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Sunday, July 19, 2020

New Premises Liability Case: Summary Judgment for the Defense Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Chittenden v. BRE/LQ Properties, LLC, No. No. M2019-01990-COA-R3-CV (Tenn. Ct. App. July 15, 2020).  The syllabus from the slip opinion reads:
This is a premises liability action arising from an injury suffered by a guest who slipped on ice in the parking lot of a hotel. The plaintiffs appeal the trial court’s grant of summary judgment to the defendant. Upon a thorough review of the record, we conclude that there is no dispute of material fact and that summary judgment in favor of the defendant was properly granted; accordingly, we affirm.
Here is a link to that opinion:

NOTE: The ice that caused the fall was the result of a snow storm.  See Chittenden v. BRE/LQ Properties, LLC, No. No. M2019-01990-COA-R3-CV, slip op. at 12 (Tenn. Ct. App. July 15, 2020).  While I haven not seen the operative complaint in this case, since it was venued here in Nashville, it probably would have behooved the plaintiffs to have pleaded a negligence per se claim due to a violation of a local code provision, to wit:
     It shall be the duty of every owner or proprietor of any dwelling house, business house or other house abutting on any public street, square or avenue within the fire district to remove or cause to be removed from the sidewalk immediately in front of his premises all snow and ice which may each day accumulate thereon.
The Code of the Metro. Gov't of Nashville and Davidson County, Tenn. § 13.32.040 (2017) (emphasis added), see Shaw v. Metro. Gov't of Nashville & Davidson Cnty., 596 S.W.3d 726, 734–39 (Tenn. Ct. App. 2019) (No Tenn. R. App. P. 11 appeal filed) (discussing when negligence per se applies as to the violation of a municipal code).

Lastly, this slip opinion has been designated as a memorandum opinion and may not be cited or relied upon as authority in any other case.  Chittenden, slip op. at 1, n.1 (citing Tenn. Ct. App. R. 10).  However, this opinion may, obviously, still be used to aid one is doing research on the law of premises liability in Tenn.  


Wednesday, July 01, 2020

New Wrongful Death Case: Application of the Statutory Cap on Noneconomic Damages by the Trial Court Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Davis v. 3M Co., No. M2018-02029-COA-R3-CV (Tenn. Ct. App. June 30, 2020).  The syllabus from the slip opinion reads:
In this wrongful death action, the plaintiff, the decedent’s spouse, asserted claims against multiple defendants. The plaintiff settled with all but one of the defendants prior to trial, and the settling defendants were dismissed from the case. At trial, the sole remaining defendant asserted the comparative fault of the decedent and the settling defendants. The jury assigned percentages of fault to the decedent, the defendant, and the settling defendants but returned a verdict in favor of the plaintiff. The jury found noneconomic damages that, when reduced by the percentage of the decedent’s fault, exceeded the statutory cap. So the trial court entered a judgment against the defendant based on its percentage fault as applied to the statutory cap. On appeal, the plaintiff argues that the statutory cap was incorrectly applied. We affirm. 
Here is a link to the opinion:

NOTE: Respectfully, I think this opinion is per incuriam for at least one very salient reason: the cap should have been 1.5 million and not $750,000.00 because there were two party-plaintiffs.  See Yebuah v. Ctr. for Urological Treatment, PLC, No. 2018-M2018-01652-COA-R3-CV, 2020 Tenn. App. LEXIS 250, at *2–3 (Tenn. Ct. App. May 28, 2020)(no Tenn. R. App. P. 11 application filed as of July 1, 2020) (affirming trial court's application of the statutory cap on noneconomic damages to each plaintiff); OD'neal Baptist Mem'l Hosp.-Tipton, 556 S.W.3d 759, 761 (Tenn. Ct. App. 2018) (noting that a child's surviving parents were two party-plaintiffs in a wrongful death action filed for the wrongful death of the parents' child).  

New Case on Attorney-Client Privilege: Wife's Claim of Privilege Disallowed Due to the Presence of a Third Party While She Spoke with Attorneys

The Tennessee Court of Appeals recently issued its opinion in Pagliara v. Pagliara, No. M2019-01397-COA-R9-CV (Tenn. Ct. App. June 29, 2020).  The syllabus from the slip opinion reads:
This interlocutory appeal arises from a pending divorce action. During discovery, the husband sought certain communications between the wife and her attorneys. During some of these meetings between the wife and her attorneys, a third party was present during discussions of whether the wife should report conduct by the husband to law enforcement. The wife could not identify which of the meetings the third party had been present and which she had not. Because the wife did not meet her burden of proof in demonstrating that attorney-client privilege applied to the communications, we affirm the judgment of the Trial Court.
Here is a link to the slip opinion:

NOTE: This opinion offers a good discussion of the attorney-client privilege in Tennessee.  It is worth reading if you practice law Tennessee.