Day on Torts

February 9, 2018

Sixteen-Year-Old Misrepresentation Claim Time-Barred

Where plaintiff could have discovered fire damage to her home by simply moving the refrigerator or looking in the HVAC return, the statute of limitations on her misrepresentation claims was not tolled under the discovery rule of the doctrine of fraudulent concealment.

In Eldridge v. Savage, No. M2016-01373-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2017), plaintiff purchased a home from defendant in 1994. At the time, defendant told plaintiff that the home had been damaged by a fire started by the previous occupants, and plaintiff noticed “that the home’s kitchen cabinets were caramel color due to being heat scorched, and observed that the home had at least one burnt floor joist in the basement.” Plaintiff also had the home inspected by a professional home inspector at the time of the purchase.

After living in the home for 16 years, one of plaintiff’s children developed respiratory issues, which eventually led doctors to recommend that plaintiff clean the home with bleach in case environmental conditions were causing the child’s issues. During this cleaning, plaintiff discovered that the home had “extensive fire damage behind the refrigerator, behind the cabinets, in the walls, and charred flooring was also discovered beneath the linoleum that [defendant] installed.” Plaintiff further found that “the HVAC return was filled with soot.”

February 8, 2018

Home Inspector Owes No Duty to Guest of Homebuyer

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

The Tennessee Supreme Court recently refused to recognize liability for potential negligence from a home inspector to the third party guest of the purchaser of a home.

In Grogan v. Uggla, No. M2014-01961-SC-R11-CV (Tenn. Nov. 21, 2017), plaintiff was injured when he was a social guest at a home and leaned against a second floor deck railing, which gave way and caused plaintiff to fall. During a home inspection prior to the purchase of the home, the “home inspector noted problems with the deck flooring of the second story deck but not with the railing.” The purchasers had the sellers replace the deck flooring, but not the railing. After plaintiff’s fall, a “forensic inspection of the railing showed that it had been improperly constructed using interior finishing nails rather than galvanized nails.” Plaintiff filed suit against several defendants, including the home inspector and the home inspection franchise.

Regarding defendant home inspector, the complaint alleged that he “should have known that the second floor rear exterior deck railing was constructed with interior finishing nails in violation of local, state, and national building codes, and constituted an unreasonable risk of harm…” The complaint further alleged that the home inspector did not perform the proper tests on the deck railing and that he “failed to report that [it] was negligently constructed in violation of local, state, and national building codes.”

January 23, 2018

Radiologist Found to be Apparent Agent of Hospital

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

Where the only notification a hospital provided to a patient that a radiologist was not an agent of the hospital was buried in fine print in admission forms and not highlighted in any way, the trial court’s finding that the hospital was vicariously liable for any fault assigned to the radiologist was affirmed.

In Beard v. Branson, No. M2014-01770-COA-R3-CV (Tenn. Ct. App. Nov. 8, 2017), the patient in question had colon surgery at defendant hospital and developed complications. The surgeon ordered a CT scan, which was performed at the hospital and read by Dr. Anderson, “a private radiologist whose practice group was under contract with [the hospital.]” The radiologist reported that the scan showed the “possibility of a mechanical bowel obstruction,” a finding with which the surgeon disagreed. The patient’s condition worsened, and she was eventually flown to another hospital where she died in emergency surgery. Plaintiff filed this HCLA/ wrongful death case against the hospital and surgeon, alleging that the patient “died because of delay in treatment of a bowel perforation she developed as a complication of colon surgery.”

In July 2005, plaintiff’s attorney requested a copy of the CT scan, and the hospital responded that it could not be located. Plaintiff attempted to get the CT scan from the surgeon, the radiology group under contract with the hospital, and the hospital at which the patient ultimately died, but was not provided a copy until three years later. The CT scan revealed that Dr. Anderson “failed to note and report evidence of free air in [patient’s] abdomen, indicative of a bowel perforation.” By the time the CT scan was provided, it was too late to add Dr. Anderson, the radiologist, as a defendant.

January 3, 2018

Nursing Home Arbitration Agreement Not Enforced

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

While the parties to an arbitration agreement may agree to “arbitrate threshold issues concerning the arbitration agreement,” issues concerning whether a contract was actually formed should be decided by a court.

In Edwards v. Allenbrooke Nursing and Rehabilitation Center, LLC, No. W2016-02553-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2017), plaintiff sued defendant nursing home for wrongful death and health care liability claims regarding the death of plaintiff’s mother. Defendant moved to compel arbitration, attaching to its motion an arbitration agreement and Appointment of Surrogate. The Appointment of Surrogate was signed by a different daughter on April 18, 2012, and purported to give the daughter “authority to make all health care related decisions for” the mother, although the daughter’s name was erroneously put into the blank instead of the mother’s name. This Surrogate form was signed by the mother the next day. The arbitration agreement had been signed by the other daughter on April 18, “the day before Mother signed the Appointment of Surrogate form.”

The trial court denied defendant’s motion to compel arbitration, finding that the other daughter “did not have the authority to make a health care decision on behalf of Mother pursuant to the Tennessee Health Care Decisions Act, regardless of any discrepancy about the dates on the relevant documents.” The trial court pointed out that Tenn. Code Ann. § 68-11-1806 provides that a “surrogate may make a health care decision for a patient who is an adult…if, and only if: The patient has been determined by the designated physician to lack capacity…” Here, Mother’s physician specifically noted on April 20^th that Mother did not lack capacity. Accordingly, the trial court “concluded that [the other sister] did not have the authority to sign the arbitration agreement on Mother’s behalf as her surrogate.” Further, the trial court noted that because the form listed the daughter’s name instead of the mother’s, it was “flawed and as such void from the beginning.” The Court of Appeals affirmed.

December 26, 2017

Facebook Post Ruled Not Defamatory

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

Social media and the ability to broadcast one’s opinions across the internet are raising many new issues in defamation law. A recent Tennessee case held that when a Facebook post and picture are posted together, they must be considered together and the communication should be analyzed in its entirety.

In Weidlich v. Rung, No. M2017-00045-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2017), defendant sued plaintiff for defamation over a post plaintiff made on Facebook. Plaintiff and defendant had both attended a heated school board meeting regarding the potential formation of a Gay/Straight Alliance at their local high school. Defendant was in favor of the group, while plaintiff “expressed strong opposition to the formation.” During this time, plaintiff’s wife “made tentative plans to run for” the school board. At a subsequent meeting, defendant saw plaintiff’s vehicle in the parking lot. On the back of the vehicle, plaintiff had a sticker with the Confederate flag and the word “SECEDE;” a sticker with the words “God, Family, The South” next to another Confederate flag; and another sticker that said “The League of the South,” which Defendant testified was a hate group. Defendant took a picture of these stickers and posted it to her Facebook wall, along with the caption: “Free Bonus Prize. The Fisty Family are also white supremacist! We’ll need to keep this handy come election time.”

Plaintiff sued for defamation based on this Facebook post. The General Sessions Court ruled for defendant, finding that plaintiff “had been unable to establish damages.” In the trial court, plaintiff had a witness testify that the witness stopped using plaintiff’s mechanic shop and had spent around $7,000 using a different service provider. The trial court ruled for plaintiff and awarded him $7,000 in damages and $5,000 in attorney’s fees. In its order, the trial court found that the statement was defamatory, that it was made maliciously, and that at the time of posting neither plaintiff nor his wife were public figures. The Court of Appeals reversed this ruling.

December 8, 2017

Medical Malpractice Defense Verdict Affirmed

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

In Commercial Bank & Trust Co. v. Children’s Anesthesiologists, P.C., No. E2016-01747-COA-R3-CV (Tenn. Ct. App. Oct. 25, 2017), plaintiffs were the legal guardian of a minor who, after a shunt revision, was no longer able to walk. Plaintiffs filed an HLCA suit, and after trial, the jury returned a verdict for defendants. Plaintiffs appealed, raising four issues.

First, plaintiffs asserted that “the Trial Court erred in allowing testimony that implied that [the minor’s] parents came to this country as refugees.” Because plaintiffs did not object to this line of questioning at trial, though, this issue was deemed waived.

Second, plaintiffs alleged that it was error to not allow a certain exhibit to be taken into the jury room. During cross examination of one of the defendant doctors, plaintiffs’ counsel used a piece of paper on which “standard of care” was handwritten, and the following words were typed: “The practice that protects the patient from unnecessary risk of serious harm.” After defendant doctor said she agreed with that statement, plaintiffs’ counsel attempted to file the paper as an exhibit. The trial court marked it for identification purposes only, then later refused to let it be taken to the jury deliberation room. The Court of Appeals held that this was not error, pointing out first that plaintiffs’ counsel failed to object at trial, and further that the alleged exhibit was “needless presentation of cumulative evidence, since the statement contained in [the exhibit] was read to [defendant doctor] at trial, and she testified that she agreed with the statement.” (internal quotation omitted). In addition, the Court noted that because the statement was so general, it would have likely “resulted in confusion by giving this written statement undue weight over the oral testimony on that issue.”

November 27, 2017

Court Rejects Assertion that Video of Crash Determined Fault Allocation as a Matter of Law

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

Even with video showing the crash, a court may find that there are issues of fact concerning fault allocation surrounding a car accident.

In Trammell v. Peoples, No. M2016-02198-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2017), plaintiffs were involved in a car accident with defendant. Defendant was driving a box truck “in the course and scope of his employment,” and the truck was equipped with a camera on the dash. The camera recorded twelve seconds, including the eight seconds before the crash and the four seconds after. The video showed defendant “traveling at a speed of approximately 60 miles per hour in a middle lane while passing a construction scene monitored by police vehicles immediately to the right.” Plaintiffs were shown traveling ahead of defendant in the far left lane. “In the four seconds before impact, [plaintiff driver] initiates his turn signal and begins to merge into [defendant’s] lane. Unable to slow in time, [defendant’s] truck collides with the vehicle operated by [plaintiff], causing it to spin.”

Plaintiffs filed this negligence suit alleging that defendant’s failure to keep his truck “under proper and reasonable control” was the cause of the accident. Defendants (the driver and his employer) filed a motion for summary judgment, relying on the video to show that plaintiff “was more than 50 percent at fault and that [defendant] acted as a reasonably prudent person would have under the circumstances…” In a deposition, defendant driver testified that plaintiff “swerved his vehicle into my lane of traffic directly in front of the box truck that I was driving causing my truck to collide with the read end of [plaintiffs’] vehicle,” and that there were no signs as he approached the construction on the side of the road indicating a speed limit of less than 65 miles per hour.

November 23, 2017

Nurse Not Competent to Give Causation Testimony in Medical Malpractice Case

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

In a health care liability action, a plaintiff must show not only that the defendant breached the standard of care, but that such breach proximately caused the injury in question. Further, that causation testimony cannot come from a nurse.

In Estate of Sample v. Life Care Centers of America, Inc., No. E2017-00687-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2017), plaintiff filed an HCLA claim after decedent died while in the care of defendant nursing home. The complaint alleged that “per medical orders, Deceased was not to be left lying flat in bed,” and that “on the day of her death, Deceased had been lying flat in bed causing her to suffocate or aspirate and die.”

Defendant filed a motion for summary judgment supported in part by the affidavit of Bethany Dragnett, a registered nurse who was one of decedent’s care takers at the home, and plaintiff’s responses to requests for admission. In the discovery responses, plaintiff “admitted that Deceased’s death certificate expressly identifies [arteriosclerotic cardiovascular disease] as the sole cause of Evelyn Sample’s death,” that decedent suffered from this cardiovascular disease and from congestive heart failure prior to her death, that the “death certificate does not mention the word “aspiration,” and that no autopsy was requested after the death. In addition, the nurse stated in an affidavit that in her opinion “none of the nurses or certified nursing assistants at Life Care breached the standard of care with regard to the care provided to Deceased.” The nurse further stated that “she never found Deceased lying flat in bed with the feeding tube on” and that when she was called into the room on the day of death, decedent was “sitting in a wheelchair not breathing.”

November 22, 2017

Malicious Prosecution Claims – Statute of Limitations

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

A conviction in a criminal case, even if a post-conviction appeal is pending, does not satisfy the element of a “prior action [being] finally terminated in favor of plaintiff” for the purpose of a malicious prosecution claim.

In Moffitt v. McPeake, No. W2016-01706-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2017), plaintiff had been convicted of aggravated assault against the three defendants in a previous criminal case on July 31, 2014. On appeal, his conviction was affirmed in part and reversed in part, and plaintiff pointed out in arguments to the trial court that he had a “pending post-conviction appeal.”

The trial court granted defendants’ motion for summary judgment pursuant to the applicable one-year statute of limitations. The trial court ruled that the limitations period began to run when plaintiff was arrested on May 16, 2013, and that his July 27, 2015 suit was thus untimely. The Court of Appeals rejected this ground for dismissal but affirmed on other grounds.

November 21, 2017

Time Runs Under Statute of Limitations Only If There is a Person Who Can File Suit

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

Although the issue rarely arises, the statute of limitations on a claim does not begin to run until there is a person who can properly bring the action.

In In re Estate of Link, No. M2016-002002-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2017), John Clemmons had been appointed administrator of the Link Estate in 2003, and he served for ten years. Although the order appointing Mr. Clemmons required him to file an annual inventory and accounting, he filed one in 2004 and then never filed another. In 2013, Mr. Clemmons was removed as administrator and replaced by the plaintiff who filed this action. Seven months after his removal, Mr. Clemmons plead guilty to stealing over $770,000 from the Link Estate.

Plaintiff brought this suit in his capacity as administrator against the Metropolitan Government of Nashville and Davidson County. Plaintiff alleged that defendant’s “employees in the Probate Court Clerk’s office had been a cause of the Estate’s damages through their negligent failure to monitor Mr. Clemmons.” Plaintiff pointed to Tenn. Code Ann. § 30-2-602, which requires the Court Clerk “to cite the personal administrator for failing to carry out his or her administrative duties.” Defendant moved for summary judgment, asserting that the claim was barred by the one-year statute of limitations and by the fact that plaintiff had already gotten a default judgment against Mr. Clemmons for the full amount of the damages. The trial court granted summary judgment based on the statute of limitations, but the Court of Appeals reversed.