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Tuesday, May 23, 2017

Twenty-five Years of Modified Comparative Fault in Tennessee

On May 4, 1992, the Tennessee Supreme Court adopted a system of modified comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).  The petition for rehearing was denied June 1, 1992. Accordingly, we are in the midst of the twenty-fifth anniversary of McIntyre.

The significance of that case cannot be understated.  Its affect upon Tennessee tort law remains strong even today.  It is worth rereading on occasion. As such, here is a link to that case:



Friday, May 12, 2017

Defense Verdict Upheld on Appeal in an Auto Tort Case

Yesterday the Tennessee Court of Appeals issued its opinion in Higgins v. Green, No. M2016-01369-COA-R3-CV (Tenn. Ct. App. May 11, 2017).  Here is the syllabus from the slip opinion:
This appeal arises from a two-car accident. In her complaint, Plaintiff alleged that the collision occurred because Defendant violated several statutory rules of the road by failing to yield the right of way and making a turn across traffic without confirming it was safe to do so. Defendant denied any negligence and claimed that Plaintiff was more than 50% at fault. Following a trial, the jury found that Plaintiff was 75% at fault; as a result, judgment was entered for Defendant. On appeal Plaintiff contends she is entitled to a new trial for two reasons. She contends the trial court abused its discretion by limiting the testimony of the investigating police officer to what the parties told him at the scene and to matters that are reflected in his accident report. She also contends she is entitled to a new trial due to jury misconduct. Finding no abuse of discretion, we affirm.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/higgs.kim_.opn_.pdf

New Health Care Liability Action Opinion: Dismissal of Pro Se Plaintiff's Claims by Trial Court Upheld on Appeal in Part

The Tennessee Court of Appeals issued its opinion in Lacy v. Saint Thomas Hospital West, No. M2016-01272-COA-R3-CV (Tenn. Ct. App. May 4, 2017).  The syllabus from the opinion states as follows:
Appellant brought a pro se action against several medical providers for injuries sustained when she was allegedly beaten during medical procedures. The trial court dismissed the complaint, under Tennessee Rule of Civil Procedure 12.02, for failure to comply with the procedural requirements of the Tennessee Health Care Liability Act (THCLA). On appeal, Appellant contends that she was not obligated to comply with the THCLA’s procedural requirements because her claim was based in tort and did not assert a health care liability claim. After reviewing the complaint, we conclude that it asserts several distinct claims, some of which are health care liability claims and some are not. We, therefore, affirm the trial court’s dismissal of the health care liability claims, but reverse the trial court’s grant of Appellees’ motions to dismiss the non-health care liability claims. 
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/lacy.deborahv.saintthomas.opn_.pdf

New Health Care Liability Action Opinion: The Common-knowledge Exception Dispenses with the Need to File a Certificate of Good Faith

The Tennessee Court of Appeals just issued its opinion in Zink v. Rural/Metro of Tenn., L.P., No. E2016-01581-COA-R3-CV (Tenn. Ct. App. May 2, 2017).  The syllabus from the slip opinion states as follows:
In this action regarding injury allegedly caused by an emergency medical technician in the course of rendering medical aid, the trial court determined that the plaintiff’s claims were subject to the Tennessee Health Care Liability Act (“THCLA”) and dismissed the claims with prejudice based on the plaintiff’s failure to file a certificate of good faith pursuant to Tennessee Code Annotated § 29-26-122. The plaintiff has appealed, conceding that his claims sounded in health care liability but asserting that they should not have been dismissed with prejudice because a certificate of good faith was not required. Following our review of the complaint, we conclude that the plaintiff’s claims were subject to the common knowledge exception such that a certificate of good faith was not required pursuant to Tennessee Code Annotated § 29-26-122. We therefore reverse the trial court’s dismissal with prejudice and remand this matter to the trial court for entry of an order dismissing the plaintiff’s claims without prejudice based upon his failure to provide pre-suit notice.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/zink_opinion.pdf

NOTE: This opinion makes clear that certificates of good faith are only required to be filed with a complaint in a health care liability action when the common-knowledge exception does not apply, which an be tricky to determine.


Thursday, May 11, 2017

How a Defendant's Bankruptcy Affects the Timeliness of a Tort Action Filed Against That Defendant

The Tennessee Court of Appeals recently issued an excellent opinion that sets out how a defendant's bankruptcy affect the timeliness of a tort action filed against the defendant in McCollough v. Vaughn
No. M2016-01458-COA-R3-CV (Tenn. Ct. App. Apr. 27, 2017).  Here is the syllabus from the slip opinion:
This action arises out of a two-car accident. Prior to the commencement of this action, the driver of the vehicle who is the defendant in this action filed a petition in bankruptcy court. Shortly thereafter, and being unaware of the bankruptcy proceeding, Plaintiffs commenced this action naming the driver of the other vehicle as the only named defendant. Summons was issued for the defendant driver as well as Plaintiffs’ uninsured motorist insurance carrier. Summons was served on the carrier; however, summons for Defendant was returned unserved, and more than a year passed before Plaintiffs requested issuance of an alias summons. Upon motions of the defendant and the uninsured motorist carrier, the trial court dismissed all claims as time barred upon the finding that Plaintiffs failed to comply with Tenn. R. Civ. P. 3 by obtaining the issuance of a new summons for service of process on the defendant within one year of the issuance of the previous summons that was not served. Plaintiffs appeal contending their claims are not time barred because the defendant filed her bankruptcy petition prior to the commencement of this action and Tenn. Code Ann. § 28-1-109 expressly states, “When the commencement of an action is stayed by injunction, the time of the continuance of the injunction is not to be counted.” We agree. The bankruptcy court’s automatic stay not only enjoined the commencement of this action but the issuance of process, and Tenn. Code Ann. § 28-1-109 expressly states that the time of the continuance of an injunction is not to be counted in calculating the statute of limitations. The bankruptcy injunction remained in effect for 202 days; therefore, that period is not to be counted. With the addition of 202 days to the period within which Plaintiffs could obtain the issuance of an alias summons under Tenn. R. Civ. P. 3, the issuance of the alias summons was timely. As a consequence, the trial court’s order dismissing this case is vacated, and this matter is remanded with instructions to reinstate the complaint as to the defendant driver and the uninsured motorist carrier for further proceedings consistent with this opinion. 
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/mccullough.robert.opn_.pdf

NOTE: This is a must-read opinion for any Tennessee practitioner who handles tort cases.

Trial Court's Grant of Summary Judgment to Defense Overturned on Appeal

The Tennessee Court of Appeals recently released its opinion in Helyukh v. Buddy Head Livestock & Trucking, Inc., No. W2015-01354-COA-R3-CV (Tenn. Ct. App. Apr. 24, 2017).  Here is the syllabus from the slip opinion:
The plaintiffs appeal the grant of summary judgment in a negligence case. One of the plaintiffs, a truck driver, suffered injuries stemming from a collision with another tractor- trailer owned by the defendant and operated by its employee. The plaintiffs claimed that the employee's negligence proximately caused the accident. The owner of the overturned tractor-trailer moved for summary judgment on the ground that the plaintiffs could not establish that its employee's conduct fell below the applicable standard of care. The trial court agreed and granted summary judgment. On appeal, the plaintiffs argue, among other things, that owner of the overturned tractor-trailed failed to meet its burden of production in moving for summary judgment. Because we conclude that the movant failed to demonstrate the absence of material facts that would create genuine issues for trial, we reverse the grant of summary judgment.
Here is a link to the slip opinion:


New Tennessee Supreme Court Opinion on Res Ipsa Loquitur

The Tennessee Supreme Court recently issued its opinion in Jenkins v. Big City Remodeling, No. E2014-01612-SC-R11-CV (Tenn. Apr. 5, 2017).  The syllabus from the slip opinion reads as follows:
At issue in this appeal is the liability of a general contractor and two flooring subcontractors for damages sustained by the plaintiffs when a fire destroyed their partially completed house. The plaintiffs alleged that the negligence of the general contractor and the subcontractors caused the fire and that the general contractor had breached the construction contract. The trial court granted summary judgment to the general contractor, holding that the plaintiffs could not rely on res ipsa loquitur to establish an inference of negligence; granted summary judgment to the subcontractors based on the plaintiffs' failure to prove that any negligence of the subcontractors caused the fire; and granted summary judgment to the general contractor based on evidence that the plaintiffs were the first party to materially breach the construction contract. The Court of Appeals, in a divided opinion, affirmed summary judgment to the general contractor based on the inapplicability of res ipsa loquitur; and reversed summary judgment to the subcontractors on the negligence claim and to the general contractor on the breach of contract claim, finding genuine issues of disputed material fact. We hold that the plaintiffs cannot rely on res ipsa loquitur because they did not produce sufficient evidence that the general contractor was in exclusive control of the specific cause or all reasonably probable causes of the fire. We further hold that the plaintiffs did not produce sufficient evidence to establish that any negligence of the subcontractors was the cause in fact of the fire. For these reasons, the general contractor and flooring subcontractors are entitled to summary judgment on plaintiffs' claims based on negligence and breach of contract. We affirm the trial court's grant of summary judgment.
Here is a link to the slip opinion: