim as well as a jury verdict for diminution in value to the property was affirmed.

In Twenty Holdings, LLC v. Land South LLC and Brandon Majors, No. M2018-01903-COA-R3-CV (Tenn. Ct. App. Sept. 5, 2019), plaintiff owned a duplex in Nashville, and defendant Majors lived nearby. Majors drove a tractor trailer truck for defendant Land South, and on the day of the incident, he “parked the truck, with an attached 53 foot trailer…, near his residence at the top of a steep hill with the front of the truck pointing toward the drop off of the hill and toward Plaintiff’s property.” Within hours of the truck being parked, it rolled down the hill. The trailer detached from the truck, but the truck portion struck the duplex and stopped in one of the living rooms, causing significant damage to the building. According to Majors, he had parked the truck on a safe area and “took various precautions in securing the tractor-trailer, including engaging the parking brake, placing garden timbers under the wheels, letting the trailer down, and placing the tractor-trailer in reverse.”

September 23, 2019

HIPAA Authorizations that Allowed Disclosure of Records Deemed Compliant

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

Where plaintiff sent a HIPAA authorization with his pre-suit notice that was HIPAA compliant but authorized the disclosure of records, rather than the obtaining of records, the Court of Appeals ruled that he substantially complied with the HCLA.
In Short v. Metro Knoxville HMA, LLC, No. E2018-02292-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2019), plaintiff filed a healthcare liability claim against various medical providers related to the treatment of his late wife during her pregnancy. Plaintiff gave timely pre-suit notice to all the relevant defendants, including a notice letter, a list of providers, and “an authorization to disclose Decedent’s entire medical record to each listed provider.” The letter listed relevant providers and stated that “a substantially similar notice” was being sent to each of them pursuant to the HCLA. The letter further provided that a HIPAA authorization was included “authorizing you to obtain complete medical records from” the relevant providers. The letter also stated that plaintiff was not waiving the “common law physician patient privilege,” and that he expected the recipient to “not communicate with any person, other than your attorney, about the care and treatment” of decedent. On the actual HIPAA authorization, plaintiff wrote that the provider was “authorized to make the disclosure” of the “entire record” to the listed providers “for the purpose of a legal matter.”

September 22, 2019

Premises liability defendants had no duty where driveway complied with all regulations

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

Where plaintiff was hit by a vehicle exiting a restaurant driveway, and the driveway conformed to all regulations and there had been no previous accidents at the site, the landowner, Premises liability defendants had no duty where driveway complied with all regulations. owner, and franchisee owed no duty to plaintiff.

In Howell v. Nelson Gray Enterprises, No. E2019-00033-COA-R3-CV (Tenn. Ct. App. Aug. 30, 2019), plaintiff was driving his motorcycle on a public highway when he was struck by a car that was exiting a McDonald’s parking lot. Plaintiff brought this premises liability and negligence case against the property owner, the restaurant owner, and the franchisee, arguing that the exit in question was “an unreasonably dangerous condition because it promotes the uncontrolled flow of vehicular traffic into a five-lane undivided highway without traffic control devices or warning signs.” (internal quotation omitted). The trial court granted summary judgment to defendants, finding that they owed no duty to plaintiff, and the Court of Appeals affirmed.

September 18, 2019

Economic Loss Doctrine Bars Plaintiff’s Fraud Claim

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

Where a commercial plaintiff suffered only economic damages due to the purchase of allegedly defective trucks, its fraud claim was barred by the economic loss doctrine. In Milan Supply Chain Solutions Inc. F/K/A Milan Express Inc. v. Navistar Inc., No. W2018-00084-COA-R3-CV (Tenn. Ct. App. Aug. 14, 2019), plaintiff purchased over 200 trucks from defendant to use in its logistics and hauling company. The trucks were covered by a standard “Limited Warranty,” and plaintiff purchased “Optional Service Contracts.” Under these agreements, defendant “agreed to repair or replace parts of the trucks that proved defective,” but the documents also stated that “no warranties were given beyond those described in the warranty documents…”

Plaintiff filed suit against defendants alleging that the trucks were defective and that that defendant had made “a number of misrepresentations concerning the trucks.” The complaint included claims for breach of contract, breach of express and implied warranties, violation of the Tennessee Consumer Protection Act, and fraud. While several claims were dismissed prior to trial, the claims against defendant Navistar proceeded to jury trial, and the jury entered a verdict for plaintiff on the intentional misrepresentation claim. The Court of Appeals, however, reversed, finding that the “asserted fraud claims [were] barred by the economic loss doctrine.”

September 12, 2019

No Employer Liability When Employee Had Car Accident After Work

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

When a woman had left work early and was on a completely personal errand at the time she caused an automobile accident, her employer could not be held liable for her actions.

In Gunter v. Estate of Armstrong, No. E2018-01473-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2019), plaintiff sued the employer of Jamie Armstrong after Armstrong’s vehicle crossed the centerline of a road and caused a car accident, injuring plaintiff. Just before the accident, Armstrong had been working a shift for defendant employer as an in-home caretaker. Armstrong’s replacement showed up early, and Armstrong decided to leave her shift thirty minutes before it ended. This was apparently common practice, although she could technically be called back into work during the remaining thirty minutes. When Armstrong left work, she decided to go get her male friend coffee, and the accident occurred while she was en route to this personal errand.

When Armstrong had been hired, defendant employer had run a drug screen and a TBI background check, both of which came back clear. Defendant did not know that Armstrong had any issues with prescription drug use. On the morning of the accident, the employee who relieved Armstrong said that she seemed very tired and offered to drive her home, but did not believe that she was under the influence. Continue reading

September 11, 2019

Payments to Professionals Who Were Fact Witnesses For Case and Discovery Preparation

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

The Florida Supreme Court ruled that it is appropriate for a lawyer to pay professionals who were fact witnesses in a commercial litigation controversy for their assistance directly related to case and discovery preparation.

In Trial Practices, Inc. v. Hahn, Loeser & Parks, LLC, the court addressed the issue of whether the disciplinary rules in effect at the time of the events permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation that is not directly related to the witness preparing for, attending, or testifying at proceedings. The answer: no – a party may pay only for assistance directly related to the witness preparing for, attending, or testifying at proceedings.

Thus, it was appropriate to compensation the lawyers and accountants involved (who were fact witnesses) for time invested by them in responding to discovery, deposition preparation, etc. but not time in reviewing motions.

September 9, 2019

No Motion for New Trial? Issues Waived.

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

Where plaintiffs failed to file any post-trial motions, most of the issues they tried to raise on appeal were waived.

In Smith v. Benihana National Corp., No. W2018-00992-COA-R3-CV (Tenn. Ct. App. Aug. 9, 2019), plaintiffs filed suit on behalf of decedent’s family members after decedent died while dining at a Benihana restaurant. Plaintiffs essentially alleged that defendant knew that decedent was allergic to seafood, and that they were negligent in preparing his food and allowing seafood particles to be present and/or in allowing him to inhale seafood particles through steam at the restaurant.

This case had a long procedural history, but it was finally tried in front of a jury who returned a verdict for defendant, finding that the restaurant was not liable for decedent’s death. Plaintiffs did not file any post-trial motions, but did appeal the case.

September 5, 2019

Claims Commissioner’s Ruling Affirmed in Battle of the Experts Wrongful Death Case

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

Where a Claims Commissioner credited the testimony of defendant’s expert over plaintiffs’ expert in a wrongful death case, the Court of Appeals affirmed the ruling.

In Jones v. State of Tennessee, No. M2017-02198-COA-R3-CV (Tenn. Ct. App. July 24, 2019), plaintiffs’ son was a football player at Tennessee State University (TSU). While running a drill at practice one day, the son collapsed after suffering a sudden cardiac arrest. Two trainers rushed to respond, but they did not immediately recognize the situation as a cardiac arrest. The trainers called 911, and while on the phone, the son had a seizure and stopped breathing. At that time, the trainers began CPR and sent for an AED that was stored in the trainers’ van. The AED was never used, as the paramedics arrived before it was retrieved. The son was not able to be revived and was pronounced dead at the hospital. The autopsy listed his cause of death as “a fatal arrhythmia of his heart due to scar tissue,” and the report noted that “his heart’s right atrium and ventricle were enlarged” and that there were “extensive amounts of scar tissue throughout the left and right ventricles.”

September 4, 2019

Product Liability and the Duty to Warn (And More)

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

In an asbestos case, a balancing test should have been used to determine whether manufacturers “had a duty to warn about the post-sale integration of asbestos-containing products manufactured and sold by others.” Further, expert testimony regarding the effects of asbestos exposure on a plaintiff did not have to be based on “firsthand knowledge.”

Coffman v. Armstrong International, Inc., No. E2017-01985-COA-R3-CV, No. E2017-02389-COA-R3-CV, No. E2017-00062-COA-R3-CV through E2017-00067-COA-R3-CV, No. E2017-00069-COA-R3-CV, No. E2017-00071-COA-R3-CV, No. E2017-00075-COA-R3-CV, No. E2017-00078-COA-R3-CV, No. E2017-00995-COA-R3-CV (Tenn. Ct. App. July 22, 2019), was a very long, detailed opinion regarding asbestos-related products liability claims made by plaintiff against many defendants. The trial court had granted summary judgment to defendants on all claims based on a four-year statute of repose, a ten-year statute of repose, and plaintiff’s failure to show causation, but the Court of Appeals vacated the judgments, finding that there were genuine issues of material fact as to all plaintiff’s claims. Continue reading