Day on Torts

February 5, 2019

No Fraud Claim Where Inspection Revealed Possible Water Issues

Where a homebuyer’s inspection of a property put them on notice that there were potential water issues in the garage before closing, the buyer could not later sustain a claim for fraud.

In Fulmer v. Follis, No. W2017-02469-COA-R3-CV (Tenn. Ct. App. Dec. 20, 2018), plaintiffs had previously purchased a home from defendants. On their disclosure forms, defendants had stated that they knew of no drainage issues, and that heavy rain had caused water to come into the garage one time, but that the issue had been repaired. While under contract but before closing, plaintiffs had a home inspection done, which noted “possible rainwater intrusion at the east wall in the garage,” grading issues that might cause drainage problems outside the garage, and a 1×8 board that had been installed for “some unknown reason” on the base of the east garage wall. After the inspection, plaintiffs and defendants continued to communicate through their realtors, with defendants sending pictures after a rain to show that no water had come into the garage, and plaintiffs asking about seeing behind the board. Defendants told plaintiffs that the board was intended to cover an area where they “did not like how the drywall and the garage floor came together” and was “purely cosmetic.” Plaintiffs ultimately did not do any further inspection and closed on the property, but did negotiate for defendants to pay $1,500 more in closing costs “due to the possible rainwater intrusion and grading issue.”

January 31, 2019

No Fault for Plaintiff Affirmed

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

Where there was contradictory evidence regarding whether plaintiff followed certain braking procedures, but there was evidence that another employee did not follow lifting procedures at a railroad facility, a reasonable juror could have attributed no fault to plaintiff for an accident that occurred at the facility.

In Boyd v. BNSF Railway Company, No. W2017-02189-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2018), plaintiff worked at a railroad facility, and she “was crushed by a container box being lifted off of a holster truck.” Plaintiff had been driving the truck and had exited the truck when the other employee operating a crane began lifting the shipping container off the truck. When the entire truck started moving, plaintiff attempted to get back into the truck, but she was hit by the shipping container and seriously injured.

January 16, 2019

Legal Malpractice Statute of Limitations Applied to Real Property Closing

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

Where plaintiff offered no evidence to refute defendant attorney’s testimony that he told plaintiff about the issues with a title before the closing of a real property purchase, summary judgment on the legal malpractice claim was affirmed based on the statute of limitations.

In Dent Road General Partnership v. Synovus Bank, No. W2017-01550-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2018), plaintiff was a partnership who had worked with defendant attorney on the purchase of three tracts of real property in 2004. Although the contract stated that the parcels would be conveyed by warranty deeds, at closing a quitclaim deed was given for one. Later, in 2011, plaintiff partnership attempted to sell the property, at which time a title search revealed “four pending lawsuits seeking to set aside a fraudulent conveyance [of one parcel]…, several judgment liens, and liens lis pendens.” Within one year of this 2011 title search, plaintiff brought suit against several entities, including a claim for legal malpractice against defendant attorney in connection with the 2004 purchase.

The trial court granted summary judgment to defendant attorney, finding that “the injury for purposes of the discovery rule occurred on the date of closing, Marcy 31, 2004, and that [plaintiffs] were alerted to the injury when they received the quitclaim deed at closing.” The Court of Appeals affirmed this ruling.

January 15, 2019

Affirmative Defenses Not Waived By One-Day Delay of Answer

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

Where a defendant filed his answer to a legal malpractice claim thirty-one days after being served with process and amended his originally insufficient answer, the Court of Appeals ruled that he did not waive his affirmative defenses.

In Allen v. Ozment, No. W2017-00887-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2018), plaintiff filed a legal malpractice claim against defendant. The complaint was filed more than one year after the previous legal representation ended, and defendant was served a year and a half after the complaint was filed. Defendant filed an answer thirty-one days after being served, wherein he raised the affirmative defenses of insufficient service of process, insufficient process, and failure to state a claim. These affirmative defenses were not stated with the requisite specificity, but the trial court allowed defendant to file an amended answer with more specific affirmative defenses. Defendant filed a motion to dismiss, supported by a memorandum, and the trial court dismissed the claim as time-barred. Plaintiff appealed the dismissal, arguing that defendant had waived his affirmative defenses, but the Court of Appeals affirmed.

January 8, 2019

Agritourism Statute Provides Immunity from Liability but Allows Fault Allocation

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

While Tennessee’s agritourism statute provides immunity for agritourism professionals in certain circumstances, it does not “preclude the allocation of fault to a nonparty agritourism professional in a negligence action.”

In Green v. St. George’s Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018), Ms. Green went on a church outing to a local farm. She was riding in a church bus driven by a parishioner, and when the bus crossed over two drainage berms at the farm, the “resulting jolt severely injured [her].”

Plaintiff filed suit against the church, and the church asserted the comparative fault of the farm in its answer. Plaintiff moved for partial summary judgment on the comparative fault issue, “arguing that Tennessee’s agritourism statute precluded a finding that [the farm’s] conduct caused or contributed to her injuries.” The trial court denied this motion, and granted a motion in limine to exclude any evidence about the farm’s immunity. At the end of the trial, the jury returned a verdict for plaintiff, finding the church 15% at fault and the farm 85% at fault. Plaintiff appealed, arguing that fault should not have been apportioned to the farm, and the Court of Appeals affirmed.

January 7, 2019

Non-Compliant HIPAA Release Prejudiced Only One Defendant

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

Where plaintiff gave pre-suit notice of an HCLA suit to two defendants related by employment, but her HIPAA authorization failed to identify to whom medical records could be disclosed, the Court of Appeals analyzed whether each defendant was individually prejudiced by the lack of compliance. The Court ultimately concluded that the employer defendant who was in possession of all the records was not prejudiced and the suit could continue against it, but that the employee defendant who did not possess the records was prejudiced.

In Wenzler v. Yu, No. W2018-00369-COA-R3-CV (Tenn. Ct. App. Nov. 20, 2018), plaintiff filed a health care liability case against a dentist and the practice for which he worked. She sent pre-suit notice with a HIPAA authorization attached, but while the HIPAA authorization “mentioned that the information would be used for litigation,” it “failed to identify the person or entity that was authorized to receive the disclosure pursuant to the release.” The trial court found that the HIPAA authorizations did not substantially comply with the statutory requirements and that plaintiff was therefore not entitled to the 120-day extension of the statute of limitations, and thus dismissed the complaint as time-barred. The Court of Appeals affirmed as to the dentist but reversed as to the dental practice.

December 18, 2018

No Evidence From Plaintiff = Summary Judgment for Defendant

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

Where a plaintiff who fell in a grocery store presented no evidence in her premises liability case beyond the fact that there was a pallet in the aisle over which she tripped, the Court of Appeals affirmed summary judgment for defendant grocery store.

In Hunter v. Kroger Limited Partnership, No. W2017-01789-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2018), plaintiff was shopping in defendant grocery store when she tripped on a pallet and fell. Plaintiff had been bent over in a freezer searching for an item. As she straightened up, she stepped backwards 3-4 steps to allow another customer to pass, and in doing so she “tripped on a wooden pallet that was left on the floor in the center of the aisle.” Evidence showed that the pallet was wooden and had been used for stocking the shelves, and that nothing was blocking plaintiff’s view of the pallet.

Plaintiff filed this premises liability action asserting that defendant “owed her an affirmative duty of care to protect her from the dangerous condition created by the pallet.” The trial court granted summary judgment for defendant, and the Court of Appeals affirmed.

In its memorandum supporting the motion for summary judgment, defendant argued that the pallet was not a dangerous condition and that plaintiff’s “allegation that this pallet was a dangerous condition is not based on anything other than the fact that she tripped.” Defendant filed a statement of undisputed facts, which included the facts that plaintiff was walking backwards and had taken around 4 steps before she hit the pallet and fell, and that there was nothing blocking the pallet from view. Plaintiff admitted all of these facts and “proffered no additional material facts, and submitted no additional evidence.” On appeal, this lack of evidence proved fatal to plaintiff’s case.

December 11, 2018

“Rebuttal” Evidence Properly Excluded

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

Where a plaintiff made a tactical decision to withhold certain evidence during its case-in-chief and instead attempted to introduce the testimony as rebuttal evidence, the evidence was not be allowed and was deemed to “contradict [plaintiff’s] own proof.”

In Alumbaugh v. Wackenhut Corporation, No. M2016-01530-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2018), plaintiff’s father was shot and killed by an armed security guard at a Pilot travel center, and plaintiff filed this wrongful death action against the security guard company who employed the shooter. On the night of the incident, decedent and a female companion had been drinking heavily and were traveling home when decedent pulled his vehicle into the back lot of a Pilot, which was reserved for tractor-trailer trucks. During plaintiff’s case-in-chief, she presented the videotaped testimony of decedent’s female companion, who testified that decedent was standing in the passenger doorway of the car when the guard approached and that the altercation only lasted a few minutes. According to this testimony, decedent was the aggressor, the guard tried to calm decedent down, and the guard tried to handcuff decedent. While the guard was trying to call someone, decedent pushed the guard against a truck, overpowered him, and was on top of him when the guard pulled out his gun and shot decedent.

In defendant’s case-in-chief, it presented evidence that the guard had previously been in the army and that it had not received any complaints about the guard’s job performance, although a supervisor at Pilot “admitted that he had intervened between [the guard] and others on occasion.” The guard testified that on the night in question he tried to call for assistance, but that “the next thing he knew, [decedent] was on top of him, hitting his head and face,” and that “he felt a tug on his belt and believed the man was reaching for his gun” before the guard shot decedent.

November 19, 2018

Res Ipsa Loquitor and Medical Malpractice Claims

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

When an HCLA plaintiff proceeds under a res ipsa loquitur theory, her expert is not required to opine on the same elements as in a traditional HCLA claim.

In Anderson v. Wang, No. M2018-00184-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2018), plaintiff had laser cataract surgery performed on both eyes by defendant doctor. After the second surgery on her right eye, plaintiff experienced serious complications, including extreme loss of endothelial cells and corneal decomposition that required a corneal transplant.

Plaintiff brought this HCLA case under Tenn. Code Ann. § 29-26-115(c), which governs HCLA res ipsa loquitur claims. This section states that “there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant’s…exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.” The trial court granted defendant’s motion for summary judgment, finding that plaintiff’s expert “never defined the applicable standard of care or how any instrumentality could have been improperly used contrary to the applicable standard of care.” The Court of Appeals, however, reversed.

November 2, 2018

“Extraordinary Cause” Under HCLA Notice Statute

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

When a plaintiff’s lawyer terminates his representation just weeks before the statute of limitations is set to expire on a health care liability claim, this termination may constitute extraordinary cause to excuse the plaintiff’s noncompliance with certain pre-suit notice and certificate of good faith requirements.

In Reed v. West Tennessee Healthcare, Inc., No. W2018-00227-COA-R9-CV (Tenn. Ct App. Oct. 8, 2018), plaintiff was injured when he fell while in the hospital being treated for a different injury on October 18, 2015. He retained counsel over four months before the statute of limitations was set to run on his health care liability claim, but just a few weeks before it expired, the attorney terminated his representation of plaintiff. Plaintiff then sent a letter dated October 7, 2016 to a hospital executive stating that he had been injured and demanding compensation. He subsequently filed his HCLA complaint on October 14, 2016, which was within the one-year statute of limitations, but he did not attach a Certificate of Good Faith to his complaint. After he filed his complaint, he hired a new attorney.

Defendant filed two motions to dismiss, one based on plaintiff’s failure to attach a Certificate of Good Faith and one based on plaintiff’s failure to follow the pre-suit notice requirements by failing to give his notice 60 days before he filed the complaint, failing to provide a HIPAA authorization, failing to provide an affidavit from the party who mailed the notice, and failing to state that he had complied with the statute. The trial court denied both motions, finding that the termination of representation just weeks before the statute of limitations ran constituted extraordinary cause under the HCLA and thus excused compliance with these requirements. The Court of Appeals affirmed.