Day on Torts

September 21, 2016

Supervision of Mental Patient Issue That Requires Expert Testimony

In Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV (Tenn. Ct. App. July 27, 2016), the Court of Appeals affirmed the dismissal with prejudice of a medical malpractice (now known as a “health care liability” or “HCLA”) claim because the plaintiff failed to file a certificate of good faith, and expert testimony was required in the case.

Plaintiff sued various companies that provided nursing and medical staff to a psychiatric facility. According to the complaint, plaintiff’s husband, who was a patient and resident at the facility, sustained life-ending injuries when he was attacked by another resident. Plaintiff alleged that defendants were negligence because her husband, who died, was supposed to have one-to-one care and supposed to have a wheelchair, yet had neither. She also alleged that the attacker was supposed to have one-to-one care and was known to be violent, and that defendants failed to take measures to protect the patients from the attacker.

When plaintiff filed her complaint, she did not give pre-suit notice or attach a certificate of good faith to her complaint, as required by the HCLA. At the time of this appeal, it was uncontested that this claim fell under the HCLA.

September 19, 2016

Evidence of Intoxication is Not Necessarily Sufficient to Establish Liability

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

In Denton v. Taylor, No. E2015-01726-COA-R3-CV (Tenn. Ct. App. July 25, 2016), the Court of Appeals affirmed summary judgment in a car accident case because “plaintiff provided no evidence establishing that the decedent’s negligence caused the accident.”

Plaintiff and the decedent, whose wife was the defendant here, were involved in a car accident in March 2013. Plaintiff could not remember anything about the accident, and the other driver was pronounced dead at the scene. In March 2014, plaintiff filed this negligence action.

Defendant moved for summary judgment fifteen months after the complaint was filed, submitting an affidavit from a sheriff’s deputy who stated that there were no witnesses to the accident and that a review of photographs and other evidence “was not able to determine the point of impact.” Defendant argued that plaintiff could not show that decedent’s alleged negligence had caused the accident. Plaintiff responded, relying on the post-mortem toxicology results that showed that decedent had hydrocodone and hydromorphone in his system.

September 15, 2016

Property Owner Can Owe a Duty to Volunteers Roofers

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

In Reynolds v. Rich, No. E2015-01245-COA-R3-CV (Tenn. Ct. App. July 22, 2016), the Court of Appeals overturned summary judgment in a negligence case, finding that defendants did owe plaintiff a duty and that there were genuine issues of material fact regarding whether defendants breached that duty.

Defendant father gifted a piece of land to defendant daughter, and the father had taken charge of building a house on the land for the daughter. Defendants tried to secure as much labor as possible through family, friends and volunteers. Defendant father worked with plaintiff at the same company and had known plaintiff “for a number of years.” Father knew that plaintiff had previously re-roofed his own house with metal roofing, so he “asked plaintiff if he would like to help in view of his prior experience in installing such roofing on his own residence, and he agreed.” Plaintiff was not paid for this work, and while he and others were installing the roofing, plaintiff fell and suffered extremely serious injuries. Plaintiff then brought this negligence action.

Defendant father submitted an affidavit that stated that he asked all the volunteers, including plaintiff, whether they had any reservations about the job, and that none voiced any concerns. He averred that he offered plaintiff gloves, but that plaintiff refused, and that he told plaintiff he should stand on the felt material instead of the metal when affixing the metal roofing, but that plaintiff said his shoes were providing good traction. According to the father, “plaintiff did not request any assistance, tools, equipment, harness, rope, scaffold, support, any type of restraint or anything else.” Defendant stated that he did not know what made plaintiff fall, and plaintiff likewise stated that he could not identify the cause of his fall.

September 14, 2016

Another Water-on-Floor Slip and Fall Falls

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

The Court of Appeals recently affirmed summary judgment in a premises liability case where plaintiff could not prove defendant’s actual or constructive knowledge of the allegedly dangerous condition.

In Landrum v. Methodist Medical Center, No. E2015-01733-COA-R3-CV (Tenn. Ct. App. July 25, 2016), plaintiff was visiting her mother, who was a patient at defendant hospital, when she slipped and fell in a puddle of water on the floor. The puddle was near the 5^th floor nurses’ station and was fairly large, estimated to be two to three square feet in size. Plaintiff fell when returning to her mother’s room on the 5^th floor, having left the room 15 minutes earlier by the same route. Plaintiff testified that when leaving the room, she did not notice the puddle, and that she did not see it until she had already fallen. Plaintiff “did not know what caused the puddle or how long the puddle had existed.”

Defendant hospital submitted depositions from two employees, both of whom were at the nearby nurses’ station when plaintiff fell. One stated that he did not see the puddle until plaintiff fell and that he “had no knowledge regarding what caused the puddle or how long the puddle had existed.” The other testified that the puddle was “large,” and that she did not see the puddle until after the fall and had no knowledge of what caused it or how long it had been there.

September 8, 2016

Death of Lawyer’s Infant Son is “Extraordinary Cause” under HCLA

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

The Court of Appeals recently examined whether the sickness and death of a lawyer’s child constituted extraordinary cause under the HCLA, finding that it did in fact excuse noncompliance with the statute.

In Kirby v. Sumner Regional Medical Center, No. M2015-01181-COA-R3-CV (Tenn. Ct. App. July 12, 2016), plaintiff was treated at the defendant hospital in June 2013, and plaintiff alleged that the treatment she received fell short of the required standard of care. Well before the one-year statute of limitations, on January 31, 2014, plaintiff’s counsel sent a fax to defendant regarding the claim. No other correspondence was sent, but on the day the one-year statute of limitations was to expire, plaintiff filed suit. Plaintiff attached a certificate of good faith to her complaint, but she admittedly had not served the statutorily required pre-suit notice with attached HIPAA release.

Defendant moved to dismiss the case based on the lack of pre-suit notice. In response, plaintiff’s counsel pointed out that his son was born on March 6, 2014, and subsequently died on June 20, 2014, just days before the statute of limitations was set to expire on this claim. Counsel stated that “[f]or the few months my son lived, there were frequent periodic indications that each day could be his last, including a few serious hospitalizations.” In his memorandum opposing dismissal, plaintiff’s counsel asserted:

September 6, 2016

Sudden Emergency Jury Instruction Allowed Without Comparative Fault Defense

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

In Boshears v. Brooks, No. E2015-01915-COA-R3-CV (Tenn. Ct. App. July 6, 2016), plaintiff asserted on appeal that the trial judge had given incorrect jury instructions in the underlying jury trial. The Court of Appeals, however, affirmed.

Plaintiff was riding in a car with his girlfriend when they were hit by a vehicle driven by defendant. Defendant was 78-years-old and blind in one eye, and he had been to his doctor that day to report blurry vision. His doctor had referred him to the ER, and the accident occurred after defendant had been released from the ER. Defendant’s theory at trial was that he had a stroke while driving, “which resulted in an unforeseeable loss of consciousness leading to the accident.” Defendant presented expert testimony supporting his theory of the case. Plaintiff, on the other hand, attempted to show that defendant “had suffered vision problems for years, and that, essentially, he had no business driving on the day of the accident.” Plaintiff “attempted to cast doubt on whether [defendant] had been unconscious during the accident,” and witness statements regarding defendant’s condition after the wreck varied.

While charging the jury, the trial court included instructions on both sudden emergency and loss of consciousness. The jury instructions included the following:

…A person faced with a sudden emergency is required to act as a reasonably careful person placed in a similar position. A sudden emergency will not excuse the actions of a person whose own negligence created the emergency.

If you find there was a sudden emergency that was not caused by any fault of the person whose actions you are judging, you must consider this factor in determining and comparing fault.

A sudden loss of consciousness or physical incapacity experienced while driving which is not reasonably foreseeable is a defense to a negligent action. …To constitute a defense, the defendant must establish that the sudden loss of consciousness or physical capacity was not reasonably foreseeable to a prudent person…

After deliberation, the jury found defendant not at fault for the accident.

August 30, 2016

Settlement of Personal Injury Cases for Minors in Tennessee

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

Tennessee law requires that personal injury cases for minors be approved by the court.

Tenn. Code Ann. § 29-34-105 provides:

(a) Notwithstanding any other law or rule to the contrary, a judge or chancellor may sign an order approving any tort claim settlement involving a minor that is less than ten thousand dollars ($10,000) by relying on affidavits from the legal guardian. The court shall conduct a chambers hearing at which the minor and legal guardian are present to approve any tort claim settlement involving a minor that is ten thousand dollars ($10,000) or more.

August 29, 2016

Sexual Assault in School: Duty Turns on Material Fact Dispute

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

In Richardson v. Trenton Special School Dist., No. W2015-01608-COA-R3-CV (Tenn. Ct. App. June 27, 2016), the Court of Appeals reversed summary judgment in a negligence case due to fact issues surrounding the issue of foreseeability.

The underlying facts of this case were quite disturbing—a six-year old kindergarten student was allegedly sexually assaulted five times by another six-year-old student in an elementary school bathroom stall. It was undisputed that before this incident, another student had been sexually assaulted by a peer at this school, though that incident involved first or second graders in the after-school care program. During the after-school incident the two children were in the bathroom alone, but in the incident underlying this case other students were in the bathroom and the teacher was in the hallway between two bathrooms. It was further undisputed that after the after-care assault, “the elementary school changed its bathroom policy in the after-school care program in direct response to the prior assault such that teachers accompany students into the bathrooms. However, the school did not change its policy concerning the main school day.” At the time of the kindergarten assault, the school had a policy stating: “CHILDREN MUST NEVER BE OUT OF SIGHT!!! Monitor your students in the halls and bathrooms.”

The victim’s parents filed suit, alleging that the school “was negligent because its employee had violated the school’s policy and that this violation resulted in a failure to protect [the child].” The defendant school moved for summary judgment, with the trial court granted, finding that the assault was not reasonably foreseeable. The Court of Appeals, however, reversed.

August 26, 2016

Snow and Ice Fall-Down Cases in Tennessee

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

In Williams v. City of Jamestown, No. M2015-00322-COA-R3-CV (Tenn. Ct. App. June 23, 2016), the trial court dismissed a GTLA premises liability claim after a bench trial, and the Court of Appeals affirmed.

Plaintiff was visiting the county courthouse and adjacent jail when he slipped and fell on ice in the parking area. Snow had begun falling the night before and accumulated approximately six inches by the time plaintiff went out the next day. The city had scraped and salted the roads and parking areas the night the snow began, and had been working since 5:30 a.m. on the day the fall occurred. When plaintiff drove into the courthouse parking lot, he noticed that the areas where the sun was hitting the ground were relatively free of snow, but he testified that he could only find a parking space in the shadowed area. Plaintiff entered and left the courthouse without incident, then walked over to the adjacent jail. On his way to the jail he walked “between a rock wall that bounded the courthouse grounds and the curb stops in the parking area,” which plaintiff stated was covered in snow and slush, but when leaving he “decided to walk out in the parking area” rather than following the same path. While in the parking area, plaintiff “turned his gaze from his feet to” a woman he met, and at that point slipped and fell on the ice.

During the bench trial, plaintiff admitted that there were six inches of snow on the ground that day and that “by venturing out, he was taking a serious risk.” He also testified that he did not have to go out that day. Further, evidence showed that the parking area had been scraped early that morning; the parking area had been further worked on at 10:00 am (approximately 3 hours before the fall); and that due to the 24 degree temperature, “it would have been difficult to keep salt treated areas from refreezing.”

The trial court dismissed plaintiff’s claim, finding that the city did not breach its duty of care to plaintiff, and that even if there were a breach, plaintiff was more than fifty percent at fault. In affirming dismissal, the Court of Appeals analyzed only the issue of whether the city breached its duty of care.

August 24, 2016

Changing Times for Personal Injury Lawyers

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

Earlier today I received this email from a law firm:

I was looking at your website and noticed that you handle product liability cases. We (XXXXXX) are a co-counsel/case acquisition firm. There may be some synergy between our two firms worth exploring. I have some time Thursday or Friday for a brief chat. Let me know your thoughts.

(Emphasis added.)