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Sunday, September 18, 2022

Summary Judgment for a Defendant Upheld on Appeal: Trial Court Found that Movant Did Not Owe a Duty of Care to Injured Plaintiff

The Tennessee Court of Appeals has released its opinion in Lynch v. Poe, No. M2021-00867-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2022). The syllabus form the slip opinion reads:
This is a multi-party premises liability and general negligence action among a roofer who fell from the homeowner’s roof, the homeowner who erected the scaffolding at issue, and the scaffolding company that rented the scaffolding to the homeowner, but did not erect the scaffolding. The complaint alleged that the roofer slipped and fell on the roof and then bounced over to the scaffolding before falling to the ground. The complaint also alleged that had a safety rail been installed on the scaffolding it could have prevented the roofer’s fall. The homeowner filed an answer denying liability and alleging comparative fault against the scaffolding company. Consequently, the roofer filed an amended complaint adding the scaffolding company as a codefendant. After discovery, the scaffolding company filed a motion for summary judgment, alleging that it owed no duty to the roofer or the homeowner because it had no control over the premises nor actual or constructive notice of a dangerous condition on the premises. The roofer and homeowner opposed the motion contending, inter alia, that this is a case of general negligence against the scaffolding company because the homeowner relied on the scaffolding company for guidance during the installation process and the scaffolding company assumed the duty of care to ensure the scaffold was installed safely. They also contend that summary judgment was not appropriate because material facts are in dispute. The trial court summarily dismissed all claims against the scaffolding company, and this appeal followed. We find that the material facts are not in dispute and that the scaffolding company was entitled to summary judgment as a matter of law on claims sounding in premises liability and general negligence. Thus, we affirm the summary dismissal of all claims against the scaffolding company.
Here is a link to the opinion:


NOTE: This opinion offers an excellent discussion of the current state of the law on summary judgment procedure and of the elements of a premises liability and a general negligence. For the practitioner whose case involves any of these matters this is a must-read decision in my humble opinion. 

Monday, August 29, 2022

New Health Care Liability Action: Trial Court's Denial of Defense's Motion to Dismiss Based on a Finding of "Excusable Neglect" Reversed on Appeal

The Tennessee Court of Appeals has released its opinion in Moxley v. Amisub SFH, Inc., No. W2021-01422-COA-R9-CV (Tenn. Ct. App. Aug. 29, 2022). The syllabus reads:

In this interlocutory appeal of a health care liability action, the only issue for review is whether the trial court erred in denying the defendants’ motions to dismiss based on its finding that “extraordinary cause” existed to excuse the plaintiff’s failure to comply with the statutory pre-suit notice requirem)nts. For the following reasons, we reverse and remand for further proceedings.

Here is a link to the slip opinion: 

 https://www.tncourts.gov/sites/default/files/moxleyeugeneopn.pdf.

NOTE: This is opinion is a reminder of how unforgiving Tennessee law is concerning presuit notices. Read it as a cautionary tale. (I still think the "health care operations" exception may provide some relief to the plaintiff herein, to wit: http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.)

Saturday, August 13, 2022

New Health Care liability Action Opinion: Summary Judgment for Physician Reversed on Appeal Because the Trial Court Abused Its Discretion in Not Allowing Plaintiff to Obtain a New Standard-of-care Expert When that Expert Refused to Testify Through No Fault of Plaintiff, Etc.

The Tennessee Court of Appeals has issued its opinion in Blackburn v. McClean, No. M2021-00417-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022). The syllabus from the slip opinion reads:

This is a wrongful death health care liability action. At issue in this appeal are claims that were asserted against a hospital and an emergency room physician. During the course of litigation, the trial court permitted the defendants to amend their pleadings to assert a comparative fault defense but placed certain limitations on any new experts the plaintiff might retain to address the defense. The trial court also denied the plaintiff’s efforts to secure a new standard of care expert when one of his retained experts withdrew from the case and refused to testify. Ultimately, through a series of summary judgment orders, the claims against the hospital and emergency room physician were dismissed. Although the plaintiff generically challenges the trial court’s summary judgment dispositions on appeal, we conclude that the plaintiff’s challenges are all waived except as they relate to the last summary judgment order that was entered as to the emergency room physician. That summary judgment order is reversed consistent with the discussion herein, namely in light of our conclusion that the trial court abused its discretion in refusing to allow the plaintiff to secure a substitute standard of care expert after his retained expert refused to testify due to no fault of counsel or his client. Further, although we find no error in the trial court’s decision to allow the defendants to amend their pleadings to assert comparative fault, we are of the opinion that the court abused its discretion with respect to the limitations it placed on any potential expert retained by the plaintiff to address the issues raised in the later amendment alleging comparative fault.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/blackburn_v.mclean.pdf.

NOTE: The primary takeaway from this opinion is that it was an abuse of discretion by the trial court to not allow the plaintiff to obtain a new standard-of-care expert when the former expert in this area became unavailable through no fault of the plaintiff, which jibes with Tennessee's policy of deciding cases on their merits and not in procedural technicalities. The secondary takeaway is that the trial court also abused its discretion in severely limiting expert testimony that the plaintiff could offer to rebut a newly pleased defense based on the decedent's alleged comparative fault. Both of these abuses required reversal and a remand. 

P.S. This is the second appeal in this case. The first one is the subject of my from Aug. 1, 2020-post, to wit: http://theduncanlawfirm.blogspot.com/2020/08/new-case-on-certification-of-nonfinal.html.

Clarification Offered on Attorney's Fees Awarded under Tenn. Code Ann. sec. 20-12-119(c) upon the Granting of a Motion to Dismiss under Tenn. R. Civ. P. 12.02(6)

The Tennessee Court of Appeals has issued its opinion in Thomson v. Genesis Diamonds, LLC, No. M2021-00634-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022). The syllabus from the slip opinion reads:

This appeal involves an award of attorney’s fees pursuant to Tenn. Code Ann. § 20-12- 119(c). The trial court dismissed two of the plaintiff’s three claims for relief pled in his amended complaint pursuant to Tenn. R. Civ. P. 12.02(6), upon its finding that the plaintiff had failed to state a claim for which relief could be granted on the two claims. The third claim also was included in the defendant’s motion to dismiss, as well as arguments for improper venue and lack of subject matter jurisdiction, all of which were denied by the trial court. More than thirty days after a final judgment was entered, the defendant requested an award of attorney’s fees and discretionary costs. In his supporting affidavit, the defendant’s counsel included attorney’s fees as relevant to the entire motion to dismiss instead of distinguishing the time spent regarding the claims that were dismissed pursuant to Rule 12.02(6). The trial court awarded the defendant attorney’s fees in the amount of $10,000, which is the maximum amount of attorney’s fees a trial court can award under Tenn. Code Ann. § 20-12-119(c). The trial court denied the defendant’s request for discretionary costs as untimely. We affirm the trial court’s denial of discretionary costs, vacate the award of attorney’s fees, and remand for the Trial Court to reconsider the attorney’s fees award as consistent with this opinion and the Tennessee Supreme Court’s opinion in Donovan v. Hastings, No. M2019-01396-SC-R11-CV, -- S.W.3d -- , 2022 WL 2301177 (Tenn. June 27, 2022).

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/michael.thomson.opn_.pdf.

NOTE: This opinion offers insight into attorney's fees under sec. 20-12-119(a), discretionary costs,  and appellate practice. It is of significance as to the first matter and instructs the bench and the bar that fees under -119(c) are only for the work done on the claims dismissed, to wit:

We hold that the limited scope of Tenn. Code Ann. § 20-12-119(c) allows an award of attorney’s fees only for the tasks performed regarding the claims that were actually dismissed by the Trial Court for failure to state a claim upon which relief can be granted. Therefore, we vacate the Trial Court’s award of attorney’s fees and remand to the Trial Court for recalculation of the attorney’s fee award in this case in compliance with our Supreme Court’s opinion in Donovan and this opinion. During remand, the Trial Court should consider the factors in Tenn. Sup. Ct. R. 8, Rule of Professional Conduct 1.5(a) when determining whether the award of attorney’s fees is reasonable and necessary. See Donovan, 2022 WL 2301177, at *6 n.13 (“Rule of Professional Conduct 1.5 sets forth the ‘correct legal standard’ when assessing the reasonableness of a cost and fee request.”). Further, in compliance with Donovan, the Trial Court on remand should consider Defendant’s request for attorney’s fees incurred prior to the amended complaint only to the extent that the claim or claims were pled by Plaintiff prior to the amended complaint and defense counsel’s fees prior to the amended complaint involved those specific claims that were dismissed pursuant to Tenn. R. Civ. P. 12.02(6).

Thomas, supra, at 12.

Monday, July 18, 2022

Summary Judgment for the Defense Affirmed on Appeal: Trial Court's Determination that No Duty of Care Existed Stands

The Tennessee Court of Appeals has issued its decision in Tino v. Walker, No. M2021-01230-COA-R3-CV (Tenn. Ct. App. July 18, 2022). The syllabus from the slip opinion reads:

In this premises liability case, the plaintiff appeals the trial court’s order granting the defendants’ motion for summary judgment and dismissing the plaintiff’s complaint with prejudice. The plaintiff contends that the trial court erred by determining that the divot in the brick step that caused her to trip and fall amounted to a minor aberration and that, as a result, the defendants did not owe her a duty of care. Discerning no reversible error, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/kathy.tino_.opn_.pdf.

NOTE: This opinion does a good job setting forth the current state of summary judgment jurisprudence in Tennessee as well as the law on duty of care in a premises liability case. I would submit that this is a must-read decision for any lawyer handling premises liability cases in Tennessee.  



Tuesday, July 12, 2022

Dismissal of Plaintiffs' Claims (Sounding in Tort) Reversed on Appeal Because They Were Permissive Counterclaims and Not Barred by Res Judicata

The Tennessee Court of Appeals has issued its decision in Albers v. Powers, No. M2021-00577-COA-R3-CV (Tenn. Ct. App. July 12, 2022). The syllabus from the slip opinion reads:

This appeal requires us to consider the defense of res judicata in the context of two separate lawsuits filed by parties who were in a car accident. Following the car accident, the first lawsuit was filed and settled by agreement of the parties. An agreed judgment was entered dismissing the first lawsuit. Subsequently, the defendant from the initial lawsuit and her husband filed suit against the former plaintiff, alleging various causes of action sounding in tort. The trial court dismissed the second case, finding that all of the claims were barred by res judicata. The defendant in the initial suit and her husband—the plaintiffs in the second suit—appealed the dismissal of their lawsuit. We find that the tort claims alleged in the second suit were not compulsory counterclaims under Tenn. R. Civ. P. 13.01, and were not claims that would nullify the initial action or impair rights established in the initial action; therefore, we hold that the doctrine of res judicata does not bar those claims. The judgment of the trial court dismissing the case is reversed, and the case is remanded for further proceedings.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/lori.albers.opn_.pdf.

NOTE: This is a very interesting read for any civil procedure nerd like me. It offers up a great discussion of the tort exception under Rule 13 of the Tennessee Rules of Civil Procedure (which does not exist under its federal counterpart) and how tort claims are not barred under res judicata because they are generally permissive and not compulsory counterclaims. 

Wednesday, June 22, 2022

Trial Court's Dismissal of Plaintiff's Case Upheld on Appeal Due to Her Counsel's Failure to Make a Proper Substitution for Her After She Died from Causes Unrelated to the Complained-of Injuries

 The Tennessee Court of Appeals has released its opinion in Cunningham v. Fresenius Medical Care, Inc., No. M2021-01087-COA-R3-CV (Tenn. Ct. App. June 22, 2022). The syllabus from the slip opinion reads:

In this appeal arising out of a negligence action, the plaintiff died while the litigation was pending, and no motion for substitution of the plaintiff was filed within the ninety-day period following the filing of the suggestion of death as required by Tenn. R. Civ. P. 25.01. After the defendant filed a motion to dismiss, the plaintiff’s counsel filed a motion to enlarge the time, pursuant to Tenn. R. Civ. P. 6.02. The trial court found no excusable neglect warranting enlargement of the ninety-day period and dismissed the action pursuant to Tenn. R. Civ. P. 25.01. The plaintiff appealed the trial court’s denial of its motion to enlarge and the dismissal of the suit. Discerning no error, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/barbara.cunningham.opn_.pdf.

NOTE: This case serves as a cautionary tale of what happens when a party to a lawsuit dies during the pendency of the action from causes unrelated to the complained-of injuries and a motion to substitute is not filed within ninety-days of the filing of a suggestion of death. What I am not sure about is why did Plaintiff's counsel file the suggestion of death. It was not necessary. Once it was filed, however, Plaintiff's counsel was put "on the clock" and had ninety days to get a motion for substitution filed under Rule 25.01 of the Tennessee Rules of Civil Procedure (or move for an enlargement of time). The quick takeaways from this opinion are: (1) Counsel for a plaintiff does not need to file a suggestion of death when a client dies; (2) a motion for substitution under Rule 25.01 should be filed within ninety days of the filing a suggestion of death; and (3) if a motion for substitution cannot be filed within ninety days of the filing of a suggestion of death, a motion seeking an enlargement of time should be filed under Rule 6.02 of the Tennessee Rules of Civil Procedure.