Court reviews fault in a case involving an automobile accident

REGINALD DENARD USHER, SON OF REGINALD SMITH, DECEASED v. CHARLES BLALOCK & SONS, INC. ET AL. (Tenn. Ct. App. June 30, 2010)

Reginald Smith ("the Decedent") died when the exposed metal edge of a device known as a "Guardrail Energy-Absorbing Terminal" ("the crash cushion") penetrated the window of the cab of his moving overturned tractor-trailer and cut him nearly in half. His son, Reginald Denard Usher ("the plaintiff"), filed this action in the trial court against Charles Blaylock & Sons, Inc. The plaintiff also filed a claim against the State with the Tennessee Claims Commission.

The essence of the claims is that the crash cushion was negligently placed at the end of a series of concrete barriers that served to separate traffic entering on and exiting from the roadway connecting to the temporary end of Interstate 140 in Blount County. The alleged negligence was the failure to install a "transition panel" between the last concrete barrier and the crash cushion. Such a panel is designed to cover the otherwise exposed edge of the crash cushion thereby preventing vehicles from "snagging" the exposed metal edge. Eventually, the claim against the State was joined with the claim against Blaylock.

The case was tried to a jury with the circuit judge sitting as the Claims Commissioner; the jury was utilized by the trial judge in an advisory capacity with regard to the claim against the State. The jury returned a verdict in favor of the plaintiff. The jury found that the plaintiff's total damages were $2,000,000. It apportioned fault 25% to the Decedent, 37.5% to the State, and 37.5% to Blaylock. Acting as the Claims Commissioner, the trial court went against the advice of the jury and dismissed the claim against the State. The court found (1) that the plaintiff failed to carry the burden of proof with respect to the applicable standard of care for installing crash cushions; (2) that the plaintiff failed to prove a breach of duty; and (3) that, in any event, the Decedent was at least 50% at fault for speeding through a construction zone in foggy conditions.

Later, the trial court granted Blalock's motion for judgment notwithstanding the verdict and entered judgment in its favor. The court held (1) that Blalock was not responsible, as a matter of law, for leaving off the transition panel because the State's inspector on the scene "directed" Blalock to leave it off; (2) that the plaintiff failed to carry the burden of proving, by expert testimony, what a reasonably prudent contractor would have done under the circumstances; and (3) again, that the Decedent was at least 50% at fault. The court, acting as 13th juror, conditionally granted Blalock a new trial in the event the judgment in its favor was vacated or reversed. The plaintiff appeals. We affirm the judgment in favor of the State. We vacate the judgment in favor of Blalock and remand for a new trial as to that defendant.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/usherr_063010.pdf

Court reviews whether plaintiff adequately stated a claim for relief

CHARLES D. STECHEBAR V. DEERE & COMPANY & JOHN DOE (Tenn. Ct. App. June 29, 2010)

This case concerns a complaint for review by writ of certiorari and supersedeas. The initial action was a personal injury suit, arising from an automobile accident in which Plaintiff Charles D. Stechebar's vehicle was allegedly hit by a tractor-trailer owned by Defendant Deere and Company ("Deere") and driven by Defendant John Doe, an unidentified employee of Deere.

The personal injury suit was dismissed with prejudice in the general sessions court when the plaintiff failed to appear for the initial trial date. The record reflects that twelve days before the initial trial date, the plaintiff had filed an amended civil summons and obtained a new trial date.

Fifty days after the dismissal, the plaintiff filed an appeal to the circuit court, asserting that he had not been notified of the dismissal in time to file an appeal within the ten-day window required by Tenn. Code Ann. Section 27-5-108(a)(1). The circuit court dismissed the appeal for lack of jurisdiction. The plaintiff then filed the complaint for review by statutory writ of certiorari and supersedeas. The circuit court granted the defendant's motion to dismiss the writ on the ground that the plaintiff failed to state a claim for which review could be granted. We hold that the plaintiff stated a claim for relief under statutory writ of certiorari and supersedeas. The trial court's judgment is reversed and the case remanded to the trial court for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/stechebarc_062910.pdf

Court reviews whether the trial court failed to make an adequate award in a medical malpractice action

JAMES ERWIN v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA (Tenn. Ct. App. June 28, 2010)

Plaintiff recovered a judgment in this medical malpractice action, and during the pendency of the case the workers compensation carrier for plaintiff's employer intervened asserting its subrogation interest in any recovery due to its having paid the medical bills plaintiff incurred as a result of his injuries. The Trial Court awarded attorney's fees and expenses to plaintiff's attorney and plaintiff has appealed, arguing that the Trial Court failed to make an adequate award. On appeal, we affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/erwinj_062810.pdf

Court reviews whether plaintiff adequately proved constructive notice in a slip and fall case

CALVIN BENN v. PUBLIC BUILDING AUTHORITY OF KNOX COUNTY, ET AL. (Tenn. Ct. App. June 28, 2010)

Plaintiff slipped off the sidewalk while removing trash during the course and scope of his employment with Knox County. Plaintiff sustained injuries to his hip and shoulder as a result of his fall. He then filed suit pursuant to the Government Tort Liability Act. After a bench trial, the trial court found that Plaintiff failed to prove constructive notice by a preponderance of the evidence and entered a judgment in favor of Defendants. Plaintiff appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bennc_062810.pdf

Worker's Compensation Panel reviews whether employee suffered a compensable injury

MICHAEL HALL v. AM COMP ASSURANCE CORPORATION (TWCA June 28, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Michael Hall ("Employee") alleged that he sustained compensable injuries as a result of repetitive use of his hands and arms in the course of his employment as a butcher for Latham's Meat Company ("Employer"). Employer denied that he had sustained a compensable injury. In the alternative, it alleged that Employee's injuries had been caused by his part-time work for a second employer.

The trial court found that Employee had sustained compensable injuries to his arms and that Employer was liable for workers' compensation benefits arising from those injuries. It awarded 22.5% permanent partial disability ("PPD") to both arms. On appeal, Employer contends that the trial court erred by finding that a compensable injury occurred and by finding that Employee sustained permanent disability as a result. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hallwc_062810.pdf

Court reviews dismissal of medical malpractice case

SHAWN HOWELL, Individually and as Administrator for the Estate of JESSE FRANKLIN BROWNING, JR. v. CLAIBORNE AND HUGHES HEALTH CENTER (Tenn. Ct. App. June 25, 2010)

This is a medical malpractice action. Appellant originally filed a claim in 2007 in the name of an estate. The original claim was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, the Appellant later amended the complaint to name the administrator of the estate as the plaintiff.

However, upon the Appellee's motion, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. section 29-26- 121. Finding that the trial court erred, we reverse the decision of the trial court and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/howells_062510.pdf

TN Supreme Court reviews the applicability of the Government Tort Liability Act

ESTATE OF JOYCE BELL ET AL. v. SHELBY COUNTY HEALTH CARE CORPORATION D/B/A THE REGIONAL MEDICAL CENTER (Tenn. June 24, 2010)

This appeal involves the application of the Tennessee Governmental Tort Liability Act to an action for damages filed against a defendant that was not covered by the Act when the injury producing events occurred.

The defendant filed a motion for partial summary judgment in the Circuit Court for Shelby County seeking the benefit of the claims and defenses available to government entities under the Act. The plaintiffs responded by challenging the constitutionality of legislation extending the coverage of the Act to the defendant on the ground that the legislation had been enacted after the plaintiffs had sustained their injuries. The trial court held that the Act applied to the defendant but granted the plaintiffs permission to pursue an interlocutory appeal.

We granted the plaintiffs' application for permission to appeal after the Court of Appeals declined to consider the case. We have determined that applying the substantive amendment to the Tennessee Governmental Tort Liability Act enacted after the injury-producing events occurred to the plaintiffs' damage claims violates the prohibition against retrospective laws in Article I, Section 20 of the Constitution of Tennessee.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2010/bellj_062410

Court reviews causation and whether the trial court properly denied motions for summary judgment in a medical malpractice case

CAROL E. MILLER v. JOEL S. BIRDWELL, M.D., ET AL. (Tenn. Ct. App. June 23, 2010)

This appeal involves claims for medical malpractice against three doctors. The doctors each filed a motion for summary judgment. The trial court denied all three motions. After reviewing the record, we find that there are no material issues of fact in dispute. The defendant-doctors affirmatively negated an essential element of the Plaintiff's claim - causation. Plaintiff failed to come forward with expert proof to demonstrate that there was a material issue of fact in dispute. Accordingly, the doctors are entitled to summary judgment. Consequently, this Court finds that the trial court erred in denying the motions for summary judgment. Reversed and remanded.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/millerc_062310.pdf

Court reviews whether the statute of limitations barred claims in a case involving illnesses resulting from exposure to toxic mold

VICTORIA DUTTON, ET AL. v. FARMERS GROUP, INC., ET AL. (Tenn. Ct. App. June 22, 2010)

Plaintiffs' home flooded and incurred severe water and mold damage when the hot water tank burst. Plaintiffs began to experience varying illnesses after moving back into the home. Despite Defendants' assurances that the home was safe, three years after moving back into the home, Plaintiffs discovered that their home was contaminated with toxic mold.

Thereafter, Plaintiffs filed suit against Defendants alleging various claims. Defendants moved to dismiss the Complaint asserting that the statute of limitations barred the claims. After a hearing, the trial court agreed and dismissed Plaintiffs' Complaint. Plaintiffs then filed a motion to alter or amend the judgment; the trial court denied the motion. Plaintiffs appeal. We reverse.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/duttonv_062210.pdf

SUSANO concurring
http://www.tba2.org/tba_files/TCA/2010/duttonv_CON_062210.pdf

Court reviews the standard of care owed by a physician to a patient in a medical malpractice case.

MELISSA MICHELLE COX v. M. A. PRIMARY AND URGENT CARE CLINIC et al. (Tenn. June 21, 2010)

We granted permission to appeal in this case to address the standard of care that applies to a physician assistant in a medical malpractice case. The plaintiff sued for injuries she allegedly suffered as a result of physician assistant Michael Maddox's failure to diagnose her condition accurately. The plaintiff did not sue Maddox, but sued the clinic which he owned and in which he practiced and Dr. Austin Adams, Maddox's supervising physician.

The defendants filed a joint motion for summary judgment, supported by their testimony that (1) Maddox did not violate the standard of care applicable to physician assistants and (2) Dr. Adams did not violate the standard of care applicable to physicians. The plaintiff responded with her cardiologist's testimony that Maddox violated the standard of care applicable to primary care physicians. The cardiologist testified that he was not familiar with physician assistants or their supervision.

The trial court granted the defendants' motion for summary judgment on the basis that the plaintiff had failed to establish that Maddox violated the professional standard of care applicable to him. The Court of Appeals reversed the trial court, holding that the standard of care applicable to physician assistants is the same as that applicable to physicians. We reverse the Court of Appeals and hold that the standard of care applicable to physician assistants is distinct from that applicable to physicians. The trial court's summary judgment in favor of the defendants is reinstated, and the case is dismissed.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/coxm_062110.pdf

Worker's Compensation Panel reviews reconsideration action and subject matter jurisdiction.

LARRY BESHIRES v. BERKLEY REGIONAL INSURANCE COMPANY (TWCA June 18, 2010)

These workers' compensation appeals were consolidated for hearing and disposition by order dated May 27, 2009. The employee, Larry Beshires, settled a claim for work-related injuries to his left knee and right shoulder, based upon the two and one-half times impairment cap in Tennessee Code Annotated section 50-6-241(a)(1). The settlement was approved by the Chancery Court of Fayette County.

Mr. Beshires subsequently sustained a second injury, or aggravation of the previous injury, to his shoulder. He returned to work for a time, but then retired. He filed suit in the Chester County Chancery Court, seeking benefits for the new injury or, alternatively, reconsideration of his prior settlement. The reconsideration action was transferred to the Chancery Court of Fayette County. After a hearing on the merits, the Fayette County court declined to award additional benefits. The Chester County court awarded 48% permanent partial disability to the body as a whole for the later injury.

Both sides have appealed, and the appeals have been consolidated by order of the Supreme Court. Mr. Beshires contends that the Fayette County court erred by failing to award additional benefits. The employer contends that the Chester County court did not have subject matter jurisdiction, because the benefit review conference process had not been exhausted. We affirm both judgments.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/beshiresl_061810.pdf

Court reviews whether the trial court properly granted summary judgment in a medical malpractice case

NANCY LUNA v. ROGER DEVERSA, M.D. and HAMILTON COUNTY (Tenn. Ct. App. June 17, 2010)

This appeal arises from a medical malpractice claim. A surgeon performed a procedure on the plaintiff at the defendant hospital. The defendant hospitalist physician monitored the plaintiff's post-surgery recovery. The plaintiff filed this lawsuit asserting that the defendant hospitalist was negligent in releasing her from the hospital prematurely. The defendant hospitalist filed a motion for summary judgment, as did the hospital. The trial court granted summary judgment to both. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/lunan_061710.pdf

Court reviews the sufficiency of the evidence in a case involving a hunting accident

BOBBY GERALD RILEY, and Wife, TANYA RILEY, Individually and as next of kin for HUNTER RILEY v. JAMES ORR (Tenn. Ct. App. June 14, 2010)

This is an appeal of a jury verdict. The plaintiff was hunting with his son. The defendant was also hunting in the general area, and accidentally shot the plaintiff. The plaintiff filed a lawsuit against the defendant for negligence, and included a claim for negligent infliction of emotional distress on behalf of his son. The parties stipulated as to the defendant's liability, and a jury trial was held on the issue of damages.

The jury instructions included instructions on the plaintiff father's mental pain and suffering and the son's emotional injury, but did not separately address the plaintiff father's emotional injury. After deliberating, the jury returned a verdict awarding damages to the plaintiff father as well as an award for the son's emotional injury. The trial court denied the defendant's motion for a new trial and approved the verdict. The defendant now appeals.

On appeal, the defendant challenges the sufficiency of the evidence supporting the verdict on several elements of damages, and argues that the inconsistency in the jury instructions on emotional injury necessitates a new trial. We affirm in part, vacate in part, suggest remittitur as to the awards for future medical expenses and for emotional injury, and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/rileyb_061410.pdf

Court reviews allocation of liability in an automobile accident

PAMELA C. BESS v. PROPERTIES, L.P. ET AL. (Tenn. Ct. App. June 14, 2010)

Car A was traveling north on a two-lane highway. Car B, a city police vehicle with its lights and siren on, was also traveling north on the same highway to answer a call. Car A could not pull off the road to the right to yield to Car B and instead turned left as Car B was passing. A collision ensued in which the driver of Car A suffered serious injuries. The driver of Car A sued the city. The trial court found the city 75% liable for the accident. The city appealed. We reverse the trial court's judgment, finding the driver of Car A more than 50% responsible for the accident.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bessp_061410.pdf

Court reviews summary judgment ruling in dental malpractice case

CHRISTINE GREENWOOD v. KIRBY FAMILY DENTISTRY, P.C., ET AL. (Tenn. Ct. App. June 7, 2010)

The trial court granted Defendants' motion for summary judgment in this action for dental malpractice. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/greenwoodc_060710.pdf

Court reviews denial of motion for directed verdict in medical malpractice case

TERESA LYNN STANFIELD, ET AL. v. JOHN NEBLETT, JR., M.D., ET AL. (Tenn. Ct. App. June 4, 2010)

This is a medical malpractice case. The jury returned a verdict, finding that the Appellee/Doctor deviated from the standard of care, but that his deviation was not the legal cause of the injury. Appellant contends that the trial court erred in denying her motion for a directed verdict, erred in ruling on her objections to Appellee's experts and the impeachment of her experts, that she was prejudiced by the language used on the verdict form, and that the trial court abused its discretion in allowing Appellee to make a powerpoint presentation during opening statements and closing arguments. Finding no error, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/stanfieldt_060410.pdf