ROSE JOHNSEY, Widow of Frederick Johnsey v. NORTHBROOKE (Tenn. Ct. App. May 14, 2009).
The plaintiff filed suit against a nursing home after her husband allegedly suffered a broken hip while he was a resident there. The nursing home filed a motion for summary judgment, asserting that the plaintiff could not prove the elements of her claim. The trial court concluded that the plaintiff''s claims were for medical malpractice rather than ordinary negligence, but the court found that under either theory summary judgment was appropriate. We agree with the court's conclusion that the plaintiff's claims sound in medical malpractice, but we find that the trial court erred in granting summary judgment. Therefore, we reverse and remand this case for further proceedings.
"In distinguishing between medical malpractice and ordinary negligence claims, courts have also looked to “whether the decision, act, or omission complained of required the assessment of a patient’s medical condition and whether the decision, act, or omission required a decision based upon medical science, specialized training or skill.” Id.
The full text of this opinion may be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/johnseyr_051409.pdf
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Thursday, January 28, 2010
TCA reverses lower court and dismisses slip and fall suit
LEITHA C. PERKINS and ROBERT L. PERKINS v. BIG LOTS STORES, INC. (Tenn. Ct. App September 16, 2008).
This is a slip-and-fall case. The plaintiff tripped on a floor mat and fell as she was entering the defendant's store. A store security video showed that the corner of the floor mat was overturned by another customer twenty-one seconds before the plaintiff fell. At the time that the corner of the mat became furled, the assistant store manager was at the service desk several feet from the entrance. He denied seeing the overturned mat. The plaintiff sued the store, alleging negligence in allowing a dangerous condition to persist and in failing to warn the plaintiff of it. After the trial, the jury found that the defendant store was eighty percent at fault and that the plaintiff was twenty percent at fault. The defendant store filed a motion for a new trial, alleging juror misconduct based on comments by jurors to the attorneys. The store also contended that the evidence showed that it did not have actual or constructive notice that the corner of the mat had become folded over. Finally, the store maintained that no reasonable jury could find that the plaintiff was less than fifty percent at fault for her own injuries. The trial court denied the motion and the defendant appeals. We reverse, finding no material evidence to support the jury's verdict, and dismiss the case.
The full text of this opinion may be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/perkinsl_052009.pdf
This is a slip-and-fall case. The plaintiff tripped on a floor mat and fell as she was entering the defendant's store. A store security video showed that the corner of the floor mat was overturned by another customer twenty-one seconds before the plaintiff fell. At the time that the corner of the mat became furled, the assistant store manager was at the service desk several feet from the entrance. He denied seeing the overturned mat. The plaintiff sued the store, alleging negligence in allowing a dangerous condition to persist and in failing to warn the plaintiff of it. After the trial, the jury found that the defendant store was eighty percent at fault and that the plaintiff was twenty percent at fault. The defendant store filed a motion for a new trial, alleging juror misconduct based on comments by jurors to the attorneys. The store also contended that the evidence showed that it did not have actual or constructive notice that the corner of the mat had become folded over. Finally, the store maintained that no reasonable jury could find that the plaintiff was less than fifty percent at fault for her own injuries. The trial court denied the motion and the defendant appeals. We reverse, finding no material evidence to support the jury's verdict, and dismiss the case.
The full text of this opinion may be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/perkinsl_052009.pdf
TCA Considers Owner Liability for Construction Contractor Employee’s Death
JOHNNY R. OWNBY ET AL. v. TENNESSEE FARMERS COOPERATIVE CORPORATION, U.S.A. (Tenn. Ct. App. May 19, 2009).
This wrongful death action arises out of an accident at an agricultural facility: a worker fell through a skylight on the roof while employed by a company hired by the agricultural facility owner to do work on the roof. The trial court denied the owner's motion for a directed verdict on the question of whether the owner owed a duty of care to the injured worker. We reverse the decision of the trial court because we have concluded that this case falls within an exception to the general duty of a landowner to provide a reasonably safe workplace.
The full text of this opinion can be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/ownbyj_051909.pdf
This wrongful death action arises out of an accident at an agricultural facility: a worker fell through a skylight on the roof while employed by a company hired by the agricultural facility owner to do work on the roof. The trial court denied the owner's motion for a directed verdict on the question of whether the owner owed a duty of care to the injured worker. We reverse the decision of the trial court because we have concluded that this case falls within an exception to the general duty of a landowner to provide a reasonably safe workplace.
The full text of this opinion can be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/ownbyj_051909.pdf
Decedents do not have capacity for suits and motion for dismissal based on capacity can be made at any stage of proceedings
SAM McCORMICK v. ILLINOIS CENTRAL RAILROAD COMPANY (Tenn. Ct. App May 19, 2009).
In this interlocutory appeal, we are asked to determine whether the trial court erred in allowing the executor of the plaintiff's estate to be substituted as the party plaintiff where the party plaintiff died before suit was filed in his individual capacity. We are also asked to determine whether the defendant waived the issue of plaintiff's capacity by first raising the issue in a post-answer motion to dismiss. We find that a suit brought in the name of a deceased person amounts to a nullity, and thus, is not amenable to substitution. We further find that an objection based on the fact that the plaintiff was deceased when the complaint was filed can be made at any time during the proceedings, in any appropriate manner, and such objection stops the cause at whatever stage it may be, whenever made known to the court.
The full text of this opinion can be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/mccormicks_051909.pdf
In this interlocutory appeal, we are asked to determine whether the trial court erred in allowing the executor of the plaintiff's estate to be substituted as the party plaintiff where the party plaintiff died before suit was filed in his individual capacity. We are also asked to determine whether the defendant waived the issue of plaintiff's capacity by first raising the issue in a post-answer motion to dismiss. We find that a suit brought in the name of a deceased person amounts to a nullity, and thus, is not amenable to substitution. We further find that an objection based on the fact that the plaintiff was deceased when the complaint was filed can be made at any time during the proceedings, in any appropriate manner, and such objection stops the cause at whatever stage it may be, whenever made known to the court.
The full text of this opinion can be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/mccormicks_051909.pdf
TCA affirms City of Memphis Immunity in Pedestrian – Vehicle Crosswalk Incident
GARY L. WATTS AND JANET WATTS, Parents And Next Friends of CLINTON D. WATTS, Deceased v. EARNESTINE J. MORRIS, ET AL. (Tenn. Ct. App. May 6, 2009).
This case arises from the death of a graduate student near the University of Memphis. While crossing the street, decedent was struck by a vehicle. Decedent's parents, on his behalf, have sued the City of Memphis, pursuant to the Governmental Tort Liability Act, alleging that the City negligently maintained the defective, unsafe, or dangerous street that decedent was crossing. The trial court held that Plaintiffs failed to prove that the Governmental Tort Liability Act waived the City of Memphis' immunity from suit or that the City of Memphis was negligent. In addition, the court found that both decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault of the accident. We affirm on the basis that Plaintiffs failed to prove that the street was a defective, unsafe, or dangerous condition for which the City's immunity was waived.
The full text of this opinion is available at the TBA website: http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf
KIRBY Concurring
http://www.tba2.org/tba_files/TCA/2009/wattsg_con_050609.pdf
This case arises from the death of a graduate student near the University of Memphis. While crossing the street, decedent was struck by a vehicle. Decedent's parents, on his behalf, have sued the City of Memphis, pursuant to the Governmental Tort Liability Act, alleging that the City negligently maintained the defective, unsafe, or dangerous street that decedent was crossing. The trial court held that Plaintiffs failed to prove that the Governmental Tort Liability Act waived the City of Memphis' immunity from suit or that the City of Memphis was negligent. In addition, the court found that both decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault of the accident. We affirm on the basis that Plaintiffs failed to prove that the street was a defective, unsafe, or dangerous condition for which the City's immunity was waived.
The full text of this opinion is available at the TBA website: http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf
KIRBY Concurring
http://www.tba2.org/tba_files/TCA/2009/wattsg_con_050609.pdf
Tuesday, January 26, 2010
TCA Rules That Expert Not Statutorily Qualified
TOMMY McDANIEL, ET AL. v. AMAL RUSTOM, M.D., ET AL. Court: Tenn. Ct. App. (May 5, 2009)
The plaintiffs filed a complaint alleging medical malpractice against emergency room physicians who treated their daughter. The defendants filed motions for summary judgment, claiming that the plaintiffs' only expert was not qualified to testify as to the recognized standard of acceptable professional practice in the defendants' profession and specialty in their community or in a similar community. The trial court granted summary judgment to the defendants, finding that the plaintiffs' expert did not meet the qualifications of Tennessee Code Annotated section 29-26-115. The plaintiffs appeal. We affirm.
This opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcdanielt_050509.pdf
The plaintiffs filed a complaint alleging medical malpractice against emergency room physicians who treated their daughter. The defendants filed motions for summary judgment, claiming that the plaintiffs' only expert was not qualified to testify as to the recognized standard of acceptable professional practice in the defendants' profession and specialty in their community or in a similar community. The trial court granted summary judgment to the defendants, finding that the plaintiffs' expert did not meet the qualifications of Tennessee Code Annotated section 29-26-115. The plaintiffs appeal. We affirm.
This opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcdanielt_050509.pdf
Friday, January 22, 2010
TWCA reviews whether trial court erred in accepting evidence of treating physician instead of evaluating physician
JUDITH ANN LESKO v. TENNESSEE SCHOOL BOARD, ET AL. (Tenn. SWCAP January 22, 2010)
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee alleged that she had sustained a permanent disability as a result of a work-related injury to her lower back. The trial court ruled that she had no permanent disability. She has appealed, contending that the trial court erred in accepting the testimony of the treating physician over that of the evaluating physician. We find no error, and affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/leskoj_012210.pdf
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee alleged that she had sustained a permanent disability as a result of a work-related injury to her lower back. The trial court ruled that she had no permanent disability. She has appealed, contending that the trial court erred in accepting the testimony of the treating physician over that of the evaluating physician. We find no error, and affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/leskoj_012210.pdf
Court reviews admissibility of a physician's evaluation when physician is unavailable for deposition by the opposing party
ANDREW CARTER v. QUALITY OUTDOOR PRODUCTS, INC. ET AL. (Tenn. January 22, 2010)
The employee filed suit seeking workers' compensation benefits and provided notice to the employer of his intent to rely at trial on a physician's report generated pursuant to Tennessee Code Annotated section 50-6-235. The employer objected to the introduction of the medical report and notified the employee of its intent to depose the physician pursuant to the same section. The employer moved to exclude the medical report when it was unable to depose the physician. The trial court denied the employer's motion to exclude the physician's report but granted the employer permission to seek an interlocutory appeal. We hold that the physician's unavailability to provide the deposition requested by the employer pursuant to section 50-6-235 renders the physician's written report inadmissible. We further hold that the physician's report is not admissible pursuant to Tennessee Rule of Evidence 804 as an exception to the hearsay rule. Accordingly, we reverse the trial court's ruling and remand for further proceedings consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_012210.pdf
Note: On page one (1) of the opinion, the last name of counsel for appellee was incorrectly listed as Joshua Davis "Barker" and has been corrected to Joshua Davis "Baker", Assistant Attorney General. The corrected opinion can be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_CORR_012510.pdf
The employee filed suit seeking workers' compensation benefits and provided notice to the employer of his intent to rely at trial on a physician's report generated pursuant to Tennessee Code Annotated section 50-6-235. The employer objected to the introduction of the medical report and notified the employee of its intent to depose the physician pursuant to the same section. The employer moved to exclude the medical report when it was unable to depose the physician. The trial court denied the employer's motion to exclude the physician's report but granted the employer permission to seek an interlocutory appeal. We hold that the physician's unavailability to provide the deposition requested by the employer pursuant to section 50-6-235 renders the physician's written report inadmissible. We further hold that the physician's report is not admissible pursuant to Tennessee Rule of Evidence 804 as an exception to the hearsay rule. Accordingly, we reverse the trial court's ruling and remand for further proceedings consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_012210.pdf
Note: On page one (1) of the opinion, the last name of counsel for appellee was incorrectly listed as Joshua Davis "Barker" and has been corrected to Joshua Davis "Baker", Assistant Attorney General. The corrected opinion can be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_CORR_012510.pdf
Court reviews whether an independent medical evaluation was improperly admitted into workers' compensation case
ALISIA ARIAS v. DURO STANDARD PRODUCTS COMPANY ET AL. (Tenn. January 22, 2010)
The employee sought workers' compensation benefits, contending that she had developed occupational asthma as a result of exposure to dust in the workplace. The employee offered into evidence the written report of a physician who performed an independent medical evaluation of the employee at the request of the employee's attorney. The employer objected to the introduction of the report, contending that Tennessee Code Annotated section 50-6-235 is the exclusive method of introducing medical proof in workers' compensation cases and that this statute permits the employer to depose the expert whose report is offered into evidence. Overruling the objection, the trial court admitted the report into evidence pursuant to Tennessee Rule of Evidence 803(6) and awarded workers' compensation benefits to the employee based on the physician's report. The employer appealed. We conclude that the trial court erred by admitting the evaluating physician's report into evidence and that the remaining admissible evidence is insufficient to establish either causation or permanency. Accordingly, the judgment of the trial court awarding workers' compensation benefits is vacated, and the complaint is dismissed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/ariasa_012210.pdf
The employee sought workers' compensation benefits, contending that she had developed occupational asthma as a result of exposure to dust in the workplace. The employee offered into evidence the written report of a physician who performed an independent medical evaluation of the employee at the request of the employee's attorney. The employer objected to the introduction of the report, contending that Tennessee Code Annotated section 50-6-235 is the exclusive method of introducing medical proof in workers' compensation cases and that this statute permits the employer to depose the expert whose report is offered into evidence. Overruling the objection, the trial court admitted the report into evidence pursuant to Tennessee Rule of Evidence 803(6) and awarded workers' compensation benefits to the employee based on the physician's report. The employer appealed. We conclude that the trial court erred by admitting the evaluating physician's report into evidence and that the remaining admissible evidence is insufficient to establish either causation or permanency. Accordingly, the judgment of the trial court awarding workers' compensation benefits is vacated, and the complaint is dismissed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/ariasa_012210.pdf
Thursday, January 21, 2010
TCA affirms findings of Occupational Safety and Health Review Commission and TOSHA findings in Death of Powerline Repairman
DILLARD SMITH CONSTRUCTION COMPANY v. COMMISSIONER OF LABOR AND WORKFORCE DEVELOPMENT (Tenn. Ct. App. July 7, 2009)
This appeal arises from a petition seeking judicial review of an administrative order. The Tennessee Department of Labor, Division of Occupational Safety and Health (TOSHA) cited Dillard Smith Construction Company for violating six safety regulations that related to the fatality of a Dillard Smith apprentice-lineman. The TOSHA Review Commission affirmed all six violations. The Chancery Court subsequently affirmed the Review Commission's findings as to five of the six violations but reversed one, concluding that the record did not support the finding that Dillard Smith failed to conduct a job briefing. Both parties appealed the Chancellor's rulings. The Commissioner contends that the Chancellor erred in reversing the finding that Dillard Smith failed to conduct the required job briefing. Dillard Smith contends that the Chancellor erred in affirming the other five violations -- that it failed to check conditions related to safety, its employee came into contact with an energized part, the cut-off switch was not opened, the line was not tested, and the line was not grounded.
We have concluded that the record contains substantial and material evidence to support the Review Commission's finding that Dillard Smith violated the TOSHA regulation that required a job briefing before beginning the first job of the day; therefore, we reverse the Chancellor's ruling that it did not. We have also concluded that the record contains substantial and material evidence to support the Review Commission's findings that Dillard Smith was also in violation of the other five TOSHA regulations for which it was cited. Therefore, we reverse in part and affirm in part.
This opinion can be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/smithconstruction_121609.pdf
This appeal arises from a petition seeking judicial review of an administrative order. The Tennessee Department of Labor, Division of Occupational Safety and Health (TOSHA) cited Dillard Smith Construction Company for violating six safety regulations that related to the fatality of a Dillard Smith apprentice-lineman. The TOSHA Review Commission affirmed all six violations. The Chancery Court subsequently affirmed the Review Commission's findings as to five of the six violations but reversed one, concluding that the record did not support the finding that Dillard Smith failed to conduct a job briefing. Both parties appealed the Chancellor's rulings. The Commissioner contends that the Chancellor erred in reversing the finding that Dillard Smith failed to conduct the required job briefing. Dillard Smith contends that the Chancellor erred in affirming the other five violations -- that it failed to check conditions related to safety, its employee came into contact with an energized part, the cut-off switch was not opened, the line was not tested, and the line was not grounded.
We have concluded that the record contains substantial and material evidence to support the Review Commission's finding that Dillard Smith violated the TOSHA regulation that required a job briefing before beginning the first job of the day; therefore, we reverse the Chancellor's ruling that it did not. We have also concluded that the record contains substantial and material evidence to support the Review Commission's findings that Dillard Smith was also in violation of the other five TOSHA regulations for which it was cited. Therefore, we reverse in part and affirm in part.
This opinion can be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/smithconstruction_121609.pdf
Court reviews whether Tennessee's Rules of Evidence allow juror testimony that falls outside the scope of Rule 606(b)
LINDA KAY GAINES, ET UX. v. LESLIE MCCARTER TENNEY, ET AL. (Tenn. Ct. App. January 21, 2010)
In a negligence action arising from an automobile accident, the original trial resulted in a jury verdict in the amount of $10,000 for the plaintiff. The plaintiff then moved for a new trial, alleging juror misconduct. After reviewing a juror's deposition testimony, the trial court ordered a new trial. A second jury trial and verdict resulted in a $30,000 judgment for the plaintiff. Following the second judgment, the defendants timely appealed the trial court's order for a new trial. We hold that Tenn. R. Evid. 606(b) prohibits introduction of juror testimony concerning the deliberation process that does not fall under one of the three exceptions enumerated in the rule. The order for a new trial is reversed and the lawsuit remanded for enforcement of the original judgment.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gainesl_012110.pdf
In a negligence action arising from an automobile accident, the original trial resulted in a jury verdict in the amount of $10,000 for the plaintiff. The plaintiff then moved for a new trial, alleging juror misconduct. After reviewing a juror's deposition testimony, the trial court ordered a new trial. A second jury trial and verdict resulted in a $30,000 judgment for the plaintiff. Following the second judgment, the defendants timely appealed the trial court's order for a new trial. We hold that Tenn. R. Evid. 606(b) prohibits introduction of juror testimony concerning the deliberation process that does not fall under one of the three exceptions enumerated in the rule. The order for a new trial is reversed and the lawsuit remanded for enforcement of the original judgment.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gainesl_012110.pdf
Wednesday, January 20, 2010
TWCA reviews whether the trial court properly awarded permanent and total disability benefits
RAINES BROTHERS, INC., ET AL. v. BARRY WADE JOHNSON (Tenn. Work Comp. App. January 20, 2010)
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6- 225(e)(3) for a hearing and report of findings of fact and conclusions of law. The employee, Barry Wayne Johnson, sought benefits for injuries he sustained in the course and scope of his employment with Raines Brothers, Inc. The employee fell fifteen to twenty feet into an air conditioning vent shaft at a construction site, shattering the left side of his pelvis and acetabulum. Following a course of treatment, the employee returned to work and was terminated after he informed his employer that he could not perform the light-duty work assigned to him due to residual and chronic pain. The trial court awarded permanent and total disability benefits. On appeal, the employer argues that the trial court erred in awarding permanent and total disability benefits. After careful review, the judgment of the trial court is affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/rainesbrothers_012010.pdf
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6- 225(e)(3) for a hearing and report of findings of fact and conclusions of law. The employee, Barry Wayne Johnson, sought benefits for injuries he sustained in the course and scope of his employment with Raines Brothers, Inc. The employee fell fifteen to twenty feet into an air conditioning vent shaft at a construction site, shattering the left side of his pelvis and acetabulum. Following a course of treatment, the employee returned to work and was terminated after he informed his employer that he could not perform the light-duty work assigned to him due to residual and chronic pain. The trial court awarded permanent and total disability benefits. On appeal, the employer argues that the trial court erred in awarding permanent and total disability benefits. After careful review, the judgment of the trial court is affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/rainesbrothers_012010.pdf
Friday, January 15, 2010
Court analyses merits of blank claim
NIELSEN BAINBRIDGE, LLC v. THOMAS SHINN (Tenn. Work Comp. App. January 15, 2010).
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. Employee suffered a hernia as a result of his work. The trial court awarded 28.5% permanent partial disability to the body as a whole. On appeal, Employer contends that the trial court erred in basing its award upon the testimony of Employee's evaluating physician. We agree, and consequently modify the judgment to 4.5% permanent partial disability to the body as a whole.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/shinnt_011510.pdf
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. Employee suffered a hernia as a result of his work. The trial court awarded 28.5% permanent partial disability to the body as a whole. On appeal, Employer contends that the trial court erred in basing its award upon the testimony of Employee's evaluating physician. We agree, and consequently modify the judgment to 4.5% permanent partial disability to the body as a whole.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/shinnt_011510.pdf
Wednesday, January 13, 2010
Court reviews the common-law principle that imputes liability to an original tortfeasor for additional physical harm caused by the efforts of third persons to render aid
ALICE J. BANKS v. ELKS CLUB PRIDE OF TENNESSEE 1102 ET AL. (Tenn. January 23, 2010)
This appeal involves the continuing viability in Tennessee of the common-law principle that imputes liability to an original tortfeasor for enhanced physical harm caused by the normal efforts of third persons to render aid which an injured party reasonably requires.
A guest at a private club was injured on the club's premises. The injuries to the guest's back were compounded first by the conduct of her surgeon and second by the actions or inactions of a nursing home where the guest was a patient following her surgery. The guest filed separate lawsuits against the private club and her surgeon in the Circuit Court for Davidson County.
After the cases were consolidated, the club and the surgeon moved to amend their answers to assert comparative fault claims against the nursing home. The trial court denied their motions but granted them permission to pursue an interlocutory appeal. After the Court of Appeals declined to consider the interlocutory appeal, the club and the surgeon sought this Court's permission for an interlocutory appeal. We granted their application. We now hold that an original tortfeasor is not jointly and severally liable for the further aggravation of an original injury caused by a subsequent tortfeasor's medically negligent treatment of the injury caused by the original tortfeasor's negligence. Therefore, we have determined that the trial court erred by denying the motions of the club and the surgeon to amend their complaints to assert comparative fault claims against the nursing home.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/banksa_011310.pdf
This appeal involves the continuing viability in Tennessee of the common-law principle that imputes liability to an original tortfeasor for enhanced physical harm caused by the normal efforts of third persons to render aid which an injured party reasonably requires.
A guest at a private club was injured on the club's premises. The injuries to the guest's back were compounded first by the conduct of her surgeon and second by the actions or inactions of a nursing home where the guest was a patient following her surgery. The guest filed separate lawsuits against the private club and her surgeon in the Circuit Court for Davidson County.
After the cases were consolidated, the club and the surgeon moved to amend their answers to assert comparative fault claims against the nursing home. The trial court denied their motions but granted them permission to pursue an interlocutory appeal. After the Court of Appeals declined to consider the interlocutory appeal, the club and the surgeon sought this Court's permission for an interlocutory appeal. We granted their application. We now hold that an original tortfeasor is not jointly and severally liable for the further aggravation of an original injury caused by a subsequent tortfeasor's medically negligent treatment of the injury caused by the original tortfeasor's negligence. Therefore, we have determined that the trial court erred by denying the motions of the club and the surgeon to amend their complaints to assert comparative fault claims against the nursing home.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/banksa_011310.pdf
Tuesday, January 12, 2010
Court reviews whether security agency was negligent at a Nashville night club
COREY GREENE, ET AL. v. YASEEN TITI D/B/A CRUSH NIGHT CLUB, ET AL. (Tenn. Ct. App. January 12, 2010)
This negligence action arose from a gunshot injury suffered by the plaintiff, Mr. Greene, when he was a customer at the co-defendant's night club in Nashville. The shooter was never identified. Mr. Greene filed suit against the night club and the agency providing security at the club, claiming that the security agency was negligent in allowing an individual into the club with a weapon. The defendant security agency moved for summary judgment. After a hearing, the trial court granted summary judgment in favor of the defendant security agency, holding that the agency affirmatively negated an element of Mr. Greene's claim by refuting his allegation that a security guard accepted a bribe and by showing that the agency did not breach any duty to Mr. Greene. The plaintiffs timely appealed. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/greenec_011210.pdf
SWINEY Concurring in part and dissenting in part:
http://www.tba2.org/tba_files/TCA/2010/greenec_CON_011210.pdf
This negligence action arose from a gunshot injury suffered by the plaintiff, Mr. Greene, when he was a customer at the co-defendant's night club in Nashville. The shooter was never identified. Mr. Greene filed suit against the night club and the agency providing security at the club, claiming that the security agency was negligent in allowing an individual into the club with a weapon. The defendant security agency moved for summary judgment. After a hearing, the trial court granted summary judgment in favor of the defendant security agency, holding that the agency affirmatively negated an element of Mr. Greene's claim by refuting his allegation that a security guard accepted a bribe and by showing that the agency did not breach any duty to Mr. Greene. The plaintiffs timely appealed. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/greenec_011210.pdf
SWINEY Concurring in part and dissenting in part:
http://www.tba2.org/tba_files/TCA/2010/greenec_CON_011210.pdf
Monday, January 11, 2010
Court reviews whether physician's testimony is proper for the issue of causation of an injury
EXCEL POLYMERS, LLC v. RICHARD BROYLES (Tenn. January 11, 2010)
In this workers' compensation case, the issues presented are whether the trial court erred in admitting the opinion testimony of the employee's treating physician on the issue of causation, whether the evidence preponderates against the trial court's ruling that the employee met his burden of proof that he suffered a compensable occupational disease as defined by Tennessee Code Annotated section 50-6-301, and whether the trial court erred in its disposition of the motion and suggestion of death filed by the employee's widow after the trial. We affirm the judgment of the Special Workers' Compensation Appeals Panel and of the trial court and remand to the trial court for a determination of the employee's legal dependents and the amount of death benefits, if any, due to them under the applicable workers' compensation law.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/broylesr_011110.pdf
In this workers' compensation case, the issues presented are whether the trial court erred in admitting the opinion testimony of the employee's treating physician on the issue of causation, whether the evidence preponderates against the trial court's ruling that the employee met his burden of proof that he suffered a compensable occupational disease as defined by Tennessee Code Annotated section 50-6-301, and whether the trial court erred in its disposition of the motion and suggestion of death filed by the employee's widow after the trial. We affirm the judgment of the Special Workers' Compensation Appeals Panel and of the trial court and remand to the trial court for a determination of the employee's legal dependents and the amount of death benefits, if any, due to them under the applicable workers' compensation law.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/broylesr_011110.pdf
Tuesday, January 5, 2010
Court reviews whether motorist insurance covers an injury obtained during a party
COLIN MARTIN v. MARY KATRINA DOUGHTIE AND GRANGE MUTUAL CASUALTY INSURANCE COMPANY (Tenn. Ct. App. January 5, 2010)
Guest who was injured during a party at residence where alcohol was consumed brought negligence action against the host. The guest also sued his uninsured/underinsured motorist carrier seeking payment under the policy. The trial court granted the insurance carrier's motion for summary judgment finding that the policy did not extend coverage under the circumstances. The trial court subsequently granted the host's motion for summary judgment finding that she owed no duty of care to the guest at the time of the injury. The guest appeals the trial court's action with respect to both defendants. Finding no error, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/martinc_010510.pdf
Guest who was injured during a party at residence where alcohol was consumed brought negligence action against the host. The guest also sued his uninsured/underinsured motorist carrier seeking payment under the policy. The trial court granted the insurance carrier's motion for summary judgment finding that the policy did not extend coverage under the circumstances. The trial court subsequently granted the host's motion for summary judgment finding that she owed no duty of care to the guest at the time of the injury. The guest appeals the trial court's action with respect to both defendants. Finding no error, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/martinc_010510.pdf
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