JOHNNY R. OWNBY ET AL. v. TENNESSEE FARMERS COOPERATIVE CORPORATION, U.S.A. (Tenn. Ct. App. May 18, 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 may be found at:
http://www.tba2.org/tba_files/TCA/2009/ownbyj_051909.pdf
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Friday, February 26, 2010
Court dismisses case based on Plaintiff's incapacity to sue
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 may 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 may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mccormicks_051909.pdf
Court reviews physician's testimony and trial court's summary judgment finding in wrongful death case.
WANDA F. DYKES, INDIVIDUALLY AND AS THE EXECUTRIX OF THE ESTATE OF RONALD DYKES v. THE CITY OF ONEIDA ET AL. (Tenn. Ct. App. February 26, 2010)
In this action, Wanda F. Dykes ("the plaintiff") filed suit against the City of Oneida ("the defendant") for the alleged wrongful death of her husband, Ronald Dykes. Her claim is based upon her allegation that police officers employed by the defendant were negligent in not calling for medical help when they responded to a call and found Ronald Dykes asleep and unresponsive in his home. They left him as they found him without calling for medical assistance. Mr. Dykes was found the next morning dead of a heart attack in the same recliner where the officers found him.
The thrust of the complaint is that, had the officers summoned medical help, Mr. Dykes' heart attack and resulting death could have been prevented. The defendant moved for summary judgment asserting, among other things, that the plaintiff cannot prove her theory of causation. While the motion was pending, the trial court, on four separate occasions, continued the hearing with respect to it, in order to give the plaintiff an opportunity to find and produce an expert to make out her case. When the motion was finally heard, the record contained the affidavit of a medical doctor stating that the failure of the officers to seek medical treatment for Mr. Dykes "may have allowed his condition to worsen and cause his death." The record also contained the same doctor's deposition testimony wherein he testified that he could not say Mr. Dykes would have survived if he had received prompt medical attention. The trial court granted the defendant summary judgment. The plaintiff appeals. We vacate the trial court's grant of summary judgment and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/dykesw_022610.pdf
In this action, Wanda F. Dykes ("the plaintiff") filed suit against the City of Oneida ("the defendant") for the alleged wrongful death of her husband, Ronald Dykes. Her claim is based upon her allegation that police officers employed by the defendant were negligent in not calling for medical help when they responded to a call and found Ronald Dykes asleep and unresponsive in his home. They left him as they found him without calling for medical assistance. Mr. Dykes was found the next morning dead of a heart attack in the same recliner where the officers found him.
The thrust of the complaint is that, had the officers summoned medical help, Mr. Dykes' heart attack and resulting death could have been prevented. The defendant moved for summary judgment asserting, among other things, that the plaintiff cannot prove her theory of causation. While the motion was pending, the trial court, on four separate occasions, continued the hearing with respect to it, in order to give the plaintiff an opportunity to find and produce an expert to make out her case. When the motion was finally heard, the record contained the affidavit of a medical doctor stating that the failure of the officers to seek medical treatment for Mr. Dykes "may have allowed his condition to worsen and cause his death." The record also contained the same doctor's deposition testimony wherein he testified that he could not say Mr. Dykes would have survived if he had received prompt medical attention. The trial court granted the defendant summary judgment. The plaintiff appeals. We vacate the trial court's grant of summary judgment and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/dykesw_022610.pdf
Court affirms city's immunity was not waived under Governmental Tort Liability Act
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 19, 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 the decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault for 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.
"In its answer to the suit filed by Plaintiffs, the City asserted several affirmative defenses, including that it was immune from suit pursuant to the Governmental Tort Liability Act (GTLA) and the comparative fault of the driver. City failed to assert that the decedent or the University of Memphis were comparatively negligent. The parties stipulated that pursuant to Tennessee Code Annotated section 29-20-37 the City of Memphis is not subject to trial by jury for actions brought under the GTLA. The City moved to amend its original answer to plead the comparative fault of the University of Memphis which the trial court denied. the City also filed a post-trial motion to amend its original answer seeking to include the comparative fault of the decedent. Because it was found that the fault of the decedent was at issue during pre-trial discovery and was tried by the parties without objection, the trial court granted this motion to amend pusuant to Tennessee Rule of Civil Procedure 15.02" Id.
"Subsequently the trial court entered its findings of facts and conclusions of law. First, it held that the GTLA did not waive the City's governmental immunity. In addition, the trial court determined that the Plaintiffs failed to prove that the City was negligent because there was insufficient evidence 1) that the City breached it's duty of care, 2) that "but for" the City's action or inaction the decedent's injuries would not have occurred, and 3) that the City's action or inaction was the legal cause of the decedent's injuries. The trial court also opined that the City had shown by a preponderance of the evidence that both the driver of the vehicle and the decedent were negligent and found that each were 50% at fault for the accident." Id.
"Under Tennessee Code Annotated section 29-20-201, government entities are immune from liability unless a plaintiff demonstrates that his claim is one of the specific causes of action for which the legislature removes immunity. Here Plaintiffs specifically allege that the City is liable pursuant to GTLA Section 203, which removes governmental immunity for "any injury caused by a defective, unsafe, or dangerous condition of any sgtreet, alley, sidewalk, of highway." TCA section 29-20-203(a) (2000). The trial court held and the Court of Appeals affirmed that the section of roadway at issue was not in a defective, unsafe, or dangerous condition on the date of the accident, therefore the City had not breached it's duty of care." Id.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf
A concurring opinion may be found at the TBA website:
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 the decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault for 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.
"In its answer to the suit filed by Plaintiffs, the City asserted several affirmative defenses, including that it was immune from suit pursuant to the Governmental Tort Liability Act (GTLA) and the comparative fault of the driver. City failed to assert that the decedent or the University of Memphis were comparatively negligent. The parties stipulated that pursuant to Tennessee Code Annotated section 29-20-37 the City of Memphis is not subject to trial by jury for actions brought under the GTLA. The City moved to amend its original answer to plead the comparative fault of the University of Memphis which the trial court denied. the City also filed a post-trial motion to amend its original answer seeking to include the comparative fault of the decedent. Because it was found that the fault of the decedent was at issue during pre-trial discovery and was tried by the parties without objection, the trial court granted this motion to amend pusuant to Tennessee Rule of Civil Procedure 15.02" Id.
"Subsequently the trial court entered its findings of facts and conclusions of law. First, it held that the GTLA did not waive the City's governmental immunity. In addition, the trial court determined that the Plaintiffs failed to prove that the City was negligent because there was insufficient evidence 1) that the City breached it's duty of care, 2) that "but for" the City's action or inaction the decedent's injuries would not have occurred, and 3) that the City's action or inaction was the legal cause of the decedent's injuries. The trial court also opined that the City had shown by a preponderance of the evidence that both the driver of the vehicle and the decedent were negligent and found that each were 50% at fault for the accident." Id.
"Under Tennessee Code Annotated section 29-20-201, government entities are immune from liability unless a plaintiff demonstrates that his claim is one of the specific causes of action for which the legislature removes immunity. Here Plaintiffs specifically allege that the City is liable pursuant to GTLA Section 203, which removes governmental immunity for "any injury caused by a defective, unsafe, or dangerous condition of any sgtreet, alley, sidewalk, of highway." TCA section 29-20-203(a) (2000). The trial court held and the Court of Appeals affirmed that the section of roadway at issue was not in a defective, unsafe, or dangerous condition on the date of the accident, therefore the City had not breached it's duty of care." Id.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf
A concurring opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/wattsg_con_050609.pdf
Tuesday, February 23, 2010
Court reviews finding of comparative fault in premises liability case.
WILLIAM W. REED v. BILL MCDANIEL and AHMAD ELSEBAE (Tenn. Ct. App. February 23, 2010)
This is a premises liability case. Plaintiff/Appellant sustained injuries after a fall through the second-story floor of a water-damaged building. The trial court granted summary judgment in favor of the Defendants/Appellees, finding that the danger was open and obvious, that Defendants/Appellees had warned of the danger, and that Plaintiff/Appellant was at least 50% at fault for his own injuries, thus negating his negligence claim under McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). Finding no error, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/reedw_022310.pdf
This is a premises liability case. Plaintiff/Appellant sustained injuries after a fall through the second-story floor of a water-damaged building. The trial court granted summary judgment in favor of the Defendants/Appellees, finding that the danger was open and obvious, that Defendants/Appellees had warned of the danger, and that Plaintiff/Appellant was at least 50% at fault for his own injuries, thus negating his negligence claim under McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). Finding no error, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/reedw_022310.pdf
Monday, February 22, 2010
TWCA reviews the impairment rating and application of a multiplier in worker's compensation case
PAUL HAGY v. RANDSTAD STAFFING SERVICES, L.P. ET AL. (TWCA February 22, 2010)
The employee filed a workers' compensation claim for neck and lower back injuries sustained while setting up a conference room during a temporary job assignment. The trial court found that both injuries were work-related, assigned a six percent impairment to the neck and a five percent impairment to the back, and applied a multiplier of 2.5. Both the employee and the employer filed appeals, which have 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). The judgment of the trial court is affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hagyp_022210.pdf
The employee filed a workers' compensation claim for neck and lower back injuries sustained while setting up a conference room during a temporary job assignment. The trial court found that both injuries were work-related, assigned a six percent impairment to the neck and a five percent impairment to the back, and applied a multiplier of 2.5. Both the employee and the employer filed appeals, which have 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). The judgment of the trial court is affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hagyp_022210.pdf
Friday, February 19, 2010
TWCA reviews whether employee gave sufficient notice in accordance with workers' compensation laws
ALLEN RAY WOLFE v. MAYES MORTUARY (TWCA February 19, 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. Employee alleged that he injured his back in the course of his employment. Employer denied liability, asserting that Employee had not complied with the notice requirements of the workers' compensation law. Tenn. Code Ann. section 50-6-201. The trial court found that Employee gave sufficient notice, and awarded one hundred fifty-six weeks of permanent partial disability benefits. Employer has appealed, arguing that the trial court erred by finding that Employee provided notice of his injury, and also that the award is excessive. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/wolfea_021910.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. Employee alleged that he injured his back in the course of his employment. Employer denied liability, asserting that Employee had not complied with the notice requirements of the workers' compensation law. Tenn. Code Ann. section 50-6-201. The trial court found that Employee gave sufficient notice, and awarded one hundred fifty-six weeks of permanent partial disability benefits. Employer has appealed, arguing that the trial court erred by finding that Employee provided notice of his injury, and also that the award is excessive. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/wolfea_021910.pdf
Thursday, February 18, 2010
Court reviews the applicability of the Family Purpose Doctrine
ARLENE R. STARR v. PAUL B. HILL, SR., and PAUL B. HILL, JR. (Tenn. Ct. App. February 18, 2010)
After Plaintiff was injured in a car accident, she filed suit against the minor who was driving the other vehicle and against the minor's father, alleging that he was vicariously liable for the acts of his son pursuant to the family purpose doctrine. Father moved for summary judgment, claiming that the undisputed facts showed that the family purpose doctrine was inapplicable as a matter of law. Plaintiff moved for partial summary judgment, claiming that the family purpose doctrine was applicable as a matter of law. The trial court denied Plaintiff's motion for partial summary judgment and granted summary judgment to Father. Plaintiff appeals. We reverse and remand for entry of an order granting Plaintiff's motion, as we find the family purpose doctrine applicable to this case.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/starra_021810.pdf
After Plaintiff was injured in a car accident, she filed suit against the minor who was driving the other vehicle and against the minor's father, alleging that he was vicariously liable for the acts of his son pursuant to the family purpose doctrine. Father moved for summary judgment, claiming that the undisputed facts showed that the family purpose doctrine was inapplicable as a matter of law. Plaintiff moved for partial summary judgment, claiming that the family purpose doctrine was applicable as a matter of law. The trial court denied Plaintiff's motion for partial summary judgment and granted summary judgment to Father. Plaintiff appeals. We reverse and remand for entry of an order granting Plaintiff's motion, as we find the family purpose doctrine applicable to this case.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/starra_021810.pdf
Tuesday, February 16, 2010
Court reviews summary judgment ruling in automobile accident case
SHEREE MACLEOD v. LORETTA McKENZIE (Tenn. Ct. App. February 16, 2010)
Plaintiff was injured in an accident while in an automobile operated by defendant. Plaintiff's action charges defendant with negligent operation of the motor vehicle, causing the accident and her resulting injuries. Defendant was operating her vehicle on a wet roadway. She skidded, which she claims was the sole cause of the accident. The Trial Court granted defendant summary judgment. On appeal, we hold that there are disputed issues of material fact as to whether defendant was negligent in the operation of her motor vehicle, independent of the vehicle's skidding, and remand the case for trial.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/macleods_021610.pdf
Plaintiff was injured in an accident while in an automobile operated by defendant. Plaintiff's action charges defendant with negligent operation of the motor vehicle, causing the accident and her resulting injuries. Defendant was operating her vehicle on a wet roadway. She skidded, which she claims was the sole cause of the accident. The Trial Court granted defendant summary judgment. On appeal, we hold that there are disputed issues of material fact as to whether defendant was negligent in the operation of her motor vehicle, independent of the vehicle's skidding, and remand the case for trial.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/macleods_021610.pdf
Court reviews whether Defendants met the standard of care in a medical malpractice suit
SHERRI J. HAGER, et al., v. RAMSEY G. LARSON, M.D., et al. (Tenn. Ct. App. February 16, 2010)
In this medical malpractice action, defendants filed affidavits along with a summary judgment motion, setting forth that they had met the standard of care in their treatment of plaintiff, Sherri J. Hager. The hearing on the summary judgment was continued and plaintiffs were directed to furnish the Court with an affidavit to support their claims. Plaintiffs filed the affidavit of a physician who specialized in internal medicine, who opined that defendants failed to meet the standard of care in treating plaintiff, but stated repeatedly in the deposition that he could not offer an opinion on causation of any injury that would merit an award of damages, since he was an internal medicine specialist. The Trial Court granted defendants summary judgment and, on appeal, we affirm.
Full opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hagers_021610.pdf
In this medical malpractice action, defendants filed affidavits along with a summary judgment motion, setting forth that they had met the standard of care in their treatment of plaintiff, Sherri J. Hager. The hearing on the summary judgment was continued and plaintiffs were directed to furnish the Court with an affidavit to support their claims. Plaintiffs filed the affidavit of a physician who specialized in internal medicine, who opined that defendants failed to meet the standard of care in treating plaintiff, but stated repeatedly in the deposition that he could not offer an opinion on causation of any injury that would merit an award of damages, since he was an internal medicine specialist. The Trial Court granted defendants summary judgment and, on appeal, we affirm.
Full opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hagers_021610.pdf
Thursday, February 11, 2010
Court reviews whether evidence is sufficient to prove causation
SAMUEL S. HAINES v. HENRY COUNTY BOARD OF EDUCATION (Tenn. Ct. App. February 11, 2010)
This appeal arises out of an auto accident. The trial court entered judgment in favor of the plaintiff. The defendant appeals, arguing that the plaintiff's evidence was insufficient to prove causation. We reverse the judgment of the trial court and enter judgment in favor of the defendant.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hainess_021110.pdf
This appeal arises out of an auto accident. The trial court entered judgment in favor of the plaintiff. The defendant appeals, arguing that the plaintiff's evidence was insufficient to prove causation. We reverse the judgment of the trial court and enter judgment in favor of the defendant.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hainess_021110.pdf
Wednesday, February 10, 2010
TWCA reviews whether the trial court properly interpreted TRCP 41
KEITH BROOKS v. PACCAR, INC. d/b/a PETERBILT MOTORS COMPANY (TWCA February 10, 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 filed an action in Chancery Court. He later filed a notice of voluntary nonsuit and immediately refiled his action in Circuit Court. An order dismissing the Chancery Court action was filed several days later. The employer moved to dismiss the Circuit Court action, noting that the Chancery Court action was still pending at the time the Circuit Court action was filed. The Circuit Court granted the motion. Employee has appealed, contending that the trial court erred in its interpretation of Tenn. R. Civ. P. 41. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/brooksk_021010.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 filed an action in Chancery Court. He later filed a notice of voluntary nonsuit and immediately refiled his action in Circuit Court. An order dismissing the Chancery Court action was filed several days later. The employer moved to dismiss the Circuit Court action, noting that the Chancery Court action was still pending at the time the Circuit Court action was filed. The Circuit Court granted the motion. Employee has appealed, contending that the trial court erred in its interpretation of Tenn. R. Civ. P. 41. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/brooksk_021010.pdf
TWCA reviews whether plaintiff was an employee or an independent contractor for the purposes of a workers' compensation suit
GLORIA KAZELESKI v. DIXIE MOTORS, INC. (TWCA February 10, 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 plaintiff, Gloria Kazeleski, was involved in an automobile accident, and sought workers' compensation benefits from defendant Dixie Motors, Inc. Dixie Motors contended that she was not its employee, but an independent contractor. The trial court ruled that she was an employee, and awarded benefits, including 100% permanent disability of the left arm. The defendant has appealed, arguing that the trial court erred by finding that plaintiff was its employee. We conclude that she was an independent contractor, and reverse the judgment.
Full opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/kazeleskig_021010.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 plaintiff, Gloria Kazeleski, was involved in an automobile accident, and sought workers' compensation benefits from defendant Dixie Motors, Inc. Dixie Motors contended that she was not its employee, but an independent contractor. The trial court ruled that she was an employee, and awarded benefits, including 100% permanent disability of the left arm. The defendant has appealed, arguing that the trial court erred by finding that plaintiff was its employee. We conclude that she was an independent contractor, and reverse the judgment.
Full opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/kazeleskig_021010.pdf
Friday, February 5, 2010
Court assesses whether an employee's actions fall within the scope of his employment for the purposes of governmental immunity
DALTON REB HUGHES and wife, SANDRA HINES HUGHES v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE (Tenn. Ct. App. February 5, 2010)
A Metro public works employee was injured when a front end loader operated by a Metro fire department employee made a loud noise, causing the public works employee, fearing for his life, to fall while attempting to jump over a guardrail. The injured plaintiff filed suit against Metro and the defendant front end loader operator. Metro filed a cross-claim against the defendant as well as a counter-claim against the plaintiff seeking a subrogation of lost wages and medical payments recovered from the defendant. The trial court found that the defendant acted negligently and within the scope of his employment, and thus, it found that Metro's immunity was removed pursuant to the Governmental Tort Liability Act. Accordingly, the trial court entered a judgment for the plaintiff against Metro, and it dismissed the claims against the defendant. On appeal, Metro argues that the defendant acted intentionally, rather than negligently, and that his conduct was outside the scope of his employment, such that Metro retains its immunity. We affirm.
The opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hughesd_020510.pdf
A Metro public works employee was injured when a front end loader operated by a Metro fire department employee made a loud noise, causing the public works employee, fearing for his life, to fall while attempting to jump over a guardrail. The injured plaintiff filed suit against Metro and the defendant front end loader operator. Metro filed a cross-claim against the defendant as well as a counter-claim against the plaintiff seeking a subrogation of lost wages and medical payments recovered from the defendant. The trial court found that the defendant acted negligently and within the scope of his employment, and thus, it found that Metro's immunity was removed pursuant to the Governmental Tort Liability Act. Accordingly, the trial court entered a judgment for the plaintiff against Metro, and it dismissed the claims against the defendant. On appeal, Metro argues that the defendant acted intentionally, rather than negligently, and that his conduct was outside the scope of his employment, such that Metro retains its immunity. We affirm.
The opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hughesd_020510.pdf
Wednesday, February 3, 2010
TWCA reviews trial court's apportionment of an award for permanent partial disability benefits
THOMAS E. HALL v. TRW AUTOMOTIVE, U.S., LLC, ET AL. (TWCA February 3, 2010)
In this workers' compensation action, the employee, Thomas Hall, alleged that he sustained hearing loss due to exposure to noise in the workplace. The employer, TRW Automotive U.S., LLC, contended that most of the hearing loss occurred after Mr. Hall began wearing hearing protection, and was therefore not caused by his employment. The trial court awarded 75% permanent partial disability of the hearing of both ears. TRW has appealed, arguing that the trial court erred in that it failed to apportion the award to the body as a whole, selected an incorrect injury date, declined to view a video recording of an evidentiary deposition, and made an excessive award of benefits. We conclude that the award should have been assigned to the body as a whole, and that the trial court selected an incorrect injury date. The judgment is modified accordingly.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hallt_020310.pdf
In this workers' compensation action, the employee, Thomas Hall, alleged that he sustained hearing loss due to exposure to noise in the workplace. The employer, TRW Automotive U.S., LLC, contended that most of the hearing loss occurred after Mr. Hall began wearing hearing protection, and was therefore not caused by his employment. The trial court awarded 75% permanent partial disability of the hearing of both ears. TRW has appealed, arguing that the trial court erred in that it failed to apportion the award to the body as a whole, selected an incorrect injury date, declined to view a video recording of an evidentiary deposition, and made an excessive award of benefits. We conclude that the award should have been assigned to the body as a whole, and that the trial court selected an incorrect injury date. The judgment is modified accordingly.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hallt_020310.pdf
Tuesday, February 2, 2010
Court reverses lower court refusal to allow defendant’s amendment after statute of limitations had run
ROBERT DANIELS and PEGGY DANIELS, v. MICHAEL D. WRAY (Tenn. Ct. App. May 21, 2009)
Plaintiff filed this action for damages for injuries sustained in an automobile accident. Defendant answered, denying liability, and subsequently filed a Tenn. R. Civ. P. 15 to amend and make claim for personal injuries and property damage as a result of the accident. The Trial Court allowed theamendment as to property damages, but refused to allow defendant to assert the claim for personal injuries on the grounds inter alia that the statute of limitations had run on the personal injury claim prior to the filing of the Motion to Amend. The property damage claim was settled, but the refusal to allow the amendment has been appealed to this Court. We hold that the Trial Court abused its discretion in refusing to allow the amendment.
"Under the abuse of discretion standard, a trial court's ruling “will be upheld so long as reasonable minds can disagree as to propriety of the decision made.” A trial court abuses its discretion only when it “applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining.” The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court." Id.
"Although permission to amend should be liberally granted, the decision 'will not be reversed unless abuse of discretion has been shown.' Factors the Trial Court should consider when deciding whether to allow amendments include '[u]ndue delay in filing; lack of notice to the opposing party; bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.'” Id.
"The record does not demonstrate that plaintiffs were prejudiced in a “wasted” discovery or preparations for depositions, or that they would have prepared differently if the counterclaim had been filed." Id.
"There was also no showing that plaintiffs were prejudiced by the delay of defendant’s sought amendment, as discovery was still going on, and the case had not yet been set for trial." Id. (Case citations omitted)
The full text of this opinion is available at the TBA website: http://www.tba2.org/tba_files/TCA/2009/danielsr_05209.pdf
Plaintiff filed this action for damages for injuries sustained in an automobile accident. Defendant answered, denying liability, and subsequently filed a Tenn. R. Civ. P. 15 to amend and make claim for personal injuries and property damage as a result of the accident. The Trial Court allowed theamendment as to property damages, but refused to allow defendant to assert the claim for personal injuries on the grounds inter alia that the statute of limitations had run on the personal injury claim prior to the filing of the Motion to Amend. The property damage claim was settled, but the refusal to allow the amendment has been appealed to this Court. We hold that the Trial Court abused its discretion in refusing to allow the amendment.
"Under the abuse of discretion standard, a trial court's ruling “will be upheld so long as reasonable minds can disagree as to propriety of the decision made.” A trial court abuses its discretion only when it “applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining.” The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court." Id.
"Although permission to amend should be liberally granted, the decision 'will not be reversed unless abuse of discretion has been shown.' Factors the Trial Court should consider when deciding whether to allow amendments include '[u]ndue delay in filing; lack of notice to the opposing party; bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.'” Id.
"The record does not demonstrate that plaintiffs were prejudiced in a “wasted” discovery or preparations for depositions, or that they would have prepared differently if the counterclaim had been filed." Id.
"There was also no showing that plaintiffs were prejudiced by the delay of defendant’s sought amendment, as discovery was still going on, and the case had not yet been set for trial." Id. (Case citations omitted)
The full text of this opinion is available at the TBA website: http://www.tba2.org/tba_files/TCA/2009/danielsr_05209.pdf
Court affirms based on insufficiency of expert witness affadavit
REBECCA METTES v. J. THOMAS JOHN, JR., M.D. (Tenn. Ct. App. May 21, 2009)
In this medical malpractice action, patient appeals the trial court's grant of summary judgment in favor of physician based on the insufficiency of the affidavit of the patient's expert. We affirm.
"Under Tennessee law, except in circumstances in which the alleged malpractice is within the common knowledge of laymen, the plaintiff in a medical malpractice action is required to prove by expert testimony the applicable standard of care, the defendant’s breach of that standard, and proximate cause. Tenn. Code Ann. § 29-26-115(a)." Id.
"Our Supreme Court has held: '[I]n those malpractice actions wherein expert testimony is required to establish negligence and proximate cause, affidavits by medical doctors which clearly and completely refute plaintiff’s contention afford a proper basis for dismissal of the action on summary judgment, in the absence of proper responsive proof by affidavit or otherwise.'" Id.
"To effectively refute a claim of malpractice, the defendants 'must present facts rebutting the allegations of [the] complaint as to at least one of the three statutory elements for medical malpractice actions.' To refute one of the statutory elements, a defendant 'must simply file an expert affidavit stating that all of his care and treatment of the plaintiff met the recognized standard of acceptable professional practice or that his treatment was not the cause of any injury to the plaintiff that plaintiff would not otherwise have suffered.' Id. at 191. A defendant may shift the burden by submitting his or her 'own selfserving affidavit stating that their conduct neither violated the applicable standard of care nor caused injury to their patient that would not otherwise have occurred.'" Id. (Case citations omitted.)
The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mettesr_052109.pdf
In this medical malpractice action, patient appeals the trial court's grant of summary judgment in favor of physician based on the insufficiency of the affidavit of the patient's expert. We affirm.
"Under Tennessee law, except in circumstances in which the alleged malpractice is within the common knowledge of laymen, the plaintiff in a medical malpractice action is required to prove by expert testimony the applicable standard of care, the defendant’s breach of that standard, and proximate cause. Tenn. Code Ann. § 29-26-115(a)." Id.
"Our Supreme Court has held: '[I]n those malpractice actions wherein expert testimony is required to establish negligence and proximate cause, affidavits by medical doctors which clearly and completely refute plaintiff’s contention afford a proper basis for dismissal of the action on summary judgment, in the absence of proper responsive proof by affidavit or otherwise.'" Id.
"To effectively refute a claim of malpractice, the defendants 'must present facts rebutting the allegations of [the] complaint as to at least one of the three statutory elements for medical malpractice actions.' To refute one of the statutory elements, a defendant 'must simply file an expert affidavit stating that all of his care and treatment of the plaintiff met the recognized standard of acceptable professional practice or that his treatment was not the cause of any injury to the plaintiff that plaintiff would not otherwise have suffered.' Id. at 191. A defendant may shift the burden by submitting his or her 'own selfserving affidavit stating that their conduct neither violated the applicable standard of care nor caused injury to their patient that would not otherwise have occurred.'" Id. (Case citations omitted.)
The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mettesr_052109.pdf
Court affirms that expert witness not qualified
TOMMY McDANIEL, ET AL. v. AMAL RUSTOM, M.D., ET AL. (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.
The full text of 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.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcdanielt_050509.pdf
TCA affirms wrongful death, medical malpractice judgement; finding that even blatant malpractice may be a foreseeable harm
DORIS G. HOWELL, as Next of Kin and as Guardian of JESSIE J. WILLIAMS, a minor child of GINGER WILLIAMS, deceased, ET AL. v. DAVID M. TURNER, M.D., ET AL. (Tenn. Ct. App. May 21, 2009)
This appeal arises out of the death of Ginger Williams ("Ms. Williams" or "Decedent") after she sought medical treatment from the various Defendants. After the jury returned a verdict in favor of Plaintiff, Defendant Doctor moved for a judgment notwithstanding the verdict, asserting that the doctrine of an independent, intervening cause precluded his liability. We affirm the trial court's decision to deny Defendant's motion.
The full text of this opinion may be seen at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/howelld_052109.pdf
This appeal arises out of the death of Ginger Williams ("Ms. Williams" or "Decedent") after she sought medical treatment from the various Defendants. After the jury returned a verdict in favor of Plaintiff, Defendant Doctor moved for a judgment notwithstanding the verdict, asserting that the doctrine of an independent, intervening cause precluded his liability. We affirm the trial court's decision to deny Defendant's motion.
The full text of this opinion may be seen at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/howelld_052109.pdf
Appeal lost due to failure to make an offer of proof
HOPE DENTON v. JAMES G. HAGGARD (Tenn. Ct. App May 21, 2009)
Evidence of defendant's prior traffic violations was excluded by the trial court in an automobile accident case. Plaintiff appealed. We affirm due to plaintiff's failure to make an offer of proof.
Opinion can be found at:
http://www.tba2.org/tba_files/TCA/2009/dentonh_052109.pdf
Evidence of defendant's prior traffic violations was excluded by the trial court in an automobile accident case. Plaintiff appealed. We affirm due to plaintiff's failure to make an offer of proof.
Opinion can be found at:
http://www.tba2.org/tba_files/TCA/2009/dentonh_052109.pdf
Monday, February 1, 2010
Court reviews dismissal of case without prejudice due to noncompliance of Plaintiff with court orders
MIN GONG v. IDA L. POYNTER (Tenn. Ct. App. February 1, 2010)
Min Gong ("the plaintiff") filed this action against Ida L. Poynter ("the defendant") for injuries she sustained when, as a pedestrian on the sidewalk, she was struck by an automobile driven by the defendant, all as alleged in her filing. The "complaint" was filed pro se in the form of a long letter with approximately 200 pages of accompanying documents.
The defendant served written discovery on the plaintiff consisting of six interrogatories and one document request. The plaintiff submitted an unsworn response in which she objected to answering the defendant's discovery on the grounds that "individuals" are not subject to written discovery and that the information requested was protected by the attorney-client privilege or the work product doctrine. The defendant filed a motion to compel which the trial court granted after a hearing held on January 29, 2009. The order, filed January 29, 2009, compelled "the Plaintiff [to] submit written responses to Defendant's discovery within thirty (30) days from the date of this Order or Plaintiff's suit will be dismissed."
The plaintiff did not appear at the January 29, 2009, hearing, but did file several "motions" of her own. In addition, she sent written notification that she had scheduled the matter for a four-hour trial on April 2, 2009. As to the motion to compel, the plaintiff asserted that the defendant had misinterpreted "Rule 33 of the Tennessee Rules of Civil Procedure" and that it is not applicable to individuals. Counsel for the defendant filed an affidavit on March 11, 2009, stating that the plaintiff had not complied with the order and that the plaintiff, as late as March 9, 2009, continued to resist discovery on the grounds previously stated by her. On March 25, 2009, the trial court entered an order dismissing the case "without prejudice." The plaintiff appeals. We affirm.
Opinion can be found at:
http://www.tba2.org/tba_files/TCA/2010/poynterl_020110.pdf
Min Gong ("the plaintiff") filed this action against Ida L. Poynter ("the defendant") for injuries she sustained when, as a pedestrian on the sidewalk, she was struck by an automobile driven by the defendant, all as alleged in her filing. The "complaint" was filed pro se in the form of a long letter with approximately 200 pages of accompanying documents.
The defendant served written discovery on the plaintiff consisting of six interrogatories and one document request. The plaintiff submitted an unsworn response in which she objected to answering the defendant's discovery on the grounds that "individuals" are not subject to written discovery and that the information requested was protected by the attorney-client privilege or the work product doctrine. The defendant filed a motion to compel which the trial court granted after a hearing held on January 29, 2009. The order, filed January 29, 2009, compelled "the Plaintiff [to] submit written responses to Defendant's discovery within thirty (30) days from the date of this Order or Plaintiff's suit will be dismissed."
The plaintiff did not appear at the January 29, 2009, hearing, but did file several "motions" of her own. In addition, she sent written notification that she had scheduled the matter for a four-hour trial on April 2, 2009. As to the motion to compel, the plaintiff asserted that the defendant had misinterpreted "Rule 33 of the Tennessee Rules of Civil Procedure" and that it is not applicable to individuals. Counsel for the defendant filed an affidavit on March 11, 2009, stating that the plaintiff had not complied with the order and that the plaintiff, as late as March 9, 2009, continued to resist discovery on the grounds previously stated by her. On March 25, 2009, the trial court entered an order dismissing the case "without prejudice." The plaintiff appeals. We affirm.
Opinion can be found at:
http://www.tba2.org/tba_files/TCA/2010/poynterl_020110.pdf
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