Day on Torts

September 21, 2015

Act Quickly To Solve Problems with Service of Process

A recent Court of Appeals case reminds plaintiffs’ attorneys of the importance of diligently reading any answer filed and working quickly to remedy problems related to the proper party being named and/or service of process. In Urban v. Nichols, No. E2014-00907-COA-R3-CV (Tenn. Ct. App. Sept. 4, 2015), plaintiff filed a negligence claim after injuring her foot and heel while using a waterslide at Willow Brook Lodge. In her complaint, filed on July 11, 2012 (which was exactly one year to the date from her injury), plaintiff named Robin Nichols and Willow Brook Lodge as defendants. It was undisputed that the complaint was only served, however, by personal service to Robin Nichols’s son.

The named defendants filed an answer on August 27, 2012. Therein, they asserted that the Lodge was actually owned by Accommodations by Willow Brook Lodge, LLC and that Ms. Nichols was not an owner. Further, they plead “insufficiency of process and insufficiency of service of process.”

Plaintiff’s counsel sent a letter to counsel for defendants on November 7, 2012, requesting permission to amend the complaint. Defendants responded by letter one week later denying the request. Plaintiff’s counsel took no further action in the case until February 7, 2013, again sending a letter requesting to amend the complaint to defendants. Defendants’ attorney sent another denial on July 22, 2013. Finally, on August 21, 2013, plaintiffs filed a motion to amend with the trial court. In response, defendants filed a motion for summary judgment on the grounds that the “failure to correctly serve process on either Ms. Nichols or the Lodge required the dismissal of the action.” The trial court granted summary judgment to defendants, and the Court of Appeals affirmed.

September 16, 2015

Intentional Interference With Business Relations Requires Proof of Damages

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

In Springfield Investments, LLC v. Global Investments, LLC, No. E2014-01703-COA-R3-CV (Tenn. Ct. App. Aug. 27, 2015), plaintiffs sued defendants for intentional interference with business relationships related to plaintiffs’ opening of a Wendy’s restaurant in Cleveland, Tennessee. Defendants already owned and operated a Wendy’s in Cleveland, and in 1998 one of plaintiff’s brothers signed a non-compete agreement with defendants agreeing not to open a Wendy’s in Cleveland. A later “Clarification and Confirmation” document signed by the brother included that no entities he was associated with would open a Wendy’s, including Springfield Investments, LLC (a plaintiff in this case). The individual plaintiff in this case was never a party to the non-compete, and by the time that the pertinent events took place the brother signing the non-compete was not the owner of Springfield Investments.

In January 2010, plaintiffs began the process of seeking approval from Wendy’s to build and open a restaurant in Cleveland. Because it would be 4.8 miles from defendants’ existing Wendy’s, the restaurant chain’s procedures required defendants to be notified and have the opportunity to oppose the new franchise. Over the course of the next several months, defendants followed the standard procedures allowed by Wendy’s to oppose the new restaurant. At one point Wendy’s, using its own discretion, allowed for additional time for defendants to submit certain requests, but otherwise the normal course of action provided for in Wendy’s franchise guidelines was followed.

September 11, 2015

Products Liability Case Given New Life By Sixth Circuit

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

In Bradley v. Ameristep, Inc., No. 1:12-cv-01196 (6th Cir. Aug. 24, 2015), plaintiff appealed a district court dismissal of his product liability claims regarding ratchet straps he had purchased and used to secure a hunting treestand. Plaintiff bought the straps in 2007 or 2008, used the straps to secure his treestand for less than two months in 2008, stored the straps inside for almost three years, then used the straps to secure his treestand again in May or June 2011. He did not use the treestand until September 2011, at which time he visually inspected the straps. After plaintiff claimed into the stand, the straps broke and caused plaintiff to fall.

Plaintiff retained two expert witnesses to support his claims, but the district court granted defendant’s motion to exclude both of these experts. Because the expert testimony was excluded, the district court “concluded that there was no evidence to support the plaintiffs’ claims for strict product liability or negligent design and manufacture and granted the defendants’ motion for summary judgment on those claims.” The district court also granted summary judgment as to the failure to warn claim, determining that plaintiff was aware of the dangers of leaving the straps exposed to the elements, that plaintiff would not have heeded a warning to use a safety harness, and that plaintiff failed to proffer an adequate alternative warning. Accordingly, all of plaintiffs’ claims were dismissed.

On appeal, the Court reversed the dismissal, and in doing so provided an informative summary of Tennessee product liability law. First, the Court addressed the exclusion of one of plaintiffs’ experts, noting that Fed. R. Evid. 702 “impose[s] a threshold requirement of qualification by ‘knowledge, skill, experience, training or education,’ coupled with a two-part test for relevance…and reliability.” While the expert’s “qualifications contain[ed] numerous general attestations of expertise in materials analysis[,]” the district court focused on specific references to the expert’s metallurgical expertise to determine that he did not possess the necessary qualifications for this case. The Court of Appeals held that this was an error, pointing out that the proposed expert had “over thirty-five years of experience analyzing the forces and conditions that lead to product failures, “ that he had “served as an instructor in materials analysis and microscopic analysis” for multiple groups and organizations, and that he had conducted analysis on all types of polymer materials. Based on these qualifications, the expert testimony should have been allowed.

September 10, 2015

Tennessee Corporation Denied Dismissal Based on Forum Non Conveniens

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

The Tennessee Court of Appeals recently affirmed a refusal to dismiss a products liability case under the doctrine of forum non conveniens in Pantuso v. Wright Medical Tech. Inc., No. W2014-02135-COA-R9-CV (Tenn. Ct. App. Aug. 31, 2015). Plaintiff in this case was a resident of Utah and had double hip replacement surgery in Utah. The replacement devices used in plaintiff were designed, manufactured and marketed by Wright Medical Technology, a Delaware corporation with its principal place of business in Memphis, Tennessee, who was registered to do business in both Tennessee and Utah. Wright Medical Technology was a wholly owned subsidiary of Wright Medical Group, a Delaware corporation with its principal place of business in Memphis, Tennessee, registered to do business in Tennessee. Both corporations were named as defendants.

According to the complaint, the device implanted into plaintiff was marketed as being suitable for patients with active lifestyles. Six years after the surgery, though, one of the replacement devices failed “suddenly and catastrophically” and had to be replaced. The other device made by Defendant remained in plaintiff, but he alleged that he had to modify his lifestyle based on the knowledge that it would not stand up to the active lifestyle it was marketed towards.

Plaintiff filed a product liability suit in Shelby County Circuit Court, and defendants filed a motion to dismiss pursuant to the doctrine of forum non conveniens. According to defendants, Utah was the proper forum because plaintiff had received all of his medical treatment there. Defendants argued that they would “be prejudiced by proceeding in Tennessee because it would have ‘no access to any third-party witness or any third-party documents because they were all in Utah[.]’” In addition, defendants asserted that Utah was more appropriate because Utah law applied in this case and because the Shelby County courts were already overburdened. In response, plaintiff asserted that Shelby County was a proper forum, as the “crux of his complaint concerned not the medical treatment he received [in Utah], but the decisions made by Wright Medical concerning the manufacture, design, and marketing of the Profemur hip device, all of which occurred at Wright Medical’s Memphis office.” Plaintiff urged that the witnesses relevant to the core issues of the case were located in Tennessee, that the medical providers located in Utah could submit testimony by deposition, and that one of the two defendants was not subject to personal jurisdiction in Utah.

August 27, 2015

Summary Judgment Vacated Because Depositions Were Improperly Limited

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

In Evans v. Piedmont Natural Gas Co., Inc., No. M2014-01099-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2015), plaintiff asserted claims for property damage caused when sewage flowed into his home in 2013 allegedly due to a damaged sewer line. The undisputed facts in this case established that a gas line was installed on the relevant property in 1984 by Nashville Gas, that said gas line had not been repaired or serviced since 1984, and that no other “dig permits” had been issued for the property between 1980 and the 2013 sewage flooding. Plaintiff’s theory was that the sewage line was damaged during the gas line installation and that the gas company covered up the damage. The company who did the work in 1984 was Nashville Gas, which later merged into Piedmont Natural Gas Company, the named defendant.

Plaintiff in this case obtained a judgment in general sessions court, but on appeal to circuit court summary judgment was granted to defendant. As grounds for summary judgment, the trial court found that there was no evidence that the gas company “damaged the sewer line in question, repaired the sewer line in question or intentionally concealed any damage or repair[,]” that there was no proof that the alleged damage occurred during the gas line installation in 1984, and that there was no proof that the gas company “was ever aware of any damage to the sewer line at any time before 2013[.]” Further, the trial court found that the claim was barred by the four year statute of repose found in Tenn. Code Ann. § 28-3-202, which applies to improvements to real property. Finally, the trial court overturned the award of punitive damages to plaintiff, stating there was “no factual or legal basis for punitive damages here.”

August 13, 2015

Right of Non-Primary Residential Parent to Bring Claim for Child

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

The Court of Appeals recently addressed the issue of which claims a parent who is not the primary residential parent may bring when his or her child has been injured. In Neale B/N/F Russell v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV (Tenn. Ct. App. July 28, 2015), a child was injured at an activity at defendant’s facility. The mother and father initially filed a joint action as next friends of the child, but they voluntarily dismissed that case and father subsequently filed alone. Father, as next friend of child, sought damages for permanent impairment, paint and suffering, medical expenses, and loss of earning capacity. Pursuant to the family’s parenting plan, father was not the primary residential parent.

Defendants filed a motion for summary judgment asserting that father lacked standing to bring the claims. The trial court agreed and granted summary judgment, which the Court of Appeals reversed in part and affirmed in part.

Tenn. Code Ann. § 20-1-105(b) states:

In case the father and mother of the minor child are living apart and one parent has exclusive legal custody of the child, the parent with legal custody has the sole right to maintain an action for the expenses and the actual loss of service resulting from an injury to the child, except that the noncustodial parent in such case shall have a right to maintain or join an action brought under this section, for the expenses resulting from an injury to the minor child to the extent the noncustodial parent has paid those expenses.

August 12, 2015

Non-Suit Allowed to Cure Pre-Suit Notice Deficiencies

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

In Phillips v. Casey, No. E2014-01563-COA-R9-CV (Tenn. Ct. App. July 21, 2015) plaintiff’s late husband was a patient of defendant doctor. Sometime in 2011 or 2012, defendant diagnosed husband with angioedema. Defendant also diagnosed husband with hypertension and prescribed a medication to treat that condition. On April 2, 2012, husband had a bilateral tonsillectomy performed by another doctor, and husband died that evening. Plaintiff received a copy of the autopsy report on July 3, 2012, which listed the primary cause of death as angioedema. On April 2, 2013, plaintiff filed suit against defendant doctor and his employer alleging that doctor was negligent by prescribing medicine to husband known to aggravate angioedema and by failing to inform the doctor performing the tonsillectomy of husband’s condition.

Before filing her first health care liability claim, plaintiff did not send the statutorily required pre-suit notices to the two named defendants. Accordingly, defendants filed a motion to dismiss. While that motion was pending, plaintiff voluntarily dismissed her claims without prejudice. Plaintiff then sent proper pre-suit notice that met all the statutory requirements and subsequently re-filed her suit. Defendants moved to dismiss again, asserting that plaintiff’s initial complaint was untimely and that she could thus not rely on the saving statute and that plaintiff could not re-file her suit in order to comply with the pre-suit notice requirements. The trial court denied the motion to dismiss but granted an interlocutory appeal to consider the following issue:

Whether Tennessee Code Annotated section 29-26-121 permits a plaintiff to take a voluntary nonsuit pursuant to Tennessee Rules of Civil Procedure 41.01 with a motion to dismiss pending, resend notice of intent to the providers, and then refile a new action within the original statute of limitations or in accordance with the savings statute.

August 11, 2015

Evidence of Injury Not Enough to Prove Fall-Down Case

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

In Newcomb v. State, No. M2014-00804-COA-R3-CV (Tenn. Ct. App. June 26, 2015), the Court of Appeals affirmed the Tennessee Claims Commission’s dismissal of a plaintiff’s premises liability action. Plaintiff fell down a flight of stairs in front of a state owned building. It was raining on the day of the injury, and plaintiff asserted that she reached out for the handrail but that it was out of reach. She argued that the handrail started one stair down from the top and that the steps had no nonskid material, both of which made the stairway unsafe.

At the Claims Commission hearing, the State called two witnesses who worked in facility administration at the building to testify. Both witnesses stated that the steps were the main entrance to the building which was used frequently, that any problems with the steps would have been “quickly noticed and corrected,” and that there had been no prior incidents on the steps. Based on this evidence, the Claims Commissioner dismissed plaintiff’s case, concluding that she “failed to prove that the steps and handrail were a dangerous condition or that, assuming they were dangerous, the State knew or should have known that they constituted a dangerous condition.” The Court of Appeals affirmed.

July 23, 2015

Insufficient GTLA Complaint Results in Dismissal

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

A recent Court of Appeals case is a good reminder to pay close attention when drafting your complaint in a Governmental Tort Liability Act (GTLA) case. In Parrott v. Lawrence Co. Animal Welfare League, Inc., No. M2014-01241-COA-R3-CV (Tenn. Ct. App. June 25, 2015), plaintiff filed suit against two defendants regarding the allegedly negligent removal of her dogs from her property. After the dogs were removed, the County had some involvement and the dogs were housed at a Lawrence County jail, and one of the defendants therefore filed a third-party complaint against Lawrence County. Plaintiff subsequently amended her complaint to assert claims against the county as well.

The trial court granted the county’s motion to dismiss plaintiff’s claims, finding that the facts set out in her complaint were insufficient to state a claim under the GTLA, and the Court of Appeals affirmed. As to her negligence claim against the city, the complaint contained the following language:

As a direct and proximate result of the negligent, reckless and intentional acts or omissions of the Defendants, the Plaintiff has sustained damages and losses.

July 20, 2015

Judgment For Plaintiff in Negligence Case Reversed on Appeal

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

In a somewhat rare move, the Tennessee Court of Appeals recently overturned a trial court’s ruling for plaintiff in a negligence case. In Tenn. Farmers Mut. Ins. Co. a/s/o Couch v. Jackson Madison School System Bd. of Educ., No. W2014-02218-COA-R3-CV (Tenn. Ct. App. June 15, 2015), plaintiff was driving a crop sprayer on a narrow, rural, unlined road. Plaintiff saw a school bus turn onto the road traveling towards the crop sprayer, and both parties agreed that there was not room for both vehicles on the road. According to the trial testimony, the sprayer would have had time to stop but chose not to do so. Plaintiff testified that had he stopped, the accident probably would have been avoided. Instead, plaintiff moved the right tires of the sprayer off the road and, after clearing the bus, the shoulder gave way and the sprayer fell into a ditch, causing fairly significant property damage. Plaintiff sued the bus driver for negligence, alleging that there was more unpaved shoulder on the bus’s side of the road and that the bus driver did not take reasonable care to move his vehicle as far right as possible to avoid the accident.

The trial court ruled that defendant bus driver “was negligent in failing to take reasonable action to avoid an accident under the circumstances that existed at the time of the accident and that the [bus driver] could have foreseen an accident happening through the use of reasonable care.” The Court of Appeals, however, overturned this ruling.