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Wednesday, January 31, 2018

New Tennessee Court of Appeals' Opinion on Tennessee Code Annotated section 20-1-119

The Tennessee Court of Appeals just issued its opinion in Scales v. H.G. Hill Realty Co., LLC, No. M2017-00906-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2018).  The syllabus from the slip opinion is as follows:
A customer slipped and fell at a grocery store and sued four different entities that owned and/or operated the store. When two of the defendants filed a motion to compel the plaintiff to respond to discovery responses, the plaintiff voluntarily dismissed these defendants from the action. Then, in response to an answer to an amended complaint in which another defendant asserted the comparative fault of the dismissed defendants, the plaintiff filed a second amended complaint adding the dismissed defendants back in as named defendants pursuant to Tenn. Code Ann. § 20-1-119. The newly added defendants filed a motion to dismiss, which the trial court granted. The plaintiff appealed, and we reverse the trial court’s judgment. We hold that the statute permitted the plaintiff to add the formerly dismissed defendants back into the lawsuit.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/scales.mary_.opn_.pdf

NOTE: This is my case.  I represent the plaintiff.  In my totally biased opinion, I think that the Court of Appeals got this one right.  Also, this is a must-read opinion as to section 20-1-119 and how it is to be construed and applied.


Thursday, January 25, 2018

New Opinion: How Long Does a Plaintiff Have to File Suit When the Tortfeasor Dies After the Wrongful Conduct? This Opinion Answers That Question.

The Tennessee Court of Appeals has issued its opinion in Putnam v. Leach, No. W2017-00728-COA-R3-CV (Tenn. Ct. App. Jan. 23, 2018).  The syllabus from the slip opinion is as follows:
This is a personal injury case involving a motor vehicle accident. The alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs were unaware of the decedent’s death and commenced this suit naming him as a defendant. Some months later, after learning of the decedent’s death, the plaintiffs sought the appointment of an administrator ad litem in the Probate Court and amended their complaint naming the administrator ad litem as a party as required by the survival statute. The defendant filed a motion to dismiss arguing that the plaintiffs’ complaint was not properly filed until after the expiration of the applicable statute of limitations. The trial court agreed and granted the defendant’s motion to dismiss. The plaintiffs timely appealed. Having concluded that the plaintiffs did not properly commence their lawsuit within the time afforded by the applicable statute of limitations, we affirm. 
Here is a link to the slip opinion:


NOTE: This opinion contains a great discussion of the statute of limitations in personal injury actions, the discovery rule, and what happens when a tortfeasor dies and a lawsuit must be commenced against the tortfeasor (and when an adminstrator ad litem needs to be appointed).  This is a must-read opinion for any Tennessee lawyer who handles tort cases.

Wednesday, January 24, 2018

New Health Care Liability Action Opinion: Intentional Acts Are Not Covered by the Tennessee Health Care Liability Act ("THCLA"); Negligent Training and Supervision Claims Are Covered by the THCLA; and If wrongful Acts Fall Within the Common-knowledge Exception to Expert Testimony No Certificate of Good Faith Is Required to Be Filed

The Tennessee Court of Appeals just issued it opinion in C.D. v. Keystone Continuum, LLC, No. E2016-02528-COA-R3-CV (Tenn. Ct. App. Jan. 22, 2018).  The syllabus from the slip opinion states as follows:
The plaintiff, C.D., a minor, was a resident of Mountain Youth Academy, a trauma focused residential treatment facility,1 when he got into a physical altercation with an employee of the defendant Keystone Continuum, LLC doing business as Mountain Youth Academy. The employee, Jacob Spencer, is described by the defendant as a “mental health associate.” The plaintiffs describe him as a “third shift night guard.” The minor’s mother filed this action, proceeding both individually and on behalf of her son. The complaint alleges, among other things, that Spencer pulled the minor plaintiff to the ground and stomped on his foot, causing him injury. Defendant moved to dismiss and/or for summary judgment, arguing that the complaint in this case alleges health care liability claims. Defendant argued that because of plaintiffs’ (1) failure to provide pre-suit notice under the Tennessee Health Care Liability Act (the THCLA), Tenn. Code Ann. § 29-26- 121 (Supp. 2017), and (2) their failure to file a certificate of good faith with the complaint, id. § 29-26-122, the lawsuit should be dismissed with prejudice. The trial court held that plaintiffs’ claims sounded in health care liability. It dismissed the mother’s action with prejudice. The court also dismissed the minor’s action, but did so without prejudice.2 Defendant appeals, arguing that the minor’s action should have been dismissed with prejudice. The plaintiffs also present issues. They argue that the trial court erred in ruling that their claims are based upon health care liability. Additionally and alternatively, plaintiffs argue that their claims fall within the “common knowledge” exception to the general requirement of expert testimony in a health care liability action. We hold that plaintiffs’ claims for assault and battery are unrelated to the provision of, or failure to provide, health care services. As a consequence of this, we hold that the plaintiffs’ assault and battery claims do not fall within the ambit of a “health care liability action” as defined by the statute. We further hold that plaintiffs’ direct claims against the defendant, for negligent supervision and/or training of its employees, are health care liability claims but ones involving matters that ordinary laypersons will be able to assess by their common knowledge. Hence, expert medical testimony is not required. The trial court’s judgment dismissing the plaintiffs’ claims for assault and battery is vacated. We further hold that mother’s failure to provide the defendant with pre-suit notice mandates a dismissal of her claim for negligent supervision and/or training, but that dismissal should have been without prejudice rather than with prejudice. Accordingly, the trial court’s judgment on this part of mother’s claim is modified to reflect that the dismissal is without prejudice. We affirm the trial court’s judgment dismissing the minor’s claim of negligent supervision and/or training and further affirm the trial court’s judgment that this dismissal is without prejudice.
Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/c.d._et_al._v._keystone_continuum_llc_dba_mountain_youth_academy.pdf

New Opinion: Contractual Indemnification Claim Against a Health Care Provider Not a Health Care Liability Action

The Tennessee Court of Appeals recently released its opinion in Johnson v. Rutherford County, Tenn., No. M2017-00618-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2018).  The syllabus from the slip opinion states as follows:
The plaintiffs, as co-conservators for their adult son, filed this action against the county, seeking payment of medical expenses incurred by their son following an assault upon him by another inmate while he was incarcerated at the county jail facility. The plaintiffs later amended their complaint to add allegations of civil rights violations, general negligence, and health care liability. The county filed a third-party complaint against the medical provider with whom the county had contracted to provide medical services for the inmates at the jail. The third-party complaint was based upon an indemnity clause contained within the respective parties’ contract. The medical provider filed a motion to dismiss the county’s third-party complaint because the county had not complied with the requirements of the Tennessee Health Care Liability Act (“THCLA”). Following a hearing, the trial court dismissed the county’s third-party complaint by reason of the county’s failure to comply with the requirements of the THCLA. The county timely appealed. Having determined that the trial court erred by treating the county’s third-party complaint as a THCLA claim, we reverse the court’s dismissal of the county’s third-party complaint.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/johnson.melissa.opn_.pdf