Day on Torts

May 8, 2018

Expert Needed in Legal Malpractice Case

In most legal malpractice cases, a plaintiff will need expert proof regarding the applicable standard of care.

In Elaster v. Massey, No. E2017-00020-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2018), plaintiff filed a pro se legal malpractice case against two attorneys who had previously represented her in a workers’ compensation claim. Plaintiff claimed that defendants had settled her workers’ comp claim without informing her, and that they had generally “failed to adequately represent her in the workers’ compensation case.”

Defendants filed a motion for summary judgment, supported by their own affidavits stating that they had “complied with all relevant standards of care in their representation of [plaintiff].” In support of their motion, defendants filed a statement of undisputed material facts, which stated that plaintiff’s workers’ compensation claim was “disputed and doubtful,” and that even though they had negotiated a settlement in that case, plaintiff repudiated and the case was never actually settled. In response to the motion, plaintiff “admitted that no settlement agreement was ever finalized, that she never entered into any settlement agreement with her former employer, that no settlement funds were ever paid, and that both [defendants] were familiar with the standard of care required in the underlying workers’ compensation case.” Importantly, plaintiff “cited only to her complaint” in responding to the summary judgment motion, and presented no expert proof that defendants’ conduct fell below the standard of care.

May 7, 2018

No Notice of Dangerous Condition Bars Fall-Down Case

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

Where plaintiff sued an adjacent landowner for visible water that allegedly made him fall at a storage facility, the Court of Appeals affirmed the holding that the defendant was not liable for the accident.

In Morgan v. Memphis Light Gas & Water, No. W2016-01249-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2018), plaintiff was looking at a storage unit at Cook Sales’ property in April 2013 when he slipped and fell in a puddle of water. The area where plaintiff fell was visibly wet. Adjacent to the property where the storage facility was located, defendant owned a water tower. Plaintiff brought suit against defendant, a governmental entity, alleging that “the water tank located on [defendant’s] property leaked, causing water to intrude onto Cook Sales’ property and saturate the ground where he fell.”

After a bench trial, the trial court found for defendant, holding that plaintiff failed to show that the “water tower caused or created a dangerous or defective condition;” that plaintiff had failed to show that defendant had notice of any allegedly dangerous condition; and that under the doctrine of comparative fault, plaintiff was “at least 50% at fault and Cook Sales was at least 50% at fault[.]” The Court of Appeals affirmed all of these findings.

May 4, 2018

Plaintiff Fails to Prove City Owned or Operated Drainage Pipe

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

A city government cannot be held liable in tort for a drainage problem on a road it does not own or operate caused by a malfunctioning pipe it did not install.

In Walker v. Metropolitan Government of Nashville & Davidson County, No. M2016-00030-COA-R3-CV (Tenn. Ct. App. Feb. 13, 2018), plaintiff homeowner sued defendant city “for damages to his property caused by storm water runoff under the tort theory of a temporary continuous nuisance.” Plaintiff alleged that storm water runoff from the road he lived on flooded his property, basement and foundation each time it rained, and that he had asked defendant several times to fix a malfunctioning drainage pipe. Defendant moved for summary judgment on the basis that a previous homeowner had actually installed the malfunctioning pipe and that the city was accordingly immune from suit under the GTLA. The trial court granted summary judgment for defendant, and the Court of Appeals affirmed.

The evidence submitted in support of defendant’s motion for summary judgment showed that the road plaintiff’s property was on was a state highway, not a city street, and that before plaintiff owned the property the state had “acquired a permanent drainage easement” from the former owners. The state had installed a drainage pipe that funneled water to a ditch, which then funneled water to a creek. Before plaintiff bought the property, however, the previous homeowners enclosed the ditch and put a drainage pipe under the ground where the ditch was previously located, using a mix of both concrete and corrugated metal pipe. Defendant city did not install the pipe or fill in the ditch in question.

May 3, 2018

Release in Probate Court Barred Later Claims Against Uninsured Motorist Insurer

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

When an ATV accident plaintiff executed a release of her claim against the personal representative of the estate and filed that release in probate court, that release “served to release [her uninsured motorist insurance carrier] from any liability arising from [plaintiff’s] personal injury claim stemming from the ATV accident.”

In Johanssen v. Sharber, No. M2017-00639-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2018), plaintiff was injured in an ATV accident. The driver of the ATV died, and plaintiff filed a tort claim in circuit court against the personal representative of the driver’s estate. Plaintiff’s uninsured motorist carrier, GEICO, was also served and joined as a party. Plaintiff also filed a claim against the estate in probate court “for medical bills and personal injury.”

While the circuit court case was pending, plaintiff “executed a release of claim in the Probate Court without GEICO’s consent.” The release stated:

The undersigned, [plaintiff], acknowledges full and complete satisfaction of the claim filed against the Estate and releases the Personal Representative from any further liability on the claim of $150,000.00 that the undersigned filed against the Estate.

May 2, 2018

Typed Signature Qualifies as “Signature” for Rule 11 Purposes

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

In some circumstances, a typed name may qualify as a signature on a pleading.

In Jones v. Mortgage Menders, LLC, No. M2017-01452-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2018), plaintiff initially filed his complaint in 2006, then took a voluntary nonsuit on February 12, 2016. Plaintiff, acting pro se, filed a “purported complaint” on February 2, 2017, attempting to re-assert the original claims. This pleading “featured his typewritten name rather than his handwritten signature.”

The court clerk alerted plaintiff to the lack of signature , but instead of signing the complaint, plaintiff “signed a certificate of service.” Defendants moved for summary judgment, which the trial court granted, finding that the lack of signature meant that the complaint did “not satisfy the signature requirement under Rule 11,” and further finding that the purported complaint was so deficient as to not be a complaint at all. The Court of Appeals overturned these holdings.

May 1, 2018

Tenant Locked Out of Office Entitled to Conversion Damages

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

Where a landlord evicted a tenant by locking him out and bypassed the legal process outlined in the lease, the landlord was liable for conversion, and the Court of Appeals affirmed an award based on “the present day value of the personal property which Plaintiff claimed was not returned.”

In Philp v. Southeast Enterprises, LLC, No. M2016-02046-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2018), plaintiff tenant had rented an office space from defendant landlord. After plaintiff failed to pay rent for two months, defendant “changed the locks on the doors and posted a notice on the building entrance stating that Plaintiff had been evicted.” Plaintiff filed suit for various causes of action related to the lease and eviction, including a claim for conversion and punitive damages. After a trial, the trial court found that defendant was liable for conversion, which the Court of Appeals affirmed. The trial court also awarded plaintiff $5,000 in punitive damages, and although the Court of Appeals affirmed the decision to award punitive damages, it vacated the amount and instructed the trial court “to make specific findings of fact and conclusions of law relative to the appropriate factors and enter judgment accordingly.”

Regarding the conversion claim, the Court of Appeals first affirmed that defendant was liable for conversion damages. The Court pointed out that “[b]y locking Plaintiff out, Defendants maintained possession of all of Plaintiff’s property inside the building.” The Court noted that “Defendants bypassed legal process and changed the locks on the door,” and that their “actions of wrongfully evicting Plaintiff from the property allowed them to exercise dominion and maintain control over Plaintiff’s personal property.” The finding that defendants were liable for conversion was thus affirmed.

April 30, 2018

Discovery Rule Applied in Tennessee Health Care Liability Act Case

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

In a misdiagnosis Tennessee health care liability (medical malpractice) case, defendants seeking dismissal based on the statute of limitations were required to “establish that decedent was aware of the alleged misdiagnosis,” not just show that the misdiagnosis was made, in order to establish when the one-year limitation period began to run.

In Shaw v. Gross, No. W2017-00441-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2018), plaintiff was the administrator of decedent’s estate, and the case involved allegations that decedent died as the result of a misdiagnosis. Decedent went to the emergency room on May 17, 2014, complaining of “rib-trunk pain and headache that resulted from a fall.” Defendant doctor ordered lab work and diagnosed decedent with dehydration, sending him home. Decedent returned the next day via ambulance and was diagnosed with sepsis and an inflamed gallbladder. Decedent died less than a month later, on June 14, 2014, and an autopsy report on June 18^th confirmed his cause of death as “septic shock and gangrenous cholecystitis.”

April 30, 2018

New-Added Defendant Loses Effort at Early Dismissal of Action

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

Where a defendant adds an affirmative defense asserting comparative fault against a non-party more than two years after the complaint was originally filed, such assertion may be appropriate and timely if the defendant was diligent in obtaining information about the potential tortfeasor.

In Santore v. Stevenson, No. W2017-01098-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2018), plaintiff was injured when he was hit by a vehicle at a truck stop. Plaintiff filed suit against Cordova Concrete, Inc. and its employee (Cordova) on July 8, 2014. At some later point, Cordova learned that a 911 call had been made from the accident scene, and it sent a subpoena to the City of Memphis to obtain a recording of the call. When the city did not respond, Cordova sent a public records request, and thereafter received an audio file of the call and a Background Event Chronology.

Cordova found a number listed in the chronology and called it multiple times, finally identifying the 911-caller as a truck driver. Cordova arranged to depose the truck driver on August 29, 2016, and during that deposition the caller stated that an Averitt truck hit plaintiff. Based on this information, on September 20, 2016, Cordova filed a motion to amend its answer and assert an affirmative defense of comparative fault against Averitt and its unknown driver. This filing came “more than two years after the complaint was filed but less than three months after obtaining the public records from the City of Memphis.” Cordova and plaintiff agreed to allow the amendment, and plaintiff then amended the complaint to add Averitt and the unknown driver as defendants.

April 10, 2018

Improper Notice Under TCA § 29-26-121 – The Savings Statute Does Not Save Case

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

If an HCLA plaintiff fails to provide proper pre-suit notice and files her first complaint after the statute of limitations has passed (but within the 120-day grace period), her case will not be saved by voluntarily dismissing and trying to use the savings statute to refile.

In Dortch v. Methodist Healthcare Memphis Hospitals, No. W2017-01121-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2018), plaintiff filed a health care liability suit against defendants based on the death of her son following a surgery on April 3, 2014. On April 6, 2015, plaintiff’s counsel served a purported pre-suit notice of her HCLA claim on defendants, pursuant to Tenn. Code Ann. § 29-26-121. This notice contained HIPAA authorization forms that “only permitted the recipient entity to send the medical records of [the deceased] to plaintiff’s counsel.” The statute, however, requires that the HIPAA forms included with the notice permit “the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” (Tenn. Code Ann. § 29-26-121(a)(2)(E)).

Plaintiff filed her initial complaint on July 1, 2015, after which defendants filed a motion to dismiss based on the deficiencies in the pre-suit notice. Plaintiff then filed a notice of voluntary dismissal, and an order of dismissal was entered on September 17, 2015.

On July 6, 2016, plaintiff sent a second pre-suit notice to defendants, then she re-filed her complaint on September 16, 2016. Defendants moved to dismiss this complaint, alleging that plaintiff’s first complaint was untimely and that she was thus not entitled to take advantage of the one-year savings statute. The trial court agreed, granting the motion to dismiss, and the Court of Appeals affirmed.

April 9, 2018

TCA Sec. 20-1-119 Applied to Save Case Against Previously Dismissed Defendant

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

If a plaintiff originally names a defendant then later voluntarily dismisses that defendant, the plaintiff may be able to re-name the defendant in an amended complaint pursuant to Tenn. Code Ann. § 20-1-119 after another defendant asserts comparative fault against the previously nonsuited defendant. This result may not be affected by the fact that the same defendant was named as a potential comparative tortfeasor in the answer to the original complaint.

In Scales v. H.G. Hill Realty Co., LLC, No. M2017-00906-R3-CV (Tenn. Ct. App. Jan. 30, 2018), plaintiff fell in a grocery store on February 19, 2014. She filed suit against four entities that owned or operated the store on December 4, 2014 for various negligence and premises liability claims. The defendants included two entities related to Publix (the Publix defendants) and two related to the owners of the property (the Hill defendants). The Publix defendants filed an answer on January 8, 2015, in which they asserted as an affirmative defense the comparative fault of the Hill defendants.

After serving discovery requests on plaintiff, the Hill defendants filed a motion to compel. Plaintiff subsequently voluntarily dismissed the Hill defendants, with an order of dismissal without prejudice being entered on May 29, 2015.