Day on Torts

August 29, 2017

Liability of Tennessee for Inmate-on-Inmate Attacks

In Cook v. State of Tennessee, No. W2016-01914-COA-R3-CV (Tenn. Ct. App. July 27, 2017), the Court affirmed summary judgment in a case where a plaintiff inmate alleged the state was liable for the injuries he suffered after being stabbed by another inmate.

Plaintiff and his cellmate were both inmates at West Tennessee State Penitentiary. They began sharing a cell in October 2010, and on December 6, 2010, cellmate stabbed plaintiff with a handmade knife. Plaintiff filed a complaint with the Tennessee Claims Commission alleging that “the State was liable because [cellmate’s] attack on him was reasonably foreseeable.”

During discovery, it was established that both plaintiff and cellmate were listed as minimum security prisoners (the lowest rating), that the cellmates had a “good relationship” prior to the assault, and that plaintiff had never felt threatened or unsafe around cellmate. Based on these facts, the State moved for summary judgment, which the claims commission granted and the Court of Appeals affirmed. Continue reading

August 28, 2017

No HIPAA Form Required in Single Defendant HCLA Case

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

In Grizzle v. Parkwest Medical Center, No. E2016-01068-COA-R3-CV (Tenn. Ct. App. July 25, 2017), the Tennessee Court of Appeals reversed dismissal of a health care liability (medical malpractice) case based on plaintiff’s failure to provide a HIPAA compliant medical authorization.

Plaintiff had hip replacement surgery at defendant hospital, and when she woke up she began to have severe chest pains. An x-ray showed that she had broken ribs, yet the hospital “provided no explanation as to how the injury to her ribs had occurred.”

Plaintiff filed an HCLA action against the hospital on January 25, 2016. She stated in her complaint that she had complied with the statutory pre-suit notice requirements, but she “did not provide the requisite documentation with her complaint establishing proof of pre-suit notice.” Defendant filed a motion to dismiss based on plaintiff’s failure to file the required documentation with her complaint and her failure to provide defendant with a HIPAA-compliant medical authorization. After the motion was filed, on March 14, 2016, plaintiff filed a “notice of filing” and attached “copies of the pre-suit notice letter and allegedly HIPAA-compliant authorization sent to [defendant].”

August 24, 2017

Inmate Injured on Work Detail – Recovery Limited to Medical Expenses

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

In Elliott v. City of Manchester, No. M2015-01798-COA-R3-CV (Tenn. Ct. App. July 24, 2017), the Court of Appeals analyzed an inmate’s ability to recover from a governmental entity when injured while on work detail.

Plaintiff was an inmate at Coffee County jail. While out performing a work assignment, plaintiff “fell from the bed of a pick-up truck and sustained head injuries.” The truck driver was another inmate, and the inmates were being supervised by a city police officer.

Plaintiff brought suit against both the city and county, but he settled with the county, leaving the city as the only defendant. The city filed a motion to dismiss on the grounds that it was immune under the GTLA, and the trial court dismissed the case. This appeal followed.

On appeal, the Court first analyzed the application of the GTLA and the extent of the city’s potential liability in this case. The GTLA was enacted in 1973 and “is premised on the absolute immunity of governmental entities.” (internal citation omitted). Immunity is waived by the GTLA and a suit against a governmental entity is allowed “for injury proximately caused by a negligent act or omission of any employee acting within the scope of his employment.” (quoting Tenn. Code Ann. § 29-20-205). Plaintiff argued that the GTLA waived immunity in this case, allowing his suit to move forward. Defendant city asserted, though, that Tenn. Code Ann. § 41-2-123(d)(2) applied here and “controll[ed] over the GTLA[.]”

August 23, 2017

Court of Appeals Discusses Tennessee Car Accident Damages

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

Want a primer on the law of compensatory damages in Tennessee? Then look at Hyde v. South Central Tennessee Development District, No. M2015-02466-COA-R3-CV (Tenn. Ct. App. July 14, 2017), defendant admitted liability for a car accident but challenged the damages awarded to plaintiff by the trial court.

On June 14, 2013, defendant’s employee ran a red light and hit the driver’s side of plaintiff’s car. On the day of the accident, plaintiff was taken to a hospital and “was diagnosed with a strain in her thoracic spine and a contusion to her right leg, and discharged with pain medication.” Two days later plaintiff went to a different hospital complaining of head pain and was diagnosed with a headache. Five days after the accident, plaintiff went to a chiropractor “complaining of muscle spasms in her lumbar spine and aches throughout her body.” Plaintiff treated with the chiropractor from June 19 until October 10. In addition to her treatment with the chiropractor, plaintiff went to her primary care doctor on August 20 and November 20, as well as January 27 of the following year.

Defendant admitted liability and a bench trial was held as to damages. The trial court awarded plaintiff $271,378.95 in compensatory damages, and this appeal followed, with defendant challenging the trial court’s damage calculations.

August 22, 2017

No Negligent Misrepresentation Claim Based on Future Event

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

In Jones v. BAC Home Loans Servicing, LP, No. W2016-00717-COA-R3-CV (Tenn. Ct. App. July 12, 2017), the Court of Appeals affirmed dismissal of a negligent misrepresentation claim.

Plaintiffs were the borrowers on a valid and enforceable mortgage, which was held by defendant. Plaintiffs were in default and had received a notice of foreclosure stating that “they were in arrears in the amount of $9,000.00.” Plaintiffs allege that plaintiff husband spoke with a representative from defendant by phone and offered to pay $7,800 by the end of the week, and that the representative “informed him that if he sent a payment of $6,000.00 he would qualify for a six-month repayment plan that would stop the foreclosure sale.” Plaintiff husband stated that he attempted to wire two separate payments totaling $6,000 to defendant, but that the transfers were declined. The foreclosure proceeded, and plaintiffs filed this action.

Plaintiffs asserted various contract-based claims as well as a claim for negligent misrepresentation. The trial court dismissed all the claims pursuant to defendant’s motion for summary judgment, and the Court of Appeals affirmed.

August 17, 2017

Application of Tennessee Savings Statute When Initial Filing Deadline Missed

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

In Jones v. Behrman, No. W2016-00643-COA-R3-CV (Tenn. Ct. App. June 27, 2017), the Court of Appeals affirmed dismissal of an HCLA claim for failure to file within the applicable statute of limitations

Decedent suffered from several health problems, and in February 2011 she had a capsule endoscopy. Two days later, an x-ray showed that the “capsule was still present.” The following day, tests “showed no bowel obstruction but that the capsule remained in the right lower quadrant.” On February 20, 2011, decedent was admitted to the hospital and tests revealed a bowel obstruction. A procedure was performed, and at some point “the surgeons lacerated or penetrated the small bowel, which required them to resect a portion of the bowel.” The injured site or some other part of the small bowel leaked after the surgery, and decedent developed peritonitis and sepsis. Decedent died on April 21, 2011.

On January 24, 2012, decedent’s family members sent pre-suit notice to the doctors who did the capsule endoscopy and the subsequent bowel surgery. On August 13, 2012, plaintiffs filed their HCLA suit, but that case was voluntarily dismissed on September 27, 2012. Plaintiffs then gave pre-suit notice again before re-filing suit on September 26, 2013 pursuant to the savings statute.

August 14, 2017

Nuisance, Invasion of Privacy, IIED, and Chickens

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

In Stinson v. Mensel, No. M2016-00624-COA-R3-CV (Tenn. Ct. App. July 12, 2017), a neighborly dispute about chickens turned into a suit and counter-suit for nuisance, intentional infliction of emotional distress, invasion of privacy and injunctive relief.

Plaintiffs owned land on which several neighbors had an easement for access to their properties. Defendants, two couples who used the easement to get to their homes, alleged that they had never met plaintiffs until the facts surrounding this case began. In 2008, plaintiff husband “came to believe that [one of defendant couples] had stolen some of his chickens that wandered over” to defendants’ property. Plaintiffs left a note in defendants’ mailbox accusing them of stealing the chickens, and plaintiffs subsequently began harassing defendants. Plaintiffs would put brush and fence posts on the easement, blocking passage on the easement. Plaintiffs dug a ditch on the easement which subsequently caused excessive erosion. Plaintiffs screamed at defendants, followed one defendant with a rock, erected a sign telling one couple to stay off plaintiffs’ side of the easement, and prevented defendants from performing maintenance on the easement. Ultimately, plaintiffs filed this suit, claiming that defendants “had caused the easement to be graded and bulldozed, encroached onto [plaintiffs’] property, and made verbal threats and used intimidation” against plaintiffs.

Defendants filed a counter-complaint, and the trial court ultimately dismissed all of plaintiffs’ claims and found that plaintiffs were liable to defendants for nuisance, invasion of privacy, and intentional infliction of emotional distress. Further, the trial court “enjoined [plaintiffs] from forever using, driving on, damaging, or interfering with [the easement], or the maintenance of the same.” The Court of Appeals affirmed the nuisance finding, but reversed on the invasion of privacy and emotional distress claims, and it modified the injunction against plaintiffs.

August 10, 2017

Mothers, Minors and Medical Bills

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

Who has the right to recover medical expenses incurred for personal injuries to children in Tennessee? The parents? The minor? Either but not both? Does it make any difference if there is a holder of a subrogation interest which has a right to assert a claim against either the parents or the minor?

My recent article on the subject appears on PDF Page 38 of a recent edition of the Tennessee Bar Journal.

An excerpt:

August 9, 2017

Special Duty Doctrine Applied Against 911 Agency in Suicide Case

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

In Ramsey v. Cocke County, Tennessee, No. E2016-02145-COA-R3-CV (Tenn. Ct. App. June 23, 2017), plaintiff sued the county, the police department, and the county emergency communications district for wrongful death after her daughter committed suicide. The trial court granted summary judgment to defendants, but the Court of Appeals reversed, holding that “the decedent’s suicide was foreseeable and that the special duty exception to the public duty doctrine applie[d].”

According to plaintiff, she called 911 around 8:30 p.m. one night because her daughter was exhibiting “unexplained serious mental and behavioral” issues and was indicating that she was going to commit suicide. Plaintiff asserted that she told the 911 operator that her daughter was threatening suicide and asked for police assistance, but that the operator refused to send police because “it was not their policy to respond to domestic family issues.” Plaintiff called again around 9:15 and was denied police assistance a second time, and plaintiff was transferred to an officer who allegedly affirmed that it was “not their policy to send responders in situations like this.” Because the operator had refused to dispatch an officer, plaintiff stated that she drove to the police department, but that the doors were locked and she could not find an officer. When plaintiff returned home, her daughter had committed suicide.

Plaintiff filed suit for wrongful death, and the defendants disputed plaintiff’s version of the facts. Defendants denied that plaintiff requested an officer or that she told them that her daughter was contemplating suicide. Defendants filed a motion for summary judgment on the basis that they “did not owe plaintiff a duty of care pursuant to the public duty doctrine” and that the suicide was “an intervening and independent cause which supersedes any liability and is the proximate cause of the death of the decedent.” The trial court granted the summary judgment, finding that the suicide here was an intervening cause, but the Court of Appeals reversed.

August 4, 2017

Failure to Include Causation Evidence Ends Malpractice Case

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

In Graham v. The Family Cancer Center PLLC, No. W2016-00859-COA-R3-CV (Tenn. Ct. App. June 5, 2017), the Court of Appeals affirmed summary judgment in a health care liability suit, agreeing that “plaintiffs lacked sufficient expert testimony to establish their claims.”

Plaintiff patient had been treated for non-Hodgkin’s lymphoma in the 1990s, and he was subsequently monitored by defendant doctor. Part of the monitoring included checking plaintiff’s prostate specific antigen, or PSA. Plaintiff’s “PSA rose from 2.0 ng/mL in 2000 to 4.8 ng/mL in December 2002 and to 8.5 ng/mL in April 2005.” Plaintiff also complained of blood in his urine in both April 2002 and July 2004. In April 2005, based on the testing and plaintiff’s complaints of pain, defendant ordered an ultrasound, which “revealed findings consistent with benign prostate hypotrophy,” and defendant referred plaintiff to a urologist. Plaintiff saw defendant six times after this referral until August 2007, when his PSA measured 12.0ng/mL, and defendant “never inquired whether [plaintiff] had met with an urologist and did not make an additional referral.”

Six months later, plaintiff went to another doctor and was diagnosed with prostate cancer. He had a “radical prostatectomy,” and pathology reported the disease was “locally advanced with several high risk features.” Plaintiff “was considered at high risk for a local recurrence and distant metastatic disease.”